The walking dead: how the logic of Plessy v. Ferguson is preserved in equal protection law in the 21st Century

Abstract

The Supreme Court overturned Plessy in 1954. However, we argue that the logic of Plessy is still alive and well today. Through a qualitative critical policy analysis of Plessy v. Ferguson (1986) and three contemporary cases (Department of Homeland Security v. University of California (2020), Gary B. v. Whitmer (2020), and Students for Fair Admissions v. Harvard (2020)), we examined how Plessy remains alive in contemporary equal protection law. We found little separation between the legal analysis in Plessy and the legal reasoning in the subsequent cases. We call this legal reasoning–emphasizing meritocracy, colorblindness, judicial epistemic injustice, and ahistoricism–Plessy light. We argue that these “Plessy light” decisions show that a “separate but equal” mindset was not vanquished in 1954 but simply evolved. We discuss recommendations that could kill Plessy in future jurisprudence, and consequently, have a positive impact on students of color as the United States becomes a minority-majority country.

Keywords:

• Law
• policy
• inequity
• critical race theory
• colorblindness
• meritocracy
• anti-Black racism

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Color-blind racial ideology has historically been conceptualized as an ideology wherein race is immaterial, inconsequential, or an illogical consideration in decision making. Here, following Bonilla-Silva (2006), we integrate colorblindness and the policy ideology it breeds in tandem. Thus, we use color blindness and colorblind ideology to indicate the predispositions to avoiding and ignoring race that policy makers, lawmakers, and judges may adopt when regulating educational inequities.

2 Following Causadias and Umaña-Taylor (2018) and Cheng (1999), we define marginalization as a dynamic process, rooted in power imbalance and systematically directed toward specific groups and individuals. Marginalization results in peripheral or disadvantaged unequal societal membership and disparate treatment for those specific groups and individuals.

3 According to Wright and Derreth (2022), “‘minoritized’ as opposed to the noun ‘minority’. . . better describes the process by which certain racial-ethnic groups are assigned minority status through the actions and non-actions of more dominating groups” (p. 83).

4 Aligned with Wright and Derreth (2022), “we embrace a conception of Whiteness as a normative structure in

society that marginalizes already minoritized individuals and privileges white people. While white people receive material benefits from this normative Whiteness and minoritized individuals lose. Although white people benefit from the discourse of racism, understanding Whiteness as a discourse means that it is possible for minoritized individuals to engage in the very discourse that serves to marginalize them as well” (p. 79).

5 It is important to note that the Plaintiffs brought the suit under Title VI protection from race discrimination, since Harvard is a private entity. However, racial discrimination analysis under Title VI and the equal protection clause are co-extensive in this context.

Additional information

Notes on contributors

Dwayne Kwyasee Wright

Dwayne Kwyasee Wright, J.D., Ph.D., is a Assistant Professor of Higher Education Administration and Director of Diversity, Equity, and Inclusion (DEI) Initiatives at the George Washington University (GWU). His research and social activism seek to advance educational opportunity and equity for all students, particularly those historically oppressed and marginalized in American society.

Raquel Muñiz

Raquel Muñiz, J.D., Ph.D. is an attorney and an Assistant Professor at the Lynch School of Education and Human Development & (by courtesy) at the School of Law at Boston College. As a socio-legal scholar, her research agenda includes two lines of inquiry: (1) examining the role of the law and accompanying policies in furthering education equity for all students, particularly students who have experienced substantial adversity throughout their lives; and (2) examining the use of research evidence in the legal system and public policy decision-making where such decision-making has implications for education equity.

Sarah Keffer

Sarah Keffer is a graduate of the Lynch School of Education and Human Development at Boston College where she majored in Elementary Education and Political Science.