Thursday, April 19, 2018

Slavery to Reparations

"Color Struck": Intragroup and Cross-racial Color Discrimination

Leland Ware

Leland Ware, "Color Struck": Intragroup and Cross-racial Color Discrimination , 13 Connecticut Public Interest Law Journal 75-119 (Fall-Winter, 2013) (416 Footnotes)

If you is white,
You's alright,
If you's brown,
Stick around,
But if you's black, oh, brother,
Get back, get back, get back.


LelandWare2014Pop singer Michael Jackson's features changed and the color of his skin lightened dramatically during the final decades of his life. Jackson denied changing his skin color to improve his appearance and claimed that he suffered from vitiligo, a condition in which the immune system attacks cells that produce melanin, which determines an individual's skin color. Jackson said he was not trying to look "White," but observers wondered, if that were so, what was the motivation for his straightened hair and the many operations to change the shape of his nose, chin and cheekbones?

In 2010, former Chicago Cubs baseball player Sammy Sosa was photographed at the Latin Grammy Awards in Las Vegas with noticeably whiter skin. Sosa originally had a very brown complexion but appeared to be nearly White in photographs. He told reporters that a cosmetic cream *76 he used to soften his skin caused the lighter tone. He said he had been using the cream for some time and it made his face look whiter than it actually was, but claimed he was not trying to look like Michael Jackson, nor was he suffering from any skin illness.

"Color Struck" is an old saying among African-Americans that refers to individuals who believe that a lighter complexion and European features represent the epitome of beauty and desirability. Color discrimination is often masked by a combination of subjective notions of attractiveness and unconscious stereotypes. Michael Jackson and Sammy Sosa were probably not consciously attempting to look White; it is more likely they were simply color struck.

Racism involves discrimination against individuals based on their racial category. Colorism, in contrast, involves discrimination against dark-complexioned African-Americans on the basis of their color. The hierarchy employed in colorism is the same as the one that governs racism; a light complexion and European features are considered to be more valuable and attractive than dark skin and African features. Color distinctions among African-Americans have never been recognized in the formal ways they were in the Caribbean and South America. However, among African-Americans, the distinctions are usually unstated but well understood. Lighter complexions and European features are more desirable than darker complexions and African features. A person is considered light-skinned by an application of the "paper bag test," which looks to whether the person's complexion is the color of a grocery bag or lighter.

*77 Although formal racial classifications were developed in the eighteenth and nineteenth centuries, the preference for white skin, blonde hair and European features is rooted in antiquity. Beginning with Greek sculptures of Aphrodite and Roman depictions of Venus, and into the European Renaissance, pale complexions, blue eyes, and flowing blonde hair have been the gold standard for feminine beauty. When Europeans colonized Asia, Africa, and the Americas, they imposed their standards of beauty on the indigenous groups and on the Africans they imported and enslaved. Today, the European norm for beauty and attractiveness is ubiquitous and constantly reinforced in movies, magazines, television programs, online and elsewhere. Young children assimilate these conceptions at an early age, and they remain embedded in their psyches as they mature into adults.

African-Americans, South Asians, Latin Americans, and other people of color have, for many generations, internalized this Eurocentric standard of attractiveness. Using hair straighteners and skin-lightening creams, they attempt to look white without consciously realizing they are doing so. The evidence indicates that in America, socioeconomic disparities resulting from colorism can be as severe as those traditionally attributed to racism. As America becomes a more multi-racial society, old fashioned "Jim Crow" racism has slowly diminished, while color bias persists.


Leland Ware, Louis L. Redding Professor of Law & Public Policy, University of Delaware.

II. Color Discrimination

Discrimination on the basis of color, rather than race, has long been documented by researchers. In The Philadelphia Negro, W.E.B. Du Bois *78 described intra-racial colorism when he commented on that city's "Aristocracy of the Negro population" in the late 1890s. Du Bois observed, "[t]hey are largely Philadelphia born, and being descended from the house servant class, contain many mulattoes." Du Bois noted that Philadelphia's Black elites did not interact with their less affluent counterparts in ordinary assemblages or promenading places. The insular and elitist nature of the group was reflected in Du Bois' observation that "[s]trangers secure entrance to this circle with difficulty and only by introduction." Decades later in the landmark study, An American Dilemma, Gunnar Myrdal wrote: "without a doubt a Negro with light skin and other European features has in the North an advantage with white people."

In 1957, Sociologist E. Franklin Frazier made a similar observation in Black Bourgeoisie. He wrote: "a light complexion resulting from racial mixture raised a mulatto above the level of an unmixed Negro." Frazier explained that "[p]artly because of the differential treatment accorded to the mulattoes, but more especially because of the general degradation of the Negro as a human being, the Negro of mixed ancestry thought of himself as superior to the unmixed Negro. His light complexion became his most precious possession."

Over the last two decades, a large body of scholarship examining the detrimental effects of color discrimination has been produced by scholars representing a range of academic disciplines. In general, the research shows that dark-skinned Blacks are treated differently and less favorably than their lighter-complexioned counterparts. Legal scholars have complained about the courts' reluctance to acknowledge color discrimination. In Colorism: A Darker Shade of Pale, Taunya Banks explored the history of color discrimination in America and analyzed the *79 problems it has posed in employment discrimination cases. Skin tone discrimination, she wrote, is an aspect of employment discrimination that courts have been hesitant to recognize. She found that judges are more willing to acknowledge color discrimination in cases involving ethnic Whites and Latinos, but are hesitant to do so when Black claimants are involved. Courts are skeptical of claims involving intra-racial discrimination as it does not fit the traditional paradigm of Whites discriminating against Blacks. Banks concluded that courts possess the legal authority to redress claims under existing antidiscrimination laws and should be more willing to recognize claims of color discrimination when African-Americans assert them.

Other scholars have made similar observations. In Shades of Brown: the Law of Skin Color, Trina Jones examines the history of colorism in America and the discrimination against individuals based on skin color. She distinguishes intra-group colorism from cross-racial colorism and traditional discrimination: the first involves lighter-skinned African-Americans and Whites disfavoring darker-skinned Blacks; the second involves Whites discriminating against all Blacks. In both cases, darker-complexioned Blacks are the victims. Jones complains that courts tend to minimize the significance of this distinction using a flawed interpretation of antidiscrimination laws. Jones argues that a more nuanced understanding of discrimination is needed to recognize color discrimination. In Title VII: What's Hair (and Other Race Based Characteristics) Got to Do With It, D. Wendy Greene conducted a similar analysis and reached the same conclusion: color-based discrimination claims made by Black complainants are misunderstood and should be recognized, given that Title VII of the Civil Rights Act prohibits discrimination on the basis of race and color.

*80 Leonard Baynes examined the "Dark-Light Paradigm" of African-American and Latino colorism. He determined that an entrenched color hierarchy among non-White ethnic groups operates to the detriment of dark- complexioned Blacks and Latinos. Baynes bolstered his analysis with data that showed darker-skinned Blacks and Latinos tend to have smaller incomes, lower levels of educational attainment, and less prestigious employment positions than lighter-skinned Blacks and Latinos.

Colorism has even infected the criminal justice system. Research has shown that dark-skinned Blacks receive longer prison sentences than their lighter-complexioned counterparts. An article examining racial disparities in the criminal justice system cited a study of 67,000 male felons incarcerated in Georgia for a first offense from 1995 through 2002. The data showed that dark-skinned Black defendants received longer sentences than light-skinned Blacks.

In another article, the authors examined discrimination on the basis of what they called "Afrocentric" features, which they defined as darker skin color, fuller lips and broader noses. The authors collected and analyzed data that showed that Black defendants in Florida who had prominent African features tended to receive longer sentences than other Blacks whose racial physiognomy was less distinctive. Using photographs and other information about inmates, including the offenses for which they were convicted and their criminal records, the authors found that among African-American inmates, those with prominent African features tended *81 to receive longer sentences than others whose African features were not as prominent. The researchers concluded that Afrocentric features activated an unconscious stereotype of Blacks as dangerous criminals, which influenced the decisionmaking process and caused the imposition of longer sentences when dark-skinned defendants were convicted.

The disparities are not limited to male defendants. A recent study found that Black female offenders who are light-skinned received shorter prison sentences than darker-complexioned offenders. The authors collected data on 12,158 imprisoned Black women in North Carolina between 1995 and 2009. The study showed that women with light skin were sentenced to approximately 12% less prison time than their darker-skinned counterparts. The study examined factors such as prior records, conviction dates, misconduct while incarcerated, and having low body weight, as well as whether the women were convicted of homicide or robbery since these crimes carry heavier prison terms. The authors concluded that colorism demonstrates the complexity of racism in our society and added that "it is no longer sufficient to understand racial discrimination solely in terms of the relative advantages of Whites compared to non-Whites. Among Blacks, characteristics associated with Whiteness appear to have a significant impact on important life outcomes."

Color discrimination affects a wide range of activities. Using a longitudinal design method that linked a sample of African-American men raised in the South to their census records, Mark Hill examined the influence of skin color on the socioeconomic attainment of African-American men. His findings showed the importance of skin color in directing the socioeconomic progress of African-American men. Individuals who identified as mulatto in the study had a higher adult socioeconomic status than Blacks with dark complexions. Hill's analysis indicated that differences in social origins were responsible for only 10 to 20% of the color gap in adult attainment levels. Hill's findings indicated *82 that color bias, rather than family background, was responsible for most of the color differences in the socioeconomic status of African-American men.

In The Skin Color Paradox and the American Racial Order, the authors used surveys to develop an empirical analysis that found:

[D]ark-skinned blacks have lower levels of education, income and job status. They are less likely to own homes or to marry; and dark-skinned blacks' prison sentences are longer. Dark-skin discrimination occurs within as well as across races. Some evidence suggests, in fact, that intra-racial disparities are as detrimental to a person's life chances as are disparities traditionally associated with racial divisions. . . . With some exceptions, most Americans prefer lighter to darker skin aesthetically, normatively and culturally. Film-makers, novelists, advertisers, modeling agencies, matchmaking websites-all demonstrate how much the power of a fair complexion, along with straight hair and Eurocentric facial features, appeals to Americans.

The discussion in this section shows that a large body of theoretical and empirical research demonstrates conclusively that color bias is real and has an adverse effect on the lives of dark-complexioned African-Americans.

III. The Geography of Colorism

Colorism operates on a global scale. There is a worldwide market for chemicals that lighten skin tones. Asia has the largest market for skin-whitening creams. In India and Pakistan, women are socialized to believe that a fair complexion equates to beauty and is the key to success in life, marriage, and work. During the colonial era, the idea that Indians *83 with fair skin were superior was usually unstated but well understood. The belief that a light complexion is superior to a darker one is embedded deeply within the Indian psyche, since skin color is an important consideration in marriage. Research conducted by a matrimonial website in three northern Indian states confirmed that skin tone is the most important criteria when selecting a partner.

A journalist wrote: "it is being called ‘Snow White syndrome' in India, a market where sales of whitening creams are far outstripping those of Coca-Cola and tea." According to Imani Perry, this practice exemplifies the perverse objectification of the female body in sexual partnering.

Colorism is also evident in advertisements. For instance, a television ad for the cream Fair & Lovely reinforces the idea that girls seeking a prospective groom should utilize skin-lightening creams in order to become more marketable for marriage. Beyond the simple advertisement for a flawless skin, it is implied that using this cream is also necessary to advance in all relevant aspects of life. But the use of lightening creams is not restricted to women. The popularity of these products is increasing among men and the availability of products for male consumers is highly advertised. A commercial shown on Indian satellite channels featured Bollywood star Shahrukh Khan promoting a skin cream called Fair and Handsome. In it, a glum, dark-skinned Indian man used the skin-lightening cream to become many shades lighter. At the end of the commercial he is shown smiling and walking confidently with a lovely woman at his side. L'Oreal hired Bollywood actor John Abraham to pitch its Garnier for Men skin-whitening lotion in an effort to challenge the *84 market leader, Fair and Handsome. Another skin-lightening cream, Unilever's Vaseline Healthy White Body, is currently the most advertised cosmetic brand on Indian television. Unilever's cream created great controversy with its Internet marketing strategy, which appeared to be racist, because it showed a distinct preference for lighter skin. Recently, further concerns have been raised regarding the dissemination of other desirable physical characteristics for young Indians. The homogeneity of color is becoming a new social expectation in order to overcome self-consciousness. Therefore, young Indians are being encouraged to start using deodorants and intimate wash products containing skin-lightening ingredients.

Skin-lightening creams increased $432 million in sales in South Asia during the first nine months of 2008, and the industry expects to continue growing as the levels of urbanization and affordability augment their target populations by expanding the market for men in the following decade. However, this phenomenon is not limited to South Asia. An increasing number of East Asians are using their rising incomes to purchase skin-lightening products. In Hong Kong, Malaysia, the Philippines, South Korea, and Taiwan, four of every ten women use a whitening cream. And, as is the case elsewhere, the cosmetics industry is reaping enormous profits. In Hong Kong, pale Asian models dominate the flat-screens and multimedia billboards of public transit. They appear on the pages of glossy magazines and cinema advertisements promoting such products as Blanc Expert, White-Plus, White Light, Future White Day, Active White, and Snow UV. Skin lightening has a long history in Asia. In ancient *85 China and Japan, a saying, "one white covers up three ugliness," has been passed down through the generations. These attitudes are largely the same among many Asian Americans.

Colorism is also pervasive in Latin America. Unlike America's "one-drop rule" in which any amount of African ancestry classifies an individual as Black, Latin America exhibits a more fluid classification system based on color gradations and appearance. Racial distinctions are based on phenotypes that focus more on physiognomy than ancestry. The flexibility in Latin America's racial designation system is limited to those whose lighter complexions and European phenotypes allow them to distinguish themselves from darker-complexioned Blacks, since Blackness is subjectively perceived as an offensive racial category in the social hierarchy. In Latin America, individuals are valued by how closely their appearances, status, and progeny approach whiteness.

Mexico's colonization illustrates how discrimination on the basis of color influenced the creation of a racialized hierarchy, which continues to affect the socioeconomic and political systems at present. Spanish colonizers imposed a stratified status system in Mexico where Whites were the elites and Native Mexicans the slaves. These groups intermingled creating a large population of mixed-race mestizos that resulted in the creation of a color hierarchy. Light-complexioned persons occupied the upper rungs of the social strata. The darkest persons were relegated to the lowest levels.

Colorism has concerned the Mexican-American columnist Ruben Navarrette since his childhood, when he realized his skin tone was different compared with the rest of the children in a United States kindergarten. Now, as an adult, Navarrette stresses that, a century after the Mexican Revolution, the division between urban and rural Mexico continues, along with the silent wars between the wealthy and poor, and *86 the light and dark-skinned individuals. He remarked that it is very common to find light-colored people in television, politics and academia, but it is unlikely to find persons from this racial category working at construction sites or kitchens, where darker-colored people prevail.

There is a conspicuous absence of dark-skinned Mexicans in telenovelas, commercials, and other forms of advertising, which are an inadequate representation of the country's inhabitants. A study that examined the content of six Spanish-language telelenovelas and a drama on three Spanish-language television networks in the United States (Telemundo, Univision, and Azteca America) found that "lighter skin characters were more likely to play major roles, were more fit and younger, and more likely to be upper class than their darker skin counterparts." A promotion for Televisa's popular program, "Destilando Amor" (Distilling Love), presents an example of how color status is portrayed. In one scene, an upscale woman with blonde hair sits at a dinner table expressing her displeasure with a family member for falling in love with a working-class woman. As the fair-skinned woman speaks, a servant with dark, indigenous features stands silently in the background.

Colorism can be found elsewhere in Latin America. In Brazil, individuals are assigned to racial groups based on physical appearance rather than ancestry. This criterion of racial self-identification has resulted in ambiguous and numerous color categories. Many of the terms Brazilians use to describe racial mixtures are vague, and there is no consistent agreement on their meaning or to whom they should be applied. For instance, a 1976 census collected 135 popular terms, including "purple, dark chocolate, or Pele colored."

Given the focus on phenotypical characteristics, some individuals may be identified in varying racial terms at various times by different people, and some parents and full siblings in the same family may be assigned to different racial groups. One article explained:

*87 Brazilian racial classification schemes defining a person based on the slightest variation of physical characteristics presumably associated with Black ancestry and/or white ancestry could either elevate or demote an individual on the racial ladder. The implementation of such a highly stratified method of categorizing race evidences an extreme effort on behalf of the white minority to preserve their economic, social, and political dominance over masses of people of mixed and unmixed African descent. Additionally, because of its relatively relaxed approach to manumission, which contributed to the rapid growth of free people of color, it was imperative for Brazil to develop a racial taxonomy based on infinite physical distinctions that simultaneously maintained its racial hierarchy and recognized the country's widespread miscegenation.

The current official categories used by the Brazilian census are White (Branco), Brown (Pardo), Black (Preto), Asian/Yellow (Amarelo), and Indigenous (Indigena). It is estimated that the first three categories account for 99% of Brazilians. In 2010, a majority (50.7%) of the population identified themselves as Afro-Brazilians, a classification that includes both Black (7.6%) and mix-raced Brazilians (43.1%). In a 2010 census, more individuals identified themselves as Black than in 2000.

Despite the Brazilian efforts to project a racially neutral structure through what is known as a racial democracy, scholars have shown that a racial hierarchy composed of a graduated scale of color persists. The data shows that Afro-Brazilians are more economically, socially, and politically disadvantaged than their lighter-skinned counterparts. According to Seth Racusen, "all key socioeconomic variables demonstrate this wide gap between ‘Whites' compared to ‘Browns' and ‘Blacks."'

Brazilian media also reinforces the social preference for Whites by portraying them as symbols of "beauty, happiness, and middle-class success." The concept portrayed in television seems consistent with the perception of reality. As indicated by Patricia de Santana Pinho, "the power of whiteness is lived by everyone in Brazil, and it is always operating either in opening or closing doors of opportunity and achievement."

Given the strong negative stereotypes against dark-colored people and, on the other hand, the potential incentives that could be derived from affirmative action policies, individuals may have personal motivations to alter the designation of their race.

How individuals are classified does not depend solely on their physical appearance. The saying "money whitens" reminds Brazilians that the apparent wealth and status of a person, as well as the immediate social company, are important considerations for the observer who determines their race. Therefore, as individuals accumulate wealth they also gain color status. The ambiguity of race categories along with the deficiencies of the self-identification system makes it feasible for individuals to change their racial identities by becoming better educated or more affluent.

These attitudes can be found in other Latin American countries. Tanya Hernandez examined racial attitudes in Puerto Rico and Cuba, given the acceptance of race fluidity in the former country and the formal rejection of the concept of race in the latter. She found that, despite the apparent respect for social fluidity and flexible racial labeling, racial identity and identification are neither completely fluid nor neutral. For example, like in Mexico and Brazil, Cubans and Puerto Ricans also exercised the plasticity of race labeling in order to avoid Black designation in social status and self-identification. Today, many Puerto Ricans of mixed ancestry (usually called "triguenos" and "morenos") prefer to classify *89 themselves as White rather than Black on census forms. This response, however, underestimates the long history of miscegenation and African ancestry of much of Puerto Rico's population. Prejudice and discrimination against people of African descent are the principal reasons for this preference, since African ancestry is associated with slavery and extreme poverty.

Puerto Ricans perceive that having lighter skin and European features increases an individual's socioeconomic opportunities. Darker complexions and African features severely limit an individual's economic and social mobility. According to Wendy D. Roth, medium skin tones confer upon people a certain amount of status compared to those further toward the dark end of the color spectrum.

Research suggests that being discriminated against on the basis of color produces feelings of shame and embarrassment. Many Latin American Blacks harbor internalized attitudes about color and phenotype. Skin color, nose width, lip thickness, and hair texture weigh heavily on the self-esteem of Afro-Latinos, since these are considered racial signifiers of denigrated African ancestry. The belief exists among some Latin Americans that color is something that can be controlled by utilizing whitening creams and to "‘improve the race"' of their children.

Marrying someone with a lighter complexion is referred to as adelantando la raza (improving the race) under the theory of blanqueamiento. The concept of blanqueamiento refers to ethnic, cultural, and racial "whitening." It is an ideology and a social practice that places a higher value on White culture while implicitly devaluing non- *90 White cultural norms. Blanqueamiento perpetuates a social hierarchy based on race by linking whiteness to status, wealth, power, modernity, and development, while implicitly associating blackness with a lack of cultural refinement, ambition, and civilization.

Despite the national ideologies of racial democracy, mestizaje, and racial blindness in Latin America, skin tone is a major marker of status and a form of symbolic capital. Light complexions and European features are highly valued; the darker, more African an individual appears, the lower that person is likely to be on the socioeconomic scale.

IV. Colorism in America

In America, skin color is an important signifier of beauty and social status. African-Americans' preference for light complexions and European features dates back to the antebellum era when skin color determined an enslaved person's work assignments. Dark-skinned slaves worked in the fields, while light-complexioned slaves worked in the slave owner's home. James Stirling, a British writer who visited the American South in 1857, observed conditions on Southern plantations and wrote:

In judging of the welfare of the slaves, it is necessary to distinguish the different conditions of slavery. The most important distinction, both as regards numbers and its influence on the wellbeing of the slave, is that between houseservants and farm or fieldhands. The houseservant is comparatively well off. He is frequently born and bred in the family he belongs to; and even when this is not the case, the constant association of the slave and his master, *91 and master's family, naturally leads to such an attachment as ensures good treatment. There are not wanting instances of devoted attachment on both sides in such cases. . . . The position of the fieldhands is very different; of those, especially, who labour on large plantations. Here there are none of those humanizing influences at work which temper the rigour of the system, nor is there the same check of public opinion to control abuse. The ‘force' is worked en masse, as a great human mechanism; or, if you will, as a drove of human cattle.

The Hemingses of Monticello provides an example of how slaves with familial ties to their owners lived and worked during the antebellum period. Elizabeth Hemings was the daughter of an African woman and a White sea captain. She had 12 children, half of them by her owner, John Wayles whose legitimate daughter, Martha Wayles Skelton, married President Thomas Jefferson in 1772. After her father's death, Martha inherited Elizabeth Hemings and her children and brought them to serve at Monticello. The Hemings were treated differently than other slaves at Monticello plantation. None of them worked in the fields. The women were considered a relatively privileged caste compared to others, and worked as house servants performing chores like sewing, mending clothes, looking after children, and baking cakes. The men served as valets, coach drivers, and butlers. Jefferson paid some of the men wages and gratuities, and others were allowed to hire themselves out to other employers of their choice. Sally Hemings, the young daughter of Elizabeth Hemings and John Wayles, was Martha's half-sister and it was *92 said that the two bore a physical resemblance. Most historians now agree that Sally Hemings became Jefferson's mistress and bore six of his children.

Lalita Tademy's novel, Cane River, describes the intimate relationships among slave owners and female slaves that produced racially-mixed offspring. The characters are based on Tademy's ancestors who she discovered after years of researching her family's history. It is a narrative about four generations of women born into slavery along the Cane River in Louisiana. One character, Great-grandmother Elisabeth, had a daughter, granddaughter and great-granddaughter who bore the offspring of the French planters. In many cases, the children's paternity was widely known and acknowledged by their fathers; but, since Louisiana's laws did not allow slaves to be legally entitled to any property or money, these children were not allowed to inherit anything.

Prior to the Civil War, mixed-race Creoles in Louisiana had a social status that set them above enslaved persons. After the War, they were subjected to the "one-drop" rule, but they maintained family and community ties that distanced them from darker-skinned African-Americans. They were, as a Creole documentary put it, "too white to be black and too black to be white."

After emancipation, the dark/light division was perpetuated by African-Americans who constructed social classes based on skin color. Blacks created "blue vein societies," social clubs to which individuals were admitted only if their skin tone was light enough to make their veins visible on the underside of their arms. Color differences continued to *93 play an important role in the Black community. Mixed race individuals attempted to maintain the privileged status they had acquired during slavery. Separate communities were established in which access was based on skin color. Examples include Chatham and East Hyde Park in Chicago, and the Striver's Row and Sugar Hill neighborhoods of New York.

Charles Waddell Chesnutt's 1899 short story, The Wife of His Youth, satirized the pretensions of light-skinned African-Americans at the end of the nineteenth century. The protagonist of the story, Mr. Ryder, was the leader of the local "Blue Vein Society" who was dating a fair-skinned female member of the organization. Ryder claimed that he was free born and the product of a respected family, as this was a requirement for Blue Vein membership. He was confronted with a dilemma when a woman appeared in the community. She was an illiterate, dark-complexioned former slave who had spent years looking for her husband. Ryder initially denied knowing the woman. Eventually, his guilty conscious forced him to admit that he had lied about his background. Ryder acknowledged his marriage and reunited with the dark-skinned woman who was "the wife of his youth."

Researchers have documented the ways in which many Black teachers in segregated schools during the pre-Brown v. Board of Education era were infected with the attitudes that preferred lighter-skinned children over darker-skinned students. Light-skinned students were selected as leads in plays and pageants, called on first in classroom discussions, and visibly favored by teachers. An example of this can be found in a recollection published by J. Saunders Redding, a writer and literary critic who was the first African-American to hold a faculty position at an Ivy League *94 university. Redding was the product of an influential Black family in Wilmington, Delaware. His brother, Louis L. Redding, was the attorney who represented the Delaware students in the consolidated cases remembered as Brown. In No Day of Triumph, Saunders Redding describes his experiences with colorism during his childhood. Wilmington's Black population grew rapidly during and after the World War I years. A large number of Black families were moving from the rural South to work in factory jobs that were available in rapidly industrializing northern communities. The recent arrivals were poorer, less educated and often darker-complexioned than Wilmington's Black middle class. To Saunders' mother and grandmother, the new neighbors were perceived as a threat.

Redding recalled a public speaking contest in which he competed with a dark-skinned student. He was so nervous that he mumbled a few words before bursting into tears. In contrast, the dark-complexioned student's performance was outstanding. Redding, who was lighter-complexioned and socially connected, was awarded first prize despite his dismal performance. A few years later, when Redding was in high school, the light-skinned, female principal discouraged him from maintaining a romantic relationship because the girl was poor and dark-skinned.

Wallace Thurman's Harlem Renaissance novel, The Blacker the Berry: A Novel of Negro Life, is a satire in which the theme is colorism in the 1920s New York. The novel's dark-skinned protagonist, Emma Lou Morgan, internalized biases against dark-complexioned people. She grew up in Boise, Idaho, where she experienced discrimination by the lighter- *95 complexioned African-Americans throughout her childhood. She left Boise to attend to college in Los Angeles. From there, Emma Lou moved to Harlem where she worked as a maid and later as a teacher. Throughout the novel, Emma Lou is plagued by anxieties about her dark complexion. Her obsession with color prevented her from enjoying Harlem's excitement. In New York, Emma Lou encountered discrimination from Blacks and Whites. At a Harlem party, a character explained intra-racial discrimination, stating, "people have to feel superior to something," and expounded that light-complexioned African-Americans who look down on darker-skinned African-Americans were perpetuating a hierarchy of discrimination imposed by the White majority. After some romantic disappointments with light-complexioned men, Emma Lou finally accepted her appearance. The book's title is derived from an old saying: "the blacker the berry, the sweeter the juice."

In the early decades of the twentieth century, colorism fueled conflicts among African-American leaders, including Marcus Garvey, who was the head of the Universal Negro Improvement Organization. The organization attracted at least a half-million members, and it competed for a time with the NAACP for the position of the premier African-American advocacy group. Many of the NAACP's members were educated and middle class. Garvey's group appealed to the masses. Unlike the NAACP, which fought for integration, Garvey proposed *96 migration to Africa as the answer to the "Negro problem." In 1931, Garvey, who had a very dark complexion and African features, claimed that W.E.B. Du Bois and the NAACP practiced colorism:

It is no wonder that Du Bois seeks the company of white people, because he hates black as being ugly . . . Yet this professor, who sees ugliness in being black, essays to be a leader of the Negro people and has been trying for over fourteen years to deceive them through his connection with the National Association for the Advancement of Colored People. Now what does he mean by advancing colored people if he hates black so much? In what direction must we expect his advancement? We can conclude in no other way than that it is in the direction of losing our black identity and becoming, as nearly as possible, the lowest whites by assimilation and miscegenation.

Du Bois fervently denied Garvey's claim, but there was some truth to it. Walter White was the head of the NAACP from the mid-1930s until his death in 1955. White's light skin, blonde hair, and blue eyes did not display a hint of his African ancestry. He took advantage of his appearance to pass for White while conducting undercover investigations of lynchings and other hate crimes in the South. White's colorism was reflected in the image of African-American women he actively promoted in Crisis, a periodical published by the NAACP. In the 1940s, Crisis was the most important magazine of opinion among African-Americans. The editors used photographs of predominantly light-skinned, college-educated women in an effort to displace entrenched notions of Black women as "Jezebels" or sexual victims. The editors wanted to refashion the image of Black women, but in doing so they promoted colorism. During the World War II years, the light-skinned, African-American actress Lena Horne was featured on two Crisis covers to promote a new *97 image of Black women. As one scholar explained:

The magazine preferred headshots of well-dressed, light-skinned African American women who were college-educated ladies, beauty-contest winners, soldiers' wives, or celebrated entertainers, over photographs of dark-skinned women engaged in war-production work. Jane Cooke Wright (August 1942), Barbara Gonzales (March 1944), and Katheryn M. Davenport (August 1944) represent the Crisis's typical war era cover girl. All three women avert their eyes from the photographer; the photograph showcases their upper torsos, shoulders, and faces, highlighting their light skin and carefully coiffed hair.

Alluding to the organization's perceived elitism, some Blacks joked that the letters "NAACP" actually stood for the National Association for the Advancement of Certain People.

Colorism lives on. Today, African-American entertainers and actors are far more likely to have light coloring than dark complexions. With the exception of an occasional dark-skinned exotic, most Black models can easily pass the "paper bag" test, and many have racially ambiguous coloring and features. African-American news anchors and reporters rarely have dark complexions. Female entertainers, in particular, tend to have light skin and hair that is dyed blonde and made longer with hair extensions. Consider Halle Berry, Rihanna, and Alicia Keys. In her hit song, "Creole," Beyonce Knowles sings about her Creole heritage and being an attractive combination of "red bone" and "yellow bone" (terms that refer to light-skinned Black women).

Pop singer Fantasia Barrino rose to fame as the 2004 winner on the popular television show, American Idol. She was the object of a barrage *98 of negative publicity surrounding her affair with a married man and the lawsuit his wife filed against her. Barinno attempted suicide and later told reporters that the media criticism was based on her dark skin and ethnic features. She said: "[w]hen I did [American] Idol, it seemed like everybody there was Barbied out. Slim, long hair, light eyes, light-skinned. And here I come with my dark skin, full nose, short hair and full lips-it was hard." "Barbied out" referred to the appearance represented by the Barbie doll, one of the most successful toys of the twentieth century. Barbies are grown-up looking dolls that allow girls to reflect their personality and dreams in the roles imagined for them. Their appearance is an icon of female beauty and the American dream. The classic thin figure, blonde hair, and blue eyes reflect the Eurocentric ideal, a look that a dark-skinned person with African features could never achieve. Interestingly, when Barbies were introduced at the 1959 Toy Fair, blonde dolls outnumbered brunettes two to one.

V. Importing European Standards of Beauty

The modern definition of race did not appear until the middle of the eighteenth century. During that century, European publications shifted from identifying groups on the basis of their nationality to a preoccupation with race. By the mid-nineteenth century the classification of individuals by race was ubiquitous. However, the current standards for beauty, which reflect and perpetuate colorism, can be traced back into antiquity.

A pale complexion, fine facial features, and light-colored hair became the social construct of feminine beauty during the Classical period *99 of Ancient Greece (ca. 480-323 BC). For example, a female Greek portrait from the Museum of Fine Arts in Boston is described as possessing finely shaped features: large almond-shaped eyes, beautifully arching eyebrows, a full rounded mouth with a plump and bow-shaped upper lip. During this period, Greek artists made a dramatic advance in the execution of their craft. They learned to express the human body in a life-like and naturalistic manner, characterized by a system of proportions. Their statues were detailed, and with anatomically accurate forms. Consider the nude Aphrodite of Cnidos, by the Athenian sculptor Praxiteles, as an example. Expertly crafted presentations of the human anatomy and musculature were depicted in marble, stone, or bronze.

Africans, known as Ethiopians by the ancient Greeks, were present in the Hellenic world and were considered exotic. African images of athletes and entertainers were displayed in pottery and vases by utilizing an attractive black glaze. Noticeably, they were not shown in heroic roles or as aesthetic symbols, since the Classic ideal of beauty was entirely Eurocentric. Angela Harris articulated with conciseness the perceptions of whiteness and Eurocentrism that have informed both art and history: "more white is more European, and more European is more refined; less European is more primitive, and more primitive is more dark."

The Romans adopted the Greek standard of beauty. The goddess Venus represented love and beauty and was considered the quintessence of feminine beauty and harmony. The famous statue, Venus de Milo, is exhibited in Paris at the Louvre. Her naked torso has an elongated silhouette and a sensual nudity that contrasts with an impassive expression. The nose is a continuation of the forehead forming the *100 classic "Greek profile." Along with other interpretations of Venus, this image sets the standard by which feminine beauty is measured.

During the Renaissance (ca. 1300-1600), the aesthetics of the Classical period were revived. Botticelli's Birth of Venus depicts the goddess emerging from the sea as a full-grown woman. Her cascading blonde hair accentuates her slender body and alabaster complexion. In another Botticelli, Venus and Mars, Venus lies opposite her lover Mars, god of war, who has fallen asleep apparently after making love to her. Her alertness, as the goddess of love, represents the triumph of love over war. Although it is believed that Simonetta Vespucci inspired the work of Boticelli, Venus was the expression of the artist's ideal perception of beauty. During the Renaissance, realistic interpretation was avoided and positive attributes were highlighted. Venus has perfect skin, a high forehead, and a sharply defined chin. Her hair is strawberry blonde, she has delicate eyebrows, a strong nose, narrow mouth, and full lips. This idealized depiction shows the conception of perfect beauty that prevailed during the Italian Renaissance.

Leonardo Da Vinci's Mona Lisa, Titian's Venus with a Mirror and Tintoretto's Leda and the Swan are examples of art that celebrate beauty in the "whiteness" of European women. Other Renaissance expressions of feminine beauty were along the same lines: Caucasian women with pale complexions and fine features.

*101 With the advent of the Atlantic slave trade in the fifteenth century and the colonization of the Americas, Asia, and Africa, black skin became the personification of the undesirable. By the early nineteenth century, theories of scientific racism were developed and widely accepted. Samuel Morton, a professor of medicine at the University of Pennsylvania, published Crania Americana in 1839. In general, Morton claimed that differences in head shapes could predict a racial group's intelligence and other personality traits. An appendix written by George Combe expanded upon the relationship between the natural talents and dispositions of nations and the development of their brains. Based on Morton's findings, Combe highlighted the tendency of the Caucasian race to exhibit moral and intellectual improvement, while referring to the African race situation as one unbroken scene of moral and intellectual desolation, with the exception of some tribes. Combe's opinion about the Native American race was even more critical: the author could not justify the miserable and savage conditions of these individuals, despite the long-term exposure of natives to European knowledge, enterprise, and energy.

Morton's theory of Polygenesis hypothesized that racial groups did not share a common origin. This provided a "scientific" basis for viewing African-descended people as a different and inferior species, thus requiring interbreeding to improve the race. A lexicon emerged that equated "blackness" with negative traits. "Black," "dark," and "sinister" are considered adjectives stemming from the word "evil." Common examples include "black hearts," "black deeds," and "black magic," as well as referring to Satan as the "Prince of Darkness."

*102 Whites expressed what it meant to be Black by portraying negative stereotypes of Blacks in entertainment and popular culture throughout the nineteenth and twentieth centuries. In the late nineteenth century, White performers darkened their faces with burnt cork, painted exaggerated White mouths, donned woolly wigs, and performed minstrel shows. The common themes in these performances were jokes highlighting laziness, ignorance, and other negative traits using crude versions of the Black dialect. Characters such as Jim Crow, a na ve and clumsy slave, exemplify this stereotype. With the advent of motion pictures in the early twentieth century, negative depictions of African-Americans moved to the screen. Furthermore, the negative connotation against Blacks became available to children through cartoons. For instance, the 1941 animation, Scrub Me Mamma with a Boogie Beat, depicts the life of a Black river community called Lazytown. With the exception of some Mammies, all men and animals appear sleeping or slacking during the day. The crude scenes of laziness and abandonment are suddenly changed when a modern riverboat arrives and the beautiful White ladies from the crew bring their energy and good manners to the town. This cartoon highlights the cultural preferences of Whites and displays many of the negative stereotypes of Blacks described so far.

In Toms, Coons, Mulattoes, Mammies, and Bucks, Donald Bogle identified other stereotypes depicted in popular films. Toms were always loyal, never turning against their White masters or employers. Coons, in contrast, were irresponsible, lazy, and dishonest. The Mammy was depicted as outspoken, overweight, and cantankerous. The Black Buck was a large, fearsome, dark-skinned, and hyper-sexualized male. The *103 Tragic Mulatto was a fair-skinned female attempting to pass for White. She was a sympathetic character confused by a divided racial heritage. More recently, the "Jezebel" was depicted as seductive, promiscuous, and predatory. Racial stereotypes were a staple of films, cartoons, comic books, and novels well into the 1960s.

In the 1960s, the Civil Rights movement altered the legal status of African-Americans. The official regime of state-sponsored discrimination was eliminated by Civil Rights legislation. For a brief period during the Black Power era, Blacks embraced their African heritage. A rejection of Eurocentric standards of beauty and the establishment of the politics of representation were encouraged. Women were urged to abandon hair strengtheners and skin-lightening creams. The "Afro" hairstyle became fashionable, and African-inspired clothing communicated the wearer's racial consciousness. The prevailing sentiment was captured in James Brown's popular song, "Say it Loud, I'm Black and I'm Proud."

The Black Arts movement introduced a "Black Aesthetic" to art, music, and literature. A revolution took place, which allowed Black artists to look at their social order from their own perspective. The 1960s were a time of protests, demonstrations, and urban riots; a *104 turning point in the way African-Americans perceived themselves. However, their hopes for a permanent transformation were too optimistic. By the late 1970s, the Black Power Movement declined. Opposition to Eurocentric standards survives today in the Black Studies Departments at Universities and in some "Afrocentric" organizations and charter schools, but it has largely disappeared from popular culture.

The commercialization of negative stereotypes has re-emerged and the entertainment industry is exploiting them for profit. Rap music is a multi-billion dollar industry. In the 1990s, "gangster rap" glamorized a ghetto subculture. This was reflected in behavior and attitudes that rejected mainstream values and glamorized dangerous and self-destructive behavior. Conspicuous consumption, ostentatious displays of jewelry, fast cars, and scantily clad women are the images that still predominate in music videos and magazines. Complexion Obsession: A Hip Hop Documentary is a two-part documentary created by Joy Daily. Using filmed interviews of several entertainers, the documentary shows how deeply colorism is embedded in the ethos of hip hop.

In a contemporary representation, the "Jezebel" character is the video vixen, a prominent character in gangster rap songs. Lil' Kim and Nicki Minaj are current manifestations of this stereotype: they employ exaggerated expressions of femininity and sexuality in their performances; they present images that commodify Black female sexuality; and they are bound by an old stereotype in which Black women are predisposed to *105 sexual deviance and lewdness.

Rap's product is an extravagant image of life in inner-city neighborhoods. Tough ghetto youths are shown driving luxury cars and wearing oversized shirts and baggy pants while displaying a menacing visage. The "thug" image that many rappers project is merely an updated version of the "Buck" character: a large, threatening, and hyper-sexualized Black male. The old expression "I don't want nothing black but a Cadillac" conveyed African-American males' preference for light-skinned women. This attitude persists in hip-hop culture. According to Patricia Hill Collins, the values of individualism, personal expression, and material well-being have prevailed in the hip-hop culture, while issues of racial failure have been overlooked.

VI. Internalized Stereotypes

In the 1970 novel The Bluest Eye, the celebrated author, Toni Morrison, deconstructed Eurocentric standards of beauty. Morrison's novel conveyed the psychic damage that some Black women suffer as a result of the construction of beauty and desirability in a racially coded society. The story portrays the tragic lives of an impoverished Black family in 1940s America. The eleven-year-old protagonist, Pecola Breedlove, believes she is ugly because her conception of beauty is based on the Eurocentric standard. The title, The Bluest Eye, is derived from Pecola's intense desire for blue eyes for which she prays every night. Pecola's obsession and traumatic experiences eventually drive her insane. Pecola's predicament was caused by internalized attitudes about what was considered attractive and desirable in her immediate reality.

*106 Since 1939, Kenneth and Mamie Clark developed research about self-identification in young children. In the late 1940s and early 1950s, they conducted a series of studies that became known as the "doll tests." Their studies found differences among children attending segregated schools in Washington D.C. compared to those in integrated schools in New York City. They found that Black children often preferred to play with White dolls over Black ones. When asked to fill in a human figure with the color of their own skin, they frequently chose a lighter shade than was accurate. The children gave the color "White" attributes such as good and pretty, but "Black" was seen bad and ugly. The test was used to show the harm that segregation inflicted on young children, contributing to a sense of inferiority and self-hatred. The Clarks testified as expert witnesses in several of the NAACP's school desegregation cases and their studies were relied on by the Supreme Court in Brown v. Board of Education.

Over the last two decades, a substantial body of empirical and theoretical work in cognitive psychology has confirmed that the causes of discriminatory actions often operate at an unconscious level without the individual's awareness of the source. Discrimination is an interaction of social cognitions about race and behavioral outlets that bring congruence to a person's racial preferences and social settings. Many of these beliefs are formed during the early childhood years, and they serve as a basis for judgments about events, groups, and ideas during their adult years. Socialized beliefs can provoke negative sentiments when individuals make judgments about issues that activate stereotypes.

*107 Overt racism has diminished considerably in the years since the Civil Rights laws were enacted, but unconscious stereotypes about color persist, and they are triggered by the ways in which the brain processes information. "Categorization" allows the brain to quickly process large amounts of information. It operates at a level independent of conscious attitudes, beliefs, and perceptions. Categorization is an essential cognitive activity enabling individuals to reduce the enormous diversity in the world to a manageable level. Categorization is the process of understanding something based on an individual's knowledge of that which is similar and that which is different. It allows individuals to relate new experiences to old experiences; the unfamiliar becomes familiar. Each object and event in the world is perceived, remembered, and utilized for predicting the future, inferring the existence of unobservable traits or properties, and attributing the causation of events. The process is spontaneous and measured in milliseconds.

According to Frances Aboud, who conducted research on prejudice in young children, categorization develops at an early age. In one of her studies with young children aged 3 to 5, volunteers were given a half-dozen positive adjectives such as "good," "kind," and "clean" and an equal number of negative adjectives such as "mean," "cruel" and "bad." They asked children to match each adjective to one of the two drawings. One drawing depicted a White person; the other showed a Black person. The *108 results showed that 70% of the children assigned nearly every positive adjective to the White faces and nearly every negative adjective to the Black faces. A subsequent study, also conducted by Aboud, demonstrated that these attitudes were not taught by the children's parents or teachers. Commenting on Aboud's research, Shankar Vedantam explained that children's racial attitudes are the products of unspoken messages emanating from the environments in which they reside. Young children experience a world in which most people who live in nice houses are White. Most people on television are White, especially the people who are shown in positions of authority, dignity, and power. Most of the storybook characters they see are White, and it is the White children who perform heroic, clever, and generous things. Young children conclude that there must be an unspoken rule in society that forces Whites to marry Whites because everywhere they look White husbands are be married to White wives. Young children who are trying rapidly to orient themselves in their environments receive messages about race and color, not once or twice, but thousands of times. Everywhere a child looks, whether it is on television, in movies, in books, or online, their inferences are confirmed. As they grow older, these messages remain in their unconscious psyches and can be triggered by the categorization process.

Unconscious stereotyping is associated with the categorization process. According to Quadflieg and Macrae, upon the perception of a target, social categorization is expected to occur, which in turn activates stereotypical knowledge that is then used to evaluate, judge, or predict a person's personality or behavior. Attitudes about African-Americans are internalized at an early age and retained into adulthood. This may explain why dark-skinned Black defendants get longer prison sentences than their lighter-complexioned counterparts and why most Americans prefer lighter to darker skin tones.

*109 Title VII of the Civil Rights Act of 1964 and other laws protect against discrimination based on color, but courts have been less receptive to claims alleging intra-racial discrimination. Legal scholars have argued that courts should be more receptive to cases alleging discrimination based on color. These are accurate conclusions and important recommendations, but the color problem is much larger. Successful employment claims will not stop individuals from straightening their hair, donning blonde wigs, or wearing blue contact lenses. Laws will not diminish the worldwide, multi-million dollar market for skin-lightening creams. Court cases will not end the preference for light-complexioned models and entertainers. Regulations will not change the images we see in television, movies, magazines, online, and elsewhere that reinforce colorism every day.

VII. Conclusion

In the classic jazz song What Did I Do To Be So Black and Blue, composed by Fats Waller in 1929 and interpreted by Louis Armstrong, a lonely, dark-skinned woman laments her inability to attract male attention:

Cold empty bed . . . springs hurt my head

Feels like ole ned . . . wished I was dead

What did I do . . . to be so black and blue

Even the mouse . . . ran from my house

They laugh at you . . . and all that you do

What did I do . . . to be so black and blue

I'm white . . . inside . . . but, that don't help my case

That's life . . . can't hide . . . what is in my face

How would it end . . . ain't got a friend

My only sin . . . is in my skin

What did I do . . . to be so black and blue.

*110 Colorism is a vestige of the colonial era when European countries invaded Africa, Asia, and the Americas and imposed their standards on the indigenous populations along with the Africans they imported and enslaved. Perhaps unconsciously, Michael Jackson and Sammy Sosa wanted to make themselves more physically attractive, which to them meant having a light complexion, European features, and straightened hair.

Colorism is well documented in academic research but largely ignored by policymakers. It is as alive today as it was a century ago. Dark-skinned African-Americans and other minorities do not have the same opportunities for advancement as those with light complexions. This form of discrimination is as injurious as invidious racism. Colorism is a combination of overt and unconscious discrimination that places a high value on light complexions and European features while devaluing dark skin and African phenotypes. As America becomes a more multi-racial society, old-fashioned racism is declining, but colorism and unconscious bias persist. If this trend does not change, it will mean that the darkest-complexioned, most African-looking people will continue to receive the worst treatment.

White Supremacy, Anti-blackness and the Afterlife of Slavery in the Law


excerpted from Nancy A. Heitzeg, On the Occasion of the 50th Anniversary of the Civil Rights Act of 1964: Persistent White Supremacy, Relentless Anti-blackness, and the Limits of the Law, 36 Hamline Journal of Public Law and Policy 54 - 79 (Fall, 2014) (75 Footnote Omitted) (FULL ARTICLE)


NancyHeitzegIn the post -bellum era, the stain of slavery has been impossible to remove. Constitutional Amendments, Supreme Court rulings, and legislation notwithstanding, the exploitation of captive/caged Black labor continues, largely uninterrupted. As Dillon observes:

Slavery's production of social and biological death did not end with emancipation, did not cease with the end of segregation, and refused to heed under civil rights legislation. Its logic and power exceeds the realm of law. The past comes back not just to haunt, but to structure and drive the contemporary operations of power.

The primary mechanism for the perpetual denial of full citizenship has been the criminal law, with its attendant systems of policing and punishment. As Frederick Douglas observed nearly 150 years ago, there is no escaping “the general disposition in this country to impute crime to color.” Post slavery, the criminalizing narrative has been a central cultural feature of on-going efforts at oppression; from convict lease/plantain prison farms to the contemporary prison industrial complex, the control of black bodies for profit has been furthered by the criminal justice system.

A substantial body of work documents the post -bellum transformation of Black Codes into Slave Codes, slave patrols into police forces, plantations into prisons, and, in to post-Civil Rights era, into the contemporary prison industrial complex. At no point was the law able to stop this; to the contrary, the law and its enforcement apparatus remain consistent, albeit shifting, centerpieces of white supremacy and anti-Blackness.


A. The Post -Bellum Era: Convict Lease and Planation Prisons

In the aftermath of the Civil War, the passage of the 13th, 14th, and 15^th Amendments seemed to promise an end the abolition of slavery, due process and equal protection at both state and federal levels, and full citizenship via the franchise (at least for Black men).

Angela Y. Davis, in Are Prisons Obsolete?, traces the initial rise of the penitentiary system to the abolition of slavery; “[I]n the immediate aftermath of slavery, the southern states hastened to develop a criminal justice system that could legally restrict the possibilities of freedom for the newly released slaves.” There was a subsequent transformation of the Slave Codes into the Black Codes and the plantations into prisons. Southern states quickly passed laws that echoed the restrictions associated with slavery, re-inscribed the property interests of “whiteness,” and criminalized a range of activities of the perpetrator was black. These laws were enforced by former slave patrols turned police agencies, with the assistance of extra-legal militias, and the white citizenry in general, who are merely protected by these same police, but per Wilderson “not simply “protected” by the police, they are--in their very corporeality--the police.” All this becomes possible because the 13th Amendment--“Neither slavery nor involuntary servitude shall exist in the United States”--contained a dangerous loophole- “except as a punishment for crime.” This allowed for the conversion of the old plantations to penitentiaries--the 18,000 acre Louisiana Penitentiary at Angola is a case in point-- and the creation of prison “farms” such as Parchmann in Mississippi and the infamous Tucker Prison Farm and Cummins Prison Farm in Arkansas. Sheriffs, jailors and wardens leased out entire prisons to private contractors who literally worked thousands of prisoners to death in labor camps, on chain gangs, and in prison farms. These prisoners were largely black; in the post-Civil War South the racial composition of prison and jail populations shifted dramatically from majority White to majority Black, and in many states increased ten-fold. As Davis notes, “the expansion of the convict lease system and the county chain gang meant that the antebellum criminal justice system, defined criminal justice largely as a means for controlling black labor.” The re-institutionalization of slavery via the criminal legal system also served to effectively undo the newly acquired 15th Amendment right to vote. This was legislatively curtailed by the tailoring of felony disenfranchisement laws to include crimes that were supposedly more frequently committed by blacks. In the post-Civil War period, existing felony disenfranchisement laws were expanded dramatically, especially in the South, and modified to include even minor offenses. This legislation, in combination with literacy tests, poll taxes, grandfather clauses and ultimately, the threat of white terror, essentially denied Blacks the right to vote until the mid-twentieth century.

The 14th Amendment's promise of due process and equal protection was insufficient to override this continued economic exploitation and civic exclusion. This was due to a series of Supreme Court rulings that interpreted the 14th in support of state's rights, white supremacy, and against Black inclusion. In United States v. Cruikshank (1876), the Supreme Court ruled that that “The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.” decision, in a case involving the bloody Colfax Massacre, forbade the Federal Government from relying on the Enforcement Act of 1870 to prosecute actions by white paramilitary groups that had been violently suppressing the Black vote. This decision paved the way for nearly a century of unchecked white extra-legal violence and lynching that served to enforce white supremacy in both law and practice.

On matters of racial equality, the most famous Supreme Court ruling of the era was Plessy v. Ferguson (1896). Post slavery, white supremacy in the law was accomplished by the introduction of a series of segregationist Jim Crow laws that mandated Black exclusion from white spaces, even in public accommodations. In a challenge to legalized segregation of public transportation in the state of Louisiana, Plessy argues that these laws have denied him equality before the law. The majority disagrees and sets forth the principle of “separate but equal.” Justice Brown (1896) writes for the majority,

It is claimed by the plaintiff in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is ‘property,’ in the same sense that a right of action or of inheritance is property ... We are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called ‘property.’ Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man. The sole dissenter in Plessy sets up the juxtaposition between Jim Crow and color-blindness that frames the contemporary debate on race today. Justice Harlan, while acknowledging the reality of white supremacy, decries its support with the law, but with cold comfort:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. 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. Even post-Emancipation, Blacks had no claim to the property rights of whiteness, nor full and equal access to rights of citizenship that entailed. White supremacy and anti-Blackness persisted in law, even in the face of Amendments to the Constitution, which purported to undo the same.

B. The Post-civil Rights Era, Mass Incarceration and “Color-blindness

The Supreme Court ruling in Brown v. the Board of Education of Topeka, Kansas (1954) is often used as the benchmark for chronicling the start of the Civil Rights Movement of the 1950s and 1960s. The Court's unanimous rejection of Plessy's “separate but equal” provided a new Federal framework with which to challenge Jim Crow segregation on the state and local levels. It offered the back drop for the Montgomery bus boycott, the resistance in Birmingham, Bloody Sunday, the voter registration drives of Freedom Summer, and ultimately, passage of the Civil Rights Act of 1964, The Voting Right Act of 1965, the Fair Housing Act of 1968, and the 24th Amendment to the Constitution. While there was hope again that the law itself could be pressed into the service of racial equality, those victories now seem bittersweet. Bell argues that the Brown decision and the ensuing Federal legislation were “silent covenants” of interest-convergence, where “perceived self-interest of whites rather than the racial injustices suffered by Blacks have been the major motivation in racial-remediation policies.” Judge Robert L. Carter, one of the attorneys who argued Brown goes further, “... the fundamental vice was not legally enforced racial segregation itself; this was a mere by- product, a symptom of the greater and more pernicious disease -white supremacy.” Legally supported segregation was uprooted without dislodging either white supremacy or anti-Blackness, now cloaked in race-neutral rhetoric of “color-blindness”.

The “color-blind” Constitution and the race-neutral requirement of Federal Civil Rights legislation now serves as convenient cover for the persistence of institutionalized racism. Racially coded but race-neutral rhetoric is widely used in debates over welfare reform, affirmative action, and particularly “law and order” criminal justice policy; in all these cases, the coded racial sub-text reads clearly, and the resultant policies, while purportedly “race neutral,” have resulted in disproportionate harm to people of color, especially African Americans. While race is now widely the text/subtext of political debate, systemic racism still remains largely absent from either political discourse or policy debates of all sorts, including those related to criminal injustice.

In the Post-Civil Rights Era, there has been a corresponding shift from de jure racism codified explicitly into the law and legal systems to a de facto racism where people of color, especially African Americans, are subject to unequal protection of the laws, excessive surveillance, police terror, extreme segregation, a brutal and biased death penalty, and neo-slave labor via incarceration all in the name of “crime control.” “Law and order” criminal justice policies are all guided by thinly coded appeals to white fears of high crime neighborhoods, “crack epidemics,” gang proliferation, juvenile super-- predators, urban unrest, school violence, and more. In all these case, the sub-text reads clearly--fear of brown and especially Black people.

As before, law, policing and punishment are central to the ongoing exclusion of Blacks from civic life. Post slavery, the criminalizing narrative was a cultural feature of on-going efforts at oppression; from convict lease/plantain prison farms to the contemporary prison industrial complex the control of black bodies for profit has been furthered by the criminal justice system. “Slave Codes” become Black Codes and now Black Codes become gang legislation, three-strikes and the War on Drugs in the persistent condemnation of Blackness. As before, the criminal legal system is the primary mechanism for undoing the promised protections of Federal Civil Rights legislation and constitutes again, the major affront to the fulfillment of the 13th, 14th and 25th Amendments.

The United States has the highest incarceration rate in the world, with a population of 2.3 million behind bars that constitutes 25% of the world's prisoners. The increased rate of incarceration can be traced to the War on Drugs and the rise of lengthy mandatory minimum prison sentences for drug crimes and other felonies. These policies have proliferated, not in response to crime rate or any empirical data that indicates their effectiveness, due to newfound sources of profit for prisons. As Brewer and Heitzeg (2008) observe:

The prison industrial complex is a self-perpetuating machine where the vast profits (e.g. cheap labor, private and public supply and construction contracts, job creation, continued media profits from exaggerated crime reporting and crime/punishment as entertainment) and perceived political benefits (e.g. reduced unemployment rates, “get tough on crime” and public safety rhetoric, funding increases for police, and criminal justice system agencies and professionals) lead to policies that are additionally designed to insure an endless supply of “clients” for the criminal justice system (e.g. enhanced police presence in poor neighborhoods and communities of color; racial profiling; decreased funding for public education combined with zero-tolerance policies and increased rates of expulsion for students of color; increased rates of adult certification for juvenile offenders; mandatory minimum and “three-strikes” sentencing; draconian conditions of incarceration and a reduction of prison services that contribute to the likelihood of “recidivism”; “collateral consequences”-such as felony disenfranchisement, prohibitions on welfare receipt, public housing, gun ownership, voting and political participation, employment- that nearly guarantee continued participation in “crime” and return to the prison industrial complex following initial release.) The 13th Amendment claim of abolition remains unfulfilled, as the neo-slavery of the prison industrial complex becomes the current vehicle for controlling Black bodies for political and economic gain. The trend towards mass incarceration is marred by racial disparity. While 1 in 35 adults is under correctional supervision and 1 in every 100 adults is in prison, 1 in every 36 Latino adults, 1 in every 15 black men, 1 in every 100 black women, and 1 in 9 black men ages 20 to 34 are incarcerated. Despite no statistical differences in rates of offending, approximately 50% of all prisoners are black, 30% are white, and 20% are Latino;. These disparities are indicative of differential enforcement practices rather than any differences in criminal participation. This is particularly true of drug crimes, which account for the bulk of the increased prison population. Even though Blacks and whites use and sell drugs at comparable rates, African Americans are anywhere from 3 to 10 times more likely to be arrested, and additionally likely to receive harsher sentences than their white counterparts. It is no mistake that the subtitle of Michelle Alexander's epic indictment of The New Jim Crow is this: Mass Incarceration in the Age of Color-blindness The Drug War, from start to finish, has always been racist: draconian sentences, crack versus powder disparities, police patrol patterns, stop/frisk practices, racial profiling and death at the hands of law enforcement, arrests, convictions, sentencing including death and incarceration, and collateral consequences that include bans on voting, bars to employment, education, housing and economic assistance, and the diminishment of parental rights, all fall heaviest on Blacks. This racial disparity is by design. As Alexander observes criminal justice policies serve to regulate and segregate communities of color in the Post-Civil Rights era:

What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it. In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don't. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you're labeled a felon, the old forms of discrimination--employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service--are suddenly legal. As a criminal you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it. We are still not saved by the 14th Amendment. In the Post-Civil Rights Era, the Supreme Court has followed the color-blind logic of the sole dissenter in Plessy and solidified the race-neutral implications of Federal Civil Rights legislation. Color-blindness as the new legal doctrine begins to emerge-- despite judicial dissent--in cases involving affirmative action and other remedied to centuries of racial inequality. The Supreme Court adopts the color-blind model in The Board of Regents, University of California v. Bakke (1978), where the ruling is in favor of a white student who claimed racial discrimination in his denial of admission to medical school. If the Constitution is to be color-blind, race can only be considered with “strict scrutiny,” even as a remedy for past discrimination. Justices Brennan and Marshall, in separate dissents, point out the flaws of this approach. Brennan observes,

Claims that law must be “color-blind” or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality ... for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot ... let color blindness become myopia which masks the reality that many “created equal” have been treated within our lifetimes as inferior both by the law and by their fellow citizens.” Justice Marshall's dissent echoes the warning, one that has now come to pass;

For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier. McCleskey v. Kemp (1987) is perhaps the most significant case of the Post-Civil Rights era with respect to the application of the 14th Amendment as to matter of race. It is here that potential for an interpretation that would allow for real remedies for institutionalized discrimination is presented and denied. The racial disparity that characterizes all criminal justice has been most obvious and contested in the application of capital punishment, especially in the South, where the “killing state” stepped to do what was once the work of extra-legal lynch mobs. After a series of death penalty cases where the Court ruled that racial discrimination in the application of the criminal laws' ultimate penalty must be addressed, it is here that the Supreme Court in a 5-4 decision clearly defines discrimination as individual not institutionalized. Citing statistical evidence from the now famous Baldus study, McCleskey argued that the application of the death penalty in Georgia was fraught with systemic patterns of racism that transcended but tainted any particular case. Defendants charged with killing white victims were more likely to receive the death penalty, and, in fact, cases involving black defendants and white victims were more likely to result in a sentence of death than cases involving any other racial combination. The majority did not dispute the statistical evidence, but feared the consequences. If the Court accepted McCleskey's claim, then the Equal Protection Clause of the 14th Amendment would apply to patterns of discrimination, to institutionalized racism and sexism, to questions of structured inequality. It could, in fact, be used to challenge the very foundations of the criminal justice system itself, start to finish: laws with disproportionate racial impact, racial profiling and racial bias in police use of force, and prosecutorial discretion. These fears are expressed in Powell's opinion for the majority,

“First, McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. In the majority's view, equal protection of the laws was for individuals, not oppressed groups, and discrimination must be intentional and similarly individual.McCleskey closed off the last best avenue for remedying structural inequality with the law itself, and preserved the color-blind veneer at the expense of racial remedy. Justice Brennan's impassioned dissent makes the implications of this decision clear:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black. While, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died ...

At the time our Constitution was framed 200 years ago this year, blacks had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect. Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. Ibid. A mere three generations ago, this Court sanctioned racial segregation, stating that “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Plessy v. Ferguson, 163 U.S. 537, 552 (1896). In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court's first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that, in three decades, we have completely escaped the grip of a historical legacy spanning centuries Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present. Well into the 21 Century, Supreme Court decisions continue to erode Federal Civil Rights legal gains and the ability of the Civil War Amendments to provide racial redress. The doctrine of strict scrutiny itself continues to be eroded further as the current Supreme Court limits its application and as a series of subsequent cases from Grutter v Bollinger (2003) and Gratz v. Bollinger (2003) to Fisher v. University of Texas at Austin (2014) and Shelby County v. Holder (2012) have shown, the Constitution has indeed erected a legal barrier with claims of colorblindness. Worse still, as Crenshaw notes, the shift even beyond color-blindness towards claims of “post-racial pragmatism,”

This pragmatism jettisons the liberal ambivalence about race consciousness to embrace a colorblind stance even as it foregrounds and celebrates the achievement of particular racial outcomes. In the new post-racial moment, the pragmatist may be agnostic about the conservative erasure of race as a contemporary phenomenon but may still march under the same premise that significant progress can be made without race consciousness ....

Colorblindness as doctrine not only undermines litigation strategies that rely on race-conscious remediation, but it also soothes social anxiety about whether deeper levels of social criticism, remediation, and reconstruction might be warranted. While colorblindness declared racism as a closed chapter in our history, post-racialism now provides reassurance to those who weren't fully convinced that this history had ceased to cast its long shadow over contemporary affairs. Post-racialism offers a gentler escape, an appeal to the possibility that racial power can be side stepped, finessed and ultimately overcome by regarding dominance as merely circumstance that need not get in the way of social progress.

As post-racialism becomes the vehicle for a colorblind agenda, the material consequences of racial exploitation and social violence--including the persistence of educational inequity, the disproportionate racial patterns of criminalization and incarceration, and the deepening patterns of economic stratification--slide further into obscurity. More than a century after the Civil War Amendments, 60 years since Brown, 50 years since the Civil Rights Act of 1964, and we are here, with white supremacy and anti-Blackness intact, but now masked, and with slavery (unwilling to die) transformed yet again. Still, the law, unwilling and unable to offer relief, but worse still, at the center of this exclusionary endeavor, from the outset to the present, remains the definer and purveyor of Black social, civil and literal death.

Dr. Nancy A. Heitzeg is a Professor of Sociology and Director of the interdisciplinary Critical Studies of Race/Ethnicity Program at St. Catherine University, St. Paul, MN.


How the Thirteenth Amendment's Promise of Abolition Holds Protections Against the Modern Debtors' Prisons


Sarah Morgan, Civil Rights/constitutional Law--indebted to the State: How the Thirteenth Amendment's Promise of Abolition Holds Protections Against the Modern Debtors' Prisons , 39 Western New England Law Review 327 - 368 (2017) (Note) (321 Footnotes Omitted) (FULL ARTICLE)

SarahmorganSet aside your image of a post-Obama color-blind America. Wipe clean your impression that the Civil Rights Movement of the 1960's solved the “race problem.” And above all, suspend your disbelief that the Emancipation Proclamation abolished slavery. For today's social, political, and especially economic subjugation of people of color flies in the face of America's gauzy, race-neutral ideations. Racism prevails, taking on new forms as implicit and explicit biases against poor people of color, in the minds and hearts of our political and judicial figures. And, as this Note will argue, slavery continues in its new manifestation of the debtors' prison, although, absolutely none of this is truly “new.”

It begins with a minor offense: a moving violation, a citation for jaywalking, or a parking ticket. Before a hearing for the offense has even commenced, booking fees, bail, and defense counsel application fees are attached. In other instances, it arises post-conviction: monthly probation payments, installation costs for an automobile interlock device, or required contribution for court-appointed counsel. To anyone with a steady income, a deep savings account, or a financially prosperous personal network, these legal financial obligations (“LFOs”) represent nothing more than a momentary hardship--write one check and all returns to normal. For everyone else, the inability to scrounge up sums of cash on the spot could result in an indefinite stay in the county jail, for which additional fines and fees are compounded onto a growing bill. This cycle, from the imposition of LFOs for non-violent minor offenses to indefinite incarceration, repeats in municipalities across the country in a conceptual confine known as the modern debtors' prison.

This Note will argue that the modern debtors' prison is unconstitutional under the Thirteenth Amendment's prohibition against involuntary servitude and peonage. Section II.A. will argue that, in keeping with the expansive spirit of the Thirteenth Amendment, the modern debtors' prison is a violation of the prohibition against peonage. Section II.B. will demonstrate that the modern debtors' prison is not exempt from the protections of the Thirteenth Amendment, because the practices which give rise to it do not constitute “punishment” as used in contemporary legal discussion. Therefore, the Thirteenth Amendment provides a source of constitutionally-guaranteed rights from being subjected to the modern debtors' prison.

Section II.C. will explore the remedies available for violations of constitutionally guaranteed rights to not be held to conditions of peonage. In Section II.D., the Note will assert Congress should take advantage of its broad enforcement powers under section two of the Thirteenth Amendment and enact a prohibition against the modern debtors' prison, providing enhanced civil remedies for imprisonment for criminal debts. Finally, Section II.D. will address anticipated counterarguments: first, it will argue that City of Boerne v. Flores does not restrict Congress's Thirteenth Amendment enforcement powers, and; second, it will demonstrate how federalism concerns do not preclude a remedial statute based on the Thirteenth Amendment.

Candidate for J.D., 2017, Western New England University School of Law.


Dominant Perspectives on Reparations

Vincene Verdun

Excerpted from: Vincene Verdun, "If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans", 67 Tulane Law Review 597-698, 612-639  (February, 1993)
(cites omitted)(Permission Requested).

A precursor to any relevant discussion . . . is the acceptance that race is a factor in the development of a dominant culture and an African-American culture.   Furthermore, the values and norms that define those cultures result in a dominant perspective and an African-American consciousness that can affect the analysis of an issue. The civil rights movement, and the pervasive liberal ideology of equal opportunity and integration that grew out of it, established new notions of a colorblind society  and of the declining significance of race.  Ironically, considering its origins, the colorblind ideology has done more to thwart the integrationist ideal than to promote it.  Ignoring or even downplaying the significance of  race in a system that discriminated against a group of people based on its race for hundreds of years-a system that left that group in a politically, economically, and socially disadvantaged state-threatens affirmative action plans and efforts. Liberals and progressives rejected race consciousness on the part of blacks or whites because of its perceived conflict with the ideal of integrationism.  [The theory of reparations for African Americans]. . . bears the brunt of that rejection since it is based on the premise that a people who share a common heritage and living experience establish a common perspective or consciousness that can have a profound impact on how they analyze an issue-in this case reparations to African Americans. . . 

Even if one strongly disagrees about the survival of African  culture and its effect on the consciousness of African Americans, common sense suggests that groups of people systematically segregated from each other will develop distinctive cultures  over time.  When the effects of and reaction to slavery  and discrimination are added to systematic segregation, the grounds for this intuitive belief become even stronger.. . . 

A.  The Dominant Perspective

Individualism and self-determination are values in the dominant society that most significantly affect the analysis of reparations to African Americans.  Robert Staples describes the value orientations of white Americans on individualism as follows: 

In human society each individual must make his own mark through competition for the prestige goals of his culture.  The rewards of his victory in the competition are his alone, to be shared only with certain prescribed people (e.g., wife, children) over whom he has control.  Those who have not achieved success or are without sufficient resources have only themselves to blame because of their inability to compete.  The dominant group perceives that each individual is responsible  for his or her own behavior. . . 

. . . .  The value placed on individualism is so entrenched in the dominant perspective that it cannot yield to foreign concepts like group entitlement or group wrongs.  Opponents of reparations  to African Americans analyze the merits of the remedy from this dominant perspective with its focus on individualism, thereby contributing to the opponents' conclusion that the idea of reparations to African Americans is absurd, frivolous, or unworthy of serious consideration. 

B.  The African-American Consciousness

In stark contrast with the dominant perspective of individualism, African- American consciousness emphasizes the significance of group identification. Robert Staples describes the perception of African Americans on group orientation as follows: 

"The concept of the individual is usually subordinate to a group orientation.  It is the group that is important and the Black self is an incorporated part of the social group.  Cooperation through collective efforts is the accepted means of achieving culturally prescribed goals.. . . The African ideals of collectivism and communalism were so strongly entrenched in the psyche of the young adults who were part of the slave trade, and the slave society was so isolated from the dominant society, that these general values sustained the generations.  African values were reinforced among the slaves as the slave trade continued and African slave immigrants were interspersed with slaves with a longer tenure on the American continent."

 Perhaps the best evidence that African Americans have accepted values of communalism and collectivism, whether or not the source of those values is found in the African culture, is through the demonstrative experiences of African Americans.  An example of how African Americans identify with communalism, as compared with individualism, is found in the treatment of success and responsibility.  An African American who succeeds owes that success to the efforts of the many in addition to the individual effort.  Not only is there the common sharing of glory with parents and relatives who contributed to an individual's progress (a type of sharing that is also a part of the dominant group culture), but also African Americans acknowledge the civil rights activists and the African-American community that paved the way for the individual's success.  That the community assumes some credit for the success of the individual is further evidenced by the communities' expectation that the successful member make a contribution or give something back to the community  failure to do so may result in that successful individual losing the respect of the community. 

Young, successful African Americans frequently experience the sense of their communities' pride in their achievements.  When an older African-American man approaches a new law school graduate whom the elder person does not know and ingenuously says to that young person, "I am proud of you," there must be a source of that pride.  Since the relationship is not one of friendship or kinship through blood, the source of that pride can only be explained by kinship through race-a kinship that is strengthened by the common struggle among African Americans.  The sense of communalism among African Americans allows one to take pride in the accomplishments of the other based on no other commonality than the race of the individual.  Mari Matsuda describes the kinship wrought out of common struggles: 

Victims necessarily think of themselves as a group, because they are treated and survive as a group.  The wealthy black person still comes up against the color line.  The educated Japanese still comes up against the assumption of Asian  inferiority.  The wrongs of the past cut into the heart of the privileged as well as the suffering.  Whether through common suffering or the survival of cultural norms birthed in Africa, the values of collectivism and communalism are a part of the African- American consciousness that affects the perspective and analysis of African Americans on the issue of reparations.  That consciousness leads the reparationist to the conclusion that the debt owed to African Americans for the injuries endured during slavery and over one hundred years of systematic discrimination is obvious and justified and that the refusal to pay is a further perpetuation of the injury. 

C.  Comparative Analysis of Reparations from the Dominant Perspective and the African-American Consciousness

Opponents of reparations to African Americans argue that living whites have not injured living African Americans; the wrongs of slavery were committed by individuals who have been dead for years. African Americans living today were never slaves and are not entitled to wages for slave labor performed over one hundred years ago.  Furthermore, if systematic discrimination experienced in the lifetime of living African Americans is counterproposed as a basis for reparations, opponents  minimize the prevalence and impact of racism in this country and argue that any individual guilty of racism should be prosecuted under existing antidiscrimination laws.  When reparations to Native Americans or internees of Japanese ancestry are cited as precedents for reparations to African Americans, opponents distinguish these cases based on practical considerations such as the absence of seizure of land belonging to African Americans or the difficulty of determining who should be eligible to receive relief.  Finally, reparations are opposed for a number of practical reasons, including economic feasibility.  Positions like these have even convinced some supporters of reparations that there is no legal case for reparations and that any relief must be founded on moral obligations.  The dominant perspective of individualism forms one of the foundations in every argument that opposes reparations.  In this section each proposed basis for reparations to African Americans will be analyzed from the dominant perspective and from the African-American consciousness to afford a comparison of the outcomes. 

1.  The Reparationists' Claim for Unpaid Slave Wages or Compensation for Injustices Suffered During Slavery

The dominant perspective limits the liability of an individual to compensation for injuries that can be identified as having been committed by that individual.  It also requires that the recipient of compensation suffer an injury caused by that individual.   Accordingly, the opponents of compensatory damages to African Americans arising out of lost wages or injustices suffered during slavery argue that no slave owners can be identified to pay the debt because they are all dead.  Furthermore, even if it were possible to trace the benefits of slave labor to living individuals through inheritance of wealth, it would be impossible to identify the descendants of the slaves that generated such benefits and match them with the heirs.  From the dominant perspective, it would be patently unfair to make all white people or society pay for slavery because that would necessarily include people who did not participate in the wrong.  These people include whites who are descendants of abolitionists and nonslaveholders, and immigrants, or descendants of immigrants, who came to this country after slavery was abolished; post slavery immigrants cannot be connected with a wrong associated with slavery. 

A claim for compensation based on slavery, when interpreted from the dominant perspective, would imply that all African Americans were injured by slavery and that all white Americans caused the injury or benefitted from the spoils of slave labor.  These implications are offensive to anyone whose perception of justice is derived from the dominant perspective because liability and right to compensation are based on race  rather than the commission of an injurious act.  For many, the establishment of rights and liabilities based on race is not only unjust, it is also immoral.  Opponents to reparations, who usually assume the dominant perspective with its focus on individualism, would construe the imposition of liability on non-wrongdoers as illogical and unjust.  Thus, the dominant perspective's focus on the individual makes an argument for reparations for slave labor seem imminently rebuttable. 

Reparationists, perceiving the claim for compensation for slavery from the African-American consciousness, would identify a continuing and uncompensated wrong to a community.  As a result, they would hold the larger community responsible to right the wrong.  The uncompensated wrong takes two forms:  1) failure to pay for slave labor and the contribution of slaves to the building of this country  and 2) the presumption of inferiority, devaluation of self-esteem, and other emotional injuries, pain, and suffering, that resulted from the institution of slavery. 

Unlike opponents to reparations who assume the dominant perspective, reparationists have no trouble linking the wrongs against ancestors to the condition of living descendants. Using the history of Florine Verdun from the prologue as an illustration, reparationists would argue that the parents of Aaron Page, a young slave emancipated when he was nine years old, might have been able to assist Aaron during their lives if the parents had been able to earn a living.  They could have purchased a farm, or helped him start a business, or sent him to college-the way that parents typically do.  However, because Aaron's parents were not paid, and in fact were separated from him before he was emancipated, Aaron continued to work on the plantation after his emancipation. His only option as an adult was to become a sharecropper, which led his daughter Bessie and her daughter Florine to become sharecropper's daughters.  The African-American consciousness allows reparationists to perceive the impact of the injury-the unpaid wages-on the total community, which includes not only Aaron's parents, but his daughter, Bessie, and her daughter, Florine, and Florine's children. 

The extent of the injury is magnified when all of the people in the community who came into contact with these descendants of Aaron Page in their impoverished state, and who could have derived greater benefit from their contacts if the descendants had been better off, are included in the calculation.  When contacts  with all of the descendants of slaves are included in the calculation, reparationists would argue that the entire African-American community-including people who were not the direct descendants of slaves-was affected by the injury.  Thus, unlike opponents to reparations, who would need to identify the particular descendants of slaves, reparationists would identify the entire African-American community as the injured party. 

The reparationist identifies a second type of injury arising out of slavery:  spiritual injuries, such as the presumption of inferiority and the devaluation of self-esteem.  The reparationist would argue that these spiritual injuries- the pain and suffering of slavery-have had a significant and lasting impact on the African-American community.  Slaves were taught by word and deed that they were subordinate and inferior to whites.  Inferiority was used to justify subordination.  The belief in the inferiority of African Americans was pervasive in the African-American community and the white community until the civil rights movement of the sixties, when educators, historians, sociologists, and activists began to dispel some of the myths of inferiority.  However, the myth of inferiority was so ingrained in the spirits of the slavemaster and slave that it has survived the generations since slavery in the subconscious of Americans; it stands as the staple of racism among whites and self-deprecation among African Americans.  As Professor Lawrence stated about the origins and pervasiveness of racism in our society today: 

   Racism is in large part a product of the unconscious.  It is a set  of beliefs whereby we irrationally attach significance to something called race.  I do not mean to imply that racism does not have its origins in the rational and premeditated acts of those who sought and seek property and power.  But racism in America is much more complex than either the conscious conspiracy of the power elite or the simple delusion of a few ignorant bigots.  It is a part of our common historical experience and, therefore, a part of our culture.  It arises from the assumptions we have learned to make about the world, ourselves, and others as well as from the patterns of our fundamental social activities. 

    ... We attach significance to race even when we are not aware that we are doing so.
    ... It is a malady that we all share, because we have all been scarred by a common history.  Racism's universality makes it normal.
    ... We must understand that our entire culture is afflicted, and we must take cognizance of psychological theory in order to frame a legal theory that can address that affliction. 

Professor Lawrence stated that the origins of racism were in the rational and premeditated acts of those who sought power and that we are all affected by racism because we have been scarred by our common history.  Slavery, as an institution supported by the ideology that people were inferior and appropriately subordinated because of their race, would have to be high on the list of premeditated acts that established racism, and is part of the common history that has scarred us all.  Although most whites and African Americans would consciously disclaim any notion that African Americans are inferior to whites, subconsciously many decisions, heavily camouflaged in the cloak of meritocracy, are made based on such beliefs.  This heritage of inferiority looms in eerie, ghostlike form over African Americans in the workforce,  classrooms,  markets,  and social  circles  throughout the nation.  It is emotional injury, stemming from the badge of inferiority and from the stigma attached to race which marks every African American, that composes the most significant injury of slavery. 

The dominant culture is blind to this injury.  It is so remote from the experience of most members of the dominant culture that it is beyond their conception.  When African Americans identify an act that was motivated by this perception of inferiority, it is perceived by the dominant group either as a kind of paranoia  or as an excuse for failure to perform in accordance with the mandates of a meritocracy.  It is beyond the scope of this Paper to describe the injury at length or to prove the merits of the injury, but Professor Lawrence does an excellent job of describing the source of unconscious racism and how it manifests itself in the lives of ordinary people.  Billy J. Tidwell describes at length the sociopsychological, sociopolitical, and economic costs of racism to  American society.  Opponents of reparations would have no problem dismissing this injury as baseless, unprovable, and nonexistent. Reparationists who are also African Americans are aware of the injury because of personal battles combatting feelings of inferiority and because of frequent encounters with whites and African Americans which confirm that both are making evaluations based on presumptions of inferiority of African Americans.  With the injury identified, reparationists would propose that every African American suffers from the emotional injuries of slavery and therefore deserves compensation. 

After identifying the injuries of slavery and the victims as the entire African-American community, the reparationist would still have to contend with the opponents' argument that the wrongdoer cannot be identified or matched with the victim.  From the African-American consciousness, the wrongdoer is not limited to some prescribed set of individuals such as slave owners.  One reparationist said that "[w]hite Americans are not guilty of practicing slavery and most are not actively engaged in economic discrimination, but most are collectively the beneficiaries of slavery and economic discrimination."  The slave owner was joined in his acts against African Americans by a host of others, including the slave traders, merchants and bankers who financed the slave trade, legislators who enacted constitutions and laws to protect the slave owner and to disfranchise the slave of rights, Northern industrialists who purchased the products of slave labor, consumers who purchased the products produced by raw materials provided by slave labor, the people who enjoyed an increased status and standard of living because of the national economic stability generated in part by the institution of slavery, and others who came in contact with those whose lives were so enhanced. 

It is easy to see that the list is  probably all-inclusive and it is difficult to conceive of the hermit who could escape this broad classification of wrongdoer.  African Americans refer to the wrongdoer, much to the offense of individual white people, as "the white man" or "the man" and less often as "the system." Perhaps the more appropriate description of the wrongdoer is society. Society, through all of its consumers, producers, governments, laws, courts, and economic institutions, perpetrated and supported the institution of slavery.  Society, propelled by a set of values that were manifested in the laws, allowed the injury to take place and to remain uncompensated for generations.  The entire society acquiesced in the institution of slavery.  Even abolitionists must admit that they participated in the institution of slavery to the extent that  they continued to live in and enjoy the benefits of a society that sanctioned slavery.  If abolitionists, the precursor of modern- day white liberals, had decided to move their fortunes elsewhere, had not purchased the products of slave labor, or had taken a stronger stand, slavery could have been eradicated earlier.  The global fight against apartheid has demonstrated that the refusal of economic participation in a wrongful institution can result in its undoing. 

Because society perpetuated and benefitted from the institution of slavery, all of society must pay.  Society, unlike individuals, does not have a natural life.  The society that committed the wrong is still thriving.  In a sense, reparationists would analogize society to a trustee who holds the corpus of the trust-the benefit society derived from slave labor during slavery and since emancipation-and would view African Americans as the beneficiaries of the trust who are entitled to trace the assets of the trust in whatever form they can be found.  Treating society as the wrongdoer necessarily includes the injured parties in the classification of wrongdoer.  If society pays, it will do so at least in part with tax dollars, and African Americans pay taxes. There is a ring of propriety in having African Americans share in the benefits and burdens.  Opponents of reparations are quick to point out that Africans participated in the slave trade and African Americans owned slaves.  The truth in these statements cannot be rebutted.  Vincent Verdun, from the prologue, is an injured party, because he was deprived of his rightful inheritance because his great-great-great grandmother was a slave. On the other hand, his great- great-great grandfather was a slave owner; before he emancipated the mother of his children, he owned her.  Records indicate that at the time slaves were emancipated, Romain Verdun owned twenty-two slaves. When society is identified as the wrongdoer,  Vincent Verdun will pay as a member of a society that benefitted from the wrongs of the institution of slavery, and he will be compensated as a member of the injured group. 

The reparationist would therefore identify the injured party as all African Americans and identify the wrongdoer as society. Society is doing well and still reaping the benefits of slave labor.  The injured party is still injured and suffering from the consequences of the wrong.  From the African-American consciousness, the match is an obvious and simple one, and it is hard for African Americans to conceive how opponents of reparations can justify a continued refusal to right the wrong. . . . 

D.  Conclusion to Part II

One summer when I was about six, my family drove to Maine.  The highway was very straight and hot and shimmered darkly in the sun. My sister and I sat in the back seat of the Studebaker and argued about what color the road was.  I said black.  My sister said purple.  After I had successfully harangued her into admitting that it was indeed black, my father gently pointed out that my sister still saw it as purple.  I was unimpressed with the relevance of that at the time, but with the passage of years, and much more observation, I have come to see endless overheated highways as slightly more purpley than black. My sister and I will probably argue about the hue of life's roads forever. But, the lesson I learned from listening to her wild perceptions is that it really is possible to see things-even the most concrete things-simultaneously yet differently; and that seeing simultaneously yet differently is more easily done by two people than one; but that one person can get the hang of it with lots of time and effort. [Quote from Professor Patricia Williams

Undoubtedly, Professor Williams's sister's opinion about the road was not ideologically based, nor did the compromise cause the sister to displace a system of values. . . [This] Article has described two points of view on the issue of reparations to African Americans.  Each perspective is driven by values and norms that affect the perception of the evaluator.  It is not anticipated that opponents of reparations, who assume the dominant perspective, will upon reading this Article be convinced that their position is wrong.  In fact, it is not proposed that their position is wrong; it is just different-a difference that is better understood when the foundational principles on which it stands are exposed.  It is important for Professor Williams to understand that she will see black at times when her sister will see purple, and perhaps she will come to know why her sister sees purple.  That understanding births respect for the sister's point of view. Without that understanding, Professor Williams might construe her sister as frivolous, outlandish, or even silly. Opponents of reparations have been intolerant and even insulting to reparationists, evidencing an overt disrespect for their position. That intolerance was created in an Ethnocentricity Laboratory, which recognizes "one way" which is by popular  acceptance "the right way."  Opponents of reparations should understand that there are different ways of perceiving the world, and that those different perceptions, in this case the African-American consciousness, can have a profound impact on the analysis of the issue of reparations.  What is obviously right to the opponent of reparations is clearly wrong to the reparationist.  In fact, there is no universal right or universal wrong on the issue of reparations.  Understanding and respecting difference is a starting point for constructive debate, negotiations, and compromise.


Transatlantic Slave Trade
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Laws related to Slavery
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Civil War and Reconstruction
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13th Amendment
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Legal Apartheid (Jim Crow)
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Civil Rights Era
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Racial reentrenchment
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