Constitutional Law II

Racial Discrimination

Fall 2006 Con Law II 2

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 RightSuspect Class analysis 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)

Fall 2006 Con Law II 5

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

Fall 2006 Con Law II 6

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-fatherClaim: 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)

Fall 2006 Con Law II 7

Palmore v. Sidoti (1984)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)

No state actionState action

Fall 2006 Con Law II 8

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)

Fall 2006 Con Law II 9

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?

Fall 2006 Con Law II 11

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-to -ship 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

Fall 2006 Con Law II 13Lange Relocation Center

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Fall 2006 Con Law II 15

Plessy v. Ferguson (1896)La Law: Equal but separate accommodationsEquality? Legal Political Social

“in the nature of things, [the 14th amd] could not have been intended to abolish [natural] distinctions based upon color, or to enforce social, as distinguished from political, equality”

Fall 2006 Con Law II 16

Plessy v. Ferguson (1896)Are there social distinctions based on color?Does the 14th 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 de facto

discrimination? 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 14th amendment address them?

“If one race be inferior to the other, the constitution cannot put them upon the same plane”

Brown: “Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences” What are some distinctions

(based on physical differences)

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Plessy v. Ferguson (1896)Are there social distinctions based on color?Does the 14th amendment address them?

Harlan: “our constitution is color-blind and neither knows not tolerates classes among citizens”

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?

Fall 2006 Con Law II 20

Plessy v. Ferguson (1896)Are there social distinctions based on color?Does the 14th amendment address them?Does “separate but equal” involve only social distinctions, or legal distinctions too?

Brown: Not a badge of slaverya legal distinction between the white and

colored races -- has no tendency to destroy the legal equality of the two races, or reestablish .. involuntary servitude

Fall 2006 Con Law II 21

Ten precepts of slavery1. Black inferiority / White supremacy2. Slaves are property, not people3. Black powerlessness and dependency4. Racial “Purity” (child’s status follows mother)5. Minimize manumission and free blacks5. Reject rights to black family6. Deny blacks education and culture

(make it a crime to teach slaves to read or write)8. Deny (separate) black religion9. Limit liberty & resistance10.Use all means (incl. violence) to support slavery

link

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Plessy v. Ferguson (1896)Are there social distinctions based on color?Does the 14th 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?

Fall 2006 Con Law II 23

Racial Segregation "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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The Road to BrownCases reaffirming SBE Pearson v. Murray (Maryland Ct. Appeals 1936)

NAACP sues for lack of equal facilities Gaines v. Canada (1938)

Same; MO established new black law school Sipuel v. Oklahoma (1948)

Same Sweatt v. Painter; McLaurin v. OK (1950)

Equality extends to intangibles

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Brown v. Bd of Ed (1954)

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

Brown I – Constitutional ViolationBrown I – Constitutional Violation

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Brown v. Bd of Ed (1954)

Questions posed on Reargument1. Original intent of 14th amendment re

segregation2. Is the 14th an evolving organic

amendment?a. Congressional power under § 5b. Extent of judicial power under § 1

3. In the absence of original intent of 14th amd, is it within the judicial power to abolish segregation in public schools?"

Brown I – Constitutional ViolationBrown I – Constitutional Violation

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Brown v. Bd of Ed (1954)

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”

Brown I – Constitutional ViolationBrown I – Constitutional Violation

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Brown v. Bd of Ed (1954)

Assuming const'l violation immediate decree; or gradual adjustment to const'l status

How exercise equity powers? Detailed decrees? Special master? Remand with directions?

Brown II - RemedyBrown II - Remedy

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Brown v. Bd of Ed (1954)

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?

Brown II - RemedyBrown II - Remedy

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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

ENDS: Prison security (goal); Gang violence (mischief)

MEANS: Segregation up to 60 days, pending profiling

probably compellingprobably unnecessary

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Johnson v. California (2005)Ginsburg/Souter (concurrence) Benign racial classifications not subject to SSStevens (dissent) Remand unnecessary; record shows invalidityThomas/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?