Black Law (History) Matters

This article was first published in the Detroit Legal News on February 8, 2024.

A. Vince Colella

‍Moss & Colella P.C.

As we recognize the struggle and celebrate the progress of Black people in America this month, it is important to trace the evolution of landmark cases and decisions that have forged a not-so-linear path toward equality. From the Dred[ful] Scott decision in 1857 where the Supreme Court held that the rights guaranteed under the Constitution did not extend to African Americans to striking down affirmative action in education only last summer, the high court has perpetuated turbulent rather than steady progress for Black America. 

Up until the turn of the 20^th century, the Supreme Court seemed complicit in the oppression of Black people in America. In 1883, the Supreme Court struck down - - as unconstitutional - - the first Civil Rights Act of 1875.   It would be another 82 years (post reconstruction) before Congress would pass the modern Civil Rights Act of 1957. In 1896, a marginalized Black America took another blow from the Supremes when it held in Plessy v Ferguson that “segregation” is legal so long as it is “equal.” The decision did not draw protests or public outcry.  However, it sowed the seeds of division for many years to follow. 

Favorable race-based precedence gathered steam in the early to mid-1900s when the Supreme Court rendered decisions in several key cases. In Powell v Alabama, the Supreme recognized the rights of 9 young Black men accused of raping two white women, to be represented by counsel and “in some circumstances” to be informed of their Fourth Amendment rights and to confront their accusers.  A few years later, in Shelley v Kraemer, the Justices ruled that a court may not constitutionally enforce a “restrictive covenant” to prevent people of a “certain race” from owning or occupying property. These decisions and the evolving socially conscious ideology of the country’s high court finally gave way to the celebrated 1954 decision in Brown v Board of Education in Topeka reversing Plessy and holding segregation [in public education] is a denial of the “equal protection” in laws. And rounding out the “baby boomer” era, the Supreme Court issued two important decisions recognizing the rights of minorities to equal protection under the law. First, in Heart of Atlanta Hotel (1964) the court held that a motel had no right "to select its guests as it sees fit, free from governmental regulation.” Secondly, in Loving v Virginia (1967) the prohibition on interracial marriages was determined to be unconstitutional. 

However, the feeling of “one step forward and two steps back” was ever present when the Supreme Court decided Regents of University of California v Bakke in 1978. In this case, the court held that a university’s admission criteria using race as a definite and exclusive basis for an admissions decision violated the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964. The decision marked a significant setback for minorities who did not have the privileges of White applicants. However, in 2023 the Supreme Court delt a deathblow to affirmative action in education when it held in Students for Fair Admissions v Harvard that any race-based policy on admissions impermissibly violated the Constitution, a decision that will likely substantially reduce the number of minorities being admitted to colleges throughout the country.  

While not of precedential significance from a jurisprudence perspective, the fatal shooting of George Floyd poured gas on the flames of race-based bias and growing concerns over the brutal treatment of Black men in the United States. Despite the obvious nature of the crime, Americans tuned into the trial of Derek Chauvin with the anticipation of a potential miscarriage of justice.  The fear of a violent backlash prompted the deployment of military forces to Minneapolis as jurors ‘deliberated’ over a murder that the country witnessed for themselves. While the guilty verdict provided a sigh of collective relief from the public, an uncomfortable question cast a shadow over the result: “Are there two systems of justice in America; one for Whites the other for Blacks? 

In the aftermath of the trial, the George Floyd “Justice in Policing” Act was introduced into the legislature. The bill addressed a wide range of policies and issues regarding police practices and law enforcement accountability. However, the legislation did not advance in the Senate and collapsed in 2021. The failure of the Act in Congress came on the heels of the Supreme Court declining the opportunity to abolish “qualified immunity” even with the support of Clarence Thomas, who questioned the validity of the defense doctrine under the §1983.  

This month is a time for thoughtful reflection on the egregious challenges black people have faced in their quest for racial equality. While at times, it may feel as though we have made strides in the battle against systematic racism, these cases demonstrate that the law has failed, at times, to keep pace with social change. 

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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.