Abstract

Excerpted From: Vinay Harpalani, Race-consciousness and Black Humanity: Reinterpreting the Brown Footnote 11 Doll Studies, 104 Boston University Law Review 1451 (2024) (262 Footnotes) (Full Document)

This year marks the 70th anniversary of Brown v. Board of Education, but it is no basis for celebration. The anniversary comes on the heels of the U.S. Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”), where the Court reversed almost a half century of precedent and struck down race-conscious university admissions policies. SFFA was the centerpiece of a decades-long right-wing attack on race-conscious policies and ideas--one that has taken off in recent years and gained even more traction after SFFA. And in biting irony, the right-wing attack on race-consciousness has employed Brown itself as its main weapon, arguing the landmark decision stood for colorblindness.

Much has been written about Brown and the doctrinal conflicts between the anti-classification principle, which espouses colorblindness, and the anti-subordination principle, which allows race-consciousness under certain circumstances. But one aspect that is unexplored is how Brown Footnote 11 and reactions to it played a role in the Supreme Court's move away from race-consciousness. In Footnote 11, the Court cited social science evidence to establish the harm of segregation. Footnote 11 is particularly known for the famous doll studies conducted by Professor Kenneth Bancroft Clark and Dr. Mamie Phipps Clark. The Brown Court took the doll studies, which showed that young Black children prefer White dolls over Black dolls, as evidence that segregation harmed Black children by creating feelings of inferiority among them. What seems like a simple assertion, however, became a source of much debate, controversy, and misunderstanding.

This Essay examines the legacy of the Footnote 11 doll studies for both Supreme Court jurisprudence on race-consciousness and for the understanding of Black children's psychological development. The Essay brings together several areas that scholars have analyzed separately but have not connected together: (1) Footnote 11's influence in Brown and the reaction to it; (2) social science research after Brown which both replicated and reinterpreted the findings of the doll studies; (3) the Supreme Court's post-Brown transformation of the constitutional harm associated with race; and (4) use of Brown to support different theories of equal protection. Thus, the Essay evaluates both legal doctrine and social science research on race-consciousness and integrates the two. Specifically, it analyzes the conflation of stigma--external negative social meanings ascribed to race--and self-esteem--internalized feelings and assessments about oneself, including one's racial group membership. The Essay shows that in its use of the doll studies, the Brown Court conflated stigma and self-esteem by presuming that Black children's awareness of stigma automatically led them to develop low self-esteem. It argues that since Brown, facilitated in part by legitimate methodological and conceptual critiques of the doll studies, the Court has adopted a largely abstract notion of racial stigma to delegitimize all forms of race-consciousness. But the Essay offers a reinterpretation of the doll studies rooted in newer social science, which underscores the importance of race-consciousness for human development. In doing so, it rebukes the Supreme Court's erasure of race-consciousness and argues that the current attacks on it are a step backward. Ultimately, the Essay underscores the importance of race-consciousness for the full recognition of Black humanity.

Part I examines how the Supreme Court treated racial stigma in Plessy v. Ferguson. It shows how Plessy set up a “dual conundrum” for opponents of racial segregation, by rationalizing segregation through Black inferiority but positing segregation itself did not create such inferiority. Plessy rejected the idea that segregation has an external social meaning which denotes Black inferiority, which left the Brown Court to define the link between segregation and inferiority.

Part II focuses on Brown and the doll studies. It illustrates how Chief Justice Earl Warren's opinion was careful to distinguish rather than overturn Plessy, and it illustrates the role of Footnote 11 in that cautious approach. But this is also where the Brown Court conflated racial stigma (external social meaning associated with segregation) and self-esteem (internal feelings of inferiority among Black children).

Part III reviews the doll studies in detail and lays out the conceptual and methodological critiques of them. These include critiques of reliance on social science itself; flaws in experimental design; assumptions about causal relationships between doll preference, segregation, and self-esteem; and adoption of a general deficit-oriented perspective on Black experiences. Part IV lays out a reinterpretation of the doll studies, showing that they did not indicate that Black children had feelings of inferiority. Rather, the studies illustrated that preference for Whiteness is part of the children's emerging race-consciousness. This Part argues that in a society where Whiteness is the most valued racial status, preference for White dolls is part of the normal cognitive development of Black children. But later studies showed that preference behavior does not indicate low self-esteem, and that preference shifts as children's race-consciousness develops further.

Part V examines the Supreme Court's race jurisprudence in the aftermath of Brown, focusing on the how the Court transformed the nature of the harm articulated through Footnote 11. It argues that while the Court and legal scholars have unequivocally embraced Brown's ruling, they have rejected Chief Justice Warren's legal reasoning and particularly the much-maligned Footnote 11. This created a void in defining the harm associated with segregation. The Court replaced Brown's notion of tangible harm to Black children with an abstract “stigmatic” harm attributed to all racial classifications--thus rejecting race-consciousness altogether.

Part VI focuses on race-conscious university admissions--particularly SFFA. It illustrates that SFFA was the culmination in redefining the harm articulated in Brown, to reflect a colorblind ideal and reject race-consciousness. It lays out how the SFFA majority and concurring opinions defined all race-consciousness and even racial categories alone as stereotyping, without articulating tangible harms or effects. This Part also shows how the various SFFA opinions used the language of Brown, including that associated with Footnote 11, in ways that deviated from the original opinion.

The Conclusion comes back to the doll studies and their reinterpretation. It argues that in shunning race-consciousness, the Supreme Court voided consideration of an important and unavoidable aspect of cognitive and social development, going against Brown's mandate. And it contends that the ultimate lesson of the doll studies is that the acknowledgement and understanding of race-consciousness is necessary for full recognition of Black humanity.

[. . .]

This Essay has examined the legacy of the Brown Footnote 11 doll studies: their influence, flaws, reinterpretation, and effect on post-Brown equal protection jurisprudence. The flaws of the doll studies left a void in defining the constitutional harm to be remedied by race-based equal protection, and over time, this void was filled by transforming the harm from a tangible entity with real world effects to an abstract, stigmatic notion divorced from real world consequences. SFFA v. Harvard was a culmination of that jurisprudence--a trend that has recast Brown in terms of “rules” rather than “realities” of race. Consequently, in the Supreme Court's jurisprudence, Brown has gone from a call for justice to put an end to the dehumanization of Black people to a formal bar on using race-consciousness to address that same dehumanization.

But the reinterpretation of the doll studies offers a look at the true mandate of Brown: “[A] comprehensive equality expressive of the lived reality of common humanity. That mandate is radical because it requires disengaging from, healing from, and coming to grips with ... practices and beliefs grounded on Black inferiority and White supremacy.” The Clarks' doll studies were essentially correct about the most important point: Black children learn early on that their race confers an inferior status within American society. And the reinterpretation of Kenneth and Mamie Clark's findings underscored that race-consciousness is an unavoidable facet of identity development for Black children, who do not have the privilege of ignoring their race. Whether it be through Justice Harlan's candid articulation of social meaning of segregation or through the doll studies' demonstration of young children's perception of racism, law should reflect the reality of human experience. And although the Brown Court erred in its interpretation of the doll studies, the SFFA Court commits the far greater error by erasing race-consciousness from that experience.

Even with their shortcomings, the doll studies exemplified Brown's promise on many levels. They demonstrated the contributions of social scientists to the desegregation effort. They were a part of the widespread social movement that was necessary to break down Jim Crow segregation, an undertaking that inspired future mass social justice efforts, such as Black Lives Matter. And reinterpreted, together with subsequent studies, they ultimately demonstrated that race-consciousness is unavoidable because of encounters with racism, but that Black children are resilient and can still maintain a positive sense of self.

The doll studies also showed that law can be created far beyond its doctrinal and textual boundaries. At its core, law is a human endeavor with a social and a moral imperative. By emphasizing the vulnerability of young, innocent children, Footnote 11 presented segregation as a moral dilemma, not just a legal question. Whatever the flaws in its interpretation, the simple demonstration that Black children, at such a young age, are visibly affected by racism, brought a human element to the desegregation effort that no amount of legal reasoning or analysis could have produced. And in a world where Black people have often been viewed as a “problem,” the greatest legacy of the Clarks' doll studies is their very recognition of Black humanity.

Vinay Harpalani, Don L. & Mabel F. Dickason Endowed Chair in Law and Professor of Law, University of New Mexico School of Law. Visiting Professor, Boston University School of Law (Spring 2024). J.D., New York University School of Law, 2009; Ph.D., University of Pennsylvania, 2005.