Blackness as State Property: Valuing Critical Race Theory

Abstract

Employing the lens of Critical Race Theory, this Article posits that the Supreme Court’s unanimous decision in National College Athletics Association (“NCAA”) v. Alston is unconsciously racist and supports systemic racism. While Justice Kavanaugh’s concurring opinion expressly elaborates on the blatant inequities in compensation between the NCAA, college coaches, and college executive compared to that of the athletes, it fails to identify and protect the labor and property rights of student athletes, in particular, of young Black men who are disproportionately harmed. Consequently, white male supremacy over young Black men remains deeply embedded in our society, our economy, and in our legal system and continues to deny young Black men, even those who are gifted athletes, the power to acquire wealth.

This Article explores how the American legal system has denied Black people, specifically young Black men, the right to acquire property and thereby accumulate wealth. First, it describes how the white supremacists’ American Dream of domination over Black people supported a false narrative of white male superiority through robbing Black people of their labor and denying them property rights. Furthermore, it explores the modern enactment of white supremacy by studying how the NCAA and its member schools exploit the labor and property rights of young Black male athletes. Additionally, this Article illustrates, through the lens of Critical Race Theory, how the Court in Alston unconsciously adopts a centuries’ old legal principle of treating Blackness as state property.

This Article concludes that the legal system, especially the Supreme Court, should use Critical Race Theory when deliberating its decisions and should readdress systemic racism by prohibiting governmental sponsored exploitation of young Black men.

Keywords: NCAA v. Alston, Critical Race Theory, US Supreme Court