Editor's note: Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College (CUNY), is the author of "Race, Law, and American Society: 1607 to Present" and the "U.S. Constitution: An African-American Context." The Founder/Director of The Law and Policy Group, Inc., she is a former civil rights attorney, and a freelance correspondent covering the U.S. Supreme Court.
By Gloria J. Browne-Marshall, Special to CNN
(CNN) –I was born into a country with immense opportunity and a deep history of racism.
Jennifer Gratz, the plaintiff in Michigan’s “reverse discrimination” case, and other opponents of affirmative action inherited this conflicted state of affairs as well. Yet, they want the great weight of America’s racial legacy to fall only on the shoulders of people of color. This inheritance belongs to all of us.
In the fall, the U.S. Supreme Court will hear the case of Abigail Fisher v. University of Texas. Then, the Court may deem affirmative action in higher education as unconstitutional, thus locking generations of people of color into an inherited inequality. In its present eviscerated state, affirmative action may be a mere bandage on the festering wound of American racism. It is neither a panacea nor a cure-all. However, for now, it is quite necessary.
Challengers of affirmative action focus on the last thirty years of alleged inequality. Unfortunately, for all of us, the seeds of racial injustice were planted centuries ago. Africans were part of the Jamestown Colony before the landing of the Mayflower. Anthony and Mary Johnson, a married African couple, with servants and land, resided in that Virginia colony in the 1600s. Before the century ended, laws were enacted to take their land and create chattel slavery. This is American history. For nearly 300 years, legal inequality subjugated people of color who lived, loved, hoped, and died praying for justice.
When slavery ended due to the efforts of Black and White abolitionists, the 14th Amendment was ratified. The 14th Amendment gave citizenship and equal protection to African-Americans whom the U.S. Supreme Court had previously designated under the Dred Scott decision as non-persons, outside the protection of American laws. The backlash was immediate. African-Americans became the object of terrorism unprecedented in American history. This malevolence by law and tradition would continue for 100 years, assuring every inch of progress would be hard fought and uncertain. Despite Black Codes designed to re-enslave African-Americans and Jim Crow segregation, the quest for equality under law remained the battle cry of people of color.
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