This article titled ‘Racial Discrimination-a hurdle?’ is written by Nilanjana Banerjee and aims to discuss discrimination on the basis of race and restricts it to the contest of the US. I. Introduction Inequality exists everywhere, perhaps it is the everydayness of inequality that makes it look like it is justified. There are numerous basis of such inequality like religion,… Read More »

This article titled ‘Racial Discrimination-a hurdle?’ is written by Nilanjana Banerjee and aims to discuss discrimination on the basis of race and restricts it to the contest of the US. I. Introduction Inequality exists everywhere, perhaps it is the everydayness of inequality that makes it look like it is justified. There are numerous basis of such inequality like religion, gender, caste, race, class etc. The inequalities as we see around us are not any random assortments, they...

This article titled ‘Racial Discrimination-a hurdle?’ is written by Nilanjana Banerjee and aims to discuss discrimination on the basis of race and restricts it to the contest of the US.

I. Introduction

Inequality exists everywhere, perhaps it is the everydayness of inequality that makes it look like it is justified. There are numerous basis of such inequality like religion, gender, caste, race, class etc. The inequalities as we see around us are not any random assortments, they are organised and they hold some reason. The reason can be prejudiced opinions about the other community.

There exists an Us v Them, i.e. a continuous rivalry to prove better than the other community. One among many forms of inequality is racial discrimination which has been continuing for centuries in the US. The blacks are considered inferior to the whites and in many instances, they are deprived of the opportunities in field of job, education, healthcare etc. Moreover, the police’s treatment of the arrested person is also determined by race. It is violative of the equal protection clause of the 14th Amendment to the US constitution.

II. Racial discrimination in the US

Racial discrimination is treating someone unequally/unfavourably because such person is of any particular race or ethnic origin. It can be because such a person has some characteristics (like skin colour, facial features, behaviour) which resemble persons of other races. It is also called colour discrimination.

Generally, white Americans try to dominate African Americans. It can take the form of paying less, not providing employee benefits, restricting promotions, firing at small negligible issues in workplaces. While in social gatherings, it can look like passing derogatory remarks, teasing, creating a hostile environment.

With changing times, things have gotten better but racial discrimination is not completely eroded. The African Americans have now been more optimistic about the success their hard work will be bringing in. This optimism is again greater when it is the success of the next generation.

Racial discrimination has posed a challenge to the US. There are several examples of racial discrimination like boxer Muhammad Ali had to face discrimination in his life despite being a successful sportsperson and working for a country.

Then former President, Barack Obama. He was asked for his identity proof to make sure that he is American enough to be the President. The common public is a victim of racial discrimination and such incidents are unending. But what garnered attention is the George Floyd case, which showed that the treatment of police officers vary based on the offender’s race.

Racial discrimination is not the only issue. There is another dimension to it and i.e. slavery. For centuries Black people have been enslaved and made to work in inhumane situations. The work extracted from the slaves is estimated to be around $14 trillion. They are made to do various tasks including ploughing- sowing- harvesting-packaging, cleaning houses, working as factory labourers, driving carts, wagons etc.

The Fugitive Slaves act of 1793 and 1850, came to aid the slaveholders when the enslaved black people tried to escape. The act used to fine those officials who did not re-arrest the escaped slaves. If recaptured, the slaves faced brutal repercussions.

The US Constitution of 1789 did not talk about slavery explicitly but directly- indirectly the matter was referred to several times. The racial system and slavery seemed justified by white supremacist theory, which believed that African descents were inferior to the whites. Even the Supreme Court had validated the black inferiority in the case of Dred Scott v. Sandford.[1] This case of 1857, said that the African slaves and their descendants cannot be said to be US citizens. They were deemed to be unfit to associate with whites and participate in day to day activities.

Slavery was abolished in 1863 by the 13th Amendment to US Constitution.[2] It was considered a step closer to bringing equality, but this amendment did not liberate the slaves. The legal lacunae in the amendment brought back a slavery-like situation.

‘New Slavery’ began with the black codes and it returned the freed labourers to a condition resembling slavery. Thereafter in 1866, Civil Rights Act was introduced which provides that all persons born in the US are citizens and they will enjoy all those rights which the white citizens do. To validate this, the fourteenth amendment was proposed. (it will be discussed subsequently)

III. The journey from Plessy to Brown

There are several landmark cases on racial discrimination-

1. Plessy v. Ferguson[3]

The state of Louisiana had made a law of ‘separate but equal’ doctrine, wherein it was laid down that the blacks and the whites will have separate train coaches for accommodation. If not, there shall be a partition separating the accommodation. However, arrangements for both races have to be equal. This case stems from an 1892 incident, where an African American bought a ticket to an all-white coach. He had described himself as 1/8th African blood.

The conductor asked him to take a seat in the blacks all compartment. He refused and resisted. On this, he was arrested and thereafter jailed too. He was charged with violation of the ‘separate but equal’ clause.

In May 1896, the Supreme Court declared its judgement wherein the court upheld the constitutionality of separate but equal doctrine. Justice Henry Billings Brown concluded that the concerned law was a reasonable statute. He added that the 14th Amendment aimed at bringing political equality, not social equality. He continued to say that laws that permit the separation of races do not necessarily mean the inferiority of one race to another. Such laws are constitutional and well within a competency.

Justice Harlan, in his dissenting opinion, said that- “In the view of the constitution, in the eye of the law, there is in the country no superior, dominant, ruling class of the citizens. Our constitution is colour blind, and neither knows nor tolerates classes among citizens. The law regards man as man and takes no account of his surroundings or colour.”[4]

2. Brown v. Board of Education of Topeka[5]

After the 1896 ruling of the Supreme Court in Plessy v. Ferguson around four cases came up concerning ‘separate but equal’ doctrines in school. The Jim Craw laws had constitutionally ruled that barring of whites- blacks sharing same buses, schools etc are valid and would stand so for long.

The National Association for Advancement of Coloured People was putting in efforts to challenge such laws and had filed several lawsuits. In 1951, Oliver Brown filed a suit against the Board of Education of Topeka as his daughter Linda was not allowed admission to an all-white elementary school. He claimed that there was a violation of the ‘equal protection clause’ of the 14th Amendment. When the other four cases concerning school segregation came to the court, the court combined all of them under the name of Brown v. Board of Education of Topeka.

The new chief justice, Earl Warren was selected. In 1954, he gave the decision and said that the doctrine of ‘separate but equal’ is not applicable in public education as it is ‘inherently unequal’. Warren even argued that

“Education is the most important function of the state as well as local government. It is the very foundation of good citizens, also in preparing him or her for later life. Therefore it is doubtful that any child is expected to succeed in life if he or she is denied the opportunity to education. Such a right must be made available to all on equal terms.”[6]

He was of the view that separating people of similar age groups and qualifications solely because of race factors generates a sense of inferiority and may affect their minds and heart in a way that can’t be undone. This case attempted to overturn the segregated laws but despite that, it fell short to integrate the public school of the nation. Decades after it, the debate over how to combat racial discrimination still continues.

In the Brown II decision, the court remanded the cases, so that the local courts can assess the public as well as private needs and work upon the equitable principles. Though the equal treatment principles were brought in long back they were implemented very late. The next subheading will discuss affirmative action.

IV. Affirmative actions

To promote equality, several steps were taken by the US government, like the 13th Amendment which abolished slavery, thereafter 14th Amendment which brought in equal protection clause, 15th Amendment. Additionally, there are several cases that examined the constitutionalism of race-conscious discrimination.

1. 13th Amendment[7]

The 13th amendment to US Constitution was passed on 8th September 1864 and it abolished slavery formally. It provides that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the US or any place subject to their jurisdiction.”[8]

President Lincoln said that “all persons held as a slave with any state or designated part of a state, the people whereof shall then be in rebellion against the US, shall be then, thenceforward, and forever free.”[9] This was passed at the end of the civil war and before the Southern states had been restored. The trio of 13th, 14th, 15th amendments immensely expanded the civil rights of America.

2. 14th Amendment

The 14th amendment granted citizenship, equal civil and legal rights to African Americans. This is called the reconstruction amendment which prohibited the states from depriving any individual of their right to life, liberty except for the due process of law[10].

There are five sections to 14th Amendment. The first section clearly repudiates Dred Scott’s decision which validated racial discrimination. The second section clarified that every person irrespective of the race shall be counted as one whole person, while the third section mandates oath-taking as a requisite to hold public offices. Section four had banned payments to enslavers for their loss of enslaved people. And the fifth section of the amendment is the enforcement clause.

3. 15th Amendment

It aims to safeguard the voting rights of African Americans[11]. Despite the passing of this amendment, discriminatory practices prohibited blacks from voting. It was only after the voting rights act 1965 that the discriminatory practices were outlawed and the 15th amendment actually got enforced.

4. California v. Bakke[12]

The University of California reserved 16 out of 100 seats for minorities (including blacks). The applicant Bakke (a white) was twice denied admission despite the fact that his marks were higher than some of those students who got admitted. To this, the Supreme Court ruled that considering race only as a basis for admission into the university is violative of the equal protection clause. No candidate should be rejected (due to race) in favour of those who are less qualified. Considering race as a basis for distinction is justified only when there are other reasonable causes too. This shows that efforts are still being made to eliminate racial discrimination even if against whites.

V. Conclusion

Eliminating discrimination is never an easy process. The community at the privileged position will be less willing to give up their position and benefits. Similar is the case of the US, where mostly the whites dominate the blacks and deprive them of their basic rights. But the situation is not as it was earlier. After legal sanctions, the condition of blacks have improved and now they enjoy legal rights. Constitutional amendments like the 13th, 14th, 15th Amendments aimed towards improving the situation. Even the judiciary has tried to work on the system by giving decisions against racial discrimination. In this way, the situation is improving and it is no more a hurdle as it was earlier.


[1] 60 US. 393 (1857).

[2] U.S. CONST. Amend XIII.

[3] 163 U.S. 537 (1896).

[4] Id.

[5] 347 U.S. 483 (1954).

[6] Id.

[7] US CONST. Amend. XIII.

[8] Id.

[9] Id.

[10] U.S. CONST. Amend. XIV.

[11] U.S. CONST. Amend XV.

[12] 438 U.S. 265 (1978).

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 22 Sep 2021 6:27 AM GMT
Nilanjana Banerjee

Nilanjana Banerjee

National University of Study and Research in Law Ranchi

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