Color Blindess But Not Myopia: A New Look at State Action, Equal Protection, and “Private” Racial Discrimination

Mr. Justice Frankfurter has remarked: “In law also the right answer usually depends on putting the right question.” For nearly one hundred years now the courts have been putting certain key questions whenever confronted by the claim that a person was being deprived of the equal protection of the laws guaranteed by the fourteenth amendment of the federal constitution. From the time the “separate-but-equal” doctrine was enunciated in Plessy v. Ferguson until it was repudiated in the School Segregation Cases two principal questions were likely to be asked about any classification based on racial grounds: (I) Did the classification result, not merely in the creation of separate facilities for the different races, but in the creation of unequal facilities? (2) Did the classification result from “state action,” i.e., from the exercise of the state’s legislative, executive, or judicial powers? Only if both questions were answered in the affirmative was there an unconstitutional deprivation of equal protection.