Reconceptualizing the Harms of Discrimination: How Brown v. Board of Education Helped to Further White Supremacy

For decades, literature has played a vital role in revealing weaknesses in law. The classic novel To Kill a Mockingbird by Harper Lee is no different. The long-revered work of fiction contains several key scenes that illuminate significant gaps in the analysis of one of our most celebrated decisions: Brown v. Board of Education, the case in which the U.S. Supreme Court held that state-mandated racial segregation in public schools violated the Equal Protection Clause of the Constitution. In particular, the novel opens a pathway that enables its readers to visualize the full harms of white supremacy, which include not only the detrimental effects of experiencing discrimination for Blacks but also the dehumanizing effects of perpetrating discrimination, whether voluntarily or involuntarily, for Whites. More specifically, the book constructs a narrative from which society can begin to understand how the Brown Court defined the harms of discrimination too narrowly and, more so, how this limited understanding of the harms of discrimination—here, segregation—has unintentionally resulted in the development of anti-discrimination doctrine that is unable to lead us to true racial equality.

On Charlottesville

This year marked the first anniversary of the white supremacist rally that terrorized Charlottesville, Virginia, and the 150th anniversary of the vote to ratify the 14th Amendment to the United States Constitution. The confluence of these two commemorations offers an opportunity to draw lessons from the national resurgence of racism and nationalism that has erupted in Charlottesville and throughout the country, in light of the 14th Amendment’s still unfulfilled promise of equality. Section 1 of the 14th Amendment forbids any State to “deny to any person within its jurisdiction the equal protection of the laws” in America. Known as the “Reconstruction Amendment,” it granted citizenship to enslaved Americans and “[a]ll persons born or naturalized in the United States.” It further forbid states from lawfully discriminating against “any person within its jurisdiction.” Yet, by 1883, the United States Supreme Court had reversed congressional efforts to ensure that states would uphold equal rights for African Americans, and instead acquiesced to the segregationist interpretation that argued that constitutional equality did not mean social equality. In The Civil Rights Cases, the Supreme Court interpreted the 14th Amendment to allow racial segregation and discrimination by private actors. Then in 1896, the Supreme Court upheld the constitutionality of state laws that enforced racial segregation in public spaces, by declaring the Constitution of the United States powerless to put the “inferior” colored race on the same social plane as the white race. Thus, the Supreme Court gave legal grounding to gross inequities of the Jim Crow era and restored constitutional protection to the dehumanization of blacks. Indeed, the conviction that blacks are less than or a lesser form of human is the animating assumption that underlies and unites explicitly and implicitly racist American laws. Specifically, dehumanization undergirds explicit and implicit segregation. 

Using Charlottesville as a case study, this Article explores the theory, mechanisms, and impact of legally constructed residential segregation—the crown jewel of systemic dehumanization, both historically and contemporarily—that isolates black and white Americans from one another, withholding from the former the rights, resources, and relationships that make equality possible in America, notwithstanding the plain language and intent of the 14th Amendment. By way of introduction, the Article begins with a summary of terminology important to the theory and argument presented here. None of these terms are new to the equality discourse, but they have reappeared amid the chaos and resurgence of racism that Charlottesville now epitomizes. Therefore, rather than trust the variety of meanings that may have emerged, I will first define the terms dehumanization, white supremacy, white nationalism, racism, segregation, and racial bias before setting forth the substance of my case against current misinterpretations of the 14th Amendment.


On August 11 and 12, 2017, Charlottesville, Virginia—the home of the University of Virginia and this journal—played unwitting host to two days of white nationalist and neo-Nazi rallies and violence. For those of us in Charlottesville, those events were intensely personal and local. The white nationalists and neo-Nazis violated our physical space. They maimed and killed members of our community. They threatened the security and sense of belonging of our neighbors, colleagues, students, and friends. And they challenged the values of equality and tolerance we hold dear.

From the moment the events unfolded, it was clear that they resonated beyond Charlottesville itself. Such blatant forms of white supremacy came as a surprise to many. They preoccupied observers far flung from Charlottesville both for the violence and loss of life on display and for the stark evidence they provided of deep and enduring fault lines within our nation and our society. The intolerance and hate the white nationalists and neo-Nazis exhibited most directly and explicitly targeted Jews and African Americans, but their reach was far broader. Their intent to make vulnerable all those who do not conform to their image was potent and palpable. Moreover, the incident implicated numerous questions for the law, for politics, and for society itself. The discussions that followed engaged questions not only of race, religion, ethnicity, and nationality, but also of gender and sexuality, pluralism and tolerance, politics and civic engagement, social justice and economic opportunity, speech and violence, civility and protest and counter-protest, and more.

This symposium focuses on the racial implications and reverberations of August 11-12. The conference that produced these articles brought an annual national meeting of empirical critical race theorists to Charlottesville to train their considerable intellectual talents on the first anniversary of August 11-12. The resulting scholarship asks what we can learn from August 11-12 about the legal underpinnings of white supremacy in the United States, from the beginning of its history to the violence in 2017 and beyond. It investigates the surprise with which so many responded to August 11-12 and shows us why we should not be surprised.