Racial Discrimination (Update 1)

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In the mid-1980s, most observers would have said that the Supreme Court's view of racial discrimination was in equipoise. Some of the Justices seemed sympathetic to the aggressive purposeful use of racial criteria to end the legacy of racial subordination; others were skeptical of "benign discrimination" and looked instead to a constitutional principle of colorblindness as the cornerstone of a society free of discrimination. The last several terms have made plain the ascendancy of the latter view. It is now evident that a majority of the Justices are prepared to view with suspicion and hold to the highest standard of constitutional scrutiny governmental efforts to use racial classifications even to assist members of racial minorities. At the same time, governmental actions that disadvantage racial minorities will be sustained absent clear and unambiguous evidence of impermissible racial animus.

affirmative action advocates are particularly concerned about the Court's recent willingness to view benign racial classifications with the same suspicion with which it has traditionally treated classifications intended to oppress. Where this leaves racially conscious programs is unclear, except that as before the stronger the showing that a racial preference is related to a bona fide remedial goal, the greater the likelihood the Court will sustain it.

Thus in wygant v. jackson board of education (1986), the Justices overturned a plan under which a school board extended to minority teachers what a plurality of the Court called "preferential protection against layoffs." The plan was part of the collective-bargaining agreement between the board and the union representing school teachers and was defended before the Court as an effort to alleviate "social discrimination" by providing a diverse set of role models in public schoolrooms. A three-Justice plurality declared that the proper test was strict scrutiny and held the plan invalid because more specific findings of prior discrimination were necessary before the layoff protection could be said to serve a compelling state interest.

In contrast, in united states v. paradise (1987), the Justices voted 5–4 to sustain a federal district court's imposition of a "one-for-one" hiring plan, pursuant to which the Alabama Department of Public Safety was obliged to remedy its past failure to hire black troopers by hiring one black trooper for each white trooper hired. The solicitor general argued that even when a racially conscious remedial program was ordered by a court, strict scrutiny was the proper test, and the program could survive only on a showing of a compelling state interest. Four Justices, in an opinion by Justice william j. brennan, refused to decide this question, ruling that the program could meet any level of scrutiny because it was "justified by a compelling interest in remedying the discrimination that permeated entry-level practices and the promotional process alike." The plurality further noted that the district court had imposed the one-for-one plan only after the department had repeatedly failed to comply with earlier decrees.

Probably the most controversial benign discrimination decision—and the one with the most far-reaching implications—was richmond (city of) v. j. a. croson co. (1989), in which the Justices struck down a program under which the City of Richmond required its prime contractors to subcontract thirty percent of the dollar amount of each contract to minority-owned firms. In Croson, a majority of the Justices ruled explicitly that strict scrutiny was the proper level of review for benign discrimination cases. Although there was no majority opinion on the point, six Justices repudiated as insufficiently narrow the city council's defense that the program was needed to eliminate the effects of societal discrimination.

Although it is true that the Justices have always taken the position that even benign classifications are subject to the highest level of constitutional scrutiny, they have not previously applied the rule with quite the strictness used in Croson. Indeed, fullilove v. klutznick (1980), which sustained a federally mandated set-aside program for certain construction projects, is in one sense indistinguishable: in Fullilove and in Croson, the relevant body (in the first case the Congress, in the other the city council) had before it no record of past discrimination. This aspect of Fullilove can be preserved by reference to the special fact-finding competence of the Congress, although this reed is a thin one because the Congress found no facts; in any case, the Justices are noticeably less hospitable to Fullilove -style set-asides by state or local governments than they were to Congress's set-asides a decade ago. But at least six Justices seem prepared to pay strong deference to the power of Congress to adopt programs of affirmative action in enforcing the fourteenth amendment.

At the same time, the Court has arguably shown increasing sensitivity to certain claims of racial discrimination in the criminal justice system. Thus in Hunter v. Underwood (1985), a unanimous Court struck down a neutrally applied disenfranchisement of persons convicted of misdemeanors involving "moral turpitude" on the ground that it was originally enacted decades earlier for the purpose of discriminating against black citizens. The following term, in batson v. kentucky (1986), the Justices eased the burden of a defendant seeking to prove that the prosecution had used its peremptory challenges to exclude jurors on the basis of race. On the same day, the Justices decided in Turner v. Murray that a defendant in a capital case has the right to examine prospective jurors about racial bias.

But the trend has gone only so far. In the following term, the Justices made plain their resistance to inferring impermissible discriminatory motivation from circumstantial evidence, especially statistical evidence. In mccleskey v. kemp (1987), a black convicted of murder argued that Georgia's decision to sentence him to death violated the Eighth and Fourteenth Amendments because statistics demonstrated that black defendants, especially black defendants whose victims were white, were far more likely than white defendants to receive capital punishment. The statistics (generally referred to as the Baldus study, after the principal author of the underlying work) were stark indeed; they indicated, among other disparities, that capital juries in Georgia handed down death sentences to black defendants whose victims were white twenty-two times more frequently than they did to black defendants whose victims were black.

The McCleskey majority, however, was unimpressed, responding tersely, "We refuse to assume that what is unexplained is invidious." This answer in a sense eluded McCleskey's point, which was that the disparity was great enough to place the burden of explanation on the state. The Court replied that other explanations were plausible, adding that juror discretion should not be condemned or disturbed simply because of an "inherent lack of predictability." As long as forbidden racial animus was not the only possible explanation, the Court would not assume that animus was at work.

As the dissenters pointed out, the result in McCleskey seemed to stand as a departure from the burger court decision in Arlington Heights v. Metropolitan Housing Development Corp. (1977). In Arlington Heights, the Justices suggested that racial animus might be inferred from "a clear pattern" of official behavior, "unexplainable on grounds other than race." The McCleskey majority was correct that other explanations for the Baldus data are conceivable, and some critics have offered them. But in McCleskey, the Justices declined even to speculate.

Nevertheless, in important respects, McCleskey differed from other racial-discrimination cases. First, as several observers have noted, the Baldus study most strongly supports an argument that the murderers of black people are systematically treated with greater leniency than the murderers of white people. If one believes that the death penalty deters the crime of murder, then the implication is that the state is doing less to protect the lives of black people than to protect the lives of white people. Warren McCleskey, convicted of killing a police officer while committing another felony, was not a particularly attractive candidate to raise this issue. The better case (unfortunately for the Supreme Court's paradoxical ruling in Linda R.S. v. Richard D., which denied standing to raise a claim that the law is inadequately enforced) would be one brought by law-abiding black citizens seeking to protect their lives and property.

A second distinction between McCleskey and other cases is that, had it gone the other way, McCleskey might have opened up a Pandora's box of claims that blacks in the criminal process—from arrests to sentencing—are treated more harshly than whites, claims that are supported by considerable empirical literature. Even if the literature is accurate (again, there are critics), it is difficult to imagine what practical relief might be fashioned in such cases. For those who are convicted, mandatory resentencing is one possibility, although the continued judicial monitoring of sentencing disparities could produce a procedural nightmare. The fear that this slippery slope lay ahead might well have been a part of the majority's calculus.

The Justices have also worked important changes in the interpretation of one of the keystones of the "Second Reconstruction," Title VII of the civil rights act of 1964. In Ward's Cove v. Antonio (1989), the Justices reexamined the burden of proof of a plaintiff relying on the Court's decision in griggs v. duke power co. (1971). Griggs had read Title VII to prohibit an employment practice with racially identifiable disparate impacts unless the employer was able to show a business necessity for the test. In Ward's Cove, the Court ruled 5–4 that the plaintiff must carry the burden of demonstrating the causal link to the composition of the market of people qualified to do the job in question. Critics of Ward's Cove argued that the decision had shifted the burden from the employer to the employees and would make employment-discrimination cases more difficult to prove; defenders responded that Title VII plaintiffs should be required to prove all elements of their claims.

Depending on one's point of view, then, the recent work of the Supreme Court in the area of racial-discrimination law has represented either a tragic abandonment of the judiciary's traditional role as protector of the racially oppressed or a return to the shining principles of color-blindness as the fundamental rule for government action. But not all significant changes in the area of racial discrimination require judicial action. In fact, one of the most important developments of recent years involved an attempted legislative correction of a judicial wrong. The world war ii decisions sustaining the internment of Japanese Americans are widely regarded as among the most horrific judicial decisions of the twentieth century (although it must be said that the programs could never have been approved had the President and Congress not imposed them in the first place). In the mid-1980s, federal courts vacated the convictions of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu for evading registration for internment. Adamages claim by former detainees was rejected by the Federal Circuit in 1988 on statute of limitations grounds, but in August of that year, the Congress adopted legislation apologizing for the internment program and granting to each surviving internee compensation of roughly $20,000—not perhaps the same as justice, but at least an acknowledgment that justice was due.

Stephen L. Carter

(see also: Constitutional Remedies; Capital Punishment and Race; Japanese American Cases; Race-Consciousness; Sentencing.)


Areen, Judith et al. 1989 Constitutional Scholars' Statement on Affirmative Action After City of Richmond v. J. A. Croson Co. Yale Law Journal 98:1711–1716.

Fried, Charles 1989 Affirmative Action After City of Richmond v. J. A. Croson Co.: A Response to the Scholars' Statement. Yale Law Journal 99:155–161.

Kennedy, Randall L. 1988 McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court. Harvard Law Review 101:1388–1443.

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Racial Discrimination (Update 1)

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