law and justice essay a level

A Level Law Review

Justice and the law

Completing the jigsaw: rules of the tort of negligence

Exploring perspectives on the concept of justice and its application in the English legal system

• Volume 17, 2021/ 2022
• Nature of law
• Law and justice

Hannah Eldridge

This article is relevant to AQA Papers 1 and 3 and OCR Component 3.

What is justice? It is a difficult concept to define as people have different perspectives on what constitutes justice. The interpretation of the term therefore depends on a value judgment. While one of the fundamental principles of law is that justice should be achieved, whether it has or not comes down to individual opinion.

A simple interpretation of the word justice is ‘fairness’. The law should be fair in how it treats all members of society in a democracy. It should apply equally to everyone, irrespective of their status or wealth.

There are many theories and perspectives on justice. The philosopher Chaïm Perelman stated that justice requires ‘the equal treatment of beings who are essentially alike’. In common with other theorists, he saw equality as being at the heart of justice, but that did not necessarily mean that justice required all people to be treated in the same way.

Theories of justice

Natural law theory

Natural law theorists believe that the rules of right and wrong are inherent in people and are not created by societal norms or judges. The Greek philosopher Aristotle argued that a just state will distribute its wealth on the basis of merit, giving to each according to their virtue and their contribution to society. He believed that the people who are the worthiest or most deserving should receive the greatest share of resources. He thought that it would be unfair to allocate resources on the basis of people’s needs, as it would reward the lazy as much as the hard-working.

You could consider how this would apply in today’s society with a welfare state that pays for healthcare and care for the elderly, as well as legal aid for those on low incomes.

Positivist theory

Positivist theory is a view that law is a social construction and that rules or laws are valid because they are enacted by legitimate authority and are accepted by society. Thomas Hobbes argued that ‘it is improbable for any statute to be unjust.’ Statutes (Acts of Parliament) are democratic because they are made by an elected parliament and can be seen as just because the law is made by a sovereign body and goes through many checks and debates before being enacted.

However, many statutes are outdated, for example the Offences Against the Person Act 1861. When the law was written, bodily harm was understood to mean physical harm, but the law now recognises that it can include psychiatric harm. Judges have interpreted the law to fit with contemporary conditions in modern society but it could be argued that outdated laws should be amended by Parliament rather than leaving judges to make sense of them.

Another criticism of positivist theory is that unjust laws are considered valid simply because they have been made according to the established legislative process, regardless of their content. This was an issue raised in the famous Hart-Fuller debate over the validity of unjust Nazi laws. Fuller took a natural law perspective, whereas Hart argued a positivist viewpoint on the issue.

Utilitarian theory

Jeremy Bentham developed a theory of utilitarianism according to which the more an action increases overall happiness, the more valuable it is. This theory sees maximising happiness in society as the main objective when trying to achieve justice. However, this theory could be seen as unjust if the overall happiness of society takes priority over that of the individual.

Procedural justice

In any legal system, there are two important forms of justice: procedural and substantive justice. Procedural justice (sometimes referred to as formal justice) means that procedures and systems are put in place to ensure that justice is achieved. There should be a legal framework in place so that all members of society are equal before the law. If these procedures are in place and are used effectively then there is said to be procedural justice. In the UK, there are many legal institutions, such as the police, courts, judiciary, juries and appeals systems, that provide a structure in which justice can be achieved.

Procedural justice can also be seen in rules securing the right to a fair trial and the rule relating to trial by jury. At the heart of the criminal trial is the presumption of innocence, which acts to protect defendants and places the burden on the prosecution to establish the case beyond reasonable doubt. Juries are randomly selected members of the public who, to ensure a fair trial, have no link to or personal knowledge of anyone involved in the case.

However, there are criticisms of the jury system, such as the fact that a jury may be influenced by media pressure and make perverse decisions that go against the law. If a jury reaches a verdict based on bias, then justice has not been achieved.

Procedural injustice and Stephen Lawrence

In 1993, Stephen Lawrence was stabbed to death in a racially motivated attack in London. The subsequent police investigation led to an inquiry and the McPherson Report being published. In this report, it was found that the family of Stephen Lawrence did not achieve justice due to police failures during the investigation. It was not until 2012 that two of the five suspects were convicted of murder. The report was critical of how the Metropolitan Police investigated the murder, stating that they were ‘institutionally racist’.

Substantive justice

Substantive justice refers to the fairness of the law itself and its outcomes, rather than the processes and systems that surround it. You could look at any area of law (contract law, tort law, criminal law or human rights) and explore whether a specific law achieves substantive justice.

Criminal law

In criminal law, it could be argued that strict liability offences do not achieve justice (see pp. 16–17). A strict liability offence is one where the defendant can be found guilty if they commit the actus reus of the offence without proof of mens rea. Examples include many road traffic offences such as speeding, the sale of cigarettes and alcohol to minors, and pollution offences. The danger with such offences is that the defendant could be liable even when they are not at fault, as seen in the case of Harrow London Borough Council v Shah (1999) where a lottery ticket was sold to someone who looked 16 but was underaged.

Criminal law provides defendants with a range of possible defences. It recognises the fact that a person may not always be at fault. The Coroners and Justice Act 2009 created a defence of loss of control for the crime of murder. This is a partial defence which, if successful, reduces murder to manslaughter. The defence recognises that a defendant may have been so angry and distressed that their actions resulted in murder. While the defendant may not be fully to blame, is it morally right and just that we allow a defence to someone who cannot exercise self-control? It could be seen to reduce the seriousness of a killing and therefore create injustice for the victim’s family.

Law of tort

In the law of tort, Rylands v Fletcher (1868) has been considered a strict liability tort, meaning that the defendant is liable even if they did not know the danger. This can be seen as unfair on a defendant who is taking all reasonable care to prevent a danger. However, the result of Cambridge Water v Eastern Counties Leather (1992) means that defendants will only be liable where the damage is reasonably foreseeable. The potential unfairness to the defendant is further reduced by the availability of defences, such as an act of God.

Distributive justice

Many theorists have written about the concept of distributive justice, which means that the law should provide justice for all. In other words, justice should be distributed equally, regardless of class, age, gender and race.

Karl Marx believed that in a capitalist society, all laws are unjust. He argued that the law was used to protect and benefit the ruling class rather than the interest of all people in society. Marx believed that justice could be achieved with the redistribution of wealth from the rich (the bourgeoisie) to the working class (the proletariat). There are many examples that support Marx’s theory that law perpetuates inequality. One example is access to justice and legal representation. The wealthy in society are able to pay for the fees of a more senior and experienced lawyer (solicitor or barrister) to advise and represent them.

However, in order to achieve justice, there should be ‘equality of arms’ within the law, meaning that parties should be on an equal footing. It is difficult to see how this could occur in a case where an individual is involved with larger organisations or businesses. A claimant suing for negligence is unlikely to be able to afford the same level of legal counsel as a large corporation. Therefore, the parties are not on an equal footing from the start. An example of this imbalance can be seen in the ‘McLibel’ case ( Steel and Morris v UK, 2001).

Justice can be achieved by the duty solicitor scheme in England and Wales, which allows anyone who is arrested to have access to a solicitor at the police station for free. This ensures that a suspect has legal advice before and during police questioning. This right has been reduced in recent years, as many duty solicitors provide advice over the telephone as opposed to in person.

Distributive justice is often not achieved for people from minority ethnic backgrounds. This is supported by data on stop-and-search powers, which show that a person is nine times more likely to be stopped and searched if they are black. We have already discussed the killing of Stephen Lawrence and the failures in the murder investigation, but this highlights the fact that there is inequality and injustice in the criminal justice system. It could be argued that a predominantly white judiciary lacks the diversity needed to address the issue of racial inequality.

Corrective justice

Corrective justice focuses on the law providing a fair remedy. In criminal law, this is achieved through sentencing, whereas in civil law, this is achieved by paying the claimant damages or awarding some other remedy.

In criminal law, the most dangerous offenders receive a custodial sentence. If someone is convicted of murder, they must receive a life sentence in order to protect society. Life imprisonment sends out a deterrent message that murderers will face severe punishment, and it also provides justice to the victim’s family, who will know that the offender is being punished.

Corrective justice is undermined if the offender reoffends or does not serve a fair prison sentence. Current reoffending rates for those released from prison are high, which implies that an offender’s behaviour will not change if they do not serve a fair sentence. Prison is also expensive and on average costs the state £40,000 a year for an adult offender. The UK has one of the highest prison populations in Europe, which could mean that offenders are kept in prison for an unjust length of time.

When writing an essay on law and justice, you can use any examples of justice or injustice that you have studied during your course. There are many examples you can draw upon from the English legal system, as well as areas of criminal, tort, contract and human rights law. You will need to discuss the extent to which they achieve justice.

Discuss at least two theories and theorists. There is no need to discuss all of the theories of justice in great detail.

In civil law, the award of damages is a key remedy. The financial compensation is a recognition of the harm and injury the defendant has caused and is a form of corrective justice, as it provides a remedy to the claimant. This is problematic however, as there is no legal aid available for most claims in tort law, and claims for damages are generally brought using a ‘no win, no fee’ agreement. These agreements can be seen as unjust, as solicitors will take a percentage of any damages awarded and usually only take cases that they are likely to win, which is a disadvantage to those unable to pay for their own legal representation. Further injustice may be caused if a person is awarded damages by the court but the defendant has no funds to pay those damages.

Hannah Eldridge is an experienced senior examiner and has taught law in a sixth form college in Norfolk for 17 years.

There are different theories and perspectives on justice:

■ Substantive justice refers to the content of the law and its outcomes.

■ Procedural justice refers to the processes and systems that accompany the law and legal system.

■ Utilitarian theory measures justice in terms of whether something maximises the happiness of the greatest number of people.

■ Distributive justice considers whether benefits and rewards are distributed fairly across society.

■ Corrective justice is concerned with addressing unfairness e.g. through sentencing in criminal law or the award of a remedy in civil law.

PRACTICE EXAM QUESTIONS

English legal system and criminal law

Use these questions to help you prepare for AQA Paper 1

1 In criminal law, which one of the following elements is not part of the gross negligence manslaughter offence?

a Duty of care

b Breach of the duty of care

c The Church test for dangerous acts

d The risk-of-death objective test

2 In criminal law, which one of the following statements about attempts is false?

a A defendant’s belief that they are engaged in a criminal offence will not support liability for an attempt of an offence that is factually or legally impossible to commit.

b A defendant’s belief that they are engaged in a criminal offence will support liability for an attempt of an offence that is factually or legally impossible to commit.

c Attempting to commit an offence that is factually or legally impossible is recognised by s.1(2) and s.1(3) of the Criminal Attempts Act 1981.

d The case of R v Shivpuri (1986) illustrates the importance of belief for establishing an attempt to commit an offence that is factually or legally impossible under s.1(3) of the Criminal Attempts Act 1981.

3 In criminal law, which one of the following elements is not part of the actus reus of the offence of murder?

a The killing takes place under the king or queen’s peace.

b The victim is a ‘reasonable creature in being’.

c The killing is unlawful.

d The victim must die within a year and a day of the commission of the offence.

4 In criminal law, which of the following options is not an element of the partial defence to murder of loss of control?

a The qualifying triggers of fear of violence and/or things said and done.

b The defendant experiencing a total loss of self-control.

c The defendant experiencing a sudden and total loss of self-control.

d An objective test to see if ‘a person of the defendant’s sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of the defendant, might have reacted in the same or similar way to the defendant’.

5 In the criminal courts, which one of the following judges will not sit in the Crown Court to hear indictable cases?

a District judge

b Circuit judge

d High Court judge

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• Created by: abbylouise
• Created on: 13-06-13 16:04

Law and justice

Intro- we assume the whole aim of law is to achieve justice…..

What is justice ? (meanings, difficulty in defining, theories)

-           Justice has many meanings

-           Oxford dictionary, ‘just conduct, fairness’

-           Lord Lloyd , difficulty defining ‘justice, whatever its precise meaning may be, is itself a moral value, that is one of the aims or purposes which man sets himself in order to attain the good   life’

Types of justice

-           Procedural - requires equality of treatment in accordance with the classification laid down by rules e.g. civil and criminal appeal processes, juries

-           Corrective - the righting of wrongs through fair remedy or punishment e.g. sentencing

Theories of justice

-          St Thomas Aquinas - the natural law theory makes the assumption that if natural law if followed the result will be justice . A law which goes against god derived law will be unjust and should not be obeyed. Some …

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What is the difference between civil and criminal law?

Explain the different types of judicial precedent., how can i revise for a-level law exams effectively.

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A Level Law: Law and Justice Essay // Law and Morality Essay

Subject: Law and legal studies

Age range: 16+

Resource type: Assessment and revision

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19 May 2019

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A Level Law online

As promised we have collected a number of resources to help A level students with their OCR A level Law exams and some of the material may be useful for AQA students

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Course information.

OCR  and AQA A Level Law are two-year courses designed to provide students with a comprehensive understanding of the English legal system and its application in society. 

Both curriculums aim to provide students with a solid understanding of the English legal system and its application in society. They cover similar areas of law, such as criminal law, tort law, and contract law. Both curriculums require students to develop their analytical, evaluative, and problem-solving skills through the study of case law, legislation, and legal commentary. Assessment is through exams at the end of the second year, which test students’ knowledge and understanding of the course content, as well as their ability to apply legal principles to hypothetical scenarios.

The Oxford, Cambridge and  A LEVEL qualification (OCR) 

The OCR A Level Law H418 specification covers a wide range of legal topics and aims to provide students with a deep understanding of the English legal system and its key areas of law. Here's a quick overview of the OCR A Level Law H418 specification which started to be taught in 2020 and was first assessed in the Summer of 2022:

Component 1A: The Legal System and Criminal Law

This component covers the following topics:

• Civil courts and other forms of dispute resolution
• Criminal courts and lay people
• Legal personnel
• Access to justice

Component 1B: Criminal Law

• Rules and theory
• General elements of criminal liability
• Fatal offences against the person
• Non-fatal offences against the person
• Offences against property
• Mental capacity defences
• General defences
• Preliminary offences
• Critical evaluation of:  non-fatal offences against the person defences: intoxication, self-defence and consent, ideas for reform

Component 2A: Law Making 

• Parliamentary law making
• Delegated legislation
• Statutory interpretation
• Judicial precedent

Component 2B:  Tort Law

• Liability in negligence
• Occupiers’ liability
• Torts connected to land
• Vicarious liability
• Critical evaluation of:  liability in negligence, occupiers’ liability, vicarious liability

Component 3A: The nature of law

• Introduction to the nature of law
• Law and morality
• Law and justice
• Law and society

Component 3B: Further Law

in this section students can choose between Contract Law and Human Rights law. However, schools and colleges  will often make this choice for students. 

Human Rights Law

• Protection of the individual’s human rights and freedoms in the UK
• Key provisions of the European Convention on Human Rights
• Human rights and English law
• Enforcement of human rights law
• Critical evaluation of human rights protection in the UK: Articles 5, 6, 8, 10 and 11 of the European Convention on Human Rights, the Human Rights Act 1998 , ideas for reform

Contract Law 

• Vitiating factors
• Critical evaluation of:  formation , contract terms , ideas for reform

The OCR A Level Law H418 specification is assessed through written exams each 2 hours long. 

All exams consist of a mixture of short answer questions and essay questions.

Overall, the OCR A Level Law H418 specification provides students with a thorough understanding of the English legal system and its key areas of law.

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The ‘Colorblindness’ Trap

How a civil rights ideal got hijacked.

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The ‘Colorblindness’ Trap: How a Civil Rights Ideal Got Hijacked

The fall of affirmative action is part of a 50-year campaign to roll back racial progress.

By Nikole Hannah-Jones

Nikole Hannah-Jones is a staff writer at the magazine and is the creator of The 1619 Project. She also teaches race and journalism at Howard University.

Anthony K. Wutoh, the provost of Howard University, was sitting at his desk last July when his phone rang. It was the new dean of the College of Medicine, and she was worried. She had received a letter from a conservative law group called the Liberty Justice Center. The letter warned that in the wake of the Supreme Court’s decision striking down affirmative action in college admissions, the school “must cease” any practices or policies that included a “racial component” and said it was notifying medical schools across the country that they must eliminate “racial discrimination” in their admissions. If Howard refused to comply, the letter threatened, the organization would sue.

Listen to this article, read by Janina Edwards

Open this article in the New York Times Audio app on iOS.

Wutoh told the dean to send him the letter and not to respond until she heard back from him. Hanging up, he sat there for a moment, still. Then he picked up the phone and called the university’s counsel: This could be a problem.

Like most university officials, Wutoh was not shocked in June when the most conservative Supreme Court in nearly a century cut affirmative action’s final thin thread. In Students for Fair Admissions v. Harvard, the court invalidated race-conscious admissions programs at Harvard and the University of North Carolina at Chapel Hill. Universities across the nation had been preparing for the ruling, trying both to assess potential liabilities and determine the best response.

But Howard is no ordinary university. Chartered by the federal government two years after the Civil War, Howard is one of about 100 historically Black colleges and universities, known as H.B.C.U.s. H.B.C.U. is an official government designation for institutions of higher learning founded from the time of slavery through the end of legal apartheid in the 1960s, mostly in the South. H.B.C.U.s were charged with educating the formerly enslaved and their descendants, who for most of this nation’s history were excluded from nearly all of its public and private colleges.

Though Howard has been open to students of all races since its founding in 1867, nearly all of its students have been Black. And so after the affirmative-action ruling, while elite, predominantly white universities fretted about how to keep their Black enrollments from shrinking, Howard (where I am a professor) and other H.B.C.U.s were planning for a potential influx of students who either could no longer get into these mostly white colleges or no longer wanted to try.

Wutoh thought it astounding that Howard — a university whose official government designation and mandate, whose entire reason for existing, is to serve a people who had been systematically excluded from higher education — could be threatened with a lawsuit if it did not ignore race when admitting students. “The fact that we have to even think about and consider what does this mean and how do we continue to fulfill our mission and fulfill the reason why we were founded as an institution and still be consistent with the ruling — I have to acknowledge that we have struggled with this,” he told me. “My broader concern is this is a concerted effort, part of an orchestrated plan to roll back many of the advances of the ’50s and ’60s. I am alarmed. It is absolutely regressive.”

Wutoh has reason to be alarmed. Conservative groups have spent the nine months since the affirmative-action ruling launching an assault on programs designed to explicitly address racial inequality across American life. They have filed a flurry of legal challenges and threatened lawsuits against race-conscious programs outside the realm of education, including diversity fellowships at law firms, a federal program to aid disadvantaged small businesses and a program to keep Black women from dying in childbirth. These conservative groups — whose names often evoke fairness and freedom and rights — are using civil rights law to claim that the Constitution requires “colorblindness” and that efforts targeted at ameliorating the suffering of descendants of slavery illegally discriminate against white people. They have co-opted both the rhetoric of colorblindness and the legal legacy of Black activism not to advance racial progress, but to stall it. Or worse, reverse it.

During the civil rights era, this country passed a series of hard-fought laws to dismantle the system of racial apartheid and to create policies and programs aimed at repairing its harms. Today this is often celebrated as the period when the nation finally triumphed over its original sin of slavery. But what this narrative obscures is that the gains of the civil rights movement were immediately met with a backlash that sought to subvert first the language and then the aims of the movement. Over the last 50 years, we have experienced a slow-moving, near-complete unwinding of the idea that this country owes anything to Black Americans for 350 years of legalized slavery and racism. But we have also undergone something far more dangerous: the dismantling of the constitutional tools for undoing racial caste in the United States.

Beginning in the 1970s, the Supreme Court began to vacillate on remedies for descendants of slavery. And for the last 30 years, the court has almost exclusively ruled in favor of white people in so-called reverse-discrimination cases while severely narrowing the possibility for racial redress for Black Americans. Often, in these decisions, the court has used colorblindness as a rationale that dismisses both the particular history of racial disadvantage and its continuing disparities.

This thinking has reached its legal apotheosis on the court led by Chief Justice John G. Roberts Jr. Starting with the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, the court found that it wasn’t the segregation of Black and Latino children that was constitutionally repugnant, but the voluntary integration plans that used race to try to remedy it. Six years later, Roberts wrote the majority opinion in Shelby v. Holder, gutting the Voting Rights Act, which had ensured that jurisdictions could no longer prevent Black Americans from voting because of their race. The act was considered one of the most successful civil rights laws in American history, but Roberts declared that its key provision was no longer needed, saying that “things have changed dramatically.” But a new study by the Brennan Center for Justice found that since the ruling, jurisdictions that were once covered by the Voting Rights Act because of their history of discrimination saw the gap in turnout between Black and white voters grow nearly twice as quickly as in other jurisdictions with similar socioeconomic profiles.

These decisions of the Roberts court laid the legal and philosophical groundwork for the recent affirmative-action case. Students for Fair Admissions v. Harvard involved two of the country’s oldest public and private universities, both of which were financed to a significant degree with the labor of the enslaved and excluded slavery’s descendants for most of their histories. In finding that affirmative action was unconstitutional, Roberts used the reasoning of Brown v. Board of Education to make the case that because “the Constitution is colorblind” and “should not permit any distinctions of law based on race or color,” race cannot be used even to help a marginalized group. Quoting the Brown ruling, Roberts argued that “the mere act of ‘separating children’” because of their race generated “ ‘a feeling of inferiority’” among students.

But in citing Brown, Roberts spoke generically of race, rarely mentioning Black people and ignoring the fact that this earlier ruling struck down segregation because race had been used to subordinate them. When Chief Justice Earl Warren wrote those words in 1954, he was not arguing that the use of race harmed Black and white children equally. The use of race in assigning students to schools, Warren wrote, referring to an earlier lower-court decision, had “a detrimental effect upon colored children” specifically, because it was “interpreted as denoting the inferiority of the Negro group.”

Roberts quickly recited in just a few paragraphs the centuries-long legacy of legal discrimination against Black Americans. Then, as if flicking so many crumbs from the table, he used the circular logic of conservative colorblindness to dispatch that past with a pithy line: “Eliminating racial discrimination means eliminating all of it.”

By erasing the context, Roberts turned colorblindness on its head, reinterpreting a concept meant to eradicate racial caste to one that works against racial justice.

Roberts did not invent this subversion of colorblindness, but his court is constitutionalizing it. While we seem to understand now how the long game of the anti-abortion movement resulted in a historically conservative Supreme Court that last year struck down Roe v. Wade, taking away what had been a constitutional right, Americans have largely failed to see that a parallel, decades-long antidemocratic racial strategy was occurring at the same time. The ramifications of the recent affirmative-action decision are clear — and they are not something so inconsequential as the complexion of elite colleges and the number of students of color who attend them: We are in the midst of a radical abandonment of a compact that the civil rights movement forged, a shared understanding that racial inequality is harmful to democracy.

The End of Slavery, and the Instant Backlash

When this country finally eliminated first slavery and then racial apartheid, it was left with a fundamental question: How does a white-majority nation, which for nearly its entire history wielded race-conscious policies and laws that oppressed and excluded Black Americans, create a society in which race no longer matters? Do we ignore race in order to eliminate its power, or do we consciously use race to undo its harms?

Our nation has never been able to resolve this tension. Race, we now believe, should not be used to harm or to advantage people, whether they are Black or white. But the belief in colorblindness in a society constructed on the codification of racial difference has always been aspirational. And so achieving it requires what can seem like a paradoxical approach: a demand that our nation pay attention to race in order, at some future point, to attain a just society. As Justice Thurgood Marshall said in a 1987 speech, “The ultimate goal is the creation of a colorblind society,” but “given the position from which America began, we still have a very long way to go.”

Racial progress in the United States has resulted from rare moments of national clarity, often following violent upheavals like the Civil War and the civil rights movement. At those times, enough white people in power embraced the idea that racial subordination is antidemocratic and so the United States must counter its legacy of racial caste not with a mandated racial neutrality or colorblindness but with sweeping race-specific laws and policies to help bring about Black equality. Yet any attempt to manufacture equality by the same means that this society manufactured inequality has faced fierce and powerful resistance.

This resistance began as soon as slavery ended. After generations of chattel slavery, four million human beings were suddenly being emancipated into a society in which they had no recognized rights or citizenship, and no land, money, education, shelter or jobs. To address this crisis, some in Congress saw in the aftermath of this nation’s deadliest war the opportunity — but also the necessity — for a second founding that would eliminate the system of racial slavery that had been its cause. These men, known as Radical Republicans, believed that making Black Americans full citizens required color-consciousness in policy — an intentional reversal of the way race had been used against Black Americans. They wanted to create a new agency called the Freedmen’s Bureau to serve “persons of African descent” or “such persons as once had been slaves” by providing educational, food and legal assistance, as well as allotments of land taken from the white-owned properties where formerly enslaved people were forced to work.

Understanding that “race” was created to force people of African descent into slavery, their arguments in Congress in favor of the Freedmen’s Bureau were not based on Black Americans’ “skin color” but rather on their condition. Standing on the Senate floor in June 1864, Senator Charles Sumner quoted from a congressional commission’s report on the conditions of freed people, saying, “We need a Freedmen’s Bureau not because these people are Negroes but because they are men who have been for generations despoiled of their rights.” Senator Lyman Trumbull, an author of the 13th Amendment, which abolished slavery, declared: “The policy of the states where slavery has existed has been to legislate in its interest. … Now, when slavery no longer exists, the policy of the government must be to legislate in the interest of freedom.” In a speech to Congress, Trumbull compelled “the people of the rebellious states” to be “as zealous and active in the passage of laws and the inauguration of measures to elevate, develop and improve the Negro as they have hitherto been to enslave and degrade him.”

But there were also the first stirrings of an argument we still hear today: that specifically aiding those who, because they were of African descent, had been treated as property for 250 years was giving them preferential treatment. Two Northern congressmen, Martin Kalbfleish, a Dutch immigrant and former Brooklyn mayor, and Anthony L. Knapp, a representative from Illinois, declared that no one would give “serious consideration” to a “bureau of Irishmen’s affairs, a bureau of Dutchmen’s affairs or one for the affairs of those of Caucasian descent generally.” So they questioned why the freedmen should “become these marked objects of special legislation, to the detriment of the unfortunate whites.” Representative Nelson Taylor bemoaned the Freedmen’s Bureau Act of 1866, which he accused of making a “distinction on account of color between two races.” He argued, “This, sir, is what I call class legislation — legislation for a particular class of the Blacks to the exclusion of all whites.”

Ultimately, the Freedmen’s Bureau bills passed, but only after language was added to provide assistance for poor white people as well. Already, at the very moment of racial slavery’s demise, we see the poison pill, the early formulation of the now-familiar arguments that helping a people who had been enslaved was somehow unfair to those who had not, that the same Constitution that permitted and protected bondage based on race now required colorblindness to undo its harms.

This logic helped preserve the status quo and infused the responses to other Reconstruction-era efforts that tried to ensure justice and equality for newly freed people. President Andrew Johnson, in vetoing the 1866 Civil Rights Act, which sought to grant automatic citizenship to four million Black people whose families for generations had been born in the United States, argued that it “proposes a discrimination against large numbers of intelligent, worthy and patriotic foreigners,” who would still be subjected to a naturalization process “in favor of the Negro.” Congress overrode Johnson’s veto, but this idea that unique efforts to address the extraordinary conditions of people who were enslaved or descended from slavery were unfair to another group who had chosen to immigrate to this country foreshadowed the arguments about Asian immigrants and their children that would be echoed 150 years later in Students for Fair Admissions.

As would become the pattern, the collective determination to redress the wrongs of slavery evaporated under opposition. Congress abolished the Freedmen’s Bureau in 1872. And just 12 years after the Civil War, white supremacists and their accommodationists brought Reconstruction to a violent end. The nation’s first experiment with race-based redress and multiracial democracy was over. In its place, the Supreme Court in Plessy v. Ferguson in 1896 ushered in the period of official racial apartheid when it determined that “the enforced separation of the races … neither abridges the privileges or immunities of the colored man … nor denies him the equal protection of the laws.” Over the next six decades, the court condoned an entire code of race law and policies designed to segregate, marginalize, exclude and subjugate descendants of slavery across every realm of American life. The last of these laws would stand until 1968, less than a decade before I was born.

Thurgood Marshall’s Path to Desegregation

In 1930, a young man named Thurgood Marshall, a native son of Baltimore, could not attend the University of Maryland’s law school, located in the city and state where his parents were taxpaying citizens. The 22-year-old should have been a shoo-in for admission. An academically gifted student, Marshall had become enamored with the Constitution after his high school principal punished him for a prank by making him read the founding document. Marshall memorized key parts of the Constitution, especially the Bill of Rights. After enrolling at Lincoln University, a prestigious Black institution, he joined the debate team and graduated with honors.

But none of that mattered. Only one thing did: Marshall was a descendant of slavery, and Black people, no matter their intellect, ambition or academic record, were barred by law from attending the University of Maryland. Marshall enrolled instead at Howard University Law School, where he studied under the brilliant Charles Hamilton Houston, whose belief that “a lawyer is either a social engineer or he’s a parasite on society” had turned the law school into the “West Point of civil rights.”

It was there that Marshall began to see the Constitution as a living document that must adapt to and address the times. He joined with Houston in crafting the strategy that would dismantle legal apartheid. After graduating as valedictorian, in one of his first cases, Marshall sued the University of Maryland. He argued that the school was violating the 14th Amendment, which granted the formerly enslaved citizenship and ensured Black Americans “equal protection under the law,” by denying Black students admission solely because of their race without providing an alternative law school for Black students. Miraculously, he won.

Nearly two decades later, Marshall stood before the Supreme Court on behalf of the NAACP Legal Defense Fund in Brown v. Board of Education, arguing that the equal-protection clause enshrined in the 14th Amendment did not abide the use of racial classifications to segregate Black students. Marshall was not merely advancing a generic argument that the Constitution commands blindness to color or race. The essential issue, the reason the 14th Amendment existed, he argued, was not just because race had served as a means of classifying people, but because race had been used to create a system to oppress descendants of slavery — people who had been categorized as Black. Marshall explained that racial classification was being used to enforce an “inherent determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as is possible.” The court, he said, “should make it clear that that is not what our Constitution stands for.” He sought the elimination of laws requiring segregation, but also the segregation those laws had created.

The Supreme Court, in unanimously striking down school segregation in its Brown decision, did not specifically mention the word “colorblind,” but its ruling echoed the thinking about the 14th Amendment in John Marshall Harlan’s lone dissent in Plessy v. Ferguson. “There is no caste here,” Harlan declared. “Our constitution is colorblind, and neither knows nor tolerates classes among citizens.” But he also made it clear that colorblindness was intended to eliminate the subordination of those who had been enslaved, writing, “In respect of civil rights, all citizens are equal before the law.” He continued, “The arbitrary separation of citizens on the basis of race … is a badge of servitude.”

The court’s ruling in Brown v. Board of Education was not merely a moral statement but a political one. Racial segregation and the violent suppression of democracy among its Black citizens had become a liability for the United States during the Cold War, as the nation sought to stymie Communism’s attraction in non-European nations. Attorney General James P. McGranery submitted a brief to the Supreme Court on behalf of the Truman administration supporting a ruling against school segregation, writing: “It is in the context of the present world struggle between freedom and tyranny that the problem of racial discrimination must be viewed. The United States is trying to prove to the people of the world of every nationality, race and color that a free democracy is the most civilized and most secure form of government yet devised by man. … Racial discrimination furnishes grist for the Communist propaganda mills.”

Civil rights activists were finally seeing their decades-long struggle paying off. But the architects and maintenance crew of racial caste understood a fundamental truth about the society they had built: Systems constructed and enforced over centuries to subjugate enslaved people and their descendants based on race no longer needed race-based laws to sustain them. Racial caste was so entrenched, so intertwined with American institutions, that without race-based counteraction , it would inevitably self-replicate.

One can see this in the effort to desegregate schools after the Brown v. Board of Education ruling. Across the country, North and South, white officials eliminated laws and policies mandating segregation but also did nothing to integrate schools. They maintained unofficial policies of assigning students to schools based on race, adopting so-called race-neutral admissions requirements designed to eliminate most Black applicants from white schools, and they drew school attendance zones snugly around racially segregated neighborhoods. Nearly a decade after Brown v. Board, educational colorblindness stood as the law of the land, and yet no substantial school integration had occurred. In fact, at the start of 1963, in Alabama and Mississippi, two of the nation’s most heavily Black states, not a single Black child attended school with white children.

By the mid-1960s, the Supreme Court grew weary of the ploys. It began issuing rulings trying to enforce actual desegregation of schools. And in 1968, in Green v. New Kent County, the court unanimously decided against a Virginia school district’s “freedom-of-choice plan” that on its face adhered to the colorblind mandate of Brown but in reality led to almost no integration in the district. “The fact that in 1965 the Board opened the doors of the former ‘white’ school to Negro children and of the ‘Negro’ school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system,” the court determined.

The court ordered schools to use race to assign students, faculty and staff members to schools to achieve integration. Complying with Brown, the court determined, meant the color-conscious conversion of an apartheid system into one without a “ ‘white’ school and a ‘Negro’ school, but just schools.” In other words, the reality of racial caste could not be constitutionally subordinated to the ideal of colorblindness. Colorblindness was the goal, color-consciousness the remedy.

Using Race to End Racial Inequality

Hobart Taylor Jr., a successful lawyer who lived in Detroit, was mingling at a party in the nation’s capital in January 1961 to celebrate the inauguration of Lyndon B. Johnson as vice president of the United States. Taylor had not had any intention of going to the inauguration, but like Johnson, Taylor was a native son of Texas, and his politically active family were early supporters of Johnson. And so at a personal request from the vice president, Taylor reluctantly found himself amid the din of clinking cocktail glasses when Johnson stopped and asked him to come see him in a few days.

Taylor did not immediately go see Johnson. After a second request came in, in February, Taylor found himself in Johnson’s office. The vice president slid into Taylor’s hands a draft of a new executive order to establish the Committee on Equal Employment Opportunity, which Johnson would lead. This was to be one of President John F. Kennedy’s first steps toward establishing civil rights for Black people.

Taylor’s grandfather had been born into slavery, and yet he and Taylor’s father became highly successful and influential entrepreneurs and landowners despite Texas’ strict color line.

The apartheid society Taylor grew up in was changing, and the vice president of the United States had tapped him to help draft its new rules. How could he say no? Taylor had planned on traveling back to Detroit that night, but instead he checked into the Willard Hotel, where he worked so intently on the draft of the executive order that not only did he forget to eat dinner but also he forgot to tell his wife that he wasn’t coming home. The next day, Taylor worked and reworked the draft for what would become Executive Order 10925, enacted in March 1961.

A few years later, in an interview for the John F. Kennedy Library Oral History Program, Taylor would recall what he considered his most significant contribution. The draft he received said employers had to “take action” to ensure that job applicants and employees would not be discriminated against because of their race, creed, color or national origin. Taylor thought the wording needed a propellant, and so inserted the word “affirmative” in front of action. “I was torn between ‘positive’ and ‘affirmative,’ and I decided ‘affirmative’ on the basis of alliteration,” he said. “And that has, apparently, meant a great deal historically in the way in which people have approached this whole thing.”

Taylor added the word to the order, but it would be the other Texan — a man with a fondness for using the N-word in private — who would most forcefully describe the moral rationale, the societal mandate, for affirmative action. Johnson would push through Congress the 1964, 1965 and 1968 civil rights laws — the greatest civil rights legislation since Reconstruction.

But a deeply divided Congress did not pass this legislation simply because it realized a century after the Civil War that descendants of slavery deserved equal rights. Black Americans had been engaged in a struggle to obtain those rights and had endured political assassinations, racist murders, bombings and other violence. Segregated and impoverished Black communities across the nation took part in dozens of rebellions, and tanks rolled through American streets. The violent suppression of the democratic rights of its Black citizens threatened to destabilize the country and had once again become an international liability as the United States waged war in Vietnam.

But as this nation’s racist laws began to fall, conservatives started to realize that the language of colorblindness could be used to their advantage. In the fall of 1964, Barry Goldwater, a Republican who was running against President Johnson, gave his first major national speech on civil rights. Civil rights leaders like the Rev. Dr. Martin Luther King Jr. and Roy Wilkins had lambasted Goldwater’s presidential nomination, with King saying his philosophy gave “aid and comfort to racists.” But at a carefully chosen venue — the Conrad Hilton in Chicago — in front of a well-heeled white audience unlikely to spout racist rhetoric, Goldwater savvily evoked the rhetoric of the civil rights movement to undermine civil rights. “It has been well said that the Constitution is colorblind,” he said. “And so it is just as wrong to compel children to attend certain schools for the sake of so-called integration as for the sake of segregation. … Our aim, as I understand it, is not to establish a segregated society or an integrated society. It is to preserve a free society.”

The argument laid out in this speech was written with the help of William H. Rehnquist. As a clerk for Justice Robert Jackson during the Brown v. Board of Education case, Rehnquist pushed for the court to uphold segregation. But in the decade that passed, it became less socially acceptable to publicly denounce equal rights for Black Americans, and Rehnquist began to deploy the language of colorblindness in a way that cemented racial disadvantage.

White Americans who liked the idea of equality but did not want descendants of slavery moving next door to them, competing for their jobs or sitting near their children in school were exceptionally primed for this repositioning. As Rick Perlstein wrote in his book “Before the Storm: Barry Goldwater and the Unmaking of American Consensus,” when it came to race, Goldwater believed that white Americans “didn’t have the words to say the truth they knew in their hearts to be right, in a manner proper to the kind of men they wanted to see when they looked in the mirror. Goldwater was determined to give them the words.”

In the end, Johnson beat Goldwater in a landslide. Then, in June 1965, a few months after Black civil rights marchers were barbarically beaten on Selma’s Edmund Pettus Bridge and two months before he would sign the historic Voting Rights Act into law, Johnson, now president of a deeply and violently polarized nation, gave the commencement address at Howard University. At that moment, Johnson stood at the pinnacle of white American power, and he used his platform to make the case that the country owed descendants of slavery more than just their rights and freedom.

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair,” Johnson said. “This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”

For a brief moment, it seemed as if a grander, more just vision of America had taken hold. But while Goldwater did not win the election, 14 years later a case went before the Supreme Court that would signal the ultimate victory of Goldwater’s strategy.

Claiming Reverse Discrimination

Allan Bakke was enjoying a successful career at NASA when he decided he wanted to become a physician. Bakke grew up in a white middle-class family — his father worked for the Post Office, and his mother taught school. Bakke went to the University of Minnesota, where he studied engineering and joined the R.O.T.C. to help pay for college, and then served four years as a Marine, including seven months in Vietnam. It was there that Bakke became enamored with the medical profession. While still working at NASA, he enrolled in night courses to obtain a pre-med degree. In 1972, while he was in his 30s, Bakke applied to 11 medical schools, including at his alma mater, and was rejected by all 11.

One of the schools that Bakke, who was living in California at the time, applied to was the University of California at Davis. The school received 2,664 applications for 100 spots, and by the time he completed his application, most of the seats had already been filled. Some students with lower scores were admitted before he applied, and Bakke protested to the school, claiming that “quotas, open or covert, for racial minorities” had kept him out. His admission file, however, would show that it was his age that was probably a significant strike against him and not his race.

Bakke applied again the next year, and U.C. Davis rejected him again. A friend described Bakke as developing an “almost religious zeal” to fight what he felt was a system that discriminated against white people in favor of so-called minorities. Bakke decided to sue, claiming he had been a victim of “reverse” discrimination.

The year was 1974, less than a decade after Johnson’s speech on affirmative action and a few years after the policy had begun to make its way onto college campuses. The U.C. Davis medical school put its affirmative-action plan in place in 1970. At the time, its first-year medical-school class of 100 students did not include a single Black, Latino or Native student. In response, the faculty designed a special program to boost enrollment of “disadvantaged” students by reserving 16 of the 100 seats for students who would go through a separate admissions process that admitted applicants with lower academic ratings than the general admissions program.

From 1971 to 1974, 21 Black students, 30 Mexican American students and 12 Asian American students enrolled through the special program, while one Black student, six Mexican Americans and 37 Asian American students were admitted through the regular program. Bakke claimed that his right to equal protection under the 14th Amendment and the 1964 Civil Rights Act had been violated. Though these laws were adopted to protect descendants of slavery from racial discrimination and subordination, Bakke was deploying them to claim that he had been illegally discriminated against because he was white. The case became the first affirmative-action challenge decided by the Supreme Court and revealed just how successful the rhetorical exploitation of colorblindness could be.

Justice Lewis Powell, writing for a fractured court in 1978, determined that although the 14th Amendment was written primarily to bridge “the vast distance between members of the Negro race and the white ‘majority,’” the passage of time and the changing demographics of the nation meant the amendment must now be applied universally. In an argument echoing the debates over the Freedmen’s Bureau, Powell said that the United States had grown more diverse, becoming a “nation of minorities,” where “the white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals.”

“The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color,” Powell wrote. “If both are not accorded the same protection, then it is not equal.” Powell declared that the medical school could not justify helping certain “perceived” victims if it disadvantaged white people who “bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”

But who or what, then, did bear the responsibility?

Bakke was raised in Coral Gables, a wealthy, white suburb of Miami whose segregationist founder proposed a plan to remove all Black people from Miami while serving on the Dade County Planning Board, and where the white elementary school did not desegregate until after it was ordered by a federal court to do so in 1970, the same year U.C. Davis began its affirmative-action program. The court did not contemplate how this racially exclusive access to top neighborhoods and top schools probably helped Bakke to achieve the test scores that most Black students, largely relegated because of their racial designation to resource-deprived segregated neighborhoods and educational facilities, did not. It did not mean Bakke didn’t work hard, but it did mean that he had systemic advantages over equally hard-working and talented Black people.

For centuries, men like Powell and Bakke had benefited from a near-100 percent quota system, one that reserved nearly all the seats at this nation’s best-funded public and private schools and most-exclusive public and private colleges, all the homes in the best neighborhoods and all the top, well-paying jobs in private companies and public agencies for white Americans. Men like Bakke did not acknowledge the systemic advantages they had accrued because of their racial category, nor all the ways their race had unfairly benefited them. More critical, neither did the Supreme Court. As members of the majority atop the caste system, racial advantage transmitted invisibly to them. They took notice of their race only when confronted with a new system that sought to redistribute some of that advantage to people who had never had it.

Thus, the first time the court took up the issue of affirmative action, it took away the policy’s power. The court determined that affirmative action could not be used to redress the legacy of racial discrimination that Black Americans experienced, or the current systemic inequality that they were still experiencing. Instead, it allowed that some consideration of a student’s racial background could stand for one reason only: to achieve desired “diversity” of the student body. Powell referred to Harvard’s affirmative-action program, which he said had expanded to include students from other disadvantaged backgrounds, such as those from low-income families. He quoted an example from the plan, which said: “The race of an applicant may tip the balance in his favor, just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a Black student can usually bring something that a white person cannot offer.”

But, of course, a (white) farm boy from Idaho did not descend from people who were enslaved, because they were farmers from Idaho. There were not two centuries of case law arguing over the inherent humanity and rights of farm boys from Idaho. There was no sector of the law, no constitutional provision, that enshrined farm boys from Idaho as property who could be bought and sold. Farm boys from Idaho had no need to engage in a decades-long movement to gain basic rights of citizenship, including the fundamental right to vote. Farm boys from Idaho had not, until just a decade earlier, been denied housing, jobs, the ability to sit on juries and access to the ballot. Farm boys from Idaho had not been forced to sue for the right to attend public schools and universities.

In Bakke, the court was legally — and ideologically — severing the link between race and condition. Race became nothing more than ancestry and a collection of superficial physical traits. The 14th Amendment was no longer about alleviating the extraordinary repercussions of slavery but about treating everyone the same regardless of their “skin color,” history or present condition. With a few strokes of his pen, Powell wiped this context away, and just like that, the experience of 350 years of slavery and Jim Crow was relegated to one thing: another box to check.

Yet at the same time Powell was drafting this ruling, cases of recalcitrant school districts still refusing to integrate Black children were making their way to the Supreme Court. Just 15 years earlier, the federal government called up National Guardsmen to ensure that handfuls of Black students could enroll in white schools.

Indeed, Powell wrote this opinion while sitting on the same court as Thurgood Marshall, who in 1967 became the first Black justice in the Supreme Court’s 178-year history. In Brown, Marshall helped break the back of legalized segregation. Now, as the court deliberated the Bakke case, a frustrated Marshall sent around a two-and-a-half-page typed memo to the other justices. “I repeat, for next to the last time: The decision in this case depends on whether you consider the action of the regents as admitting certain students or as excluding certain other students,” he wrote. “If you view the program as admitting qualified students who, because of this Nation’s sorry history of racial discrimination, have academic records that prevent them from effectively competing for medical school, then this is affirmative action to remove the vestiges of slavery and state imposed segregation by ‘root and branch.’ If you view the program as excluding students, it is a program of ‘quotas’ which violates the principle that the ‘Constitution is color-blind.’”

When Marshall’s arguments did not persuade enough justices, he joined with three others in a dissent from a decision that he saw as actively reversing, and indeed perverting, his legacy. They issued a scathing rebuke to the all-white majority, accusing them of letting “colorblindness become myopia, which masks the reality that many ‘created equal’ have been treated within our lifetimes as inferior both by the law and by their fellow citizens.”

Marshall also wrote his own dissent, where he ticked off statistic after statistic that revealed the glaring disparities between descendants of slavery and white Americans in areas like infant and maternal mortality, unemployment, income and life expectancy. He argued that while collegiate diversity was indeed a compelling state interest, bringing Black Americans into the mainstream of American life was much more urgent, and that failing to do so would ensure that “America will forever remain a divided society.”

Marshall called out the court’s hypocrisy. “For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro,” he wrote. “Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

At the end of his lengthy dissent, Marshall pointed out what had become the court’s historic pattern. “After the Civil War, our government started ‘affirmative action’ programs. This court … destroyed the movement toward complete equality,” he wrote. As he said, “I fear that we have come full circle.”

The Reagan Rollback

In 1980, having just secured the Republican nomination for the presidency, Ronald Reagan traveled to Mississippi’s Neshoba County Fair to give an address. It was there in that county, a mere 16 years earlier, that three civil rights workers, James Chaney, Andrew Goodman and Michael Schwerner, were murdered by Klansmen, among the most notorious killings of the civil rights era.

Standing in front of a roaring crowd of about 10,000 white Mississippians, Reagan began his general-election campaign. He did not mention race. He did not need to. Instead he spoke of states’ rights, replicating the language of Confederates and segregationists, to signal his vision for America.

Despite the Bakke ruling, affirmative action continued to gain ground in the 1970s, with a deeply divided Supreme Court upholding limited affirmative action in hiring and other areas, and the Jimmy Carter administration embracing race-conscious policies. But Reagan understood the political power of white resistance to these policies, which if allowed to continue and succeed would redistribute opportunity in America.

Once in office, Reagan aggressively advanced the idea that racial-justice efforts had run amok, that Black Americans were getting undeserved racial advantages across society and that white Americans constituted the primary victims of discrimination.

A 1985 New York Times article noted that the Reagan administration was “intensifying its legal attack on affirmative action” across American life, saying the administration “has altered the government’s definition of racial discrimination.” As early as the 1970s, Reagan began using the phrase “reverse discrimination” — what the political scientist Philip L. Fetzer called a “covert political term” that undermined racial redress programs by redefining them as anti-white. Reagan’s administration claimed that race-conscious remedies were illegal and that hiring goals for Black Americans were “a form of racism” and as abhorrent as the “separate but equal” doctrine struck down by Brown v. Board.

Reagan, who had secretly called Black people monkeys and opposed the Civil Rights Act of 1964, opposed the establishment of the Martin Luther King Jr. federal holiday. Yet in the first commemoration of that holiday in 1986, he trotted out King’s words to condemn racial-justice policy. “We’re committed to a society in which all men and women have equal opportunities to succeed, and so we oppose the use of quotas,” he said. “We want a colorblind society, a society that, in the words of Dr. King, judges people not by the color of their skin but by the content of their character.”

This passage from King’s famous 1963 “I Have a Dream” speech has become a go-to for conservatives seeking to discredit efforts to address the pervasive disadvantages that Black Americans face. And it works so effectively because few Americans have read the entire speech, and even fewer have read any of the other speeches or writings in which King explicitly makes clear that colorblindness was a goal that could be reached only through race-conscious policy. Four years after giving his “Dream” speech, King wrote, “A society that has done something special against the Negro for hundreds of years must now do something special for him.” And during a 1968 sermon given less than a week before his assassination, King said that those who opposed programs to specifically help Black Americans overcome their disadvantage “never stop to realize that no other ethnic group has been a slave on American soil. The people who say this never stop to realize that the nation made the Black man’s color a stigma; but beyond this they never stop to realize that they owe a people who were kept in slavery 244 years.”

But as the sociologist Stuart Hall once wrote, “Those who produce the discourse also have the power to make it true.” Reagan deftly provided the road map to the nation’s racial future. Tapping into white aversion to acknowledging and addressing the singular crimes committed against Black Americans, conservatives, who had not long before championed and defended racial segregation, now commandeered the language of colorblindness, which had been used to dismantle the impacts of legal apartheid. They wrapped themselves in the banner of rhetorical equality while condemning racial-justice activists as the primary perpetrators of racism.

“There’s this really concerted, strategic effort to communicate to white people that racial justice makes white people victims, and that when people demand racial justice, they don’t actually mean justice; they mean revenge,” Ian Haney López, a race and constitutional law scholar at the University of California, Berkeley, told me. “Black people are treated as if they are just any other Americans. There is no history of racial subordination associated with Black people. There is no structural or systemic racism against African Americans. By 1989, it’s over. Reactionary colorblindness has won.”

Diversity vs. Redress

Perhaps no single person has more successfully wielded Reagan’s strategy than Edward Blum. In 1992, Blum, who made his living as a stockbroker, decided to run for Congress as a Republican in a Texas district carved out to ensure Black representation. Blum was trounced by the Black Democratic candidate. He and several others sued, arguing that a consideration of racial makeup when creating legislative districts violated the 14th Amendment’s equal-protection clause. Despite the fact that until a 1944 Supreme Court ruling, Texas had selected candidates through all-white primaries, and the fact that the district had been created in part in response to the state’s history of Black-voter suppression, Blum’s side won the case, forcing a redrawing of legislative districts in a manner that diluted Black and Latino voting power. Since that victory, Blum has mounted a decades-long campaign that has undermined the use of race to achieve racial justice across American life.

Blum is not a lawyer, but his organizations, funded by a mostly anonymous cadre of deep-pocketed conservatives, have been wildly effective. It is Blum, for instance, who was the strategist behind the case against the Voting Rights Act. When the Supreme Court again narrowly upheld affirmative action in college admissions in the early 2000s, Blum set his sights on killing it altogether. In that 2003 case, Grutter v. Bollinger, Justice Sandra Day O’Connor wrote the majority opinion preserving limited affirmative action but putting universities on notice by setting an arbitrary timeline for when the court should determine that enough racial justice will have been achieved. “It has been 25 years since Justice Powell first approved the use of race to further an interest in student-body diversity in the context of public higher education,” O’Connor wrote. “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” The use of the term “racial preferences” is key here. Instead of a policy created to even the playing field for a people who had been systematically held back and still faced pervasive discrimination, affirmative action was cast as a program that punished white Americans by giving unfair preferential treatment to Black Americans.

Blum didn’t wait 25 years to challenge affirmative action. His case brought on behalf of Abigail Fisher, a soft-spoken white woman who sued the University of Texas at Austin, after she was denied admission, went all the way to the Supreme Court. The court ultimately upheld the university’s admissions program. In his second attempt, Blum changed tactics. As he told a gathering of the Houston Chinese Alliance in 2015: “I needed Asian plaintiffs.” In Students for Fair Admissions v. Harvard, Blum’s group argued, and the court agreed, that affirmative-action programs discriminated against Asian Americans and, at the University of North Carolina, also white students. But many saw Blum’s use of another historically marginalized group in the lawsuit as an attempt to neutralize any argument that those targeting affirmative action opposed racial equality.

Blum’s success relied on defining affirmative action as a program about “visual diversity,” treating race as a mere collection of physical traits and not a social construct used to subordinate and stigmatize. When colleges seek diversity, he said, they are “really talking about skin-color diversity. How somebody looks. What’s your skin color? What’s the shape of your eyes? What’s the texture of your hair? Most Americans don’t think that the shape of your eyes tells us much about who you are as an individual. What does your skin color tell the world about who you are as an individual?” This reasoning resounds for many Americans who have also come to think about race simply as what you see.

Blum has described racial injustice against Black Americans as a thing of the past — a “terrible scar” on our history. As he awaited the court’s ruling last April, Blum told The Christian Science Monitor that today’s efforts to address that past were discriminatory and in direct conflict with the colorblind goals of Black activism. He said that “an individual’s race or ethnicity should not be used to help that individual or harm that individual in their life’s endeavors” and that affirmative action was “in grave tension with the founding principles of our civil rights movement.” But the civil rights movement has never been about merely eliminating race or racism; it’s also about curing its harms, and civil rights groups oppose Blum’s efforts.

Yet progressives, too, have unwittingly helped to maintain the corrupt colorblind argument that Blum has employed so powerfully, in part because the meaning of affirmative action was warped nearly from its beginning by the Supreme Court’s legal reasoning in Bakke. When the court determined that affirmative-action programs could stand only for “diversity” and not for redress, many advocates and institutions, in order to preserve these programs, embraced the idea that the goal of affirmative action was diversity and inclusiveness and not racial justice. Progressive organizations adopted the lexicon of “people of color” when discussing affirmative-action programs and also flattened all African-descended people into a single category, regardless of their particular lineage or experience in the United States.

Campuses certainly became more “diverse” as admissions offices focused broadly on recruiting students who were not white. But the descendants of slavery, for whom affirmative action originated, remain underrepresented among college students, especially at selective colleges and universities. At elite universities, research shows, the Black population consists disproportionately of immigrants and children of immigrants rather than students whose ancestors were enslaved here.

So, at least on this one thing, Blum is right. Many institutions have treated affirmative-action programs as a means of achieving visual diversity. Doing so has weakened the most forceful arguments for affirmative action, which in turn has weakened public support for such policies. Institutions must find ways, in the wake of the affirmative-action ruling, to address the racism that Black people face no matter their lineage. But using affirmative action as a diversity program — or a program to alleviate disadvantage that any nonwhite person faces — has in actuality played a part in excluding the very people for whom affirmative action and other racial redress programs were created to help.

Taking Back the Intent of Affirmative Action

Just as the NAACP Legal Defense Fund used the Brown v. Board of Education ruling as a legal catalyst for eliminating apartheid in all American life, Blum and those of like mind intend to use the affirmative-action ruling to push a sweeping regression in the opposite direction: bringing down this nation’s racial-justice programs and initiatives.

Right after the June ruling, 13 Republican state attorneys general sent letters to 100 of the nation’s biggest companies warning that the affirmative-action ruling prohibits what they call “discriminating on the basis of race, whether under the label of ‘diversity, equity and inclusion’ or otherwise. Treating people differently because of the color of their skin, even for benign purposes, is unlawful and wrong.” Companies that engage in such racial discrimination, the letter threatened, would “face serious legal consequences.”

The letter points to racial-justice and diversity-and-inclusion programs created or announced by companies, particularly after the murder of George Floyd by a white police officer. In response to the killing, a multigenerational protest movement arose and faced violent suppression by law enforcement as it sought to force this nation to see that the descendants of slavery were still suffering and deserved repair. Corporations took a public stance on racial justice, vowing to integrate everything from their boardrooms to their suppliers. Monuments to white supremacists and Confederates that had stood for 100 years were finally vanquished from the public square. And many colleges and other institutions vocally committed to racial justice as an ethos.

But that fragile multiracial coalition — which for a period understood racial redress as a national good needed to secure and preserve our democracy — has been crushed by the same forces that have used racial polarization to crush these alliances in the past. Conservatives have spent the four years since George Floyd’s murder waging a so-called war against “woke” — banning books and curriculums about racism, writing laws that eliminate diversity-and-inclusion programs and prohibiting the teaching of courses even at the college level that are deemed racially “divisive.”

In other words, conservatives have used state power to prepare a citizenry to accept this new American legal order by restricting our ability to understand why so much racial inequality exists, particularly among the descendants of slavery, and why programs like affirmative action were ever needed in the first place.

“Something really stunning and dangerous that has happened during the Trump era is that the right uses the language of colorblindness or anti-wokeness to condemn any references to racial justice,” Haney López told me. “This rhetoric is a massive fraud, because it claims colorblindness toward race but is actually designed to stimulate hyper-race-consciousness among white people. That strategy has worked.”

Today we have a society where constitutional colorblindness dictates that school segregation is unconstitutional, yet most Black students have never attended a majority-white school or had access to the same educational resources as white children. A society with a law prohibiting discrimination in housing and lending, and yet descendants of slavery remain the most residentially, educationally and economically segregated people in the country. A society where employment discrimination is illegal, and yet Black Americans are twice as likely to be unemployed as white Americans, even when they hold college degrees.

Despite these realities, conservative groups are initiating a wave of attacks on racial-equality programs. About 5 percent of practicing attorneys are Black, and yet one of Blum’s groups, the American Alliance for Equal Rights, sued law firms to stop their diversity fellowships. In August, it also sued the Fearless Fund, a venture-capital firm founded by two Black women, which through its charitable arm helps other Black women gain access to funding by giving small grants to businesses that are at least 51 percent owned by Black women. Even though according to the World Economic Forum, Black women receive just 0.34 percent of venture-capital funds in the United States, Blum declared the fund to be racially discriminatory. Another Blum group, Students for Fair Admissions, has now sued the U.S. Military Academy, even though the Supreme Court allowed race-conscious admissions to stand in the military. Another organization, the Center for Individual Rights, has successfully overturned a decades-long Small Business Administration policy that automatically treated so-called minority-owned businesses as eligible for federal contracts for disadvantaged businesses.

Last year, a group called the Californians for Equal Rights Foundation sued the City and County of San Francisco over their funding of several programs aimed at eliminating disparities Black Americans face, including the Abundant Birth Project, which gives stipends for prenatal care, among other supports, to Black women and Pacific Islanders to help prevent them from dying during childbirth. Even though maternal mortality for Black women in the United States is up to four times as high as it is for white women, conservatives argue that programs specifically helping the women most likely to die violate the 14th Amendment. Even as this lawsuit makes its way through the courts, there are signs of why these sorts of programs remain necessary: It was announced last year that the Department of Health and Human Services opened a civil rights investigation into Cedars-Sinai Medical Center in Los Angeles for allegations of racism against Black mothers following the death of a Black woman who went there to give birth.

It is impossible to look at the realities of Black life that these programs seek to address and come to the conclusion that the lawsuits are trying to make society more fair or just or free. Instead they are foreclosing the very initiatives that could actually make it so.

And nothing illuminates that more than the conservative law group’s letter warning Howard — an institution so vaunted among Black Americans that it’s known as the Mecca — that its medical school must stop any admissions practices that have a “racial component.” Howard’s medical school, founded in 1868, remains one of just four historically Black medical schools in the United States. Howard received nearly 9,000 medical-school applicants for 130 open seats in 2023. And while almost all of the students who apply to be Howard undergraduates are Black, because there are so few medical-school slots available, most applicants to Howard’s medical school are not. Since the school was founded to serve descendants of slavery with a mission to educate “disadvantaged students for careers in medicine,” however, most of the students admitted each year are Black.

That has now made it a target, even though Black Americans account for only 5 percent of all U.S. doctors, an increase of just three percentage points in the 46 years since Thurgood Marshall’s dissent in Bakke. Despite affirmative action at predominantly white schools, at least 70 percent of the Black doctors and dentists in America attended an H.B.C.U. H.B.C.U.s also have produced half of the Black lawyers, 40 percent of Black engineers and a quarter of Black graduates in STEM fields.

Even Plessy v. Ferguson, considered perhaps the worst Supreme Court ruling in U.S. history, sanctioned the existence of H.B.C.U.s and other Black-serving organizations. If institutions like Howard or the Fearless Fund cannot work to explicitly assist the descendants of slavery, who still today remain at the bottom of nearly every indicator of success and well-being, then we have decided as a nation that there is nothing we should do to help Black Americans achieve equality and that we will remain a caste society.

What we are witnessing, once again, is the alignment of white power against racial justice and redress. As history has shown, maintaining racial inequality requires constant repression and is therefore antithetical to democracy. And so we must be clear about the stakes: Our nation teeters at the brink of a particularly dangerous moment, not just for Black Americans but for democracy itself.

To meet the moment, our society must forcefully recommit to racial justice by taking lessons from the past. We must reclaim the original intent of affirmative-action programs stretching all the way back to the end of slavery, when the Freedmen’s Bureau focused not on race but on status, on alleviating the conditions of those who had endured slavery. Diversity matters in a diverse society, and American democracy by definition must push for the inclusion of all marginalized people. But remedies for injustice also need to be specific to the harm.

So we, too, must shift our language and, in light of the latest affirmative-action ruling, focus on the specific redress for descendants of slavery . If Yale, for instance, can apologize for its participation in slavery, as it did last month, then why can’t it create special admissions programs for slavery’s descendants — a program based on lineage and not race — just as it does for its legacy students? Corporations, government programs and other organizations could try the same.

Those who believe in American democracy, who want equality, must no longer allow those who have undermined the idea of colorblindness to define the terms. Working toward racial justice is not just the moral thing to do, but it may also be the only means of preserving our democracy.

Race-based affirmative action has died. The fight for racial justice need not. It cannot.

Top photo illustration by Mark Harris. Photograph by Bruce Davidson/Magnum Photos

A picture with an earlier version of this article was published in error. The image caption, relying on erroneous information from a photo agency, misidentified the man shown as Hobart Taylor Jr. The image has been replaced with a photo of Taylor.

How we handle corrections

Nikole Hannah-Jones is a domestic correspondent for The New York Times Magazine focusing on racial injustice. Her extensive reporting in both print and radio has earned a Pulitzer Prize, National Magazine Award, Peabody and a Polk Award. More about Nikole Hannah-Jones

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Law and Justice

Explain what is meant by justice

Consider how far the courts achieve justice when attempting to balance the conflicting interests of the parties involved in civil / criminal cases

Every person has an idea of what justice is, but because of the diversity of society, justice means different things to different people, and so it is not easy to define. Many will agree that justice should ensure the fair treating of those who have done wrong and for those who have suffered a loss. However, as the two usually conflict, it is the aim of the law to ensure a balance has been struck between the two. Already, this serves to limit the ‘justice’ the law can give, as it has to keep conflicting sides happy, without upsetting the other.

        As justice is such a complex area that spans back many years, there are many theories on what justice is and how it should be reached. Formal justice is based on Aristotle’s idea of distributive justice - that fair decisions, goods and services are distributed equally and therefore people have the same access to justice. If this was the case, it could possibly be easier to achieve concrete justice, which means all people receiving the same punishment for the offence committed. Concrete justice can be seen as a means of keeping the ‘stare decisis’ rule of standing by previous decisions, so as to keep fairness and consistency in law. However, taking the example of murder, this can be considered to be unfair. In the recent cases concerning ‘mothers who kill’, which as been described as a ‘modern day witch hunt’, all convicted must receive the mandatory life sentence, which the judge reluctantly gave to Angela Cannings. This “witch hunt” has also seen the reversal of the burden of proof, and evidence given by only one witness. ‘Meadow’s Law’ was unjust and had no bearing with scientific evidence but it was relied on by the law. This led to undeserved suffering, as justice was not reached. Concrete justice also means there is no room to consider the motives or background to the offence and so injustice is easily reached.

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Another theory is that of John Rawls’ and his idea is based around an imaginary society. This means that as there is no knowledge of people’s gender, religion, age or social class, no pre-conceptions will exist. Rawls believes that this ignorance is the only way to reach fair decisions and for justice to be served. Michael Allen also suggests this, as in ‘Criminal Law’ he states that   it is all too easy for judges or juries to ‘lose sight of the wider role of criminal law’ when they want to see ‘undesirable characters locked behind bars’. In essence, this means everyone be treated in the same way. However, his theory had been heavily criticised, the obvious criticism being that justice is being reached through an artificial society which will never have any basis in reality. Dworkins has pointed out that people will not always live by the principals they do in an imaginary society-people will improve their situations if the chance arises. Humans are not as perfect as Rawls’ theory implies.

Rawls’ idea of a classless society holds some similarities with the Marxist theory. Marx believed that a capitalist society could never be a just one, that only through a classless society, where all are equal, would justice be reached. However, as the collapse of the Soviet Union proved, the fundamentals of communism cannot work as ultimately, a class system will operate as there will always be people with power over society.  

        The English legal system as it stands derives from Aristotle’s theories of distributive and corrective justice, the aims of which can be seen through the differences of criminal and civil law. They both attempt to promote justice, but as they stand for two sides of argument, it can be noted that they can cancel each other out and achieve justice for nobody. This can be seen through the case of Tony Martin, where the boundaries between victim and wrongdoer were so blurred that whether justice was done for either remains debated. It could be argued that there is no justice for homeowners to defend their property but does this give them the right to kill somebody? The main distinction between these is that criminal law aims to punish the wrongdoer whereas civil law aims to compensate the victim, similar to the theory of corrective justice. Liability in both, however, is based on fault. In criminal law defences are provided, for example voluntary manslaughter for murder. Legislation for both areas is always democratically elected, and this can once again reinforce the message that justice cannot be reached if the same group of people are voting policies for and against conflicting parties. This can be seen through the Access to Justice Act 1999, which provides legal funding advice and representation in both civil and criminal matters. The state is providing the civil help through the Legal Services Commission and criminal assistance through the Criminal Defence Service. This may seem odd, as ‘Access to Justice’ seems to imply that there will be more a stance towards one side than the other, as this may be the only way justice can be reached. Lord Justice Darling once stated that ‘the law courts of England are open to all men like the doors of the Ritz hotel’. This means that only as long as people have the money will they be treated equally. The Access to Justice Act is an example of this, as if you are on a modest income, the law will not provide for you. This means only the wealthy or very poor will be catered for in this Act and so detracts from the promotion of justice of courts and juries being open to all. The alternatives to this Act do not appear to give a high quality of legal help; the Citizens Advice Bureau cannot give specific legal advice and even though ‘Accident Helplines’ provide help on a ‘no win no fee’ basis, a successful claim could see 25% of the damages awarded going to the lawyer. More recently, there has been the introduction of the controversial Criminal Justice Act 2003, which John Wadham has described as ‘a shameful attack on justice’, perhaps  because the whole aim of the Act is to ‘strike the right balance between justice for victims and the rights of those on trial’, as stated by David Blunkett. Although the scrapping of the double jeopardy rule and the revealing of a defendant’s relevant previous convictions are amongst aspects hoping to assist victims of crime, the idea of reducing the rights of the defendant to benefit the victim had been described as ‘fundamentally flawed’ as it does not address the issue of improving justice. It can also be said that by revealing previous convictions of the defendant is taking away the justice they need, especially as it may undermine the ‘innocent until proven guilty’ clause. Even the supposedly stable promotion of justice of judges being independent and free from political bias seems to be disappearing as the Crime (Sentences) Act 1997 gives minimum sentences in certain circumstances. Such legislation limits judges’ freedom. It can be argued that judges being in charge of sentencing can lead to inconsistent punishments, but the doctrine of judicial precedent often ensures that decisions are fair and in keeping with previous cases. This does not mean that unjust decisions are never reached, as seen with the cot death cases discussed earlier. There have also been unwarranted decisions concerning domestic violence issues. Provocation rules that there must be ‘a sudden and temporary loss of self control’, so this may not include women who have suffered from domestic abuse for years. However, ‘Battered Woman’s Syndrome’ is recognised by the law, and the introduction of the domestic Violence Bill also aims to reach justice in such situations.

        Courts often do not achieve justice and despite the introductions of Acts such as the Access to Justice Act 1999 and Criminal Justice Act 2003, it is unlikely justice will ever be reached through the courts. This is not so much because of the conflicting interests of civil and criminal parties, but perhaps because the law is meant to be a fair adjudicator and whatever it’s decisions, someone will inevitably lose out.

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Elektrostal , Moscow Oblast, Russia