Separate But (Un)Equal: Why Institutionalized Anti-Racism Is the Answer to the Never-Ending Cycle of Plessy v. Ferguson

61 Pages Posted: 24 Jan 2018

See all articles by Maureen Johnson

Maureen Johnson

University of Connecticut School of Law

Date Written: January 18, 2018


For decades, Plessy v. Ferguson has been identified as one of the worst decisions ever handed down by the Supreme Court. Yet despite universal condemnation, America still has not rid itself of the lingering effects. Institutionalized racism. Time and time again, whether through Jim Crow styled laws or other government sanctioned acts, America clings to the Plessy model of othering those who are different. This article begins by positing that America is at a crossroad, marked by the trifecta of closely-timed events in the summer of 2017: Charlottesville, the pardoning of Sherriff Joe Arpaio, and the phasing out of DACA (Deferred Action for Childhood Arrivals).

Part I of this article examines the legal and social rhetoric fueling Plessy with a focus on parallels to present day. This section includes this author’s humble rewrite of the introduction of the Plessy Supreme Court brief. Imagine how different this world would be had the Plessy Court been moved by rhetoric to hold that equal protection under the law meant just that. Part II chronicles the rise and fall of white nationalism, from Plessy to present day. This covers three main eras. The first Klan resurgence occurred in the 1920s, amidst fears that immigrants could take over America. The second uprising occurred as Plessy was struck down in Brown v. Board of Education. Jim Crow II. Confederate statutes and flags were raised on both public and private grounds to make clear to African-Americans that but for that unfortunate loss in the Civil War, they might still be slaves. The most recent Klan resurgence is well documented and triggered by what has been described as the “ultimate affront” to white nationalists: the election of Barak Obama, our first African-American president.

Part III looks to the future. The antidote to institutionalized racism, is institutionalized anti-racism. Put differently, America needs to take concrete actions demonstrating our collective commitment to toppling the caste system that has kept many people of color impoverished and imprisoned. This section begins by examining how prejudice is fostered, including considering recent scholarship regarding neurorhetoric and the addictive nature of racism. No child is born a racist. The true lesson of Plessy is that the effects of institutionalized racism last for generations, and they even linger past lip-service reversal. Children don’t just watch what we say; children watch what we do. This section ends with a letter to a reader a hundred years from now trying to make sense of our laws and judicial decisions in the same manner that we scratch our heads and try to understand Plessy. Like Justice Harlan’s dissent, it’s a prophecy that today’s institutional racism will be seen by future generations as just as illogical and “pernicious” as Plessy.

While it may have been impossible to change Plessy’s result when decided, it certainly is possible now. Judicial advocates are particularly poised to reframe and permanently eradicate the notion that othering is constitutionally acceptable and instead create a world where every child is appreciated for their differences, while at the same time afforded equal opportunity to the next.

Suggested Citation

Johnson, Maureen, Separate But (Un)Equal: Why Institutionalized Anti-Racism Is the Answer to the Never-Ending Cycle of Plessy v. Ferguson (January 18, 2018). 52 University of Richmond Law Review 327 (2018), Loyola Law School, Los Angeles Legal Studies Research Paper No. 2018-03, Available at SSRN:

Maureen Johnson (Contact Author)

University of Connecticut School of Law ( email )

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