Abstract

Excerpted From: Summer Durant, Whiteness as Property by Proxy: How Affirmative Action's End Marks the Beginning of a Crucial Racial Reckoning, 68 Howard Law Journal 427 (Spring, 2025) (188 Footnotes) (Full Document)

“[T]he reputation of belonging to the dominant race ... is property, in the same sense that a right of action or inheritance is property.” This was one argument advanced by Homer Plessy, the plaintiff in the infamous case Plessy v. Ferguson where the Supreme Court of the United States decided that a Louisiana law requiring separate railway cars for Black and white passengers did not violate the Fourteenth Amendment's Equal Protection Clause because separate facilities did not inherently imply inferior facilities. Though Plessy's property argument was largely overlooked in the final judgment of the Plessy case, which instead focused on Plessy's equal protection claim, it is precisely the concept of whiteness as property that underlies much of the purportedly “color-blind” legislation of the 21st century and, perhaps most recently, the overturning of affirmative action in the 2023 Students for Fair Admissions (SFFA) decisions.

In the SFFA cases, SFFA v. Harvard and SFFA v. University of North Carolina, the Supreme Court of the United States overturned decades of precedent by ruling that race-conscious college admissions programs violate the Fourteenth Amendment's Equal Protection Clause. The Supreme Court's decision that both Harvard's and UNC's race-conscious admissions policies “lack[ed] sufficiently focused and measurable objectives warranting the use of race, unavoidably employ[ed] race in a negative manner, involve[d] racial stereotyping, and lack[ed] meaningful endpoints” effectively overturned affirmative action as it was previously known. In investigating the SFFA Court's strategic omissions of important racial history and analogizing the case language to white supremacist precedent from an ostensibly “bygone” racist past, this Note endeavors to uncover the reality that, though the SFFA decisions claim to turn on equal protection, they instead function as ongoing judicial protection for the value of whiteness as social currency.

More than 30 years ago, in her article entitled Whiteness as Property, Professor Cheryl Harris compellingly articulated the deeply interrelated concepts of whiteness and property. In her article, Professor Harris describes the many facets in which whiteness can function as a form of social currency to the extent of being a property interest in and of itself. She even goes further to describe the many avenues in which this form of ““property” has been seemingly innocuously fortified through years of jurisprudence. While Professor Harris is not the first to have made this connection between whiteness and property, let alone between race and property, her article is one of few that so clearly and resolutely underscores and analyzes this connection through a legal historical lens.

Importantly, one of the topics addressed in Harris's Whiteness as Property is affirmative action and how the legal arguments asserted in the progeny of cases establishing affirmative action alluded to and underscored the notion of whiteness as a protected interest. In the time that has elapsed between the publication of Harris's Whiteness as Property and the writing of this Note, both the legal and cultural landscape have significantly shifted. Whereas in 1993, when Harris published Whiteness as Property, the most public-facing critics of affirmative action largely appeared to be white male plaintiffs, today that demographic has shifted to include some Black, Indigenous, and People of Color (BIPOC), namely Asian Americans, who were ultimately instrumental in the successful overturning of affirmative action in 2023. In order to understand why BIPOC who benefit from affirmative action would shift against it in this way, it is crucial to investigate the concept of whiteness as property and the mistaken belief that the social currency of whiteness can be acquired by proximity.

In unpacking the inter-BIPOC dilemma of co-opting whiteness as property, this Note analyzes several key legal arguments and definitions addressing whiteness as a property interest, as well as the text of the Fourteenth Amendment, and the evolution of racialized identities in United States culture. The final aim of this Note is to revisit some of the concepts from Cheryl Harris's Whiteness as Property in a post-SFFA world. Those concepts reveal that the overturning of affirmative action was more sincerely motivated by protecting the property interest in whiteness as a social currency, despite being guised in the language of “equal protection.” Broken down into four parts, this undertaking will proceed as follows.

Part II will outline and frame the reader's understanding of the legal constructions of whiteness, property, and whiteness as property. Part III will shift to address the narrower analysis of how the property interest in whiteness is a core motivation underlying the SFFA cases; it will also build upon the foundation of Part II to investigate what kind of claims might more sincerely be at the heart of the SFFA cases, including: the Fifth Amendment Takings Clause, the Fourteenth Amendment Due Process Clause, and Section Four of the Fourteenth Amendment dealing with public debt. Finally, Part IV will consider and weigh the logical differences between what it means to protect oppressed groups as opposed to further entrenching the power of oppressive groups while also reimagining possibilities for the future.

[. . .]

“I was not born of division. Partition and segregation are in my history, but my body is not repeating itself. The Indian and Black women inside of me are not whittling my bones hollow .... I am neither bird bones nor pendulum, nor spectacle, nor object. I am as whole as I will ever be.” --Summer Durant

One of the first questions posed by this Note is about self-definition. More specifically, racial definitions of BIPOC beyond direct juxtaposition to whiteness: “what name would you call yourself if you had never been owned before? Property named properly. Properly named property.” Now that the foundation of whiteness as a property interest from which BIPOC have been intentionally excluded has been established, this paper aims to challenge its readers to think beyond the proximal pull towards whiteness and the potential benefits of accruing its power whether by definition or by proxy. In attempting this endeavor, the adoption of a multi-minority multiracial lens might afford a dual-staked interest in reconciling racial triangulation with the Black-white binary.

The way to go about donning a multiple-minority lens is to consider and hold psychological space for the intersection between two BIPOC groups, anchored in the understanding that each BIPOC group is intentionally being excluded from the property interest in whiteness to the ongoing detriment of both. The aim of applying such a multiple-minority lens is to facilitate coalition-building between Asianness and Blackness while uncovering the power whiteness wields over each. The hope is that this approach will help to directly address the effect of racial triangulation, particularly as it facilitated a desire for non-Black people of color to misguidedly pursue whiteness's property power by proxy, and in so doing it might reduce the likelihood of continued outcomes like the recent SFFA cases. Perhaps an appeal to this otherwise overlooked demographic could have precluded the Supreme Court's recent SFFA decision by centering multiracial coalition as part of the project of affirmative action and illustrating that it is not a tool for entrenching further racism but rather a form of “distributive justice as a matter of equal protection requir[ing] that individuals receive that share of the benefits they would have secured in the absence of racism.”

Therefore, the final task of this Note is an imaginative one. In fact, it makes a psychological request of the reader. Hopefully, by this point, this Note has laid a solid framework for understanding the nuanced, race-based motivations that have resulted in the SFFA decision, not as an “equalizing” measure but as a tool for reinforcing the longstanding racial hierarchy that whiteness sits atop. Following this framework, the task of the reader is now to imagine themself standing at the intersection of two non-white races, one more proximal to whiteness and one more distal. Consider which end you may gravitate towards. Consider whether, given the option, you would choose the individual power of whiteness by proxy over the collective betterment of overturning years of BIPOC dehumanization. Allow yourself to sit with this choice. Now, recognize that for some there is no walking away, no argument for “passing,” or asserting a stake in whiteness as property. And recall too that for many of those who attempt to assert such a stake, and are deemed or discovered to be non-white, they are often met with exclusion from the property interest in whiteness. Recognize that, for those people, abandoning the collective in favor of proximal power in whiteness is to abandon--in different ways--parts of themself. Now, imagine it was you who held this reality of having no claim to the property interest in whiteness. Finally, in holding close your newly imagined reality, ask yourself, once more, the first question posed by this Note and consider whether your answer has changed or perhaps has even arrived to you now, for the first time: “What name would you call yourself if you had never been owned before?”

Summer Durant, Senior Solicitations & Submissions Editor for Vol. 68 of the Howard Law Journal and Class of 2025.