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SYMPOSIUM ON PURSUING RACIAL
FAIRNESS IN CRIMINAL JUSTICE: TWENTY
YEARS AFTER MCCLESKEY v. KEMP
MARCH 2–3, 2007
KEYNOTE ADDRESS: MAINTAINING HOPE
IN THE STRUGGLE AGAINST THE
CONSTITUTIONAL TOLERANCE OF RACIAL
DISCRIMINATION
Theodore M. Shaw *
I want to focus not only on the death penalty in my remarks,
but also on the broader role of race in the criminal justice system and
McCleskey’s role in insulating systemic racial discrimination from
attack.1 Along the way, I want to make some observations about the
*
Theodore M. Shaw is Director-Counsel and President of the NAACP
Legal Defense and Educational Fund Inc. (LDF). Shaw joined the LDF in 1982.
He directed its education docket and litigated school desegregation, housing
discrimination, voting rights, capital punishment, and other civil rights cases. He
was lead counsel for black and Latino students in Gratz v. Bollinger, 539 U.S. 244
(2003). Shaw has taught constitutional law, civil procedure, and civil rights at the
University of Michigan Law School, and is currently an adjunct professor of law
at Columbia University Law School. These remarks were delivered at the
symposium entitled “Pursuing Racial Fairness in the Administration of Justice:
Twenty Years After McCleskey v. Kemp,” held by the NAACP Legal Defense and
Educational Fund and Columbia Law School on Mar. 2–3, 2007.
1.
McCleskey v. Kemp, 481 U.S. 279 (1987).
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gratuitously cramped constitutional jurisprudence that has come to
be applied to race discrimination by the Supreme Court and the
lower federal courts, and that particularly has been applied to racial
discrimination claims brought by African Americans and other
people of color. At the same time that this cramped reading of the
Constitution’s Fourteenth Amendment Equal Protection Clause2 has
been applied to those claims, the Supreme Court and other courts
have demonstrated their willingness to loosen constitutional
strictures when it comes to racial discrimination claims brought by
white plaintiffs.3
Now, that sounds like sour grapes, and I readily acknowledge
that it is. So, there’s a piece of this that I want to address first—the
sour grapes piece—but I believe it to be wholly legitimate. Why
spend all this time on sour grapes? The workhorse antidiscrimination provision of the Constitution, of course, has become
the Equal Protection Clause.4 In the infancy of the Fourteenth
Amendment, the Privileges and Immunities Clause5 had more life
than the Equal Protection Clause.6 In fact, if you go back and look at
Plessy v. Ferguson, there was more of a discourse about Privileges
and Immunities than there was about Equal Protection.7 But in time
2.
U.S. Const. amend. XIV, § 1.
3.
See, e.g., Bd. of Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265
(1978) (holding a special admissions program reserving 16 of 100 spots for
disadvantaged minority students to be illegal); cf. Shaw v. Reno, 509 U.S. 630
(1993) (allowing white plaintiff to challenge legislative creation of majorityminority voting districts); Nw, Fla. Chapter of the Associated. Gen. Contractors of
America v. City of Jacksonville, 508 U.S. 656 (1993) (holding that association of
general contractors had standing to mount equal protection challenge to
constitutionality of ordinance according preferential treatment to minority-owned
businesses).
4.
U.S. Const. amend. XIV, § 1.
5.
Id.
6.
Justice Miller’s opinion in the Slaughter-House Cases in 1873 was the
first occasion the Supreme Court had to rule on a Fourteenth Amendment claim.
Slaughter-House Cases, 83 U.S. 36 (1873). The Privileges and Immunities Clause
subsequently enjoyed a short life before it fell into disuse. The Supreme Court
rarely found a violation of the Equal Protection Clause until the 1950s. In fact,
Justice Oliver Wendell Holmes referred to the Equal Protection Clause as “the
last resort of constitutional arguments.” Buck v. Bell, 274 U.S. 200, 208 (1927).
7.
Plessy v. Ferguson, 163 U.S. 537, 543–48 (1896) (holding that “the
enforced separation of the races, as applied to the internal commerce of the state,
neither abridges the privileges or immunities of the colored man, deprives him of
his property without due process of law, nor denies him the equal protection of
the laws, within the meaning of the fourteenth amendment” and noting that the
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the Equal Protection Clause did come to be the workhorse of the
Constitution when it comes to discrimination.8
The Equal Protection Clause says, of course, that “no state
shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”9 Very simple. Note that the word
“intentionally” does not appear before the word “deny” or anywhere
else in Section I of the Fourteenth Amendment. The Supreme Court
has, nonetheless, found an intent requirement to be an indispensable
element of a Fourteenth Amendment claim.10 The intent standard, by
definition and logic, admits the existence of a whole category of racial
discrimination that the Constitution does not reach. In other words,
the Constitution tolerates racial discrimination. In Board of Regents
of the University of California v. Bakke, the Supreme Court identified
a whole category of discrimination that it called “societal
discrimination.”11 I often say that this is discrimination for which no
one is responsible and for which there is no remedy. The Court
wrings its hands about it and then washes its hands of it. Nobody
responsible, no remedy—the Constitution tolerates racial
discrimination.
In Brown the Supreme Court said, “[t]o separate [AfricanAmerican children] from others of similar age and qualifications
solely because of their race generates a feeling of inferiority as to
their status in the community that may affect their hearts and minds
in a way unlikely ever to be undone,” and concluded that “in the field
of public education the doctrine of ‘separate but equal’ has no place,”
Fourteenth Amendment secures positive rights “by way of prohibition against
state laws and state programs affecting those rights and privileges”).
8.
See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (holding segregation
of children in a public school based on race was a violation of the Equal
Protection Clause); Loving v. Virginia, 388 U.S. 1 (1967) (finding that statutes
preventing marriages between persons based solely on race were violations of the
Equal Protection Clause).
9.
U.S. Const. amend. XIV, § 1.
10.
See Washington v. Davis, 426 U.S. 229, 239 (1976) (upholding the
constitutionality of police officer promotion scheme with racially discriminatory
impact but no proven racially discriminatory purpose).
11.
Bd. of Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 296, 307–10
(1978) (asserting that “[n]o one denies the regrettable fact that there has been
societal discrimination in this country” but referring to “societal discrimination”
as “an amorphous concept of injury that may be ageless in its reach into the
past”).
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and “[s]eparate educational facilities are inherently unequal.”12 Our
school desegregation jurisprudence has since adopted a de jure/de
facto distinction—nowhere is this distinction written into the
Constitution, for those who believe strictly in original intent, but
nonetheless there it is in our constitutional jurisprudence.13 The de
facto distinction, the whole term “de facto segregation,” is a curious
concept given the history of how American communities came to be
segregated. Segregation of African Americans, as manifested in
housing and schools, did not happen accidentally, or serendipitously,
in cities and communities across the United States. It is the
consequence of decades and decades of discrimination by
governmental actors on the state, local, and federal levels that,
combined with the deeds of private actors, created the framework for
segregation we maintain today. But in any event, de facto
discrimination is not actionable. The Constitution tolerates racial
discrimination.
Black and brown students in 2007 are heavily segregated by
race and by economic status, and are in inferior schools that are often
pipelines to jails and prisons throughout our country.14 Our
jurisprudence holds that this segregation, because some districts
maintained desegregated schools for a period of time under court
supervision, is somehow unconnected to our long history of
segregation and discrimination in public schools now, leaving this
segregation and this inequality unreachable by law. The Constitution
tolerates racial discrimination under this jurisprudence.
And then, of course, there is McCleskey, which accepts for the
purposes of adjudication the legitimacy of the Baldus study and finds
that neither the Fourteenth Amendment nor the Eighth Amendment
12.
Brown, 347 U.S. at 494–95.
13.
See Keyes v. Sch. Dist. No. 1, Denver, Colo. 413 U.S. 189 (1973)
(emphasizing “purpose or intent to segregate” as the differentiating factor
between de jure and de facto segregation); Freeman v. Pitts, 503 U.S. 467, 493
(1992) (finding that the requirements for eliminating de facto segregation are less
strict than the requirements for eliminating de jure segregation); Parents
Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S.Ct. 2738, 2761 (2007)
(further discussing the distinction between de facto and de jure segregation).
14.
See generally Gary Orfield et al., The Civil Rights Project at Harvard
University, Losing Our Future: How Minority Youth are Being Left Behind by
the Graduation Rate Crisis (2004), available at http://www.urban.org/
publications/410936.html (finding that, controlling for poverty, the level of
nonwhite students at a school is correlated with higher dropout rates and a
higher likelihood of a prison sentence).