When Black Rights Do Not Matter: A Historical Analysis of Civil Litigation and 'Equal Protections Under Law'.

Author:Griffen, Aaron J.


When Black lives matter, then All lives will truly matter. Until then, we as a nation will continue to function among a duality of consciousness and contradictions. This is evident by the current slate of protests that are deemed acceptable and unacceptable, depending on the audience. When Colin Kaepernick took a knee in protest of police brutality, several "patriots" claimed that his way of protesting was inappropriate. When pressed as to what would be appropriate none could answer. They could not answer because the way he protested was not the issue, the issue is that he protested at all.

Rosa Parks and several others were arrested for peacefully sitting in protest in the front of a bus. Several college students were beaten and arrested for peacefully sitting at lunch counters. Martin Luther King and several others were beaten and arrested for peacefully walking while singing "We Shall Overcome". When Kaepernick sat during the national anthem, he was asked to kneel. He did. Yet, a rendered subjectivity is found in the initial ideology of American citizenship and the perpetual question of "What does it mean to be American?" As a person of color in America, we ask "When will my citizenship be acknowledges a Black man, I ask "When will my rights matter?"


Daily, one toils with the thought of how far the United States of America has come as a nation and how far it still has to go. Would one dare to say that as a great country, the U.S. has actually digressed despite having a Black president and seeing growth as a culture? Further questions may consider why Blacks continually have to prove that we are equal to the White race. We see this in employment, industry, entertainment, and in education. Anyon (2005) shares that despite more years of education - a smaller percentage of African-American men are working now than in recent decades. Only 52% of young (aged 16 to 24) non-institutionalized, out of school Black males with high school degrees or less were employed in 2002, compared to 62% 20 years ago (p. 42). Leaving Schools (2004) point out that African American students embody 17 percent of the total U.S. population, but African American teachers represent only 6 percent of all teachers in the U.S. (as cited in Goodman and Hilton, 2010, p. 55). As of 2016, not much has changed. Whereas the number of African American teachers has improved to 7.9%, the teaching workforce is still 82% White. Furthermore, less than 2% of all teachers are African American male while African American students embody 17.8% of the student population (Toppo and Nichols, 2017).

Privilege is Not Promised

Why might this be, since education is supposed to be the "great equalizer"? Why is it that although the U.S. had its first Black president and more people of color attending college and attaining careers that it appears the country is going in the reverse? We are digressing as a culture. Despite African American women now being the most educated group and a record number of Black school leaders, there is still a wonder if the 14th Amendment applies to all citizens. The Flint Water Crisis is an example that is does not. Water like education, according to Judge Steven J. Murray is "not a fundamental right" (Fortin, 2018) - and neither is privilege.

Our national outrage or lack thereof among groups who claim a wall along the southern border is a national emergency but not the Flint Water Crises proves that privilege is not promised to everyone, but denial is guaranteed. Denial appears to be color blind while privilege has a distinct preference towards a perpetuated dominant group over others. "White privilege is like an invisible weightless knapsack of special provisions, assurances, tools, maps, guides, codebooks, passports, visas, clothes, compass, emergency gear, and blank checks (Macintosh, 1988).

What is American?

A question was asked during one of my undergraduate history classes, "What does it mean to be American... What is American?" At first, I wanted to say anyone living in North, Central or South America. However, the professor restated, "What is American Culture?" First, we defined culture as a system of social norms and beliefs. As we began to truly discuss the question, we discovered quickly that none of us could provide a definitive answer. We mentioned religion, foods, customs, beliefs, and values. We discovered that most of our foods came from Europe, Africa, Asia, or other continents and countries: hamburgers and hotdogs, Germany; spaghetti, China; pizza, Italy; and sweet potato, Africa.

It is safe to say that to this day, I cannot definitively tell anyone what it means to be American without sounding unpatriotic or bitter. Any contradiction to what counts as America through the eyes of the colonizer promotes being called "un-American". Since Kaepernick and others refuse to accept their place in America as victims of police brutality, they are un-American. As Pat Buchanan laments, "When I grew up in the 1940s and 50s, we were segregated, but we were one culture." (West, 2011). It is my belief that in order to be truly American one must experience one of two things, either privilege or denial. Thus, we develop notions of "conceptual whiteness" and "conceptual blackness" (King, 1995) that both do and do not map neatly on to biogenetic or cultural allegiances (as cited in Ladson-Billings, 1998).

Notice that I did not indicate that one must experience racism in order to be American. I stated that one must experience privilege or denial to truly be American. In a presentation at the annual American Educational Research Association conference, Deborah Loewenberg Ball discussed a concept introduced by Dan Lordy called Apprenticeship of Observation which was grounded in the Primacy of Personal Experience (2018). These concepts introduced readers and researchers to the idea that teachers (and people in general) reacted and functioned based upon their experiences. This meant that being raised and groomed in a racist, sexist society resulted in shared experiences and further perpetuations of those experiences with people who were victims of those oppressive tenets. As the 2016 Presidential Election proved, rather than address their known explicit bias, White women and poor, rural Whites would rather maintain their perception power and privilege over others even at the expense of their own personal interest.

Historical Context

We must first look at how our United States history shaped our current trajectory as a nation and a capitalistic culture, a trajectory which persistently leads to discussions about race and equality. Our "advanced ideas" about race include the racialization of multiple cultural forms (Ladson-Billings, 1988, p. 8). For this purpose, we will establish a working definition of the 14th Amendment, specifically, the Equal Protection Clause and its original purpose. Afterwards we will look at the implications and impacts of Plessy v. Ferguson, 1857, the "separate but equal" doctrine, and Brown v. Board of Education, Topeka, Kansas, 1954. One will clearly see a sampling of how the 14th Amendment and its Equal Protection Clause were used to shape and confirm the fears and perceptions of a racialized American society.

It is because of these fears and perceptions that one learns that the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment (Primary Documents in American History, 2010). The 14th Amendment to the Constitution granted citizenship to "all persons born or naturalized in the United States," which included former slaves recently freed... forbids states from denying any person, "life, liberty, or property, without due process of law"... or "equal protection of laws" (Primary Documents in American History, 2010). I found it to be most interesting that initially the amendment was ratified to protect the newly freed slaves from the southerners during their travels in and throughout the south. This was because the original constitution only extended to those citizens born in the United States. According to Historical Analysis of the Meaning of the 14th Amendments First Section by P.A. Madison,

Because former slaves were considered emancipated citizens of the United States by Lincoln's Emancipation, Congress felt it was vital to protect their fundamental rights as United States citizens under Article IV, Sec. II of the U.S. Constitution wherever they traveled within the Union (especially in the South)... Under the original Constitution, citizens of the United States were required to be first a citizen of some State - something newly emancipated citizens could not claim. This is why it was imperative for the first section to begin with a definition of citizenship so that no State could refuse recognition of newly freed slaves as U.S. citizens by withholding the right to protection of the laws in life, liberty or property in the courts as enjoyed by white citizens (2010). Fast forward to 2017, and one wonders if the Flint Water Crisis meets the definition describing the first section of the 14th Amendment. Do the residents of Flint, Michigan have the same fundamental rights of every citizen in the United States? Furthermore, are they guaranteed "protection under law" from harm? The failure of the U.S. Government to hold individuals accountable for the death and long-term effects of the water crisis would indicate, "No."

What one finds equally interesting is that what was meant to make a difference for Blacks was at first denied by the Supreme Court in Plessy v. Ferguson and circumvented in order to avoid segregation in Brown v. Board of Education - later used as a greater benefit for white schools and communities. According to Ladson-Billings (2009) "Desegregation often brings big dollars to a school district, which goes toward instituting new programs, creating new jobs, providing transportation...

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