Constitutional Law II
Purpose & Effect
Spring 2005
Con Law II
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Washington v. Davis
(1976)
Claim: Use of Test 21 for hiring violates EP
ENDS: Competent Police Force
MEANS: Intelligence Test (Test 21)
Standard of Review (degree of slippage)


Does “Test 21” discriminate on basis of race?
Proving intent
 On face
 Smoking gun
 Disparate impact – higher percentage of blacks fail
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Spring 2005
Why isn’t this enough to prove purposeful discrimination?
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Washington v. Davis
(1976)
Why do 4 times as many blacks fail Test 21
as whites?
Fails Strict


Intentionally discriminatory
Unintentionally discriminatory
Might
Fail
Scrutiny
Rational
Basis
 Test 21 simply does a poor job of measuring ability

at least WRT qualifications for police officer
 Test 21 does a good job of measuring ability AND
blacks are not as smart as whites

how significant is unconscious racism in America?
Test 21 does what it was
designed to do – weed out
unqualified applicants
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Washington v. Davis
(1976)
Test 21 does a good job in measuring skills
required of a police officer in DC.

True or False
Dove Counterballance Intelligence test does
a good job in measuring relevant skills.

True of False
try your luck
Isn’t there a risk that “neutral” tests can
easily mask intentional or built-in race bias?

SAT?
 See Sharif v. NY Educ. Dep't, 709 F. Supp. 345 (SD
NY 1989) (SAT discriminates n basis of sex).
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McClesky v. Kemp
(1987)
Claim: GA capital sentencing administered
in a racially discriminatory way

Discriminatory administration of neutral law
 Compare Yick Wo

Baldus study
Victim Race
White
White
Def’d Race
White
Black
DP sought
32%
70%
DP given
8%
22%
Black
Black
White
Black
19%
15%
3%
1%
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McClesky v. Kemp
(1987)
Claim: GA capital sentencing administered
in a racially
discriminatory
way
4.3 times
as

likely to receive
Discriminatory
administration of neutral law

Baldus study
deathYick
sentence
 Compare
Wo
Victim Race
White
White
Def’d Race
White
Black
DP sought
32%
70%
DP given
8%
22%
Black
Black
White
Black
19%
15%
3%
1%
Spring 2005
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McClesky v. Kemp
(1987)
Discriminatory Intent

Sentencing disparity was intended to fall along
racial lines
 Does gross stat’l disparity raise inference of intent?


Which shifts burden to state to show plausible nondiscriminatory purpose
Powell: such a non-discrimiantory purpose is shown:
McClesky committed murder
 Discretion is built into the system (const’ required)

Perhaps blacks objectively more deserving of DP than
whites (other factors controlled for in Baldus study)
 Different state actors (juries) in each case
 Does Georgia DP statute enforce private bias?

Spring 2005
Any way to overcome that without declaring DP unconst?
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McClesky v. Kemp
(1987)
Discriminatory Intent

awareness of
discriminatory
Is discriminatory intent shown
if state retains a
impact isracially
not
law or practice it knows to produce
sufficient
disparate outcomes?
 Neutral when adopted, but intentionally maintained
to produce disparate outcome
 Neutral when adopted, and state simply indifferent
to racially disparate outcome (DP given 11 times as
often in white-victim cases than black-victim cases)

Brennan: lest we forget, this is GEORGIA
we’re talking about
 Noted in Furman v. Georgia (1972; DP unconst’l)
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McClesky v. Kemp
(1987)
Discriminatory Impact


Were it not for such discriminatory design,
McClesky would not have been sentenced to
death …. or
Were it not for such discriminatory design,
McClesky would not have been as likely to be
sentenced to death
 Victim race influences risk of DP
 Compare affirmative action cases
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Mobile v. Bolden
(1980)
15th Amendment


“The right of citizens of the United States to vote
shall not be denied or abridged .. on acount of
race, color, or previous condition of servitude”
Same requirement of purpose applied
Do multi-member (at large) voting districts
violate 15th amd if blacks can’t get elected?
No structural impediments to voting
 Unequal voting power
must be analyzed
under the 14th amd
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Mobile v. Bolden
(1980)
Do multi-member (at large) voting districts
violate 14th amd if blacks can’t get elected?

35% of Mobile is black; no black ever elected
 but 3/14 in single district state legislative elections
 S.Ct. has noted the “winner-take-all aspect [of at-
large districts], their tendency to submerge
minorities and to overrepresent the winning party”

Racial districting violates EP (Gomillion, Shaw)
 Still must prove intent

What relevance of past de jure discrimination?
 No “original sin”
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Voting Rights
Rogers v. Lodge (1982)

Factually similar to Mobile, but S.Ct. affirms
finding of purposeful discrimination
 Blacks a majority in Burke County, Georgia
 Fact that no blacks elected was more suspicious.
 EP standard: must be "conceived or operated as
purposeful devices to further racial discrimination by
minimizing, cancelling out or diluting the voting
strength of racial elements in the voting population.”
Voting Rights Act of 1965

Does not require discriminatory purpose?
 Constitutional? Renew in 2007?
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source: USDoJ, Divil Rights
Con Law II Division, Voting Section13
Spring 2005
No. of Black Southern Legislators, 1868-1900 & 1960-1992
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Personnel Admin. v. Feeney (1979)
Does Mass veterns preference statute
discriminate on basis of sex?

Or on basis of military service?
 Disparate impact on women would be immaterial

Only 1.8% veterans are female, 98% male
US military discriminates against women


Neutral Mass law building on effects of
intentional discrimination of another entity
This defendant (not all state actors combined)
must intend to discriminate against the suspect
class
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Personnel Admin. v. Feeney (1979)
Problem of multi-actor discrimination

Hypo: UC requires AP courses; state provides
AP courses only in white schools
 Does UC requirement intentionally discriminate on
basis of race?

Where end result (ultimate outcome) is the
product of multiple levels of discrimination, eg:
 private bias (housing patterns) serves as basis for
 unequal school district funding, which results in
 unequal educational opportunties, which results in
 racially disparate admissions results

Each entity responsible only for own action
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Proving Intent
Arlington Heights v. MHDC (1977)

Intent to discriminate need not be sole
purpose; but must be a “motivating factor”
 If only a “factor,” then state has opportunity to show
same action would have been taken anyway


Why should state be able to sanitize after the fact?
Indicators
 legislative history
 unusual/unpredictable outcome
Hunter v. Underwood (1985)
 smoking gun: Intent of 1901 Act clear in record
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Peremptory Challenges
State action?


By prosecutor in criminal case?
By defense lawyer, or lawyers in civil case?
Batson v. Kentucky (1986)



“Batson
Hearing”
Prima facie case (statistical disparity?)
Burden shifts to offer race-neutral explanation
Evaluation (by judge) of the explanation
Hernandez v. NY (1991)

Exclusion of latino juries justified by racenetural explanation – language ability
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Discriminatory Effect
Palmer v. Thompson (1971)

Discriminatory Purpose?
 Racism
 Could not be operated safely on integrated basis


Also true of schools and other public facilities?
This reasons just gives state sanction to private bias


See Palmore v. Sidoti
Discriminatory Effect
 Equal burdens to both blacks and white

But, private whites only swimming pools exist
 EP violations are cured by spreading the burden
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Manheim Counterbalance Test
At what campus in May, 1970 did national guardsmen shoot and kill students
protesting the Vietnam War?
Who wrote the "Invisible Man"? What is the novel about?
What was the original name for the Los Angeles area?
 a.
Alta California
 b.
Aztlan
 c.
Ciudad de Los Angeles
 d.
Bear Flag Republic
A synonym for "jim crow" is:
 a.
buzzard
 b.
raven
 c.
apartheid
 d.
bourbon
Who is the "father of rock and roll"?
back
 a.
Chuck Berry
 b.
Elvis Presley
 c.
Buddy Holly
 d.
Bill Haley
Where do you end up if you follow the "drinking gourd"?
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