Ghosts of Jim Crow
California Lawyer

Ghosts of Jim Crow

Ending Racism in Post-Racial America

September 2013

Ghosts of Jim Crow:
Ending Racism in Post-Racial America
by F. Michael Higginbotham
New York University Press, 325 pages, hardcover, $29.95

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Fifty years after 250,000 people heard Dr. Martin Luther King Jr.'s "I Have a Dream" speech during the March on Washington protesting oppression against African Americans, our country grapples with racism fueled by a social paradigm that has favored whites for almost four centuries.

In his new book, Ghosts of Jim Crow, F. Michael Higginbotham carefully examines the racial hierarchies in the U.S. - established first by slavery in the colonies, maintained by Jim Crow laws and practices after the Civil War, and perpetuated today by so-called "race neutral" policies. The book ends with some bold (and some questionable) recommendations on how we can build a truly post-racial America.

Higginbotham, a law professor at the University of Baltimore, starts with an abbreviated story of his life. Raised in Beverly Hills, he attended both private and public primary schools, excelled in football, graduated from Ivy League schools, and was recognized in both law and politics.

"I am black, by the way," he writes, as a preface to sharing with the reader his own intimate encounters with racism - making a point that race still trumps class in America.

Higginbotham's book is his response to the mirage of racial equality created by those who point to President Barack Obama's historic election and the success of celebrities like Oprah Winfrey. He mentions the execution of Troy Davis and the killing of Trayvon Martin, both black, to illustrate the realities of racism today. Davis was executed by the state of Georgia for a murder that he may not have committed; the unarmed Martin was shot and killed in Sanford, Florida, by a man who claims to have acted in self-defense.

Higginbotham asserts that our society's racial paradigm is based on the false belief of white superiority and black victimization, the construction of a hierarchy of races, and their physical separation. This paradigm was shaped in the formative years of the United States, mainly through slavery - an intractable part of the beginnings of this country that was codified in the Constitution - as well as by law and through judicial review. The Dred Scott decision (60 U.S. 393 (1857)), which declared that blacks, free or slave, were not American citizens, says Higginbotham, "embraced the racial paradigm by lumping free blacks and slaves together."

The Civil War may have freed the slaves, Higginbotham explains, but they could not escape the paradigm. After the end of the Civil War, federal government policies appeared to be working. Schools were established for black children, who previously were intentionally denied an education. The Reconstruction Amendments, including the Fourteenth Amendment, which granted citizenship to newly freed slaves, allowed blacks to exercise political power resulting in, among other things, the election of Mississippi's Hiram Revels as the country's first black U.S. Senator. These gains were short-lived. Poll taxes, literacy tests, cuts in education funding, and court decisions such as Plessy v. Ferguson (163 U.S. 537 (1896)) established Jim Crow policies and practices to replace slavery in order to maintain the racial status quo.

The civil rights movements of the 1950s and 1960s changed America for the better, but the paradigm continued. The school desegregation decision (Brown v. Board of Education, 347 U.S. 483 (1954)) "failed to prevent black separation and white isolation in education," says Higginbotham. The ruling was "ultimately ineffective because society clung to its false notions of white superiority and black inferiority." The Civil Rights Act of 1964, the Voting Rights Act of 1965, and subsequent affirmative action policies uplifted blacks and expanded opportunities, but left the racial paradigm mostly intact.

In his conclusion, Higginbotham recommends such solutions as passing a constitutional amendment guaranteeing the right to an education (such as that enjoyed by South Africans), criminalizing private race-based discrimination, and establishing a "disparate impact" standard in the law to replace the intent standard instituted by the Supreme Court's decision in Washington v. Davis (426 U.S. 229 (1976)).

The book largely succeeds in proving that a longstanding racial paradigm continues to prevent equal opportunities for blacks and other people of color in this country - and demonstrating how this paradigm has survived through almost four centuries based on different means of oppression. Higginbotham liberally cites statistics and court cases, making the book an excellent addition as required reading for a university course.

One flaw with Ghosts of Jim Crow is that it illustrates the country's race problems almost exclusively through a black-white lens. Native Americans, Latinos, and Asian Americans are rarely mentioned, and never discussed in Higginbotham's racial paradigm. One can understand this approach taking into account the complexity of abbreviating African American history over four centuries. But it does leave the reader lingering with the question of how other people of color fit into the equation.

Keith Kamisugi is the director of communications at the Equal Justice Society in San Francisco. Allison Elgart is the organization's legal director. EJS is a national legal organization focused on restoring Constitutional safeguards against discrimination by intersecting the law, social science, and race.

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