Black/Brown Forum: Why Your Feelings Don't Matter

Recently an email was sent by ALES (our school’s Afro-Latino student organization) regarding a forum exclusively for “black and brown” students and faculty to discuss experiences they might have shared or feelings they might have about being black or “brown” on campus. On the one hand, many are arguing that a racial safe space is important for students to be able to express their feelings without judgment; on the other, some students feel outraged by the email’s segregationist message and deem it morally irresponsible of the club to promote this kind of discriminatory treatment. But in reality, the emotions expressed on both sides are irrelevant, because the forum was both illegal and unconstitutional.

When the Supreme Court ruled that the Civil Rights Act of 1964, in which all state laws allowing racial discrimination in private areas were declared illegal by Congress, constitutional, SCOTUS had the burden to prove that the federal government had the constitutional authority to pass such a law. In essence, the Supreme Court had to deem unconstitutional the very act of discriminating in private, thereby extending the Equal Protection Clause of the 14th Amendment to private enterprise.

There are those who argue that the Supreme Court did not declare private discrimination illegal, but rather that the court ruled the Civil Rights Act itself constitutional. But saying that the Supreme Court allowed a federal law banning a state’s right to discriminate or otherwise, means that it found a constitutional right not only justifying congressional power, but also justifying the law’s content to be constitutional. Saying that the Civil Rights Act is the only piece of legislation protecting minorities from racism in the job market or in buying homes means that if the act were repealed, the court wouldn’t be allowed to deem state discrimination laws unconstitutional. That’s just nonsense: I can assure you that if a bunch of racist KKK members took over Congress and repealed the Civil Rights Act, the Supreme Court would not allow individual states to protect racism in private spheres.

Because it extended the 14th Amendment in 1964, the Supreme Court does indeed deem private discrimination unconstitutional, and at the very least illegal. Thus, when a private institution condones a racially segregationist act, like the people of color forum here at Exeter, it is, in my legal mind, not only breaking the federal Civil Rights Act, it is violating the substantive expansion of the Equal Protection Clause. Because the school was aware of the forum taking place, that an official group on campus hosted the forum and that faculty participated in the forum, the school itself could and should be deemed treading on extremely thin constitutional ice.

Notice I’m not making a moral argument here: I personally have no political position on this issue. I’m not arguing against the notions of white privilege, minority oppression or movements like Black Lives Matter. All I’m saying is that the forum violated the highest law of the land, and could potentially put the school in a bad place legally.