Black History


The world got along without race for the overwhelming majority of its history. The US has never been without it.

– David R. Roediger


Race is not a well-grounded and reasonable biological concept, yet it is a socially constructed tool that metamorphosises the segments of society and inherits the concept that people of fair complexions are entitled to benefits and privileges whereas people of colour are supposed to be enslaved. American society has efficiently functioned the concept of race since an eon to provide pretext to its prevalent system of capitalism which was stupendously dependent on the basis of enslavement of people of colour, that is, Africans and forced, bonded labourers. This research work deals with the history of how race was tightly woven into the fabric of the USA, and the history which worked as the driving force into the evolution of stand of judiciary in laws which protected rights of black people. It also analyses whether opposition to white privilege is the nucleus of anti-racist laws.”

Race and ethnic ancestry

Equality in the United States of America has been a subject of impediment since Abraham Lincoln demarcated slavery while issuing “the Emancipation Proclamation” in the third phase of the civil war on 1-1-1863. Neither did the bloodshed pages of the civil war succeed in revamping America’s history of white oppression nor the long sought out fight for justice due to which there is the existence of the modern face of racism called as “systematic racism”.

The first post-civil war case in 1880 surrounding the paramount issue of racial discrimination was Strauder v. West Virginia1 which addressed the issue of whether the black criminal defendant’s right to equal protection denied simply by the fact that blacks are excluded from jury service. The judgment in the case was written by Strong, J. who invalidated the State murder conviction of a black individual on the ground that State law forbade blacks from serving on petit juries. It was observed that “the true spirit and meaning” of the civil war amendments was aimed at securing the rights of race emancipated with the enjoyment of all the civil rights that are mostly enjoyed by white people due to the loopholes in the law.

Following this, Plessy v. Ferguson2 dealt with whether the Separate Car Act violated the 14th Amendment. The 14th Amendment is perceived as the reconstruction amendment which provides that 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. The Court held that the State law was constitutional. In an opinion authored by Henry Billings Brown, J. the majority upheld the State imposed racial segregation. Brown, J. conceded that the 14th Amendment intended to establish absolute equality for the races before the law but held that separate treatment did not imply the inferiority of African Americans. In short, segregation did not in itself constitute unlawful discrimination. In dissent, John Marshall Harlan, J. argued that the Constitution was colour blind and that the United States had no class system. Accordingly, all citizens should have equal access to civil rights.

The question of whether the enforcement of a racially restrictive covenant is violative of the Fourteenth Amendment was dealt with in Shelley v. Kraemer3 in 1948, in which the Court held that while restrictive covenants as to ownership or occupancy of property, based on race or colour, cannot in themselves be regarded as a violation of the equal protection clause of the Fourteenth Amendment, judicial enforcement by State courts of such covenants is inhibited by the equal protection clause of such amendment, even though such courts stand ready to enforce restrictive covenants irrespective of the race of which exclusion is sought. Among the civil rights intended to be protected from discriminatory State action by the Fourteenth Amendment are the rights to acquire, enjoy, own, and dispose of property.

The case of Brown v. Board of Education of Topeka4 brought about a significant change in the history of segregation while fundamentally answering the question of whether the segregation of public education based solely on race violate the equal protection clause of the Fourteenth Amendment. Separate but equal educational facilities for racial minorities is inherently unequal, violating the equal protection clause of the Fourteenth Amendment. Earl Warren, C.J. delivered the opinion of the unanimous Court. The Supreme Court held that “separate but equal” facilities are inherently unequal and violate the protections of the equal protection clause of the Fourteenth Amendment. The Court reasoned that the segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children. Warren, C.J. based much of his opinion on information from social science studies rather than court precedent. The decision also used language that was relatively accessible to non-lawyers because Warren, C.J. felt it was necessary for all Americans to understand its logic. 

The doctrine of “separate but equal” did not make its appearance in the Supreme Court until the 1896 Plessy5 decision involving transportation not education. Till the Brown6 decision, there have been six decisions involving the said doctrine in the field of public education such as Cumming v. County Board of Education7, Gong Lum v. Rice8, which directly did not challenge the validity of the doctrine.

In other cases like State of Missouri v. Canada9, Sipuel v. Board of Regents of University of Oklahoma10, Sweatt v. Painter11, McLaurin v. Oklahoma State Regents for Higher Education12, the Courts in one or the other way decided that inequality was found in the specific benefit enjoyed by white students were denied to black students of the same and equal qualification on the sole basis that they were black. In none of these cases, the Court granted relief to the black plaintiff. Nonetheless, in Sweatt13, the Court expressly reserved decision on the question whether Plessy14 should be held inapplicable to public education.

In approaching the problem of racial discrimination in all walks of life, the clock cannot be turned back to 1868 when the amendment was adopted or even to 1896 when Plessy15 decision was pronounced. The judiciary should have considered public education in the light of its full development and its contemporary place at that time in American life throughout the nation. Only in this it could be determined if segregation in public schools deprived the plaintiffs of the equal protection of the laws.

While revising the Brown16 decision in 1955 through Brown v. Board of Education of Topeka17, the Court stated that the 1954 decision shall be implemented “with all deliberate speed”. The Court held that the problems identified in Brown18 required varied local solutions. Warren, C.J. conferred much responsibility on local school authorities and the courts which originally heard school segregation cases. They were ordered to implement the principles which the Supreme Court embraced in its first Brown decision. Warren, C.J. urged localities to act on the new principles promptly and to move toward full compliance with them “with all deliberate speed”.

In 1964 through Heart of Atlanta Motel Inc. v. United States19, the Supreme Court dealt with whether Congress, in passing Title II of the 1964 Civil Rights Act, exceed its commerce clause powers by depriving places of public accommodation of the right to choose their own customers. The commerce clause extends the anti-discrimination provisions in the Civil Rights Act of 1964 to hotels that host travellers from outside the State. In a unanimous decision authored by Clark, J. the Court held the Government could enjoin the motel from discriminating on the basis of race under the commerce clause. Since the motel was positioned near inter-States 75 and 85 and received most of its business from outside Georgia, this showed that it had an impact on inter-State commerce, which is all that is needed to justify Congress in exercising the commerce clause power. Black, Douglas, and Goldberg, JJ. concurred in a separate opinion. 

In 1967 through Loving v. Commonwealth of Virginia20, the question of whether Virginia’s anti-miscegenation law violates the equal protection clause of the Fourteenth Amendment was dealt. In unanimous decision, the Court held that distinctions drawn according to race were generally “odious to a free people” and were subject to “the most rigid scrutiny” under the equal protection clause. The Virginia law, the Court found, had no legitimate purpose “independent of invidious racial discrimination”. The Court rejected the State’s argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a “rational purpose” test under the Fourteenth Amendment. The Court also held that the Virginia law violated the due process clause of the Fourteenth Amendment. “Under our Constitution,” wrote Earl Warren, C.J. “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State”.

In 1968 through Jones v. Alfred H. Mayer Co.21, the Court dealt with the question of whether the defendant violated 42 USC Section 198 which guaranteed equal rights to all citizens making real estate transactions. The Court sided with Jones and held that Section 198 of the congressional Act was intended to prohibit all discrimination against blacks in the sale and rental of property, including governmental and private discrimination. Furthermore, the Thirteenth Amendment’s enforcement section empowered Congress to eliminate racial barriers to the acquisition of property since those barriers constituted “badges and incidents of slavery”.

In 1973 through Lau v. H. Nichols22, the Court dealt with whether a school district violated the Fourteenth Amendment or the Civil Rights Act of 1964 when it taught exclusively in English and failed to provide non-English speaking students with any supplemental English language classes. William O. Douglas, J. wrote for a unanimous court. The Court determined that the school system’s failure to provide supplemental English language instruction to students of Chinese ancestry who spoke no English constituted a violation of the California Education Code in the San Francisco Unified School District (SFUSD) Handbook and Section 601 of the Civil Rights Act of 1964 because it deprived those students of an opportunity to participate in the public education program.

Potter Stewart, J. wrote an opinion concurring with the result, which was joined by Warren E. Burger, C.J. and Harry Blackmun, J. He discussed the appropriateness of the statutory guidelines mandating affirmative remedial efforts for linguistically deprived children. Harry Blackmun, J. also wrote an opinion concurring with the result, which was joined by Burger, J. He stressed that 1800 children were being deprived of meaningful schooling in this matter. He limited the court’s holding by stating that, if only a few children spoke a language other than English, the Court’s decision would not necessarily require supplemental language instruction.

In 1978 through Regents of the University of California v. Bakke23, the Court dealt with the question of whether University of California violated the Fourteenth Amendment’s equal protection clause, and the Civil Rights Act of 1964, by practising an affirmative action policy that resulted in the repeated rejection of Bakke’s application for admission to its medical school. There was no single majority opinion in this case. Four of the Justices contended that any racial quota system supported by the government violated the Civil Rights Act of 1964. Lewis F. Powell Jr., J. agreed, casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell, J. argued that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. The remaining four Judges held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell, J. joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimise white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action.

In 1986 through Batson v. Kentucky24, the Court dealt with the question of whether the prosecutor’s use of peremptory challenged to exclude the four blacks from the jury violating Batson’s Sixth and Fourteenth Amendment rights to a fair jury trial and his Fourteenth Amendment right to equal protection of the laws. In the decision, the Court found that the prosecutor’s actions violated the Sixth and Fourteenth Amendments of the Constitution. Relying heavily on precedents set in Strauder v. West Virginia25 and Swain v. State of Alabama26, Powell, J. held that racial discrimination in the selection of jurors not only deprives the accused of important rights during a trial, but also is devastating to the community at large because it “undermines public confidence in the fairness of our system of justice”. Without identifying a “neutral” reason why the four blacks should have been excluded from the jury, the prosecutor’s actions were in violation of the Constitution.

In 2003 through Grutter v. Bollinger27, the Court dealt with the question of whether the University of Michigan Law School’s use of racial preferences in student admissions violated the equal protection clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964. In a 5-4 opinion delivered by Sandra Day O’Connor, J. the Court held that the equal protection clause does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. The Court reasoned that, because the law school conducts highly individualised review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. O’Connor J. wrote, “in the context of its individualised inquiry into the possible diversity contributions of all applicants, the law school’s race-conscious admissions program does not unduly harm non-minority applicants”.

In 2014 through Schuette v. Coalition to Defend Affirmative Action28, the Court dealt with the question of whether an amendment to a State’s Constitution to prohibit race and sex-based discrimination and preferential treatment in public university admission decisions violated the equal protection clause of the Fourteenth Amendment. Anthony M. Kennedy, J. delivered the opinion for the three Justice plurality. The plurality held that this case was not about the constitutionality of race-conscious admissions, but rather about whether the voters of a State can choose to prohibit the use of race preferences in the decisions of governmental bodies, specifically with respect to school admissions. The plurality held that the attempt to define and protect interests based on race ran the risk of allowing the Government to classify people based on race and therefore perpetuate the same racism such policies were meant to alleviate. While voters may certainly determine that some race-based preferences should be adopted, it is not the role of the courts to disempower the voters from making such a choice. If certain issues were decided to be too sensitive to be addressed by voters, it would be denying the voters their right to debate and act through the lawful democratic process.

John G. Roberts Jr., C.J. wrote a concurring opinion in which he argued that the use of racial preferences might reinforce racial awareness and therefore do more harm than good. In his concurring opinion in the judgment, Antonin Scalia, J. wrote that a State law that provided equal protection by not allowing the use of racial preferences at least facially did not violate the Constitution. Scalia, J. argued that Judges should not be in the position of dividing the country into racial blocs and determining what policies are in each one’s interests. Additionally, Scalia, J. saw no reason to allow local subordinate authorities to have more power over the use of race-based preferences than the voters of the State. Since the amendment in question prohibits the use of racial preferences, it patently provides equal protection under the law rather than denying it. Clarence Thomas, J. joined in the opinion concurring in the judgment. Stephen G. Breyer, J. wrote a separate opinion concurring in the judgment in which he argued that, while the Constitution allows local, State, and national communities to implement narrowly tailored, race-conscious policies, it is the voters and not the courts who should determine the merits of such strategies. The amendment better allowed for this process to take place because it took the power to decide whether to implement race-conscious policies away from unelected actors and placed it firmly in the hands of the voters.

Sonia Sotomayor, J. wrote a dissenting opinion in which she argued that the democratic process does not in and of itself provide sufficient protection against the oppression of minority groups, which is why the equal protection clause of the Fourteenth Amendment exists. Although equal protection is typically construed as referring to the treatment of different groups under existing laws, it also protects against the implementation of new laws that would oppress certain groups on the basis of race, among other things. Because the amendment in question creates one admission process for those who do think race should be considered and a separate one for those who do not, it places special burdens on minority groups in a manner that violates the equal protection clause. Judicial precedent holds that governmental action violates the equal protection clause when it has a racial focus that places a greater burden on minority. The amendment in question both has a racial focus and places a greater burden on the minority; therefore, it violates the equal protection clause, and the voters of a State cannot democratically ratify an amendment that violates the Constitution. Sotomayor, J. argued that the plurality and concurring opinions allow a majority of voters in Michigan to prevent the elected university boards from implementing constitutional race-sensitive admission policies, and therefore they ignore a key purpose of the equal protection clause. Ruth Bader Ginsburg, J. joined in the dissenting opinion. Elena Kagan, J. did not participate in the discussion or decision of this case.

Discussion and analysis

Slavery was America’s original sin. This sin was neither solved by framers of the Constitution nor by the political leaders while dealing with horrendous conflicts of American civil war. The entire strata of enslavement in the American society has now taken an odious form of systematic racism. Earlier the racism affected the rudimentary rights of people directly, now the institutional racism demarcates the basic needs like housing, transport, employment opportunities, social equality, and justice. Indeed, in the contemporary scenario, America has rose to electing its first black President and first female black Judge in the Supreme Court yet the terrible stark of killings of George Floyd and Ahmaud Arbery unfold the history of violence as a by-product of toxic white supremacy.

It took formation of Comité des Citoyens (Committee of Citizens) and days of subjugating to oppressive white favouring laws to vehemently repeal Plessy v. Ferguson29 decision which upheld the constitutionality of State laws requiring racial segregation in public facilities following the Separate Car Act in 1890 passed by State of Louisiana which mandated separate railway cars for blacks and whites.

It took the Supreme Court nearly three decades to overturn the “separate but equal” doctrine established in Plessy30 decision through handing down its unanimous 9-0 decision in Brown v. Board of Education of Topeka31 in the context of public education, stating that “separate educational facilities are inherently unequal”. The decision received stupendous opposition from 80% of Southerners which led to the revised version of the judgment in 1955 aimed at fastening the process of desegregation.

It took 371 days of silent protests in Montgomery Bus Boycott for Supreme Court of United States to outlaw racial segregation in inter-State and intra-State public transport in the decision of Bailey v. T. Patterson.32

Analysing this trail of happenings in America, it is evident that it took sheer miscarriage of justice and violation of natural rights for the judiciary and political leaders to establish the facet that discrimination is not promoted and encouraged through legislations like the Civil Rights Act, 1865, 13th and 14th Amendments, etc.

What happens when the laws which are aimed to protect the rights of people are instituted post the suffering caused due to absence of them?

Through the posed question, this research work encircled the incidents that took place before and after the institution of laws through evolving stand of the Supreme Court of United States in various case laws.

† 3rd year law student at NMIMS University. Author can be reached at

1. 25 L Ed 664 : 100 US 303 (1879).

2. 1896 SCC OnLine US SC 164 : 41 L Ed 256 : 163 US 537 (1896).

3. 1948 SCC OnLine US SC 59 : 92 L Ed 1161 : 334 US 1 (1948).

4. 1954 SCC OnLine US SC 44 : 98 L Ed 873 : 347 US 483 (1954).

5. 1896 SCC OnLine US SC 164 : 41 L Ed 256 : 163 US 537 (1896).

6. 1954 SCC OnLine US SC 44 : 98 L Ed 873 : 347 US 483 (1954).

7. 1899 SCC OnLine US SC 188 : 44 L Ed 262 : 175 US 528 (1899).

8. 1928 SCC OnLine US SC 206 : 72 L Ed 172 : 275 US 78 (1927).

9. 1938 SCC OnLine US SC 188 : 83 L Ed 208 : 305 US 337 (1938).

10. 1948 SCC OnLine US SC 6 : 92 L Ed 247 : 332 US 631 (1948).

11. 1950 SCC OnLine US SC 60 : 94 L Ed 1114 : 339 US 629 (1950).

12. 1950 SCC OnLine US SC 61 : 94 L Ed 1149 : 339 US 637 (1950).

13. 1950 SCC OnLine US SC 60 : 94 L Ed 1114 : 339 US 629 (1950).

14. 1896 SCC OnLine US SC 164 : 41 L Ed 256 : 163 US 537 (1896).

15. 1896 SCC OnLine US SC 164 : 41 L Ed 256 : 163 US 537 (1896).

16. 1954 SCC OnLine US SC 44 : 98 L Ed 873 : 347 US 483 (1954).

17. 1955 SCC OnLine US SC 54 : 99 L Ed 1083 : 349 US 294 (1955).

18. 1955 SCC OnLine US SC 54 : 99 L Ed 1083 : 349 US 294 (1955).

19. 1964 SCC OnLine US SC 230 : 13 L Ed 2d 258 : 379 US 241 (1964).

20. 1967 SCC OnLine US SC 152 : 18 L Ed 2d 1010 : 388 US 1 (1967).

21. 1968 SCC OnLine US SC 160 : 20 L Ed 2d 1189 : 392 US 409 (1968).

22. 1974 SCC OnLine US SC 15 : 39 L Ed 2d 1 : 414 US 563 (1974).

23. 1978 SCC OnLine US SC 154 : 57 L Ed 2d 750 : 438 US 265 (1978).

24. 1986 SCC OnLine US SC 89 : 90 L Ed 2d 69 : 476 US 79 (1986).

25. 25 L Ed 664 : 100 US 303 (1879).

26. 1965 SCC OnLine US SC 39 : 13 L Ed 2d 759 : 380 US 202 (1965).

27. 2003 SCC OnLine US SC 68 : 539 US 306 (2003).

28. 2014 SCC OnLine US SC 112 : 572 US 291 (2014).

29. 1896 SCC OnLine US SC 164 : 41 L Ed 256 : 163 US 537 (1896).

30. 1896 SCC OnLine US SC 164 : 41 L Ed 256 : 163 US 537 (1896).

31. 1954 SCC OnLine US SC 44 : 98 L Ed 873 : 347 US 483 (1954).

32. 1962 SCC OnLine US SC 20 : 7 L Ed 2d 512 : 369 US 31 (1962).

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