Excerpted From: Maureen Johnson, “That Little Girl Was Me”: Kamala Harris and the Civil Whites of 1964 and Beyond, 44 Cardozo Law Review 577 (December, 2022) (429 Footnotes) (Full Document)


MaureenJohnson“[T]hat little girl was me.” With five words, then-Senator Kamala Harris sent shockwaves across the stage at the first round of the 2020 Democratic Presidential Debates. Harris told the story of a five-year-old Black girl bussed into a white school in Berkeley, California. Harris put a name to the face: her own. No doubt, this was a watershed moment in America's struggle with racism. Harris called out a fellow candidate, former Vice President Joseph Biden, for aligning with two well-known segregationists in the 1970s to oppose nationwide mandated bussing. Biden had a chance to disavow his past conduct but had not quite done so. In an instant, Harris became a formidable candidate. One year later, Biden and Harris were sworn in as President and Vice President of the United States.

Vice President Harris's demand for accountability provides a frame to examine the evolving intersection of social and legal rhetoric pertaining to racism in America, beginning with the passage of the Civil Rights Act of 1964. The better moniker might be: the Civil Whites Act of 1964. It was pushed through Congress by white men with white sensibilities. But at least these were civil whites, as compared to those non-civil whites lining the edges of formerly white-only schoolyards with protest signs while shouting and spitting at children of color. Many did not even view themselves as racist; instead, they saw themselves as simply lamenting federal intrusion upon local government, all the while aligning themselves with known white supremacists and the Ku Klux Klan.

An iconic photo captures this hard-to-reconcile dichotomy. Two white children-- a little boy and a little girl--sit in the back of an old-school 1950s Chevy peering out from a rolled down window. The boy--perhaps only five years old--dons full Klan regalia, including a white cone perched on the crown of his very young head. A placard propped just underneath carries a divisive message: “Southern Whites are the Negroes' Best Friends but NO INTEGRATION.” If the Klan was Black America's best friend, who exactly was the enemy?

In the 1970s and beyond, even civil whites roared with laughter at bigoted caricatures like Archie Bunker of All in the Family, all the while ignoring the impact of insults hurled by real-life Archie Bunkers at real-life girls like Harris. And it was not just words. Entitled perpetrators shrugged off beatings, rapes, and even murders, often with the tacit approval of silent whites. Was it okay to bump elbows with white supremacists so long as you did not join in their cross burning? Was it okay to laugh at blatant racist content on a prime-time sitcom so long as you did not write the script? Was it okay to look the other way when a person of color was beaten so long as the blows landed were from fists other than your own? Complacency equals complicity.

This Article posits that accountability for past racial misdeeds paves the way for a seismic shift in how racism and antiracism is viewed in America. In the past, these constructs were viewed through a white- centered lens, both in the Supreme Court and in the populace. They should instead be viewed through the lens of those who know it best: people of color. A showdown is on the horizon. The Supreme Court granted certiorari in two cases involving equitable race-conscious admissions policies, at one private university (Harvard University) and one public (University of North Carolina) (jointly, the Admissions Cases). If intermediate scrutiny is applied, the policies easily stand. Arguably, Dobbs v. Jackson Women's Health Organization opens the door to do just that.

More particularly, Dobbs dodged an equal protection challenge by cursorily declaring that a Mississippi anti-abortion statute did not involve “invidious []” discrimination. While that presumption certainly can be disputed, the underlying legal principle was that the Constitution must be interpreted in accordance with then-existing intent. Notably, while the Fourteenth Amendment was intended to prohibit invidious race-conscious measures (e.g., laws prohibiting Black people from voting), the Fourteenth Amendment was never intended to prohibit equitable measures designed to redress racial disparities. In fact, the Fourteenth Amendment was drafted, at least in part, to ensure Congress had constitutional power to enact race-conscious measures solely benefiting Black people. Such measures may not have been called “affirmative action” back in the 1860s, but that is exactly what they were. Per Dobbs, if they were constitutionally permissible then, they are constitutionally permissible now.

The National Association for the Advancement of Colored People (NAACP) convincingly briefed the argument for intermediate scrutiny decades ago in the early affirmative action cases. These arguments were amplified by Justice Thurgood Marshall--the first and then-only Black Justice on the Supreme Court. They did not stick at the time, but only because of white-centered social rhetoric adopted by a white-centered Supreme Court dead set on protecting white privilege. But these arguments land perfectly under modern-day antiracist mores. Similar to the hindsight illogic of the “separate but equal” doctrine in Plessy v. Ferguson, future generations will wonder how the Supreme Court ever could have held that invidious legislation (e.g., Jim Crow laws) was the constitutional equivalent of equitable measures aimed at promoting diversity and alleviating racial disparities.

“That little girl was me.” Part I looks to the past by examining the backdrop surrounding both the passage of the Civil Rights Act of 1964 and the subsequent fish-gutting of affirmative action by the judiciary. Cries of “reverse discrimination” led the Supreme Court to turn the Act on its head, protecting so-called “innocent” whites from suffering detriment. And civil whites saw nothing wrong with that. Many wanted to stop out-and-out violence against Black people, especially Black children, and it certainly was fair for Black people to have an equal opportunity to compete for jobs and apply for housing, but was that not enough? The Supreme Court went along. By the end of the 1980s, all that was left of affirmative action was the ability of colleges and universities to narrowly consider race to promote diversity.

“That little girl is me.” Part II tells a different tale. Vice President Harris reflects an evolved majoritarian America set to reject white-centered frames that facilitate, if not outright coddle, racism. The summer of George Floyd proved that on both a national and international stage. Just as Harris called out Biden, movements such as Black Lives Matter (BLM) and #MeToo demanded accountability for both present and past misdeeds. “Cancel culture” yelled the right, “let bygones be bygones.” But is ignoring past misdeeds not a present misdeed? And is there not an obvious answer as to whether conduct viewed as racist and wrong under modern norms was racist and wrong back in the day? Slavery itself is an example, as is Jim Crow. Just because white-centered America may not have realized a racist act was wrong at the time does not make a racist act not wrong. Civil whites--as well as the Supreme Court-- could acknowledge past wrongs with the simple words: a better version of me (us) would have seen that.

With that frame in mind, Part II pairs current social rhetoric with the legal rhetoric advanced by Justice Marshall and the NAACP in early affirmative action cases. Against a modern backdrop, these dormant arguments make perfect sense. As noted above, the Fourteenth Amendment was passed in part for the exact purpose of ensuring Congress had the constitutional power to enact legislation solely benefitting Black people. That establishes a critical constitutional distinction between invidious and equitable race-conscious measures designed to redress racial disparities. The Fourteenth Amendment prohibits the former and permits the latter.

“That little girl will be me.” Part III looks to the future. The legacy of each generation is its impact on the next. Powerful Black female role models like Vice President Harris and Supreme Court Justice Jackson should be the norm, rather than the exception. The groundwork has already been laid by antiracist scholars like Ibram X. Kendi and Isabel Wilkerson, who explain caste and antiracism in simple, easy-to-understand terms. You are either part of the problem or part of the solution. Linguistically, “antiracism” could be the new “affirmative action.” And it has broad support in a growing slice of white America willing to atone for past racial misdeeds, specifically including complacency. That entails, inter alia, civil whites calling out other civil whites and lifting the veil of oblivion that log-jams racial equality.

Returning to the impact of Dobbs, Part III analyzes three potential outcomes in the Admissions Cases, as well as workarounds if the Supreme Court again stands in the way of racial equality by (illogically) barring consideration of race to counter racial underrepresentation. Conventional reading of the tea leaves suggests affirmative action will be pushed further down the constitutional trash bin. But conventional wisdom spelled doom when Obergefell v. Hodges was filed. There too, solid legal arguments supporting marriage equality existed for decades; they just fell on deaf ears until changing social mores demanded otherwise. The legal arguments and rhetorical gems penned by Justice Marshall and the NAACP similarly deserve their due. They could--and should--be the blueprint for recognizing the plain-as-day constitutional distinction between equitable and invidious race-conscious measures.

[. . .]

History is clearer in hindsight. Justice Harlan's dissent in Plessy easily rang true in a post-Brown world, even though it barely drew a yawn when first read over a century ago. The same will hold true for the eloquent and prophetic passages penned by Justice Marshall. They may not have captured the zeitgeist of their time, but they captured the zeitgeist of a better future. A better version of America will accept the stunningly simple notion that equitable race-conscious measures are constitutionally permissible and, arguably, mandated. That principle is soundly supported by both common sense and the plain language and legislative history surrounding the ratification of the Fourteenth Amendment. Nor can it any longer be ignored that while affirmative action--or lack thereof--may impact specific individuals (e.g., the litigants in a particular case), the more profound impact is on the children of tomorrow and the souls of the past.

As the debate regarding antiracism and affirmative action continues, may that debate give great weight to the arguments advanced by Justice Marshall and the NAACP, specifically including looking at racial inequality from the perspective of people of color. The Admissions Cases present the perfect opportunity for the Supreme Court to begin its retreat from the egregiously wrong decisions of the past unabashedly protecting white privilege. Institutions of higher education need to fervently push for racial diversity. And states must be permitted to at least allow colleges and universities to consider race as one criterion used to admit a diverse student body reflective of a multiplicity of demographics. May future little girls--and boys--wonder how the Supreme Court ever could have ruled differently.


Maureen Johnson is an Assistant Clinical Professor at the University of Connecticut School of Law.