On April 20, 2021, a jury convicted former Minneapolis police officer Derek Chauvin for murdering George Floyd. Following the trial, Professor Kimberlé Crenshaw reflected that “until the very moment the verdict was read, it was an entirely open question whether, to paraphrase the Supreme Court’s decision in Dred Scott, Black people had rights that anyone was bound to respect.” Crenshaw’s words underscore that no matter the evidence—not even video of knee on neck—the trial confronted an American script in which accountability so often eludes the annihilation of Black bodies. And as Devon Carbado reminds us, the law is not a passive bystander in this script, but rather facilitates and immunizes police violence—a “co-conspirator” of sorts. Even so, the jury delivered the “right verdict”—and with it, a moment of long-awaited relief for many.
President Biden has since called on Congress to pass the George Floyd Justice in Policing Act, which contains a package of police reforms. After passing the House in March, the bill has stalled in the Senate. Among other noted concerns, GOP leaders decry the proposed elimination of qualified immunity. This opposition could be read as a fight over policy. But a more fundamental dispute divides Congress and the country. Beyond implicating competing visions of where to go, ongoing calls for police reform have resurfaced a longstanding debate over who we are—a debate cast in the following terms: Does racism remain a central and defining feature of policing and American society more broadly?
In recent remarks, Republican Senators Tim Scott and Lindsey Graham answered in the negative—relegating racism to an ignoble past. Senator Graham, for his part, cited the historical elections of President Obama and Vice President Harris. These data points are nice but prove far too much. By extension, one might argue that Mississippi and Louisiana have been racism-free since 1870 and 1875 when each elected its first Black senator.
I doubt many are ready to go there. And yet, many—including self-identifying liberals and progressives—likely share the Senators’ underlying premise: The United States was, but no longer is, a racist society. Vice President Harris said as much when she concurred that “America is [not] a racist country.” To be fair, the Vice President also insisted that we “speak the truth” regarding racism’s ugly history in America. I welcome and support this addendum. It is hard to imagine a truly post-racial America that does not first account for—and remedy—a history of racial sins forged in conquest and enslavement.
The trouble is, by dichotomizing who we were and who we are, the Vice President risks reproducing a story of post-racial America that neatly cleaves the (racist) past from the (not racist) present. My point is not that the present mirrors the past. Nor am I suggesting that the post-racial branding that followed Obama’s election survived the Trump years unscathed. Four years of an administration that leveraged nostalgia for American Apartheid leaves little room for the myth that race no longer matters in this country.
That said, it would be a mistake to think we have abandoned notions of a post-racial America. Such a claim was always more about how racism functions than whether racism exists (though the former informs the latter). Tracking decades of constitutional doctrine, post-racialism reduced racism to the aberrant and animus-laden acts of individual bad actors. This conceptual move matters. By defining racism so narrowly, we compromise our ability to see how sites of racial power and other vestiges of legalized white supremacy—untethered to any individual—manifest across society. We thereby naturalize and immunize from public scrutiny a status quo defined by the unequal distribution of wealth, power, and exposure to premature death.
Our attachment to a national image that divorces a problematic past from a racially transcendent present should not surprise us. As Jennifer Richeson recently explained, among our “master narratives” is the myth of inevitable and linear racial progress. George Floyd’s murder, and our national consumption of it via viral video, seemed to pierce that narrative. Protests in the name of racial justice arose across the country and around the globe. Beyond condemning police violence, the protests marked a referendum on—and rejection of—the enduring story of post-racial America.
One risk, accordingly, is that Chauvin’s conviction soothes the reckoning and revives faith in the status quo. Put slightly differently, the verdict’s legacy is not self-executing. Whether it motivates further reform or stalls future progress will turn, in part, on how we remember this moment and the lessons we draw from it. Will we remember Chauvin’s conduct as an isolated and aberrant act (and the verdict as a system up to the task) or will we view Floyd’s murder as the foreseeable consequence of a system that systematically devalues Black and brown life (and the verdict as “not justice, but accountability”)?
To appreciate how collective memory and lessons learned can impact our sense of past and present, it is worth turning—briefly—to a different moment in American history: Brown v. Board of Education.
We celebrate Brown as a decisive victory for racial equality—a pillar of our racial progress narrative. Brown’s stature in this regard is unrivaled. As told by Professor Derrick Bell, Brown has become “an American Icon embraced as a symbol of the nation’s ability to condemn racial segregation and put the unhappy past behind us.”
As a formal matter, the standard Brown story has merit. The Supreme Court repudiated a “separate but equal” standard that underwrote decades of Jim Crow. In this sense, the Supreme Court discovered a Constitution that no longer sanctioned the de jure segregation that touched all corners of public life in America.
But as a practical matter, Brown hardly represents a racially transcendent nation. To begin, the Supreme Court’s pronouncement did little to alter the educational landscape across the country. Why? Much of the answer lies with white communities who relentlessly, insidiously, and violently resisted desegregation efforts. Resistance was swift and enduring—to a meaningful degree, it continues to this day.
The most effective desegregation efforts occurred in parts of the South subject to aggressive judicial oversight. But following shifts in cultural and legal commitments to desegregation—including diminishing judicial engagement and waning executive enforcement—even these gains eroded. In contrast to areas that experienced a period of meaningful desegregation, racial isolation only increased in much of the North and Midwest. Anti-black violence is central to this failed desegregation story. As the US Commission on Civil Rights observed in 1967, “violence against Negroes continues to be a deterrent to school desegregation.”
Even “successful” desegregation rarely delivered Brown’s promise of equal educational opportunity. The prevalence of one-way desegregation, which sent Black and brown students into white schools, often forced students into institutions hostile to their very presence. Moreover, this practice precipitated the closure of countless Black schools and the dismissal or demotion of a generation of black educators. The effects continue to be felt today.
The foregoing account is cursory and incomplete. But even this limited review adds texture to the Brown story we so often tell. In many respects, white resistance to desegregation—coupled with the loss of Black educational spaces—is the story. Accordingly, if Brown embodies the best of America, and Brown is a story of organized and violent resistance to racial equality: Who are we?
Beyond sanitizing the past, the standard Brown story reduces Jim Crow, and its concomitant evils, to formal racial exclusion. The corresponding emphasis on formal inclusion impedes racial progress on at least two fronts.
First, we risk conflating formal equality—that is, the absence of de jure segregation—with measures that alter actual conditions on the ground. Brown embodies the limits of formal equality. It has been nearly seventy years since Brown and racial segregation remains a hallmark of our schools.
Second, the focus on exclusion as the primary impediment to equality obscures how racial power extends beyond the school-house gate. As Juan Perea described, “equality [under Brown] meant simple school integration without any accompanying change in the cultures of the schools.” The ensuing failure to reckon with racism embedded within institutions—even well-intentioned institutions—compromises our ability to create institutional environments that work for everyone. In short, our faith that formal equality effectuates racial neutrality—a faith anchored, in part, to lessons gleaned from Brown—obstructs our ability to diagnose and dismantle sites of racialized power within institutions and across American society.
This latter point brings us back to the Chauvin trial and ongoing efforts to reform policing. On the one hand, Brown offers a cautionary tale. Widespread resistance and fragile federal commitments undermined a moment of potential transformation. The absence of this story from our collective memory and our adherence to lessons learned from Brown threatens to defuse this moment as well.
But we might read Brown differently. To begin, Brown reminds us that resistance is an intimate bedfellow to the quest for racial equality in America. This knowledge does not answer how to proceed, but cautions against an approach that prioritizes consensus over conviction. It also reminds us that beyond any verdict, prospects for change will turn, in part, on how we remember this moment and the lessons we learn (or unlearn).
Jonathan Feingold is an associate professor at the Boston University School of Law. Professor Feingold studies how legal regimes reinforce and reproduce racial hierarchy. The author thanks Jonathan Glater, Stacy Hawkins, and Vinay Harpalani for comments on a prior draft.
Suggested citation: Jonathan Feingold, The Chauvin Verdict and Lessons from Brown: Who Are We, America?, JURIST – Academic Commentary, May 10, 2021, https://www.jurist.org/commentary/2021/05/Jonathan-Feingold-lessons-from-chauvin-verdict-and-brown/.
This article was prepared for publication by Lubaina Baloch, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
