Civil Rights Law in Living Color
76 Pages Posted: 8 Apr 2019
Date Written: March 16, 2019
This Article examines how American civil rights law has treated “color” discrimination and differentiated it from race discrimination. It is the first scholarly work to analyze the changing legal meaning of “color” discrimination throughout American history. The Article covers views of “color” in the antebellum era; Reconstruction laws; early equal protection cases; the U.S. Census; modern civil rights statutes; and in People v. Bridgeforth, a landmark 2016 ruling by the New York Court of Appeals. First, the Article lays out the complex relationship between race and color and discusses the phenomenon of colorism—oppression based on skin color—as differentiated from racism. From a historical perspective, the Article then analyzes “color” in Reconstruction Era anti-discrimination laws, examining why both “race” and “color” were included in these laws. It illustrates that under early equal protection cases, prohibitions on “race” and “color” discrimination both aimed to curb racism. “Race” and “color” were equally important, but under the Fourteenth Amendment, “color” never developed any meaning independent of race. The Article shows how “color” disappeared from equal protection jurisprudence, just as civil rights efforts started to become successful. It discusses how modern civil rights statutes define “color” discrimination differently, focusing on colorism rather than racism. Additionally, color discrimination claims under these statutes have only applied to an individual member of one racial subclass, such as a dark-skinned Black plaintiff. However, in Bridgeforth, the Court of Appeals recognized a multiracial color class, composed of a group of dark-skinned individuals of different races, for equal protection-based Batson challenges to juror exclusion. Bridgeforth was the first case to allow Batson challenges for color discrimination, and the first color discrimination case under any law to recognize a multiracial color class. This Article considers the potential of multiracial color classes for the future of civil rights law.
Keywords: race, color, civil rights
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