Misremembering History: Will Plessy Ever Be Overruled?

Much of the oral argument in the abortion case currently being considered by the Supreme Court turned on the issue of when it is appropriate to overrule a precedent set by a previous decision of the Court.  In that context there were several references to Plessy v Ferguson, the 1896 case in which the Court determined the 14th Amendment did not eliminate all "distinctions based on color" and, in common parlance, upheld the provision of separate, but equal, facilities to different races.

Most references in the popular press, and surprisingly even in legal circles, refer to Plessy as being "overruled" and no longer applicable law, usually citing Brown v Board of Education (1954), the school desegregation case, for this proposition.  This is incorrect.  Plessy is still the law in the United States, as the Supreme Court has continually affirmed, even in recent decades, that differential treatment based on race meets constitutional standards (see, for instance, Grutter v Bollinger (2003)).

In Plessy the Supreme Court held that distinctions in treatment based upon race were constitutional when the Court determined such distinctions were appropriate.  Brown only held that such distinctions were inappropriate in the case of K-12 public education, but made no broader ruling regarding the reasoning behind Plessy.

What has caused this public confusion is since Brown the Court has struck down some racial distinctions while upholding others of a different character than those in Plessy ; the Court still maintains it can determine when a specific racial distinction passes constitutional muster.(1)

That the Supreme Court has refused to repudiate the reasoning of Plessy is astounding, particularly in light of the language of the 1964 Civil Rights Act prohibiting discrimination on the basis of race, color, religion, sex or national origin in hiring, promoting, and firing, public accommodation, and in federally funded programs.  Instead the Court has developed in a series of decisions its own rationale for ignoring the anti-discrimination provisions of the Civil Rights Act when it determines it appropriate to do so.

Most recently, the Court's approach has been supported by the Biden administration which recently urged the Supremes not to review the case filed by Asian Americans against Harvard University, taking the position the Court should not stop Harvard from continuing to use race in admissions with a disparate impact on Asian Americans.  That the administration is taking such a position should not be a surprise as the newly appointed head of the DOJ's Office of Civil Rights, Kristen Clarke, does not think the anti-discrimination provisions of the Civil Rights Act apply to all Americans, an interpretation also supported by Vanita Gupta, the #2 official in DOJ.

It is time for the Supreme Court to explicitly overrule Plessy and make the law of the land reflect the sentiment in Justice Harlan's famous dissent in that case:

"Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

For further background I recommend reading The Color-Blind Constitution by Andrew Kull (1992), a book I first mentioned in Readings on Slavery.  Kull's book covers the subject from 1839, when citizens of Lynn, Massachusetts unsuccessfully petitioned the legislature to repeal all laws "which make any distinction among its inhabitants, on account of COLOR", through the debates over the 14th amendment, Plessy, the post WW2 desegregation cases, and the many cases in which the Court failed to apply the language of the 1964 Civil Rights Act.  In his conclusion Kull writes, referring to black Americans:

"No other racial or ethnic group among America's immigrants has a comparable claim to special treatment, and the moral awkwardness of asking black Americans to be content with nondiscrimination should not stop us from giving that answer to everyone else.  Yet the breach in the antidiscrimination principle made in favor of African-Americans has led to a multiplicity of government-sponsored preferences for groups defined by race, ethnicity, or status as a "language minority".  The expanded claims to group entitlements could not rest on the unique circumstances of slavery and its aftermath.  The necessity of a more broadly applicable justification has led to the wide currency of a profoundly different rationale: a variety of arguments whose common core is the idea that a distribution of social benefits is presumptively just when made to racial and ethnic groups in proportion to their numbers.  Yet to the extent that a system of proportional entitlements becomes acceptable as an avowed premise of equality, the aspirations of American democracy will be profoundly altered."

Kull's words were prescient in light of what's happened in the thirty years since the publication of his book.  Since then we've had the strange spectacle of self-proclaimed civil rights groups attempting to overturn a 2006 amendment to the Michigan constitution banning discrimination based on race, color, sex, or religion in admission to colleges, jobs, and other publicly funded institutions on the grounds it was discriminatory, an argument rejected by the U.S. Supreme Court.  And in November 2020, we had a California ballot initiative to repeal the anti-discrimination provisions in the state constitution, an initiative backed by the Democratic party, tech oligarchs, and public employee unions.  Despite the proponents outspending the opponents 17-1 in a state where Biden beat Trump by five million votes, the initiative lost by double digits.  When voters have a choice, they pick antidiscrimination over discrimination.  

Much of what passes for education in K-12, as well as corporate diversity training with its focus on race essential and stereotyping is, in my view, violating the 1964 Civil Rights Act.  There are already lawsuits beginning to make their way through state and federal courts and the Supreme Court may eventually have the opportunity to undo the problems it has created.

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(1)  The Court has held that racial distinctions to correct ongoing discrimination are constitutional.  That is a legally justifiable distinction I agree with, but it is not what we are talking about here.  It is the Court's insistent that, under certain circumstances, racial distinctions and classifications are constitutional even when there is no ongoing discrimination.