Here is a little(big) paper I wrote in my Fall 2015 semester on the effects of law on race, ranging from slavery to current colorblind trends.
Law and Stratification: The Colorblind Effect
Socioeconomic status has long separated people from one another. This status is easily recognized to have racial tendencies that separate one race from another, one doing better than another, and so forth. In recent times an effort to de-segregate our society via housing, schools, and work places has been met with a new kind of issue: color blind racism. By outwardly stating that race doesn’t have anything to do with our social problems and refusing to recognize the stratification of people by race, issues such as poor families not having good schooling options for their children or safe and stable housing become glossed over. This form of discrimination has been called the New Jim Crow, as many of the practices are upheld by active laws.
Slavery of one race by another without a doubt occurred in this country, there is no denying that. Going back to the country’s inception, people of color, namely black people, were considered property (Heitzeg 59). This, of course, means they were under ownership of another being that would have been white. Their slave status was confirmed by the Three Fifths clause, stating that for every five slaves, they could be counted as three free people for tax and census purposes (Heitzeg 58). To go from not even being considered a whole person to being granted “free” status does not change a population’s opinions and actions overnight. As Heitzeg puts it, this makes “future inclusion a daunting challenge” (Heizeg, 59). One race, namely the African race, was scooped up and shipped over to serve in a world where their language and culture was not understood and would see little to no effort to try; if you can breathe, you can work (Alexander 24). By this mindset, intelligence was considered lacking. Already the people of color have been left in the dust by mere assumption. Also, if they had any mind to them, they could fight against what was happening to them and plan a revolt. Luckily the slave owners were far more ignorant than they believed themselves to be, as blacks did in fact understand what was happening to them and that it was wrong, and they stood up. They ran to freedom and educated themselves, and enabled the freedom of their fellows. As we know, Abraham Lincoln would officially free the slaves from servitude and make them full citizens, but one law cannot turn around an entire nation.
The 1866 Civil Rights Act stated that any citizen whether previously enslaved or not was given “full and equal benefit of all laws and proceedings for the security of person and property” (Burnham 690). The only catch is that people who have been convicted of a crime do not fall under these rights, and are typically punished by forcible stay and labor for a determined amount of time. And what crime did every person of color commit? Not being white. African Americans as a whole had only just been released from an unwilling state that split the country in half. Half of the country, most likely more, still operated under racially stratifying terms. Lawyers, judges, governors, mayors, police, teachers, and a smorgasbord of potential employers did not all wake up on the day of the 1866 Civil Rights Act or Lincoln’s Emancipation Proclamation and decide to no longer racially discriminate. In fact, many of them worked to remain racially stratified.
Fredrick Douglas stated “there is no escaping ‘the general disposition in this country to impute crime to color’” (Heitzeg 61). It surely was easy enough to switch from catching slaves to catching convicts. Plantations became prisons and slave patrols became police (Heitzeg 61). The easiest way to catch convicts was to look for a commonality, and then determine it illegal and again scoop up those who fit the bill. These are the black codes and vagrancy laws, stating “ ‘all free negroes and mulattoes over the age of eighteen’ must have written proof of a job at the beginning of every year” to avoid being arrested and convicted of vagrancy (Alexander 28). After being freed from slavery and working on the plantations, the newly freed had nowhere to go, nowhere to live, and nowhere to work. Many just roamed in hopes of finding work and shelter. And as we all know, having people wandering around your town just doesn’t look good, and the fact that you previously enslaved them doesn’t help much either. The plantation economy took a large hit when slaves became free, because they certainly weren’t going to carry on as they were before. Whites saw blacks as not having the “proper motivation to work”, because apparently their previous motivation was fear of being beaten or killed and that would be the only thing to get them motivated again (Alexander 28). The black codes made easy work out of picking up wrongdoers and shipped them right back to the plantations to once again serve the plantation owners for little to no cost. During this time “prison and jail populations shifted dramatically from majority White to majority Black” and “[s]heriffs, 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” (Heitzeg 62). All was right for the majority once again: don’t give African Americans a job, call the law on them for not having a job, and force them to work for you for free as punishment. The 1866 Civil Rights Act, along with the 13th, 14th, and 15th Amendments came into being shortly after the Black Codes were established in the time known as the Reconstruction Era (Alexander 29). This time also came to pass as well, leading to a slew of new problems and crooked interpretations of the laws.
While Blacks were now technically allowed to vote and go to school, schools often would not take Blacks in and teach them skills such as reading and writing. Felony disenfranchisement laws had already existed, but now were expanded to exclude people who were arrested and charged with any offense. Felony disenfranchisement laws kept prior convicts from the right to vote, and voting requirements such as “literacy tests, poll taxes, grandfather clauses and ultimately, the threat of white terror” pushed them further away from the voting polls (Heitzeg 63). Some African Americans had made their way out of this disenfranchisement and even made their way to being a name on the ballot, but with their biggest supporters, their fellow Black men, unable to support them, they remained outnumbered in political seats. However, the Populist movement began to gain speed when it targeted the Conservative party and stood up for the low income class, who was made up of both Blacks and Whites (Alexander 33).
However, Jim Crow was in full swing and segregated Blacks from Whites “in virtually every sphere of life, lending sanction to a racial ostracism that extended to schools, churches, housing, jobs, restrooms, hotels, restaurants, hospitals, orphanages, prisons, funeral homes, morgues, and cemeteries” (Alexander 35). State and city legislature, being comprised mostly or completely of whites, were happy to pass laws such as these to keep their lives as separated from the Blacks as possible. But the tables would begin to turn as more Blacks moved up North to a more accepted way of life and the NAACP would come into being; this becomes the beginning of the Civil Rights Movement.
Brown vs. Board of Education is the most noted ruling of its kind to declare segregation unconstitutional. Even before that, steps were being made to desegregate after the Morrill Act of 1890 called for a separate but equal standing of the races. Separate absolutely did not constitute equal, as federal and state money could be allocated to whomever the White legislators chose. The Supreme Court ended white-only primaries, declared segregated public transport unconstitutional, and ended real estate contracts that were made to discriminate against buyers before the time of Brown vs. Board of Education, but Brown vs. Board of Education had a wider reach that required schools across the country to desegregate thousands of school children (Alexander 36). Now that White and Black children were allowed to sit together, go to school together, and become friends, they would grow up and fight together against the racism that brainwashed the nation.
In 1957 Congress realized the 1866 Civil Rights Act was no longer effective, and for the past several years had already been fighting to end the poll taxation, which was continuously turned down in the Senate (Burnham 697). Other things shot down in the Senate were fair employment and “federal support for school lunches on non-discriminatory allocation of the finds in segregated systems” (Burnham 697). While the members of Congress were voted on, the Senate had direct representatives for each state depending on their population and most supported ideals. This is an obvious issue in this era, as widespread racism in the South meant widespread racism in the Senate. The Civil Rights Act of 1957 included the infamous Part III, which would have allowed the Federal Department of Justice to hear cases of discrimination, whether direct proof of discrimination was or was not present (Burnham 702). Senators worried that allowing this act to pass would be “un-American” by allowing the army to intrude and enforce federal laws (Burnham 702). Instead, they watered down the act to another requirement of proof of discrimination (Burnham 703). As bombing and lynching continued in the South, bill after bill to provide protection and prosecution never saw the light of day, until 1960 when “three new criminal offenses aimed at the bombing problem” were created (Burnham 704). During this time, desegregation in Southern schools had been making slow progress, as only seventeen schools across the South had been desegregated by 1960 (Alexander 37). The slow progress was due to the power of the Ku Klux Klan, who was responsible for a majority of the violence towards Blacks, and had very little opposition by way of police and lawmakers. Sit-ins, peaceful protest, homes, and worship centers were met with violent backlash, but continued to press on in the fight for equal rights.
Martin Luther King Jr. is among one of the most famous men to stand up in the Civil Rights Movement against the injustice displayed towards his race, but many others also joined in to peacefully protest and boycott restaurants and public transport that continued to refuse to treat Blacks as equals. While many people conceded in the integration movement, many also harshly opposed. Martin Luther King Jr. was assassinated, as well as many other protestors and simply Black people were shot, beaten, blown up or otherwise in a desperate effort to retain a White comfort control of the nation. With the wide use of television, people looked on these instances with shock and horror at what their fellow man was capable of, and instead of joining the ranks to re-segregate, the acts were criminalized and seen for what they really were: senseless murder. President Kennedy took to the TV as well to announce his plans for a civil rights bill, but was assassinated before it made it through Congress. President Johnson came in and picked up where Kennedy left off, though it took a little over a year to produce the Civil Rights Act of 1964 (Alexander 36). The act “formally dismantled the Jim Crow system” and the subsequent Voting Rights Act of 1965 allowed for more Black participation and representation in the Federal circuit (Alexander 38).
Again racists had been foiled and their plans of permanent segregation trashed, but that did not stop them. As crime rates soared, probably from all of that KKK terrorizing, law officials began calling the Civil Rights Movement an act of “civil disobedience” that required “law and order” (Alexander 41). However, crime was correlated with a surge in male population aged 15 to 24, better known as the “baby-boomers” and a rise in unemployment for African American males as well (Alexander 41). This lead to a movement of “cracking down on crime” that led to increased police surveillance and incarceration of “high crime neighborhoods, ‘crack epidemics,’ gang proliferation, juvenile super-predators, urban unrest, school violence and more” (Alexander 43; Heitzeg 66-67). Here’s how it works: you don’t go to a neighborhood because you’re scared of the people living there, you see them as low class citizens spending their time involved in selling drugs and forming gangs, so you call the police. The police spend their time in impoverished neighborhoods, heavily canvassing them in search of nefarious activities, anything that looks mischievous gets someone landed in jail, and you no longer have to deal with the scary people in the bad neighborhood.
Nixon was a heavy supporter of the war on crime, and would eventually begin a war on drugs. But first came the TV campaigns, in which dark faces and violence flashed across the screen, linking people of color to the reason why social and political unrest was rampant throughout the country and must be brought back to order. This ad could be looked at one of two ways: either Nixon was going to save you from being battered in the streets, or Nixon thought you were the problem. Nixon, of course, pegged people of color as the problem-children of the country that must be kept in control to avoid more violence and backlash. It would all be just fine if people learned their place. However, that particular place left many people in poverty, leaning towards finding money by other means that were now becoming criminalized. And with police at every impoverished neighborhood, they were bound to see whatever they wanted to see in order to, once again, segregate the races in the newest form: mass incarceration.
After Nixon’s impeachment, President Reagan came down hard on the poverty stricken, giving a harsh picture of people doing less than you getting more than they deserve, though he failed to mention how sub-par schools in neighborhoods where living conditions were even worse lead many people to a lack in funds for healthcare and a possible escape. A surge in focusing on street crime and away from white collar crime led to the United States holding almost 30% of the world’s prisoners (Alexander 49; Heitzeg 67). An obvious perpetuation of poverty occurs when at least 1 in every 100 people are imprisoned, where children must be taken care of by a single parent or other family member, and once freed with the stamp of ex-convict, jobs become much more scarce for the people who need them (Heitzeg 68). However, the people who need them are no longer outwardly labeled as Blacks or other people of color, but just poor, bad people. Reagan posed this idea of color-blindness when his war on drugs was actually a continued war on race, as only 2% of the American population saw drugs as a highly important issue (Alexander 49). He simply kept police out on the streets looking for the people who were buying and selling drugs, and lo and behold, it was the people who needed money the most, who just so happened to be Black. While we do know that white collar crimes always end up costing the country more, they are harder to catch outright, whereas a man standing on the sidewalk is far easier to spot and scoop up. And while we know exactly what color his skin is, or is not, we don’t have to label him as anything besides a criminal. “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” (Heitzeg 70). It may not be legal to stratify people based on their race anymore, but race no longer matters; all that matters is that right and wrong are established and enforced. If living in an urban area because you cannot afford to move to the suburbs and selling something the country does not have a tax for because finding decent paying work is next to impossible is all considered wrong, and you just so happen to be Black, it’s just a silly coincidence. In 1994 Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 in an attempt to tamp out the racially charged arrests by police departments, and the by-any-means-necessary correctional practices/abuse that they dealt out (Burnham 710). While this made it unconstitutional for police to beat people senseless, it did not stop them from constant surveillance of poor neighborhoods. This color-blind idea also made it more difficult to prove when discrimination was happening, as even making distinctions of race became reprehensible. For instance, when employees found themselves discriminated against by their employers, Judge Scalia insisted that if the employers state to have paid no attention to race, then they did nothing wrong, as the “direct consideration of race” would be “genuine discrimination” (Rich 237-238).
The War on Drugs became the easiest way to stratify people, as mentioned above. Presidents saw the increase in crime rates and jumped on the anti-drug bandwagon, fully determined to clean up the streets. While Clinton signed the Violent Crime Control and Law Enforcement Act of 1994, he focused heavily on poor areas, insisting that being “tough” on crime and welfare was the answer (Alexander 56-57). Prison sentences were lengthened, welfare became stricter and was only given for up to five years, and ex-convicts were no longer allowed to apply for public housing. Public housing allows for rent prices to be paid depending on your income. However, if you have a criminal record, you are no longer allowed to live in public housing whatsoever. But don’t worry, it’s not because you’re a person of color—race doesn’t matter.
While adults are in a constant struggle for pointing out racial issues, to hiding racial issues, to choosing to live in homogenous neighborhoods, to not being able to escape from them, children are waiting in the wings to be exposed to these instances and consequences. In New York City, schools are more segregated than anywhere else in the country (Gomez-Velez 320). For decades there has been a push to make preschool available to all children for free, rather than just for parents who can afford it or who live in neighborhoods where it is available. Areas are considered for preschool programs based on the effectiveness of their schools, based on strict testing standards. These testing standards stand in place of answering why kids can’t come to school often, such as being too sick, not having clean clothes, or having to begin working as soon as possible, and instead say that there are bad teachers, lazy students, and failing schools. This method “pretends that inequality does not exist” among races, and simply shuts down schools that are deemed inefficient instead of trying to help them (Gomez-Velez 325). One way that is believed to be able to avoid poor education for a child’s lifetime is universal pre-k (Gomez-Velez 327). Funding for these programs comes from federal and state grants that must be awarded in order for proper and equal conditions and standards across the schools. However, budgets get shifted and often “poor communities tend to the shortchanged” and forgotten when the funds are passed out (Gomez-Velez 336). Again we are back to square one, where the successful (mostly white) neighborhoods and schools are funded for success, and the failing (people of color) neighborhoods and schools are left in the dust. A large difference is that one group knows they are being mistreated, and the other has no idea just how good they have it.
When asked, many white children who live in homogenous neighborhoods do not understand what race is, or that discriminating people by race is wrong—they just assume that different people are different and point it out as such. They are not specifically told that calling people names is a racist act. They learn that racism ended in the Civil Rights Movement, and everyone is exactly the same now (Lewis 24). Parents in these areas use the coded term “safe” to describe their living environment and suggest that people who claim they are discriminated against are “pulling the race card” (Lewis 19). However, when faced with an issue of race, such as a large number of minority students attending their neighborhood school, parents will without question send their children off to private schools if they can afford it (Lewis 88-89).
The term colorblindness sounds safe enough, not seeing anyone as different and treating everyone the same. However, we know better than that, and that history refuses to let us think that. African Americans were shipped over to be slaves, sold, killed, used as property, and then freed into a country that did not want them to walk alongside them. For 200 years there has been a struggle to maintain a segregated society via criminalizing and killing a race, to stating we are not criminalizing a race, but only the actions that they seem to be the only ones doing. It is incorrect to believe people of color are the only ones committing crimes, but they are more heavily incarcerated for them. And finally, when we begin to raise a new generation, they too are stuck in a racialized society that tells them they are great, or tells them they are worthless. Colorblindness teaches that none of this is actually going on, and the world is just a messed up place. While this may be true, colorblindness also perpetuates the issues at hand, while refusing to concede that maybe, just maybe, they are still deeply invested in racial stratification.
Alexander, Michelle. The new Jim Crow: Mass incarceration in the age of colorblindness. The New Press, 2012.
Burnham, Margaret. “The Long Civil Rights Act And Criminal Justice.” Boston University Law Review 95.3 (2015): 687-712.Academic Search Complete. Web. 14 Nov. 2015.
Gomez-Velez, Natalie. “Can Universal Pre-K Overcome Extreme Race And Income Segregation To Reach New York’s Neediest Children? The Importance Of Legal Infrastructure And The Limits Of The Law.” Cleveland State Law Review 63.2 (2015): 319-354. Academic Search Complete. Web. 14 Nov. 2015.
Heitzeg, Nancy A. “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.” Hamline Journal Of Public Law & Policy 36.1 (2015): 54-79.Academic Search Complete. Web. 14 Nov. 2015.
Lewis, Amanda. Race in the schoolyard: Negotiating the color line in classrooms and communities. Rutgers University Press, 2003.
Rich, Stephen M. “One Law Of Race?.” Iowa Law Review 100.1 (2014): 201-266. Academic Search Complete. Web. 14 Nov. 2015.