the colorblind constitution

Race, Law, and Schooling in America

The Colorblind Constitution


According to John Marshall Harlan, the one dissenting judge in the Plessey vs Ferguson decision the American “constitution is colorblind, and neither knows nor tolerates classes among citizens.”

Does the government have the right to treat citizens differently on the basis of their race? Certainly it does on the basis of sex where differences between men and women influence issues of equality.


Since the 1960s the failure of many African Americans and other minorities to achieve social parity has demonstrated that strict equality before the law is not sufficient to overcome the history and the continuance of racism in society.

Advocates of affirmative action and other positive measures designed to secure civil rights now stress the need to critically understand the dynamics of race in social, economic, and political life.

Far from advancing the lives of African Americans, in the eyes of black intellectuals such as James Anderson, the colorblind reading of the Constitution actually serves to perpetuate inequality. They defend color-conscious policies and statutes.


Indeed, convinced of the failure of the liberal state and the Civil Rights Movement a group of legal scholars—led by Derek Bell—have advanced Critical Race Theory to challenge traditional assumptions about the nature and purpose of the law in a caste society.


Simply put, CRT contends that the legal system protects the interests of the powerful and the privileged.

Of course this questioning of the law and the blindness of lady justice is pure heresy for traditionalists and staunch defenders of liberalism.

Is it not the rule of reason and the principle of equality before the law that has brought a degree of social justice to American life—and is this not the best hope for a better future?


For Anderson and Bell, the history of slavery and the continued injustices of racism demand the differential treatment of African Americans and other oppressed groups—and this, they contend, is exactly what the Constitution requires.


I will examine Anderson’s claim and consider the import of the Fourteenth Amendment for the schooling of American children.

We will look first at the case of Roberts v Board of Education Boston (which prefigured future arguments on the legality of segregated schooling before the Supreme Court); the framing of the 14th Amendment; the Plessey case and then the landmark Brown v Board of Education decision. We will then see how Brown was interpreted as liberal judges of the 1960s and 1970s gave way to a more conservative court.

Finally we will examine the consequences of the colorblind philosophy in the recent Seattle case banning efforts to integrate schools by admitting students on the basis of their race.


In a later lecture I will present the educational ideas of Abigail and Steven Thernstrom, staunch defenders of the colorblind society—and examine the educational implications of this doctrine for those, such as the Thernstroms, concerned about the achievement gap between different ethnic groups.


In the Nineteenth Century racism was almost as strong in the North as it was in the South, even if the population did not support slavery.

Indeed, black parents in Boston campaigned for a separate African school because they recognized how much abuse their children would be forced to take in an integrated classroom.

After makeshift arrangements in the basement of the African Meeting House, the bequest of a wealthy white merchant was used to establish the Smith School..


By the 1840s, however, with the rise of the abolitionist movement, several of Boston’s black leaders became more assertive about their civil rights and started a movement for integrated schooling.


Smaller school systems, such as Salem, did integrate blacks, simply because there were so few in the community. Boston, however, had a sizable African American population.

In an effort to force the issue, Benjamin Roberts tried to enroll his daughter Sara in several schools near their home, but was turned away on each occasion. A hundred years before Brown v Board of Education he filed suit in the Massachusetts court demanding equal treatment under the state’s 1780 Constitution.


When the case reached the Bay State’s Supreme Court Robert’s attorney, Robert Morris, was joined by the abolitionist lawyer and future Massachusetts senator, Charles Sumner. His powerful and eloquent defense prefigured all the main arguments found in Brown—and indeed some that were never explored by later civil rights lawyers.


The Boston School Board defended the master’s actions, even though it was well recognized that the conditions in the Smith School were far inferior to those of city’s white schools.

They argued that African American children were a special class and needed a distinctive kind of instruction (echoing phrenology) due to their particular mental and moral organization.

They were also worried about bullying and racial strife between children.


Sumner of course, did not have the 14th Amendment to work with; only “equality before the law” promised by the state’s Constitution.

Lemuel Shaw, the noted judge who found in favor of the Board’s right to discriminate on relevant grounds held that separation did not violate equality. Indeed, he held that the Boston School Board had the right to separate given the special character of the African American child.


In short, Shaw affirmed that “separate could be equal” before the law.

Shaw stated that racial prejudice “is not created by law, and probably cannot be changed by law.” An observation endorsed by the conservative Supreme Court in the 1980s.


By 1855, fired by abolitionist fervor, the Massachusetts Congress legislated against segregation based upon race. But once again this did not mean acceptance of racial equality.

Just see, for example, fears expressed about ex-slaves migrating North or West to get a flavor of the anti-black sentiments of the time.

The Fourteenth Amendment

After the Civil War Radical Republicans led by Sumner passed two amendments to the Constitution that promised African Americans equal political status: the so called “Negro Bill of Rights.”

The Fourteenth Amendment (1868) demanded equal treatment under the law for all Americans. The Fifteenth Amendment (1870) guaranteed all men voting rights irrespective of race.


Interestingly, having found that the guarantee of equal treatment before the law was insufficient to defeat legal segregation, Sumner and the radical abolitionist Wendell Phillips called for a colorblind Constitution that explicitly prohibited discrimination based upon race or color.


As the 39th Congress awoke to danger of unification with a politically empowered South bent on disenfranchising citizens and reinstituting slavery under Black Codes, it entertained competing formulations of the 14th

Amendment.


Following the arguments of Wendell Phillips, the Radical Republicans first proposed for article 1 of the Amendment that

No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.


However, after much wrangling Phillips’ clear and powerful non-discrimination clause was rejected for the politically opaque language of Ohio senator John Bingham.


Here is how section one of the Amendment now reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Note also the important addition of Federal power to enforce this position in section 5

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This provision would prove highly significant in the years after the Brown decision.


Citing “privileges,” “immunities,” and “equal protection under the law,” Congress eventually agreed upon a compromise that would recognize civil rights without nullifying state constitutions and state laws mandating differential treatment based upon race.

Given the widespread racism of the time this must have been as much as even Sumner could have hoped for from a body of politicians facing the re-election of 1866.


For James Anderson these historical facts about the intentions of the Reconstruction Congress (1865-1875) in passing the 14th

Amendment undermine the current constitutional orthodoxy of the Supreme Court that a colorblind constitution prohibits the use of racial classifications to promote school desegregation or justify affirmative action.


Civil rights were clearly tempered by ideas about racial differences. Just read the Congressional record!

Given this historical context in which the amendment was framed, Anderson argues that current conditions should, on occasions, justify affirmative, differential treatment in order to achieve equality.

The Plessey Decision

In the years after Reconstruction the 14th and 15th

Amendments were effectively abridged by Southern states through the imposition of Jim Crow laws that undermined the rights of blacks.

A legal challenge to this system was staged in New Orleans when a group of white and black citizens challenged the 1890 Louisiana law requiring African Americans to travel in separate rail cars. Homer Plessey (who was 1/8 black), was chosen to defy the rule (and problematize the legal definition of race).


Rejecting the plaintiff's appeal to the Fourteenth Amendment, Judge Ferguson found in favor of the state’s right to segregate. The case was then pursued to the Supreme Court which famously upheld the decision invoking Shaw’s argument that separate facilities can be equal.


If African Americans envisioned an opportunity here—given the obvious inequality of segregated schooling—they were soon frustrated.

In 1896 the only public high school for African Americans in Georgia was closed in order to fund an elementary black school.


Coming before the Supreme Court as Cumming v. Richmond County Board of Education it was ruled that Plessey had not been violated.

Forcing the equal allocation of education funds, it was argued, would only lead to the closing of white high schools—a move that would hurt white students without helping blacks.

In practice, “separate and unequal” had became the law of the land.


At a time of economic hardship and rampant racism, the "separate but equal" doctrine thus served to perpetuate both a state sponsored system of apartheid and social inequality.

As result school conditions for African Americans in the South—where they existed—were simply deplorable.

Conclusion

1) The Robert’s case was an attempt to secure civil rights by claiming equal treatment under the law. But the result was the powerful legal dictum that separate can be equal given the nature of the individuals concerned.

2) Abolitionists tried to write a colorblind clause into the constitution but were frustrated by the realities of racial prejudice that permeated American life during the 1860s.

3) By the end of the century the Plessey decision demonstrated that the supreme court of the United States sided with judge Shaw—separate can be equal.

4) But separate schools were not equal in any meaningful sense. How should civil rights activists move forward in their search for equality?

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