Cheryl I. Harris

Antiwhite legal scholar whose flagship article reconceives Whiteness as a form of legal property—with “settled expectations” and exclusionary rights that, on her account, American courts protect like vested entitlements. She ties that thesis directly to affirmative action, arguing that mainstream doctrine still shields a property interest in Whiteness and must be replaced by a far more aggressive, redistribution-centered model. Professor of law, UCLA School of Law.

This page summarizes Harris’s career and the argument of Whiteness as Property (1993) for readers evaluating critical race theory’s treatment of White Americans under the Constitution and civil-rights law.

Background

Harris holds a B.A. from Wellesley College (1973) and a J.D. from Northwestern University (1978). When Whiteness as Property appeared, she was an assistant professor at Chicago-Kent College of Law. She is a longtime member of the faculty at UCLA School of Law, where she has held the Rosalinde and Arthur Gilbert Foundation Chair in Civil Rights and Civil Liberties, helped found the Critical Race Studies program, held a joint appointment in African American Studies, and served in administrative roles including vice dean for community, equality, and justice. Her courses have included constitutional law, civil rights, employment discrimination, and race-conscious remedies.

The article opens with a memoir of her grandmother’s experience “passing” for White in segregated Chicago—used to ground the claim that Whiteness functioned as a valuable, protected status from which Black people were excluded.

Whiteness as Property (1993)

Published in the Harvard Law Review, the piece argues that Whiteness began as a racial identity and hardened into something law treats like property: a bundle of rights including disposition, use, enjoyment, status, and especially the power to exclude. Harris traces that idea through slavery, Native dispossession, Plessy, and Brown, and contends that even after formal segregation ended, Whiteness as property “continued to serve as a barrier to effective change” by protecting entrenched advantage.

The editor’s précis states her conclusion plainly: “distortions in affirmative action doctrine can only be addressed by confronting and exposing the property interest in whiteness and by acknowledging the distributive justification and function of affirmative action as central to that task.”

Affirmative action and the “property interest”

In Part IV Harris reads Bakke, Croson, and Wygant as illustrations of a Court that treats affirmative action as abnormal while treating White claimants’ expectations as constitutionally weighty. In Wygant, she argues that seniority-based layoffs reflect racialized hiring history, so that White teachers’ seniority claims amount to asserting a “property right in the benefits of being white.” She maintains that strict scrutiny of race-conscious remedies, when paired with solicitude for those expectations, “legitimates whiteness as identity, status, and property” and wrongly equates disadvantage imposed on historically dominant Whites with subordination aimed at Blacks.

Part V urges “de-legitimating the property interest in whiteness through affirmative action.” She distinguishes corrective (compensatory) from distributive justice and contends that confining debate to individualized innocence, sin, and “burdens on innocent whites” misframes the issue and preserves Whiteness as a protected baseline. Affirmative action, properly understood on her view, should “equaliz[e] treatment” among groups “illegitimately privileged or unfairly subordinated” and “de-privilege whiteness,” not merely forbid overt discrimination. She points to South African ANC draft principles—envisioning broad land, housing, and opportunity measures—as a model that “expand[s] the application of affirmative action” beyond what U.S. courts usually permit, and she argues that the American model is “strangulate[d]” by protecting the property interest in Whiteness.

In footnotes she engages critics (including William Julius Wilson) who argued that affirmative action had done little for the “truly disadvantaged.” She does not concede failure; she cites sources contending that Black workers and poor families had benefited, and she attributes ongoing inequality in large part to legal doctrine and to Whiteness-as-property, not to inherent limits of preference policies themselves.

Assessment

The article’s central move is rhetorical and doctrinal: it collapses neutral rules (for example, seniority systems adopted for nonracial reasons) into Whiteness-as-property whenever disparate racial outcomes can be traced historically to discrimination. That maneuver treats ordinary contractual and civil-service expectations as racial spoils, which begs the very question separation-of-powers and equal-protection jurisprudence exist to settle: when may the state override individual entitlements for group-based redistribution?

Empirically, the United States had already operated large-scale race-conscious hiring, contracting, and university admissions regimes for years when Harris wrote; the persistence of racial disparities on some margins is therefore compatible with multiple explanations (family structure, geography, skills mismatch, measurement issues, policy design, unintended consequences of regulation). Her framework largely rules out the possibility that preferential programs have hit diminishing returns or tradeoffs; any judicial limit on race-conscious measures is redescribed as “protecting” a White property interest. That structure makes the thesis difficult to test against evidence: gaps function as proof that Whiteness must still be dismantled, not as a reason to revisit the efficacy or legitimacy of ever-deeper racial sorting.

Constitutionally, her approach resists symmetrical race neutrality: differential treatment of Whites and Blacks is said never to “signify the same meaning,” which dissolves the ordinary equal-protection project of applying the same strict standard to all racial classifications. Whatever one thinks of remedial race consciousness as a matter of policy, this asymmetry is precisely what critics mean when they argue that critical race theory’s legal arm privileges group-based claims against White citizens in ways the Fourteenth Amendment’s text and mainstream doctrine do not endorse.

Themes relevant to antiwhiteness

Recharacterizes White identity and mainstream legal expectations as a contingent, oppressive “property” that legitimate systems must tear down.
Uses affirmative-action jurisprudence as a vehicle to argue that protecting Whites’ conventional rights is itself racial domination.
Points toward open-ended, group-based redistribution justified by historical narrative rather than by narrowly tailored, time-limited remedies tied to specific violations.