The Yale Law Journal

February 2019

The New Jim Crow Is the Old Jim Crow

Antidiscrimination LawCivil-Rights LawConstitutional Law

abstract. A vast divide exists in the national imagination between the racial struggles of the civil rights era and the racial inequality of the present. The attitudes and legal strategies of segregationists in the civil rights era are conceptualized as explicit, gross, and founded exclusively in raw racial animus. In contrast, racial inequality in the present is conceptualized as subtle, subconscious, and structural. The causes of modern racial inequality—and the obstacles to its remediation—are thus characterized as fundamentally distinct from those undergirding historical racial inequality.

Drawing on the recent work of Elizabeth Gillespie McRae and Jeanne Theoharis, as well as other historians of the South and the civil rights movement, this Book Review argues that this over-simplified account obscures key continuities between our racial past and present. As the work of McRae, Theoharis, and others has shown, facially race-neutral opposition to racial equality and integration did not originate in the modern era but rather long predated Brown v. Board of Education in both the North and the South. Moreover, many of the justifications that segregationists offered for their actions—such as a desire for good schools and safe neighborhoods—do not look so very different from the justifications that we continue to rely on to legitimatize racial inequality today.

Thus, an accurate accounting of our national history of racial discrimination—rather than substantiating a sharp break between past and present—reveals many uncomfortable continuities. This Book Review suggests that recognizing and coming to terms with this more complex history is critical to contemporary racial-equality work, both in and outside the courts.

author. Professor of Law, Rutgers Law School. Many thanks to Elise Boddie, Vinay Harpalani, Stacy Hawkins, Earl Maltz, Kim Mutcherson, Christopher Schmidt, Rick Swedloff, Anders Walker, Mary Ziegler, and participants in the Rutgers Legal History and Law and Society affinity group for helpful feedback and conversations regarding this project. This piece benefitted greatly from the editorial suggestions of the editors of the Yale Law Journal, including especially Dylan Shea Cowit. Finally, my sincerest thanks also to the generations of critical race scholars whose work helped shape my understanding of the history recounted herein. Note that although the title of this piece is an obvious allusion to the title of Michelle Alexander’s excellent book, The New Jim Crow, it is not primarily intended to be responsive to that book—and indeed, to the extent one major project of Alexander’s is to point out continuities between the past and the present, her work is consonant with the observations made herein. However, to the extent that The New Jim Crow, like many other sources, casts our racial history as focused on explicit Jim Crow laws and bigoted white Southerners, I view it as important to complicate those accounts for the reasons described herein.