Racial Discrimination

Loving v. Virginia
(1967)
Anti-miscegenation law


“God created the races [and] placed them on separate continents … he did not intend for the races to mix.”
The race gene
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Loving v. Virginia
(1967)
Facts:

VA law prohibits miscegenation
(interracial marriage)
Claim:


Discrimination on basis of race
Discrimination wrt exercise of Fund’tal Right
Suspect Class analysis

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Does the law discriminate, or treat all equally?
 Legal formalism vs. realism
Who is the burdened class?
 Whites are burdened more than minorities (on face)
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Loving v. Virginia
(1967)
VA law is clearly discriminatory

But does it discriminate on account of race?
 No, if what matters is that penalty is the same for all races ( cf. Pace v. AL (1882))
 Yes, if what matters is that application of the law depends upon a person’s race

VA law discriminates
 not against one race vis a vis another
 but on the basis of race
Facial racial classifications

Exception to rule requiring discrim. impact
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Palmore v. Sidoti
(1984)
Facts:

White custodial mother divested of custody because of remarriage to black man
 Best interest of child undermined by social stigma associated with black step-father
Claim:

Race-based decision violates EP
 Class-wide discrimination not req’d; single instance
 Discrimination by any branch of gov’t
 Discrimination need not be based on state animus

Court merely acknowledges social prejudices ( de facto )
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Palmore v. Sidoti
(1984)
No state action
State action
Can state actor give force to private bias?



Only state action covered by EP clause
Private discrimination not unconstitutional
Can state enforce private discrimination?
 Ex. 1: trespass enforcement
 Ex. 2: child custody enforcement
Rule:


Neutral state enforcement of private decisions
Discretionary enforcement of private actions
 State action was race-conscious (even if not racist)
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Korematsu v. US
(1944)
Exclusion Order No. 34:
Congress’ ENDS

Protection against Espionage/Sabotage
(Mischief)
MEANS (Classification):

Persons of Japanese ancestry (Trait)
Closeness of fit


Some Japanese-Americans are loyal (overincl.)
Some non-J-Amer. are threats (underinclusive)
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Korematsu v. US
(1944)
Closeness of fit

How close is the relationship?
 Between classification and state goal?
 Depends on the facts – consider these
1. All persons who admit to being disloyal are interned
(excellent fit)
2. All persons who have made overatures of allegience to axis powers in the past (very good fit)
3. All persons failing an objective loyalty test (good fit)
4. All persons of japanese or german ancestry (?)
5. All persons named Smith (random - very poor fit)
6. All combat veterans cited for bravery against the enemy
(negative fit)
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Korematsu v. US
(1944)
Degree of Scrutiny



Does closeness of fit tell us whether:
 Based on threat to national security (not class animus), or
 Classification is based on race (prejudicial stereotype)?
Murphey: The trait relates to the mischief only if one assumes that "all persons of Japances ancestry may commit sabotage and espionage."
 That assumption, without proof, could only be based on racial prejudice.
How close a fit should the Court require here?
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Korematsu v. US
(1944)
Standard of review

Black: “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional.”
Why strict scrutiny:


Originalism: “the one pervading purpose found in the
Civil War amendments, lying at the foundation of each, and without which none of them would have been even suggested [is] the freedom of the slave race”
EP Theory: structural impediment to political remedies
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Korematsu v. US
(1944)
Court defers to military assessment of facts

Consider this footnote in the US brief to SCt

The Final Report of General DeWitt is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. The recital of the circumstances justifying the evacuation as a matter of military necessity, however, is in several respects, particularly with reference to the use of illegal radio transmitter and to shore-toship signaling by persons of Japanese ancestry, in conflict with information in the possession of the Department of Justice. In view of the contrariety of the reports on this matter we do not ask the Court to take judicial notice of the recital of those facts contained in the Report.
Removed at request of War Department
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Plessy v. Ferguson
(1896)
La Law: Equal but separate accommodations
Equality?



Legal
Political
Social
“in the nature of things, [the 14 th amd] could not have been intended to abolish [natural] distinctions based upon color, or to enforce social, as distinguished from political, equality”
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Plessy v. Ferguson
(1896)
Are there social distinctions based on color?
Does the 14 th amendment address them?
Does “separate but equal” involve only social distinctions, or legal distinctions too?
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Plessy v. Ferguson
(1896)
Are there social distinctions based on color?

De facto discrimination?



Are those distinctions in the natural order of things?
What are the roles law may play WRT discrimination?
de facto
 Prohibit private bias
 Indifferent to private bias
 Promote private bias
Which does the Louisiana law do?
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Plessy v. Ferguson
(1896)
Are there social distinctions based on color?
Does the 14 th amendment address them?

Brown: “Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences”
 What are some distinctions
(based on physical differences)

“If one race be inferior to the other, the constitution cannot put them upon the same plane”
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Plessy v. Ferguson
(1896)
Are there social distinctions based on color?
Does the 14 th amendment address them?

Harlan: “our constitution is color-blind and neither knows not tolerates classes among citizens”
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Fall 2006
The const. does not “permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights”
 Purpose of La law is to enforce complete separation of the races, not to protect blacks, but whites
 Imposes a badge of servitude?

Only because blacks think themselves inferior?
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Plessy v. Ferguson
(1896)
Are there social distinctions based on color?
Does the 14 th amendment address them?
Does “separate but equal” involve only social distinctions, or legal distinctions too?

Brown: Not a badge of slavery
 a legal distinction between the white and colored races -- has no tendency to destroy the legal equality of the two races, or reestablish .. involuntary servitude
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link
1.
Black inferiority / White supremacy
2.
Slaves are property, not people
3.
Black powerlessness and dependency
4.
Racial “Purity” (child’s status follows mother)
5.
Minimize manumission and free blacks
5.
Reject rights to black family
6.
Deny blacks education and culture
(make it a crime to teach slaves to read or write)
8.
Deny (separate) black religion
9.
Limit liberty & resistance
10.
Use all means (incl. violence) to support slavery
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Plessy v. Ferguson
(1896)
Are there social distinctions based on color?
Does the 14 th amendment address them?
Does “separate but equal” involve only social distinctions, or legal distinctions too?

Does SBE deny associational rights?


Doesn’t forced integration do so too?
As between the two, which side should the constitution take?
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" I draw the line in the dust and toss the gauntlet before the feet of tyranny and I say segregation now, segregation tomorrow, segregation forever." George Wallace (Gov.
Alabama), Inaugural address, Jan. 14, 1963
Monroe Elementary
School; Linda
Brown, fourth from right, back row
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Brown
Cases reaffirming SBE

(Maryland Ct. Appeals 1936)
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 NAACP sues for lack of equal facilities
(1938)

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 Same; MO established new black law school
(1948)
 Same
;
(1950)
 Equality extends to intangibles
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Brown v. Bd of Ed
(1954)

Brown I – Constitutional Violation


No decision during 1952 Term
 No consensus on Court
 New administration (Eisenhower)
 New Chief Justice (Earl Warren)

Enforced Japanese exclusion & internment orders
Reargued during 1953 Term
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Brown v. Bd of Ed
(1954)

Brown I – Constitutional Violation

Questions posed on Reargument
1. Original intent of 14 th amendment re segregation
2. Is the 14 th an evolving organic amendment?
a. Congressional power under § 5 b. Extent of judicial power under § 1
3. In the absence of original intent of 14 th amd, is it within the judicial power to abolish segregation in public schools?"
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Brown v. Bd of Ed
(1954)

Brown I – Constitutional Violation


Original intent inconclusive & contradictory
 "We must consider public education in the light of its full development and its present place in
American life throughout the Nation."
New meaning to "equality"
 Requires more than superficial equality
 Intangible inequality promotes black inferiority

Are psychological impacts relevant for const'l analysis?
 “Separate is inherently unequal”
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Brown v. Bd of Ed
(1954)

Brown II - Remedy
 Assuming const'l violation
 immediate decree; or
 gradual adjustment to const'l status
 How exercise equity powers?
 Detailed decrees?
 Special master?
 Remand with directions?
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Brown v. Bd of Ed
(1954)

Brown II - Remedy
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Why not standard remedy for const' violation
 Remedy decoupled from violation
 A question of judicial legitimacy & authority
Eisenhower's edits


Psychological effect runs both ways
Gives rise to "all deliberate speed" formulation
A success?
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Johnson v. California
(2005)
Facts:


Racial segregation of new inmates (double cells)
No showing of disparate impact (equal burdens)
Standard of Review:

Facial racial classification triggers Strict Scrutiny
 create intangible disparities (see Brown )
 SS necessary to smoke out impermissible uses probably
 compelling
ENDS:
 Prison security (goal); Gang violence (mischief) probably
 unnecessary
MEANS:
 Segregation up to 60 days, pending profiling
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Johnson v. California
(2005)
Ginsburg/Souter (concurrence)

Benign racial classifications not subject to SS
Stevens (dissent)

Remand unnecessary; record shows invalidity
Thomas/Scalia (dissent)


Relaxed standard of review
 “Constitution demands less within prison walls”
 Other contexts too (schools, military, nat’l security)?
Criticism: exigent need may survive strict scrutiny, but why lesser standard?
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