Category: WK3: Settler Colonialism – Property

In Whiteness as Property, Professor Cheryl I. Harris examines how “whiteness” functions as an exclusive property right in the United States, one that has been legally protected and upheld for a select few. She discusses two landmark cases, Plessy v. Ferguson and Brown v. Board of Education, to demonstrate how legal systems have shaped and maintained the concept of whiteness.
In Plessy, the ruling reinforced the idea that whiteness was a privileged status, making it clear that whiteness was not just a matter of physical appearance, but something more intangible and powerful. This case created a legal protection that effectively upheld racial inequality, even if it did not explicitly define whiteness. Later, Brown v. Board of Education overturned Plessy by declaring segregation in public schools unconstitutional. However, Harris argues that Brown still left ambiguity about what equity really meant in relation to the concept of “whiteness.” By avoiding a clear definition of whiteness, the ruling prevented a broader, more inclusive understanding that might have challenged the racial status quo. This lack of definition allowed systemic inequalities to persist, including in education, where disparities remained even after Brown. Through both these cases, we are able to see the importance and power of ambiguity in law because it creates space to delegitimize people of color and preserve and empower “whiteness”.
Harris also offers a specific definition of Affirmative Action: “a principle, internationally recognized based on a theory of rights and equality…[it] calls for equalizing treatment by redistributing power and resources in order to rectify inequities and to achieve real equality” (1788). This definition expanded my understanding of Affirmative Action. I had often been told it was simply about diversifying spaces, but I had never fully grasped its role in dismantling the systemic exclusion of people of color. Affirmative Action was not just about representation, it was about redistributing power and challenging the foundations of “whiteness.” Although the article was written some time ago, the recent removal of Affirmative Action in higher education highlights how the US continues to protect the exclusivity of “whiteness.” The dismantling of these policies further demonstrates that Affirmative Action was effective in challenging the legitimacy of racial hierarchies and pushing for real equity but the US system did not want that, they wanted a fake bandage.

Within Whiteness as Property there are discussions of the two cases,  Plessy v. Ferguson and Brown v. Board of Education, the malleability of identity in the United States, and how policies through history reinforced an environment of racial discrimination. In the piece, it becomes evident that Plessy v. Ferguson and Brown v. Board of Education are cases that demonstrate the United States attempt to implement change that works toward racial equality but due to vague language and lack of actions that work to create equitable change, society remains stagnant and people of color continue to face racial discrimination embedded within the society. This connects to the idea that “Whites have come to expect and rely on these benefits, and over time these expectations have been affirmed, legitimated, and protected by the law” (1713). Instead of creating a system in which all are uplifted and receiving the same resources, historically and in the present the United States has created a system in which those that are White are able to benefit the system more due to decades of racial discrimination. Along with discussion of specific cases, Harris discusses how identity is interpreted differently throughout time, especially racial identity where depending on the identity groups you have to prove your identity in order to access or be prevented from having access to resources (1714). The government’s intention of categorizing humans in order to decide the access to resources connects to the principle that Whiteness as Property means that policies and implementation of policies work to aid White people and it becomes an asset that those not of the racial identity group can access. These observations by Harris are important to understand due to it currently affecting present day life, the way different identity groups navigate, and to be informed of new policies that dismantle this racist agenda or support it. One of the topics I enjoyed reading in Harris’s writing is the discussion of affirmative action as she connects the historical connections of White privilege and its intent to “remove the legal protections of the existing hierarchy spawned by race oppression” (1779). It is an important topic especially due to recent government actions to eliminate affirmative action which opens a conversation about different methods to approach ways to implement changes in the system that benefit racial equity.

In Cherly Harris’s publication “Whiteness as Property,” she creates this concept to explain how whiteness is a metaphysical piece of property that grants white people rights based solely off of the color of their skin. This term can be applied to both historical cases such as Plesy v Ferguson and Brown v the Board of Education as well as in modern day settings with regards to affirmative action. 

The ideas mentioned in why the right side is against affirmative action, specifically the concept of innocent whites,  reminded me of the concept of the settler moves to innocence discussed in Tuck and Yang’s “Decolonization is not a metaphor.” Although colonization and slavery, as well as the systemic racism aftermath of slavery, are not the same, the second text’s idea of conscientization comes to mind. Specifically on page 1767, Harris argues that white people acknowledge the wrongdoings of their ancestors but their refusal of affirmative action to undo system racism and the equal access of opportunities, especially education. This is similar to how white people refuse to give back indigenous people’s lands and feel that other initiatives and acknowledging the past are equivalent to decolonization. 

With the Supreme Court’s ban on affirmative action in college admissions, schools are finding other ways to still admit a diverse class. One way is by “…push[ing] colleges to admit more transfer students from community college, which admit higher numbers of Black and Latino students” (Binkley). Although what the court declared is definitive, each school can choose to use their own interpretations to uphold their own values. This reminds me of the Plessy v Ferguson case with the court’s ambiguity of what blood quantum is needed to categorize a person of mixed descent into either category, instead delegating this topic to each state’s own opinion. Many other cases and mentions in the readings thus far show how the ambiguous law filled with exceptions help cater to the needs of white people and defend their property. This way of the law being obeyed but still trying to undo the systemic racism is a small win in the scheme of things when obeisance of these laws usually benefit white people but are here used to support black people. 

Binkley, C. (2023, October 16). Colleges should step up diversity efforts after affirmative action ruling, the government says. AP News. https://apnews.com/article/affirmative-action-college-admissions-supreme-court-7630219eaf624bec19bc2e0d2f56c0c7?utm_source=chatgpt.com

Wood, S. (n.d.). What the Supreme Court’s affirmative action ban means for college admissions | applying to college | U.S. news. What the Supreme Court’s Affirmative Action Ban Means for College Admissions. https://www.usnews.com/education/best-colleges/applying/articles/how-does-affirmative-action-affect-college-admissions

Cheryl I. Harris’ Whiteness as Property as a foundational piece of scholarship for critical race theory, provides an enhanced understanding of how whiteness has evolved from “color to race to status to property” (1714). As the namesake of the article, Harris pays particular attention to the legal and social realities that have made way for whiteness to go from an intangible concept to a tangible entity, citing various court cases that have upheld and developed the construction of race in conversation with white supremacy. Harris broadens our understanding of whiteness by articulating the entity in relation to racial otherness and conceptualizing “property” – as it pertains to appropriation of labor (Blacks) and appropriation of land (Native Americans). Racial subordination and economic domination, in  conversation with the shared premise of exclusion held by whiteness and property become even more relevant as Harris goes on to connect this the reification of this concept through the Supreme Court cases of; Plessy v. Ferguson and Brown v. Board of Education. Both cases deal with whiteness as it manifests through the “separate but equal” doctrine; however, the former upholding said doctrine, and the latter’s challenge ultimately overturning it. In essence, these cases emphasize the structural nature of “whiteness” as it is “something that can be both experienced and deployed as a resource” (1734). She finally goes into affirmative action and underlines the process as it mediates the racialized privileges associated with whiteness and “whiteness as property.” I had two main pre-read impressions of Harris’ article; this reading is really long, and this reading must be dense with legal jargon (given that it is housed in the Harvard Law Review). After reading the article, Harris’ articulation of “whiteness as property” in conjunction with the conceptualization of my own independent research project, has provided a much needed area of discussion to consider not only brownness’ relationship to blackness, but brownness to whiteness, given the implications of property that this article presents. I agree with Harris’ argument of whiteness and property in connection to exclusivity/exclusion, especially as it relates to my project. Given that the article was published in 1993, I think it would be interesting to examine how whiteness and/as property manifests in much more contemporary legal cases.

Harrison began introducing Whiteness as Property by telling her grandmother’s story, which “illustrates the valorization of whiteness as treasured property in a society structured on racial caste” (1713). The way that Harrison names this racial inequality as “Racial Caste” made me think of the casta system in colonial Latin America, where people were organized into a system based on race that controlled every aspect of their lives and socio-economic status. In this system, Black people and Indigenous Peoples were considered lower than White People, and the myth of blood purity arose as racial mixing occurred. I can see many parallels between contemporary racial differences and the colonial caste system, showing the lasting effects of white supremacy ideologies and colonization.

She then illustrates how the concept of whiteness as property originated from slavery, and how Black people were treated as economic assets, as seen in Jefferson’s story and the Johnson v. Butler case. After introducing how slavery began as a relationship between owners and property, she further defines the concept by showing the legal definition of property: “Property is thus said to be a right, not a thing, characterized as metaphysical, not physical” (1725). These rights are enjoyed by white people, and exclusively by white people. These exclusive rights manifest in the racial segregation phenomenon in the Plessy and Brown cases. Through these legal cases, along with anecdotes and personal stories, Harrison has effectively illustrated the effects of whiteness as property in many areas. In this context, although Brown’s case led to the end of tangible racial segregation, Harrison then demonstrates how racial inequalities still manifests in many present-day areas.

Affirmative action is one contemporary example that highlights the lasting phenomenon of racial inequalities. Harrison argues that affirmative action is a principle of equality and challenges the pre-existing privileges that were exclusive to white people. Affirmative action remains a widely discussed topic in higher education, especially after the U.S. Supreme Court ruled against racial classification in college admissions. A range of responses were enacted by different colleges—some supported the Supreme Court decision, while a vast majority did not. This leaves room for future legal discussions.

“Whiteness as Property” analyzes the historical, legal, and cultural conceptions of whiteness. Harries describes how through laws like the Black Codes, whiteness came to stand for free people and Blackness for enslaved people. Whiteness became enshrined in law through the three-fifths compromise, the enfranchisement of all white men regardless of property ownership, Plessy, and countless other court decisions. Harris goes on to discuss ways that we define property – rights of disposition, right of use and enjoyment, reputation and status, and the absolute right to exclude – and demonstrates how each of these are also facets of whiteness. This creates her thesis that whiteness is property: it can be used by white people as “the master-key that unlocks the golden door of opportunity,” others can be excluded from its benefits (e.g. the “One Drop” rule), and white people expect the privileges of whiteness and feel stripped of a thing of value when that expectation is subverted. Harris also discusses Brown, what it accomplished, and most importantly, what it failed to accomplish. She concludes with a discussion of affirmative action and its potential for challenging whiteness as property.  

This is a long and dense text, but it accomplishes an astonishing amount. Harris establishes the historical and legal evidence of how whiteness was intentionally crafted to serve white people in the same way that property does. She shows how this is not just an analogy for the power of white privilege but a reality that is baked into our legal system. By discussing Brown, hailed by white people as the decision that fixed segregation, she reveals how the courts have changed from “race-ing a group” to create racial subordination to a “color-blind,” liberalist denial “denial of the existence of racial groups.” This did nothing to solve the material, economic and social inequality that still pervades American society. She then goes into a brilliant discussion of affirmative action. She advocates for a distributive rather than corrective approach. I was most captivated by her discussion of court cases that challenged affirmative action. These cases precisely prove her point; white people expect privilege and when that undue benefit is taken, they act as if their property has been taken. I wish she would have discussed the idea of the “innocent white” a bit more. The notion that white people today are innocent in white supremacy despite benefitting from it seems worth further discussion.  

The document Whiteness as Property by Cheryl I. Harris presents an interesting perspective on how one would look at whiteness. For most of my life and many others, being white was simply a type of race. Harris challenges this view by claiming that rather than being something immaterial and assigned, she sees it as something more physical, with the ability to contain it as property. To further prove her point, she mentions cases such as Plessy v. Ferguson to exemplify how the white man consistently sought to withhold their whiteness from other people who claimed to have been white. This brings up one of her major points, in that the ability to restrict other people’s claims to their whiteness further proves her point of it being property. As I see it, something you buy at the store, let’s say an apple, prevents other people from having a claim to that apple. You’re able to enjoy the full benefits of said apple. Similarly, white people, through the cases, seek to restrict whiteness from other people, especially those who are white-passing. The decisions of these cases would then restrict others from experiencing the benefits of whiteness.

Harris goes further into her argument by mentioning cases that sought to challenge one’s claim to their indigenous identity. For instance, Mashpee Tribe v. Town of Mashpee in which descendants of the Mashpee tribe sought to reclaim Mashpee land, however, the decision ruled that the plaintiffs were not Mashpee, as they had assimilated with non-Indigenous society and had lost their Mashpee claim. Instances like this present the power of whiteness throughout history. Laws were made to specifically benefit the white population and further justify their presence on indigenous lands. Harris also dives into affirmative action, and how it serves as a remedy for the injustices of whiteness. Strangely though, those who possess whiteness claim such actions to be unjust to white people.

Harris’ takes on whiteness is certainly interesting. I had never thought that being white could be a form of possessing property. But looking at recent events, such as companies rolling back on their DEI affirmative action policies, we get to see groups of white people feel as if their privileges of whiteness are being taken away. So, they decided to roll back on programs that aimed to control the benefits possessed by whiteness.  It’s truly disappointing how we still see such instances today.

In the essay Whiteness as Property, author Cheryl I. Harris writes about the roots of American racism. She discusses the legal and social privileges of white people and disadvantages of black people, along with the evolution of these bases of racism and some of the big forms of implementation of these social and legal constructs. As the essay progresses, she transitions from the presence of whiteness as property to affirmative action and the way that the property interest in whiteness has been slowly, but surely, diminished and reduced over the years. 

Harris discusses the original definition and viewpoints of “property” and how black people were associated with being considered property while white people were protected from this disadvantage and were privileged enough to be considered fully human. She writes about how only white people can own property and that many laws and definitions were carefully constructed to favor and benefit white people. She goes on to discuss major cases in Plessy v. Ferguson and Brown v. Board of Education to give major examples of how racism and discriminatory laws negatively impacted black people and benefited their white counterparts. I agree with Harris’ ongoing point that race goes far beyond a physical and visual identity, rather that race is embedded into social structures, norms, and laws. I found it interesting how Harris connects laws and rules regarding racism and property during the early stages of America to the more modern forms of racism and the way the concept is viewed and used today. She essentially created a timeline of the way racial inequalities have been present in America, both legally and societally. 

The final portion of Harris’ essay where she discusses modern-day forms of affirmative action ties together the entirety of her essay in a sense where after discussing the roots of racism, she displays ways that society is attempting to remedy or reverse the long-term impacts of these roots. She insists on the importance of recognizing that black people still suffer from the original definitions of property and laws that disadvantaged black Americans. She concludes her essay to say “it is long past time to put the property interest in whiteness to rest” and states how affirmative action is a step towards “shedding the legacy of oppression” (1791).

Overall, I agree with Harris’ points. Much of the essay is purely factual while the final major portion is more opinionated and less definite. I believe that the original definitions and views of property in America created a system that has continued to set black people back and still does to this day. There is a way to eventually get rid of this system altogether, it will just be a very long and very slow process, and affirmative action is the first step in this process.