Civil Rights in Living Color

Vinay Harpalani

This Article will examine how American civil rights law has treated “color” discrimination and differentiated it from “race” discrimination. It is a comprehensive analysis of the changing legal meaning of “color” discrimination throughout American history. The Article will cover views of “color” in the antebellum era, Reconstruction laws, early equal protection cases, the U.S. Census, modern civil rights statutes, and in People v. Bridgeforth—a landmark 2016 ruling by the New York Court of Appeals. First, the Article will lay out the complex relationship between race and color and discuss the phenomenon of colorism—oppression based on skin color—as differentiated from racism. It then will analyze“color” in Reconstruction Era anti-discrimination laws, examining how both “race” and “color” came to be included in these laws. It will illustrate that under early equal protection cases, prohibitions on “race” and “color” discrimination both aimed to curb racism. “Race” and “color” were equally important, but under the Fourteenth Amendment, “color” discrimination never developed any meaning independent of “race” discrimination. The Article will show how “color” began disappearing from equal protection jurisprudence, just as civil rights efforts to address race discrimination became successful. It will then discuss how “color” reemerged in cases involving modern civil rights statutes and how these cases define “color” discrimination differently, focusing on colorism rather than racism. Additionally, color discrimination claims under these statutes have only applied to an individual member of one racial subclass, such as a dark-skinned Black plaintiff. However, in Bridgeforth, the Court of Appeals recognized a multiracial color class, composed of a group of dark-skinned individuals of different races, for equal protection-based Batson challenges to juror exclusion. Bridgeforth was the first case to allow Batson challenges for color discrimination, and the first color discrimination case under any law to recognize a multiracial color class. This Article will consider the potential of multiracial color classes for the future of civil rights law.