November 01, 2014

Saving the Dream for All: Transforming America from Jim Crow to Post-Racial

F. Michael Higginbotham

President Theodore Roosevelt once said: “The credit belongs to the man who is actually in the arena . . . [rather than to] those cold and timid souls who neither know victory nor defeat.” Those willing to examine issues of race deserve credit for their willingness to enter this most divisive of arenas. Too often today, many refuse to discuss racial topics, particularly with someone of another race. As the recent shooting of Michael Brown, a black teenager, by a white police officer in Ferguson, Missouri, and the surrounding confrontation between mostly black peaceful protestors and mostly white local law enforcement personnel indicate, it is imperative that this arena remains open for constructive dialogue.

The World of Jim Crow

I would like to enter this arena by reminding you of our repressive racial past. From the nation’s founding in 1789 to the late 1960s, Jim Crow laws provided a systematic framework that separated blacks and other racial minorities and sustained a racial hierarchy that relegated blacks to the bottom of the economic ladder. Black separation was maintained through government policies in education and housing, which perpetuated the physical separation of blacks and whites. The racial hierarchy was reinforced by practices preventing black advancement in virtually all walks of life: employment, housing, education, politics, military service, sports, and business. The pervasive separation of blacks in these areas of life directly increased the proliferation of notions of black inferiority. By the early 1950s the racial divide was rigidly maintained throughout the country by government enforcement and private acts. In this way, separation of blacks became firmly entrenched in American society. The resulting long-term racial isolation made blacks extremely susceptible to economic and political victimization.

Blacks were kept separate in order to eliminate their competition with whites and to control the perceived threat of their integration into society. Central to this method of controlling blacks was the ruling in Plessy v. Ferguson, 163 U.S. 537 (1896), introducing the harmful “separate but equal” doctrine. This infamous case, in which the U.S. Supreme Court sanctioned segregation in public accommodations, resulted in decades of blatant separation of blacks in public settings. In this way, the racial hierarchy was intensified and expanded, and segregation was given a false patina of judicial legitimacy.

Separation intensified throughout this grim period of history. Governments segregated education to isolate blacks and to continue subjugating black labor to menial jobs. Segregated educational facilities were grossly unequal, and, on the average, black schools received one-tenth the funding of white schools. Flagrant discrimination in housing saturated the United States, both in the South and in the North. Such discrimination was legally sanctioned in most states—by law, such as the Virginia statute on racial composition permitting entire areas to be restricted by race, or by policy, such as the “Baltimore idea,” whereby each residential block was designated by racial group. By 1910 Jim Crow laws maintained black housing separation, even as blacks migrated out of Southern rural areas. The housing separation persisted despite efforts to reduce it. Courts invalidated housing segregation laws in 1917, but private racial covenants, steering by real estate brokers, and redlining by commercial banks maintained black separation. As courts invalidated these practices, white flight maintained the status quo.

A Time of Change

Beginning in the mid-1950s, black and white Americans opposed to racial separation and discrimination mounted massive campaigns in protest. These efforts included the “freedom rides” to integrate interstate transportation, sit-ins to integrate restaurants, the 1963 “March on Washington” to increase employment opportunities, and the 1965 “Bloody Sunday” protest to secure voting rights. Resistance to these efforts was widespread and severe, resulting in job terminations, physical threats and beatings, and deaths. In 1965 President Lyndon B. Johnson spoke about the violence against peaceful protestors seeking equal rights:

What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause too. Because it’s not just Negroes, but really it’s all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.

President Johnson was right. We shall overcome, we must overcome, and, in many ways, as a nation, we have overcome. We have ended slavery and Jim Crow segregation with the 13th Amendment and the decision in Brown v. Board of Education, 347 U.S. 483 (1954). We have instituted anti-discrimination laws in public accommodations, voting, and housing with the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. We have implemented affirmative action programs in education and employment. Most recently, we elected and reelected our first black president, Barack Obama.

These are monumental developments in the pursuit of racial equality. Make no mistake, however, progress does not mean a post-racial world. Progress does not mean that race is no longer a significant factor in opportunities denied or hardships endured by racial minorities in our society. While the progress is clear, so are the challenges.

Today’s Challenges

There are two vastly different ways to view American racial progress today. One is captured by the picture of those closely involved in assisting Congresswoman Gabrielle Giffords after she was shot and seriously wounded in 2011. Immediately after the shooting, the white Congresswoman was comforted by her Latino legislative intern, was operated on by an Asian American surgeon, and received expressions of concern from a black president. This combination reflects the tremendous progress that has been made since the end of Jim Crow. Opportunities are available for minorities to succeed in all walks of life. There is, however, a second, less positive, way to view American racial progress. This is captured by the shocking statistical evidence indicating the ever-present and widespread socioeconomic disparities between blacks and whites. Whether one focuses on the achievement gap, employment gap, income gap, or wealth gap, each is almost as wide today as it was at the end of Jim Crow in the 1960s.

National statistics reveal that 75 percent of whites graduate from high school compared to less than 60 percent of blacks. Black students are three times as likely as white students to be suspended or expelled from school. Even though rates of usage are similar, blacks are four times as likely as whites to be arrested for possession of marijuana. The median net worth of whites is 18 times that of blacks, a wider wealth gap by race than existed in South Africa during apartheid. Blacks earn only 66 percent of what their white counterparts receive for performing the same jobs. Whites account for 98 percent of CEOs and 95 percent of top earners in Fortune 500 companies. Twenty-five percent of blacks and 40 percent of black children live in poverty, compared to 8 percent of whites and 12 percent of white children. Moreover, though blacks comprise more than 10 percent of the United States population, the Senate has only two black members. Mortality rates for blacks are substantially higher than those of whites. The life expectancy differential is five years. Even in this modern age, blacks are more likely to be undereducated, incarcerated, impoverished, and politically powerless, and they are more likely to die prematurely.

The causes of these racial disparities are widely debated and discussed. Conservative arguments tend to emphasize personal responsibility. Familiar stereotypes about intellectual, cultural, or moral failings of blacks are blamed for inequality. Inadequacies in the American legal process however, that permit or encourage false notions of white superiority and black inferiority, as well as black separation resulting in victimization, have been overlooked or diminished. Misguided judicial decisions such as Shelby County v. Holder, 570 U.S. ___ (2013), invalidating the “pre-clearance” formula of the Voting Rights Act—which required states with a history of race discrimination in voting to secure federal approval prior to changing election practices—and federal, state, and local laws, such as funding public schools through local property taxes, have played a significant role in the development and maintenance of the racial divide. Even when no racial classifications are specified, laws can play a role in reproducing inequality. While exercising personal responsibility may lessen the negative consequences on an individual level, black responsibility alone will not eliminate America’s racial disparities.

Today’s racial disparities are rooted in a long-standing paradigm dating back well before the creation of the Constitution in 1789. Discrimination and physical separation of blacks, legally and extra-legally, have become not only enmeshed in our social fabric but have prevented us from eliminating racial disparities. The paradigm is one of false beliefs of white superiority at one end and black victimization at the other, created by racial hierarchy notions and sustained by physical isolation of the races. Each part of the paradigm is interdependent on the other, and to destroy it, each aspect needs to be eradicated. Addressing only one part of the paradigm will not solve the problem. The causes of disparities have to be addressed in order for America to move to true equality for all.

Currently, there are two types of racism that prevent equality—structural racism and cultural racism. Structural racism involves policies, laws, and programs that embed inequality within the entities of our society and in so doing reinforce cultural racism, those beliefs and actions that embrace racial hierarchy and isolation. Both structural and cultural racism must be ended in order to create equality.

Four things must happen in order to destroy the racial paradigm. First, we must recognize that inequality due to racism continues. The eye cannot see what the mind does not comprehend.

Next, blacks must become empowered educationally, politically, and economically to eliminate the disparities in graduation rates, electoral representation, and employment. Legislative initiatives such as the American Jobs Act, targeting areas of super-high unemployment with job education, training, and creation programs, can help facilitate economic change. Similar legislation can be drafted to address political and educational disparities.

Blacks themselves can tackle the paradigm by valuing education and other legitimate vehicles for upward mobility. Too many black youth have turned to gangs, drugs, crime, and hopelessness. As a nation committed to equal opportunity for all, we owe these youth much more.

Finally, we must integrate and equalize schools, neighborhoods, and the criminal justice system through legislative initiatives that balance funding for education, criminalize private racial discrimination and end racial profiling, and increase diversity efforts in housing. This can be done through legislative efforts such as a constitutional amendment guaranteeing the right to education. This amendment would ensure that a higher minimum standard of education be maintained by all state governments and that facilities and services be improved to ensure compliance with that higher standard. This proposed constitutional amendment would have both substantive and symbolic benefits in the struggle for racial equality. The substantive benefits include: (a) the creation of a uniform definition of “minimally adequate education”; (b) the sanction of an enforceable right to equality in educational opportunities; and (c) the requirement of a constitutionally mandated equal-funding provision across school districts nationwide. The symbolic benefits include: (a) making education improvement part of a national conversation on increasing employment opportunities for minority youth; (b) demonstrating the correlation between increased education opportunities for minority youth and greater economic competitiveness by the United States in the global market; and (c) reminding all Americans of the centrality of universal quality public education to the efficient functioning of our American democracy.

It can also be done by legislative initiatives such as the End Racial Profiling Act, which would ban the use of race in law enforcement practices except when relevant to a particular incident. Not only does racial profiling not work as an effective tool to identify criminal activity, it undermines public perception in the belief in the neutrality of the criminal justice system.

Almost 50 years ago, the famous poet Langston Hughes wrote about Martin Luther King Jr.’s dream of a post-racial society where Americans would be judged by “the content of their character rather than the color of their skin.” Hughes concluded “Dream of Freedom” in 1964 with this unifying sentiment:

This dream today embattled,
With its back against the wall—
To save the dream for one
It must be saved for all.

No believer in that dream should give up prematurely. Tomorrow in your neighborhood, school, or place of employment, pause for a moment; watch objectively to see where race factors into your opinion. When you see a black teenager running in public, does it automatically register in your mind that he or she must be fleeing the authorities after having committed a crime? When you enter public transportation such as a bus, subway, or train car, do you seek out seating next to someone of your own race? Does your view of the quality of a neighborhood change depending upon the racial makeup of those who reside there? Do you spend more time interviewing job applicants who are members of your race than you do with other qualified applicants? Do you root for sports teams based on the racial makeup of the stars of the team?

We all need to do our own internal implicit association test. Preferences based on race have been with most of us so long that we don’t even realize we have them. If we are honest with ourselves, if we start recognizing those biases for what they are—prejudice—then maybe we can realize that dream where we are all judged by the content of our character rather than the color of our skin. As America competes globally, maybe we can stop wasting so many precious human resources at home, putting this divisive issue to rest finally, because to save the dream for one, we must save the dream for all.

F. Michael Higginbotham

F. Michael Higginbotham is the Dean Joseph Curtis Professor of Law at the University of Baltimore School of Law and the author of Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013).