The walking dead: how the logic of Plessy v. Ferguson is preserved in equal protection law in the 21st Century

Abstract

The Supreme Court overturned Plessy in 1954. However, we argue that the logic of Plessy is still alive and well today. Through a qualitative critical policy analysis of Plessy v. Ferguson (1986) and three contemporary cases (Department of Homeland Security v. University of California (2020), Gary B. v. Whitmer (2020), and Students for Fair Admissions v. Harvard (2020)), we examined how Plessy remains alive in contemporary equal protection law. We found little separation between the legal analysis in Plessy and the legal reasoning in the subsequent cases. We call this legal reasoning–emphasizing meritocracy, colorblindness, judicial epistemic injustice, and ahistoricism–Plessy light. We argue that these “Plessy light” decisions show that a “separate but equal” mindset was not vanquished in 1954 but simply evolved. We discuss recommendations that could kill Plessy in future jurisprudence, and consequently, have a positive impact on students of color as the United States becomes a minority-majority country.

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