Why We Still Need Affirmative Action

This legal scholar says that these policies are still needed to level the playing field.

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(Special to The Root) -- Throughout the history of American law and the long struggle for civil rights, questions have consistently arisen regarding the meaning of individual rights, especially for minorities. Indeed, when the founding documents of our country were being crafted, the issues of slavery, individual freedom and property rights were widely debated.

Interestingly, while race relations have significantly improved over the course of American history, questions regarding the rights of minorities continue to play a considerable role in our society, as highlighted by the ongoing case of Fisher v. University of Texas, which the Supreme Court is set to hear in October of this year. Fisher challenges the constitutionality of the University of Texas' admissions policy, which considers race as a factor in student admissions. A decision in the case may help define the meaning of equality in America for the coming decades. Today, as we anxiously anticipate how the upcoming decision will affect America's future, it is important, as always, to look to our past.

The ongoing debate regarding the treatment and status of minorities in America can be traced back to the very founding of our country, which included an appalling history of slavery. However, despite the fact that slavery was tragically allowed to flourish during the first 80-something years of the Republic, the three Reconstruction amendments, passed between 1865 and 1870, finally provided rights that, in theory, made all American males equal.

And at first blush they appeared to be working. In the 1870 congressional election, the first election of any kind in which African-American males were allowed to vote, black voters turned out in huge numbers and elected the first three African Americans to Congress (pdf), and a total of 29 throughout the 1870s.

It seemed, finally, that black men, at least, had achieved equality in the United States. However, the hard-won freedom enjoyed by these new citizens did not last long. Southern white supremacists assumed a narrow interpretation of the rights given under the 13th, 14th and 15th amendments, which explicitly abolished slavery, provided citizenship rights and permitted black men the right to vote. But these amendments left the issue of public rights and fair treatment open to debate because of ambiguous language such as "privileges and immunities" and "equal protection."

White supremacists exploited these ambiguities by imposing local laws, such as the notoriously racist "Black Codes," which were constitutionally legal yet discriminatory toward black people, thus placing them back into a subordinated role in American society just a few years after they had ostensibly become "equal." This false version of equality was further enforced by the landmark decision of Plessy v. Ferguson (1896), in which the Supreme Court determined that blatant racial discrimination and separation under the Louisiana Separate Car Act were "equal" under the Constitution.

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The adoption of discriminatory laws, and the Plessy decision, created a dichotomy between what has become known in legal parlance as "facial equality" and true equality. Facial equality refers to equality before the law, in the eyes of the Constitution. In that ideal textual realm, blacks and whites have been equal since 1870. On its face, a convincing argument could be made that the Constitution has treated black and white citizens the same since the passing of the Reconstruction amendments. But clearly, those amendments have not always translated into true equality.

The Color of the Law

In debating the constitutionality of rights given to, and taken from, African Americans throughout the history of our country, lawyers, legal scholars and historians have debated the concept of a "colorblind Constitution." Most Americans know the term from Justice John Marshall Harlan's famous one-man dissent in Plessy v. Ferguson, in which he stated: "Our Constitution is colorblind, and neither knows nor tolerates classes among citizens." In fact, the term was used in a similar way in the decades before the Civil War by abolitionists such as William Lloyd Garrison, Wendell Phillips, Frederick Douglass and Sen. Charles Sumner.