Race, Racism, and American Law
EDITORIAL ADVISORS Vicki Been Elihu Root Professor of Law New York University School of Law
Erwin Chemerinsky
Alston & Bird Professor of Law Duke University School of Law
Richard A. Epstein James Parker Hall Distinguished Service Professor of Law University of Chicago Law School Peter and Kirsten Bedford Senior Fellow The Hoover Institution Stanford University
Ronald J. Gilson Charles J. Meyers Professor of Law and Business Stanford University Marc and Eva Stern Professor of Law and Business Columbia Law School
James E. Krier Earl Warren DeLano Professor of Law The University of Michigan Law School
Richard K. Neumann, Jr.
Professor of Law Hofstra University School of Law
Robert H. Sitkoff John L. Gray Professor of Law Harvard Law School
David Alan Sklansky
Professor of Law University of California at Berkeley School of Law
Kent D. Syverud Dean and Ethan A. H. Shepley University Professor Washington University School of Law
Elizabeth Warren Leo Gottlieb Professor of Law Harvard Law School
ASPENPUBLISHERS
Race, Racism, and American Law Sixth Edition
Derrick Bell
a
Wolters Ktuwer Law 8,4 Business
AUSTIN BO ST O N C H I C AG O N E W YORK T H E NETHERLANDS
© 2008 Derrick A. Bell, Jr. Published by Aspen Publishers. Al l Rights Reserved. No par t of this publication may be reproduced or transmitted in any for m o r b y any m eans, electr onic o r mechanical, i ncl udi ng photocopy, recording, or any infor m ation storage and retrieval system, without permission i n writing fr om the publisher. Requests for permission to make copies of any par t of this publication should be mailed to: Aspen Publishers Attn: Permissions Department 76 N i nth Avenue, 7th Floor New Yor k, N Y 10011-5201 To contact Customer Care, e-mail
[email protected], call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to: Aspen Publishers Attn: Order Department PO Box 990 Frederick, M D 21705 Printed in the United States of America. 12 3 4 5 6 7 8 9 0 ISBN 978-0-7355-7574-5
Library of Congress Cataloging-in-Publication Data Bell, Derrick A. Race, Racism, and American law / Derrick Bell. — 6th ed. p. cm. Includes index. ISBN 978-0-7355-7574-5 1. Afr i c an Am er icans—Civil rights. 2. C i v i l r i ghts—U ni ted States. I . Title. KF4757.B35 2008 342.7308' 73 —dc22
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About Wolters Kluwer Law & Business Wolters Kluwer Law & Business is a leading provider of research information and workflow solutions in key specialty areas. The strengths of the individual brands of Aspen Publishers, CCH, Kluwer Law International and Loislaw are aligned within Wolters Kluwer Law & Business to provide comprehensive, in-depth solutions and expert-authored content for the legal, professional and education markets. CCH was founded in 1913 and has served more than four generations of business professionals and their clients. The CCH products in the Wolters Kluwer Law & Business group are highly regarded electronic and print resources for legal, securities, antitrust and trade regulation, government contracting, banking, pension, payroll, employment and labor, and healthcare reimbursement and compliance professionals. Aspen Publishers is a leading information provider for attorneys, business professionals and law students. Written by preeminent authorities, Aspen products offer analytical and practical information in a range o f specialty practice areas from securities law and intellectual property to mergers and acquisitions and pension/ benefits. Aspen's trusted legal education resources provide professors and students with high-quality, up-to-date and effective resources for successful instruction and study in all areas of the law. K lu we r L a w International supplies the global business community with comprehensive English-language international legal information. Legal practitioners, corporate counsel and business executives around the world rely on the Kluwer Law International journals, loose-leafs, books and electronic products for authoritative information in many areas o f international legal practice. Loislaw is a premier provider of digitized legal content to small law fi rm practitioners o f various specializations. Loislaw provides attorneys with the ability to quickly and efficiently find the necessary legal information they need, when and where they need it, by facilitating access to primary law as well as state-specific law, records, forms and treatises. Wolters Kluwer Law & Business, a unit of Wolters Kluwer, is headquartered in New Yo rk and Riverwoods, Illinois. Wolters Kluwer is a leading multinational publisher and information services company.
© 2008 Derrick A. Bell, Jr. Published by Aspen Publishers. Al l Rights Reserved. No par t of this publication may be reproduced or transmitted in any for m o r b y any m eans, electr onic o r mechanical, i ncl udi ng photocopy, recording, or any infor m ation storage and retrieval system, without permission i n writing fr om the publisher. Requests for permission to make copies of any par t of this publication should be mailed to: Aspen Publishers Attn: Permissions Department 76 N i nth Avenue, 7th Floor New Yor k, N Y 10011-5201 To contact Customer Care, e-mail
[email protected], call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to: Aspen Publishers Attn: Order Department PO Box 990 Frederick, M D 21705 Printed in the United States of America. 12 3 4 5 6 7 8 9 0 ISBN 978-0-7355-7574-5
Library of Congress Cataloging-in-Publication Data Bell, Derrick A. Race, Racism, and American law / Derrick Bell. — 6th ed. p. cm. Includes index. ISBN 978-0-7355-7574-5 1. Afr i c an Am er icans—Civil rights. 2. C i v i l r i ghts—U ni ted States. I . Title. KF4757.B35 2008 342.7308' 73 —dc22
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This book is dedicated to a ll those who throughout America's history have risked its wrath to protest its faults. Courageous black athletes mounted a famous protest against racism a t the 1968 Olymp ic games. That protest, like so many that preceded it, constituted a prophecy: The dramatic finale of an Extraordinary achievement Performed for a nation which Had there been a choice Would have chosen others, and I f given a chance Will accept the achievement And neglect the achievers. Here, with simple gesture, they Symbolize a people whose patience With exploitation will expire with The dignity and certainty With which it has been endured . . . Too long. DB
About Wolters Kluwer Law & Business Wolters Kluwer Law & Business is a leading provider of research information and workflow solutions in key specialty areas. The strengths of the individual brands of Aspen Publishers, CCH, Kluwer Law International and Loislaw are aligned within Wolters Kluwer Law & Business to provide comprehensive, in-depth solutions and expert-authored content for the legal, professional and education markets. CCH was founded in 1913 and has served more than four generations of business professionals and their clients. The CCH products in the Wolters Kluwer Law & Business group are highly regarded electronic and print resources for legal, securities, antitrust and trade regulation, government contracting, banking, pension, payroll, employment and labor, and healthcare reimbursement and compliance professionals. Aspen Publishers is a leading information provider for attorneys, business professionals and law students. Written by preeminent authorities, Aspen products offer analytical and practical information in a range o f specialty practice areas from securities law and intellectual property to mergers and acquisitions and pension/ benefits. Aspen's trusted legal education resources provide professors and students with high-quality, up-to-date and effective resources for successful instruction and study in all areas of the law. K lu we r L a w International supplies the global business community with comprehensive English-language international legal information. Legal practitioners, corporate counsel and business executives around the world rely on the Kluwer Law International journals, loose-leafs, books and electronic products for authoritative information in many areas o f international legal practice. Loislaw is a premier provider of digitized legal content to small law fi rm practitioners o f various specializations. Loislaw provides attorneys with the ability to quickly and efficiently find the necessary legal information they need, when and where they need it, by facilitating access to primary law as well as state-specific law, records, forms and treatises. Wolters Kluwer Law & Business, a unit of Wolters Kluwer, is headquartered in New Yo rk and Riverwoods, Illinois. Wolters Kluwer is a leading multinational publisher and information services company.
Summary of Contents
Contents Preface to the Sixth Edition Acknowledgements
Chapter 1 American Racism and the Relevance of Law
1
Chapter 2 Race and American History
19
Chapter 3 The Quest for Effective Schools
73
Chapter 4 Fair Employment Laws and Their Limits
149
Chapter 5 Discrimination in the Administration of Justice
229
Chapter 6 Voting Rights and Democratic Domination
341
Chapter 7 Property Barriers and Fair Housing Laws
425
Chapter 8 Interracial Intimate Relationships and Racial Identification
497
Chapter 9 Public Facilities: Symbols of Subordination
555
ix
Summary of Contents
Chapter 10 The Parameters of Racial Protest Chapter 11 Racism and Other "Nonwhites" Table of Cases Index
x
5 6
9
5
8
3 741 753
Contents
Preface to the Sixth Edition Acknowledgements
x
i
x XXV
Chapter 1 American Racism and the Relevance of Law
1
§1.1 T h e Current Relevance of Dr. Ralph Bunche's Racial Assessment §1.2 C o l o r - B l i n d Constitutionalism: A Rediscovered Rationale 8 §1.3 R a c i s m Hypo: The Freedom of Employment Act 1 7
1
Chapter 2 Race and American History
1
9
§2.1 A n Overview of Black History 1 9 §2.2 T h e Emancipation Proclamation 2 1 §2.3 A b o l i t i o n of Slavery in Northern States 2 5 §2.4 S l a v e r y in America 2 7 §2.5 S l a v e r y and the Confl ict of Laws 2 8 §2.6 T h e Dred Scott Case 3 1 §2.7 S l a v e r y and the Founding Fathers 3 6 §2.8 T h e Origin and Development of Slavery Compromise 4 0 §2.9 T h e Principle of the Involuntary Sacrifice 4 3 §2.10 T h e Civ il War Amendments and Civ il Rights Acts 4 5 §2.11 T h e Lessons of the First Reconstruction 4 8 §2.12 Under s t andi ng Racism Based on the Nineteenth-Century Experience 5 2 §2.13 Re p a r a t i o n s for Racism 5 6 §2.14 E mi g r a t i o n as an Answer 6 2 §2.15 A New Racial Realism 6 6 §2.16 R a c i s m Hypo: African Americans and the Afrolantica Opportunity 6 9
Chapter 3 The Quest for Effective Schools §3.1 T h e Seattle-Louisville Decision §3.1.1 T h e Seattle and Louisville Plans §3.1.2 T h e Legal Standard
7
3 7
3 7
7
3 4
XI
Contents §3.1.3 A p p l y i n g Strict Scrutiny 7 5 §3.1.4 J u s t i c e Kennedy's Concurrence 7 9 §3.1.5 T h e Road from Seattle-Louisville 8 0 §3.2 T h e Struggle for Equal Education in the Nineteenth and Early Twentieth Centuries 8 1 §3.2.1 R o b e r t s v. City of Boston 8 2 §3.2.2 T h e Impact of the Roberts Precedent 8 3 §3.2.3 C u m m i n g v. Richmond County Board of Education 8 4 §3.3 E x t ra c t i n g Equality from the "Separate but Equal" Doctrine 8 5 §3.4 B r o w n v. Board of Education 8 5 §3.4.1 T h e Brown Opinions 8 6 §3.4.2 R o b e r t L. Carter: An Advocate's Analysis of Brown 8 8 §3.5 T h e Green/Swann/Keyes Breakthrough 8 9 §3.5.1 G r e e n v. County School Board of New Kent County 8 9 §3.5.2 T h e Nixon Retreat and the Court's Response 9 0 §3.5.3 S w a n n v. Charlotte-Mecklenburg Board of Education 9 0 §3.6 T h e Road from Swann 9 1 §3.6.1 T r a c k i n g and Disenchantment 9 3 §3.6.2 J u d i c i a l Retreat 9 5 *3.6.3 Ch a n g in g Ideology 9 6 §3.6.4 T h e Racial Balance Debate Revisited 9 7 §3.6.5 S c h o o l Desegregation's Gains and Losses 9 8 §3.7 T h e Neutral Principle of Race in Brown 9 9 §3.7.1 S c h o l a rl y Responses to Professor Wechsler 1 0 1 §3.7.2 W h i t e Self-Interest as a Support for Brown 1 0 3 §3.7.3 P o o r White Status and Opposition to Brown 1 0 6 §3.7.4 J u d i c i a l Supremacy and Enforcement of Brown 1 0 7 §3.7.5 R a c i a l Interest-Convergence Principles 1 0 9 §3.8 H y p o : Using Income to Achieve Integration 1 1 1 *3.9 S in g le -Ra ce Schools: Retrograde or Renaissance? 1 1 3 §3.10 R a c i s m Hypo: Debating the Brown Decision the Court Might Have Written 1 1 7 §3.11 S c h o o l Finance 1 2 3 §3.12 Ch a rt e r Schools and School Vouchers 1 2 7 §3.12.1 Ch a rt e r Schools 1 2 7 §3.12.2 T u it io n Vouchers 1 3 0 §3.13 B l a c k Colleges and the Desegregation Dilemma 1 3 6 §3.14 R a c i s m Hypo: Excluded White Applicants v. Howard University School of Dentistry 1 4 6
Chapter 4 Fair Employment Laws and Their Limits
1
4
§4.1 E mp lo y me n t Discrimination and Its Impact on the Economic Status of Blacks 1 4 9 *4.1.1 T h e Current Economic Status of Blacks 1 4 *4.1.2 T h e Insidious Causes and Devastating Impact of Employment Discrimination 1 5 xii
9
9 3
Contents
*4.2 C o m p e t i n g Theories on the Efficacy of Legal Restraints for Employment Discrimination 1 6 1 §4.3 F a i r Employment Laws: An Overview 1 6 7 §4.3.1 T i t l e VI I 1 6 7 §4.3.2 S e c t i o n 1981 1 6 8 §4.4 T i t l e VI I and Disparate Treatment 1 6 9 §4.4.1 E s t a b l i s h i n g a Prima Facie Case 1 6 9 §4.4.2 R e b u t t i n g a Prima Facie Case 1 7 0 §4.4.3 S t . Mary's Honor Center v. Hicks 1 7 1 §4.4.4 D i s p a r a t e Treatment Cases: A Plaintiffs' Quagmire 1 7 §4.5 T i t l e VI I and Disparate Impact 1 7 8 §4.6 T h e Erosion of Plaintiffs' Employment Discrimination Remedies and the 1991 Amendments 1 8 0
2
§4.6.1 U n d e r m i n i n g Griggs and Then Some: Wards Cove v. Antonio 1 8 0 §4.6.2 T h e Legacy of Washington v. Davis and the Search f or Discriminatory Purpose 1 8 3 §4.6.3 F u r t h e r Erosion: Prelude to the 1991 Amendments 1 9 §4.6.4 T h e Civ il Rights Act of 1991 and Reformulated Legal Frameworks 1 9 6
1
§4.6.5 T h e Civ il Rights Act of 1991 and Remedial Policies 2 0 2 §4.6.6 P u n i t i v e Damages under the 1991 Ac t 2 0 3 §4.6.7 T h e Civ il Rights Act of 1991 and Class Actions 2 0 5 §4.6.8 T h e Threat of Rule 11 Sanctions and the 1993 Amendments 2 0 6 §4.7 U n i o n s , Labor Relations Law, and Arbitration 2 0 9 §4.7.1 R a c i a l Barriers to Unionization 2 0 9 §4.7.2 L a b o r Relations Law Remedies 2 1 0 §4.7.3 A r b i t r a t i o n Procedures 2 1 1 §4.8 B e y o n d the Blue-Collar Worker: The Upper Limits of Remedies for Employment Discrimination 2 1 9 §4.9 E m p l o y m e n t , Race, and Gender: Are You a Black, a Woman, or What? 2 2 4 §4.10 L i t i g a t i o n Around Sexual Orientation 2 2 6
Chapter 5 Discrimination in the Administration of Justice §5.1 §5.2 §5.3 §5.4 *5.5 §5.6
2
2
S u m m a r y Punishment via Racial Violence 2 2 C r i m i n a l Remedies for Civ il Rights Violations 2 3 I n e f f e c t i v e Criminal Penalties 2 3 S c r e w s v. United States 2 3 I n t e r r a c i a l Lynching and the Revitalization of Sections 241 and C i v i l Remedies under Section 1983 2 4 §5.6.1 S e v e r e Limitations on Municipal Liabilit y in Cases after Monroe 2 4
9 9 1 2 5 242 2 3 7 0 1
§5.6.2 M o n e l l ' s Victory and the Court's Reshaping of Section 1983 Post -Monell 2 4 4 §5.6.3 P r e - M o n e l l Efforts to Achieve Municipal Liabilit y §5.7 T h e Civ il Rights Attorney's Fees Awards Act of 1976 2
2 5 0 5 1
Contents
§5.8 C i v i l Remedies under Section 1985(3) 2 5 3 §5.9 C i v i l Remedies Based Directly on Constitutional Amendments 2 5 5 §5.10 S o c i e t a l Limits on Basic Protections for Blacks 2 5 7 §5.11 R a c i s m Hypo: Black Plaintiffs v. Suburban Scene 2 6 4 §5.12 Di s c r i mi n a t i o n in the Criminal Justice System 2 6 5 §5.12.1 D e a t h Penalty: An Overview 2 6 5 §5.12.2 G r o w i n g Momentum to End Injustice in the Administration of the Death Penalty 2 7 1 §5.12.3 D e a t h Penalty: Furman and McCleskey 2 7 4 §5.12.4 Ra c i a l l y Disproportionate Penalties 2 8 5 §5.12.5 Cont emporary Racial Vigilantes 2 9 0 §5.12.6 P u n i s h i n g Black Sexuality 2 9 5 §5.12.7 J u r y Nullifi cation 2 9 7 §5.12.8 R a c e and Class in the O. J. Simpson Case 3 0 1 §5.13 Nondis c riminat ory Jury Selection Standards 3 0 2 §5.14 R a c i s m in the Jury Box 3 0 5 §5.15 T h e Systematic Exclusion Standard 3 1 0 §5.15.1 St andards of Proof 3 1 2 §5.16 T h e Peremptory Challenge: A Choice of Interests 3 1 6 §5.16.1 S w a i n v. Alabama 3 1 6 §5.16.2 B a t s o n v. Kentucky 3 1 8 §5.16.3 T h e Continued Use of Peremptory Challenges after Batson 3 2 0 *5.16.4 T h e Post-Batson Era 3 2 5 §5.17 R a i s i n g the Racial Issue on Voir Dire 3 3 1 §5.18 A f fi r ma t i v e Action in the Jury Box 3 3 5 §5.19 R a c i s m Hypo: Proposed Model Racial Reality in Jury Selection Act 3 3 7 §5.20 T h e Right to Nondiscriminatory Juries in Civ il Cases 3 3 8
Chapter 6 Voting Rights and Democratic Domination
3
4
1
§6.1 I n t r o d u c t i o n 3 4 1 §6.2 T o Vote or Not to Vote? 3 4 5 §6.3 Di s f r a n c h i s e me n t : Post-Reconstruction Style 3 4 9 §6.4 S y m b o l i c Voting Rights 3 5 4 §6.4.1 T h e White Primary 3 5 4 §6.4.2 T h e Poll Tax 3 5 6 §6.4.3 O v e r t Racial Designations 3 5 8 §6.4.4 G o m i l l i o n v. Lightfoot 3 5 9 §6.4.5 C r i m i n a l Disenfranchisement Laws 3 6 2 §6.5 Twe n t i e t h - Ce n t u r y Voting Rights Acts 3 6 5 §6.6 J u d i c i a l Review and the 1965 Voting Rights Act 3 6 9 §6.7 T h e Aftermath of Disfranchisement 3 7 3 §6.7.1 T h e Voting Rights Act: 1982 Amendments 3 7 5 §6.8 P o s t - G o mi l l i o n Gerrymanders: Problems of Proof 3 7 7 §6.9 P o l i t i c a l Gerrymanders wit h Racial Implications 3 7 9 §6.9.1 D a v i s v. Bandimer 3 7 9 §6.9.2 V i e t h v. Jubelirer 3 8 0 §6.9.3 L U L A C v. Perry 3 8 1
xiv
Contents
0 . 1 0 B l a c k Vote Dilut ion via At-Large Elections 3 8 5 §6.11 T h e Supreme Court and Mult i-Member Dilution Standards 3 8 8 0.11.1 W h i t c o m b v. Chavis 3 8 8 §6.11.2 W h i t e v. Regester 3 8 9 §6.11.3 Th o r n b u r g h v. Gingles 3 9 0 0 . 1 2 S e c t i o n 5 and Annexation Challenges 3 9 1 §6.12.1 C i t y of Petersburg v. United States 3 9 1 §6.12.2 C i t y of Richmond v. United States 3 9 2 0. 13 S e c t i o n 5 and Redistricting Challenges 3 9 4 §6.13.1 B e e r v. United States 3 9 4 §6.13.2 U n i t e d Jewish Organizations of Williamsburgh, Inc. v. Carey 3 9 5 0 . 1 4 S h a w v. Reno Line of Cases 3 9 8 0. 14. 1 S h a w I 3 9 8 0. 14. 2 M i l l e r v. Johnson 4 0 0 §6.14.3 S h a w I I 4 0 1 §6.14.4 B u s h v. Vera 4 0 1 §6.14.5 H u n t v. Cromartie 4 0 3 0. 14. 6 G e o r g i a v. Ashcroft 4 0 5 §6.14.7 A n Assault on the Voting Rights Act? 4 0 7 0. 15 Re s e r v e d Racial Representation 4 0 9 0 . 1 6 T h e Racial Futility Component in Black Voting 4 2 0 0 . 1 7 R a c i s m Hypo: The Democratic Party v. The State 4 2 3
Chapter 7 Property Barriers and Fair Housing Laws
4
2
5
§7.1 I n t r o d u c t i o n 4 2 5 §7.1.1 H o u s i n g Discrimination Today 4 2 7 §7.2 T h e Restrictive Covenant Cases 4 2 8 §7.3 M e t h o d s of Resistance to Integration 4 3 0 §7.3.1 R e f e r e n d a as a Threat to Civ il Rights 4 3 0 §7.3.2 M u n i c i p a l Resistance to Integrated Housing 4 3 6 §7.4 S e c t i o n 1982 4 3 8 §7.4.I J o n e s v. Alfred H. Mayer Co. 4 3 8 §7.4.2 T h e Jones Progeny 4 4 0 §7.4.3 S e c t i o n 1982 and the Thirteenth Amendment 4 4 1 §7.5 R a c i s m Hypo: Town and Country Fair Housing, Inc. v. RI GHT ON Home Mortgage Co. 4 4 3 §7.6 T h e Fair Housing Act of 1968 4 4 4 §7.6.1 R a c i s m Hypo: A Right of Racial Disclosure 4 4 7 §7.7 D a m a g e s for Intangible Injury in Housing Discrimination Cases 4 4 8 §7.8 R a c i s m Hypo: Trudy Trustwell v. Have-A-Hart Realty Co. 4 5 8 §7.9 F e d e r a l Fair Housing Law and the "St anding" Issue 4 6 1 §7.10 Co n t i n u i n g Segregation and Occupancy Controls 4 6 6 §7.10.1 D o w n s ' s Middle-Class Dominance Theory 4 6 6 §7.10.2 T h e "Tipping Point" Phenomenon 4 6 8 §7.10.3 Re s i d e n t i a l Preferences Blacks 4 6 9
XV
Contents
§7.11 §7.12 §7.13 §7.14
§7.15
§7.10.4 R a c i s m Hypo: Co-op Practices 4 7 0 §7.10.5 R a c i a l Occupancy Controls 4 7 1 R a c i s m Hypo: Blackright v. Village of New Day 4 7 3 U r b a n Renewal and Black Housing 4 7 5 P u b l i c Housing and the Integration Ideology 4 8 0 §7.13.1 B l a c k Opposition to Public Housing Projects 4 8 3 P r o o f Standards in Municipal Land Use Challenges 4 8 5 §7.14.1 V i l l a g e of Arlington Heights v. Metropolitan Housing Development Corp. 4 8 5 §7.14.2 T h e Re-Emergence of Pre—Arlington Heights Standards 4 8 8 §7.14.3 Ex c lus ionary Zoning Litigation in State Counts 4 9 0 M o r t g a g e Discrimination 4 9 2
Chapter 8 Interracial Intimate Relationships and Racial Identification
4
9
7
§8.1 D e fi n i n g the Contemporary Miscegenation Problem 4 9 7 §8.2 T h e Rise and Decline of Miscegenation Laws 4 9 9 §8.2.1 S u p r e m e Court Evasion of Miscegenation Issues 5 0 0 §8.2.2 M c L a u g h l i n v. Florida 5 0 2 §8.2.3 L o v i n g v. Virginia 5 0 3 §8.3 T h e Motivations of Miscegenation Policy 5 0 5 §8.4 E v o l v i n g Perceptions of Interracial Love and Marriage 5 0 9 §8.4.1 R a c e as Biology 5 1 4 §8.4.2 R a c i a l Essence 5 1 7 §8.4.3 S o c i o h i s t o r i c a l Construction of Race 5 1 8 §8.5 C h o i c e in Racial Identify 5 2 2 §8.6 C h o i c e and the Implication of Multiraciality 5 2 4 §8.7 S u m m a r y 5 2 7 §8.8 I n t e r r a c i a l Couples and Employment Discrimination 5 2 7 §8.9 I n t e r r a c i a l Couples and Housing Discrimination 5 3 0 §8.10 Re l i g i o u s Belief and Interracial Social Contact 5 3 2 §8.11 I n t e r r a c i a l Influences on Custody Cases 5 3 5 §8.12 R a c i s m Hypo: The Color-Blind Adoption Act 5 3 9 §8.13 I n t e r r a c i a l Adoptions 5 4 1 §8.13.1 A d o p t i o n Legislation 5 4 4 §8.13.2 Rac e-Mat c hing and Accommodation 5 4 5 §8.13.3 Nonac c ommodat ion 5 4 7 §8.I3.4 I nt ernat ional Adoption 5 4 9 §8.14 I n t e r r a c i a l Adoptions and the American Indian Child Welfare Act of 1978 5 5 1
Chapter 9 Public Facilities: Symbols of Subordination
5
5
5
§9.1 S e g r e g a t i o n Statutes: Methods and Motivations 5 5 5 §9.2 T h e Supreme Court's Nineteenth-Century Approval of Segregation 5 5 7 §9.3 J u s t i c e Bradley Reconsiders the Fourteenth Amendment 5 5 9
xvi
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§9.4 T h e Supreme Court's Mid-Twentieth-Century Rejection of Segregation 5 6 1 *9.4.1 P r i s o n Segregation 5 6 2 §9.5 R a c i s m Hypo: A CL U v. Harmonia Prison Authority 5 6 5 §9.6 T i t l e II, Its Development and Potential 5 6 7 §9.6.1 E v a l u a t i n g Public Accommodations Statutes 5 7 0 §9.6.2 T h e Value of the Dramatic Instance 5 7 2 §9.6.3 G o v e r n m e n t Services and Facilities 5 7 4 §9.7 T h e Private Club Exemption 5 7 8 §9.7.1 U s i n g Tit le II to Protect Racist Clubs 5 7 8 §9.7.2 F i g h t i n g Exclusion in Private Business Clubs 5 8 0 §9.8 A l t e r n a t i v e Legal Approaches to Eliminate Private Club Discrimination: State Action, Tax Subsidies, and Section 1981 5 8 2 §9.8.1 S t a t e Action and Private Clubs 5 8 2 §9.8.2 P r i v a t e Clubs and Public Tax Subsidies 5 8 4 §9.8.3 P r i v a t e Facilities and Section 1981 5 8 6 §9.9 R a c i a l Discrimination in the Marketplace: A Focus on Car Sales and the Housing Market 5 8 9 §9.9.1 R e t a i l Car Sales 5 8 9 §9.9.2 Di s c r i mi n a t i o n Lawsuits Pressure Car Industry 5 9 0 §9.9.3 E n s n a r i n g Consumers with Tricks of the Trade 5 9 2
Chapter 10 The Parameters of Racial Protest
5
9
5
§10.1 I n t r o d u c t i o n 5 9 5 §10.2 T h e Lawf ul Protestor's Dilemma 5 9 6 §10.2.1 P r o t e s t as a Revelation of Law 5 9 8 §10.3 " C r e a t i v e Disorder" and the Courts 6 0 1 §10.4 J u d i c i a l Sanctioning of the Sit-ins While Preserving Racial Hierarchy 6 0 3 §10.5 T h e Judicial Role in Social Reform Through Protests 6 1 1 §10.6 C i v i l Rights Boycotts and Counterattacks 6 1 6 §10.7 De f a ma t o r y Statements and Protest Rights 6 2 4 §10.8 R a c i a l Demonstrations Since the Sit-in Period 6 2 5 §10.9 Re s p o n d i n g to Acts of Protest 6 2 7 §10.9.1 S i l e n c i n g Protest and Dissent in 2003 and Beyond 6 2 7 §10.9.2 R a c i a l Issues and the Flag-Burning Cases 6 2 9 §10.10 Cr o s s Burning by Whites as Expressive Conduct 6 3 5 §10.10.1 R. A . V . v. City of St. Paul 6 3 5 §10.10.2 V i r g i n i a v. Black 6 3 8 §10.11 B a l a n c i n g School Protest Rights 6 4 2 §10.11.1 Pos t -Tink er Cases: Leaving Freedom of Speech at the Schoolhouse Gate 6 4 6 §10.11.2 Rac is m Hypo: Protest Rights and Students 6 5 1 §10.11.3 Sc hool Speech and the Internet 6 5 2 §10.11.4 Rac is m Hypo: School Racism and the Internet 6 5 3 §10.12 F a i r Hearings f or Student Protestors 6 5 4 §10.13 Prot es t Rights in Residential Areas 6 5 8 xvii
Contents §10.14 Protecting Patients or Silencing Unwanted Speech: Restricting Protest Activities Outside Health Facilities 6 6 4 §10.15 Race, Rap, and the Regulation of Free Speech 6 6 7 §10.16 Protesting Police Brutality 6 6 9 §10.17 Protesting Prosecutorial Zeal to Punish Students of Color 6 7 0 §10.18 T h e First Amendment and Racist Speech 6 7 1 §10.19 Ra cism Hypo: Speech Codes on University Campuses 6 8 0
Chapter 11 Racism and Other "Nonwhites"
6
8
3
§11.1 In tro d u ctio n 6 8 3 §11•2 A me ri c a and the Indians 6 8 4 §11.2.1 Fe d e ra l Power over Indians: Its Sources, Scope, and Limitations 6 8 6 §11.2.2 L e g a l Gambling on Native American Lands 7 0 1 §11.3 No n wh it e Natives in Other Lands 7 0 3 §11.3.1 A b o rig in a l Australians 7 0 4 §11.3.2 T h e Maori of New Zealand 7 1 5 §11.4 No n b la ck Racial Minorities in the United States 7 1 9 §11.4.1 T h e Chinese 7 1 9 §11.4.2 T h e Japanese 7 2 2 §11.4.3 T h e Mexicans 7 2 7 §11.5 September 11, 2001 7 3 1 Table of Cases Index
xviii
7
7 5
4 3
1
Preface to the Sixth Edition
Thirty-five years after publication o f the fi rst edition o f this text in 1973, the pessimism expressed there during what many believed were the closing phases of the long civil rights crusade, unfortunately has proven all too accurate. Overt expressions, actions, and policies growing out o f beliefs in white superiority o r racial p rio rity have diminished. We have learned that this progress has often occurred fo r reasons without the involvement o f lawmakers in the legislatures or the courts. Indeed, hard won victories in the courts and statutes have often failed to provide expected gains. The contemporary illustration of a history-long pattern is Brown v. Board of Education, a decision that on its 50th anniversary in 2004, had not been reversed, but was deemed irrelevant by all save those who continued to believe that through reverence, its revival might be achieved. Such continued faith in what was a viable precedent, does not provide either guidance of what went wrong, nor offer direction as to more promising new strategies. Chapter 1, American Racism and the Relevance of Law, takes a detailed look at a 1935 essay by Ralph Bunche, A Critical Analysis of the Tactics and Programs of Minority Groups. Dr. Bunche, writing three-quarters of a century ago, expressed insights and offered suggestions of real value in understanding current resistance and the limited ability o f law to alter deeply held views by much o f the public. Given widespread opposition to judicially recognized racial injustice, the courts and the la w generally have little alternative to reversing o r seriously limitin g reforms. Dr. Bunche would not be surprised by the popular rationale that further civil rights policies are no longer needed because racism is a thing o f the past and continuing complaints o f discrimination are simply whining by those minorities who prefer preferences over performance. The courts to a large extent are now handing down decisions in race cases that reflect this belief. The Supreme Court' s current policy o f applying its strict scrutiny yardstick to any racial classification overturns the traditional view that this tough-to-overcome hurdle was intended to protect discrete and insular minorities fro m discrimination fostered by hostile majorities. Now, turning this standard on its head, the Court —in inmost instances — is protecting members o f the majority against modest policies intended to ameliorate generations of overt racial prejudice. Ignored in the rush to proclaim color blindness as the judicial panacea to claims of racial injustice is the fact that virtually all policies adopted as protections against racial injustices suffered by blacks and other people of color in this country xix
Preface
actually prove of more value to whites. The widespread opposition to affirmative action, an opposition not eased by either court decisions that have rendered such policies very difficult to maintain, or the fact that whites in general, and particularly white women, have benefited from policies o f affirmative action far more than have people of color. Now, as a century ago, the idea that racial remedies for blacks also help whites remains a difficult one to convey. Racial issues in law rather than moving toward resolution have been inundated with the fictions that contradict racial reality. As this edition is readied for publication, Senator Barack Obama seems on the verge of becoming the first black to gain the nomination for president by a major political party. In the process, his well-organized campaign has gained tremendous support from all segments o f the population, an event that many felt would not happen in their lifetimes. That said, it is unlikely, even if Senator Obama survives the many challenges to his nomination and election, that this historical first will alter significantly the continuing racial barriers that most people of color face in all the areas reviewed in this edition. Chapter 2, Race and American History, contains a detailed review o f how racial laws and policies in this country have led many to wonder with Tilden J. LeMelle whether in the absence of recognition that racist practices are seen as a threat " a society such as the United States is really capable o f legislating and enforcing effective public policy to combat racial discrimination in the political process and elsewhere." He says "history presents no instances where a society in which racism has been internalized and institutionalized to the point of being an essential and inherently functioning component of that society ever reforms, particularly a culture from whose inception racial discrimination has been a regulative force f o r maintaining stability and growth and f o r maximizing other cultural values." Chapter 3, The Quest for Effective Schools, substantially revises the education materials in previous editions to focus on recent decisions, including the 2007 Seattle-Louisville cases that subjected to quite strict scrutiny and then rejected the modest efforts school districts attempted to gain some racial diversity in its schools. There is more coverage o f school desegregation alternatives in private and public settings, including innovative approaches to motivating and teaching students whose economic and cultural backgrounds have provided little understanding of how scaling seemingly impassable barriers can be achieved. Chapter 4, Fair Employment Laws and Their Limits, reviews both the continuing and growing racial disparities in every area of the job market. Discrimination in employment is ever present if harder to discern. Victims are finding Title VII and other antidiscrimination policies harder than ever to utilize effectively. Case development has shown a greater willingness to protect defendants than to recognize the more subtle but still effective means of discrimination. As a result, employment cases are harder to bring and even harder to win. The chapter refers to studies showing that these laws are only minimally effective in reducing prejudice and enhancing opportunity for black workers. Most such claims, when resolved by courts, are dismissed on pretrial motions. When employment discrimination plaintiffs do get their claims to a jury, they fare worse than X X
Preface
plaintiffs in other civil actions. This ill fate continues on appeal, with federal appellate courts reversing plaintiffs' victories at a higher rate than defendants' wins in employment discrimination cases. As a result, lawyers are reluctant to take these cases on a contingency basis. Although the Court' s 2007 decision, Ledbetter v. Goodyear Tire Sz Rubber Co., is an exception, defendants are usually more willing to negotiate and settle job bias claims brought by white women. Chapter 5, Discrimination in the Administration of Justice, has shown little change for the better since the Fifth Edition. Given their percentages in the population, a disproportionate number of those sentenced to death are black and Latino. Even so, public support for the death penalty has diminished as a result of the use of DNA evidence that has freed defendants who had served many years while awaiting execution. Beyond the death penalty, though, the statistics show a continuing pattern of bias. The number of blacks and Latinos serving often-lengthy prison sentence have increased. Almost 1 in 4 black men between the ages of 20 and 30 are under the supervision of the criminal justice system on any given day. For white men in the same age group, the corresponding statistic is 1 in 16. Black persons are more likely than whites to have been shot at b y police, 18 times more like ly to be wounded and 5 times more likely to be killed. Prosecutors are more likely to pursue full prosecution, fi le more severe charges, and seek more stringent penalties in cases involving defendants of color, particularly where the victim is white. Min ority offenders are also sentenced to prison more often and receive longer terms than whites convicted of similar crimes and with similar records. As of 2007, more than 60 percent of the people in prison are now racial and ethnic minorities. For black males in their twenties, 1 in every 8 is in prison or jail on any given day. Of the 2.2 million incarcerated individuals, 900,000 are black. These trends have been intensified by the disproportionate impact of the " wa r on drugs," in which threefourths of all persons in prison for drug offenses are people of color. The chapter covers the generally harsh decisions that explain these statistics. Calls for legislative reform are resisted by officials who fear they will face " so ft on crime " charges that may endanger their reelection. Chapter 6, Voting Rights and Democratic Domination, records the continuing frustration by courts seeking judicially manageable standards for determining the validity of electoral districts apportioned equally through computerized techniques capable of effectively gerrymandering lines to favor one political party over the other. And, as indicated by its decision in Georgia v. Ashcroft, the Court is looking more broadly in determining whether redistricting plans adopted to ensure the effective inclusion of black votes can meet that standard without the creation o f safe-black districts. I n the area o f individual voting rights, it appears that the Supreme Court' s approval of a state' s requirement that perspective voters produce a government issued photo ID at the polling place, Crawford v. Marion County Election Board, 553 U.S. ( 2 0 0 8 ) , will be the first o f several challenges to proposed state laws proposed to prevent voter fraud, but Opponents of Voter ID laws, enacted or being considered in several states, maintain that they will discourage voting and in particular black and Latino voting for reasons quite similar to those that led to invalidation of poll taxes. xxi
Preface
Chapters 7, 8, 9, and 10 cover developments in the areas of Property Barriers and Fair Housing Laws, Interracial Intimate Relationships and Racial Identification, Public Facilities, and The Parameters of Racial Protest. In each area, despite surface compliance with antidiscrimination policies, there remain serious problems o f exclusion, discrimination, and exploitation operating just below the surface with effects that are both serious and extremely resistant to traditional litigation approaches. Most civil rights advocates would agree that laws intended to bar racial bias for those seeking to buy or lease personal residences have not been very effective, relying as most do on action by those alleging discrimination. The once steadfast resistance to interracial sex and marriage has lessened steadily over the years, but problems remain in policy differences on interracial adoption. The relative openness o f most places o f public accommodation is evidence that the fear o f economic loss and the hope for gain is a more powerful engine of change than either law or public resistance. And racial protests that have always walked the fine line between activities that gain attention while saying with in boundaries that lawyer can argue are constitutionally protected, have a difficult time during times of war when all but the most peaceful (and likely ineffective) protests can be deemed unpatriotic and unworthy of protection. Chapter 11, Racism and Other "Nonwhites," has been updated with further coverage given the treatment o f Indians and policies ranging from genocide to subjugation and exploitation. It covers as we ll the racial experience of Chinese, Japanese, and Mexican Americans in this country as well as the continuing racial problems faced by the Aborigines in Australia and the Maori in New Zealand. In addition, the section titled, "September 11, 2001," added in the Fifth Edition, has been updated to address racial components of anti-terrorist policies instituted by the Bush Administration in the wake of the one of the most devastating attacks in American history. These policies have included overt racial profiling with race and ethnicity used as proxies fo r affiliation with terrorism. There have been large numbers o f immigration-based detentions, including purely preventive based detentions, o f persons from certain countries or ethnic or religious backgrounds. The federal government has also imprisoned a large number of foreign persons in Guantanamo Bay, Cuba, and in unknown locations abroad without formal charges or access to lawyers. In addition, the government has also failed to extend traditional legal procedures to U.S. citizens being held as enemy combatants. It has detained foreign nationals and a small number of U.S. citizens, and has also conducted secret wiretapping and secret searches without a showing of probable cause or criminal wrongdoing.
As in past editions, most of the Sixth Edition chapters contain racism hypos, hypothetical cases providing a detailed set of facts that can provide the basis for simulated appellate case arguments with students representing each side. This is an excellent way to facilitate discussion of both the depths and the parameters of racial issues in each of the subject areas. Utilizing this approach serves as a vehicle for teachers at both the la w school and undergraduate levels who want to lif t the
Preface
teaching of race relations law beyond the reading o f cases and discussion about what the cases meant. Beginning with the Second Edition, published in 1980, I reduced edited cases to summaries, recognizing that legal opinions in the racial field often reflect rather than set society's patterns and practices. This editorial change (cushioned by a companion volume o f edited Leading Civil Rights Cases) reflected my concern that for all the furor they sometimes cause and all the change in racial patterns and policies attributed to them, the studying in detail of the usually lengthy and often multiple opinions in race cases seldom furthers understanding of what the Court has done and why it has done it. Any concern that students are shortchanged by not having the full or only lightly edited opinions of major cases available is resolved by the ready availability of the full opinions on the data bases or from the Supreme Court' s website, www.supremecourtus.gov The key question in the Sixth Edition remains that of the First: What does it mean to say that racism is a permanent feature of American society? Is there an inchoate property right in whiteness? In short, are there components o f racial thought, belief, and identification that are critical to the maintenance o f social stability in a society marked b y enormous disparities in income, wealth, and opportunity? When the poor white person boasts: " E ve ry morning, when I wake up, I thank God that I'm white!," what exactly is he thankful for? Whatever the answer, it is now apparent that racism is no longer definable by views and actions that are blatantly prejudiced. Rather, as psychology Professor Beverly Daniel Tatum explains, racism is a system of apparent advantage based on race that benefits all whites whether or not they seek it. Except in response to the most overt discrimination, racial remedies, whether judicial o r legislative, that appear to interfere with this advantage are opposed when suggested and resisted when approved. This is the answer to the question posed in the Preface of the First Edition where I wondered why the hard-won decisions protecting basic rights o f black citizens from racial discrimination are abandoned or become obsolete before they are effectively enforced. My question, pertinent then even in the midst of the greatest surge of positive civil rights gains in American history, has become critically important given the overturning and reinterpreting of the legal precedents even the most pessimistic among us viewed as permanent. Finally, the Sixth Edition continues the effort of its predecessors to make clear that racism burdens whites as well as blacks and racial remedies benefit all groups. The nineteenth-century Populist leader, Tom Watson, put it well in 1892 when, as a staunch advocate of a union between Negro and white farmers, he wrote: You are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone o f the arch o f financial despotism which enslaves you both. You are deceived and blinded that you may not see how this race antagonism perpetuates a monetary system which beggars you both. I have cited Tom Watson in each o f the previous editions. It remains a message worthy of being both heard and taught. In a later era, Dr. Ralph Bunche urged that the only realistic program for any minority group in modern America that can resolve this self-destructive antagonism is one based upon an intelligent analysis of the problems of the group in terms
Preface
of the broad social forces which determine its condition. Certainly no program of opportunism and no amount of idealism can overcome or control these forces. The only hope for the improvement in the condition of the masses of any American minority group is the hope that can be held out for the betterment of the masses of the dominant group. Their basic interests are identical and so must be their programs and tactics. Derrick Bell
June 2008
xxiv
Acknowledgments Once again, former students have provided essential research and writing. Chief among them is Ellen Joy Radice, J.D. 2003, Harvard Law School, who researched and drafted substantial versions of several chapters. Other contributions were made by former NY U law students, Margo Kaplan, J.D. 2004, Sarah Blanton, J.D. 2007, and Ana E.J. Jung, LL. M 2007. My thanks to Craig Gurian, Executive Director of the Anti-Discrimination Center of Metro New York, f or reviewing and making suggestions f or Chapter 7. Gail Thomas and Naomi Nurse helped wit h the administrative work. Excerpts from the following materials appear with the kind permission of the copyright holders. Bell, Derrick, Bakke, Minority Admissions, and the Usual Price of Racial Remedies, 67 Calif. L. Rev. 1(1979). Copyright CD1979, California Law Review, Inc., Reprinted by Permission. Bell, Derrick, Black Colleges and the Desegregation Dilemma, prepared for inclusion in a 1980 report on black colleges by the Ford Foundation's Private Black Colleges Program, Morris T. Keeton, Director. Bell, Derrick, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv . L . Rev. 518 (1980). Copy right CD 1980 by the Harvard Law Rev iew Association. Reprinted by permission. Bell, Derric k , Rac ial Remediation: A n Historical Perspective on Current Conditions, 52 Notre Dame Lawy er 5 (1976). Reprinted wit h permission. Copyright © by the Notre Dame Lawyer, University of Notre Dame. Bell, Derrick, The Legacy of W.E.B. Du Bois: A Rational Model f or Achieving Public School Equity for America's Black Children, 11 Creighton L. Rev. 409 (1978). Bell, Derrick, The Racial Imperative in American Law, originally published in The Age of Segregation: Race Relations in the South, 1890-1945, published by the University Press o f Mississippi i n 1978. This material is used wit h the permission o f the University Press of Mississippi. Bunche, Ralph J., A Critical Analysis of the Tactics and Programs of Minority Groups. The Journal of Negro Education, Vol. 4, No. 3, The Courts and the Negro Separate School (July 1935). Reprint ed by permission o f the JSTOR Archive, a trusted digital repository prov iding f o r long-t erm preservation and access t o leading academic journals and scholarly literature f rom around the world. Freeman, Alan, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978). Ry mer, Paul, Uneasy Alliances: Race and Party Compet it ion in America, Princeton University Press (1999). Copyright k) by of University Press. . 1permission 9 9 9 b Princeton y Newton, P rNell i nJessup, c e Federal t o nPower over Indians: Its Sources, Scope, and Limitations, 132 U Pa. U. n L.i Rev. v 195 e (1984). r s Copyright i t y 0 1984 University of Pennsylvania Law Review. Sturm, P Susan r ande Guinier, s Lani, s The Future o f Affi rmative Action: Rec laiming the . Innovative Ideal, 84 Calif . L . Rev . 953, 957 (J uly 1996). Copy right © 1996, California Law R e p Review, r i Inc.nReprinted by permission. Williams, t Patricia, e d The Alchemy of Race and Rights, Harvard University Press, 58-59 (1991). Reprinted by permission. The pen and ink drawing in the Dedication is by Bernice Loss. It is based on a photograph of the 1968 Olympic victory of John Carlos and Tommie Smith and was used in the Loss work by permission of United Press International. XXV
Chapter 1 American Racism and the Relevance of Law
For weal or for woe, the destiny of the colored race in this country is wrapped up with our own; they are to remain in our midst, and here spend their years and here bury their fathers and finally repose themselves. We may regret it. It may not be entirely compatible with our taste that they should live in our midst. We cannot help it. Our forefathers introduced them, and their destiny is to continue among us; and the practical question which now presents itself to ·us is as to the best mode of getting along with them. 1
§1.1 THE CURRENT RELEVANCE OF DR. RALPH BUNCHE'S RACIAL ASSESSMENT
The year was 1866. Speaking to his Senate colleagues, Senator Jacob Merritt Howard, abolitionist and key architect of the Fourteenth Amendment, urged Radical and Conservative Republicans alike to confront the challenge posed by the presence of the former slaves "in our midst." Grudging rather than generous, conciliatory rather than crusading, Senator Howard's statement contemplated sanctuary rather than equality for those formerly enslaved and now an unwelcome addition to the citizenry. Senator Howard's candidly expressed apprehension about the prospect of blacks living free in white America continues to echo through contemporary civil rights decisions in which the measure of relief from discrimination blacks are able to gain is determined less by the character of harm suffered by blacks than the degree of disadvantage the relief sought will impose on whites. This unacknowledged formula, seldom mentioned outside academic settings, has resulted in an increasing number of black people being left outside the law's protection and placed at risk at a time when this country's economic and political policies are in great turmoil. That the current status of blacks leaves little room for optimism and the future, barring unforeseen developments, could prove far worse would not be a surprise to 1. II Encyclopedia ofthe American Constitution 761 (Leonard W. Levy, Kenneth L. Karst & Dennis J. Mahoney eds., 1986).
1
§1.1
Chapter 1.
American Racism and the Relevance of Law
Dr. Ralph J. Bunche, who as a young political scientist in 1935 predicted that the Constitution was an unreliable source for protection of black peoples' rights and lives. Referring to John Stuart Mill's treatise, Representative Government, Bunche felt the British philosopher and political economist had been proven wrong in asserting as to different racial groups of whites, that it was impossible to build up a democracy out of the intermingling of racially differentiated peoples. Bunche, though, found much evidence supporting Mill's statement when related to the intermixture of white and black populations in the same society. Throughout the world today, wherever whijes and blacks are present in any signific~t numbers in the same community, democracy becomes the tool of the dominant elements in the white population in their ruthless determination to k~tJ? the blacks suppressed. 1
Providing reason for Senator Howard's pessimism, Dr. Bunche wrote: The significant fact is that democracy, while never offered in any large measure to the black populations of the world, has been extended to the great masses of the working-class population only so long as it was employed by them as a harmless device involving no real threat to the increasing control of the society by the ruling classes. Minority populations, and particularly racial minorities, striving to exist in any theoretically democratic modem society, are compelled to struggle strenuously for even a moderate participation in the democratic game. Minority groups are always with us .... [W]hatever the nature of the minority group, its special problems may always be translated in terms of political, economic, and social disadvantages. Group antagonisms develop, which are fed by mythical beliefs and attitudes of scorn, derision, hate, and discrimination. These serve as effective social barriers and fix the social, and hence, the political and economic status of the minority population. The mental images or verbal characterizations generally accepted as descriptive of the members of the particular racial group, ... give rise to stereotypes which are of the greatest significance in race relations. These race distinctions, along with similar class and caste distinctions, are so thoroughly rooted in our social consciousness as to command serious attention in any consideration of programs whose objective is equitable treatment for minority racial groups. 2 §1.1 I. Ralph J. Bunche. A Critical Analysis of the Tactics and Programs of Minority Groups, in The Journal of Negro Education, Vol. 4, No. 3, The Courts and the Negro Separate School (July 1935), pp. 308-320. In 1948, Bunche was on a United Nations peace-keeping mission. Count Folke Bemadotte, the mediator he had been assisting, was assassinated. Bunche stepped in and spent the next six months helping to develop armistice agreements that were signed by Israel and Egypt, Jordan, Lebanon, and Syria. In 1950 Bunche was persuaded to accept the Nobel Peace Prize; he initially refused, feeling the honor belonged not to an individual, but to the United Nations. See, http://spotlight.ucla.edu/alumni/ralph-bunche. See also Amy L. Chua, The Paradox of Free Market Democracy: Rethinking Development Policy, 41 Harv. Int'l L.J. 287, (2000). In explaining how democracy can coexist within a capitalist society, Professor Chin cites, inter alia, racism (and the creation of a large racial underclass) has arguably made poor and working-class whites feel better about their relative plight, giving them a consoling sense of superiority and status vis-a-vis African Americans, Hispanic Americans, and other groups of color perceived (in many senses correctly) as "the sediment of the American stratificational order." ld. at 306. 2. To see how the generally believed stereotypes of Indians as uncivilized savages totally ignorant of the value of the lands they occupy, gained acceptance and provided support for Supreme Court decisions from Chief Justice John Marshall to Chief Justice William Rehnquist, see Robert Williams, Like a Loaded Weapon (2005), discussed in Chapter 11.
2
The Current Relevance of Dr. Ralph Bunche's Racial Assessment
§1.1
The perceived economic competition blacks pose for whites, particularly those in the working class, Bunche contends, means that racial prejudice is explainable in economic terms. In addition, "The cultural, political and economic degradation of the Negro also gave the poor-whites their sole chance for 'status.'" 3 While deemed the "minority class," blacks are that in only the narrow racial seti"se, and otherwise are "subject to the same divisive influences impinging upon the life of every other group in the nation." This poses a dilemma for black leadership that, Bunche complains have eschewed class concerns and: traditionally put its stress on the element of race; it has attributed the plight of the Negro to a peculiar racial condition. L_eaders and organizations alike have had but on7 end in view- the elimination of "discrimination against the race;:_ This attitude has been reflected in the tactics that they have employed to correct abuses suffered b their rou . They have not realized that so long as this basic conf1i£t il!_tl1~ economic interests of the white and blac groups persists, an 1t 1s a perfectly natural phenomenon in a modem industrial society, neither prayer, nor logic, nor emotional or legal appeal can make much headway against the stereotyped racial attitudes and beliefs of the masses of the dominant population. The significance of this to the programs of the corrective and reform organizations working on behalf of the group should be obvious. The most that such organizations can hope to do is to devote themselves to the correction of the more flagrant specific cases of abuse, which because of their extreme nature may exceed even a prejudiced popular approval; and to a campaign of public enlightenment concerning the merits of the group they represent and the necessity for the establishment of a general community of interest among all groups in the population. 4
The political and economic opportunity that minority groups struggle for, Bunche argued, received more lip service than support from democratic liberalism as those principles were applied in countries whose economies were so ordered that "great masses of the populations were presupposed to be non-property-holding workingmen, whose opportunities for obtaining property became progressively less easy, and whose economic status was increasingly less certain as a result of technological and financial developments within the economic structure, resulting in periodic unemployment, loss of income and dissipation of meager savings." 5 While the American Dream was energized here by the presence of the frontier with free land and rich natural resources, the opportunity to "go West" was never widely open to the Negro population, a fact that forestalled development of class stratification and consciousness of it as found among whites. The assumptions of political freedom for individuals: equality before the law, the right to free speech, press, religion, assemblage and movement, and 3. See, e.g., David Roediger, The Wages of Whiteness: Race and the Making of the American Working Class (1991). 4. Bunche, supra note 1, at 311. 5. Id at 312. Bunche cites without explanation a lengthy internal conflict within the NAACP during the mid-1930s over whether its efforts should be directed toward challenging the legality of racial segregation through the courts, the view oflawyers and much ofthe group's board of directors, or of improving the economic status of Negroes through building business enterprises and internal self organization to push for nondiscriminatory public policies though not necessarily through eradication of the color-line. See, Mark Tushnet, The NAACP: Legal Strategy Against Segregated Education, 1925-1950,6-12 (1987 ed.).
3
§1.1
Chapter 1.
American Racism and the Relevance of Law
participation in government through the ballot, were systematically denied to blacks when Bunche wrote his essay in the mid-1930s, and even 70 some years later, cannot be assumed, particularly the right to vote without that vote being challenged, denied, or diluted. To gain their civil rights, Bunche listed the available options. He argued that violence was not available both because of numbers, and the scattered nature of the population. Significantly, he adds that as the failed efforts of Communists to organize blacks for revolutionary activities show clearly: "the Negro masses are so lacking in radical class consciousness; they are so conservative J!Ild deeply imb!le~l__~i_t]l a peasant psychology and the lingering illusion ofthe American Dream, that any possibility of large-scale identification of the Negro population with revolutionary groups can be projected only in the futlJJy. " 6 At the time in which he was writing, Bunche saw little hope in racial separation such as the Marcus Garvey "back to Africa" Movement, economic passive resistance of the Gandhi mode such as boycotts of the "don't buy where you can't work" variety, and non-violent resistance that had not then had success in India with its much greater potential. Its most serious flaw, Bunche felt, was the fact that "the Negro is not out of a job simply because he is a Negro, but, rather because the economic system finds itself incapable of affording an adequate number of jobs for ali-in fact, its productive system is so organized that it must have a marginal labor supply. But the most serious defect in the rationalization of this tactic is in the fact that such programs widen still further the already deplorable gap between the white and black working-classes of the nation, by boldly placing the competition for jobs on a strictly racial basis. If the doctrine were carried out to its _logical conclusion, it would necessarily advocate that Negro workers be organized as a great strike-breaking group/' 7 Based on this view, Bunche on one hand might have predicted the opposition by many whites to affirmative action programs that led to the eventual denial of their validity by the courts. Because, as with affirmative action programs, whites would perceive them as in economic competition with them, Bunche dismissed as unrealistic the then attractive views of Booker T. Washington that blacks might develop a separate economic community within the white world outside that controls credit. basic industry. and the state. On the other hand, black groups, particularly churches, have made impressive gains in building and operating schools, health clinics, senior citizen housing, drug rehabilitation programs, and other much-needed facilities in black communities. 8 These efforts offer services that neither government nor private enterprise are providing and thus are not viewed as a threat to major industries. Bunche argues that there are political barriers facing those who place reliance on the ballot and the courts as the means to gain social justice for blacks. He explains: The inherent fallacy of this belief rests in the failure to appreciate the fact that the instruments of the state are merely the reflections of the political and economic 6. Bunche, supra note 1, at 312. 7. Id at 314. 8. See, e.g., John J. Dilulio, Jr., Living Faith: The Black Church Outreach Tradition, Jeremiah Project Report, No.3, 1998, http://www.manhattan-institute.org/htmlljpr-98-3.htm.
4
The Current Relevance of Dr. Ralph Bouche's Racial Assessment
§1.1
ideology of the dominant group, that the political arm of the state cannot be divorced from its prevailing economic structure, whose servant it must inevitably be. Leaders of the American Negro such as the National Association for the Advancement of Colored People, have conducted a militant fight under this illusory banner. They have demanded full equality for the Negro, involving the eradication of all social, legal, and political restrictions tending to draw a line of distinction between the black citizen and the white. The Negro, like the white American, is to quaff the full draught of eighteenth-century democratic liberalism. The Negro individual citizen must have every right boasted by the individual white citizen, including the franchise, freedom of economic opportunity (consisting chiefly of the right to employment without discrimination), the right to accommodations in public places and on common carriers, the right to voluntary choice of his place of residence without involuntary segregation, the right to jury service, and equal expenditures of public funds for education and other public services." 9
When he wrote, 90 percent of Southern blacks were barred from the ballot. Today, blacks' right to vote is more established in law than protected in fact. Chapter 6 reviews a seemingly endless array of tactics used to limit the black vote and its significance on elections. The assumption. then as now, that the Constitution will protect the rights set out in its provisions, Bunche contends ignores the quite significant fact that the Constitution is a very flexible instrument and that, in the nature of things, it cannot be anything more than the controlling elements in the Ameris;tn society wish it to be. In other words, this charter of the black man's liberties can never be more than our legislatmes, and, jn the final analysis our courts. wish itto be. And, what these worthy institutions wish it to be can never be more than what America11 public opinion wishes it to be. Unfortunately, so much of American public opinion is seldom enlightened, sympathetic, tolerant or humanitarian. Too often (in Bunche' s day and not impossible in ours) it resembles mob violence. 10 Because so much of white society ranges from uncaring to hostile, Bunche finds that civil rights groups look for support from aspects of the dominant society with civil libertarian leanings, efforts that "depend upon its ability to create a sympathetic response to its appeals among influential elements in the controlling population." 11 Success in the long run, Bunche asserts, requires black groups to soften their militancy and conform to the genteel prQgrams that G_t!ltivate the good w.ill of the white upper classes. This results in the civ_il rights groups being forced into a policy of conciliation with the enlightened, i.e., the ruling interests, in the dominant group. They must rely upon sympathetic understanding and fair play in their campaigns for social justice, ... They can be militant, but only politely so; they can attack, but not too harshly; they must entreat, bargain, compromise and capitulate in order to win even petty gains. Thei must politely play the game according to the rules even though they have no stakes. 2
This assessment would seem harsh and inaccurate during the civil rights era of the post-Brown 1950s and 1960s, but in more recent decades, funding and support 9. Bunche, supra note 1, at 315. 10. Id at 316. 11. Id. 12. Id.
5
§1.1
Chapter 1.
American Racism and the Relevance of Law
from government, corporate, and foundation sources has been harder to come by even though civil rights policies have relied on seeking progress through the courts and legislatures as opposed to more militant direct action measures that they generally neither defend nor support. Dr. Bunche saved his most trenchant criticism for the courts and the faith that civil rights groups place in them. Again, his condemnation would seem inappropriate given the civil rights victories racked up during the civil rights era. ~y of those gains, though, have been watered down, reinterpreted, and ovezuled with the result that Bunche's assessment gains a validity that it actually never lost. He contends that: the Negro in the United States is a special ward of the Supreme Court. The Negro has had countless experiences which sufficiently establish the fact that he has rights only as this august tribunal allows them, and even these are, more often than not, illusory.lt 1s only madvertently that the courts, hke the legislatures, fail to reflect the dominant mass opinion. It must be futile, then, to expect these agencies of government to afford the Negro protection for rights which are denied to him by the popular will. Moreover, even could we optimistically hope that the Supreme Court, in its theoretical legal detachment, would go counter to the popular will and wipe out the proscription~ imposed on the Negro, as it appeared to do in the Scottsboro cases, 13 the condition of the group could not be greatly changed., In the first place, American experience affords too many proofs that laws and decisions contrary to the will of the majority cannot be enforced. In the second place, the Supreme Court can effect no revolutionary changes in the economic order, and yet the status of the Negro, as that of other groups in the society, is fundamentally fixed by the functioning and the demands of that order. The very attitudes of the majority group which fix the_ Negro in his dis~dvantaged position are part andparcel of the American ec()nomic and, political order. 1
Bunche reviews the laws and decisions as they stood when he was writing. Many of those rulings upholding racial segregation were struck down thorough reinterpretations of the Civil War Amendments, thereby rendering his examples of the subordination of black rights to Court rulings both outdated as to the cases he discusses, but very relevant to current legal precedents. For today, as then, there is "the tendency of the Supreme Court to detach itself from political reality when questions involving Negro rights are concerned and to resort to legal fictions .... " Citing an early case upholding the Texas Primary that denied blacks access to the vote, Bunche could as well be speaking of the Court's decisions in several of the voter apportionment decisions discussed in Chapter 6. In his view, even winning ... minor and too often illusory victor[ies] now and then, are essentially inefficacious in the long run. They lead up blind alleys and are chiefly programs of escape. No minority group should relent in the most determined fight for its rights, but its leadership should recognize the limitations of opportunistic and socially blind policies. The only realistic program for any minority group in modem America is one 13. Powell v. Alabama, 287 U.S. 45 (1932); Norris v. Alabama, 294 U.S. 587 (1935). In these cause celebre cases, the Court established the right to counsel in state and federal courts by overturning convictions of nine young blacks convicted of raping a white woman on a freight train. 14. Bunche, supra note 1, at 317.
6
The Current Relevance of Dr. Ralph Bunche's Racial Assessment
§1.1
which is based upon an intelligent analysis of the problems of the group in terms of the broad social forces which determine its condition. Certainly no program of opportunism and no amount of idealism can overcome or control these forces. 15 The onlx hope for the improvement in the condition of the masses of any American minority group is the hope that can be held out for the betterment of the masses of the dominant group. Their basic interests are identical and so must be their programs and tactics. 16 Here, Bunche advocates what he believes is the only meaningful strategy for the advancement of blacks without mentioning either the failures of the Populist Movement of the 1890s, about which he certainly knew, nor the Poor People's March that Martin Luther King, Jr. was seeking to organize at his death in 1968. Yet Dr. Bunche would be pleased to cite the Texas ten percent plan as an example of blacks and poorer whites coming together to support a legislative initiative that would aid both. In the wake of a court decision, Hopwood v. Texas, 17 barring Texas colleges from considering race or ethnicity in their admissions process, the Texas legislature enacted legislation requiring Texas flagship colleges to admit students from any Texas high school who had graduated in the upper ten percent of their class. The plan assured continued racial diversity, but also enabled whites from rural high schools to gain admission to the top Texas schools from which they had been rejected in favor of applicants with more impressive credentials based on traditional measures who had not been among the top ten percent in their more competitive high schools. Complaints from the University of Texas and from parents in suburban districts led to a major effort to scale back the plan in 2007, but again white legislators from rural districts joined with black and Latino colleagues to defeat the change. 18 Professors Lani Guinier and Gerald Torres view the Texas ten percent plan as representing the 15. Contemporary scholars have suggested more circumspectly what Bunche said directly. Judge Richard Posner, a major constitutional scholar, wrote: Almost a quarter century as a federal appellate judge has convinced me it is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly. He says that is because the most important pronouncements of the Court were invariably political in nature, rather than strictly legal. Such cases can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms. Richard A. Posner, Foreword: A Political Court, 119 Harv. L. Rev. 32 (2005). Yale Law Professor Bruce Ackerman, a major figure in constitutional law, agreed with the dissent of Justice Stevens who condemned the majority's decision in Bush v. Gore to halt the Florida recount as a blatantly partisan act, without any legal basis whatsoever. Ackerman's agreement was reluctant because, he wrote, "this view goes against the grain of my entire academic career, which has been one long struggle against the slogan that law is just politics." Bruce Ackerman, The Court Packs Itself, Vol. 12, No. 3 The American Prospect 48 (Feb. 12, 2001). And Justice Sandra Day O'Connor wrote that "real change comes principally from attitudinal shifts in the population at large. Rare indeed is the legal victory in court or legislature that is not a careful byproduct of an emerging social consensus." Sandra Day 0' Connor, The Majesty of the Law: Reflections of a Supreme Court Justice, 166 (2003). 16. Bunche, supra note 1, at 320. 17. 78 F. 3d 992 (5th Cir. 1996). 18. Inside Higher Ed., http://www.insidehighered.com/news/2007/05/29/percent. Rep. Helen Giddings was quoted in Texas press accounts as saying that under the current system, "You don't have to be an athlete today, you don't have to be related to a large donor today, you don't have to be wealthy today, you don't have to be a legacy today. You have to perform."
7
§1.2
Chapter 1.
American Racism and the Relevance of Law
kind of shared interest between blacks and whites that can further social and economic policies of value to both. 19 As this volume goes to press, Senator Barack Obama appears to have adopted Dr. Bunche's position as he seeks the Democratic nomination to run for president of the United States. His campaign urges voters to unite across traditional lines of race and party by emphasizing the similarity of their needs, the dangers they face, and the potential in unity for achieving reforms both abroad and at home.
§1.2 COLOR-BLIND CONSTITUTIONALISM: A REDISCOVERED RATIONALE
Dr. Bunche' s prophetic essay reviewed in the previous section accurately predicted the adoption and later the rejection of constitutional interpretations seeming!or intended to remedy racial injustices. The cases discussed in this section are reviewed in more detail in the chapters that follow, but it is worthwhile to compare Bunche' s analysis with this summary of how under public pressure, the Court has reinterpreted the Fourteenth Amendment back to its once colorblind roots. While from its enactment in 1866 until more than three decades into the 20th century, the Fourteenth Amendment had provided scant protection against the prejudicial policies and practices that so circumscribed black lives, the potential for improvement came, significantly enough, in one of a series of "New Deal" cases in which the Court began rejecting the "right of contract" ideology of the Lochner era. 1 In United States v. Carolene Products Co} the Court in upholding a challenged federal law enacted to protect public health, indicated that such economic regulations need meet only a minimum standard of rational review meaning it was neither arbitrary nor irrational. In its now famous footnote 4, Jl!stice Harlan Stone suggested that the Court might apply a more exacting standard in reviewing legislatiop aimed at discrete and insular minorities who lack the normal protections of the political process. Also it provided that this heightened scrutiny, later designated as strict scrutiny, would be applied to legislation within a specific prohibition of the Constitution and the first ten amendments deemed protected under the Fourteenth Amendment. In its first application of the strict scrutiny standard, Korematsu v. United States, 3 the Court found that the government had shown a compelling state interest justifying the relocation of Japanese Americans during World War II. Some two decades later in L:oving v. Virginia, 4 the Court applied the strict scrutiny standard 19. See Lani Guinier & Gerald Torres, The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy (2002). §1.2 1. Lochner v. New York, 198 U.S. 45 (1905). The fiction that workers and company owners stood on mutual ground when negotiating job contracts was not unlike the fiction in Plessy v. Ferguson that "separate but equal" provided blacks with all the protection required of the states. 2. 304 U.S. 144 (1938). 3. 323 u.s. 214 (1944). 4. 388 u.s. 9 (1967).
8
Color-Blind Constitutionalism: A Rediscovered Rationale
§1.2
to invalidate a law barring marriage between two races. For more than a decade thereafter, few racial classifications deemed to disadvantage blacks or other minorities were able to show the compelling state interest required to survive. Classifications that disadvantaged blacks but did not mention race directly and arguably were intended to achieve some legitimate non-racial goal were another matter. They are usually approved unless the civil rights challengers are able to introduce proof that they were intentionally intended to discriminate, a very difficult task. 5 Before long, the only challenged racial classifications were by whites to affirmative action policies. These challenges contended that, far from benign, affirmative action programs are invidious measures anathema to the principles of equality embodied in the Fifth and Fourteenth Amendments of the Constitution. These arguments began to prevail as the Court determined to apply the strict scrutiny standard to racial classifications whether they were overtly intended to discriminate or were efforts to remedy past discriminatory pattems. 6 As a result, any white claiming that an affirmative action policy is a form of reverse discrill!.~ ination can challenge that policy and, in effect, becomes the "discrete and insulaJ minority" entitled to special judicial protection. While a consensus in support of certain race-based affirmative action programs among business, military, and civic leaders was crucial to the closely divided 5-4 decision upholding the University of Michigan Law School's admissions program, 7 the Court's new majority, following JA. ( t. ~'J•"' Justice O'Connor's retirement, has now concluded that the validity of all racial classifications must be measured by the strict scrutiny standard. 8 Currently the , Court's equality jurisprudence resonates with the rhetoric of "color-blindness." In the idealized color-blind environment envisioned by the Court majority, race loses its legal, social, and political significance. Lawmakers, they find, have no reason to pass race-based laws and policies even for racial remediation reasons because social inequality would reflect merit alone rather than any degree of individual or systematic racial discrimination. But even the current Court, distrustful as it is of all racial classifications, recognizes, at least theoretically, compelling reasons for narrowly tailored race-based measures. Still, because race-specific antidiscrimi1 nation strategies are so difficult to justify under strict scrutiny. critical race theorr ists argue that jurisprudence based on color-blindness serves to reify rather than repair existing racial disparities. Their writings expose how the rules governing equal protection review actually disadvantage communities of color. 9
5. See, e.g., Washington v. Davis, 426 U.S. 229 (1976); McCleskey v. Kemp, 481 U.S. 279 ( 1987). 6. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). 7. Grutter v. Bollinger, 539 U.S. 306 (2003). 8. Parents Involved v. Seattle School District No. 1; Meredith v. Jefferson County Board of Education, No. 05-908, 551 U.S._ (2007). 9. See, e.g., Tanya Kateri Hernandez, Multiracial Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, 57 Md. L. Rev. 97 (1998); Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 Stan. L. Rev. I (1991); Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L.J. 705; Garry Peller, Race-Consciousness, 1990 Duke L.J. 758; Derrick Bell, Xerces and the Affirmative Action Mystique, 57 Geo. Wash. L. Rev. 1597 (1989); Charles Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 ( 1987).
9
§1.2
Chapter 1.
American Racism and the Relevance of Law
Critical race theorists view the intent requirement as a double-edg~~-~word. Kimberle Crenshaw acknowledges the need to subject overt acts of discrimination to constitutional review in order to discourage the express exploitation of minorities. 10 She recognizes as well that the adoption of formal race-neutrality eventually made it impossible for southern state legislators to continue a postReconstruction Jim Crow regime bent on expressly denying persons of color the same opportunities as whites to vote, attend school, obtain employment, own a home, enter business transactions, or engage in any number of social, political, or economic activities. In this respect, the prohibition on intentional discrimination is a positive advancement. That said, Crenshaw is concerned that the intent requirement makes it difficult to address the conditions of inequality that arise when lawmakers pursue legitimate race-neutral objectives despite their impact on minor~One example might be a municipality's decision to locate a toxic waste dump in a community with particularly low property values. This might make sense from an economic perspective, but it poses problems from an equality perspective if such areas are disproportionately inhabited by persons of color. Another concern is that the intent requirement makes it nearly impossible to challenge the most potent forms of racial discrimination that emerge from the subconscious level. The influence of unconscious racism is the theme of Charles Lawrence III's seminal work, "The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism." 11 To Lawrence, the requirement of intent is misplaced because society already discourages overt acts of discrimination. As a result, conscious acts of racial bias are rare, readily identified, and easily remedied. White supremacy nonetheless continues in the form of government decision~ influenced by racial myths and stereotypes. Despite the damage these decisions inflict on persons of color, however, they are difficult to identify and even harder to remedy through an equal protection claim absent some indication of conscious motivation. 12 Lawrence uses the case of IArlington Heights v. Metropolitan Housing Development Corp.P to make his point. In that case, a predominantly white upper-middle-class suburb blocked the construction of a low-income housing development by refusing to amend a single-family zoning restriction to permit construction of multifamily dwellings. A group of black plaintiffs sued town officials because the zoning decision effectively excluded racial minorities from the neighborhood. The Supreme Court agreed that the zoning decision had. that effect but rejected the equal protection claim because the plaintiffs did l\.9t show that town officials acted with the intent to maintain a segregated community. Subtler forms of racial bias nonetheless could have been at pla_y_. 14 As Lawrence explains, perhaps town officials predicted that aesthetics, economic stability, and environmental benefits associated with single-family zoning would stabilize, if not increase, property values. When it came time to vote on the proposed zoning 10. Kimberle Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Anti-Discrimination Law, 101 Harv. L. Rev. 1331, 1376-1382 (1988). 11. Lawrence, supra note 9. 12. ld. at 318-344. 13. 429 U.S. 252 (1977). 14. Lawrence, supra note 9, at 347-349.
10
Color-Blind Constitutionalism: A Rediscovered Rationale
§1.2
amendment, town officials most likely acted in their own interest by ignoring or at least dismissing any concern that existing zoning patterns discouraged integration from poor minorities. A racist subtext might be operating in another manner. Suppose again that town officials were genuinely interested in increasing property values and maintained the restriction on multifamily units in order to discourage integration from poor residents. The problem occurs if they reflexively associated poverty with minorities but would have lifted the zoning restriction had they associated paver!)' with a certain subpopulation of whites. 1:'5 Race may even be a factor if the zoning restriction was preserved simply because residents never expressed an interest in the construction of multifamily units. It could be that white residents chose not to champion multifamily zoning for fear that the construction of such homes would encourage integration from racial minorities. In none of these scenarios are town officials consciously concerned with a sudden influx of minority residents, but to Lawrence, the influence of unconscious racial bias is apparent. Because this bias occurs outside the realm of the conscious, however, it is difficult to identify and thus evades review under a jurisprudence that requires proof of intent. Other scholars have examined the workings of unconscious racism in additional contexts. 16 Tanya Kateri Hernandez used {lvlcCleskey v. Kemp': as her backdrop for examining how unconscious racism impacts the criminal justice system to the detriment of black defendants. 18 In McCleskey, a black defendant charged with murdering a white victim claimed that Georgia's capital sentencing process discriminated against persons of color in violation of the Eighth and Fourteenth Amendments. To support his claim, McCleskey introduced the "Baldus Study," which analyzed the effect of over 230 variables on capital sentencing outcomes in more than two thousand Georgia murder cases. According to the study, the likelihood that a black defendant would receive the death penalty increased significantly when the victim was white. 19 Even the Court acknowledged that the presence of a white victim was the most influential factor leading to the imposition of a death sentence. Nonetheless, it brushed aside the connection as a mere "discrepancy that appears to correlate with race" and rejected McCleskey's claim because he could not identify a causal connection between racial bias and t!le _outcome of his case specifically?0 Hernandez's criticism demonstrates how the preoccupation with intentional discrimination overlooks how investigators, jurors, prosecutors, and legislators are influenced by racial stereotypes. In McCleskey, police officers might have embraced the myth of black criminality and chosen, intentionally or not, to dismiss leads pointing to other suspects. Jurors influenced by the same precept might have 15. Id. at 243-244. 16. See, e.g., Timothy Davis, Racism in Athletics: Subtle Yet Persistent, 21 U. Ark. L. Rev. 881 (1999); Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 Fordham L. Rev. 13 (1998); Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133 (1982).
17. 481 U.S. 279 (1987). 18. Hernandez, supra note 9. 19. McCleskey, supra note 5, at 287. 20. Id. at 312.
11
§1.2
Chapter 1. American Racism and the Relevance of Law
returned a guilty verdict without adequately weighing exculpatory evidence. Alternatively, they might have intended to return a death sentence only if the crime turned out to be excessively violent or the defendant impervious to rehabilitation. Confronted by a black defendant, they might have been convinced that such was the case with McCleskey. The prosecutor's decision to seek the death penalty also might have been driven by a subconscious aversion to black defendants if she would have pursued a less drastic course in a case involving a white defendant and black victim. Even legislators supporting Georgia's capital sentencing statute might have been influenced by racial bias. Perhaps they saw death as an appropriate punishment for hardened criminals who commit heinous crimes but subconsciously associated that criteria with black defendants. They might have rejected capital punishment altogether had they envisioned its implementation against whites, or at least taken steps to ensure that it was administered fairly. Taken together, Hernandez suggests, these scenarios reflect government action that, while neutral on its face, is influenced significantly by racial stereotypes. She agrees with Lawrence, however, that the requirement of intent places these decisions beyond the reach of constitutional adjudication. An additional concern is that the rule of consistency functions as an agent of white privilege because it undermines the most effective means of promoting racial equality. Demanding strict judicial scrutiny of all race-based classifications does more than just ignore precedent and the obvious difference between benign and invidious motives-points raised by the dissenting Justices in Adarand, Croson, and Gratz. According to critical race scholars, any rule that takes the same approach to invidious and benign racial classifications stabilizes existing racial disparities by making it exceedingly difficult for lawmakers to compensate victims of discrimination or promote diversity through direct race-based subsidies. The late scholar Alan David Freeman accused the Court of taking a "meansoriented" approach to equal protection by improperly focusing on the types oflaws enacted rather than the consequences of or purpose behind those laws. 21 If, as he explained, in all but the most limited of circumstances, attempts to promote equality must be race-neutral, this strategy effectively prohibits race-specific measures that operate to maintain white supremacy vis-a-vis the subordination of persons of color. It ignores the power of race-neutral rules that hasten the same result by operating on a playing field that is already skewed against minorities. On its face, a college admissions program that relies on grade point averages and standardized test scores is facially neutral but significantly advantages whites who consistently outperform nonwhites on these measures. This, of course, is less attributable to the inherent ability of white applicants than it is to the fact that, statistically, access to quality secondary educational institutions and the financial means to enroll in expensive test prep courses is more readily available to whites than nonwhites. Under the Court's consistency rule, this type of program would be labeled nondiscriminatory even though it creates racial disparities in higher education. 21. Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, in Critical Race Theory: The Key Writings That Formed the Movement 29 (Kimberle Crenshaw et al. eds., 1995) [hereinafter Key Writings].
12
Color-Blind Constitutionalism: A Rediscovered Rationale
§1.2
Neil Gotanda weaves threads of Freeman's critique into his own criticism of 22 consistency. Like Freeman, Gotanda agrees that strict scrutiny, while an effective means of combating race-specific subordination strategies, does not address raceneutral agents of inequality. He attributes the Court's desire to subject all racebased classifications to a uniform standard to its "formal" understanding of race as a neutral concept devoid of any social or political meaning. Under this approach, race is perceived as nothing more than an arbitrary means of categorizing persons who share similar attributes such as skin color or ancestry. If this were true, a uniform strict scrutiny rule would be appropriate because racial identity would seldom provide any basis for allocating social, economic, educational, or occupational opportunities. Gotanda' s concern is that approaching both benign and invidious race-based classifications with heightened suspicion treats race-neutrality as present-day norm rather than a normative ideal yet to be achieved. In Gotanda' mind, this approach ignores the reality that race has been used as an agent o oppression against people of color but not whites. Gotanda explained the ve different significance of race specifically for black and white citizens as follows: The history of segregation is not the history of blacks creating racial categories to legitimate slavery, nor is it a history of segregated institutions aimed at subordinating whites. Indeed, racial categories themselves, with the metaphorical themes of white racial purity and nonwhite contamination, have different meanings for blacks and whites. If judicial review is to consider the past and continuing character of racial subordination, then an affirmative action program aimed at alleviating the effects of racial subordination should not automatically be subject to the same standard of review as Jim Crow segregation laws. Judicial review using historical-race should be asymmetric because of the fundamentally_differe11t_histories of whites and blacks. 23
Gotanda finds the call for formal equality particularly ironic since that very concept gavf rise to the racist "separate but equal" doctrine articulated in the 1896 case of flessy v. Ferguson. \ 4 There, the Court upheld against an equal protection challenge a Louisiana statute that segregated black and white passengers on public train cars, reasoning that the statute subjected both groups to an equivalent restriction. Rather than single out one group of passengers for pernicious treatment, the statute merely required blacks to sit in one section of the train and whites to sit in another. The Court even went so far as to chastise blacks for reading too much into the segregation statute: [T]he underlying fallacy of the plaintiffs argument [consists of] the assumption tha~ the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. 25
As the lone dissenter, Justice John Harlan rejected the formalist rationale invoked by the majority because he understood the equal protection guarantee to pertain to 22. 23. 24. 25.
Gotanda, supra note 9. ld. at 49. 163 u.s. 537 (1896). Id. at 551.
13
§1.2
Chapter 1.
American Racism and the Relevance of Law
actual real-life circumstances. To Harlan, the statute's obvious objective undermined that guarantee: Everyone knows that the statute in question had its origins in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons .... The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. 26
Justice Harlan considered racial segregation to be inherently subordinating even if it was the product of a race-neutral classification. Indeed, it was the specific subordinating purpose of the statute that influenced his now famous words: [l]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. 27
Fifty years later, a unanimous Court would seize on Justice Harlan's rationale to strike down racially segregated public school systems in Brown v. Board of Education. 28 According to Gotanda, Brown followed the premise of Harlan's dissent in standing for the proposition that racial classifications, when used for the specific purpose of subordinating individual members of a particular racial category, violate equal protection. In this regard, it provided the original rationale for strict scrutiny. To say that either Brown or the Plessy dissent supports the broader proposition that race is always an irrelevant group characteristic, and, therefore, any use of race demands strict scrutiny, denies the distinct purpose and effect of the segregated policies under review in those cases. Nonetheless, this is precisely what some members of today' s Court have done. Although the unanimous decision in Brown and Justice Harlan's dissent in Plessy both turned on the JlUrpose of the statute in question, the ideal of color-blindnes~ is cited as justification for presuming that all classifications based uifface are ime~ miss!~!~. even when the purpose of the classification is benign. For Gotanda, thi§ approach misses the mark Because the subordination of minority groups provided the rationale for skeptical review of race-based classifications in Brown and Plessy's dissent, it does not necessarily follow that race-based classifications designed for the opposite purpose warrant the same level of scrutiny. Gotanda therefore views the consistency rationale as a violation of the central tenet of Brown that is eerily reminiscent of the mind-set that gave rise to the separate but equal doctrine Harlan repudiated in Plessy. A third criticism of contemporary equality jurisprudence focuses on th~ tegted expectations of "innocent" thirQ_Qarties. As discussed above~ this conc~s articulated in the second prong of strict scrutiny requiring narrow tailorin_g in-!9e form of attempted "race-neutral alternatives." To critical race theorists, howe_yer,
~
26. Id. at 557. 27. Id. at 559. 28. 347 U.S. 483 (1954).
14
Color-Blind Constitutionalism: A Rediscovered Rationale
§1.2
the concern for nonminority interests is nothing more than a strategy for protecti9g white privilege.Z9 Professor Ann Ayers's scholarship raises this point. 3 Consider a race-neutral low-interest start-up loan program offered by a municipality to finance new businesses. Even if the program is intended to generate business competition from minority entrepreneurs as a remedy for past discrimination, entrepreneurs of ... ~ of-· any race would be eligible to apply for the subsidy. The remedy provided in the T form of business start-up proceeds now becomes available to nonminorities who not only have never suffered race-based harm, but who very well might have benefited, albeit unwittingly, from discrimination against minorities. The program would nonetheless likely pass constitutional review as a facially neutral alternative to a race-specific remedy, even though it provides broader benefit than a racespecific program. It is in this manner, Ayers claims, that race-neutral solutions undermine the purpose of narrow tailoring, which is to streamline remedies to. deserving victims. Despite this seeming contradiction between the goal of narrow tailoring and the requirement of race-neutral alternatives, strict scrutiny requires lawmakers to consider programs that do not specifically rely on race to further compelling goals. Class-based remedies are one type of program that has gained attention. In the context of a university admissions program, for example, special consideration might be given to underprivileged applicants generally, regardless of their racial background. This approach would eliminate the burden nonminorities experience from race-based programs. The Court's decision in Croson implicitly endorsed class-based affirmative action when it suggested several race-neutral options the city council might have tried to increase minority contracting opportunities. Given the correlation between race and income potential, it seems likely that class-based remedies provide a viable race-neutral mechanism for redressing the effects of prior discrimination. Still, many scholars find class-based remedies problematic in part because they are incapable of addressing the real conditions of minority exclusion. 31 Specifically, they argue that class-based affirmative action programs fail to take into account that race remains the best measure of social disadvantage-an even better measure than poverty. While it is true that poverty disproportionately affects persons of color, more whites than nonwhites actually live in poverty. As a result, class-based initiatives are more likely to benefit whites than persons in any other racial group. Class-based programs might also rest on misperceptions about the dynamics of discrimination because it suggests that class is a more appropriate basis for affirmative action than race. This argument assumes that economic disadvanta~ poses a greater obstacle to achievement and is more difficult to transcend than the effects of racial bias., But empirical support has been cited for the opposite
°
29. Thomas Ross, Innocence and Affirmative Action, 43 Vand. L. Rev. 297, 299-300 (1990); Alan David Freeman, in Key Writings at 29. 30. Ann Ayers, Narrow Tailoring, 43 UCLA L. Rev. 1781, 1784-1793 (1996). 31. See, e.g., Richard Delgado, Ten Arguments Against Affirmative Action- How Valid?, 50 Ala. L. Rev. 135 (1998); Katheryn K. Russell, Affirmative (Re)Action: Anything But Race, 45 Am. U. L. Rev. 803 (1996); Jerome McCristal Culp, Jr., Colorblind Remedies and the Intersectionality of Oppression: Policy Arguments Masquerading as Moral Claims, 69 N.Y.U. L. Rev. 162 (1994).
15
§1.2
Chapter 1.
American Racism and the Relevance of Law
32
conclusion. Further, an argument can be made that a class-based approach prioritizes the integration of poor whites into the mainstream of society over middle class nonwhites, even though the law has expressly denied benefits from minorities of every economic background. 33 In a similar vein, it is questionable whether any benefit would accrue from a class-based admission program if the policy selects from the pool of minority applicants those candidates with the smallest intersection of race and poverty. That is, a middle class Latina applicant would likely appear more qualified than a lower class Latina applicant owing to superior schooling and perhaps broader life experiences. 34 Accordingly, even though students with more diverse backgrounds in terms of race and class would be included in the applicant pool, they would likely be passed over for "more qualified" candidates. In this respect, class-based affirmative action programs disregard the intersection of race and poverty and thus support an "intra-race version of the status quo." 35 In the end, while class-bas~d affirmative action programs might promote a measure of racial integration, they fail to address intraracial class distinctions. Class-based programs therefore pro; vide one example of how race-neutral strategies protect the interests of nonm~ rities but fail to address systems of minority subordination. Moving beyond a careful look at the relevant case decisions in the race area, it is appropriate to ask "Where do we stand in this first decade of the twenty-first century?" Professor Cheryl Harris, in a lengthy and insightful book review of The Miner's Canary by Professors Lani Guinier and Gerald Torres, 36 finds that the authors enter the "political debate about race at a particularly stark moment for progressive legal scholars and activists." She writes: .
~ &'
For those who are committed to identifying and repairing deeply entrenched racial inequality, the ground is exceptionally hard. Indeed, this moment parallels another troubling period in American history and jurisprudence- that following Reconstruction and culminating in Plessy v. Ferguson. In at least two respects, contemporary race jurisprudence approximates the jurisprudence of the Plessy era. First, the current Court seems to have adopted the specific forms of racial erasure prominent in the period of so-called Southern redemption. It has called upon and resuscitated interpretations of the Equal Protection Clause that assign the federal government a subordinate role relative to the states in protecting the right to be free from discrimination. 37
J
To support her statement, Harris reviews the Court's ruling in United States v. Morrison 3.Ystriking down a section of the Violence Against Women Act that authorized civil actions against perpetrators of gender-motivated violence. By a 5-4 margin, the Court, asserting both dual federalism and state sovereignty concerns, found the federal government lacked the power to enforce antidiscrimination 32. 33. 34. 35. 36. 37. 38.
16
See Delgado, supra note 31, at 140-141. See Russell, supra note 31, at 809. Id. See Culp, supra note 31, at 178. Cheryl Harris, Mining in Hard Ground (Book Review), 116 Harv. L. Rev. 2487 (2003). Id. at 2489-2492. Harris's lengthy footnotes to the cited material are omitted. 529 u.s. 598 (2000).
Racism Hypo: The Freedom of Employment Act
§1.3
laws against individuals as opposed to state actors. Ignoring a voluminous record of the state's failure to protect victims of sexual assault, the Court reached back to the Civil Rights Cases, 39 which invalidated a public accommodations law as authority for its reading of the Fourteenth Amendment in Morrison. Harris continues: In so doing, the Court has embraced as well the same states' rights logic that constituted the bedrock of the segregationist platform. Second, like the Plessy Court in 1896, the current Court insists that all racial identities are symmetrical and hold no social significance. Indeed, under a regime of colorblindness, this Court has natur 5. John Hope Franklin & Alfred A. Moss, Jr., From Slavery to Freedom 283-284 (8th ed. 2000). Professor Franklin has reviewed Lincoln's changing viewpoint on the Emancipation Proclamation and the effect of the document on blacks, the nation, and the world in John Hope Franklin, The Emancipation Proclamation (1963). 6. Dillard, supra note I, at 98. 7. Id. 8. Proclamation of January 1, 1863. No. 17, 12 Stat. 1268 (1863). 9. Frederick Douglass, Life and Times of Frederick Douglass 351-355 (Collier ed. 1962). 10. See Franklin & Moss, supra note 5, at 225-230; J. G. Randall & David Donald, The Civil War and Reconstruction 385 (2d ed. 1961).
23
§2.2
Chapter 2.
Race and American History
signed the preliminary measure, the legislature in his home state of Illinois condemned the act as "unwarrantable in military as in civil law" and as "a gigantic usurpation, at once converting the war, professedly commenced by the administration for the vindication of the authority of the Constitution into the crusade for the sudden, unconditional and violent liberation" of the slaves. 11 Republicans slowly regained political support, but the adverse reaction of whites to the idea of fighting a war to free blacks remained a bitter and not infrequently violent one. In July 1863, the drawing of the first names in New York under the new federal Selective Service Law sparked several days of riots in which blacks were lynched and beaten. The rioters first sacked, then burned, the Colored Orphan Asylum, and committed many other atrocities. 12 The draft riots combined the bitterness of whites over being sent off to fight a war to free blacks with frustration over their economic situation. Just prior to the riots, 3,000 longshoremen had gone on strike for higher wages. In keeping with the usual practice, employers replaced the strikers with blacks, who under ordinary circumstances would have been barred from these jobs. The government worsened matters by drafting the unemployed whites into a war to help win the freedom of slaves, who the white workers feared would become strikebreakers, and the violent reaction followed. 13 This hostility to blacks persisted to the end of the war. A number of ossible points are suggested by the Emancipation Proclamatiop sto eriod ir t, blacks are more likely to obtain relief for even acknowledged racial injustice w en that relief also serves, directly or indirectly, to further ends that policymakers perceive are in the best interests of the country.(Secona) blacks, as well as their white allies, are likely to focus with gratitude on th~btained, usually after a long struggle. Little attention is paid to the self-interest factors without which no relief might have been gained. Moreover, the relief is viewed as proof that society is in~t, and that eventually all racial injustices will be recognized and remedied.~he remedy for blacks appropriately viewed as a "good deal" by policy-makmg whites often provides benefits for blacks that aro more symbolic than substantive; but whether substantive or not, they are often perceived by working class whites as both an unearned gift to blacks and a betrayal of poor whites. As will be shown in §2.8, this sense that working class white interests have been subordinated to those of blacks has a lengthy history. None of this is self-evident. Not every advance in the status of blacks can be characterized by the three points set out above. The fact is, though, that the racial injustices visited upon blacks are so immense, and the effort required to bring amelioration of the condition in any of the several areas of concern including education, employment, voting, public accommodations, and housing, is so great, that when a barrier is breached, the gain is eagerly accepted as proof of progress in the long, hard struggle to eliminate racial discrimination. Most Americans, black and white, view the civil rights crusade as a long, slow, but always upward pull that must, given the basic precepts of the country and the commitment of its people to equality and liberty, eventually end in the full enjoyment by blacks of all rights and 11. J. G. Randall, Constitutional Problems Under Lincoln 100 (1951 ). 12. Randall & Donald, supra note 10, at 316-317. 13. Franklin & Moss, supra note 5, at 279.
24
Abolition of Slavery in Northern States
§2.3
privileges of citizenship enjoyed by whites. But even a rather cursory look at American political history suggests that in the past, the most significant political advances for blacks resulted from policies that were intended to, and had the effest of, serving the interests and convenience of whites ratherthan remedying racial injustices against blacks, And, all too oft~~~ the riot~ thai followed the issuance of the Emancipation Proclamation in 1863 to the "white backlash" that followed the civil rights gains made by blacks a century later, a great mass of whites have perceived civil rights for blacks not as a benefit for whites as is often the case, but rather as a societal setback that must be opposed politically and, if conditions are favorable, violently.
from draft
§2.3
ABOLITION OF SLAVERY IN NORTHERN STATES
The pattern of motivations that led Lincoln to issue the Emancipation Proclamation in 1863, and the black-white responses to his action, were foreshadowed by abolition policies in the Northern states a half-century earlier. In his book, North of Slavery, Leon F. Litwack, reports that in the Northern states, slavery was abolished by constitutional provisions in Vermont (1777), Ohio (1802), Illinois (1818), and Indiana (1816); by a judicial decision in Massachusetts (1783); by constitutional interpretation in New Hampshire (1857); and by gradual abolition acts in Pennsylvania (1780), Rhode Island (1784), Connecticut (1784 and 1797), New York (1799 and 1817), and New Jersey (1804). In varying degrees, abolition)n th~ _Nort!'t__~a~ th~E~~ult of several factors: idealism stemming from the Revolution, with its "rights of man" ideology; the lesser dependence of the Northern economy on a large labor force; its relatively ,small investment in slaves combined with the great hostility of the white laboring class to the competition of slaves; the fear of slave revolts; and a general belief that there was no place for "inferior" blacks in the new societies. Even so, abolition was not accomplished without a major effort in most states, and idealislll usually w~ the makeweight for a decision already based on more pragmatic grounds As de Tocqueville observed, "In the United States people abolish slavery for the sake not of the Negroes but of the white men." 1 Vermont had only a few slaves, and its constitution explicitly outlawed slavery in 1777. Although New Hampshire also had but few slaves, a petition for freedom to the legislature in 1779 was considered "not ripe." Judicial interpretations of the state's 1783 constitution asserted the end of slavery, but confusion on the subject was not finally resolved until 1857, when a statute banned slavery. In Massachusetts, efforts to specifically ban slavery in the constitution of 1780 failed, but the state's high court interpreted that constitution to include such a provision in the famous Quack Walker case of 1783? According to §2.3 1. Alexis de Tocqueville, Democracy in America 344 (Anchor Books ed. 1969). 2. For a discussion of the historical import of the Quack Walker case, see David B. Davis, The Problem of Slavery in the Age of Revolution: 1770-1823, at 508 (1975).
25
§2.3
Chapter 2.
Race and American History
Chief Justice William Cushing: "Although slavery had been tolerated in Massachusetts, it was incompatible with the new spirit 'favorable to the natural rights of mankind.'" Where slavery was more firmly entrenched, as in Pennsylvania, Rhode Island, Connecticut, New York, and New Jersey, the efforts of abolitionists met with more opposition. Each of these states adopted gradual abolition statutes designed to lessen the burden that abolition would place on the slave owner. In Pennsylvania, an act of March 1, 1780, c. 146, provided that no person born in the state after the date of enactment should be deemed a slave, but that such children would be considered as "indentured servants" of their parents' master until age 28. The statutes of the other states were quite similar? The delayed effective date, according to some historians, was not the result of anti-black vindictiveness. Rather, it was the solution to the problem that plagued all abolition movements: Who will pay the price of freedom? Under gradual ~mfill::. cipation statutes, the slave~~re forced to pay through their labor almosLlOO. percent of their market value during the long years as "indentured servan~4 Commenting on this nineteenth-century precedent for the "all deliberate speed" principle, one writer observed: "Freedom was thus conferred upon a future generation and the living were given merely the consolation of a free posterity." 5 But freedom even for those blacks who were emancipated under these statutes left much to be desired. They were no longer slaves, but they certainly were not citizens. Indeed, their intermediate status carried with it many of the obligations, bUt ofilieprivile~Ot--citizenship .. The freedmen could not vote, but they were taxed. They could not serve on juries, and, excluded from the militia in peacetime, they were required under a 1707 Massachusetts act to perform menial service on the parade ground or to labor on the roads in lieu of military service. 6 From an economic standpoint, the freedmen were relegated to domestic work, while slaves were involved in every form of employment. Prejudice was strong; blacks were not only excluded from jobs considered appropriate for white workmen, but they were often the victims of insult and physical attack. Blacks were segregated in the worst areas of the towns where they lived, their children were often barred from the public schools, and on certain occasions they were even forbidden to appear in public places? Obviously, Northern states did not intend abolition of slavery to be equated with acceptance of blacks. "Until the post-Civil War era, in fact, most northern whites would maintain a careful distinction between granting Negroes legal protection- a theoretical right to life, liberty, and property- and political and social equality." 8 Partial recognition of that character was no boon. Blacks know now and
few
3. Arthur Silversmith, The First Emancipation: The Abolition of Slavery in the North 4, 124132 (1967). 4. See Robert Fugal & Stanley Engelmann, Philanthropy at Bargain Prices: Notes on the Economics of Gradual Emancipation, 3 J. Legal Stud. 377 (1974). See also Donald L. Robinson, Slavery in the Structure of American Politics, 1765-1820 at 30, 37 (1971). 5. Winthrop D. Jordan, White Over Black 345 (1968). 6. Lorenzo Greene, The Negro in Colonial New England, 1620-1776, at 332-333 (1942). 7. Id. 8. Leon F. Litwack, North of Slavery 15 (1961).
26
Slavery in America
§2.4
likely recognized then that the power to withhold political and social equality meant that legal protection too could be suspended or withdrawn whenever the grantors deemed it in their self-interest to do so.
§2.4 SLAVERY IN AMERICA The slavery era is one of the most thoroughly canvassed areas of American history. Courses detailing the law's involvement with the "peculiar institution" are offered at some law schools, and several additions to the literature have increased our understanding of a practice with roots as old as the society. 1 The Kerner Commission succinctly set out slavery's origins and development. Twenty years after Columbus reached the New World, African Negroes, transported by Spanish, Dutch and Portuguese traders, were arriving in the Caribbean Islands. Almost all came as slaves. By 1600, there were more than half a million slaves in the Western Hemisphere. In Colonial America, the first Negroes landed at Jamestown in August, 1619. Within 40 years, Negroes had become a group apart, separated from the rest of the population by custom and law. Treated as servants for life, forbidden to intermarry with whites, deprived of their African traditions and dispersed among Southern plantations, American Negroes lost tribal, regional and family ties. Through massive importation, their numbers increased rapidly. By 1776. some 500,000 Negroes were held in slavery and indentured servitude in the United States. Nearly one of every six persons in the country was a slave?
Beginning with the early colonial period and extending up to the time of the Civil War, there was a vast amount of litigation at both the state and federal levels involving blacks. In virtually all of the cases, blacks were the subjects and not the parties in the litigation? They were property subject to ownership; and the law, reflectin as it did then the revailin belief in the inherent inferiorit of all blacks, experienced little difficu!!.Y in treating them a 'chattels personal. v in holdin a s ersonal" res onsible for acts requiring the free will of humans, while at the same time denying to those "chattels" the basic due process rights the law guaranteed to all humans. This resulted in analytical contortions by courts of the period that would be humorous §2.4 1. Nathan Huggins, Black Odyssey ( 1990); A. Leon Higginbotham, Jr., In the Matter of Color: Race and the American Legal Process: The Colonial Period (1978); Herbert Guttmann, The Black Family in Slavery and Freedom, 1750-1925 (1974); Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (1974); Eugene D. Genovese, The Political Economy of Slavery (1965); David B. Davis, The Problem of Slavery in the Age of Revolution (2d ed. 1999); David B. Davis, The Problem of Slavery in Western Culture (1970); Eric Williams, Capitalism and Slavery (4th ed. 1966). 2. Rep. of Nat!. Commn. on Civil Disorders, Rejection and Protest: An Historical Sketch
95 ( 1968). 3. Helen T. Catterall, Judicial Cases Concerning American Slavery and the Negro, vols. I-V (1936). 4. Kenneth M. Stampp, The Peculiar Institution 197-236 (1956).
27
~-~ \s-
§2.5
Chapter 2.
Race and American History
were the legal fictions adopted and suspended not so arbitrarily and predictably used to protect the slave system, usually but not always at the expense of the slaves. 5 As will be made clear in the next section, Northern judges, some with strong commitments to the abolition of slavery, seldom fared better in solving the moral dilemmas posed by the law.
§2.5 SLAVERY AND THE CONFLICT OF LAWS Slavery decisions almost uniformly favored the "peculiar institution" and gave precedence to the interests of slave owners over those of slaves seeking freedom through litigation. The constitutional provisions protecting slavery (see §2.7) certainly limited the Court's discretion in this field, but the decisions went beyond even constitutional requirements in what were apparently conscious efforts to protect all property rights, including those in humans. And with isolated exceptions, slaves could expect little assistance from even the greatest of antebellum jurists who, despite dicta-wringing over the moral evil of slavery, found it necessary to "follow the law." 1 The Supreme Court provided little leadership in this controversial area, and Chief Justice John Marshall made a point of avoiding substantive decisions in slavery cases whenever possible. 2 Marshall's major aim was to secure the Supreme Court's position as constitutional arbiter in the federal system. The Court did not wish to unduly provoke Congress, which could easily curtail the Court's authority by reduction of its appellate jurisdiction. Then too, whatever the scruples about slavery among the Court's members, they were uniform in their commitment to the protection of property rights. Slaves, of course, were a critically important form of property. Thus, as Professor Donald Roper describes it, Marshall's approach to slavery questions was cautious? For example, he reports that after a federal judge had created great hostility toward the court in South Carolina by holding a state statute regulating and restricting the movement of free Negro seamen void as in conflict with the commerce clause of the U.S. Constitution,4 Marshall wrote to Justice Story that he earlier had avoided a similar situation in Virginia involving a case with a statute quite like that of South Carolina. He reported, "a case has been brought before me in which I might have considered its constitutionality, had I chosen to do so; but it was not 5. Judge A. Leon Higgenbotham, Jr., loses few opportunities to point out the hypocrisy that was the necessary component of so many slave decisions in, In the Matter of Color ( 1978). See also Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made 25-49 (1974). For a generally sympathetic perspective on the quality of justice meted out by Southern judges in slave cases, see A. E. Keir Nash, Fairness and Formalism in the Trials of Blacks in the State Supreme Courts of the Old South, 56 Va. L. Rev. 64 (1970). §2.5 1. The moral-legal dilemma is examined extensively in Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975). 2. Donald N. Roper, In Quest of Judicial Objectivity: The Marshall Court and the Legitimization of Slavery, 21 Stan. L. Rev. 532 (1969). 3. ld. at 533. 4. Elkison v. Deliesseline, 8 F. Cas. 493 (No. 4366) (C.C.S.C. 1823).
28
Slavery and the Conflict of Laws
§2.5
absolutely necessary, and as I am not fond of butting a wall in sport, I escaped on the construction of the act." 5 The South Carolina statute that was voided in the Elkison v. Deliesseline case was a measure typical of those enacted by Southern states to discourage nonslave blacks from entering their territories and becoming, by their presence and status, disruptive forces and living reminders that slavery was not the only possibility for black people. Under the provisions of the act. if any vessel came into a port or harbor of the state bringing a free colored person, such person was to become an absolute slave, and, without even a trial, be sold: Feeling ran so high over the statute that one attorney defending it likened importation of free blacks to that of "clothes infested with the plague, or wild beasts from Africa.... " 6 The Northern states, for reasons that differed from those in the South far less than could be gauged by their rhetoric, also opposed the importation into their states of slaves by their masters. These states had abolished slavery in order to protect jobs for free whites, lessen the fear of slave rebellions, and reduce the likelihood of a large black population, Unlike South Carolina, whose statute threatened slavery even for a free sailor coming into a port of that state, most Northern states permitted a slave owner to pass through the territory and even to remain for a limited period of time without losing property rights in slaves who accompanied him or her. There was no general agreement as to how long this limited period of time might run, and as hostilities between North and South grew more bitter, the time allotted became shorter and shorter. When a slave sought his or her freedom on the basis that the sojourn in a free state had exceeded this "reasonable length," attorneys representing the slave generally inv the doctrine of a famous English precedent, Somerset v. Stewart? In th Somerse case, Lord Mansfield resolved a lengthy litigation over the status of a s av w o was brought by his master to England, escaped, and was recaptured. Mansfield found no statutes authorizing slavery, a status which he said constituted "so high an act of dominion," and was "so odious, that nothing can be suffered to support it, but positive law." 8 Thus, Somerset was freed, and the rule was established that a slave became free upon setting foot in a free jurisdiction. 9 5. Roper, supra note 2, at 534. 6. 8 F. Cas. at 496. 7. 98 Eng. Rep. 499 (K.B. 1772). The litigation and the decision's significance is reviewed in detail in A. Leon Higgenbotham, Jr., In the Matter of Color: Race and the American Legal Process: The Colonial Period 313-368 (1978). 8. 98 Eng. Rep. at 510. 9. One writer argues that the Somerset decision was poorly reported and generally misconstrued to hold that Lord Mansfield had freed alll4,000 black slaves then in England, a result sought by Somerset's attorneys, but that the decision was limited to a finding that Stewart could not remove Somerset from England against his will in the absence of positive law. The broader interpretation of the decision was generally accepted in America, where its effect was to stimulate passage of fugitive slave legislation. The influence of the Somerset decision is reflected in the euphemistic clauses in the Northwest Ordinance, passed by Congress in July 1787, to the effect that while slavery was to be barred from the territories, "any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor service .... " Article 6, and Article 4 §2 cl. 3 of the Federal Constitution, the fugitive slave provision. Jerome Nadelhaft, The Somerset Case and Slavery: Myth, Reality, and Repercussions, 51 J. Negro Hist. 193 (1966).
29
§2.5
Chapter 2.
Race and American History
Conflicts of law arose when a free state determined that a slave within its borders had been held there sufficiently long to invoke the Somerset precedent, and overruled the slave status recognized by the master's domicile]P Until the 1830s, litigation in this field was marked by the willingness of free states to recognize the bondage of slaves sojourning within their borders for limited periods of time, and a similar willingness of slave states to recognize the freedom acquired by former slaves who had remained beyond some reasonable time limit in a free state. The tacit accommodation between the courts of the North and the South did not last. Beginning around 1830 and accelerating during the 1840s and 1850s, courts in both regions took increasingly divergent attitudes toward the legal status of slavery and, predictably, became less willing to accept the contrary policies or laws of sister states. Abolitionists in the North were becoming more outspoken and militant in their views. They rejected the Somerset doctrine, which would recognize slavery if authorized by positive law, and they denounced the Constitution to the extent that it condoned and protected slavery. Rather, they appealed to and urged compliance with a higher law that did not recognize the legitimacy of institutionalized evil, even when allowed by statute. For their part, Southerners were now convinced that slavery must not die out, and that their economic survival depended on its maintenance and expansion. 11 As sectional conflict became more intense, states that had earlier accommodated the interests of sister states began to refuse to recognize the enslaved status of anyone within their borders, even of those slaves merely passing through the state with their masters or fleeing in violation of federallaw. 12 Similarly, Southern states refused to recognize even the permanent freedom of blacks born in free states or the emancipating effects of a slave's prolonged residence in a free state. Louisiana adopted a statute that established that emancipation could not be effected by a slave's residence in another state. 13 Finally, though, the change in position was accpmQlished sol~ the judiciary overturning earlier cases in which the emancipat~9n by residence in a sister state had been recognized. Thus, in Missouri, which had earlier been especially sensitive to its relations with neighboring Illinois, a free state, the state supreme court in Scott v. Emerson overturned a considerable body of case law to hold that a slave was not rendered free as a result of having spent four years in nonslave areas. 14 While Lord Mansfield in 1772 was at least limiting the power of slave owners in England, Virginia (whose population of200,000 slaves roughly equaled the white population) by the same year had passed 33 acts to prohibit the importation of slaves, all of which were rejected by England. Benjamin Franklin probably typified the reaction of many Americans to the Somerset decision when he wrote to a friend: "I have made a little extract ... of the number of slaves imported and perishing with some close remarks on the hypocrisy of this country [England] which encourages such a detestable commerce by laws for promoting the Guinea trade, while it piqued itself on its virtue, love and liberty, and the equity of its courts, in setting free a single Negro." Peter M. Bergman, The Chronological History of the Negro in America 46 ( 1969). 10. Note, American Slavery and the Conflict of Laws, 71 Colum. L. Rev. 74 (1971). 11. Bergman, supra note 9, at 39-40. 12. Id. at 43. 13. Id. 14. 15 Mo. 576 (1852).
30
The Dred Scott Case
§2.6
The Missouri court, in explaining its rejection of the earlier rules, candidly pointed to the change in political climate: Times are not now as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequences must be the overthrow and destruction of the government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measures which might gratify this spirit. 15
§2.6 THE DRED SCOTT CASE Emerson v. Scott was the first phase of the famous decision in Dred Scott v. Sandford. 1 As indicated above, the case raised the substantive issue of whether the slave Dred Scott's temporary residence in free territory in the state of Illinois sufficed to free him under the common law doctrine of the Somerset case. The Supreme Court found that Scott was not a citizen of Missouri within the meaning of the Constitution and thus could not invoke the diversity jurisdiction of the federal courts. But rather than settle the case on this procedural ground, the Court reiterated former law that Scott's four-year residence in Illinois had not altered his slave status, and invalidated the Missouri Compromise of 1820 (equally dividing new states between slave and free) on the ground that it violated substantive rights in property under the Fifth Amendment's due process clause. Chief Justice Taney utilized the debater's technique in framing the question in Dred Scott so as to leave little alternative as to the answer. He wrote: The question is simply this: Can a negro whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? 2
?."' '
'
J
15. Id. at 586. §2.6 1. 60 U.S. (19 How.) 393 (1857). Professor Don E. Fehrenbacher has published the definitive work covering every aspect of this landmark litigation in The Dred Scott Case: Its Significance in American Law and Politics (1978). 2. 60 U.S. at 403. Professor Fehrenbacher notes that the actual question before the Court was whether Dred Scott, if he was a free Negro, could be regarded as a citizen of Missouri, at least to the extent of being eligible to bring suit in a federal court under the diverse citizenship clause. The trial court had held that any resident capable of owning property was to this extent a citizen. Another criterion, Professor Fehrenbacher suggests, was whether free Negroes were citizens of the state to the extent of being able to bring suit in the courts of that state, which they most certainly were. Scott had previously brought such a suit for his freedom and had lost, but not on the jurisdictional issue. Scott v. Emerson, 15 Mo. 576 (1852). But Chief Justice Taney redefined the whole problem, shifting the ground of inquiry from state citizenship to federal citizenship, simultaneously making the right to bring suit in federal courts dependent upon the confirmation of all rights enjoyed under the federal constitution. Fehrenbacher, supra note I, at 341-342.
31
(~C,___g~:ril! their freedo_!!l, despite the practice of extending terms for any offense, large or small~ They began farms of their own and increasingly resisted the policies of the larger, more established planters. For their part, the established growers began about 1660 to rely on black slaves for their labor needs. Slaves wer~more expensiye initially. but their terms did not end. and their owners gained the bel!efits of the slaves' offspring 5 ~
The fear of slave revolts increased as reliance on slavery grew and ra~ial antipathy became more apparent. Fear and racism tendedj:g_lessenth_e ecOI}Q...riDC and political differences between rich and poor whites. Both tended to look on royal officials and tax collectors as their common oppressors. They joined forces to 11. ld. at 131. Pursuant to the compromises worked out in the Constitutional Convention, the Second Congress enacted a fugitive slave law in 1793. The constitutionality of the act was upheld by the Supreme Court in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842). The act was amended and strengthened as part of the Missouri Compromise of 1850. See Albert P. Blaustein & Robert L. Zangrando, Civil Rights and the American Negro 127 (1968). §2.8 1. This section is excerpted from Derrick Bell, Racial Remediation: An Historical Perspective on Current Conditions, 52 Notre Dame Law. 5, 17-18 (1976). 2. EdmundS. Morgan, American Slavery, American Freedom (1975). 3. ld. at 154-155. Records of the time reveal little evidence of the racial prejudice that was to develop later. 4. Id. at 216-218. 5. Id. at 295-315. Masters substituted the fear of pain and death for the extension of terms as an incentive to force the slaves to work. Murder and dismembering of slaves was condoned, if not as common as the frequently administered beatings. Blacks, Morgan writes, were thought of as "a brutish sort of people." He concludes: " ... whether or not race was a necessary ingredient of slavery, it was an ingredient. ... The only slaves in Virginia belonged to alien races from the English. And the new social order that Virginians created after they changed to slave labor was determined as much by race as by slavery." ld. at 315 (emphasis supplied).
40
The Origin and Development of Slavery Compromise
§2.8
protest import taxes on tobacco, the profits from which sustained both. Thus, the rich began to look to their less wealthy neighbors for political support against the English government and in local elections. 6 Wealthy whites retained all their former prerogatives, but the creation of a black subclass enabled poor whites to identify with and support the policies of the upper class. With~ the ~~i!f~ e.£OI19I}li£_~dvantage provided by their slaves, large landowners were willing to grant poor whites a larger role in the political process._ Thus, paradoxically, slavery for blacks led to greater freedom for poor whites. 7 In the main, poor whites in the seventeenth century were ready to trade their economic demands for racism, and even two hundred years later in the postCivil War period, the efforts of some leaders of the Populist Party to unite poor Southern whites and blacks against the ruling Bourbons were shattered by the continued inability of poor whites to surrender racism even for responsive political power. 8 Their susceptibility had not lessened midway through the twentieth century, as Dr. Martin Luther King's Southern Christian Leadership Conference discovered during the 1968 Poor People's Campaign. 9 A final example of black rights becoming grist in the mill of white interest occurred more than a century ago during the hotly disputed Hayes-Tilden presidential election of 1876. In the following year, a possible second Civil War was
6. Id. at 364-366. 7. In explaining the paradox of slave owners espousing freedom and liberty, Morgan writes: "Aristocrats could more safely preach equality in a slave society than in a free one. Slaves did not become leveling mobs, because their owners would see to it that they had no chance to. The apostrophes to equality were not addressed to them. And because Virginia's labor force was composed mainly of slaves, who had been isolated by race and removed from the political equation, the remaining free laborers and tenant farmers were too few in number to constitute a serious threat to the superiority of the men who assured them of their equality .... " "This is not to say that a belief in republican equality had to rest on slavery, but only that in Virginia (and probably in other southern colonies) it did. The most ardent American republicans were Virginians, and their ardor was not unrelated to their power over the men and women they held in bondage." Id. at 380-381. 8. The nineteenth-century parallels with Professor Morgan's origin of slavery compromise theory are striking. The Populists were unable to control the Negro vote and were appalled at Democratic Party tactics that included forcing blacks to vote repeatedly for Democratic candidates. The Populists joined the movement for complete disfranchisement of blacks in order to reunite the white South. Professor John Hope Franklin commented on the result: "The poor, ignorant white farmers reverted to their old habits of thinking and acting, comforted in their poverty by Conservative assurances that Negro rule must be avoided at any cost .... The poor whites could say with one of their leaders that the Negro question was an everlasting, overshadowing problem that served to hamper the progress of poor whites and prevent them from becoming realistic in social, economic, and political matters." John Hope Franklin, From Slavery to Freedom 272 (4th ed. 1974). See also C. Vann Woodward, Origins of the New South, 1877-1913 (1951). But the effect on poor whites is best described by Tom Watson, a Populist leader, who in 1892 as a staunch advocate of a union between Negro and white farmers wrote: "You are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone of the arch of financial despotism which enslaves you both. You are deceived and blinded that you may not see how this race antagonism perpetuates a monetary system which beggars both." Tom Watson, The Negro Question in the South, in Stokely Carmichael & Charles V. Hamilton, Black Power: The Politics of Liberation in America 68 (1967). 9. See Jules Archer, 1968 Year of Crisis 50-51 (1968); Charles Fager, Uncertain Resurrection: The Poor People's Washington Campaign (1969); Max Hastings, The Fire This Time: America's Year of Crisis 77-82 (1968).
41
§2.8
Chapter 2.
Race and American History
averted by a compromise that even conservative historians now concede was a shameful moment. 10 By 1876, the demolition of Radical Reconstruction was already well advanced. The federal government had proven itself unwilling or unable to halt the violence and terrorism by which Southern whites regained political control in most Southern states. The Democrats had regained great strength both in the South and much of the North. They fully expected that their presidential candidate Samuel J. Tilden, the reform governor of New York, would be elected. Republicans were divided by scandal and disparate views on economic issues; but all had tired of their lengthy involvement in Southern affairs and were more than ready to bury the hatchet on terms that would insure continued development of business interests in the South. When the election returns were counted, Tilden had a plurality of 250,000 votes in the nation, and appeared to have won the electoral count by one vote. But the returns from three Southern states, South Carolina, Florida, and Louisiana (the last three states in which blacks still played a major political role) were challenged. Recounts of the votes did not resolve the challenge which then was submitted to a special electoral commission composed of 5 members from the Senate, 5 from the House, and 5 members of the Supreme Court. As it turned out, 8 of the 15 were Republicans and each disputed issue was resolved in favor of the Republicans by a strictly party vote of 8 to 7. But the Democrats need not have acce ted this resolutio . They did so because o severa un ers an mgs etween Democratic and Republican leaders that if the Republican Hayes was elected, the national administration would withdraw the remaining federal troops from the South and would do nothing to prevent popularly elected Democratic governors from taking office in the three states (Florida, South Carolina, and Louisiana) still controlled by Republicans. It was also agreed that Hayes would include Southern Democrats in his cabinet and would support efforts of Southern capitalists to obtain subsidies for railroad construction in the South. President Hayes willingly carried out these promises to the Southerners. The demise of blacks as a political force proceeded rapidly thereafter. 11 The loss of protection for their political ri~hts pr~sa_ged the destruction of ~~!l_~m_it; and social gains that b!_ac!
The elimination of racism as a policy factor in public and private decisions would seem in the interest of every American, white as well as black. But racial subQIdination has served so many white interests well that somesQcial~!entists doubt that it can be eliminated. Public policy expert Tilden J. LeMelle doubts ... whether a society such as the United States is really capable of legislating and enforcing effective public policy to combat racial discrimination in the political process and elsewhere. He says history presents no instances where a society in which racism has been internalized and institutionalized to the point of being an essential and inherently functioning component of that society ever reforms, particularly a culture from whose inception racial discrimination has been a regulative force for maintaining stability and growth and for maximizing other cultural values. He doubts whether such a society of itself can even legislate (let alone enforce) public policy to combat racial discrimination. He sees the United States acting effectively against racism only when that racism is perceived as posing a serious threat to the country rather than serving as the useful regulator it has been. 4
When written in the 1970s, Professor LeMelle's assessment must have seemed harsh and pessimistic, but considered against the retrenchment of subsequent years, its accuracy is reflected in the widespread opposition to black gains, all too easily condemned as the result of reverse discrimination. The sense of so many whites that their racial standing is more important than social improvement poses a serious barrier for those urging social reform in the areas of housing, poverty, public health, and prison reform. Economist Robert Heilbroner believes that race is one reason the United States lags behind countries like Norway, Denmark, England, and Canada in addressing social needs. [In these countries,] there is no parallel to the corrosive and pervasive role played by race in the problem of social neglect in the United States. It is the obvious fact that the persons who suffer most from the kinds of neglect (mentioned above) are disproportionately Negro. This merging of the racial issue with that of neglect serves as a rationalization for the policies of inaction that have characterized so much of the 3. Norval D. Glenn, The Role of White Resistance and Facilitation in the Negro Struggle for Equality, in Power and the Black Community 414 (Sethard Fisher ed., 1970). 4. Tilden J. LeMelle, Foreword to Richard M. Burkey, Racial Discrimination and Public Policy in the United States 38 (1971).
54
Understanding Racism Based on the Nineteenth-Century Experience
§2.12
American response to need. Programs to improve slums are seen by many as programs to "subsidize" Negroes; proposals to improve conditions of prisons are seen as measures to coddle black criminals; and so on. In such cases, the fear and resentment of the Negro takes precedence over the social problem itself. The result. unfortunately is that the entire society suffers from the results of a failure to correct social evils who§e ill effects refuse to obey the rules of segregation/
The views on the subject could be extended indefinitely. The phenomenon of racism in America, clearly present in the colonial seventeenth century, was brought to full development during the nation's birth and growth to maturity in the eighteenth and nineteenth. It continues as a major force in even the twenty-first though it cannot be easily cabined by definition or illustration. Perhaps an analogy will set the stage for group discussion and heightened individual insight. 6 In reviewing a book on pre-Civil War judges who, despite their moral opposition to slavery, handed down decisions that upheld slavery, I suggested that most whites view the racial plight of blacks as an injustice that should be corrected. But on a priority scale, the elimination of racism would rate only a step or two higher than the campaign to end the senseless slaughter of the oceans' great whales? In other words, racial equality, like whale conservation, should be advocated, but with the understanding that there are clear and rather narrow limits as to the degree of sacrifice or the amount of effort that most white Americans are willing to commit to either crusade. Indeed, the country is unlikely to be invaded by a school of great whales, but because many whites fear inroads by blacks in their schools, jobs, and neighborhoods, a public opinion poll might even give a higher priority to whale conservation than to racial remediation. In a sense, this fear, not unlike the fear of slave revolts, has survived its antebellum origins. Mixed with guilt and that intangible aversion to color that Winthrop Jordan found in even the Elizabethan Englishmen, 8 the fear continues to evoke an irrational dread that inundation will follow if blacks are released from the subordinate position where, despite all the civil rights efforts, they remain. ~7 Fear of inundation by blacks should be added to the two, already identified, components of racism: (1) the inherent sense that white people represent a higher and better order of humanity than do blacks; and (2) the feeling that while blacks are citizens, have made many contributions, and should not be discriminated against, America is not simply a country consisting of a white majority; it is a white country, which means that flourishing black institutions of any kind are unnatural, suspect, and not to be encouraged. In our time, we have placed our faith and hopes on integration to eliminate racial discrimination. But consider the very definition of integration. Irrati01,1allv, an
tt. t
8
6. How the U.S.A. Patriot Act redefines "Domestic Terrorism," Dec. 6, 2002, available at http://www .aclu.org/newsprint.cfm. 7. Dan Eggen, Laws Evoked Against Crimes Unrelated to Terror, Report Says, Wash. Post, May 21, 2003. 8. Id. 9. Rene Sanchez, Librarians Make Some Noise over Patriot Act, Wash. Post, Apr. 10, 2003. 10. Clarence Page, Defending Our Privacy Rights Against an All-Out Assault, Bait. Sun, Apr. 25, 2003. 11. Id. 12. Andrew Chow, NYPD Monitoring Irks Civil Liberties Union, Wash. Sq. News, Apr. 21, 2003. The New York City police used arrest interrogations to record information about individuals and their organizing activity strategies to develop a protester's database. Given serious public criticism, the police commissioner, who denied any knowledge of the database, released a formal apology to ensure that it was destroyed. Advocates feared that information was shared with federal officials before this action was taken.
628
Racial Issues and the Flag-Burning Cases
§10.9.2
arrested. 13 Even when permits are granted, police action has been questionable. In Vermont, police authorized undercover officers to film protest activities to get a sense of unlawful actions. In many other municipalities, officers have gone undercover to investigate organizing strategies, even going as far as creating a database with details about protesters and their direct actions. 14 These examples are only a few of the recent deliberate attacks on civil rights and liberties that have been largely accepted by courts and much of the country as necessary responses to a national threat. This abridgement of rights has no end in sight. In countless times since the passage of the U.S.A. Patriot Act, Americans have been reminded of Benjamin Franklin's wisdom: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Those who are willing to give up essential liberty also rarely suffe from its deprivation. As the federal policy curtails our ability to protest effective! and express dissenting views, it jeopardizes the ability to use protest and speech t resist unjust and racist laws.
§10.9.2
Racial Issues and the Flag-Burning Cases
As indicated above, the liberty-threatening responses to the September 11, 2001, attacks follow an all too familiar response to national threats. 15 Consider the general hostility that early met opponents to the Vietnam War. Americans who supported the country's involvement were outraged when opponents resorted to tactics that included burning draft cards, despoiling Selective Service records with animal blo9d, and burning the0merican flag. A poignant chapter in this era is reported in/Street v. New York. fA state statute made it a misdemeanor to "publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]." In this case, according to the Court: Appellant testified that during the afternoon of June 6, 1966, he was listening to the radio in his Brooklyn apartment. He heard a news report that civil rights leader James Meredith had been shot by a sniper in Mississippi. Saying to himself, "They didn't protect him," appellant, himself a Negro, took from his drawer a neatly folded, 48-star American flag which he formerly had displayed on national holidays. Appellant left his apartment and carried the still-folded flag to the nearby intersection of St. James Place and Lafayette Avenue. Appellant stood on the northeast comer of the intersection, lit the flag with a match, and dropped the flag on the pavement when it began to bum. Soon thereafter, a police officer halted his patrol car and found the burning flag. The officer testified that he then crossed to the northwest comer of the intersection, where he found appellant "talking out loud" to a small group of persons. The officer 13. Christopher Dunn eta!., Arresting Protest: A Special Report of the New York City's Civil Liberties Union on New York City's Protest Policies at the February 15, 2003 Anti war Demonstration in New York City, Apr. 2003. 14. Police Filming of the Vermont Protests Revives Anger, Fears, Burlington Free Press, Apr. 7, 2003. 15. See generally Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism ( 1905). 16. 394 u.s. 576 (1969).
629
§10.9.2
Chapter 10.
The Parameters of Racial Protest
estimated that there were some 30 persons on the comer near the flag and five to 10 on the comer with appellant. The officer testified that as he approached within 10 or 15 feet of appellant, he heard appellant say, "We don't need no damn flag," and that when he asked appellant whether he had burned the flag appellant replied: "Yes; that is my flag; I burned it. If they let that happen to Meredith we don't need an American flag." Appellant admitted making the latter response, but he denied that he said anything else and asserted that he always had remained on the comer with the flag.
In a five-to-four decision, the Court reversed a conviction by the New York Supreme Court because it was unclear whether conviction was based on the act of burning or on the spoken words. If based on the latter, or on a combination of act and words, it was violative of rights of free expression. At the conclusion of his majority opinion, Justice Harlan added, "disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history." Chief Justice Warren and Justices Black, White, and Fortas each wrote dissenting opinions, totaling 23 pages in the official reports. Each believed that the issue-of whether appellant could be convicted of burning the flag was properly before the Court, and that the conviction should be affirmed. On remand, the New York Court of Appeals, while asserting its opinion that defendant had been tried and convicted solely for the act of burning the flag, conceded that the conviction must be reversed under the Supreme Court's mandate. A new trial was ordered at which defendant was "to be tried solely for his act of burning the flag." 17 In Street, the Court's opposition to flag burning, even when done with great provocation, was shown more by the opinion than the result. None of the opinions expressed any sympathy for Street, who, the record shows, was clearly patriotic, but who, upon hearing ofthe Meredith shooting, had simply lost control. The New York Court of Appeals had recognized the situation, but, concerned about the threat to public order posed by Street's act, said: The violation of the statute may not be condoned simply because the defendant's agitation resulted from the distressing news he had heard on the radio or because no violence actually did occur as a result of the flag burning. These were mitigating circumstances that were properly taken into account b~ the trial court when it suspended sentence for the conviction. [People v. Street.] 8
17. 24 N.Y.2d 1026, 250 N.E.2d 250 (1969). 18. 20 N.Y.2d 231, 229N.E.2d 187,282 N.Y.S.2d491 (1967). Upon remand of the case, Street was retried and convicted in Criminal Court, Kings County, of burning the flag. During the pendency of his appeal to the appellate term, Street died and the prosecution was abated. Letter to author dated Sept. 21, 1972, from Burt Neubome, N.Y. Civil Liberties Union, 84 Fifth Ave., New York, N.Y. 10011. In subsequent flag desecration cases, the Court seemed more sympathetic of human rights. See Smith v. Goguen, 415 U.S. 566 (1974) (conviction for wearing a small U.S. flag sewn onto the seat of his trousers reversed as violative of the due process clause because statute subjected to criminal liability anyone who "publicly treats contemptuously the flag of the United States."); Spence v. Washington, 418 U.S. 405 (1974) (the display of an American flag with large peace symbols attached with removable tape was held protected expression that was impermissibly infringed on by a state statute barring such a display); Texas v. Johnson, 491 U.S. 397 (1989) (invalidated a state statute making burning the flag a criminal offense).
630
Racial Issues and the Flag-Burning Cases
§10.9.2
Professor Melville Nimmer believes that a basic problem in these cases arises from the judicial effort to accord symbolic speech less protection than is given verbal speech. The purpose of both is the same, and, in fact, both are subject to regulation under present rules. For example, words which presage an imminent and likely breach of the peace will justify abridgment as much as if the idea had been conveyed in nonverbal terms. Professor Nimmer concludes that adoption of this equality would prevent a protester from being penalized because of his choice of method or his inability to communicate in a language other than that of conventional words. 19 Though long recognized as rich in symbolic content, protests involving the American flag remain likely to provoke reprisals from employers and bystanders and hostile reactions from the courts. In Leonard v. City of Columbus, 20 black policemen who were improperly discharged after demonstrations that included removing a United States flag patch from their uniforms sued for wrongful discharge and reinstatement, only to have their suit dismissed by the District Court for the Middle District of Georgia. On appeal the Eleventh Circuit recognized that the flag incident constituted symbolic speech which is protected under the First and Fourteenth Amendments and granted the officers a chance to try their case. Leonard stemmed from an incident in 1971 when black policemen, protesting discriminatory practices within the force and by police officers in the treatment of black citizens, formed an "Afro-American Patrolmen's League" and submitted a list of complaints and requests to the police department. After attempts to pursue the matter with department officials failed, black officers began to picket the police station in a peaceful and orderly manner. At a meeting with civic leaders the officers agreed to cease picketing, but when police officials violated this "cooling down period," League members resumed picketing and removed the American flag patch from their uniforms, announcing that they could not wear it because of injustice on the force. Subsequently, the officers were discharged on the grounds that their removal of an official part of their uniforms was conduct unbecoming officers. After their discharge other reasons were given, including "making baseless allegations of racism and discrimination" and violating police regulations regarding demonstrations. The Eleventh Circuit found that the League members' dismissal did not follow established Columbus procedures, and that though many officers neglected to wear the flag patch, no police officer had been disciplined for this infraction before the League incident. Apparently, up to that time, few Columbus policemen had been aware of a 1969 directive making the flag an official part of the uniform. From these facts the court concluded that the officers were dismissed less for the act of removing the flag patch than for the symbolic meaning expressed by that action. 21 19. Melville Nimmer, The Meaning of Symbolic Speech under the First Amendment, 21 UCLA L. Rev. 29 (1973). For a contrary view, see Tinsley E. Yarbrough, Justice Black and His Critics on Speech-Plus and Symbolic Speech, 52 Texas L. Rev. 257 (1974). See also John Hart Ely, Comment, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975). 20. 705 F.2d 1299 (11th Cir. 1983). 21. Id. at 1306.
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§10.9.2
Chapter 10. The Parameters of Racial Protest
Although many in Congress recognized the potential political value in the flag burning issue, there was some resistance to the idea of tampering with the Constitution based on this concern. 22 But, rather than directly refusing to change the Constitution, Congress choose another, arguably politically safer approach- the Flag Protection Act of 1989. 23 The Flag Protection Act of 1989 was almost immediately challenged by two groups on opposite ends of the country. In the West, in Seattle, Washington, seven people burned flags to protest the new law?4 In the East, protesters against various U.S. domestic and foreign policies burned flags on the steps of the Capitol to drive home their concerns as well as to confront the new law. 25 Both groups challenged the constitutionality of the new flag burning statute on its face and as applied in their cases. The district court judges in each case26 found the statute unconstitutional in light of Texas v. Johnson. The Justice Department utilized a provision in the new law which allowed for direct appeal to the United States Supreme Court of the first case to challenge this law. 27 The court declined to reconsider its decision in Johnson, and considered only whether the Flag Protection Act is "sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees' expressive conduct." 28 Justice Brennan, writing for the majority, concluded that the Act was not distinct and therefore was unconstitutional; "the Act still suffers from the same fundamental flaw: it suppresses expression out of concern for its likely communicative impact. " 29 Justice Brennan noted that although the government denied that the statute sought to place content-based limits on the flag burning conduct, that was clearly its intent. 30 He stated that the "Government's perceived interest in protecting the 'physical integrity' of a privately owned flag [footnote omitted] rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals." But he argued that "mere destruction ... of a particular physical 22. See Norman Dorsen, Flag Desecration in Courts, Congress and Country, 17 T.M. Cooley L. Rev. 417 (2000), describing the flag burning debate, including a discussion of Supreme Court
precedent and the political fight that ensued in response to the Court's 1989 decision. 23. 18 U.S.C.S. §700 (1991). Desecration of the flag of the United States; penalties, was amended under this Act effective October 28, 1989. The statute has existed on the books since 1968. The 1989 Act was drafted to correct perceived constitutional problems raised by the earlier statute. 24. United States v. Haggerty, 731 F. Supp. 415 (W.D. Wash. 1990). 25. United States v. Eichman, 731 F. Supp. 1123 (D.C. 1990), aff'd, 496 U.S. 310 (1990). 26. Haggerty, supra note 24; Eichman, supra note 25. 27. 18 U.S.C.S. §700(d) (1991). 28. Eichman, 496 U.S. at 315. 29. Id. at 317. The breakdown of the Court decision in this case was identical to the breakdown in Johnson. Brennan wrote for the majority. He was joined by Justices Marshall, Blackmun, Scalia, and Kennedy. The dissent was written by Stevens and joined by Chief Justice Rehnquist and Justices White and O'Connor. 30. The Court noted that the government's action was related to both the content and suppression of free speech. 496 U.S. at 315-316. Further, Justice Brennan stated, the words of the statute itself "confirms Congress' interest in the communicative impact by flag destruction .... Each of the specified terms [of the statute]-with the possible exception of 'bums' -unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value." (footnote omitted) ld. at 310-311. Moreover, the Act excluded disposal of "worn or soiled" flags, indicating its aim to exempt acts associated with respect for the flag. ld.
632
Racial Issues and the Flag-Burning Cases
§10.9.2
manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself.... " Justice Brennan concluded his analysis of the statute by noting that "[a]lthough Congress cast the Flag Protection Act in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: it suppresses expression out of concern for its likely communicative impact." Since the Act's restrictions were directly related to the content of the regulated speech, the Court applied "the most exacting scrutiny" standard established in Boos v. Barry? 1 Then, for the reasons noted in Johnson, the Court held "the Government's interest cannot justify its infringement on First Amendment rights." Brennan recognized that flag desecration was offensive to many people but argued that "punishing such desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering." The dissent focused on the symbolic value of the flag as it argued that the government did have a "legitimate interest in protecting ... the American flag." This interest arises because "the flag is a reminder both that the struggle for liberty and equality is unceasing, and that our obligation of tolerance and respect for all of our fellow citizens encompasses those who disagree with us .... " 32 The dissent revealed a deep discomfort with the disrespect flag burning implies. Seeking to restore the symbol as a means of restoring all that it symbolized harkened back to an earlier era of unquestioning patriotism: "The symbolic value of the American flag is not the same today as it was yesterday. Events during the last three decades have altered the country's image in the eyes of numerous Americans, and some now have difficulty understanding the message that the flag conveyed to their parents- whether born abroad and naturalized or native born." The dissent also argued that this statute sought to "protect the symbolic value of the flag without regard to the specific content of the flag burner's speech." Since there were other means by which protesters could relay their messages, the dissent stated that the protesters' right to expression was not unconstitutionally infringed upon by the Flag Protection Act. With the Court's ruling that the Flag Protection Act was unconstitutional, the cry went up again for a constitutional amendment. There had been some speculation prior to this decision, that the political pressures raised by this issue would have an effect on the Justices? 3 One commentator said that the political pressures were noted by the dissent when Justice Stevens stated, "the integrity of the [flag] has been compromised by those leaders who seem to advocate compulsory worship of the flag even by individuals whom it offends, or who seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends." 31. 485 u.s. 312 (1988). 32. Eichman, 496 U.S. at 321. The dissenters' position seems contradictory. They argue in favor of the government's interest in regulating the treatment of the flag because it represents, among other things, tolerance of differing views, yet punishing people with differing views as to the flag is the apparent intent of the statute. This form of intolerance by the flag burning statute advocates seems to contradict the dissent's view of what the flag represents. 33. "Privately, several justices expressed surprise at the intense reaction to their ruling ... in Texas v. Johnson. Some legal experts speculated that one or more justices might switch votes this time .... In fact, however, none of the justices switched positions." High Court Voids Law Against Burning Flag, L.A. Times, June 12, 1990, at AI.
633
§10.9.2
Chapter 10.
The Parameters of Racial Protest
Legislation to amend the Constitution regarding the flag was raised in both the House and Senate, but failed to gain the two-thirds majority votes required as a first step in the ratification of a constitutional amendment. 34 In addressing the merits of protecting the flag through a constitutional amendment, Professor Norman Dorsen contends that a high burden should be placed on supporters of the amendment. 35 He rejects the notion that history can be a solid source of support for anti-flag burners, mentioning the often-cited case of George Washington defacing the English flag, and points to serious problems with the vagueness of flag desecration prohibitions. More significantly, he responds to the argument that our democratic system of law should respond to the flag amendment's tremendous popular support. Dorsen argues that "the whole purpose of the Bill of Rights is to protect minorities." 36 Although popular sovereignty is an important aspect of democracy, "equally important is the concept of individual liberty, which need not yield to majority sentiment. " 37 It is tempting to believe that the flag-burning controversy of the late 1980s and early 1990s represented little more than politicians manipulating what, for most Americans, was not a serious issue. 38 It is, however, difficult to reconcile the "political manipulation" argument with the fervent popular support for legal restrictions on flag burning. Might it be that the period's fervent anti-flag-burning sentiments were related to a kind of collective visual trauma? The late twentieth century is replete with images of the American flag aflame. In many instances, these images attach to hazy memories of America's military "emasculation" at the hands of some demonized racial other. In the wake of the Iranian hostage crisis, flag-burning was routinely associated with so-called Islamic fundamentalism and with hostage-taking in the Middle East. It also seems worth noting that the flag debate played out during an historical moment in which America's economic and political position in the world seemed terribly unclear. The issue has yet again been raised in Congress's 2003 session, even amidst issues of homeland security, budget deficits, tax breaks, and political unrest throughout the world. 39 This attempt to push forward the amendment arises in the wake of a revival of U.S. patriotism since the tragedy of September 11, 2001, as flags fly outside homes and renditions of "America the Beautiful" and "God Bless America" seem to pervade public ceremonies and sporting events. In sharp contrast to the Iran hostage crisis, the flag amendment issue has come to the floor of Congress immediately after the United States unilaterally asserted its military muscle in the Middle East to overthrow Iraq's dictator and began to reconstitute the state under the singular control of U.S. military forces. Simultaneously, at home the civil liberties of U.S. citizens and especially Arabs and 34. After a constitutional amendment is passed by Congress, the measure must be passed by three-fourths of the state legislatures. 35. See Dorsen, supra note 22. 36. Id. at 437. 37. Id. at 438. 38. Robert Justin Goldstein asserts as much in his book, The Great 1989-1990 Flag Desecration Controversy 370 (1996). See a review of Goldstein's book by Travis, Wall, Burning the Flag, 84 Cal. L. Rev. 1719 (1996). 39. Editorial, Burnt Out, Wash. Post, May 13, 2003.
634
R.A.V. v. City of St. Paul
§10.10.1
Muslims have come under attack through the passage of the U.S.A. Patriot Act of 2002 (see §10.9.1) and regulations emanating from the newly formed Department of Homeland Security. Such circumstances, like the flag amendment itself, undermine the democratic foundations upon which this country, and the symbol of the flag, rests.
§10.10 CROSS BURNING BY WHITES AS EXPRESSIVE CONDUCT
For all of the political play given to flag burning, another type of incendiary activity- cross burning- is noticeably absent from the national political scene. 1 Many states have taken action on their own to address this type of hate crime. 2 In two Supreme Court rulings, the Court has addressed the constitutionality of these laws to determine whether cross burning, a symbol plagued with a history of violence and terror, is afforded First Amendment protection. Each case hinged on whether the proscribed activity was a permissible content-based restriction on speech.
§10.10.1
R.A.V. v. City of St. Paul
In the first Supreme Court case addressing the issue, R.A.V. v. City of St. Paul, Minnesota, 3 the Court invalidated a Minnesota statute aimed at hatemotivated expressive conduct as an invalid content-based restriction on speech. 4 §10.10 I. The incidence of hate crimes, including cross burning, is substantial each year: Law enforcement agencies reported nearly 8,000 incidents of bias-motivated acts of violence to the FBI; over 4,000 were racially motivated. See Rob Hiassen, Faith and Forgiveness, Bait. Sun, Jan. 21, 2003. This hatred continues to be expressed through cross burning, as reflected in the articles of local newspapers across the country. See David Reyes, Panel Sees Big Drop in Bigotry Reports, L.A. Times, May 16, 2003 (discussing an African American couple in Orange County who found an eightfoot cross burning outside their home after hearing cheers outside); Woman, 28, Sentenced in KKK Cross-Burning, State Times/Morning Advocate, Apr. 19,2003 (cross-burning in front ofthe home of an African American family on September I, 2002, resulted in the conviction of five individuals, with sentences ranging from 12 to 21 months and fines over $1,500); New Mexico: Air Force CrossBurning Case, N.Y. Times, Apr. 9, 2003; Randy Ellis, Three Sentenced in Burning of Crosses, Daily Oklahoman, Dec. 19, 2002; Holly Zachariah, FBI Looking into West Jefferson Cross-Burning, Columbus Dispatch, Oct. 24, 2002 (interracial married couple with two children found a five-foot cross burning in their yard); Michael Novick, Leading Edge of the Wedge: Anti-Immigrant Racism & Repression, Ethnic News, Fall2002; Charles Keeshan, Men Convicted in Cross Burning Back in Jail, Chi. Daily Herald, Aug. 2, 2002; Newswatch, Seattle Times, Mar. 24, 2002; Rain, Drums Drown Out Klan's Words, Deseret News, Jan. 20, 2002; Michelle Gerise Godwin, Cross Burning a Hateful Act, Capital Times, Jan. 2, 2002. 2. Although cross burnings are discussed here (especially when they are used to promote racial hatred), such statutes also address crimes against persons based on creed, sexual orientation, and religion. 3. 505 U.S. 377 (1992). 4. The ordinance read: Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on
635
§10.10.1
Chapter 10.
The Parameters of Racial Protest
In January 1990, Robert A. Viktora was one of several white teenagers involved in burning a cross within the fenced yard of the home of the only black family in his St. Paul, Minnesota, neighborhood. 5 He was a minor at the time of the incident and was described as a "skin-head. " 6 Viktora was charged with violating the ordinance. The defendant did not contest the city's ability to charge him for his action, but rather, he argued that the ordinance under which he was charged was overbroad on its face and therefore, unconstitutional. By providing a narrow reading of the statute, the Minnesota Supreme Court held the statute to be valid. All nine Supreme Court Justices voted to overturn the conviction and hold the ordinance unconstitutional as overbroad. Justice Scalia wrote the majority opinion, which was joined by Rehnquist, Kennedy, Souter, and Thomas. While the Court has sometimes said that unprotected categories of speech are not protected, Scalia asserted that these statements must be taken in context, and even within categories of unprotected speech, the government is limited in its ability to draw content-based distinctions unrelated to their distinctively proscribable content. A government may proscribe libel, for example, but it may not make the further content discrimination of proscribing only libel critical of the government. As to fighting words as a category of unprotected speech, Justice Scalia denied that their content is in all respects worthless and undeserving of First Amendment protection. Government cannot, however, regulate use based on hostility- or favoritism- toward the underlying message expressed. In short, Scalia said no absolute prohibition existed. Under this reasoning, Scalia found that content-based distinctions within a category of unprotected speech have to meet strict scrutiny, with two exceptions: if the content-based distinction directly advances the reason why the category of speech is unprotected (an obscenity law that bans the most sexually explicit material without banning everything that is obscene); and if it is directed at remedying secondary effects of speech and is justified without respect to content. Applying these principles to invalidate the St. Paul ordinance, Scalia said the law distinguished varying expressions of hate, prohibiting hate speech based on the basis of race, color, creed, religion, or gender commits disorderly conduct and shall be guilty of a misdemeanor. 609 Minn. Stat. §2231 (1990) (offense of assault in the fourth degree when assault motivated by bias due to race, ethnicity, religion, disability, or sexual orientation). 5. Unfortunately, this incident was not the only reported cross burning during the period. Despite President Reagan's proclamations in the early 1980s that racism no longer exists, the increasing number of incidents of cross burnings, as well as other forces of direct violence on people of color, sends a different and frightening message. See, e.g., Minorities Rally Against Hate, L.A. Times, Aug. 16, 1991, at B9, col. 1 (Metro) (California community responds to 1988 cross burning and recent incidents of increased violence against people of color); Ban on Cross Burning Unconstitutional, Judge Says, UPI, Apr. 22, 1991 (Regional) (cross burning conviction of Virginia high school student overturned when statute fails review); Richard Seven, Racist Acts Spurs Town, Officials into Action-Oak Harbor Incident "Won't Be Shrugged Off," Seattle Times, Oct. 12, 1990, at E1 (burning cross and painted swastikas placed outside home of black family in Washington state); Hearing Set in Cross-Burning Case, UPI, Mar. 1, 1990 (Regional) (prosecution suspects in cross burning in front of predominantly black church in Missouri). 6. Clarence Page, The Myth of "Fighting Words," Chi. Trib., July 7, 1991, at 3.
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race, religion, or gender, but not that based on political affiliation or sexual orientation. Fighting-word "[d]isplays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use 'fighting words' in connection with other ideas- to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality- are not covered." 7 Concurring on the basis of the majority holding that the ordinance was over-broad, Justice White, joined by Blackmun, O'Connor, and Stevens, objected to the majority's conclusion that content-based distinctions within categories of unprotected speech generally must meet strict scrutiny. After R.A. V., he feared, should governments wish to criminalize certain fighting words, they would have to criminalize all fighting words. In separate concurring opinions, Justices Blackmun and Stevens argued that government should have latitude to draw distinctions within categories of unprotected speech. And Justice Blackmun, who felt the decision was regrettable whether or not it was followed, was concerned that the Court had used this case to decide issues of "politically correct" speech and "cultural diversity," neither of which is present in R.A. V. Justice Stevens felt conduct that created special risks or caused special harms should be prohibitable by special rules; content-based distinctions within categories of unprotected speech are thus often justified. These concurring opinions appear to have significant influence on the Supreme Court's 2003 cross burning decision, Virginia v. Black. Professor Erwin Chemerinsky suggests that the situation in R.A. V. actually met the exceptions that Justice Scalia recognized where content-based discrimination is allowed. Scalia held that an exception existed where the distinction advances the reason why the category is unprotected. This was true in the St. Paul ordinance, which was based on a judgment that fighting words based on race, religion, or gender are most likely to cause the harms that the fightingwords doctrine means to protect against. 8 Judith Butler offers a critical reading of R.A. V., arguing that the Court's speech constitutes a violence in its own right. 9 She demonstrates this argument by tracking how the R.A. V. majority opinion displaces the metaphor of "burning" from the cross onto the First Amendment. By Butler's reading, the decision erases the "historical correlation between crossburning and marking a community." The majority opinion deplores the burning of a cross in "someone's front yard" rather than the burning of a cross in a black family's front yard. 10 Butler notes that "[t]he stripping of blackness and family from the figure of the complainant is significant." It is this strategic "stripping," in part, that allows the Court to displace the designation "threatened" from the black family onto the First Amendment. The Supreme Court's decisions in church-related protest cases also reflects this transformation in which the First Amendment rather than the victim becomes the object the Court seeks to protect. The Supreme Court's rhetoric in Brown v. Louisiana reveals this tendency when it comes to protests that disrupt church 7. 505 U.S. at 391. 8. Erwin Chemerinsky, Constitutional Law: Principles and Policies 821 (1997). 9. Judith Butler, Excitable Speech: A Politics of the Performative 52-65 (1997). 10. 505 U.S. at 377, 396.
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services or schools. In Brown, the Court implicitly positioned law as the protector of hallowed places. The Court idealized the library in terms suggesting spirituality and sanctity: the library as the site of monistic intellectual pursuits. The Court, in effect, articulated the law's social purpose by likening the protested library to a church. In Brown the Court overturned the protesters' conviction (on technical grounds) only because they had been careful not to disturb the library's functioning. By this logic, the Court's summary affirmation in Ford v. Tennessee should not be surprising. To protest during a service is certainly to disrupt the functioning of a "hallowed place" while in use.
§10.10.2
Virginia v. Black
In Virginia v. Black, 11 however, Justice O'Connor, writing for a majority of the Court, held that a state may ban cross burning with the intent to intimidate without violating the First Amendment. 12 Yet, the provision of the Virginia statute that makes the burning of a cross prima facie evidence for an intent to intimidate renders the Virginia statute unconstitutional. The Virginia statute reads: It shall be unlawful for any person or persons, with the intent of intimidating any
person or group of persons, to bum, or cause to be burned, a cross on the property of another, a highway or public place .... Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons. 13
On May 2, 1998, Richard Elliott and Jonathan O'Mara attempted to bum a cross on the front lawn of their African American neighbor James Jubilee, who had moved in four months earlier. The men set the cross on fire one night to be found the next morning by Jubilee, who was "very nervous" because cross burning "tells you that it's just the first round. 'o1 4 The cross burning appeared to be an act of retaliation. Jubilee had spoken to Elliot's mother about hearing shots fired from the backyard, which his mother explained Elliot used as a firing range. After Elliot and O'Mara were arrested, O'Mara pleaded guilty and Elliot's case went to trial. The jury was not instructed as to the meaning of intent to intimidate or on the prima facie evidence provision of the cross burning statute in Elliot's case. The jury found him guilty. On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia, on private property with the permission of the owner. With 20 to 35 people in attendance, the speakers at the rally addressed what they believed in, speaking poorly about African Americans and Mexicans, according to one observer. 15 One 11. 123 S. Ct. 1536 (2003). 12. Tony Mauro, American Lawyer Media, Apr. 8, 2003. Currently, the following states have anti-cross burning statutes similar to Virginia: California, Connecticut, Delaware, Florida, Georgia, Idaho, Montana, North Carolina, South Carolina, South Dakota, Vermont, Washington, and the District of Columbia. 13. Id. at 1541-1542. 14. ld at 1543 (quoting Jubilee). 15. Id. at 1542.
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Klan member told the audience that he wished he could "take a .30/.30 and just randomly shoot the blacks." 16 The rally concluded with the burning of a 25- to 30-foot cross that could be viewed approximately 300 feet from the road. Black, the rally organizer, was arrested and charged under the Virginia cross burning statute. In his trial, the jury was instructed that an intent to intimidate described the motivation of the accused to put another person in fear of bodily harm, and that "the burning of the cross by itself is sufficient evidence from which you may infer the required intent." 17 Black was convicted. All three defendants appealed to Virginia's Supreme Court, arguing that the statute is facially unconstitutional. The state supreme court consolidated the cases and found the statute unconstitutional. The statute, the Virginia Supreme Court argued, was impermissible content-based discrimination that was "indistinguishable from the ordinance found unconstitutional in RAV v. St Paul." 18 The prima facie evidence provision rendered the statute overbroad because it increased the likelihood of arrest and prosecution of individuals engaged in legal cross burning, resulting in a chilling effect on this form of expression and raising a serious First Amendment problem. The Supreme Court granted certiorari to hear the case. Justice O'Connor's majority opinion in Virginia v. Black launches into a brief history of cross burning, concluding that: while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross is used to intimidate, few if any messages are more powerful. 19
Given that cross burning is a particularly virulent form of intimidation, Justice O'Connor states that upholding the constitutionality of a statute banning cross burning with the intent to intimidate is entirely consistent with the First Amendment and particularly with the Court's analysis in R.A. V. The majority opinion, in which Chief Justice Rehnquist and Justices Scalia, Breyer, and Stevens join Sections I, II, and III, made a clear distinction between the Virginia statute and the ordinance in R.A. V. because the Virginia statute did not limit protection to a group of persons based on religion, race, or gender, but more generally banned only a particular kind of threat. The Court in Virginia v. Black compared the cross burning ban to the permissible speech restrictions of prohibiting threats against the President or prohibiting the only most "lascivious displays of sexual activity." 20 The majority found that the Virginia statute fell within the types of content discrimination that did not violate the First Amendment, quoting R.A. V.: "[w]hen the basis for the content discrimination consists entirely of the reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists." 21 Rather than prohibiting all intimidating 16. 17. 18. 19. 20. 21.
Id. Id. at 1542, quoting trial transcript. ld. at 1543, quoting Black v. Commonwealth, 262 Va. 764 (2001). Id. at 1546-1547. Id. at 1549, quoting R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Id. at 1549. 639
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messages, a government may prohibit only "a subset of messages in light of crossburning's long and pernicious history of impending violence." 22 Yet, in the final two sections of her opinion, Justice O'Connor, writing for a plurality, which includes Chief Justice Rehnquist and Justices Stevens and Breyer, argues that the prima facie provision, specifically as interpreted in the model jury instruction, rendered the statute overbroad and therefore facially invalid. The prima facie provision would create "an unacceptable risk of suppression of ideas." 23 The plurality was concerned that the provision as interpreted by the jury instruction would silence protected speech because of a high likelihood that the provision would permit the prosecution and potentially the conviction of a person or group who is engaging in permissible political speech. Justice O'Connor discusses an example of the danger of prosecuting a person who burns a cross for artistic purposes, such as in the filming of Mississippi Burning. The plurality leaves room, however, for the Virginia Supreme Court to save the statute by interpreting the prima facie evidence provision in a manner that would not conflict with the First Amendment or by severing the provision from the rest of the statute. Justice Scalia argues that the statute in its entirety does not pose any First Amendment problems. He agrees with the majority that a statute can constitutionally ban cross burning with the intent to intimidate and that the prima facie evidence provision should be remanded to the state supreme court for an authoritative interpretation of the provision. Scalia takes issue with the jury instruction and not the statute itself. He criticizes the plurality for a "baffling" interpretation of overbreadth jurisprudence. 24 A problematic jury instruction interpreting the prima facie evidence provision, he contends, should not result in the invalidation of the entire statute on its face. Justice Stevens's concurrence states that "'cross burning with an intent to intimidate,' unquestionably qualifies as the kind of threat that is unprotected by the First Amendment." 25 He refers specifically to the rationale in the opinions that he and Justice White wrote in R.A. V. to explain his justification for upholding this content-based prohibition without including all types of threatening expressive conduct. Justice Souter, joined by Justices Kennedy and Ginsburg, concur in the judgment in part and dissent in part, arguing that the Virginia statute does not fall under any of the exceptions described in R.A. V. Justice Souter finds that the cross burning statute is an unconstitutional content-based regulation constituting an "official suppression of ideas." Yet, he also argues that the prima facie evidence provision furthers this problem by allowing constitutionally permissible speech to be curtailed by the statute. Although Justice Thomas agrees with the majority that banning cross burning with the intent to discriminate is constitutionally permissible, his dissent argues 22. Id. at 1549. 23. Id. at 1561, citing R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). 24. Id. at 1558 (Scalia joined by Thomas in Parts I and II, concurring in part, concurring in the judgment in part, and dissenting in part.) 25. ld. at 1562, (Stevens, concurring).
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that the majority incorrectly analyzes the statute as expressive conduct, which could be protected by the First Amendment. 26 The Virginia legislature, according to Justice Thomas, "simply wrote [any expressive value] out of the statute by banning only intimidating conduct undertaken by a particular means." 27 In describing the connection of cross burning and violence throughout the history of the KKK in Virginia, Thomas argues that the legislature, dominated by segregationists who supported resistance to school desegregation, passed the statute at issue to criminalize terrorizing conduct as an "instrument of intimidation. " 28 Even for segregationists, cross burning was an intolerable act. As for the statute's prima facie evidence provision, Justice Thomas finds that it raises no constitutional issue. The inference, he explains, is rebuttable and the jury has to find each element by proof beyond a reasonable doubt. Even in the First Amendment context, the Court has upheld regulations, as in the case of child pornography, where conduct appears culpable but may through further investigation or trial result in an acquittal or dismissed charges. And the First Amendment in the context of protests at abortion clinics has given way to "unwanted communication" directed at patients with "vulnerable physical and emotional conditions."29 Justice Thomas is critical of the plurality's decision to strike down the statute because of a concern for the "fate of an innocent cross-burner who burns a cross, but does so without an intent to intimidate. " 30 Thomas points out, reflecting Judith Butler's critique of R.A. V., that "cross burning subjects its targets, and, sometimes, an unintended audience ... to extreme emotional distress." 31 As a consequence, he indicts the plurality for placing less value on physical safety than the right to be free from unwanted communications. The fate of the Virginia statute remains in the hands of the Virginia Supreme Court, which must determine whether the prima facie provision can be severed from the statute or whether there is an interpretation of the provision that will not raise the constitutional concerns implicated in the jury instructions. This opinion sheds little light on how far the Court's holding will extend. Will restrictions for using other symbols of hate, such as the swastika, to intimidate be upheld under this analysis? Or will they be distinguished because of the unique history of cross burning? Could Virginia v. Black be used to alter the constitutionality of antiflag burning statutes? Will it be more difficult to use the First Amendment to shield racist speech? A new test case for the Supreme Court may arise from recent cases of noose hangings used as a vivid reminder that from the 1880s to the 1960s, 4, 700 men and women were lynched in this country with black people making up 70 percent of this total. While there have been about a dozen such incidents a year in the past 26. Interestingly, in his opening paragraphs, Justice Thomas quotes from Chief Justice Rehnquist's dissent in Texas v. Johnson, drawing similarities between prohibiting cross burning and prohibiting flag burning. 27. Id. at 1563, Thomas dissenting. 28. Id. at 1566, quoting W. Wade, The Fiery Cross: The Ku Klux Klan in America 185, 279 (1987). 29. ld. at 1569, quoting Hill v. Colorado, 530 U.S. 703, 729 (2000). 30. Id. at 1568. 31. Id. at 1569.
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decade, white high school students in Jena, Louisiana made national headlines by hanging nooses off their school's "white tree," a tree where historically only white students sit in the shade. The noose hanging, in retaliation for black students who dared sit under the tree, resulted in mere suspensions for the white kids involved. The District Attorney in Jena said he could not find a single criminal law to prosecute the white students, but charged six black students with felonies following a fight with white students. On September 20, 2007, thousands of civil rights protesters traveled to Jena and marched to protest the town's racism. Since then, over 60 noose hangings have surfaced around the country? 2 A noose was even hung on the door of a black Columbia University professor, Madonna Constantine?3 As a result, states are debating the passage of statutes criminalizing the hanging of nooses in the same manner as a ban on cross burning?4 In light of the Court's holdings in R.A.V. v. City of St. Paul, Minnesota and Virginia v. Black, how can states draft the statutes to avoid the constitutional problems that surfaced in these cases? Do such anti-hate laws discourage statements or actions intended to intimidate, or does rendering the actors subject to penalty or prosecution add an element of thrill to the actions?
§10.11 BALANCING SCHOOL PROTEST RIGHTS
The post-1960s cases in this area tend to follow the principles of those decided at the height of the civil rights era. While some convictions are reversed, the reversals are, as with the earlier sit-in cases, on technical grounds, and o special right of r cial ote The opinion by Justice Marshall i Grayned v. City of Rockford fficiently illustrates the pattern to justify a fairly detailed summary. The Grayned case involved a demonstration on the part of approximately 200 public school students, members of their families, and friends, to protest the racially discriminatory practices and policies at a public high school in Rockford, Illinois. The demonstrators marched around on a sidewalk about 100 feet from the school building, some of them carrying signs stating their grievances, while others made symbolic "clenched fist" gestures. Richard Grayned, one of the demonstrators, was arrested, tried, and convicted for violating, through his participation in the demonstration, the city's "anti-picketing" and "anti-noise" ordinances. Grayned appealed the convictions, arguing that the ordinances on which they were based were unconstitutional. 32. Mark Potok, Luke Viscont, Barbara Frankel, and Nigel Holmes, The Geography of Hate, N.Y. Times, Nov. 25, 2007. The writers suggest that the September rally in Jena was not the start of a new social movement as civil rights activists hoped, "but a surprisingly broad and deep white backlash against the gains of black America." 33. Dr. Constantine, 44, is a professor of psychology and education who specializes in the study of how race and racial prejudice can affect clinical and educational interactions. Elissa Goatman, Noose Case Puts Focus on a Scholar of Race, N.Y. Times, Oct. 12, 2007. 34. Christopher Dunn, Hanging Nooses: Hateful Crime or Protected Speech, New York Law Journal, Oct. 29, 2007. §10.11 1. 408 U.S. 104 (1972).
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With regard to the anti-picketing ordinance, the Supreme Court, referring to its decision in Police Department of Chicago v. Mosley, 2 agreed that the ordinance was unconstitutional. In the Mosley case, the Court had held a virtually identical Chicago ordinance unconstitutional because it made an impermissible distinction between picketing over a labor dispute and other peaceful picketing. Grayned's conviction under the anti-picketing ordinance was therefore reversed. With regard to the anti-noise ordinance, however, the Court rejected appellant's claims that the ordinance was, on its face, both vague and overbroad, and therefore unconstitutional. Addressing itself first to the claim that the anti-noise ordinance was unconstitutionally vague, the Court noted that "[c]ondemned to the use of words, we can never expect mathematical certainty from our language," and that, while the specific words of Rockford's anti-noise ordinance "are marked by 'flexibility and reasonable breadth, rather than meticulous specificity' ... we think it clear what the ordinance as a whole prohibits." 3 In view of the Illinois Supreme Court's construction of what the Court apparently took to be a substantially similar phrase, the Court concluded "that the Supreme Court of Illinois would interpret the Rockford ordinance to prohibit only actual or imminent interference with the 'peace or good order' of the school." The Court then distinguished the cases of Cox v. Louisiana4 and Coates v. Cincinnati 5 on which Grayned had relied, stating that Rockford's anti-noise ordinance does not permit punishment for the expression of an unpopular point of view (as in Cox), and it contains no broad invitation to subjective or discriminatory enforcement (as in Coates). In the Court's view, the Rockford ordinance, unlike those involved in the Cox and Coates decisions, simply did not support any assertion of an unlimited power to prohibit or punish all "noises" and "diversions." Rather, as the Court emphasized, "[T]he vagueness of these terms, by themselves, is dispelled by the ordinance's requirements that (1) the 'noise or diversion' be actually incompatible with normal school activity; (2) there be a demonstrated causality between the disruption which occurs and the 'noise or diversion'; and (3) the acts be 'willfully' done." 6 In view of these qualifications, which had the effect of confining or properly restricting the exercise of police judgment which is "always" required in enforcement of such ordinances, the Court concluded that the City had "given fair warning as to what is prohibited" and that therefore, the ordinance was not impermissibly vague. 2. 408 U.S. 92 (1972). The challenge to the Chicago ordinance involved in the Mosley case was brought by a black who, for seven months prior to the passage of the ordinance, had been peacefully picketing a high school with a sign that read "Jones High School practices black discrimination. Jones High School has a black quota." 3. 408 U.S. at II 0. 4. In the Cox case, the Court held that a "breach of the peace" ordinance that had been construed by state courts to mean "to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet" was unconstitutional since, as construed, persons could be punished under the statute simply for expressing unpopular views. 5. 402 U.S. 611 (1971). The ordinance involved in the Coates case prohibited the sidewalk assembly of three or more persons who conducted themselves in any manner "annoying" to passersby. Since enforcement of the ordinance depended on the completely subjective judgment of police officers as to what constituted an "annoyance," the Court held that the ordinance was impermissibly vague. 6. 408 U.S. at 113.
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Turning to Grayned's contention that the anti-noise ordinance was unconstitutionally overbroad, because it "unduly [interfered] with First and Fourteenth Amendment rights to picket on a public sidewalk near a school," the Court made careful note of the fact that a government has no power to restrict its citizens' uses of public streets and parks for purposes of "assembly, communicating thoughts between [themselves], and discussing public questions" on the basis of the content of those discussions and communications. As the Court stated, "peaceful demonstrations in public places are protected by the First Amendment." 7 The Court went on to say, however, that its earlier cases had made "equally clear ... that reasonable 'time, place and manner' regulations may be necessary to further significant governmental interests, and are permitted." In determining the reasonableness of a particular governmental regulation, "[t]he crucial guestiQ!Lis.._ whether the manner of expression is basically incompatible with normal activity~ a particular place at a particular time ..:' Of particular relevance to the Court in answering this question was its earlier decision in the case of Tinker v. Des Moines Independent Community School District, 8 where it had held "that the Des Moines School District could not punish students for wearing black armbands to school in protest of the Vietnam War." The Court stated: ust as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it "materiall disrupts classwor or mvo ves su stantla 1sor er or mvasion of the rights of others "
Since the City's anti-noise ordinance was directed only at "[n]oisy demonstrations which disrupt or are incompatible with normal school activities"- specifically, at noisy demonstrations occurring "next to a school, while classes are in session" -and since the ordinance did not impose restrictions on noisy demonstrations occurring "at other places or other times" where, as the Court noted, "[s]uch expressive conduct may be constitutionally protected" from such restrictions, the Court held that the anti-noise ordinance was not invalid, despite the fact that its reach extended to picketing "that is neither violent nor physically obstructive."10 Hence, the Court affirmed Grayned's conviction under the anti-noise ordinance. Justice Douglas, who joined the Court's opinion insofar as it reversed Grayned's conviction under Rockford's anti-picketing ordinance, would also have reversed Grayned's conviction under the anti-noise ordinance, in view of the 7. Without elaborating at what point a demonstration could be said to "tum violent" -nor indeed, offering any guidelines for distinguishing between merely vigorous protests and violent demonstrations (or stating whether any distinction would be made on the basis of who was being violent-demonstrators or spectators)-the Court added that "[o]f course, where demonstrations tum violent, they lose their protected quality as expression under the First Amendment." [Emphasis supplied.] 8. 393 u.s. 503 (1969). 9. 408 U.S. at 118. 10. 408 U.S. at 120.
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fact that, although the dispute itself "doubtless disturbed the school," and the noise from the police officers' loudspeakers "was certainly a 'noise or diversion' in the meaning of the ordinance," there simply "was no evidence that [Grayned himself] was noisy or boisterous or rowdy." In Justice Douglas' view of the record, as expressed in his partial dissent, "the disruptive force loosened at this school was an issue dealing with race- an issue that is preeminently one for solution by First Amendment means ... and the entire picketing, including [Grayned's] part in it, was done in the best First Amendment tradition." 11 While student demonstrations around schools are not treated with as much suspicion as protest in and around churches, it is clear that demonstrations of this character are not favored by the Supreme Court.P On the other hand, the strong emotional component in racial issues almost guarantees that any protest involving this area will lead to noisy confrontations. Under the standards in the Grayned case. it is difficult to imagine how a meaningful protest can be mounted around a school protected by an ordinance of the type involved the.~ Even before the Supreme Court's decision in Grayned, black school protests received only limited protection from the courts. 13 Few would contend that violence and destruction of property can be protected by assertion of First Amendment rights. The difficulty is that even in peaceful protests, such as those in Gray ned and Tinker, there is a tendency by lower courts to look primarily to the actual impact of the protest activity, and to sanction disciplinary action whenever the protest in question results in disruptioQ. Thus, while Supreme Court standards seem to impose a heavier burden on school authorities, that is, the responsibility of showing that a rule entrenching on First Amendment rights is justified in the circumstances, lower courts tend to make no serious attempt to balance the students' right of expression against the interest of the state in preventing and punishing conduct that interferes with discipline. Nor is there the searching review of the challenged school rule needed to determine whether its enforcement, in fact, was intended to suppress speech rather than · protect against disorder. As schools across the country become more and more segregated, the opportunity to challenge racial inequality through protest is also becoming greatly restricted. For example, lower courts have applied Tinker differently to student expression through messages on their clothing, particularly T -shirts. 14 Some have looked at additional factors, such as a student's age, to justify suppression of 11. ld. at 124. (Douglas, J. dissenting, in part). 12. Through legislation or judicial interpretation of state constitutions, some states provide greater protection than the U.S. Constitution to encourage student speech. These states include Arkansas, California, Colorado, Iowa, Kansas, and Massachusetts. A New Jersey court found that although the U.S. Constitution would not protect the speech at issue, the New Jersey Constitution did. See Scott Andrew Felder, Stop the Presses: Censorship and the High School Journalist, 29 J.L. & Educ. 433, 458 (2000). 13. See, e.g., Jackson v. Ellington, 316 F. Supp. 1071 (W.D. Tenn. 1970) (approving, despite First Amendment protest rights, the use of statutes prohibiting absenting of children from school and contributing to the delinquency of a minor against parents who kept their children home to protest racial policies of the board of directors). 14. Clay Weisenberger, Constitution or Conformity: When the Shirt Hits the Fan in Public Schools, 29 J.L. & Educ. 51 (2000).
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15
speech. In addition, several cases have addressed whether schools can punish students for critical statements about school policies or student harassment over e-mail or through websites. 16 Supreme Court precedents have left lower courts with vague standards for evaluating student speech, often resulting in conflicting decisions, many of which simply defer to the decisions of school administrators. Regardless of state statutory or constitutional protections for students, on a daily basis school administrators use disciplinary power to silence student speech, especially if it is expressing views that may be deemed unpopular by mainstream society, even if the speech has little potential for disruption. Given this reality, it becomes more and more difficult to see how schools can become places that teach citizenship and respond to a concern by the Fifth Circuit in 1972: One of the great concerns of our time is that our young people, disillusioned by our political processes, are disengaging from political participation. It is most important that our young become convinced that our Constitution is a living reality, not parchment preserved under glass. 17
With
~
raging inequalities in our education system nationwide- inequalities that disproportionately impact racial minorities- it is difficult to see how protest can help achieve greater racial equality in schools when this arena is closing the door to all forms of political expression.
§10.11.1
Post-Tinker Cases: Leaving Freedom of Speech at the Schoolhouse Gate
In the three decades since Tinker, the courts have made it clear that students leave most of their constitutional rights at the schoolhouse gate. The judiciary's unquestioning acceptance of the need for deference to school authority leaves relatively little room for protecting student's constitutional rights. 18
In Tinker, the Supreme Court famously proclaimed that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Tinker majority found that high school students had the right to wear armbands to convey a political message protesting the Vietnam War, even if that message was offensive to the school administration. The Court explained that the, First Amendment prohibits schools from silencing student speech, unless thal speech would disrupt school activities .. Three themes emerge from Justice Fort3§' opinion: "the importance of protecting students' free speech rights, the need fgr 15. See Broussard v. School Bd. of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992); Mcintire v. Bethel lndep. Sch. Dist. No. 3, 804 F. Supp. 1415 (W.D. Okla. 1992); Pyle v. South Hadley Sch. Comm., 861 F. Supp. 157 (D. Mass. 1994). 16. Susan H. Kosse, Student Designed Home Web Pages: Does Title IX or the First Amendment Apply?, 43 Ariz. L. Rev. 905 (2001). 17. Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960 (5th Cir. 1972). 18. Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at the Schoolhouse Gates: What's Left of Tinker?, 48 Drake L. Rev. 527 (2000), at 530.
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Post-Tinker Cases: Leaving Freedom of Speech at the Schoolhouse Gate
§10.11.1
proof of significant disruption of school activities, and the role of the judiciary in mopitoring schools' decisions to ensure compliance with the Constitution. 19 Although Tinker has never been explicitly overturned, the Court has chipped away at it's holding, raising the question whether, and to what extent, the First Amendment protects student speech and protest. Indeed, in the three times since Tinker that the Court has addressed restrictions on student speech- Bethel School District No. 403 v. Fraser,Z0 Hazelwood School District v. Kuhlmeier,Z 1 and Morse v. Frederick22 - it has upheld the restrictions, based largely on the rationale in th~ Tinker dissent: the need for courts to defer to the decisions of school authorities. Lower courts have followed the Court's lead; "in the thirty years since Tinker, schools have won virtually every constitutional claim involving student§' rights,:_ (o ..)
A.
Silenced at a School Assembly: Bethel School District No. 403 v. Fraser
24
Fraser, a high school student, was punished for a "lewd" speech nominating a classmate at a school election assembly. The school suspended Fraser for three days and removed his name from a list of potential graduation speakers. Consequently, Fraser and his parents sued the school district, arguing it had violated his First Amendment right to free speech. Chief Justice Burger's majority opinion did not spell out what Fraser said in his speech, but characterized the speech as having inappropriate sexual innuendo. Burger explained that such sexual speech can be punished given the critical mission of schools to teach students appropriate behavior: "The determination of what manner of speech in the classroom or school assembly is inappropriate properly rests with the school board. " 25 Further, Burger distinguished this speech from the constitutionally protected speech in Tinker because a school has an obligation to protect students from sexually explicit and vulgar speech. Although Burger noted that students do not leave all of their First Amendment rights outside the school doors, he made clear that First Amendment rights of students in public schools "are not automatically coextensive with the rights of adults in other settings. " 26 His divergence from Tinker was explicit as he concluded his opinion with a quote from Justice Black's dissent in Tinker: "'I wish therefore, ... to disclaim any purpose ... to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.' " 27 Although it lacks a well-defined standard for when schools may restrict student speech, the decision has been read by lower courts to permit schools to restrict speech at "school-sponsored" events. 19. 20. 21. 22. 23. 24. 25. 26. 27.
Id. at 539. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Morse v. Frederick, 127 S. Ct. 2618 (2007). Chemerinsky, supra note 18, at 530. Bethel, supra note 20. Id. at 683. Id. at 682. Id. at 686. 647
+-
",.,
§10.11.1
Chapter 10.
The Parameters of Racial Protest
Justice Brennan, in his concurrence, did directly quote Fraser's speech, but he did not find it offensive.Z 8 Nevertheless, he agreed that the speech was not constitutionally protected because it failed a key Tinker factor: It was disruptive. Justice Stevens' dissent, on the other hand, states, "Frankly, my dear, I don't give a damn. " 29 He argued that the case made a big deal of nothing, and therefore Fraser's speech should be protected. B.
No Freedom for the School Press: Hazelwood School District v. Kuhlmeier 30
In Kuhlmeier, three journalism students writing for a school newspaper sued the school for pulling two articles prior to printing. The articles, which had teacher approval, discussed the pregnancies of three students and the impact of divorce on students at the school. The articles did not name any students. The principal removed the articles, however, out of concern that they would identify students, and because he thought they contained content inappropriate for younger students, and lacked a response from divorced parents. The Supreme Court upheld the principal's decision. Justice White, writing for the Court, deferred to the school's decision to determine what manner of speech is appropriate for a newspaper published as a part of the curriculum. Because the school newspaper was not a public forum, "school officials were entitled to regulate the content[] ... in any reasonable manner. " 31 White distinguished this case from Tinker: The question whether the First Amendment requires a school to tolerate particular student speech- the question that we addressed in Tinker- is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. 32
Echoing Fraser, White concluded that "the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges." 33 C.
More Tinkering: Morse v. Frederick 34
Morse v. Frederick held that schools can suppress student speech at a schoolsponsored or school-sanctioned event that advocates or promotes the use of illegal 28. 29. 30. 31.
ld. at 687, dissenting. Id. at 691. Kuhlmeier, supra note 21. Id. at 270. 32. Id. at 271. 33. Id. at 273. 34. Morse, supra note 22.
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§10.11.1
drugs? 5 The majority opinion, written by Chief Justice Roberts, found that a 14-foot banner stating "BONG HiTS 4 JESUS" did just that? 6 In January of 2002, the Olympic torch, on its way to the winter games in Salt Lake City, Utah, passed by Juneau-Douglas High School. Deborah Morse, the principal, permitted students to line up outside the school to watch the torch relay. As the torch and cameras passed, Frederick, a high school student, and a few friends unfurled a 14-foot banner with the words "BONG HiTS 4 JESUS." The students across the street could plainly read the sign. Morse immediately crossed the street and ordered the students to remove the banner. When Frederick refused, Morse confiscated the banner and suspended Frederick for 10 days? 7 When asked why he created the banner, Frederick explained that he wanted to get the attention of the cameras. In the majority opinion, Roberts outlined three points leading to the conclusion that the school did not violate Frederick's constitutional rights. 38 The first point is unquestioned: This is a case of student speech at a school-sponsored event. Viewing the torch was "sanctioned by the principal 'as an approved social event or class trip,' " and teachers and administrators supervised the students?9 The Court's second point is more contentious: The banner promotes illegal drug use. Although Roberts described the message on the banner as "cryptic," and he acknowledged that it could be interpreted in various ways- including to mean nothing at all- he agreed with Morse that the banner endorsed drug use. 40 Roberts noted that "the pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings." 41 For Roberts, the final point simply follows from the first two: Because the words advocate drug use, which is against school policy, they are not protected student speech. Roberts did state that this decision is not about silencing political speech, even advocacy for legalizing drugs. But the distinction between a political statement that drug use should be legal and a statement merely endorsing drug use is not entirely clear, especially since student protest (or any protest, for that matter) is not always couched in explicitly legal or political rhetoric. For an earlier generation of protesters, "fuck the draft" seemed more effective than "the draft should not be legal." Justice Alito, with Justice Kennedy in concurrence, viewed the Morse holding narrowly: "(a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on
35. 36. 37. served or 38. 2007. 39. 40. 41.
Id. Id. Id. at 2623. On appeal to the school superintendent, the suspension was reduced to time 8 days. See Martin Schwartz, Supreme Court Restricts Student Speech, N.Y.L.J., Oct. 16,
Morse, supra note 22, at 2624. Id. ld. at 2625.
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issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.' " 42 Justice Thomas advocated that the Court overturn Tinker. Looking at the evolution of public schools, he found that: "the Constitution does not afford students a right to free speech in public schools. " 43 Justice Breyer concurred in the judgment of the Court, arguing that the majority should not have addressed the First Amendment issue at all. The Court could have simply held that Morse was not liable for damages because her disciplinary action was rational under the qualified immunity standard. Deciding that issue would have allowed the Court "to avoid resolving the fractious underlying constitutional question" and "to avoid the risk of interpretations that are too broad or too narrow. " 44 Joined by Justices Ginsburg and Souter, Justice Stevens dissented, arguing that: "the school's interest in protecting its students from exposure to speech 'reasonably regarded as promoting illegal drug use' cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. 45 He views BONG HiTS 4 JESUS as "a nonsense message, not advocacy." 46 He also suggested that if the banner mentioned alcohol- also an illegal substance for high school studentsthe opinion would have been different. He finds it "hard to believe the Court would support punishing Frederick for flying a 'WINE SiPS 4 JESUS' banner-which could quite reasonably be construed as a protected religious message or as a proalcohol message. " 47 The only speech that the dissent would proscribe is speech that conforms with Tinker's standard- speech that "neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. " 48 He criticizes the majority for abdicating its "constitutional responsibility" by outright rejecting the "foundations of Tinker, because, in its view, the unusual importance of protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use. " 49 The recent student speech cases seem to reduce the Court's holding in Tinker to protecting a student's right to wear armbands to communicate antiwar political speech provided that no serious school disruption occurs. As the Court gives greater and greater deference to schools, and takes away the school assembly, school-sponsored activities and the school newspaper as forums for protest and speaking about unpopular ideas, it is hard to imagine where within the schoolhouse gates a student's constitutional right for free speech can be found. While none of these school cases raised racial issues, it should be noted that they undermine not only Tinker, but a much earlier case, discussed below, that provided constitutional
42. 43. 44. 45. 46. 47. 48. 49.
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Id. Id. Id. Id. ld. Id. Id. Id.
at 2636 (Alito concurring, joined by Kennedy). at 2634 (Thomas concurring). at 2640 (Breyer concurring in the judgment in part and dissenting in part). at 2643 (Stevens dissenting, joined by Ginsburg and Souter). at 2649. at 2650. at 2644. at 2646.
Post-Tinker Cases: Leaving Freedom of Speech at the Schoolhouse Gate
§10.11.2
protection to college students expelled for protesting segregated facilities in a state building. §1 0.11 .2
Racism Hypo: Protest Rights and Students
On March 26, 2003, a group of five high school seniors decided to make a political statement, to protest the war against Iraq. They all decided to wear matching shirts depicting the face of President George Bush with the words "International Terrorist" written below the picture. They attended a nationally recognized magnet school in Manhattan and were all well known as part of the top 10 percent of their graduating class. The students attended classes as usual from 8:30A.M. to 11:45 A.M. without any reaction from students or teachers about the message on their shirts. As they were eating lunch in the school cafeteria, they were approached by Vice Principal Cowers, who requested that they follow him to the principal's office. Principal Jane Little explained that the students had a choice. "You can turn your T-shirts inside out and attend classes for the rest of the day or refuse to change your shirt and go home." One student, Claudia Ramirez, ranked second in her class, asked why they had to remove the shirts. The vice principal responded immediately that the T-shirt promoted terrorism, especially at a time when the entire nation was under high alert, code orange. Jessica piped up that the shirts were just emphasizing a message of peace during an important historical moment. The principal answered her by explaining that there was a Supreme Court case called Tinker v. Des Moines that permitted school administrators to restrict students' ability to express themselves in the classroom. Another student, James Bolden, who was an aspiring constitutional lawyer, responded by saying, "You are summarizing the dissent in Tinker. We are no different from the students wearing the black armbands to protest the Vietnam War whose punishment was overturned by the court. Tinker actually states that 'students or teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" Principal Little snapped in response that they all had a simple choice-turn the T-shirts inside out or leave. All of the students went home for the remainder of the day, but they decided not to wear the shirts again. They did not want to risk interrupting their education or jeopardizing graduation awards. The students' T-shirts, however, became the talk of the school, partially sparked by the administration's harsh response. Many students commented that they supported the students. The students were interviewed for an article in the school newspaper, even though the principal would not comment. Some teachers used the example as a teaching moment to discuss the T-shirts, the school's reaction, and the curtailing of constitutional rights, especially during times of war. The message and the spotlight on these students, however, infuriated a student group called Patriotic Students in Action (PSIA). PSIA, which was founded in response to the attacks on September 11, believed that the T-shirt-wearing students were traitors during a time requiring extreme American vigilance. The 40-member group decided to respond by wearing identical flag T -shirts that read, "United We Stand, Divided We Fall" only three weeks after the original political statement. The administration did not respond at all.
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Chapter 10. The Parameters of Racial Protest
The unequal treatment did not go unnoticed by the anti-war students. Increasing their ranks by 10, 15 students decided to wear the "International Terrorist" T-shirts one week later. Within an hour into the school day, the administration responded without much discussion. The 10 new students were sent home with a warning not to return wearing the T-shirts; the five original offenders were suspended for three days and stripped of all graduation privileges. A memo from the principal was distributed to all teachers forbidding them from discussing the matter with students during or outside of class time. Represented by the local ACLU, the five honor students responded by filing a lawsuit against the high school officials for violating the First Amendment rights of the students. The brief argued that the "school could have ensured a safe school environment without banning the students' political speech." Citing a number of recent circuit cases, the brief described the administration's response as "a rash decision, which was plainly unconstitutional viewpoint discrimination and did not provide the students their right to due process." The school, represented by counsel for the school board, responded that the First Amendment rights of high school students are not co-extensive with those of adults. Citing Tinker, they argued that schools are legally permitted to take action to avoid "a significant fear of disruption."
§10.11.3
School Speech and the Internet
The hypothetical below in § 10.11.4 is based on a student speech scenario involving the Internet. Dozens of state and federal circuit courts have addressed the boundaries of student speech on the internet both inside and outside the classroom. Their outcomes are unpredictable, as highlighted by a few recent decisions where students challenged their schools' disciplinary action as a violation of their First Amendment rights: 50 •
•
J.S. v. Bethlehem Area School District51 - A student was disciplined for creating a website using his home computer that used defamatory and offensive comments toward a teacher and the school principal. Overturning the lower court, the Pennsylvania Supreme Court, applying both Fraser and Tinker, found no constitutional barrier to the school's disciplinary action. The website, which the court said had a nexus to the school and could be considered oncampus speech, was not protected speech because it contained lewd language and caused disruption in that the teacher was unable to complete the school year. Beussick v. Woodland R-IV School District52 - A high school student was suspended for creating a website that used vulgar language to criticize school administrators. No evidence showed that he used school resources to make the website. Finding that the speech was not on-campus, the court applied Tinker and found the speech protected because it did not materially upset school activities.
50. For a more extensive analysis of the first four cases, see Sandy Li, The Need for a New, Uniform Standard: The Continued Threat to Internet-Related Student Speech, 26 Loy. L.A. Entmt. L. Rev. 65 (2005). 51. J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002). 52. Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998).
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School Speech and the Internet
•
•
•
•
§10.11.4
Emmett v. Kent School District No. 415 53 - A high school student created a website prompted by his critical writing class where he began writing fake obituaries for his friends and asking others to vote on who would get the next obituary. The site was reported in the news and discussed in class. The district court held that the case stood outside Supreme Court precedent because it was not school speech. The website was not viewed as a serious threat and was therefore constitutionally protected. Mahaffey ex. rei Mahaffey v. Aldrich 54 - Two students created a website for 'fun' that listed people they wished would die. The district court did not apply Tinker because the speech was determined to be off-campus speech and the students had a constitutional right to the speech because a reasonable person would not find the website to be a true threat. Layshock ex rei. Layschock v. Hermitage School District55 -A student was punished for creating a website that parodied the school principal. According to the court, the website, although created at home, became on-campus speech when the student showed it to friends at school. Nevertheless, the court held that the school violated the student's First Amendment right to speak because there was no connection between the website and a substantial disruption of the school environment. Wisniewski v. Board of Education of Weedsport Central School District56 While using his parents' home computer, an eighth-grade student sent his friends an instant message over the internet with "a small drawing crudely, but clearly, suggesting that a named teacher should be shot and killed." The picture could be viewed for three weeks. School authorities learned of the picture, which is an icon on instant messenger, and suspended the eighthgrader, interviewed other students, and replaced the teacher named in the message. Even though the initial speech was made at home, the court found that sharing the picture with friends created school speech that caused disruption of the school environment that was foreseeable. The student's claim against the school was dismissed.
As these cases indicate, courts have disagreed about what speech constitutes in-school speech and also what standard to apply. Using the Internet for hate speech against students would add another layer of complexity to the court's analysis. It is likely that the Supreme Court will have to address this issue to create greater uniformity of lower courts throughout the country. In discussing the hypothetical below, it may be useful to look at the full opinions of these and other Internet speech cases to help frame your argument.
§1 0.11.4
Racism Hypo: School Racism and the Internet
A teacher of a high school computer course presented students with an assignment to create their own website, expressing personal views that were 53. Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000). 54. Mahaffey ex. rei. Mahaffey v. Aldrich, 236 F. Supp. 2d 779 (E.D. Mich. 2002). 55. Layshock ex rel. Layshock v. Hermitage School Dist., 496 F. Supp. 2d 587 (W.D. Pa. 2007). 56. Wisniewski v. Bd. ofEduc. of Weedsport Cent. Sch. Dist., 44 F.3d 34 (C.A. 2 N.Y. 2007).
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Chapter 10.
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important to them. The class had spent the entire semester learning basic HTML programming and creating individual webpages. For this final assignment, the students could work on the project at home or after school in the computer lab. One 15-year-old student, Theodore Johnson, was a computer wiz. He worked for many hours on his website at school and home, and posted it on his private Internet address, www.patriotkid.net. His Web site displayed his opinion that the United States needed to take terrorism seriously. He described the need for restrictions on our liberty to "fight the evil of terrorism, especially as espoused through the teaching of Islam." He chronicled the United States' actions toward Arabs since September 11, focusing on the need for increased detention and use of torture to "get them to talk." The Web site featured actual Arab and Muslim students in the school who he felt were "probably engaged in terrorist plans and warned" other students to "keep a close eye on them and be ready to act in your country's name." The site also had links to many white supremacist organizations. Theo then decided to make his website interactive. On a Friday afternoon, before the project was due, he distributed his website address to other students in the class so that they could add their comments and viewpoints. Over the weekend more than a dozen students posted additional derogatory remarks and expanded their attacks to other racial minority students in the school. One student wrote, "The Black Students Honor Society is a joke. It lets blacks get away with being lazy and still getting credit. Just look at Michelle Dodson." The site became out of control before the administration got wind of it. The following Monday, parents of some of the targeted students came to speak to the principal. They demanded that the website be shut down, that the student fail the computer class, and that he be suspended. Looking at the website with the parents, the principal was stunned. He promised the parents the school would do something about it. Without contacting the school's general counsel, the principal called Theo to his office and expressed his concern about the website. He demanded that he shut down the website and prepare an entirely new one for the final project. The principal contacted Thee's parents to tell him that he would be suspended for two weeks. Theo, represented by the ACLU, argued that the school infringed on his constitutional right to free speech. The public high school, represented by its general counsel, responded that such disciplinary action was permissible restriction on speech that would cause serious disruption of the school day.
§10.12
FAIR HEARINGS FOR STUDENT PROTESTORS
The major breakthrough from the traditional concept that students attending public colleges were not entitled to due process rights prior to the imposition of disciplinary action came in Dixon v. Alabama State Board of Education. 1
§10.12
654
1. 294 F.2d 150 (5th Cir. 1961).
Fair Hearings for Student Protestors
§10.12
The six plaintiffs were expelled from Alabama State College, a state-owned institution, without notice or hearing. Between February 25 and March 1, 1960, black students at the college had engaged in a series of civil rights demonstrations, including a sit-in, a march, and a sing-in. All of the plaintiffs had participated in at least one of these events, but, in instructing the college president to expel them, the Board of Education did not assign specific grounds for its action. School regulations authorized expulsion for willful disobedience of school rules, failure to meet academic standards, and conduct "prejudicial to the school." The plaintiffs brought an action for injunctive relief. The district court dismissed the complaint, and the court of appeals reversed, holding that due process required that a student at a state college or university not be expelled without notice and hearing. The court began with the premise that " [w ]henever a governmental body acts to injure an individual, the Constitution requires that the act be consonant with due process of law. The minimum procedural requirements necessary to satisfy due process depend upon the circumstances and the interests of the parties involved." 2 In the court's view, the balance weighed heavily in favor of plaintiffs. Earlier cases holding that college students were not entitled to due process before expulsion were distinguished, on the grounds that either they involved a private institution, where the relationship between the student and the school was one of contract and where procedural rights had been waived, or there was a question whether the hearing that had been provided was adequate. The court concluded by setting forth the standards regarding notice and hearing that state colleges would be required to meet. Students should be apprised of "the specific charges and grounds which, if proved, would justify expulsion under the regulations of the Board of Education." Although the type of hearing required would depend upon the circumstances of each case, more than an "informal interview" would be necessary where misconduct was charged. In such circumstances, a hearing which gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required .... Nevertheless, the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college [in maintaining an atmosphere consonant with its educational functions]. 3
The "rudiments of an adversary proceeding" were to include advance notice of the names of witnesses against the student and a statement of the facts to which each testifies; an opportunity to appear before the board, or at least before an administrative official, and present a defense by way of oral testimony or affidavits of witnesses; and a statement of the board's findings and decision. 4 2. 294 F.2d at 155. 3. Id. at 159. 4. Dixon was preceded by a long line of cases that denied procedural rights to students. Several theories were advanced in support of such holdings: (1) Schools, whether public or private, stand in loco parentis and thus have inherent authority to discipline. (2) The relationship between a student and a privately owned school is a matter of contract, and the school may condition admission upon a
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Representative of the narrower reading given to Dixon is Scott v. Alabama Board of Education. 5 This case involved students from the same Alabama State College where expulsions of protesting students in 1960 were reversed by the Dixon case. Almost a decade later, Alabama State College students were still being expelled for demonstrations at the college. They filed suit, alleging violation of both due process and First Amendment rights. The college officials filed a counterclaim, charging that the students had (1) refused to quit the campus after being dismissed or suspended as students; (2) intimidated students desiring to attend classes and prevented their attendance at classes; (3) intimidated faculty members desiring to conduct classes; (4) damaged college property; and (5) otherwise disrupted the orderly operation of Alabama State College as an educational institution. 6 Applying the standard set in Dixon, the district court found the school's action justified. Considering the plaintiffs' contention that the charges were vague, the court agreed that some of the charges lacked the specificity required to enable a student to adequately prepare defenses against them, but felt that certain other charges, "when viewed in the circumstances of the case, make quite clear the basis upon which the college proposes to take disciplinary action." It rejected plaintiffs' argument that one vague charge, like one bad apple, spoils the entire barrel, holding that Dixon requires only the rudimentary elements of fair play. Plaintiffs challenged the impartiality of the committee which heard the evidence, but the court found that "this Committee was selected in a reasonable fashion considering the emotional circumstances which tended to render nearly everyone at the college at least mildly partisan." Turning to the First Amendment, the court took the view that, if a student was found guilty of a specific charge of conduct not protected by the First Amendment, his suspension or dismissal could stand even though activities in other charges might be protected. A demonstration including the takeover of the college dining hall was held not protected. It was not symbolic speech, and did not achieve protected status simply because it was largely peaceful and nonviolent and involved little if any destruction of college property. In entering a broad injunction against further demonstrations, the court said: There seems to be a tendency in this country- and it is especially prevalent among students- toward the view that if one only believes strongly enough that his cause is promise to abide by school regulations and upon waiver, express or implied, of procedural rights. (3) Education is a privilege, not a right, and therefore due process requirements do not apply, even in the case of a student at a state-owned or state-supported school. Dixon was compatible, however, with later Supreme Court decisions that have discredited the privilege-right distinction and given wider application to due process requirements. In the school discipline cases that followed, Dixon was frequently taken as the starting point. The Dixon decision represents another instance where blacks, using the courts to combat racial discrimination, have established new precedents that strengthen the rights of all citizens- in this case, students who traditionally were powerless to defend against arbitrary and even malicious actions of school officials. The issue remains, though, of whether the procedural rights found in Dixon can be translated into substantive value for students, in cases where protest activity is deemed disruptive by school officials whose broad authority to discipline students is not directly limited by the Dixon case. 5. 300 F. Supp. 163 (M.D. Ala. 1969). 6. Id. at 165.
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Fair Hearings for Student Protestors
§10.12
right, then one may use in advancing that cause any means that seem effective at the moment, whether they are lawful or unlawful and whether or not they are consistent with the interests of others. The law, of course, cannot and does not take that position, and those who do must not expect to receive substantive protection from the law; to the contrary, they must expect to be punished when they violate laws and college regulations which are part of a system designed to protect the rights and interests of all?
Judge Johnson, who decided the Scott case, undercut the gains in due process won by students in Dixon; a decision which reversed Judge Johnson's dismissal of the protesters' suit. By finding that if some ofthe several charges were sufficiently clear, all charges were not invalidly vague, and by asserting that the review committee was fairly selected, "considering the emotional circumstances" rendering nearly everyone on campus "mildly partisan," and finally by holding that the students facing expulsion were responsible for the consequences of their attorney's decision to boycott the hearing, Judge Johnson in effect returned to school authorities virtually all the discretion they exercised in disciplinary matters prior to the Dixon precedent. His comments do raise a serious question as to the extent that the whole concept of "fair hearing" turns on the presence of an impartial hearing body, i.e., a tribunal removed sufficiently from direct interest in the outcome so that neither party can reasonably charge bias. One might argue that a truly impartial body is more important in a student disciplinary hearing than in a criminal trial. In the latter, the jury is usually limited to determining the defendant's guilt; in the student disciplinary hearing, the tribunal usually both determines guilt and fixes the penalty. At neither phase of the proceeding is a tribunal dominated by college administrators and faculty likely to give much weight to student arguments that the actions or inactions of college officials served as a provocation for the student demonstrations. Finally, a panel made up of college-affiliated personnel is likely to have an understandably strong vested interest in peace and order on the campus. Considering the fact discussed above, that First Amendment standards in Tinker tend to provide protection only to those protesters whose activities don't upset anyone, and keeping in mind that racial issues in this society tend to be inherently upsetting, campus protests, even with the protection of Dixon, tend to resemble a form of "ultrahazardous activity." Scott didn't require much for a hearing body to be deemed "impartial." In Jenkins v. Louisiana State Board of Education, the Fifth Circuit held that students would have to demonstrate that proceedings had actually been biased in order to prove that the hearing body was not "impartia1." 8 The hearing body in Jenkins consisted of people appointed by the university president, one of the main witnesses against the Jenkins students. Yet this was found insufficient to support the argument that the hearing body was partial. An interesting parallel is to be found between Professor Fried's assessment of protest movements (from §10.2) and Judge Johnson's pronouncement on protests in Scott v. Alabama Board of Education. Judge Johnson implies that something is 7. ld. at 168. 8. 506 F.2d 992, 1003-1004 (5th Cir. 1975).
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intrinsically coercive about unlawful protests. His words appear to leave room for "lawful protest." It is not clear, however, how "lawful protest" could ever meaningfully challenge the law itself. Judge Johnson's rhetoric positions the law as fundamentally neutral; the law sees to it that an individual's actions are "consistent with the interest of others." In an ironic twist, however, Scott eviscerates the due process requirements created by Dixon. In effect, Scott denies the protestors what is supposed to be the law's hallmark: due process. That is, in effect, to deny the law's benefit to those who challenge the social order it consolidates.
§10.13
PROTEST RIGHTS IN RESIDENTIAL AREAS
The argument for exempting residential areas from the ambit of public places where First Amendment free speech rights prevail is precisely why protests in such areas are likely to be both effective and unpopular. In the PACE v. Doorley case, 1 the plaintiff, the Reverend James Ford, together with seven members of his group, picketed the residence of Abraham Konoff, carrying signs which read, "Mr. Konoff fix your property on Dudley Street." Other signs contained pictures of the Dudley Street property, showing what were termed violations of the housing code. The group was advised that their action was in violation of an anti-residentialpicketing ordinance, and they were ordered to disperse. Fearing arrest and prosecution, the plaintiffs departed. Then, in a suit against Mayor Joseph A. Doorley, plaintiffs challenged the validity of the ordinance in federal court. The ordinance prohibited picketing "before or about the residence or dwelling of any individual," but not "lawful picketing during a labor dispute at the place of employment" involved, or assembly on any premises "commonly used for the discussion of subjects of general interest." The district court declared the ordinance constitutional and not in violation of either First or Fourteenth Amendments. Rather, the court found that the ordinance reflects a legislative judgment that residential picketing is meant to harass and cause emotional stress, destroying tranquility and the privacy of the home. The court concluded that residential picketing is not a conventional means for the exercise of First Amendment rights. "On the contrary, it is an instrument of harassment and oppression, pregnant with 'physical intimidation and coercion.' ... I find this undemocratic and violative of constitutional protection belonging to all citizens- innocent or otherwise." Concerning the plaintiffs' equal protection argument, growing out of the ordinance's exemption of picketing during labor disputes, the court stated that "such exemption is necessary so as not to deny an employee the right of picketing at the subject matter of his dispute." The court found that the home is protected unless it is a place of employment. §10.13 1. People Acting Through Community Effort (PACE) v. Doorley, 338 F. Supp. 574 (D.R.I. 1972).
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On appeal, the Doorley decision was reversed. 2 Without reaching the question of whether residential picketing would have been constitutionally protected in the absence of the discriminatory clause in the ordinance exempting labor picketing, the court found the labor exemption in the ordinance a fatal defect, citing both Police Dept. of Chicago v. Mosley and Grayned v. City of Rockford. 3 Inveighing against the interference with privacy that occurs when protesters seek out public figures at their homes rather than at their offices is not a concern felt only at the district court level. Two Supreme Court liberals, Justices Black and Douglas, admonished state officials that the First Amendment had not rendered them powerless to protect against protest demonstrations conducted whenever and however they pleased. If this were the case, Justice Black wrote: Homes, the sacred retreat to which families repair for their privacy and their daily way of living, would have to have their doors thrown open to all who desired to convert the occupants to new views, new morals, and a new way of life. Men and women who hold public office would be compelled, simply because they did hold public office, to lose the comforts and privacy of an unpicketed home. I believe that our Constitution, written for the ages, to endure except as changed in the manner it provides, did not create a government with such monumental weaknesses. Speech and press are, of course, to be free, so that public matters can be discussed with impunity. But picketing and demonstrating can be regulated like other conduct of men. I believe that the homes of men, sometimes the last citadel of the tired, the weary and the sick, can be protected by government from noisy, marching, tramping, threatening picketers and demonstrators bent on filling the minds of men, women, and children with fears of the unknown. 4
The motivation for this display of constitutional conservatism was the usual stumbling block for Justice Black's liberalism: blacks who refused to follow his admonition that in seeking redress for racial injustices, their "constitutional and statutory rights have to be protected by the courts .... " 5 In this instance, black humorist and advocate Dick Gregory demanded that Chicago mayor Richard Daley seek the ouster of the Superintendent of Chicago's public schools. Gregory led a march that first picketed the Mayor's office, and then proceeded to Daley's home five miles away. Arriving about 8 P.M., the demonstrators, with the police and an Assistant City Attorney looking on, began marching around and around near the Mayor's home. Neighborhood spectators gathered and the crowd's "language and conduct" toward the protesters as described in Justice Black's concurring opinion, became "rougher and tougher." The record shows that the police did all they could to maintain order, and that the protesters maintained their decorum in the face of jeers, insults, and assaults with rocks and eggs. Finally, about 9:30P.M., fearful that the ever more threatening crowd could not be contained, the police asked Gregory and his marchers to leave the area. They refused and were arrested and convicted of disorderly conduct. The Supreme Court reversed.
2. 3. 4. 5.
468 F.2d 1143 (1st Cir. 1972). See Comment, Picketers at the Doorstep, 9 Harv. C.R.-C.L. L. Rev. 95 (1974). Gregory v. City of Chicago, 394 U.S. 111, 125 (1969). Cox v. Louisiana, 879 U.S. 536, 584 (1965) (dissenting).
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Without questioning police motives, the Supreme Court held that the convictions violated due process in that they were "totally devoid of evidentiary support." The Court also found that the trial judge's charge permitted the jury to convict for acts clearly entitled to First Amendment protection, and that this independently required reversal. 6 In the majority opinion, Chief Justice Warren had described Gregory as a "simple case" because the record contained no indication that the protester-petitioners had been disorderly, but Justice Black disagreed. In his concurring opinion, in which Justice Douglas joined, Justice Black viewed the case as "highly important" requiring more detailed consideration than given it by the majority's opinion, and posing the dilemma of whether the country can both protect the constitutional rights to protest racial injustice and maintain peace and order. In noting that the Gregory demonstrators themselves had not been unruly or disorderly, Justice Black said [t]he so-called "diversion tending to a breach of the peace" here was limited entirely and exclusively to the fact that when the policeman in charge of the special police detail concluded that the hecklers observing the march were dangerously close to rioting and that the demonstrators and others were likely to be engulfed in that riot, he ordered Gregory and his demonstrators to leave, and Gregory- standing on what he deemed to be his constitutional rights-refused to do so. 7
On the basis of these facts, Justice Black was led "unerringly" to the conclusion that: ... when groups with diametrically opposed, deep-seated views are permitted to air their emotional grievances, side by side, on city streets, tranquility and order cannot be maintained even by the joint efforts of the finest and best officers and of those who desire to be the most law-abiding protestors of their grievances. It is because of this truth, and a desire both to promote order and to safeguard First Amendment freedoms, that this Court has repeatedly warned States and governmental units that they cannot regulate conduct connected with these freedoms through use of sweeping, dragnet statutes that may, because of vagueness, jeopardize these freedoms. In those cases, however, we have been careful to point out that the Constitution does not bar enactment of laws regulating conduct, even though connected with speech, press, assembly, and petition, if such laws specifically bar only the conduct deemed obnoxious and are carefully and narrowly aimed at that forbidden conduct. 8
Specifically, Justice Black noted that nothing in the Constitution prevented either state or local governments from enacting laws designed "to protect the 6. Gregory, supra note 4, at 112. The Chicago disorderly conduct ordinance under which Gregory and his fellow demonstrators had been convicted provided that "[a]ll persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city; all persons who shall collect in bodies or crowds for unlawful purposes, or for any purpose, to the annoyance or disturbance of other persons; ... shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense." Municipal Code of Chicago, Sec. 193-1. 7. ld. at 120. 8. Id. at 117-118 (emphasis added).
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public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their function, such as courts, libraries, schools, and hospitals." Here, neither the state legislature nor the Chicago city council had enacted any narrowly drawn laws forbidding disruptive demonstrations in residential areas: As a result, the petitioners' conduct could properly be deemed "disorderly" only if the policeman's order to disperse was considered "a law which the petitioners were bound to obey at their peril." To hold that the policeman's order constituted such a law would, however, run contrary to the nation's democratic system of government; as Justice Black stated, "lawmaking is not entrusted to the moment-to-moment judgment of the policeman on his beat. Laws, that is valid laws, are to be made by representatives chosen to make laws for the future, not by police officers whose duty is to enforce laws already enacted and to make arrests only for conduct already made criminal." Since the First Amendment freedoms here involved had been impermissibly subjected "to such a clumsy and unwieldy weapon" -that is, to the police officer's unfettered and arbitrary discretion- Justice Black concurred in the reversal of the petitioners' convictions. Having stated what police may not do, it is not the Court's responsibility to suggest how a state legislature or city council should draft "narrowly-drawn laws forbidding disruptive demonstrations in residential areas." To ban all protests in residential neighborhoods raises the equal protection problem with federal labor law provisions that defeated the anti-picketing ordinance in the PACE v. Doorley case. On the other hand, a law defining a "disruptive disturbance" as one where hostile spectators threaten to get out of control provides those opposed to the protest aims with a potential statutory "heckler's veto" exercisable by violent actions for which the protesters, unless they cease protesting, can be held criminally liable. 9 Notions of the sanctity of the home inform judicial anxiety about protecting protestors. The majority opinion in Gregory v. City of Chicago deftly sidestepped the profound limitations that inhere in the Court's protest-law jurisprudence. Justice Black's concurring opinion, however, reveals the limitations quite clearly. The way in which Justice Black characterizes private space resonates with language deployed by the Supreme Court in its Brown v. Louisiana opinion. Justice Black characterizes one's residence as a place of "tranquility" and peace; it is, he says, a place to take refuge from "threatening conduct" and "the hurly-burly of the outside .... political world." In a rhetorical gesture evocative of Brown, Justice Black asserted a link among homes, libraries, schools, and so on. Protest and protestors, 9. "Heckler's veto" is how Professor Harry Kalven referred to this problem. See The Negro and the First Amendment 140-145 (1965). Professor Laurence Tribe, in reviewing the authorities, observes several recurring themes in the Court's decisions on the issue: (l) speakers can't be silenced if their identity as blacks seeking service in facilities reserved for whites is the primary factor offered to justify a fear that audience violence is imminent; (2) speech may not be suppressed if reasonable crowd control techniques can be used to prevent or curb spectator violence; and (3) where such techniques cannot curb threatened violence, government authorities may suppress otherwise constitutionally protected speech. Laurence Tribe, American Constitutional Law 621-622 (1978).
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on the other hand, are equated with "burly-burly" and "threatening conduct." Notions of political "burly-burly" during the mid- to late-1960s, of course, were often racially inflected. By insisting upon the insularity of private space, Black's concurrence foreclosed consideration of the extent to which the "peace" and "tranquility" afforded by a particular private space functions to ensure racist exclusion. As in Brown, Black's concurrence in Gregory seems to limit the capacity of a protest to directly challenge practices that transpire in tranquil "private space." Unfortunately, it is often the case in our society that one's capacity to feel "peace" and "tranquility" in a particular space is predicated upon the systematic exclusion of others, of those not like oneself, from that space. It would seem that part of what antiracist protests seek to do is to challenge not only the materiality of racist exclusion, but the structure of "comfort" underguided by it. Insisting upon a rigid privatepublic dichotomy effectively shields the structure of comfort from scrutiny or interrogation. In the sit-in cases, the Court rejected state arguments that the very presence of blacks in all-white facilities was a provocation to violence. 10 Assuming a continuing sensitivity to spectator anger aroused mainly because blacks are protesting racial injustice adds to the difficulty of drafting a valid anti-disruptive demonstration law. Injunctions against residential protests present constitutional problems of their own. In Organization for a Better Austin v. Keefe, 11 a state court had granted the motion of a real estate broker for an order enjoining a racially integrated community organization from further distributions of leaflets charging the broker with "block-busting" and "panic peddling"; the leaflets had been distributed throughout the Chicago suburb in which the broker lived. The state court found that the organization's leafletting activities invaded the realtor's right of privacy, and were coercive and intimidating rather than informative. The Supreme Court disagreed, finding the leafletting within the organization's First Amendment right to freedom of expression, and further finding that issuance of the injunction constituted an unjustified prior restraint. According to the Court, the Organization's members "were engaged openly and vigorously in making the public aware of [Keefe's] real estate practices," and although their tactics may have been offensive to him and to others, "so long as the means [were] peaceful, the communication need not meet standards of acceptability." The Court further noted that no prior decisions supported "the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court.'" 2 An Illinois statute prohibiting residential picketing was struck down by the Supreme Court in Carey v. Brown. 13 The Court held that the statute was "constitutionally indistinguishable" from the one invalidated in Police Department of Chicago v. Mosley 14 and that by exempting picketing involving a labor dispute, it impermissibly discriminated 10. 11. 12. 13. 14.
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See, e.g., Garner v. Louisiana, 368 U.S. 157 (1961). 402 u.s. 415 (1971). ld.at419. 447 U.S. 455 (1980), aff'g Brown v. Scott, 602 F.2d 791 (1979). 408 U.S. 92 (1972). The Illinois provisions involved were Ill. Rev. Stat., ch. 38, §21.1-2.
Protest Rights in Residential Areas
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between lawful and unlawful conduct based upon the content of the demonstrator's communication. The controversy arose when members of the Committee Against Racism participated in a peaceful demonstration on the public sidewalk in front of the home of Chicago Mayor Michael Bilandic to protest his failure to support the busing of school children to achieve integration. The picketers were arrested and charged with unlawful residential picketing in violation of Illinois statutes. 15 Though similar statutes have consistently been overturned, 16 it is important to note that the cases do not support any substantive right to picket or demonstrate in residential areas. In the Carey opinion the Supreme Court cautions, "[ w]e are not to be understood to imply, however, that residential picketing is beyond the reach of uniform and nondiscriminatory regulation." 17 The opinion goes on to discuss the state's high interest in protecting the well-being, tranquility, and privacy of the home. But as with earlier reassurances of this kind, 18 the Court provided no guidelines as to how all residential picketing might be banned without violating federal statutes authorizing picketing when a labor dispute is involved. Other groups, however, have not looked for guidance before claiming constitutional authority for protests that transform the free speech shield into a sword of intimidation through terror. The governing body of Skokie, Illinois, in an effort to avoid spectator intimidation and possible violence, sought an injunction to restrain the defendant, a "neo-Nazi" organization, from conducting a demonstration in that town. 19 Skokie had a population of some 70,000 people, of whom over 40,000 were Jewish; included within the town's Jewish population were "hundreds of persons" who had survived Nazi concentration camps and "many thousands" whose families and close relatives had been murdered by Nazis. In view of these and other facts, the circuit court of Cook County issued a decree that enjoined the defendants from engaging in any of the following acts within the village of Skokie: Marching, walking or parading in the uniform of the National Socialist Party of America; Marching, walking or parading or otherwise displaying the swastika on or off their person; Distributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion.
On appeal, the appellate court of Illinois upheld only that portion of the injunction decree which prohibited the wearing or display of swastikas, holding that such display fell within the "fighting words" exception to free speech. The Illinois Supreme Court rejected the theory that the display or wearing of swastikas in connection with the defendants' proposed demonstration constituted "fighting words." Relying heavily upon the U.S. Supreme Court's decision in Cohen v. California, 20 the Illinois court held that "use of the swastika is a symbolic 15. 447 U.S. at 460. 16. See also People Acting Through Community Effort (PACE) v. Doorley, 468 F.2d 1143 (1st Cir. 1972). 17. 447 U.S. at 466. 18. See Gregory v. City of Chicago, 394 U.S. Ill (1969). 19. Village of Skokie v. National Socialist Party of Am., 69 Ill. 2d 605, 373 N.E.2d 21 (1978). 20. 403 U.S. 15 (1971). 663
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form of free speech entitled to first amendment protections." In addition, the court rejected the plaintiffs' alternative argument that "the swastika, while not representing fighting words, is nevertheless so offensive and peace-threatening to the public that its display can be enjoined." As the court stated, the possibility that such display might provoke a violent reaction by spectators did not, under the decisions of the U.S. Supreme Court, "justify enjoining defendants' speech"; rather, under Cohen and Erznoznik, 21 the burden was placed upon the viewers to "avoid further bombardment." Hence, the court held that that portion of the appellate court's decision enjoining the defendants from displaying or wearing the swastika must be reversed. The remainder of the appellate court's opinion was affirmed. Not satisfied in their efforts to utilize First Amendment doctrine gained by civil rights groups, anti-abortion protesters, in their attempt to seek the moral high ground on the abortion issue, have tried to link their protests to the civil rights movement. Thus, activists such as Operation Rescue, an anti-abortion group known for its willingness to use threats, intimidation, and violence in order to get its message across, have invoked the name of Dr. Martin Luther King to justify their lawbreaking activities. 22 Pro-choice activists argue that the actions of antiabortion protesters are antithetical to the goals of Dr. King and the civil rights movement. Former state senator and civil rights activist Julian Bond said, "Civil rights tried to expand life for everyone. These people [such as Operation Rescue members] want to restrict life for women." 23 In Frisby v. Schultz,Z4 the Court upheld a municipal ordinance prohibiting picketing before or about the residence of any individual against a challenge brought by "pro-life" protestors who sought to picket on a public street outside the residence of a doctor who allegedly performed abortions. The Court concluded that the ordinance did not ban all picketing in residential areas, but prohibited only focused picketing taking place solely in front of a particular residence. The Court further held that the ordinance did not violate the First Amendment because it was narrowly tailored to serve the significant governmental interest of protecting residential privacy.
§10.14 PROTECTING PATIENTS OR SILENCING UNWANTED SPEECH: RESTRICTING PROTEST ACTIVITIES OUTSIDE HEALTH FACILITIES
Between 1986 and 2000, over 3,000 incidents of violence were linked to antiabortion protests outside of clinics, including "murder, arson, bombing,
21. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). 22. See, e.g., Operation Rescue: Soldier in a "Holy War" on Abortion, L.A. Times, Mar. 17, 1989, at 1, col. 1. 23. Id. See also Pro-Lifers Claim King as Model, Wash. Times, Aug. 16, 1991, at A3 (leaders of Operation Rescue claim to follow "higher law" than civil law). 24. 487 u.s. 474 (1989).
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Protecting Patients or Silencing Unwanted Speech
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vandalism, and anthrax threats." 1 As a result, federal and state action has placed boundaries around anti-abortion protest activities intended to harass and obstruct patients' entry into clinics. The Supreme Court has been confronted with these restrictions because they walk a fine line between protecting patients' rights and restricting speech. The Court has upheld the validity of anti-abortion protest restrictions beyond the residential sphere to provide protection for unwilling listeners entering health clinics for an abortion. Although the Court found no statutory protection under § 1985 in Bray v. Alexandria, 2 the Court in more recent decisions permitted judicial injunctions creating a buffer zone around clinic entrances and upheld a state statute placing content neutral restrictions on protestors outside health care facilities. In Bral the Court had to decide whether anti-abortion protestors could be prevented from blocking an entrance to an abortion clinic under 42 U.S.C. § 1985(3 ), which affords a federal cause of action against anyone who conspires to deny equal protection under the law to a person or class of persons. The Court also had to decide whether the anti-abortion activists' tactics impinged upon the women's right to interstate travel. (They had traveled to Washington, D.C. for abortions.) Justice Scalia wrote for a divided Court. He stated that because the anti-abortion protestors did not invidiously intend to discriminate against women as a class, §1985(3) afforded clinics (and women seeking abortions therein) no protection. The Court also held that the anti-abortion activists' tactics did not impinge upon the women's right to interstate travel. 4 Following Bray, the Court heard additional cases regarding prohibitions of protests outside clinics. 5 The first two cases addressed judicial injunctions on protest activities at specific clinics. The third case, Hill v. Colorado, examined the constitutionality of a state statute that limited the obstruction of entrances to any health care facilities. 6 Specifically, the statute passed in 1993 prohibited anyone within 100 feet of an entrance to a health care facility from approaching within 8 feet of a person to hand out a leaflet, display a sign, or engage in counseling, education, or oral protest. §10.14 1. See Jamie Edwards, McGuire v. Reilly: The First Amendment and Abortion Clinic Buffer Zones in the Wake of Hill v. Colorado, 36 U.C. Davis L. Rev. 787 (2003). Twelve states and the District of Columbia prohibited activities near facilities that prevent safe, public access to health care. 2. 506 U.S. 263 (1993). 3. ld. 4. In 1994, Congress passed the Freedom of Access to Clinic Entrances (FACE) Act, 18 U.S.C. §248 (1994), which criminalized the obstruction of abortion clinic entrances. In addition, the Act subjects to criminal liability those who attempt to "intimidate" or "interfere" with a person's (or a class of person's) efforts to obtain reproductive health services. It is not clear whether the Supreme Court's ruling in R.A. V. bears upon the terms of the FACE Act's application (or its constitutionality, for that matter). For an interesting discussion of this question, see Alan E. Brownstein, Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests, 29 U.C. Davis L. Rev. 553 (1996). 5. See Schenck v. Pro-Choice Network, 519 U.S. 357,376 (1997); Medtronic, Inc. v. Lohr, 518 U.S. 470,475 (1996), upholding an injunction creating a buffer zone around a clinic's entrances but rejecting a 15-foot "floating" buffer zone around people leaving and entering the clinic; see also Madsen v. Women's Health Center, Inc., 512 U.S. 753, 767 (1994), upholding an injunction that restricted abortion protestors from entering a 36-foot buffer zone around a clinic's entrances. 6. 530 U.S. 703 (2000).
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Writing for the majority, Justice Stevens framed the question as "whether the First Amendment rights of the speaker are abridged by the protection the statute provides for the unwilling listener.'' 7 In applying the test in Ward v. Rock Against Racism 8 for time, place, and manner restrictions, the Court held that the statute serves legitimate and significant state interests, is narrowly tailored to serve that interest, restricts only content-neutral speech, and leaves alternate avenues for communication. Justice Stevens did not find the statute to necessarily impede the communication of protestors and observed that restrictions may actually assist them in communicating their message while moderating confrontational and harassing conduct. 9 Justice Scalia argued in dissent that the statute is an unconstitutional contentbased regulation "directed against the opponents of abortion." 10 He characterizes the majority opinion as an example of the " 'ad hoc nullification machine' that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice." 11 He found that the non-speech-related obstruction prohibitions would be sufficient to protect the state's interest. 12 Justice Kennedy, also dissenting, reasoned that the "Court approves a law which bars a private citizen from passing a message in a peaceful manner on a profound issue, to a fellow citizen on a public sidewalk." Perhaps the most significant general problem with the Hill decision is that it applies a very ambiguously defined narrow-tailoring analysis for content-neutral restrictions of speech. 13 This opinion adds to the criticism that the time, place, and manner doctrine is eroding, "depriving the Court's First Amendment jurisprudence of a valuable tool for the protection of speech." 14 One critique from Professors Jamin Raskin and Clark LeBlanc argues that "[t]he Court's decision last year in Hill v. Colorado, a case deeply colored by abortion politics, has opened the door widely to a new era of restrictive speech regulation within traditional public fora." 15 In their view, the Court's decision makes it easier for "government entities to discriminate against disfavored viewpoints ... provided that their enactments maintain the thinnest fa9ade of neutrality." 16 The protection of the unwilling listener, derived from cases like Schultz, could become an instrument for silencing the messages of unpopular groups or individuals. In response, the authors advocate for the creation of a more objective content and viewpoint discrimination analysis- an analysis that looks "not only 7. Id at 708. 8. 491 U.S. 781 (1989). 9. See The Supreme Court 1999 Term, Leading Cases, 114 Harv. L. Rev. 279,289 (2000). See also James J. Zych, Note: Hill v. Colorado and the Evolving Rights of the Unwilling Listener, 45 St. Louis U. L.J. 1281 (2001). 10. 530 U.S. at 741 (Scalia, J. dissenting). 11. Id. 12. Supreme Court 1999 Term, supra note 9, at 293. 13. ld. at 294-296. 14. ld. at 299. 15. Jamin B. Raskin & Clark L. LeBlanc, Disfavored Speech about Favored Rights: Hill v. Colorado, The Vanishing Public Forum and the Need for an Objective Speech Discrimination Test, 51 Am. U. L. Rev. 179, 182 (2001). 16. Id.
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Race, Rap, and the Regulation of Free Speech
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at the facial character of a statute and its stated purpose, but the substantive character in social, historical, and political context as well.'.I 7 The goal of a structured approach would be to "prevent government from dressing up speechdiscriminatory regulations in the clothing of official neutrality.'d 8
§10.15 RACE, RAP, AND THE REGULATION OF FREE SPEECH
While attention so far has been focused on the First Amendment's protection (or lack of protection) for the protest activities of blacks, the treatment of the most traditional First Amendment activity- speech- has also had significant impact on blacks and other historically oppressed groups. The extent to which the First Amendment has been invoked to shelter speech which attacks blacks is as telling a story of the courts' concern for the rights of blacks as the protest cases discussed above. It is an unfortunate truth that free speech has largely meant free speech for white people and the wealthy. As Professor Laurence Tribe notes: The reality of First Amendment jurisprudence has never been- nor is it nowconsistent application of that charter's blanket guarantees. Instead, constitutional protection for free speech emerges as a patchwork quilt of exceptions. And ... the Supreme Court has been all too willing to endorse doctrinal rubrics that protect the speech of corporations but not workers, or that zealously guard the preferred expressive methods of the wealthy while tolerating restrictions on the means of communication upon which the less fortunate must rely.'
As will be illustrated, even the seemingly neutral speech regulations held to be consistent with the First Amendment have disproportionately burdened blacks and other excluded groups. An approach to the First Amendment that is equally protective of blacks requires a delicate and clear-sighted balancing act. It calls upon courts to sensitize themselves to the particular concerns of blacks as speakers and as listeners. It demands, on the one hand, restricting the field of constitutionally guarded speech in order to shelter blacks from the oppressive and degrading impact of racist speech. At the same time, it counsels broadening our conception of speech to include and protect the distinctive voices of black persons. It requires, at the most basic level, an understanding that "neutral" free speech principles rarely operate in a neutral fashion. To cope with a society that all too frequently ignores and demeans them, blacks often resort to speech which challenges or subverts the norm- speech least likely to win judicial favor. The response to black musicians typifies the hostile response of predominantly white judges to typically black modes of 17. ld. at 217. 18. ld. at 218. §10.15 1. Laurence Tribe, Constitutional Choices 220 (1985).
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expression. Rather than understanding or even tolerance, this music is often met with a narrow cultural single-mindedness. Little Richard, who sang of the unspoken topics of teenage pregnancy and interracial dating, was an early victim of private censorship by radio stations that simply refused to play his music. Today, the boisterous and often controversial music of rap artists is pulled from record store shelves, pasted with warning labels, denied concert locations, and even banned by courts. One rap group, 2 Live Crew, became the center of controversy when its first album became the first album to be judged obscene by a federal court. 2 The swift judicial response to this rap album stood in sharp contrast to society's tolerance of the most outrageous music by whites. The treatment of 2 Live Crew prompted many to question the ability of a predominantly white judiciary to evaluate fairly the work of black artists. Evaluating the speech of nondominant groups in terms of legal norms set by the larger society means that black speakers often will find themselves outside of the First Amendment's shelter. Translations by those unfamiliar with or hostile to speech codes of many blacks distort the meaning of this speech and misjudge the effect it will have on audience members well-versed in this language. Professor Henry Gates, urging courts to "become literate in the vernacular tradition of AfricanAmericans," describes their uninformed judgments as "the equivalent of intellectual prior restraint." Considering the racial overtones of courts' decisions, Professor Gates is certainly right when he warns that "censorship is to art what lynching is to justice." 3 At least one court, though, has recognized that even seemingly neutral restrictions on First Amendment freedoms have disproportionately burdened members of excluded groups. The city of Pomona enacted an ordinance which prohibited signs on the premises of commercial or manufacturing establishments with advertising copy in foreign alphabetical characters unless at least one half of the sign area is devoted to advertising copy in English alphabetical characters. This regulation was struck down in Asian American Business Group v. City of Pomona. 4 Requiring English characters, the court found, regulates the cultural expression of the sign owner. Choice of language is a form of expression as real as the textual message conveyed. Language is an expression of culture, directly related to and constitutive of a person's national origin, culture and ethnicity. Because the ordinance regulates the cultural speech of the sign owner, it is a content regulation which must survive strict scrutiny. The ordinance failed to pass muster because it was not narrowly tailored to serve the apparent governmental interest at stake- the identification of buildings to facilitate the reporting of emergencies. Failure to engage in the inquiry mapped out by Pomona court-to look behind the laws to their intent and impact- is the failure to afford blacks the equal protection of the law. It is a selective exercise of judicial blindness which allows courts to hide behind their own insensitivity while clinging to underinclusive and race based conventions of normality. 2. Jon Pareles, An Album Is Judged Obscene; Rap: Slick, Violent, Nasty and Maybe Hopeful, N.Y. Times, June 17, 1990, at 1, col. 4. 3. Henry Louis Gates, Jr., 2 Live Crew Decoded, N.Y. Times, June 19, 1990, at A23. 4. 716 F. Supp. 1328 (C.D. Cal. 1989).
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Protesting Police Brutality
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§10.16 PROTESTING POLICE BRUTALITY
Police departments throughout the country have come under intense public scrutiny because of police brutality and fatal shootings in minority neighborhoods. Angry citizens from Los Angeles to Chicago and Cincinnati to New York City have voiced their opinions by filling streets to protest a lack of police accountability. 1 As protestors demand reform of police practices, many cities have attempted to investigate police misconduct by setting up special commissions or strengthening civilian review boards. But few have any teeth and major progress has not been made? Many civil rights advocates fear that this leaves urban populations increasingly distrustful of police. A report by the National Organization of Black Law Enforcement Executives warned that "[t]here are numerous cities ... in crisis- powder kegs waiting to be ignited by a single incident. " 3 A great deal of national attention was directed specifically at police brutality and shootings in New York over the past five years. In one example, Amadou Diallo, an unarmed man, was killed outside his Bronx apartment as he reached for his wallet. In response to the shooting, Rev. Al Sharpton arranged massive protests, including "two weeks of civil disobedience that resulted in the arrest of hundreds, including the state comptroller, Carl McCall, and the actress Susan Sarandon. " 4 Sharpton stated that the protests pressured the administration to empanel a grand jury for the four officers involved in the incident, who were subsequently indicted and acquitted. 5 Today, the New York City Civilian Complaint Review Board reports that civilian complaints of police abuse have been rising over the past two years, increasing to 4,616 in 2002. 6 As an unexpected response to the daily Diallo protests, the Police Department issued an official policy that resulted in protestor arrests and overnight jail stays? Traditionally, protestors were issued a summons to appear in court at a later date and released. Challenging the new policy, protestors won over $350,000 in a 2002 settlement that also formally ended the policy. 8 Anti-war protestors in 2003, however, were again arrested and detained for over 24 hours. New lawsuits have been filed. 9 These cases may tum on whether §10.16 1. Salim Muwakkil, The Global Costs of Police Brutality in the U.S., Chi. Trib., May 28,2001, at 15; Geov Parrish, Calling fora Crackdown, Seattle Weekly, June 29, 2000; Daniel Wood, Police Incident Shows How L.A. Has Changed, Christian Sci. Monitor, July 15, 2002, at 2. 2. Muwakkil, supra note l, at 15. 3. Id. 4. Elizabeth Kolbert, The People's Preacher: AI Sharpton Would Rather Walk Naked Than Wear Your Wretched Dress, New Yorker, Feb. 18, 2002. 5. Michael Kramer, The World According to Sharpton, Daily News, Apr. 18, 1999, at 47. 6. William Rashbaum, Police Abuse Cases Rising, Complaint Review Board Says, N.Y. Times, June 3, 2003, at B4. 7. Robert Worth, City Agrees to End the Giuliani Policy of Jailing Most Protestors for the Night, N.Y. Times, Mar. 28, 2003, at B4. 8. Robert Gearty, Protesters Get 350G from City for Jailings, Daily News, Mar. 28, 2002, at 8. The police policy seems tame compared to AI Sharpton's 90-day sentence and three Bronx politicians' 40-day sentences for protesting Navy bombing exercises in Vieques, Puerto Rico. 9. Anthony Ramirez, Metro Briefing New York: Manhattan: Protesters Sue City, N.Y. Times, July 2, 2003, at B4.
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the courts will agree that such detention is necessary to protect us from national security threats, an argument that helped to severely limit the location for anti-war rallies. The police action in New York City continues to send the message that the consequences of protesting makes expressing one's political opinion a costly activity. s~(
§10.17 PROTESTING PROSECUTORIAL ZEAL TO PUNISH STUDENTS OF COLOR
As this discussion of protesting the police makes clear, the criminal justice system exemplifies persistent racial inequality in this country. One aspect of that system gaining greater national attention is the excessively punitive approach to policing and prosecuting students of color. Protests around the overzealous prosecution of the "Jena 6," helped to expose this issue. The period of mounting racial tension in Jena, Louisiana, began after an African American student and his friend, with the permission of the school principal, sat under the "white tree," where only white students historically would gather. Some white students retaliated by hanging nooses on the tree. The white school board viewed the nooses as a student prank and the students were suspended for a couple of days. Over the following months, fights broke out among the black and white students. In one altercation, six black students attacked a white student who was said to be bragging about racist acts of white students. Jena's district attorney overcharged the students with attempted murder, and decided to try them as adults. Mychal Bell, the first to be tried, was found guilty of reduced charges by an all white jury. An appeals court reversed the conviction on the ground that he should not have been tried as an adult. Bell remained in jail for 10 months, and was released only after his bail was reduced to $45,000 from $90,000. He awaits a new trial. In response, "local civil rights groups objected to what they saw as a throwback to the worst kind of Deep South justice, and that protest has escalated into a nationwide campaign, through Web sites, bulk e-mail and instant messages, black radio stations, and YouTube." 1 On September 20, 2007, over 20,000 protesters traveled to Jena and marched through town to protest law enforcement's treatment of the students? Additional rallies, marches, and a national student walkout at more than 100 colleges have taken place in solidarity with the Jena 6. The protests have sparked media commentary and garnered the attention of Congress. §10.17 1. Richard Jones, In Louisiana, a Tree, a Fight and a Question of Justice, N.Y. Times, Sept. 19, 2007. 2. Paul Krugman, Politics in Black and White, N.Y. Times, September 24, 2007. See also "NAACP Jena Branch President Testifies Before House Judiciary Committee on Hate Crimes and Racially Discriminatory Prosecution of Six African American Youth," http://www.naacp.org/news/ press/2007 -1 0-18/index.html.
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Testifying before the House Judiciary Committee, Professor Charles Ogletree urged that Congress provide funding to the states and localities that would "educate professionals about racial disparities and the bias and prejudice that likely plays a role in disparate treatment." 3 He argued that "[t]he immediate lessons of Jena should be clear.... A public educational system should not be allowed to punish anyone in disparate ways where it appears to have racial implications. " 4 These activists and academics showed how protest can ferret out the injustices pervading our criminal justice system, especially for students of color.
§10.18 THE FIRST AMENDMENT AND RACIST SPEECH While the First Amendment may be "the Constitution's most majestic guarantee," it is nonetheless a limited guarantee. 1 Defamation, obscenity, and speech which threaten the social order- bomb threats, incitements to riot, and "fighting words" -are all limited by law _2 In the world of business, false advertisements, insider information, and suggestions that prices be fixed, are also off-limits. Yet hate speech- expressions which abuse, insult, or belittle a person because of his or her race, ethnicity, national origin, gender, religion, sexual orientation, or physical abilities- is still tolerated and even protected? Debate over restrictions on racist speech has been triggered by renewed publicity surrounding hate-motivated slurs against members of target groups. 4 In one recent case, a black student 3. Charles J. Ogletree, Jr., Testimony: Jena 6 and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public Schools, available at http://www.law.harvard.edu/ news/200711 0/ogletree_testimony. pdf. 4. Id. §10.18 1. Laurence Tribe, American Constitutional Law §12-l at 576 (1978). 2. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Brandenburg v. Ohio, 395 U.S. 444 (1969) (clear and present danger); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (libel). 3. See Mari Matsuda. Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320 (1989) (arguing that the law's ability to recognize the reputational injury to the person who has been libeled or defamed, for instance, "and yet to fail to see that the very same things happen to the victims of racist speech," is selective vision.) In a highly publicized case, the Seventh Circuit considered whether statements of the National Socialist Part, a neo-Nazi group which planned a demonstration in the predominantly Jewish town of Skokie, Ill., could be considered libel. The National Socialist Party maintains that blacks are biologically inferior and that Jewish people are linked to an international community conspiracy. The court held that these assertions are not libel because they are ideas, not factual statements which can be judged true or untrue. Village of Skokie v. National Socialist Party, 373 N.E.2d 21 (Ill. 1978). 4. The National Institute Against Prejudice and Violence estimates that one fifth of all minority students attending college are physically or verbally harassed. America's Youthful Bigots, U.S. News & World Report, May 7, 1990, vol. 208, no. 18, at 59. See also Racism Flares on Campus, Time, Dec. 8, 1980, at 28 ("stinking black monkeys" and other messages sent to African American students at Williams College; an African American student at Harvard found her office calendar defaced with racist slogans; crosses burned at Purdue University; letter addressed to African American student dormitory at Wesleyan University spoke of "wip[ing] all g.d. niggers off the face of the earth") (cited in Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 135 n.l2 (1982)).
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at Emory University was hospitalized for "emotional traumatization" and rendered literally mute by a campaign of racist harassment. 5 Racial epithets were scrawled in her dormitory room, bleach poured onto her clothing, and death threats sent to her through the campus mail. When the student refused to be relocated, the university installed a motion detector and alarm system in her room and assigned police to patrol the hallway outside of her room. This guarded exile, many would argue, is sadly but necessarily the only constitutionally acceptable remedy for those like the Emory student. They warn that suppressing racist speech leads us down a slippery slope towards totalitarianism, vesting in the government a censorship power over unpopular ideas which is inconsistent with the First Amendment and the most basic precepts of a democratic society. They point to the instrumental role that the First Amendment played in protecting the civil rights movement in its often angrily greeted advocacy for social change as proof of the necessity of an absolute free speech guarantee. Courts have almost unanimously accepted these arguments. 6 In the face of a rising tide of racism on university campuses and as a result of demands by minority students, many schools have enacted free speech policies 5. Racial Attacks Leave Freshman in Severe Shock, N.Y. Times, Apr. 22, 1990, at 44. For a collection of other incidents, see Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 Nw. L. Rev. 343, 349-358 (1991); Charles Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 431-434. Professors as well as students have been targets of racial invectives. A black professor at Dartmouth college was called "a cross between a welfare queen and a bathroom attendant." See Lawrence, supra, at 432. 6. See, e.g., Doe v. University of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (finding unconstitutional university's restriction on racist speech); Collin v. Smith, 447 F. Supp. 676 (1978); Village of Skokie v. National Socialist Party, 373 N.E.2d 21 (Ill. 1978) (both cases striking down city ordinances limiting the dissemination of racist materials and display of racist symbols, such as the swastika); Irving v. J. L. Marsh, Inc., 46 Ill. App. 3d 162, 360 N.E.2d 983 (1977) (holding that plaintiff failed to state a claim of intentional infliction of emotional distress where salesperson wrote on sales slip: "Arrogant Nigger refuses exchange"); Bradshaw v. Swagerty, 1 Kan. 2d 213,563 P.2d 511 (1977) (holding that epithets like "nigger" are "mere insults of the kind which must be tolerated in our roughened society"). See also Court Voids Wisconsin U.'s Ban on Hate Speech, N.Y. Times, Oct. 13, 1991, at A25 (reporting that a federal district court voided the university's rule barring speech intended to create a hostile learning environment). It is ironic that courts unwilling to bar speech that harasses people of color have not felt the same compunctions in barring speech that more privileged groups find bothersome. In one recent case, the Court of Appeals for the Second Circuit upheld a transit authority regulation banning panhandling in the New York City subways. Young v. New York City Transit Auth., 903 F.2d 146 (2d Cir.), cert. denied, 498 U.S. 984 (1990). The court's ruling rested upon its doubt that panhandling constitutes protected speech and its conclusion that the regulation, in any event, still allowed alternative methods of communicating this social critique. The state's interest in protecting subway riders from conduct which the court analogized to extortion justifies this narrow limitation on speech. The majority's reasoning represents a 180-degree shift from the hate-speech cases. In rejecting the idea that beggars may intend to convey a message regarding poverty, the court wrote: "A majority of the subway's over three million daily passengers perceive begging and panhandling to be 'intimidating', 'threatening', and 'harassing' .... [I]t is fair to say that whether intended as so, or not, begging in the subway often amounts to nothing less than assault. ... " Id. at 158. The dissent was harshly critical. One judge wrote: "In the seclusion of a judge's chambers, it is tempting to assume that beggars could obtain jobs and spend their free time distributing leaflets or buttonholding passersby in the subway to further the cause of the homeless and poor. ... [But to] suggest that these individuals, who are obviously struggling to survive, are free to engage in First Amendment activity in their spare time ignores the harsh reality of the life of the urban poor." Id. at 166. See also Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
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which limit students' rights to verbally harass blacks and members of other target groups. 7 The University of Michigan, for instance, adopted a Policy on Discrimination and Discriminatory Harassment of Students in the University Environment in response to a number of racist incidents. 8 The policy prohibited individuals from "stigmatizing or victimizing" individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam-era veteran status. 9 One student, whose name was withheld, successfully challenged the constitutionality of the regulation. 10 The student, enrolled in a graduate psychology program, apparently feared that "certain controversial theories positing biologically-based differences between sexes and races might be perceived as 'sexist' and 'racist' by some students" and might therefore be sanctionable. 11 Writing that the dissemination of ideas, however offensive, may not be foreclosed to protect conventions of decency, the court held that the regulation was overbroad. The court refused to hold that hate speech could be punished under one of the many exceptions to free speech guarantees, as fighting words or libel, for instance. The court cited two instances which it believed illustrated the potential of the school's policy to reach protected speech. In the first case, a complaint was filed against a student on the grounds that he openly stated his belief that homosexuality was a disease. In another incident, a professor complained of a student's remarks that she did not treat minority students fairly. That such complaints were even entertained, the court concluded, showed that the policy 7. See Delgado, supra note 5; William Wilson, Colleges' Anti-Harassment Policies Bring Controversy over Free-Speech Issues, Chron. Higher Educ., Oct. 4, 1989, at A1, col. 2. 8. Unknown persons distributed a flier declaring "open season" on blacks, which it referred to as "saucer lips, porch monkeys, and jigaboos." A student disc jockey at an on-campus radio station allowed racist jokes to be broadcast. At a demonstration protesting these incidents, a Ku Klux Klan uniform was displayed from a dormitory window. See Doe v. University of Mich., 721 F. Supp. 852 (E.D. Mich. 1989). 9. The Michigan regulation is unusually broad. A regulation more likely to find constitutional acceptance was recently accepted by Stanford University. Under that regulation, speech constitutes sanctionable harassment when: (1) it is intended to insult or stigmatize an individual ... on the basis of discrete and insular characteristics including sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; (2) it is addressed directly to the individual, and not to the general public (i.e., in a book, lecture or newspaper); and (3) it makes use of fighting words or symbols which convey direct or visceral hatred or contempt. Words that Wound: Free Speech for Campus Bigots, The Nation, Feb. 26, 1990, vol. 250, no. 8, at 272. Most university hate-speech regulations, like that of Stanford, track the fighting words exception to the First Amendment. 10. Doe v. University of Mich., 721 F. Supp. 852 (E.D. Mich. 1989). For a thoughtful critique of the Doe decision, see Recent Cases: Racist and Sexist Expression on Campus- Court Strikes Down University Limits on Hate Speech: Doe v. University of Michigan, 103 Harv. L. Rev. 1397 (1990). The author notes that the court's decision was predetermined by its categorical rejection of content regulation and its refusal to consider competing interests. However, the Supreme Court has considered the interest in eradicating discrimination and held that this value outweighed rights of expressive association. See Roberts v. United States Jaycees, 468 U.S. 609 (1984) (upholding state antidiscrimination law forbidding the exclusion of women from a civic group); Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (holding, without considering first amendment arguments, that Title VII forbids the creation of a hostile work environment even where speech creates that environment). Charles Lawrence argues that even Brown v. Board of Education can be interpreted to bar racist speech, since the harm of racial segregation is not the physical separation but the message of inferiority that separation conveys. Charles Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431,439-441. II. Id.
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could be used to preclude serious classroom discussion. The costs of hate speech, it was reasoned, are more than outweighed by the costs of using the law to prevent the discussion. 12 What the Doe court forgot to weigh in the balance it struck was the equally valid, though most usually forgotten, right of blacks to equal protection of the law- a right which is sacrificed by oppressive hate speech. Racist speech, more than any other extremist speech, subjects its already-weakened victim to humiliation, isolation, and self-hate. 13 As Professor Mari Matsuda writes: [A]t some level, no matter how much both victims and well-meaning dominant group members resist it, racial inferiority is planted in our minds as an idea that may hold some truth. The idea is improbable and abhorrent, but it is there before us, because it is presented repeatedly. "Those people" are lazy, dirty, sexualized, money-grubbing, dishonest, inscrutable, we are told. We reject the idea, but the next time we sit next to one of "those people" the dirt message, the sex message, is triggered. We stifle it, we reject it as wrong, but it is there, interfering with our perception and interaction with the person next to us. For the victim, similarly, the angry rejection of the message of inferiority is coupled with absorption of the message .... 1
Professor Patricia Williams describes racist expression as "a crime, an offense so deeply painful and assaultive as to constitute something I call 'spiritmurder.' Society is only beginning to recognize that racism is as devastating, as costly, and as psychically obliterating as robbery or assault; indeed they are often the same." 15 These acts of hierarchy and racial inferiority harm not only the immediate victims, but all blacks. They also injure all those who care for the victims and who are committed to the establishment of an equal, tolerant society. The refusal to withdraw protection from racist speech stems from a failure to give weight to the claims of blacks, claims which may be fairly balanced against 12. After the University of Michigan's policy against hate speech was struck down, the school enacted a new, narrower policy which bars slurs directed at specific persons, but exempts statements made during classroom discussion. Heller, U. of Michigan Scales Back Its Rules on Discrimination and Harassment, Chron. Higher Educ., Sept. 27, 1989, at A3, col. 1. 13. The damage caused by racist speech is in many ways analogous to the injury sustained by women as a result of pornography. Feminist scholars, most notably Catherine MacKinnon and Andrea Dworkin, have forcefully argued that pornography is "an institution of gender inequality" that not only causes discrete acts of sexual violence against individual women but, more fundamentally, that hurts "individuals, not as individuals in a one-at-a-time sense, but as members of the group 'women,'" Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law 148, 156 (1987); see also Andrea Dworkin, Men Possessing Women (1981). Women as a group are harmed because "pornography constructs the social reality of gender," and all women are "defined in pornographic terms" as sexually unequal. MacKinnon, at 166. For a general discussion of the First Amendment and pornography, see Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 Stan. L. Rev. 607 (1987); Robert Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Cal. L. Rev. 297 (1988); Geoffrey Stone, Anti-Pornography Legislation as Viewpoint-Discrimination, 9 Harv. J.L. & Pub. Pol'y 461 (1986); Cass Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589. 14. Matsuda, supra note 3. See also Delgado, supra note 4, at 135-136. 15. Patricia Williams, Spirit Murdering the Messenger: The Discourse ofFingerpointing as the Law's Response to Racism, 42 U. Miami. L. Rev. 127, 129 (1987); see also Lee Bollinger, The Tolerant Society 65-66.
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what has been held to be a nonabsolute free speech interest. It is a failure to recognize that oppressive speech is as much a badge of servitude as segregation or employment discrimination. It is, in short, a failure to consider "the victim's story." 16 It is no accident, as Professor Mari Matsuda writes that the law fails to provide redress for blacks victimized by hate speech. "The absence of law," she writes, "is itself another story with a message, perhaps unintended, about the relative value of different human lives." 17 Its message is not lost to those forced to suffer the effects of racist speech: When hundreds of police officers are called out to protect racist marchers, when the courts refuse redress for racial insult, and when racist attacks are officially dismissed as pranks, the victim becomes a stateless person. Target-group members can either identify with a community that promotes racist speech, or they can admit that the community does not include them. 18
An absolutist interpretation of the free speech guarantee is rooted, in part, in the idea that uncensored discourse is necessary to protect the open traffic of opinions essential to any reasoned and just democracy. 19 As Justice Holmes wrote: But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.' ' 20
It is only through the mutual toleration and comparison of diverse opinions, the theory goes that the truth will emerge. 21 Because our ideas of a just society are changing and emergent, it is impossible to say for certain that particular ideas are unacceptable. Ideas once rejected as immoral or blasphemous, including ideas underlying major advances in civil rights, eventually become the majority position. As it is impossible with certainty to distinguish good from bad ideas, the only choice is to protect all ideas. It is also argued that confrontation with falsehood renews our commitment to our beliefs. When we censor speech, we "lose, what is almost as great a benefit [as truth], the clearer perception and livelier impression of truth produced by its collision with error." 22 Without exercise, truth atrophies into dogma. Even false speech is of value because it reveals the underlying current of dissatisfaction
16. See Matsuda, supra note 3. 17. Id. 18. Id. 19. See, e.g., Bollinger, supra note 15; Thomas Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 878-886 (1963). 20. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 21. See Carl Becker, Freedom and Responsibility in the American Way of Life 33 (1945) (cited in Bollinger, supra note 15, at 45 n.3; Thomas Emerson, The System of Freedom of Expression 7 ( 1970); Alexander Meiklejohn, Free Speech and Its Relation to Self-Government, in Political Freedom: The Constitutional Powers of the People 24-27 (1964). 22. John Stuart Mill, On Liberty 21 (C. V. Shields ed., 1956). 675
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and dissent. It is preferable to have hate groups operating in public rather than in private: Where the unwanted weeds of frustration and revolt may grow more rapidly from inattention and where the falsehoods being propagated may less easily be exposed for their error. A policy of near complete openness to speech, in this sense, provides us with a social thermometer for registering the presence of disease within the body politic and the best opportunity of administering a speedy cure. 23
Mill's advice resounds in the argument of civil libertarians who claim that it is tactically wise to permit hate speech since that speech galvanizes the opposition and sparks protest, which history often has proved to be the only effective vehicle of change. A focus on racist speech diverts attention from the real problem, which is the intolerant attitudes which underlie that speech; it deals only with the symptom, and not the disease itself. If we are threatened or offended by certain ideas, we can employ less costly and more effective remedies than censorship. Justice Louis Brandeis's advice of over 50 years ago still proves true: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. " 24 Protest, debate, confrontation, and shunning are but a few of the sanctions which may be applied to deter racist speech. Attaching the stigma of social disapproval to the speaker who seeks to stigmatize others is as effective as any legal remedy, and is more empowering and poetically just than repression.Z 5 The marketplace theory, however, rests upon a naive or convenient assumption that in our democratic society all speakers occupy a level playing field in which all speech is presumptively equal. It assumes that free speech exists and that segments of society are not systematically silenced even before the government enters the arena. Yet, like all social goods, speech is not equally and freely accessible to all. The battle which blacks have fought simply to have their voices heard makes this assumption untenable. In addition, the regulation of racist speech is qualitatively different from other speech restrictions. Racism is not simply an unpopular view which requires special governmental solicitude- it is, sadly, the majority view ?6 Protection of racism and its expression in racial invectives has favored the powerful against the powerless. To provide redress for persons of color and other excluded groups is not to 23. Bollinger, supra note 15, at 55. 24. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring); see also Franklin Haiman, Speech and Law in a Free Society 86 (1981). 25. Each court which considered the National Socialist Party's plan to march in Skokie affirmed the group's right to demonstrate. The march, however, never happened; the Party abandoned the march because of threatened counter-demonstrations. See Donald Downs, Skokie Revisited: Hate Group Speech and the First Amendment, 60 Notre Dame L. Rev. 629, 630 (1985). 26. It is ironic, as Catherine MacKinnon notes, that unbending free speech principles are justified as necessary to protect divergent or extremist views. But First Amendment absolutists fail "to notice that pornography (like the racism, in which I include anti-Semitism, of the Nazis and the Klan) is not at all divergent or unorthodox. It is the ruling ideology. Feminism, the dissenting view, is suppressed by pornography." Catherine MacKinnon, Not a Moral Issue, 2 Yale L. & Pub. Pol'y Rev. 321,337 (1984).
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open the floodgates of censorship but to identify a specific group uniquely vulnerable to majoritarian oppression in need of government intervention simply to balance the scales. The marketplace analogy also presumes that the discourse of all speech is in fact a dialogue. But racist invectives are one-sided; they neither invite nor permit response. How can the student who receives a card reading "the Ku Klux Klan is watching you" be expected to speak back?27 Hate speech silences its victim and mars his or her response as presumptively unequal. Professor Charles Lawrence writes: Assaultive racist speech functions as a preemptive strike. The invective is experienced as a blow, not as a proffered idea, and once the blow is struck, it is unlikely that a dialogue will follow. Racial insults are particularly undeserving of First Amendment protection because the perpetrator's intention is not to discover truth or initiate dialogue but to injure the victim. In most situations, members of minority groups realize that they are likely to lose if they respond to epithets by fighting and are forced to remain silent and submissive. 28
Furthermore, the marketplace theory avoids the fundamental question of whether there is certain speech whose role in social decision-making is either detrimental or so marginal that it should never be countenanced. There are some ideas which simply are so repugnant to any concept of civilized society that they are not entitled to entry into the marketplace. To permit an idea to be advocated is to concede its legitimacy and to accept the possibility that it may become the governing system. There are some policies, though, whose implementation would be so unacceptable in a democratic society that their advocacy should not be permitted. 29 The Fourteenth Amendment reflects our choice not to permit absolute freedom at the expense of equality and equal personhood. While a great many states have responded to the hate speech issue with hatecrime laws prohibiting and punishing such speech, some commentators fear that the Court's confused decision in R.A.V. v. St. Paul sounded the death knell for hate-crime laws directly targeting speech and cast the constitutionality of all hate-crime laws into doubt. 30 The continued validity of penalty-enhancing laws in hate-crime cases was confirmed in 1993, the year after R.A. V., in Wisconsin v. Mitchell. 31 In Mitchell, the Court unanimously upheld the enhanced sentence for aggravated assault given to a young black man who, inflamed by the racism portrayed in the film Mississippi Burning, asked a friend if they were ready to 27. Lawrence, supra note 10, at 432. 28. Charles Lawrence, The Debate Over Placing Limits on Racist Speech Must Not Ignore the Damage It Does to Victims, Chron. Higher Educ., Oct. 25, 1987, at B 1; see also Delgado, supra note 4, at 177. Justice Jackson has written, "These epithets come down to our generation weighted with hatreds accumulated through centuries of bloodshed .... They are always, and in every context, insults which do not spring from reason and can be answered by none." Kunz v. New York, 340 U.S. 290, 299 (1951) (Jackson, J., dissenting). 29. Alexander Bickel, The Morality of Consent 70-77 (1975). 30. See Terry Maroney, The Struggle Against Hate Crime: Movement at a Crossroads, 73 N.Y.U. L. Rev. 564, 592 (1998). 31. 508 u.s. 476 (1993).
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"move on some white people" and, seeing the victim in the street, said "There goes a white boy: go get him." The Court said that the special harms posed by hate crimes- creating fear in the community-justified greater punishment. Speech, the Court held, is often evidence of motive, and factors such as motive can be taken into consideration in sentencing decisions. 32 The Court sought to distinguish Mitchell from R.A. V. by noting that the St. Paul ordinance was aimed at speech, while the Wisconsin statute was aimed at pure conduct and would have no "chilling effect" on speech. Black people unable to decipher the Court's distinguishing complexities but well aware of racial history may wonder how the act of whites burning a cross in the yard of a black family newly arrived in a neighborhood is deemed protected speech, while a black person who attacks a white person is convicted of assault and has his sentence enhanced by a hate-crime statute. A part of the problem is that the law in general, and existing hate-crime statutes in particular, finds it difficult to target accurately the unique harm these actions cause to subordinated groups. Judith Butler addresses some of these problems. 33 Butler points out that proponents of hate-speech regulation, including Mari Matsuda, Charles Lawrence, and Richard Delgado, liken hate speech to physical injury. In drawing the analogy, however, they implicitly concede that an injury related to hate speech is distinct from a physical injury. That is to say, Matsuda, Lawrence, and Delgado never assert that hate speech is physical violence. Butler, therefore, theorizes on the nature of the injurious quality of hate speech. She contends that hate speech derives its violent efficacy by echoing "prior actions." Hate speech "accumulates the force of authority through the repetition of a prior and authoritative set of practices. It is not simply that the speech act takes place within a practice, but that the act is itself a ritualized practice. " 34 In the case of cross-burning, for instance, the violent efficacy of the expressive gesture lies in the fact that it promises further acts of violence against the black family towards whom it is directed. The efficacy of a violent gesture, then, is not a function of the cross-burner's intent per se. (Butler, however, does not argue that the cross-burner should bear no responsibility for his speech-act.) Rather, the expressive act derives its efficacy from its genealogical relationship to a particularized set of historical practices. Given this understanding, trying to locate "final accountability" in a single person (or group of persons) is rather problematic. Hate-speech regulation, however, proposes doing exactly that? 5 According to Butler, hate-speech regulation consolidates the subjective position of the articulator of the hateful utterance. Hate-speech regulation necessarily assumes that the injury inflicted by hate speech is complete; that is it assumes that the hateful speech can in no way be turned against its speaker. This, according to Butler, concedes an unjustified authority (power) to the person delivering the hate speech. In addition, it constructs the courts as neutral sites of adjudication. This is ironic because recirculating the hateful speech is a necessary component of adjudication. Hate-speech regulations empower the courts to participate in the 32. 33. 34. 35.
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furtherance of discussion as to what constitutes consequential speech- as if the courts' speech itself were not violently consequential. 36 The Supreme Court's decisions in R.A. V. and Mitchell v. Wisconsin reveal how shallow these notions of legal neutrality are. Butler contends that Mari Matsuda, by advocating hate-speech regulation in the introduction to Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, argues that despite its racist formation, the law can be constructively used against hate speech. According to Butler, this notion, in effect, reinscribes the fantasy of law's neutrality or instrumentality. Butler takes issue with this privileging of judicial space (given its history) as the staging site for the antiracist struggle (or the ant-sexist struggle, in the case of pornography)_3 7 The very idea of legal redress, in Butler's view, stabilizes hate speech. She therefore advocates for critical, nonjudicial modes of intervention. Given that hate speech derives its violent efficacy from the promise of doing future harm, the speech's efficacy is contingent. Butler contends that, therefore, the speech can be made to "fail." The ostensibly hateful speech can be interdicted and redirected before the violence it promises can manifest. Indeed, a lot of antiracist/sexistlhomophobic contemporary art seeks to do exactly that. Amy Adler explores the possible consequences for art if hate-speech regulations were enacted. 38 She refers to critical race theorists like Delgado and Matsuda, who advocate against hate speech, as "left censors" who "fail to recognize that central to the contemporary activism emanating from their own communities are techniques that make leftist speech almost indistinguishable from the hate speech and pornography it questions." 39 She fears that censorship will threaten ways in which artists and writers have used language to deconstruct harmful speech by working from "within the system that it criticizes, revealing internal contradictions by using the conceptual apparatus of the very thing it wishes to subvert. " 40 Adler presents numerous examples of activist speech to show how "[h]ate speech, it seems, can play dual roles." 41 She describes how the gay movement has used the pink triangle as a symbol of empowerment, a symbol appropriated by the inverted pink triangle, which, like the yellow star for Jews, was used by the Nazis to mark homosexuals. She describes the artwork of Andres Serrano, a black Hispanic artist who takes glorified photographs of Ku Klux Klan leaders, and the controversial appropriation of the word "nigger" by rap artists. She argues from these examples that subversion and reversal are the central mode of the outsider's discourse- a mode that would be lost if the speech codes desired by hate-speech activists were implemented. She accuses "left censors" of an inability to recognize the complexity of speech. Their theories of censorship do not recognize that "words and images 36. Id. at 97-98. 37. Butler, supra note 33, at 47, 98-99. 38. Amy Adler, What's Left? Hate Speech, Pornography, and the Problem for Artistic Expression, 84 Cal. L. Rev. 1499 (1996). 39. Id. at 1541. 40. Id. at 1519, quoting J.M. Balkin, Deconstructive Practice and Legal Theory, 96 Yale L.J. 743 (1987). 41. Id. at. 1520.
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Chapter 10. The Parameters of Racial Protest
are arbitrary and that the conditions of interpretation, themselves unpredictable, are all that gives words and images meaning." 42 She problematizes the approach of theorists who recommend considering factors such as the intent of the speaker or the speech's impact on its victims to identify hate speech. The difference between subversive and oppressive speech, she contends, is often elusive. She concludes by supporting an approach that offers "full protection to activism," 43 rather than a code of regulation, warning leftists that they must make a choice and cannot have it both ways.
§1 0.19
Racism Hypo: Speech Codes on University Campuses
Kimberly Gibson, a first-year law student, was searching her school's website for a Criminal Law outline. She was shocked and angered by what she discovered. An Asian American classmate in her section posted a Criminal Law outline using the word "nigger" whenever he described African Americans. Gibson, an African American student, immediately brought a printed copy to the attention of the school's disciplinary committee. The Dean of Students who heads the committee assured her that there would be a prompt response. A few days after the news about the outline hit general campus gossip, Gibson received a threatening e-mail from another student saying, "This is a private law school where anyone wishing to use the word 'nigger' should not be prevented from doing so. If you, as a race, want to prove that you should not be called that word, work hard and you will be recognized. Complaining will only lead to trouble." Merely one day later, flyers containing racist statements with numerous swastikas were placed in all student mailboxes. The Black Law Student Association held an emergency four-hour meeting to draft a response to the school administration that had remained silent until that point. In a letter to the Dean, BLSA demanded immediate action, which included ( 1) punishing the students responsible for the racist outline, e-mail, and flyers, and (2) creating a diversity committee to draft a Racial Harassment Policy modeled after the Sexual Harassment Policy that raised a controversy only six years earlier. The seven African American law professors on the faculty sent a letter to the Dean, which was published as a full-length ad in the student newspaper, discussing their reasons for endorsing BLSA's demands. Unsurprisingly, the administration was slow to respond. In its first effort, three months after the student reported the e-mail, the Dean sent a school wide e-mail that emphasized a need for greater sensitivity and understanding in an academic environment. She noted that a Diversity Committee was being recruited to recommend how to foster a better community. Needless to say, BLSA was disappointed by the response. So they organized a series of actions to express their concerns. One of the most successful was an all-school walkout planned intentionally at noon on admitted students' day. Over 300 students, faculty, and staff lined the main walkway 42. Id. at 1542. 43. ld. at 1548.
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§10.19
running through the law school's campus to protest in silence. "Incoming students always ask about the racial climate of the school," stated the President of BLSA, Laura Smith, "They should know that this is a particularly bad time for us." In the last few weeks of the semester, The Daily Legal Times reported that the school's disciplinary committee held a hearing for two students who were identified as the perpetrators of the outline and the racist e-mail. The committee's response was unanimous: The students were asked to leave for one semester and were given a formal reprimand that was added to their official files and would show up on their transcripts. The students were incredulous that they did not have the right to freely express their opinions and could be censored so easily. Represented by a professor who had defended the most notorious criminal defendants, the students sued the school, arguing that the school's action violated their right to free speech. At the end of the semester, a Diversity Committee, which consisted of 12 faculty members and four students, was formed. Their first decision was to hire a professor to host a series of sensitivity trainings to discuss how professors should talk about difficult topics in an academic setting. The following fall, the school hosted "building a safe community" workshops for all incoming students. In its most controversial move, the Diversity Committee drafted a policy that became quickly dubbed a speech code. The policy received enormous criticism at a number of public debates about the issue, which were hosted by Students for Free Speech (SFFS), the local ACLU student group. SFFS doubled its membership as a result of the controversy. At every chance they could seize, SFFS organized to lobby faculty and protest the policy as an infringement on academic freedom and expression. Nevertheless, the policy with only minor amendments was distributed for a faculty vote and passed unanimously. Represented by the state ACLU, SFFS, on behalf of the law school student body, sued the school arguing that the policy was unconstitutional. The university, represented by its general counsel, responded that as a private institution they could establish such restrictions to foster an unoppressive and open learning environment.
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Chapter 11 Racism and Other "Nonwhites"
§11.1
INTRODUCTION
This book is concerned primarily with American racism initiated by whites against blacks, and it reviews the extent to which racial discrimination is legitimated by the law, as well as many of the efforts to utilize the law to remedy racial bias. African Americans, of course, are not the only victims of racial discrimination. Other minorities who are identifiably nonwhite- Indians, Chinese, Japanese, Mexicans, and other nonwhite Spanish- and French-speaking people- have suffered exploitation and discrimination in ways quite similar to those experienced by blacks and often for similar purposes. America has exported racism to the foreign territories that have come under its control, including the Philippines, Hawaii, Puerto Rico, Cuba, and Hispaniola (Haiti and the Dominican Republic). 1 Color as the basis of racist policy is not limited to the United States. White supremacy and greed drove the European invasion and three-centuries' -long exploitation of Africa, the ill effects of which remain all too visible. But racism is not a uniquely American outlook. By the mid-1990s South Africa ended apartheid aimed at total physical and political separation of racial groups. Great Britain's history of imperialism included involvement in the slave trade and the creation of segregated colonial societies. British patterns of racism against nonwhites have been visible in restrictive immigration laws and housing and employment discrimination not unlike those found in urban America. Merely as exemplar, § 11.3 includes a brief summary of the fate of peoples of color in Australia and New Zealand. Adequate treatment of racial bias suffered by nonwhites in the United States and around the world is deserving of book-length treatment, far beyond the limits of this text. The summaries and excerpts that follow review the history of discrimination against other nonwhites. They are brief and are not intended to convey fully either the extent or the complexity of racial discrimination experienced by peoples of color the world over or the current §11.1 1. See Rubin F. Weston, Racism in U.S. Imperialism (1972); II To Serve the Devil: Colonials and Sojourners (Paul Jacobs, Saul Landau & Eve Pell eds., 1971). For a discussion of the U.S. policy toward Haitian refugees that returned thousands to certain persecution, see Jean-Pierre Benoit & Lewis A. Kornhauser, Unsafe Havens, 59 U. Chi. L. Rev. 1421 (1992).
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Chapter 11. Racism and Other "Nonwhites"
controversies in which they are involved. The intention is to permit a clearer understanding of the factors of racism that serve to rationalize exploitation, discrimination, forced removal, and genocide both in America and elsewhere. Such a comparative reading may serve to illuminate both those aspects of the construction of race and racism that uniquely reflect the American context and those that seem to transcend national boundaries.
§ 11.2 AMERICA AND THE INDIANS
Building on models already tested by the Spanish, the French, and the British, America advanced its takeover of the lands held by Indians 1 through resort to treaties- easily made and as easily abandoned- open warfare waged with, first, superior weapons and, later, with overwhelming numbers, and, ultimately, through genocide? Professor Ward Churchill in opening his monumental history of the eradication of the Indians wrote: During the four centuries spanning the time between 1492, when Christopher Columbus first set foot on the "New World" of a Caribbean beach, and 1892, when the U.S. Census Bureau concluded that there were fewer than a quartermillion indigenous people surviving within the country's claimed boundaries, a hemispheric population estimated to have been as great as 125 million was reduced by something over 90 percent. The people had died in their millions of being hacked apart with axes and swords, burned alive and trampled under horses, hunted as game and fed to dogs, shot, beaten, stabbed, scalped for bounty, hanged on meathooks and thrown over the sides of ships at sea, worked to death as slave laborers, intentionally starved and frozen to death during a multitude of forced marches and internments, and, in an unknown number of instances, deliberately infected with epidemic diseases. 3
Throughout American history, the law was manipulated to justify whatever was necessary to get rid of the Indians, who refused to depart from what whites felt were lands that were part of the "manifest destiny" of this nation. Indeed, American Indian law developed with and was closely tied to the means by which whites displaced Indians. The Court adopted a number of policies that to § 11.2 1. There is much discussion about what term should be used to refer to Indians. Many people, including people who are themselves Indians, use the term "Indian" or "American Indian" and see such use as preferable to what they deem an oppressive colonial nomenclature. Others prefer "Native American" or "First American," which for them reflect the fact that Native peoples are indigenous to America and move away from the often stereotypically used term "Indian." When other scholars or sources are cited, the terms they use are not altered, which accounts for the variation throughout the chapter. 2. The traditional myths about the winning of the West have been deromanticized. The virtual eradication of the Western Indian is painfully detailed, for example, in Dee Brown, Bury My Heart at Wounded Knee (1970). Indian politics is surveyed with insight, wit, and militancy in Vine Deloria, Custer Died for Your Sins (1969). 3. Ward Churchill, A Little Matter of Genocide 1 (1997).
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America and the Indians
§11.2
the observant were hardly more than rationalizations for that displacement. As one article put it, a cynic would not be far off the mark who defined Indian law as based on the separative premise when it was possible to move the Indians to other territory and on the assimilative premise when land scarcity required that the Indian and his lands be brought into the totally alien private-property system of the white man, where the Indian could easily be dispossessed by such devices as inflated tax appraisals and long-term leases returning minimal rents. 4
In reviewing the major cases summarized below, consider Professor Robert Williams position that these decisions were influenced heavily by the widespread and comforting belief that the Indians were uncivilized and lawless savages who did not know the value of the lands they surrendered for trinkets or signed away in treaties, duly made in one period and then violated, reinterpreted, or simply ignored in another. 5 The examples of these self-serving stereotypes are set out without shame in decisions from those of the first Chief Justice, John Marshall, down to the present day. In his 1823 opinion in the critically important case, Johnson v. Mcintosh, Marshall referred to Indians as "heathens" and as "fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest." 6 Throughout the nineteenth century, Supreme Court justices spoke about Indians in similar tones of disrespect that were little changed by the middle of the twentieth century. Indeed, in 1955, the year after Brown v. Board of Education, the Court handed down Tee-Hit-Ton v. United States, what Professor Williams describes as "one of the most racist Indian rights decisions of all time. " 7 Later Justice William Rehnquist in 1978, writing in Oliphant v. Suquamish Indian Tribe, quoted more than a dozen nineteenth-century Court precedents, executive policy statements, and congressional enactments, reflecting the general view that Indians were "lawless, uncivilized, unsophisticated, hostile, or warlike savages .... an inferior race and as therefore entitled to lesser rights than whites." 8 Professor Williams asserts that the stereotypes of Indian savagery must be challenged at every level including in litigation presenting issues of Indian land, civil, and cultural rights. He recognizes the difficulty of the task and cites with approval a statement (admission really) of Justice Sandra Day O'Connor who wrote that "real change comes principally from attitudinal shifts in the population at large. Rare indeed is the legal victory- in court or legislature- that is not a 4. D.H. McMeekin, Red, White, and Grey: Equal Protection and the American Indian, 21 Stan. L. Rev. 1236, 1238-1240 (1969). Chief Joseph, one of the last great Indian leaders observed, "The white men made us many promises. They only kept one. They said they would take our land and they took it." 5. Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (2005). 6. Id. at xviii. Later in the landmark case of Cherokee Nation v. Georgia, Marshall described Indians as a race of people who were "once numerous, powerful, and truly independent," but who had gradually sunk "beneath our superior policy, our arts and our arms." 7. Id. at xxi. Writing for a six-person majority, Justice Reed declared that every schoolboy knows "that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conqueror's will that deprived them of their land." 8. Id. at xxiii.
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Chapter 11. Racism and Other "Nonwhites"
careful byproduct of an emerging social consensus." 9 In reviewing summaries of the major cases involving Indian rights set out below, consider both the likely influences of stereotypes about Indians as an inferior people properly deemed subordinate to whites, and the significance of Justice O'Connor's observation about the social prerequisite for political and legal change.
§11.2.1
Federal Power over Indians: Its Sources, Scope, and Limitations 10
The mystique of plenary power has pervaded federal regulation of Indian affairs from the beginning. While the Articles of Confederation contained a general power over Indian affairs, the Constitution enumerates only one power specific to these affairs: the power "[t]o regulate Commerce ... with the Indian tribes." 11 The Plenary Power Doctrine, a fixture of American Indian law since John Marshall provided its first justification in 1832, 12 can be traced not only to this commerce power but also to the treaty, war, and other foreign affairs powers, 13 as well as to the property power. 14 Each has been characterized, historically, as vesting Congress (or the President) with almost unlimited power in contexts not involving Indians. A.
The Treaty Era: Foreign Affairs and Indian Commerce (1776-1871)
The absence from the Constitution of a general power over Indian affairs is not surprising to students of history, for at the time the Constitution was drafted, the Framers regarded Indian tribes as sovereign nations, albeit nations that would soon either move west, assimilate, or become extinct. Thus, the same powers that sufficed to give the federal government a free rein in the international arena were viewed as sufficient to enable the new government to deal adequately with the Indian tribes. In formulating federal policy toward Indian tribes in the early years of the Constitution, President Washington and Secretary of War Knox followed the policy promulgated by the British Crown-though not always followed by individual colonies- of dealing with Indian tribes as sovereign nations. Their principal reason was practical: Earlier attempts by individual colonies and some states under the Articles of Confederation to assert power over Indian tribes, especially the power to seize tribal lands, had caused conflicts. According to one historian, "[T]he country, precariously perched among the sovereign nations 9. Sandra Day O'Connor, The Majesty of the Law: Reflections of a Supreme Court Justice, 166 (2003). 10. Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195 ( 1984). In a lengthy article, a major portion of which is excerpted here with her permission, University of Denver Law School Dean Newton traces the judicial "flexibility" that categorized American Indian law. Footnotes, where included, are renumbered to conform with those in this chapter. 11. U.S. Const. art. I, §8, cl. 3. 12. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557-562 (1832). 13. U.S. Const. art. II, §2 (treaty); id. art. I, §8, cls. 11-16 (congressional war powers). 14. U.S. Const. art. IV, §3 (property clause).
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Federal Power over Indians: Its Sources, Scope, and Limitations
§11.2.1
of the world, could not stand the expense and strain of a long drawn-out Indian war." 15 Washington and Knox advocated a policy of respect for existing treaty promises. In addition, they recommended that a series of new treaties be negotiated for the purpose of acquiring Indian land by consent in an orderly fashion; the treaties would contain promises to protect Indian tribes and tribal land from white incursions in exchange for the land cessions. This policy of dealing with Indian tribes as nations capable of executing treaties continued until 1871. The treaty powers of Congress and the executive branch were sufficient to carry out this early policy. In addition to ratifying treaties, Congress also affected Indian affairs by means of the Trade and Intercourse Acts, first enacted in 1790. These laws originally were designed to effectuate treaty promises of protection by imposing sanctions on individuals and states that had infringed on Indian land or dealt with Indians in violation of treaties. The judiciary further solidified the analogy of Indian affairs to foreign affairs. In Worcester v. Georgia, 16 Chief Justice John Marshall upheld the supremacy of federal over state power regarding Indian tribes, an issue that threatened to split the nation apart at that time, but which has never seriously been open to question since then. Chief Justice Marshall premised much of his eloquent defense of federal power on his view of the Indian tribes as sovereign nations whose rights of selfgovernment predated the Constitution and whose dealings with the United States were governed by principles of international as well as constitutional law. Although the Court in Worcester recognized that Indian tribes possess inherent sovereignty rights, the decision was really a defense of federal over state power, not a defense of Indian tribal sovereignty- the tribe was not even a party to the suit. Indeed, by relying on federal foreign relations power to free tribal sovereignty from state control, Worcester subjugated that sovereignty to the will of Congress. This set the stage for a tradition of deference to Congress in Indian affairs analogous to that deference accorded Congress (or the President) in foreign affairs. One legacy of Worcester, then, is that courts applied to Indian affairs doctrines peculiar to the federal foreign affairs power without necessarily distinguishing the special status of Indian tribes as domestic rather than foreign nations. Under the last-in-time rule, for example, Congress can abrogate a treaty with a foreign country, merely by passing a later statute conflicting with it. Early on, this doctrine was applied to treaties with Indians; moreover, courts continue to apply the doctrine today when Indian tribes are no longer regarded as foreign nations. 17 Another 15. Francis Prucha, American Indian Policy in the Formative Years 44 (1962). See also A. Wallace, The Death and Rebirth of the Seneca 159-162 (1969) (Indian battles resulting in high
U.S. casualties). 16. 31 U.S. (6 Pet.) 515 (1832). Georgia had attempted to assert jurisdiction and ownership rights over the gold-rich lands of the Cherokee Nation. Invalidating the Georgia law, the Court held that the Constitution assigned to the federal government exclusive power to deal with Indians. Consequently, the Court concluded that the exclusivity of federal power alone would bar any state law and that federal laws as well as treaties preempted state laws. Id. at 561-562. 17. See, e.g., Yankton Sioux Tribe v. United States, 623 F.2d 159, 181 (Ct. Cl. 1980) (statute permitting Secretary of Interior to pay out shares of tribal funds to individuals abrogated a treaty promise that payment for land sale be held in a tribal trust fund); see also Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) (statutes opening parts of a treaty reservation to settlers disestablished reservation). For a thorough discussion of this controversy, see Comment, Statutory Construction- Wildlife
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Chapter 11. Racism and Other "Nonwhites"
example of the uncritical borrowing of foreign affairs doctrines was the frequent invocation of the political question doctrine, relatively common in foreign affairs, as a justification for failing to question congressional power in Indian cases, 18 even those raising individual rights concerns. 19 For instance, although the integrity of tribal sovereignty was protected from state incursions in Worcester, the federal government later forced the Cherokee Nation to march to Indian territory by negotiating a treaty with a minority faction of the tribe? 0 Despite the immediate protest of nearly all of the Cherokee people to the President and to Congress, removal was ordered. 21 Judicial recourse would have been unavailing: The political question doctrine would have barred the courts from questioning the procedures leading up to the treaty. Although courts analogized Indian nations to foreign nations in finding congressional power to deal with them, it is important to note that the Court did not view Indian tribes as possessing all the attributes of sovereignty of a foreign nation. In the first Cherokee case, Cherokee Nation v. Georgia, 22 the Court held that Indian nations were not foreign states for the purpose of invoking the Supreme Court's original jurisdiction. The Court reasoned that the Cherokee Nation was "a distinct political society, separated from others, capable of managing its own affairs, and governing itself.... " Nevertheless, the nation was neither a state of the union nor a foreign state, but a "domestic dependent nation" incapable of conducting foreign relations with countries other than the United States. Instead, "[t]heir relation to the United States resembles that of a ward to his guardian." In sum, from the beginning, Indian tribes were in a truly anomalous position. Congress and the President viewed them as separate nations in some respects. Furthermore, individual Indians were regarded as domestic subjects, more akin to aliens than citizens, until Congress granted them universal citizenship in 1924?3 Protection Versus Indian Treaty Hunting Rights, 57 Wash. L. Rev. 225 (1981); see also Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon the Earth" -How Long a Time Is That?, 63 Cal. L. Rev. 601 (1975). 18. See, e.g., United States ex rel. Hualpai Indians v. Santa Fe Pac. R.R., 314 U.S. 339, 347 (1941) ("The manner, method and time of such extinguishment [of aboriginal Indian title] raise political, not justiciable, issues."); Beecherv. Wetherby, 95 U.S. 517, 525 (1877) ("[A]ction towards Indians with respect to their lands is a question of governmental policy .... "). 19. See e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 281 (1955) (Indians not entitled to compensation under Fifth Amendment for taking of timber by United States from aboriginal lands. The "power of Congress is supreme."). 20. Treaty with the Cherokees at New Echota, Dec. 29, 1835, 7 Stat. 478. The pressures from state and public officials created two factions among the Cherokee Nation: the Treaty Party, comprising the elite mixed bloods, and the Ross faction, supporters of Chief John Ross. Ross, who had the support of most of the Cherokee people, was incarcerated while the Treaty Party representatives negotiated the treaty. The treaty, ratified at New Echota, the capital of the Cherokee Nation, by only 20 persons, ceded all the tribal land in Georgia in exchange for 7 million acres of land in Indian Territory. French, The Death of a Nation, 4 Am. Ind. J. 2, 3-4 (1978). 21. A petition protesting the treaty, signed by nearly sixteen thousand of the seventeen thousand members of the Cherokee people, was presented to Congress. Grant Foreman, Indian Removal 269 (new ed. 1953). More than four thousand of sixteen thousand Cherokees died in the camps where they awaited removal and along the Trail of Tears, as the route to Indian Territory came to be called. ld. at 294-312; see also Grant Foreman, The Last Trek of the Indians (1946). 22. 30 U.S. (5 Pet.) 1, 16-17 (1831). 23. Citizenship Act of 1924, ch. 233, 43 Stat. 253 (current version at 8 U.S.C. § 1401(b) (1982)).
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§11.2.1
The judicial deference traditionally accorded the political branches of the federal government in conducting foreign affairs and dealing with aliens attached to federal regulation of Indian affairs. As domestic dependent nations, Indian tribes possessed sovereignty, but could not invoke the jurisdiction of the federal courts. Indeed, the broad language in Cherokee Nation about the peculiar status of Indian tribes, created doubt that tribes had standing to sue in federal court, a matter that was subject to some question for many years. In short, the integrity of tribal sovereignty rested precariously on the whim of Congress, owing, in the early years, to the Court's extraordinary deference to the political branches' exercise of the foreign affairs power in their dealings with the Indians. B.
The End of the Treaty Era (1865-1871)
In the years preceding the Civil War, especially during the 1830s to the 1850s, Congress had sought to remove the eastern Indian tribes west of the Mississippi, but as settlers began opening up the west, continued removal began to be viewed as impossible. After the Civil War and the pacification ofthe last tribes of the plains, a movement began to assimilate Indians into American culture, by force if necessary. A policy of treating Indian tribes as separate nations with power over their own people on their own land was seen as antithetical to this new policy. Divergent groups coalesced for very different reasons behind this assimilationist policy. Some regarded Indians as barbarians who had to be civilized for their own security and the security of those living near them. It was believed that if Indians were citizens, individually owning small tracts of land, they would come under the civilizing effects of the life of a farmer or a rancher and would abandon their nomadic and barbaric habits. Large portions of surplus reservation land could then be sold to settlers, who were clamoring for it. In addition, with the end of the reservations, promises that reservation land would never be contained within a state's limits would become meaningless; thus, for the remaining territories, individual ownership would remove this barrier to statehood. Other advocates of assimilation, members of the "Friends of the Indians" movement, were moved by more benign motives. They argued that only by becoming citizens, voters, and individual landowners would Indians be able to protect themselves and their land from the settlers and from the federal government's dishonorable practice of "breaking ... several hundred treaties, concluded at different times during the last 100 years .... " 24 The House of Representatives ushered in the new "Era of Allotment and Assimilation," when it decreed in a rider to the Appropriations Act of 1871 that henceforth "[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty. " 25 The legislators were motivated by the belief that Indian affairs should no longer be a matter of foreign affairs now that the last remaining Indian tribes of a warlike 24. Helen Hunt Jackson, A Century of Dishonor 26 (1881 & photo. reprint 1965). Jackson's indictment of federal policy sparked the reform movement. 25. Act of Mar. 3, 1871, ch. 120, §1, 16 Stat. 566 (codified at 25 U.S.C. §71 (1976)).
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Chapter 11. Racism and Other "Nonwhites"
nature had been subdued. Thus, the treaty-making era came to an end. Indian law became more a matter of domestic law, with Indians regarded as subjects to be governed, rather than a.s foreign nationals. With the end of the treaty-making era came statutes designed to implement the new assimilationist policies. Many of these statutes could not be viewed as either effectuating treaty promises or regulating trade. Thus the Court was forced to develop new rationales to justify federal actions concerning Indians. From two concepts- property interest and guardianship- the Court in the late nineteenth century gradually developed a guardianship power over Indian tribes, a power that it frankly acknowledged to be extraconstitutional. C.
Plenary Power: Its Genesis and Exercise (1870s-1930s)
The notion that the federal government had a property interest of some sort in Indian land provided the central element in the analysis resulting in guardianship power. Thus, to understand the guardianship power asserted by the federal government, it is necessary to briefly trace the history of the Doctrine of Discovery, the source of the property interest. Johnson v. Mclntosh,26 decided in 1823, was the first major case directly concerning the validity of Indian property interests to reach the Court. Drawing inspiration from international law regarding the sovereign rights of the nations that had colonized the New World, Chief Justice Marshall held that by virtue of discovering a nation inhabited by non-Europeans, the discovering nations (and America as their successor) obtained a property interest, described as "ultimate title," to that discovered land. According to Chief Justice Marshall: "[D]iscovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession." This title gave the government the preemptive right to purchase Indian land or to confiscate it after a war. The Indians, on the other hand, remained "the rightful occupants of the soil, with a legal as well as just claim to retain possession of it." Until the sovereign exercised its preemptive right to extinguish Indian title, the Indians' right to the land was sacrosanct. Thus, a purchaser from the Indians could not obtain a fee simple absolute title without obtaining the government's interest as well. The Doctrine of Discovery protected federal, individual, and tribal interests. Federal power to control acquisition of new land was supreme. Individuals tracing title to past grants had their title confirmed, although, if Indians still inhabited the land, extinguishment of the Indian title was necessary to perfect their interests. Finally, tribal rights to aboriginal land were confirmed and protected to some extent. 27 Although the Doctrine of Discovery was a concept designed in part to 26. 21 U.S. (8 Wheat.) 543 (1823). 27. See Felix S. Cohen, Original Indian Title, 32 Minn. L. Rev. 28, 48-49 (1947); accord Russel Lawrence Barsh & James Youngblood Henderson, Contrary Jurisprudence: Tribal Interests in Navigable Waterways Before and After Montana v. United States, 56 Wash. L. Rev. 627, 635-636 (1981); Howard R. Berman, The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 Buffalo L. Rev. 637, 644-645 (1978). See generally Henderson, Unraveling the Riddle of Aboriginal Title, 5 Am. Indian L. Rev. 75 (1977).
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protect Indian rights to land as well as to protect the principle of federal exclusivity in dealing with Indians regarding their land, later judicial misinterpretations of the doctrine are in large part responsible for arguments in favor of virtually unreviewable federal power over Indian lands. These arguments were prevalent in the late eighteenth and early nineteenth centuries and are still present to some extent in Indian law today. While the early decisions of the Marshall Court viewed the government's property interest in land as a preemptive right to purchase, or a sort of glorified option to buy the land, subsequent decisions denominated the government's interest as a title interest and the tribal interest as a possessory one. The more the government's interest was characterized as an ownership interest, the more it became possible to regard the ownership of land alone as giving the government power to govern Indians. Acknowledging that no existing constitutional provision granted Congress this right to govern Indian affairs, the Court found it to be inherent, first by analogy to early decisions regarding the power to regulate activities within the territories. Drawing support from cases upholding congressional power to govern territories before statehood, the Court in Kagama stated that the power over territories derived "from the ownership of the country in which the Territories are." 28 The Court quoted an earlier opinion by Chief Justice Marshall regarding territorial government: "[T]he right to govern may be the inevitable consequence of the right to acquire territory. " 29 By parity of reasoning, the Court found inevitable the right to govern activities of reservation Indians whether within or without state boundaries. The Doctrine of Discovery gave the United States "ultimate title" over Indian land wherever located and the exclusive right to acquire that land. Thus the federal government owned the country in which the Indian tribes lived, and this ownership interest in tum vested the government with the right to govern them. Finally, the Court relied on the history of federal supremacy over the states in Indian affairs and the historic, protective role that the government played toward Indians. These Indian tribes (the Court held) are the wards of the nation. They are communities dependent on the United States: dependent largely for their daily food and dependent for their political rights. They owe no allegiance to the states and receive from them no protection. Because of the local ill feeling, the people of the states where the Indians are found are often their deadliest enemies. From the Indians' very weakness and helplessness, so largely due to the course of the federal government's dealings with them and to the treaties through which the government made its promises to them, there arises the duty of protection and, with it, the power. At first glance the practical solution seems a happy one. The states had proven themselves to be the greatest enemies of the Indian tribes, and the federal government had insisted on the exclusive right to deal with the tribes since the founding of the republic. Moreover, the practical solution did no violence to the allocation of powers between nation and states in the Constitution. Although the Court might 28. United States v. Kagama, 118 U.S. 375, 380 (1886). 29. Id. (quoting American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828)).
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have taken greater care to demonstrate that the continued power to legislate regarding Indian affairs was a necessary inference from the history and the text of the Constitution, still the narrow result of Kagama- the supremacy of federal over state power- was a just one. Yet the Court in Kagama failed to consider tribal rights. Consent of the governed had been a cardinal principle of the founders. Nevertheless, that Indians were not citizens and could not vote did not seem relevant to the Court. Once again, by concentrating on justifying federal power, the Court reinforced earlier precedents abdicating its role in accommodating the legitimate but competing interests raised by the federal government's interference with tribal rights. Such accommodation was left to the political arena: an arena from which Indians were excluded. Kagama and its nineteenth-century precedents reflect a laissez-faire judicial attitude toward federal regulation of Indian affairs more than a prescription concerning the proper balance of the interests at stake. It is unnecessary at this late date to argue that such a deferential attitude was inappropriate in nineteenthcentury jurisprudence, when nonintervention in the cause of individual liberties was a hallmark of judicial policy?0 What is important, however, is the tenaciousness of the deferential attitude, manifested in the Court's subsequent reliance on Kagama well into the twentieth century. From the time of Kagama until well into the twentieth century, policy makers denied tribal Indians the basic freedoms accorded other Americans, on the theory that their relation to the United States was "an anomalous one and of a complex character." 31 Although nominally protected by the individual rights provisions of the Constitution, like other noncitizens, Indians and Indian tribes in fact could not vindicate their rights in the courts. While the Fourteenth Amendment had been held to guarantee all persons equal access to the state courts, irrespective of their race, 32 Elk v. Wilkins 33 and subsequent cases cast considerable doubt on whether the Fourteenth Amendment's equal protection clause extended to Indians. Moreover, the 1866 Civil Rights Act guarantee that "citizens ... shall have the same right ... to sue, be parties, and give evidence" explicitly excluded Indians from citizenship. Even when access to the courts was granted, this lack of familiarity with state law and procedures, state laws excluding them from juries and declaring them incompetent as witnesses, and state juries' anti-Indian prejudice were powerful disincentives to their filing suit in state courts. Access to federal courts was also problematic. First, being neither citizens nor true aliens, individual Indians and Indian tribes could not sue in federal court on nonfederal questions. Although Indian tribes and individuals bringing class actions on behalf of tribes did raise federal questions in federal courts, their status as wards 30. See, e.g., Mormon Church v. United States, 136 U.S. 1, 44 (1890) (upholding law breaking up Mormon Church and providing for seizure of Church property); Dred Scott v. Sandford, 60 U.S. 393, 451-452 (1857) (fundamental property rights of slave owners); cf. William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv. L. Rev. 513 ( 1974) (the formalistic "rules" approach of the late nineteenth century was in part a reaction to freewheeling instrumentalist opinions like Dred Scott). 31. Kagama, 118 U.S. at 381. 32. Yick Wo v. Hopkins, 118 U.S. 356 (1886). 33. 112 u.s. 94 (1884).
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of the government sometimes confused the issue of tribal and individual standing to sue. Undoubtedly, racial and cultural prejudice played no small role in federal actions toward Indians during this period. The reported justifications for these federal actions rested on the guardianship theory of United States v. Kagama, cited frequently in the cases of that era. Yet one key to the Court's finding of a congressional guardianship power over Indians was its view of their racial and cultural inferiority. Repeatedly, the decisions of that era invoked this inferiority in terms that would be intolerable in a judicial opinion today. The undisguised contempt for the native culture was unrelieved by an open-minded assessment in any of the principal cases studied. Rather, the Indians were described as semibarbarous, savage, primitive, degraded, and ignorant. The relationship between the federal government and the Indian was frequently termed as one between a superior and inferior. The white race was called more intelligent and highly developed. The government's representatives held the implicit belief that a higher civilization justly replacing that of a passing race whose time was over and whose existence could no longer be justified. The very weakness of the Indians in resisting the tide seemed to be one of their greatest moral shortcomings, but one not as serious as the Indian communal tradition. To the white observer, the lack of proprietary interest generally displayed by tribal members was repulsive and backward. Removing the "herd" instinct was deemed by some to be the key to civilizing the Indian. The ethnocentric outlook of the times may well have tainted the Court's view of the legitimacy of Indian rights claims and may explain, if not excuse, some of the more egregious violations of tribal and individual fundamental rights that have continued to occur. Forced allotment of Indian lands and assimilation of Indians into the dominant culture became the primary policy of the federal government during the years following Kagama. Tribal land was subdivided, some apportioned to individuals with no compensation to the tribe, and the rest sold to non-Indian settlers, often at far less than fair market value. The Court aided this process, holding that the plenary power of Congress, derived from the Indians' "condition of dependency," somehow converted Indian property, even fee simple property, into quasi-public land "subject to the administrative control of the government." This authority permitted Congress, acting through the Secretary of the Interior, to lease, sell, or allot any tribal land without tribal consent, even in violation of solemn treaty promises. The money gained by these ventures was placed in trust funds managed by the government and disbursed as the government believed wisest, often for the purpose of assimilating and civilizing the Indians. For example, tribal trust money was often spent to pay missionaries to educate Indian children in the ways of white society and Christianity- without consulting the tribe. Furthermore, money promised the tribe as an entity in treaties could be paid to members per capita, thus drastically diminishing the tribe's resources. The Court supported these federal actions by eschewing any role in accommodating the competing interests at stake. Congress had decided in 1871 to govern Indians by statute, and its actions were not justiciable: Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning,
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and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government. Indians abandoned the attempt to restrain federal action. Instead, tribes used what resources they had to persuade Congress to pass statutes permitting them to sue for compensation for land that was taken. The legacy of Kagama dominated Indian sovereignty issues, and citation of Kagama frequently signaled judicial deference to Congress. Chief Justice John Marshall had regarded Indian tribes as possessing a "right of self-government" and having a protectorate relationship with the federal government, like "that of a nation claiming and receiving the protection of one more powerful: not ... submitting as subjects to the laws of a master." Nevertheless, in Kagama, the Court interpreted the 1871 statute ending the practice of making treaties with Indian tribes as establishing the premise that the federal government intended to govern the tribes by acts of Congress. Thus, the Court upheld federal power to take from Indian tribes jurisdiction over crimes among Indians, the first major federal inroad into tribal internal affairs. The court subsequently invoked the Kagama guardianship power and the political question doctrine as justifying judicial nonintervention when Congress abrogated tribal self-government rights. Tribes largely shunned litigation as a strategy to protect their political sovereignty interests after these early judicial defeats. Having obtained such a judicial seal of approval for the exercise of its power, Congress proceeded to treat the previously semi-independent Indian tribes as subject peoples. The dissolution of tribal governing structures was a cardinal aim of the Allotment Period. For instance, in 1906, Congress denied the legislatures of the Five Civilized Tribes the right to meet more than 30 days per year, and their legislative action was made subject to veto by the President of the United States. Legislative intervention even extended to federal power over tribal money. Statutes provided that money due to tribes from tribal assets could be appropriated at the discretion of Congress. The Secretary of the Interior's power over disbursement of Indian money enabled him to manipulate the tribe with a concomitant weakening effect on tribal sovereignty. Moreover, Congress, not the tribes, had the ultimate authority to determine who was a tribal member for purposes of distributing property, annuities, and trust money and to determine, further, how that money was spent. Finally, Congress even authorized the consolidation of tribes with no ethnological ties- even some who were ancient enemies. As one commentator has noted, by these and other measures, "the Indian Agent and his staff were 'the government' for most tribes from the cessation of treaty-making to the 1930's." 34 While the courts did not explicitly endorse every erosion of tribal political sovereignty occurring during this time, they certainly shared responsibility for it, because Kagama and its progeny had eviscerated any litigation strategy to protect tribal sovereignty rights. Judicial abandonment of Indians was not limited to rights asserted by tribes. The Court also treated individual Indians as constitutional castaways. For instance, according to Kagama, Indians were within the geographical limits of the United 34. Theodore W. Taylor, The States and Their Indian Citizens 17 (1972).
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States and thus were subject to whatever laws Congress deemed appropriate. A year and a half before Kagama, however, the Court had held in Elk v. Wilkins 35 that Indians were not citizens, thereby upholding a state's denial of the right to vote to an Indian who had severed relations with his tribe and become a lawful resident of the state. Over the dissent of the first Mr. Justice Harlan, the Court reasoned that, although the petitioner was born in the United States, he was not "subject to the jurisdiction" of the United States for the purposes of the Fourteenth Amendment, because all Indians "owed immediate allegiance to their several tribes, and were not part of the people of the United States." Indians might be subject to United States jurisdiction in some respects, but the Fourteenth Amendment required more: They must be "completely subject to [United States] political jurisdiction, and owing them direct and immediate allegiance." While the Court in Elk reaffirmed salutary principles of tribal sovereignty, it undermined individual rights, because Indians, even those who had assimilated, could not become citizens of the United States without permission of Congress. Many other noncitizen aliens who claimed direct allegiance to other nations had a choice that Indians never had: They could go home and remain subject to the sole jurisdiction of the country of their birth. Indians, on the other hand, were alien subjects of a federal power they had not chosen and could not escape. Eventually, those who favored the assimilationist policy because of concerns for Indian well-being urged successfully that Indians who received allotments should be made U.S. citizens. 36 This grant of citizenship permitted Indians to take part in the political process. Nevertheless, those Indians whose lands escaped allotment remained noncitizen subjects. Even after the bestowal of citizenship on all Indians, 37 Congress continued to legislate pervasively on Indian matters. The Court supported this exercise of power, holding that conferral of citizenship did not end the guardian-ward relationship. Moreover, the Court held that an individual Indian had no power to terminate the guardian-ward relationship unilaterally. Legislation of this era curtailed individual Indian property rights by placing restraints on the alienation of allotted land, including fee simple allotted land. The right of Indians to make contracts affecting trust property and to dispose of trust property was conditioned on approval by the Secretary of the Interior. Furthermore, individual Indian beneficiaries of congressional allotment schemes could not rely on the congressional largess bestowed on them. Statutes granting individuals property rights in the most explicit language were overturned by later statutes enlarging the class of beneficiaries and even, when congressional policy favoring tribal self-government resurfaced in the 1930s, giving the land back to the tribe. First Amendment rights, too, were curtailed drastically. Indian religions were banned upon threat of criminal prosecution in the Courts of Indian Offenses set up 35. 112 U.S. 94 (1884). 36. The General Allotment Act provided that Indians receiving allotments under any treaty or statute would become citizens; General Allotment Act of 1887, ch. 119, §6, 24 Stat. 388, 390 (codified as amended at 25 U.S.C. §349 (1976)). The act also declared Indians living separate and apart and "adopting the habits of civilized life" to be citizens. 37. Indian Citizenship Act of 1924, ch. 233,43 Stat. 253 (current version at 8 U.S.C. § 1401(b) (1982)).
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by the Bureau of Indian Affairs. Children were forced to attend boarding schools to receive rations promised in return for land cessions. Moreover, the children were denied the right to speak their own language at the schools. They were educated only in English, and then only about American values. This coerced education in Indian boarding schools continued even after the Supreme Court recognized the fundamental right of non-Indian families to oversee the education of their children by sending them to private schools or to schools where foreign languages were taught. Finally, individual Indians were subject to liquor laws, whether or not they had severed tribal relations and whether or not they lived on a reservation? 8 In modern times, the Supreme Court has apparently repudiated both the ethnocentric overtones of the doctrine of plenary power and the doctrine itself, at least as far as the doctrine suggests it has an extraconstitutional source or is a power unlimited by other constitutional provisions. Nevertheless, the concept of plenary power continues to influence contemporary Indian law by conditioning the courts to defer to congressional power over Indian affairs. D.
The Modern View of Congressional Power over Indians: The Development of a More Restrictive View of the Guardian- Ward Relationship (1930s to the Present)
As demonstrated above, barriers to the Indian tribes' access to the judicial system and that system's deference to Congress, coupled with indifference to tribal and individual rights on the rare occasions when Indians were allowed into court, marked the plenary power era, which lasted at least until the 1930s. In the 1930s and 1940s, Congress repudiated the allotment and assimilation policy, which had come under much criticism, and adopted a policy of protecting tribal cultures and encouraging tribal self-government. This shift in policy undoubtedly affected the Court, as demonstrated by an increased receptivity to Indian claims. First, both Congress and the judiciary opened the doors to the courthouses to which Indians had long denied ready access. For instance, the Court finally clarified the murky question of whether tribal Indians had standing to sue in federal court absent a congressional grant. During the allotment era, the Court had upheld the power of the executive to bring suit on behalf of Indian wards and had intimated that Indians not only could have no say in the litigation, but might also have no right to sue on their own behalf once the United States had undertaken their representation. In 1943, the Court entertained a suit brought under a statute expressly permitting an aggrieved tribe to seek appellate review of a determination of the value of land taken by railroads. The Court held that the statute gave the tribe the right to sue, but added that Indian tribes also have "a general legal right" to bring lawsuits. 39 Finally, in 1968, the Court made plain that an individual Indian's status 38. See. e.g., Hallowell v. United States, 221 U.S. 317 (1911) (upholding prosecution for violation of law against selling liquor to an Indian or Indian allottee). These liquor laws were explicitly racial. In Hallowell, for instance, despite the fact that the defendant had been active in county and state governments as a judge, county attorney, county assessor, and director of a public school district, he was still subject to the law because of his status as an Indian. See id. at 320, 324. 39. Creek Nation v. United States, 318 U.S. 629,640 (1943).
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as a ward of the United States did not preclude him or her from bringing suit on his or her own behalf. 40 More important, Congress, by enacting the Indian Claims Commission Act of 1946, finally removed the barrier of sovereign immunity to money claims against the government that had hindered tribes in the 83 years since the Court of Claims was created. Within five years, tribes filed more than five times as many claims against the government as they had during the entire 65 previous years. Finally, the 1976 passage of an amendment to the Administrative Procedure Act, waiving sovereign immunity for claims based on that statute, enabled Indians and Indian tribes to seek review of wrongful agency actions. 41 As more Indian claims reached the judiciary, the Court began to narrow the Plenary Power Doctrine and repudiated the notion that Congress's plenary power could prevent the courts from reaching the merits of specific constitutional claims by Indian tribes. It held that plenary authority over Indians did not enable the United States to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them; for that "would not be an exercise of guardianship, but an act of confiscation. " 42 Concurrently, the Court began to rely on specific provisions of the Constitution in place of inherent authority as the source of congressional power over Indians. The process was a gradual one. By 1965, the Court relied solely on the Indian commerce clause in holding that a federal law regulating trading activities on Indian reservations preempted state taxation of those activities. Since the 1960s, the Court has looked increasingly to enumerated powers, especially the power to effectuate treaties, the Indian commerce clause, or both. Moreover, the Court repudiated the notion that Congress's plenary power was extraconstitutional, ruling rather that it was "drawn both explicitly and implicitly from the Constitution itself. " 43 Subsequently, the Court adjudicated an equal protection challenge to the distribution of judgment funds by the Secretary of the Interior. The Court noted that power over tribal property, while plenary, is "rooted in the Constitution" and may be challenged when it infringes constitutional rights. Moreover, the Court served notice that the political question doctrine, which had been invoked often in the past as a bar to reviewing congressional action adverse to Indian claims, had no place in cases raising individual rights guarantees. By 1980, the Court had dismissed the political question doctrine. 44 During this process of narrowing the Plenary Power Doctrine, the Court also began to redefine its source- the guardian-ward relationship. Although the guardian-ward relationship of Kagama was the basis for the power to impose 40. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 370-371 (1968) (construing Heckman v. United States, 224 U.S. 413 (1912), as implying tbat standing to sue existed). 41. Act of Oct. 21, 1976, Pub. L. No. 94-574,90 Stat. 2721 (codified at 5 U.S.C. §702 (1982)). For a discussion of pitfalls in suing the federal government, see Newton, Enforcing the Federal-Indian Trust Relationship after Mitchell, 31 Cath. U. L. Rev. 635 (1982). 42. United States v. Creek Nation, 295 U.S. 103, 110 (1935). 43. Morton v. Mancari, 417 U.S. 535,551-552 (1974). 44. United States v. Sioux Nation, 448 U.S. 371, 413 (1980).
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federal criminal laws on tribal Indians, Kagama itself and other allotment era cases also referred to duties toward Indians imposed on the government by the guardianward relationship. These decisions treated the duties as self-imposed moral obligations, not legally enforceable. Nevertheless, in cases in which Congress had waived sovereign immunity, the judiciary began to impose duties on the government, akin to those imposed on ordinary fiduciaries, to manage Indian money and land responsibly. Indian breach of trust cases proliferated, and many were successful. Courts rendered specific relief or assessed money damages for breaches of a trustee's duties of care and loyalty in a number of cases involving mismanagement of money or natural resources. The result is that, in modem-day Indian law, the trust relationship, although not constitutionally based and thus not enforceable against Congress, is a source of enforceable rights against the executive branch and has become a major weapon in the arsenal of Indian rights. Perhaps the success of breach of trust claims has obscured the fact that neither Congress nor the courts have expunged completely the Plenary Power Doctrine from Indian law. Tribes wishing to impose fiduciary duties on the government did not challenge the government's power to manage and control Indian resources, but argued that the power carried duties along with it. Moreover, with the taming of the doctrine in recent years, most commentators have come to regard the term "plenary power" as referring only to the notion that the existing, fairly sketchy references to sources of power over Indians in the Constitution are to be read broadly, much as are the references to foreign affairs, and thus as giving the federal government primary power over Indian affairs. Nevertheless, vestiges of the judicial attitude of nonintervention developed and nurtured in the plenary power era remain, especially in the areas of tribal sovereignty and property rights where the Court continues to rely on an inherent Indian affairs power of almost unlimited scope. For instance, the Court characterizes tribal sovereignty as existing "only at the sufferance of Congress," which has "plenary authority to limit, modify or eliminate the powers of local selfgovernment." As to property, the Court continues to recognize Congress's "paramount power over the property of the Indians." The Court, moreover, quite frankly explains that this power is derived "by virtue of [Congress's] superior position over the tribes" or even "the conquerors' will" -the kind of might-makes-right argument that resonates of nineteenth-century Indian law jurisprudence. The following is a partial list of the congressional actions receiving the Court's sanction in modem times, often in decisions citing the major cases of the plenary power era. The Court has upheld congressional power to reduce the boundaries of a reservation without tribal consent or compensation, thereby reducing, for all practical purposes, a tribe's power to govern. In addition, the Court has upheld power to divest a tribe of all criminal, civil, or regulatory jurisdiction; to abrogate treaties; and to subject tribal laws and constitutions to federal approval. As to tribal property rights, congressional power remains as sweeping as it was during the plenary power era. Congress may require the Secretary of the Interior to approve land sales and leases by tribes and contracts obligating money held by the federal government but owed to the tribe. Congress may abrogate without liability future interests in Indian lands granted by earlier 698
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statutes and may enlarge or decrease the class of beneficiaries of tribal trust funds or lands. Congress may take one kind of tribal property, aboriginal Indian property, without paying compensation; it may, without consent, dispose of recognized-title tribal property under the guise of management and sell it at less than fair market value without liability, as long as the tribe receives some proceeds. According to some observers, it may even extinguish legal land claims of Indian tribes by retroactively extinguishing both title to the land and any claims based on that title. The Court's continued failure to attempt to define the extent of Congress's power over Indian affairs has encouraged further undue assertions of that power. Though a full discussion of the concept of native or aboriginal title lies outside the scope of this section, a few notes on U.S. law in this area should be considered.45 Native or aboriginal title refers to the ability of indigenous peoples to successfully claim ownership of or title to their historical homelands within the legal system of a colonizing power. The claim for title grounds itself in the historical, cultural, and spiritual connection between indigenous peoples and the land they inhabited both before and after the arrival of colonial regimes. In countries such as Canada and Australia, both of which recognize native title, if a group of indigenous peoples shows a particular form of historical, non-colonial connection to disputed lands, the legal ownership of that land under the domestic law of the colonial power flows to the indigenous peoples or tribe. 46 Though fraught with legal complications, the recognition of native title has been hailed as a crucial step in the liberation of indigenous peoples from the continuing effects of colonization and conquest. In opposition to growing trends in international law, the U.S. does not recognize the right of Native Americans to native title in their historical lands. In the case of Tee-Hit-Ton Indians v. United States, 47 the U.S. Supreme Court rejected a Fifth Amendment takings claim brought by Indian tribes. In order to make a takings claim, the land taken must have been the legal property of the claimant. The Court explicitly rejected native title as the basis for land ownership and held that Native American tribes could claim only lands not already held by the tribe in fee simple if an explicit act of Congress granted the land to the tribe. 48 The Tee-HitTon decision continues to vigorously function as good law within the United States. 49 Although state disenfranchisement oflndians continued into the twentieth century, individual Indians now facially enjoy the same constitutional rights as other Americans. It is, however, important to note that, in certain instances, federal 45. Thank you to Elizabeth Loeb, J.D./Ph.D. candidate at New York University School of Law, for her assistance on researching Native American title claims. 46. See Mabo v. State of Queensland, 107 A.L.R. 1 (1992); Guerin v. Canada, S.C.R. 335 (1984). 47. 348 u.s. 272 (1955). 48. Id. at 274. 49. See Green v. Rhode Island, 398 F.3d 45 (1st Cir. 2005); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F.2d 341, 351 (7th Cir. 1983 ); Karuk Tribe of Calif. v. Ammon, 209 F.3d 1366, 1374 (Fed. Cir. 2000); Alabama-Coushatta Tribe of Tex. v. United States, 2000 WL 1013532 *11 (Fed. Cl. 2000); Zuni Indian Tribe of N.M. v. United States, 16 Cl. Ct. 670, 671 (1989).
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constitutional provisions may not apply on "Indian country. " 50 While on Native land, persons, both Native and non-Native, may be subject to the jurisdiction of tribal courts and laws, which do not mirror exactly federal constitutional protections. 51 The application of tribal law, as opposed to federal or state law, on Native lands is too complex to summarize here, and involves many contested issues. The jurisdiction of tribal courts over non-Native Americans, or over all nontribal members, has been the subject of much recent litigation in tribal and federal courts. Tribal property and political sovereignty rights are a different matter, however. Attempts to assert constitutional protection for these rights have been largely unsuccessful. The task of constructing a constitutional framework that will protect tribal rights finds its most formidable barrier in the legacy of the plenary power era- the long tradition of judicial analysis justifying extraordinary federal power over Indian tribal property and sovereignty that created powerful precedents impeding the application of meaningful judicial scrutiny of federal actions affecting tribal claims. Such a task is also hampered by the long and invidious history of discrimination against Indian peoples that has yet to be fully acknowledged and dealt with by the dominant society and whose tentacles extend into the present day.
50. "Indian country," as defined at 18 U.S.C. § 1151, means "(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-ofway running through the same." The Court has held that this definition applies to questions of both criminal and civil jurisdiction. California v. Cabazon Band of Mission Indians, 480 U.S. 202,208 n.5, citing DeCoteau v. District County Ct., 420 U.S. 425, 427 n.2. The applicability of these doctrines in Alades Hawaii involves additional complexities. 51. The relationship between Indian lands and the Constitution, and the Bill of Rights in particular, is a complicated as well as somewhat ambiguous one, as Lucy A. Curry writes: An unavoidable tension results from recognizing tribes as sovereign entities with the powers of self-government that are necessarily diminished under the historic and pervasive control of the dominant Anglo-American norms and prejudices. The inherent conflicts arising from this arrangement are most apparent when Indian tribes assert their sovereign powers over non-Indians living or transacting on tribal lands. For example, Congress passed the Major Crimes Act, extinguishing tribal jurisdiction over all major crimes, and passed both the IRA and the ICRA, respectively giving tribes the official power of self-governance and statutorily restricting tribal exercise of its powers based on the Anglo-American liberties of the Bill of Rights. Read together these laws allow tribes to operate as separate sovereigns with the jurisdiction to prosecute only minor crimes occurring on Indian land with the due process protections of the Bill of Rights, including habeas corpus relief in federal courts. With this status of the relevant law in mind, it is difficult to understand why the Supreme Court, in Oliphant v. Squamish Indian Tribe, chose to impliedly divest tribes of what remained of its sovereign power to prosecute and punish non-Indians for the minor crimes they commit on Indian territory. Not only does the status of the law render it puzzling, the Court's reasoning revived principles hundreds of years old found in the Doctrine of Discovery, which had remained dormant in the Court's Indian law jurisprudence for nearly 150 years. A Closer Look at Santa Clara Pueblo v. Martinez: Membership by Sex, by Race, and by Tribal Tradition, 16 Wis. Women's L.J. 161 (2001).
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Federal Indian policy in the past 20 years has been marked by a devolution of congressional power to states. 52 Jurisprudentially, the Supreme Court has regularly acted to diminish the legal sovereignty of Native peoples and to restrict Native selfgovernment upon reservations. 53 Legal issues affecting Native people that are at the current forefront of debate include54 the scope of federal regulations such as Title 7 on Indian land; the whaling rights of the Makah Indian tribe; 55 and Native water rights, particularly in western lands. 56 In addition, the contested issue of defining "Indian-ness" through biological measures such as "blood quantum" provide an interesting perspective on the American construction of race. 5 7 §11.2.2
Legal Gambling on Native American Lands
No legal issue affecting Native Americans may be more controversial than that of gaming on Indian lands. This issue is a complex one whose scope is beyond the purposes of this text. A brief overview is useful, however, both because the issue is so important and because it highlights the ongoing tensions between state and tribal sovereignty as well as the political and economic plight facing many tribes. Seminole Tribe of Florida v. Butterworth58 and California v. Cabazon Band of Mission Indians 59 were critical to the development of current Indian gaming law. 60 In Seminole, the Court of Appeals for the Fifth Circuit held that a Florida bingo statute could not be enforced against the Seminole Indian tribe. The court further held that Native Americans as well as non-Native Americans could play bingo on Indian land. 61 In Cabazon, the Supreme Court reaffirmed "attributes of 52. See Tracy Becker, Traditional American Indian Leadership: A Comparison with U.S. Governance (DL 8/27/01), available at http://www.airpi.org/research!tradlead.html. 53. For a more in-depth analysis of Native American policy and jurisprudence, see generally Robert Williams, Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (2005); Frank Pommersheim, Coyote Paradox: Some Indian Law Reflections from the Edge of the Prairie, 31 Ariz. St. L.J. 439 (1999); John Fredericks, America's First Nations: The Origins, History and Future of American Indian Sovereignty, 7 J.L. & Pol'y 347 (1999); Derek C. Haskew, Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 Am. Indian L. Rev. 21 (2000). 54. Thank you to Damien Pfister, Ph.D. candidate at the University of Pittsburgh, for his research assistance on current Native American issues. 55. See generally William Bradford, Save the Whales v. Save the Makah: Finding Negotiated Solutions to Ethnodevelopmental Disputes in the New International Economic Order, 13 St. Thomas L. Rev. 155 (2000). 56. See generally Rebecca Tsosie, The Challenge of Differentiated Citizenship: Can State Constitutions Protect Tribal Rights?, 64 Mont. L. Rev. 199 (2003). For further discussion of the contest over Native American water rights, see Taiawagi Helton, Indian Reserved Water Rights in the Dual-System State of Oklahoma, 33 Tulsa L.J. 979 (1998). 57. See generally Steve Russell, A Black and White Issue: The Invisibility of American Indians in Racial Policy Discourse, 4 Geo. Pub. Pol'y Rev. 129 (1999). For further discussion of blood quantum, see Scott L. Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 Colum. L. Rev. 702 (2001). 58. 658 F.2d 310 (5th Cir. 1981). 59. 480 U.S. 202 (1987). 60. See Jeffrey A. Dempsey, Surfing for Wampum: Federal Regulation oflnternet Gambling and Native American Sovereignty, 25 Am. Indian L. Rev. 133 (2000); Gary C. Anders, 556 Annals 98 (Mar. 1998). 61. Seminole, supra note 58.
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sovereignty" retained by Indian nations in some matters and held that a state could not regulate gaming on Indian lands so long as gaming is permitted in that state for any other purpose. 63 In 1988, after Cabazon was decided, Congress passed Public Law Number 100-497, the Indian Gaming Regulatory Act (IGRA). 64 The act was intended to strike a balance between tribal sovereignty and state interests. 65 Also at play were the powerful interests of the gaming industry. 66 The IGRA divides Indian gaming activities into three distinct classes, each with separate rules. 67 The distinctions are generally based on the type of game and the size of the potential prizes. The IGRA also creates a regulatory framework for gaming operations. 68 Under this framework, regulatory authority is allocated at four separate levels: tribal, state, federal, and National Indian Gaming Commission. 69 In general, under the IGRA, tribes have greater regulatory authority over gaming then they had previously. The IGRA mandates that all tribal gaming revenue be used exclusively for the welfare of the tribe and its members, tribal government operations, local government agencies, and charitable purposes. 70 In addition, a tribe may petition the Secretary of the Interior to allow per capita distributions to its members. 71 Although the IGRA generally protects Native sovereignty over gaming, it also imposes some forms of state control. For this reason, some tribal members and leaders object to the act's infringement on total sovereignty and call attention to the fact that, under the IGRA, an individual state is allowed to exercise power over Indian land that they are not allowed to exercise over another individual state. 72 The act is even more broadly contested by many states, which argue that the IGRA violates the Tenth and Eleventh Amendments. 73 The advantages and disadvantages of gaming on Indian lands, as judged from the perspective of Native Americans as well as the states, is a complex and nuanced topic. Briefly, it is worth noting that gaming has often provided desperately needed revenues for tribes living in abject poverty. Gaming revenues have been used to build houses, provide drug and alcohol treatment programs, allow tribal members to go to college, fund retirements, build hospitals and clinics, and provide other social services? 4 In addition, gaming revenues have increased the general economic well-being of many tribes. Such assistance is greatly needed given the harshness of conditions facing many Indians today, particularly those living on 62. 480 U.S. at 207, citing United States v. Mazurie, 419 U.S. 544, 557 (1975). 63. Id. 64. Pub. L. No. 100-497, Oct. 17, 1988, 102 Stat. 2467, United States Public Laws lOOth Cong., 2d Sess., convening Jan. 25, 1988 (S. 555). 65. Dempsey, supra note 60; Anders, supra note 60. 66. Anders, supra note 60. 67. ld. 68. Dempsey, supra note 60; Anders, supra note 60. 69. Anders, supra note 60. 70. ld. 71. ld. 72. Dempsey, supra note 60. 73. Anders, supra note 60. 74. Id.
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reservations. According to the U.S. Census Bureau, 31 percent of American Indians in general and 51 percent of American Indians living on reservations or trust lands live below the official poverty line; more than 20 percent of American Indian housing units on reservations or trust lands lack complete plumbing facilities; and major disparities in educational attainment exist between American Indians and the total population. 75 In addition, many Native American communities, particularly those on reservations, are plagued by disproportionately high rates of drug and alcohol abuse, suicide, and unemployment. 76 Gaming has been successful at generating tribal revenues virtually every place it has been established. 77 Gaming has also been credited with creating jobs, increasing Native American choice over economic development, elevating the status of tribes, and increasing political mobilization. 78 The lack of resources and troubling social conditions facing many Indians is viewed by many as a clear indicator of the need for the revenue generated by gaming on Indian lands. There are also, however, disadvantages to gaming, some of which are more difficult to precisely quantify. 79 Commentators such as Gary Anders have noted disadvantages, for example, spousal and child abuse and neglect; missed workdays; gambling addictions; increased drug and alcohol abuse; increased opportunities for theft, embezzlement, and criminal infiltration; the undermining of the cultural integrity of Indian communities; economic disparities between small and large tribes; the prevalence of casino jobs, which are "low-wage, high-turnover positions"; and the possibility that gaming may draw money from other local businesses. 80 Gaming may also open tribes up to organized crime involvement. Although most commentators agree that Indians are disproportionately impacted by many social ills, whether gaming helps or exacerbates the problem is a matter for debate. The issue of gaming on Native lands, then, is one that calls attention both to the plight of many tribes and to the ongoing tensions between state and tribal sovereignty. As the heated debate over gaming draws on, how courts and legislators continue to act will have far-reaching implications for Indian peoples.
§11.3 NONWHITE NATIVES IN OTHER LANDS Racism is not a uniquely American practice. In 1994, South Africa's peoples ended generations of apartheid aimed at complete physical and political separation of racial groups. Great Britain's history of imperialism included intense involvement in the slave trade and the creation of segregated colonial societies. In England, 75. "We the ... First Americans," U.S. Dep't of Commerce, Economics and Statistics Administration, Bureau of the Census (Sept. 1993), available at http://www.census.gov/apsd/ wepeople/we-5. pdf. 76. Anders, supra note 60. 77. ld. 78. Id. 79. Id. 80. Id. at 104.
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patterns of racism against nonwhites were visible in restrictive immigration laws and discrimination in housing and employment, not dissimilar to those found in urban America. Another example is the half-century of conflict between Israelis and Palestinians, who believe that the land of Israel belongs to them and who claim the "right to return," based on their residence in British Mandatory Palestine prior to the establishment of the State of Israel. This is the cornerstone of the Palestinian struggle against Israel. By contrast, Zionism, the modern movement for the return of Jews to their ancient homeland, views a Palestinian right to return as antithetical to the Jews' special, even God-given, historical and religious relationship with the land of Israel. Many argue that the return of Palestinians to Israel poses direct ideological and existential threats to the Israeli State. Israel has dominated the region by its superior arms and, in the process, views the Palestinians as a conquered people on whom it has imposed military rule. By denying the Palestinians basic rights and subjecting them to impoverished living conditions, the Israeli position has sparked revolts such as the Intifada and terrorist attacks. 1 The following discussion, to create a context for a deeper understanding of the plight of Indians in America when overwhelmed by European invaders, sets out a brief description of the experiences of the natives of Australia and of New Zealand under similar pressures. Both summaries were researched and drafted by Rebecca Kavanagh. 2
§11.3.1
Aboriginal Australians
Roberta Sykes is one of Australia's foremost black activists? She is a worldrenowned poet and writer and was the first black Australian to be awarded a doctoral degree from Harvard University. Yet, in her seminal text, Black Majority: An Analysis of Twenty-one Years of Black Australian Experience as Emancipated Australian Citizens, Dr. Sykes recounts being led off a plane in Europe because the
§11.3 1. For scholarly works supporting the Palestinian position, see Edward W. Said, Peace and Its Discontents: Essays on Palestine in the Middle East Peace Process (1995); Edward W. Said, The Politics of Dispossession: The Struggle for Palestinian Self Determination, 1969-1994 (1994); Noam Chomsky & Edward W. Said, The Fateful Triangle: The United States, Israel, and the Palestinians (1999). For a quick overview that provides a good background on the controversy, see Ron David, Arabs and Israel for Beginners (1993). Also see Justus Weiner, The Palestinian Refugees' "Right to Return" and the Peace Process, 20 B.C. Int'l & Comp. L. Rev. I, 1-2 (1997). For more discussion, see Ved Nanda eta!., Self-Determination: The Case of Palestine, 82 Am. Soc'y Int'l L. Proc. 334 (1988); Burns Weston eta!., International Law and Solutions to the Arab-Israeli Conflict, 83 Am. Soc'y Int'l L. Proc. 121 (1989). 2. B.A. (First Class Honors) University of Sydney 1994; LL.B. (First Class Honors) University of Sydney 1996; Awarded Lionel Murphy Overseas Postgraduate Scholarship 1997; LL.M. New York University 1998, JSD, 2004. 3. Aboriginal Australians are black and identify as such, so these terms are used interchangeably throughout this section. This identification is not questioned in Australia and elsewhere outside the United States, but it seems to confuse some Americans because Aboriginal Australians are not of African descent.
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authorities suspected she was an Ethiopian terrorist. 4 Why had she aroused suspicion? Because she is black and was traveling on an Australian passport. When Ralph Ellison wrote The Invisible Man in 1952, he could have been describing the Aboriginal experience in Australia as easily as the African American experience in the United States. Indeed, some 50 years after it was written, this trope of invisibility resonates strongly in the experiences of modem-day Aboriginal Australians. Few non-Australians are aware that Australia has a significant black population. Even those who are aware would probably not find Dr. Sykes's story surprising, since their impression of Aboriginal Australians is that they are a tribal people who live in the outback, and they certainly do not travel across the European continent. Indeed, the problem of invisibility is a defining element of the black experience in Australia- and it is not just about perceptions overseas. Few white Australians have meaningful contact with black Australians, and many hold the same misconceptions as do non-Australians. Like non-Australians, white Australians' contact with Aboriginality is often limited to movies like Crocodile Dundee and to documentaries on the Discovery Channel. But while Aboriginal Australians themselves are largely invisible on the world stage, Aboriginal culture (or at least the white co-opted version of it) is everywhere. Aboriginal art adorns Qantas planes; Aboriginal dance featured prominently in the opening ceremony for the Sydney 2000 Olympic games and as part of the 2003 Rugby World Cup opening spectacular; Aboriginality has become Australia's "cultural mascot," replacing the koala and kangaroo. This use (or, rather, misuse) of Aboriginal culture is not unintentional. Indeed, it is part of a very deliberate (and clever) attempt by the Australian government to control what the world sees of the black experience in Australia. Writing in the lead-up to the Sydney 2000 Olympic games, expatriot journalist John Pilger described this phenomenon in the Guardian. In Monaco, when the IOC met to decide on the winning city, Australia was presented as an oasis of human harmony, in marked contrast to China, its main rival for the games. Delegates were treated to street performances by Aboriginal dancers and didgeridoo-players in full body paint, together with cavorting giant kangaroos and wombats. Of course, white Australia has long appropriated the art and artifacts of the Aboriginal Dreaming. It was no surprise that the boomerang was adopted as the motif for the Sydney Games. Two Qantas aircraft have been repainted in indigenous designs, and there is an "indigenous advisory committee," headed by the affable former rugby star, Gary Ella, himself an Aborigine. When foreign YIPs arrive next year, they will be met by Aboriginal elders: "official greeters." And when the Olympic torch is first carried on Australian soil by Nova Peris-Kneebone, winner of the 200m at the 1998 Commonwealth Games, all those revelations of kickbacks, junkets, and gifts of $10,000 necklaces will be subsumed in the glow of an opening ceremony devoted to "mutual respect and reconciliation." 5
Pilger's analysis proved prescient. Black activists had long planned, and did manage to some degree, to use the games to draw international media attention to 4. Roberta Sykes, Black Majority: An Analysis of Twenty-One Years of Black Australian Experience as Emancipated Australian Citizens (1989). 5. John Pilger, "Fixed Race," The Guardian, Aug. 21, 1999.
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the plight of their people. But the carefully orchestrated government counterstrategy ensured that, when issues such as the stolen generations (discussed below) were covered in the international media, Australia was more often presented as a nation grappling with its past maltreatment of its Native people rather than as one dealing with the present-day consequences of that maltreatment. The media darling of the games was Cathy Freeman, the Aboriginal Australian runner who lit the Olympic torch during the opening ceremony and who was later victorious in the 400-meter sprint. Of the 400-meter dash, Time magazine commented, "not since African American Jesse Owens ran upside Hitler at the 1936 Olympics in Berlin has a footrace been freighted with so much extra-athletic significance." 6 Indeed, anyone who watched the race can attest to the enormous outpouring of emotion from the crowd, whose chants of "Cathy" reached fever pitch in the last hundred meters. Clearly something about this slight, elegant, and gracious young woman touched the soul of white Australia in a way that even they did not understand. Freeman completed her victory lap of the arena carrying both the Australian and Aboriginal flags. (A few years earlier, her decision to carry only the Aboriginal flag at the Commonwealth Games had sparked a national controversy.) In a phenomenon not dissimilar from the way in which African American athletes such as Michael Jordan become national heroes (almost, though not completely, transcending their race-witness 0. J. Simpson), so too Cathy Freeman became the quintessential Australian heroine of the new millennium. And while most white Australians chose to bask in the glory of her victory against insurmountable odds, perhaps reassuring themselves that all was right in the new Australia, at least one Australian- then-Prime Minister John Howard- chose not to participate. When asked if he was proud of Freeman's win, Howard replied that he was proud of all the Australian athletes competing in the games. He had shown no such reserve when praising white Australian swimmer Ian Thorpe's victory a few days prior. 7 Putting aside all of the hoopla surrounding Cathy Freeman's victory, however, just what is the reality of the black experience in Australia? The Australian continent has a human history of between 50,000 and 150,000 years, making Aboriginal Australians representatives of the oldest surviving cultures in the world. At the time of the European invasion in 1788, there were more than two hundred Aboriginal tribes, each with a distinct culture and language, and the total Aboriginal population was probably more than one million. Despite this, and in contrast to other British colonies, such as New Zealand, the British acquired sovereignty over the Australian continent based on the lie that it was uninhabited- "terra nullius" or nobody' s land- and no treaty was ever negotiated with the Aboriginal peoples. By the early twentieth century, the Aboriginal population had declined to fewer than 20,000 due to the efforts of the white invaders to rid themselves of what they termed the "Aboriginal problem." 6. For Her People, Time Magazine: The Year in Pictures, Dec. 2000. 7. On November 24, 2007, Australians defeated John Howard and elected a Labor Party leader, Kevin Brown as the new prime minister. He was elected on a platform of major reforms in education, health care, and environmental issues, particularly climate change.
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Today, according to the 2001 census, Aboriginal people comprise 2.7 percent of Australia's population, or close to 500,000 people, with the highest concentration of Aborigines choosing to live in Australia's largest city, Sydney. 8 The real figure is undoubtedly much higher-probably closer to 5 percent-due to historical undercounting. In recent years, there has been a massive national indigenous population surge. Indeed, in the last decade alone, the national Aboriginal population increased 55 percent. 9 Historically and to this day, Aboriginal people have lived on mainland Australia, Tasmania, and many of the continent's offshore islands; however, in all but the most remote areas of Australia, Aboriginal people have over the past 200 years been dispossessed of their traditional lands. Today, more than three-quarters of black Australians live in urban areas, and, of those who live in rural areas, only a small number live in remote traditional communities. 10 Still, the idea of the tribal Aborigine is the image paraded to the world (and to white Australia) in countless documentaries and news stories. Good reason exists, of course, for why the plight of Aboriginal Australians living in remote communities should garner international media attention- many communities have deplorable living conditions, lacking access to clean water or sanitation- but, sadly, the real needs of these communities are seldom part of the spin put on stories about the experience of Aboriginal Australians living in the outback. One of the most shocking examples of institutional discrimination and racism in the provision of basic services to indigenous Australians was documented in a report by the Human Rights and Equal Opportunity Commission, a federal government agency, on the living conditions of a remote Aboriginal community in an area known as Toomelah. The report found that the Aboriginal people in Toomelah lived without access to clean water; that the communities had hopelessly inadequate sewage systems; and that housing, often in the form of tin sheds more reminiscent of something one might find in a South African township than in a wealthy nation such as Australia, was dilapidated. The problem, according to the report, was not the remoteness of the community; it noted that a nearby white community had access to all these amenities. The report was so shocking that it received saturation media coverage, but some ten years later, a television crew visiting Toomelah found that little had changed. 11 The state of Aboriginal health is, or should be, a matter of national shame. Many Aboriginal people die of diseases otherwise eradicated in Australia, such as tuberculosis. The Aboriginal infant mortality rate is five times that of white Australians, and Aboriginal people have a life expectancy some 20 years less than
8. Native Titles in Private Housing, Canberra Times, Oct. 26, 2007; Tim Johnston, Australian Leader Wants "New Reconciliation" with Aborigines, New York Times, Oct. 26, 2007, at A9. 9. Debra Jopsen, "White as a Ghost" But One of a Growing Aboriginal Nation, Sydney Morning Herald, June 18, 2002. A significant part of this increase can be attributed to people raised without awareness of their Aboriginal heritage reclaiming their black identity and roots. 10. Australian Bureau of Statistics, Population Distribution: Indigenous Australians (1997). 11. Human Rights and Equal Opportunity Commission, Report on the Problems and Needs of Aborigines Living on the NSW-Queensland Border (Toomelah Report), 1988.
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12
other Australians. Perhaps surprisingly, these appalling statistics apply not only to black Australians living in remote communities but to all black Australians, most of whom, of course, live in urban areas. The problem, then, is not access to resources but the decades of neglect and the entrenched racism that is as much a part of Australian society as it is of society in the United States. The interplay of race and racism in Australia in many ways echoes the American experience, with, of course, vitally important differences. The same stereotypes that George Frederickson identifies in The Black Image in the White Mind (which examines racist attitudes in nineteenth-century America) were- and are-very much a part of Australia's culture of racism. The idea that black Australians are uncivilized savages draws on constructs similar to those that shaped the treatment of blacks in the United States. In 1844, for instance, W. C. Wentworth, speaking on the Aborigines Evidence Bill, which would have allowed Aborigines to testify in courts oflaw, claimed that it would "be quite as defensible to receive evidence in a court of justice the chatterings of the ourang-outang as of this savage race." 13 Henry Reynolds writes, Many early settlers probably arrived in Australia with, or soon acquired, a view of savagery compounded of godless anarchy, violence, cannibalism and sexual depravity .... Thus ideas from many sources- scientific and popular, old and new- fostered the growth of racial prejudice in the Australian colonies. Such attitudes influenced the course of race relations, encouraging and ultimately sanctioning the use of violence and vitiating the officially favored policy of assimilating the indigenes into white society. 14
Many scholars draw links between this racist ideology and the horrific violence that has been inflicted upon black Australians in the eighteenth, nineteenth and, indeed, twentieth centuries. Reverend William Yate, for instance, declared in 1830, "They were nothing better than dogs, and ... it was no more harm to shoot them than it would be to shoot a dog when he barked at you." 15 As in the United States, the idea of the black man as a sexual predator and threat to white women was a central part of this mythology and led to many lynchings in late nineteenthand early twentieth-century Australia. (In fact, John Pilger claims that "nigger hunts" continued well into the 1960s. 16) This appalling history oflynchings, massacres, and other violence toward Aboriginal Australians is well documented. 17 Despite this, a recent book by a previously little-known right wing academic, Keith Windschuttle, The Fabrication of Aboriginal History (2002), claims that orthodox historians had deliberately fabricated or exaggerated evidence of massacres and ill treatment of Aborigines by the early colonialists in order to assuage "white guilt 12. Heather McRae, Garth Nettheim & Laura Beacroft, Indigenous Legal Issues 1Off. ( 1997). 13. Cited in Henry Reynolds, Racial Thought in Early Colonial Australia 45-53 (1974). 14. Id. 15. Cited in Bruce Elder, Blood on the Wattle: Massacres and Maltreatment of Australian Aborigines since 1788 1 (2003). 16. John Pilger, Australia Is the Only Developed Country Whose Government Has Been Condemned as Racist by the United Nations, Oct. 13, 2000, available at http://pilger.carlton.com/ print/30056. 17. ld. See also Elder, supra note 15.
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for genocide." He focuses in particular on the destruction of the Aboriginal population of Tasmania, off the southeast coast of mainland Australia: The island's Native population was virtually wiped out in the early days of British colonial rule. Windschuttle dismisses as ideologically motivated the accepted estimates of the number of Aborigines killed by settlers. For instance, he categorizes the bitter clashes between settlers and Aborigines in the 1830s known as the "Black war" as "an outbreak of robbery, assault and murder by tribal Aborigines." Employing the narrowest standards possible, he also accepts as evidence of deliberate killings only those cases that were publicly reported or recorded. In doing so, as one critic, Dirk Moses (see below), points out, he uses the same standards of evidence as Holocaust deniers such as David Irving who argue that "because there are no direct surviving eyewitnesses of gas chambers ... therefore they did not exist or we cannot prove they exist." Ordinarily this sort of ideological drivel would be dismissed as the ranting of the lunatic fringe, but Windschuttle's work was praised by the Australian prime minister- who has used it to refute what he has termed the "black armband" view of Australian history- and received widespread coverage in Australian newspapers owned by Rupert Murdoch's News Limited. Windschuttle declares in the introduction to his book that what is at stake is "our understanding of the character of our nation and of the caliber of the British civilization we brought here in 1788," and as such, his book fans the flames of the "culture wars" set in motion with the 1996 election of the now former Australian prime minister, John Howard. A new collection of essays by some of the most esteemed historians of Australian history (edited by Robert Manne and including a contribution from Dirk Moses), Whitewash: On Keith Windschuttle's Fabrication of Aboriginal History (2003), comprehensively tears apart his analysis. But Windschuttle's book has already done tremendous damage to the reconciliation movement. As in the United States, white Australians are profoundly ignorant of both the modern-day and historical black experience. One could argue that such ignorance is a matter of choice. While few white Australians have meaningful contact with black Australians, the media, at least in Australia, does cover issues pertaining to Aboriginal Australia. Few Australians could feign ignorance, for instance, of the substandard living conditions of many Aboriginal people. The Toomelah Report, for example, received saturated media coverage. Similarly, the University of Sydney, Australia's oldest and most prestigious university, is located in the heart of Redfern, an inner-city neighborhood of Sydney with a majority black population. Each and every day, thousands of the children of the power elite make the 15-minute walk from Redfern Station to the university through streets lined with what can be described only as slum housing. Most choose to look away. Interestingly, Redfern is prime Sydney real estate, located just five minutes from the city center. The state government, keenly aware of this, has offered to buy up the land and relocate the families to other Sydney neighborhoods. While this proposal is attractive to some Aboriginal people living in Redfern who no doubt would like their families to grow up in more salubrious surroundings, it also threatens to scatter Redfern's black population all over Sydney, thereby breaking up the one majority black neighborhood in the city. 709
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Just as white America refuses to understand the modem-day consequences of slavery, many white Australians see the invasion of Australia two hundred years ago, and the consequent dispossession of Aboriginal people from their land, as an historical event of limited relevance to an understanding of the experience of black Australians today. Since the invasion of the Australian continent, black Australians have been subject to government policies that attempted variously to kill off, displace, convert, isolate, or assimilate them. It was not until 1967 that black Australians were recognized as fully fledged Australian citizens, and many nefarious government policies continued well into the 1970s. In a report by the Australian Human Rights and Equal Opportunity Commission, Australian government policies towards Aborigines were labeled "genocide." 18 Dr. Rosalind Kidd, who has extensively researched the policies and practices of the administration of the state of Queensland, concludes from her work that, for all of this century, "Aborigines have been the most intensively supervised sector of the population, and if we are to understand why present social indicators for Aborigines- health, education, employment, family cohesion- are so appallingly deficient, we must investigate how the machinery of government has created these circumstances." 19 After the white invasion in 1788, an extremely large number of indigenous Australians died, whether as the result of massacres by white Australians or as the result of introduced diseases or government neglect. The remnants of the black population were rounded up by the white authorities and moved away to reserves or missions where they were forbidden to speak their languages or practice their culture. Aboriginal people were used as a source of cheap labor for farmers, and Aboriginal women were often employed as domestics. The Australian states had a myriad of laws that prevented black Australians from entering hotels, marrying without permission, and living within town boundaries. Those Aborigines who were allowed to leave the missions were issued with papers known colloquially as "dog tags." One such law was the Native Administration Act enacted in Western Australia in 1936. This blatantly racist law provided, among other things, that: (a) No native, except adult half-caste males who do not live as Aborigines, can move from one place to another without the permission of a protector and the giving of sureties; (b) No native parent or other relative living has the guardianship of an Aboriginal or half-caste child; (c) Natives may be ordered into reserves or institutions and confined there; (d) The property of all minors is automatically managed by the Chief Protector, while the management of the property of any native may be taken over by consent or if considered necessary to do so to provide for its due preservation;
18. Human Rights and Equal Opportunity Commission, Bringing Them Home: A Guide to the Findings and Recommendations of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997). 19. Rosalyn Kidd, cited in Aboriginal and Torres Strait Islander Commission, As a Matter of Fact: Answering the Myths and Misconceptions about Indigenous Australians 11 (1998).
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(e) Natives may be ordered out of town or from prohibited areas; and Subject to the right of appeal, the Commissioner of Native Affairs may object to the marriage of any native.
(f)
Many historians have compared these laws to the apartheid regime as it existed in South Africa. The last of the laws listed above was not repealed until the 1970s. Antimiscegenation laws existed as well, though the rate of intermarriage and (consensual) sexual relations between black and white Australians has always been much higher than in the United States; currently almost 50 percent of black Australians marry outside their race. The idea of invisibility was central to these government policies. The official government policy was to assimilate the black population into the wider community. The belief was that this would mean that the Aboriginal "problem" would eventually disappear, as black Australians lost their identity within the wider community. In 1947, A. 0. Neville, a Western Australian Commissioner of Native Affairs, claimed that he had a "scientific solution" to the "Aboriginal problem." He argued that research showed that skin pigmentation could be bred out of Aborigines in two or three generations, and, if he were given the money to start a selective breeding program, he declared that he would solve the Aboriginal problem by breeding a race of white Aborigines?0 The scariest thing about this proposal is that it was not seen as outlandish or bizarre by the powers that be at the time: After all, it was really just an extension of what they were already doing. Though the official aim of government policy was assimilation, no one suggested that Aboriginal Australians should have equal citizenship rights, and they remained subject to strict government supervision. The most devastating part of the policy of assimilation was the forced removal of Aboriginal children from their families. These children, fostered out to white families or raised in institutions, are known as the "stolen generations," and the practice, begun in the earliest days of the British occupation, continued until the 1970s. At its peak from 1910 to 1970, between one in three and one in ten black children were removed from their families and communities. 21 While racism is no longer officially sanctioned in Australian law, it continues to have a destructive effect on the lives of black Australians and to manifest in their contacts with the legal system and government. The welfare system continues to remove Aboriginal children from their families at a rate far higher than white children are removed from theirs. Aboriginal people make up almost 20 percent of the Australian prison population (a rate of imprisonment higher than that of any other people in the world, including blacks in the United States and apartheid-era South Africa). The rate of imprisonment among Aboriginal women is even higher- some 32 percent of women in prison nationally are Aboriginal. In 20. See further Elder, supra note 15, at 179. 21. See Human Rights and Equal Opportunity Commission, Bringing Them Home, supra note 18. This policy is the subject of the critically acclaimed film by director Philip Noyce, Rabbit Proof Fence, about three Aboriginal children who escaped from the reserve, where they were placed after having been stolen from their families. The children found their way home by following the so-called rabbit proof fence that runs the length of the Australian continent.
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Racism and Other "Nonwhites"
Western Australia, the rate is higher still- there, one-half of the female prison population is black, and in the Northern Territory, the figure is two-thirds. 22 The number of black deaths in custody is so alarming that the government instituted a Royal Commission to examine the problem. Some 15 years after that commission released its recommendations, little if anything has changed, and, in fact, Aboriginal deaths in custody continue at a rate higher than during the period that was examined by the commission. Police brutality toward Aborigines is a huge problem in inner-city and rural areas. While Australia has no equivalent to the harsh drug laws that impact so greatly on black communities in the United States, black Australians are subject to a far higher rate of arrest than are other Australians for all crimes. They are also far more likely to be arrested for minor offenses, such as resisting arrest and disorderly conduct, than are white Australians. Few white Australians have any understanding of the impact of racism on the everyday lives of black Australians. As Elliot Johnston, who oversaw part of the Royal Commission into Aboriginal Deaths in Custody, has commented, Until I examined the files of the people who died and other material which has come before the commission and listened to Aboriginal people speaking, I had no conception of the degree of pinpricking domination, abuse of personal power, utter paternalism, open contempt and total indifference with which so many Aboriginal people were visited on a day to day basis. 23
Regrettably, this is a sentiment understood and shared by a seeming minority of white Australians. Although an increasing number of Australians seem to recognize the devastation that official government policies have wrought upon black Australia (there have been huge marches in support of reconciliation), a larger number seem to subscribe to the sentiments held by former Australian prime minister Howard, who has rejected what he terms the "black armband" view of Australian history. Whereas the former Labor party prime minister, Paul Keating, argued that white Australians needed to accept their culpability for the devastation wrought on Australia's indigenous people, Howard would absolve white Australia of all responsibility, instead proclaiming that the country has a proud history. The contrast between the two leaders could not be more complete. In a famous speech in 1992, launching the Council for Aboriginal Reconciliation, then-prime minister Keating passionately argued that reconciliation begins, I think, with the act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the disasters. The alcohol. We committed the murders. We took the children from their mothers. We practiced discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask- how would I feel if 22. Australian Institute of Criminology Study, cited in Aboriginal Justice Advisory Council, News, Mar. 2001. 23. Elliot Johnson, Report of the Royal Commission into Aboriginal Deaths in Custody (1991).
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Aboriginal Australians
§11.3.1
this were done to me? As a consequence, we failed to see that what we were doing degraded all of us. 24
By contrast, Howard was dragged kicking and screaming into making what was termed "an historic statement of regret" to the Australian parliament in 1999 for Australia's past treatment of its Aboriginal peoples. The power of the resolution was diluted because the prime minister made clear that this was not an apology and that it would entail no compensation. Some victims of the most terrible government policies- such as those who were removed from their natural families as children- have brought cases before the courts at a state and federal level. So far these claims have not been successful, but hope persists in some quarters that eventually Aboriginal people will get legal redress. Thus far, at least, the judiciary has had a better record than the legislature at upholding Aboriginal rights, but, considering how little the Australian parliament has done, that is not really saying a lot. In 1992, in the Mabo decision, the High Court for the first time recognized that in certain circumstances where Aborigines could demonstrate a "continuous connection" to a piece of land they could then assert native title to that land?5 The case was considered a landmark because it overturned the doctrine of "terra nullius," but its practical effect was limited because of the stringent test the court established as necessary to prove a "continuous connection" to a piece of land. So while the decision was widely praised, for the vast majority of Aboriginal Australians, who had long been dispossessed of their land, including the more than 80 percent who live in urban areas, it had, at most, symbolic significance. A later decision in the Wik case generated more controversy. 26 In that case, the court extended its earlier ruling and held that native title was not extinguished by pastoral leases, a decision that caused a furor among the landed aristocracy and that resulted in government legislation that effectively overruled the decision. This legislation prompted a group of black Australians to bring a claim before the United Nations, arguing that Australia was in violation of the United Nations Convention against Racial Discrimination. In a controversial decision, the United Nations Committee on the Elimination of Racial Discrimination found that Australia was indeed in violation of the convention- the first western nation ever to be found in violation- and asked the government to "please explain" its conduct; the Australian government has refused to consider this invitation. In a reaction not unlike that of many white South Africans when the international community imposed economic sanctions in their country, many white Australians expressed resentment at the United Nations' intervention in their "domestic affairs." Many white Australians, who have little if any contact with black Australians, are appallingly ignorant of the condition of blacks in Australia, and myths about black identity, in particular, abound. Because of the systematic rape of black Australian women by white men, for instance, as well as the official government policy of assimilation and the high rate of intermarriage between black and white 24. Paul Keating, Dec. 10, 1992, available at http://apology.west.net.au/redfem.html. 25. Mabo v. Queensland (No.2), 175 C.L.R. 1 (1992). 26. Wik Peoples v. Queensland, 134 A.L.R. 637 (1996).
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Chapter 11.
Racism and Other "Nonwhites"
Australians, many Aborigines, particularly those who live in urban centers, are of light complexion. Many white Australians believe that these Aborigines are not really "black" and that they claim to be Aboriginal only to gain special privileges. Historically, the federal and state governments have used definitions of Aboriginality based on percentages of blood, producing results that were both brutal and inconsistent. Child removal policies often targeted children with lighter skin, as they were thought to be more "assimilable." In contrast to the United States, however, and in parallel with South Africa, a person of some black heritage was historically much more likely to be defined as white than as black. Australia had no equivalent to the "one drop" rule. This was in keeping with the policy of assimilation, and it means that today many Australians have Aboriginal heritage of which they are unaware. Because of the enormous disadvantage associated with being defined as black, many Aboriginal people historically have "passed" as white. Many are only now reclaiming the heritage that was denied to them for so long, which explains why the percentage of people identifying themselves as Aboriginal has increased in recent census counts. (Although, in any case, as for blacks in the United States, black Australians have historically been undercounted.) Today, the government uses a three-part definition of Aboriginality that is generally accepted by black Australians; it provides that "an Aboriginal or Torres Strait Islander person is a person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he or she lives." The question of black Australian identity at the dawn of the twenty-first century is a complex one. Aboriginal leaders throughout the 1960s and up to today have looked to the black struggle in the United States for inspiration. Today, however, many younger Aboriginal leaders question this identification and have aligned themselves more closely with indigenous peoples around the world, such as with Native Americans, for example. This trend has been reflected in the political struggles on which Aboriginal leaders have focused. In recent years, they have increasingly focused on land rights and a treaty, though, of course, civil rights issues are still very much a part of the black agenda. Dr. Sykes points to the uniqueness of the Aboriginal identity: Aboriginal Australians are at once black and indigenous. Their struggle is likewise unique, at once having similarities and differences with the struggles of black Americans and Native Americans. Nothing better illustrates the current debate over Aboriginal identity than the controversy that currently surrounds Dr. Sykes herself. It has long been known that Dr. Sykes's mother was white and, although her father was not personally known to her, she always maintained that he was Aboriginal. In fact, it has emerged that Dr. Sykes's father was more likely an African American serviceman stationed in Australia during World War II. In the wake of this revelation, Dr. Sykes has faced a barrage of criticism from both black and white Australians. That this should be an issue of controversy at all is interesting, since for a long time black Australians identified almost completely with black Americans. That it is controversial speaks to the fact that Aboriginal Australians now wish to assert an identity separate and different from that of African Americans. 714
The Maori of New Zealand
§11.3.2
This is not to deny the very strong pull that the African American experience has for many Aboriginal Australians. Young black Australians often dress in a manner similar to that adopted by young black Americans; they listen to hip-hop and admire black American athletes. In 1998, Minister Louis Farrakhan visited Australia for the specific purpose of meeting with Aboriginal leaders, and he clearly saw the plight of Aboriginal Australians as analogous to that of American blacks. When Minister Farrakhan visited the inner-city neighborhood of Redfern in Sydney, he was greeted with cries of "Brother" and received an exceptionally warm welcome.Z7 Minister Farrakhan's visit was enormously controversial within Australia because of his reputation for anti-Semitism. Indeed, he was almost denied a visa because the government claimed they feared he would make statements in violation of Australia's racial vilification laws. Clearly, the government's real concern was that Farrakhan would draw unfavorable media attention to the plight of Aboriginal Australians. In reality, the visit drew little coverage in either the Australian or international press. Notwithstanding this, the plight of Aboriginal Australians has definitely become more visible in the wake of the Sydney 2000 Olympic games and the international success of movies such as Rabbit Proof Fence. Australia is also currently the country du jour in the United States, with Australian actors and musicians more visible than ever before on the world stage. The country itself is experiencing a surge in international tourism. With visibility, of course, comes power, and black Australians are hoping they can use the attention trained on their country to finally gain the redress to which they are entitled.
§ 11.3.2
The Maori of New Zealand
Like Australia, New Zealand is a majority white nation located in the heart of the Asia-Pacific. New Zealand shares much in common with its larger neighbor, although, with a total population of just over 3 million, 28 it is much smaller. (Sydney, Australia's largest city, has a population of more than 4 million, and the total Australian population is more than 20 million. 29 ) Today, New Zealand's population is more than 80 percent white? 0 The oldest inhabitants of New Zealand are the Maori, a people whose ancestors settled the previously unoccupied land in a series of migrations from eastern Polynesia starting some thousand years ago. Ethnically and linguistically, the Maori share much in common with other Polynesian peoples who inhabit South Pacific islands such as Hawaii and Fiji. The Maori are made up of more than 40 distinct tribes sharing a common language (in contrast to Australia, with more than 200 Aboriginal languages). Before the white colonization of New Zealand in the late eighteenth century, and despite their shared language, there was considerably less sense of shared Maori identity than there is today. Today, while important differences remain in 27. Nadia Jamal, "Aboriginal Misery Is Shame of Australia Says Farrakhan," Sydney Morning Herald, Feb. 16, 1999. 28. United Nations, Population and Vital Statistics Report, 1983. 29. Id. 30. Richard Mulgan, Politics in New Zealand 29 (1994).
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Chapter 11.
Racism and Other "Nonwhites"
the interests and culture of the Maori people, a much stronger sense of Maori solidarity has developed, partly as a means of defending Maori culture and institutions against the white colonizers. (In the Maori language, New Zealanders of European origin are called "Pakeha" and New Zealand is known as "Aotearoa," meaning the land of the long white cloud.) The Maori make up almost 15 percent of the New Zealand population. 31 Other minorities, such as Pacific Islanders and Asian immigrants, together make up another 5 percent of the population. 32 For a long time, the view persisted that the history of race relations in New Zealand was a harmonious one in which the interests of Maori were taken into account and respected. This view is wrong and ignores the massive injustices suffered by the Maori population both historically and in the present day. It is true that the Maori were able to negotiate a better deal than many indigenous peoples, but, given the deplorable treatment of indigenous peoples in general, this is not saying a great deal. The critically acclaimed movie, Once Were Warriors, searingly portrays the contemporary condition of Maori in New Zealand. The movie depicts, in unflinching terms, the devastating impact of European colonization on Maori institutions and the Maori way of life. Today, using most indicators of socioeconomic wellbeing, Maori are considerably worse off than most New Zealanders. The Maori unemployment rate is almost three times the national average; they comprise almost half the prison population; the infant mortality rate is far higher than for white New Zealanders; and life expectancy is much lower than for the white population. 33 It is clear then- and today most New Zealanders would accept this proposition- that white colonization has had a devastating impact on the Maori. Many important differences, however, distinguish the Maori experience from that of other colonized peoples. Unlike Australian Aborigines, the Maori experienced no widespread genocide, and Maori children were not forcibly removed from their families. Maori were also not systematically removed from their lands; more commonly, land was relinquished to the colonists in trades (the terms of which were often, however, disadvantageous to the Maori). The rate of intermarriage between Maori and European New Zealanders is higher than for any indigenous people anywhere, and overt racism against the Maori is far less common than against black Australians and Americans. Like Aboriginal Australians, and unlike Native Americans, today more than 80 percent of Maori live in urban areas. Unlike Aboriginal Australians, Maori do not identify themselves as black, nor do they look to the black struggle in the United States as a model for their own struggle. In New Zealand, as in Australia, the race debate is less formalized, and minorities are not as easily fitted into constructed categories such as "black" and "white." If Maori identify themselves as anything other than Maori, it would be as indigenous, Polynesian, or "brown." Maori often call themselves "tangata whenua," or "people of the land." While they might define themselves in opposition to the predominant white culture, it is 31. Id. at 32. 32. Id. 33. Id. at 26.
716
The Maori of New Zealand
§11.3.2
more common for them to speak in terms of partnership. Within that concept, however, the idea of a distinct, coequal Maori culture is central. Increasingly, that notion is being expressed through the idea of "Maori sovereignty" or "Maori self-determination." While the idea that New Zealand has had a harmonious history in the area of race relations is clearly false, it is certainly true that the Maori are better integrated into New Zealand politics and society than are the Aborigines in Australia. This is undoubtedly partly due to the fact that the Maori comprise a larger percentage of the population. Maori hold a number of seats in the New Zealand parliament (some seats are especially reserved for Maori representatives), although still in numbers far less than their proportion of the general population. A recent deputy prime minister, Winston Peters, is Maori. In Australia, by contrast, only two Aborigines have served as senators at the federal level (only one is currently in office) and no Aborigine has been a member of the federal House of Representatives. Unlike the United States and Australia, New Zealand has no history of de jure legal discrimination. Under the Treaty of Waitangi ("Te Tiriti.o Waitangi") of 1840, the Maori acquired the full rights and privileges of British subjects. The Treaty ofWaitangi comprises just three short articles and, despite New Zealand's essentially Westminster-style democracy, it is regarded by many today as one of New Zealand's most important founding constitutional documents. By the first article, Maori transferred sovereignty to Queen Victoria; the second article retained to Maori the "full and undisturbed possession of their lands, forests, fisheries and other properties"; and by the third, all Maori were declared to be British subjects. Two versions of the treaty were made: one in English, the other in Maori. Crucially, they didn't say the same thing. Under the Maori version of the treaty, Maori ceded something rather less than sovereignty and retained "rangatiratanga"- full and complete chieftainship or authority- over their lands. In the aftermath of the treaty, protracted land wars took place between the colonizers and the Maori, the end result of which was further devastating confiscation or loss of tribal lands. The Maori population declined dramatically over the course of the nineteenth century, primarily due to introduced diseases, although in recent decades the population has grown considerably. For a long time, so far as the legal system was concerned, the treaty had no status at all. In an infamous nineteenth-century case, it was declared a "simple nullity. " 34 Over time, however, Maori came to focus on the treaty as the measure of the wrongs that must be repaired in respect of land, forests, water, fisheries, and human rights for the Maori people. In the 1960s and 1970s, widespread demonstrations in protested the injustices suffered by the Maori people. In an attempt to meet some of the protestors' claims, the government in 1975 set up the Waitangi Tribunal as an independent statutory body charged with hearing and inquiring into claims by Maori of injustice on the part of the Crown. It had the power only to make recommendations to the government, not to make final decisions. To begin with,
34. Wi Pa Rata v. Bishop of Wellington, 3 Jur (N.S.) SC 72, 78 (1877).
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Chapter 11.
Racism and Other "Nonwhites"
it was limited to investigating grievances that occurred after its establishment in 1975. A decade later, in 1985, the government responded to political pressure from Maori groups by extending its jurisdiction to cover all grievances arising since the Treaty of W aitangi was signed in 1840. Within two years of this change, the number of claims awaiting hearing went from around 40 to 200; by 1993, the number of outstanding claims awaiting hearing totaled 350. 35 In the late 1980s, the New Zealand government began a process of selling off government assets, many of which were already, or could be in the future, subject to Maori claims before the tribunal. The Maori were concerned that once the assets were out of government hands they would have no means of redress. They brought a case challenging the legality of proposed sales by seeking enforcement of a provision of the legislation that the government had thought relatively ineffectual. 36 As a result of prior negotiations, the statute had been amended to include the phrase, "Nothing in this Act shall permit the Crown to act contrary to the principles of the Treaty of Waitangi." The Court held that this prohibited the government from carrying out sales of certain crown assets without negotiating with the Maori a mechanism for protecting present and future claims to those assets. The Court enumerated a number of important principles derived from the treaty. First, they held that the government had the right to make laws, but that it must accord Maori appropriate priority in that process; second, the Maori retained the right to manage their resources and treasures; and, third, the government was required to respect the principles of equality, of cooperation, and of redress. All of this meant that the Crown had to accept that it had failed its treaty partner and was legally obligated to make redress. In response to this decision and subsequent decisions extending the application of the principles, the government decided that it needed to institute a political solution, and, in 1994, it proposed a "fiscal envelope" of one billion dollars for full and final settlement of all Maori claims. This proposal was unpopular with Maori who found problematic the idea that all claims were to be finalized (particularly since the total dollar amount of the claims was far in excess of $1 billion). They also resented that the government thought it could dictate terms of the settlement. In the aftermath of the offer, a number of claims have been negotiated with the government, which appears to be accepting the Maori position that no dollar cap should apply to the settling of claims. Clearly then, the New Zealand government has been more responsive to Maori claims than the Australian government has been to aboriginal claims, though New Zealand has a long way to go to in recognizing the devastating impact of white colonization on the Maori people. The recognition by both the New Zealand Court of Appeal and the parliament that a substantial settlement is called for- and that any compensation has to go beyond just land rights- should, however, not be underestimated. The Australian government has yet to recognize this reality.
35. Id. at 167ff. 36. NZ Maori Council v. Attorney General (1987).
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The Chinese
§11.4.1
§11.4 NONBLACK RACIAL MINORITIES IN THE UNITED STATES §11.4.1
The Chinese
The Chinese were the first Asians to immigrate to California. Primarily laborers from Kwan tung Province, they emigrated from China to escape the great hardships that followed the Taiping Rebellion of 1850 to 1864. The discovery of gold at Sutter's Mill in 1848 greatly increased the attractiveness of California for the Chinese. By 1879, the Chinese population of California exceeded 111,000. 1 Much of the immigration was the product of the "coolie trade," an arrangement by which Chinese laborers were imported under contracts that amounted to a form of slavery. 2 The laborers quickly filled California's existing labor vacuums, and they provided an exceedingly cheap, efficient labor force. Responsible for the completion of such construction as the Central Pacific Railroad, the Chinese have been credited with much of California's subsequent prosperity. By 1860, however, they outnumbered the other immigrant groups in California and had earned the animosity of white labor groups by being "too efficient." 3 The Democratic and Republican parties were evenly matched at this period, and the labor vote of California was crucial to them. A contest soon developed as to which party was more anti-Chinese. Not surprisingly, a correlation existed between the economic situation and the level of anti-Chinese agitation. 4 The California legislature passed laws and regulations designed specifically to create social and economic hardships for the Chinese. The statutes ranged from a "foreign miner's tax" to a "police tax" and a "cubic air" ordinance. Virtually all of these laws were eventually declared unconstitutional, including the San Francisco ordinance requiring operators of frame laundries to obtain a license. This law, which appeared fair on its face but which actually was applied only to Chinese, resulted in the famous equal protection decision Yick Wo v. Hopkins. 5 Two important court decisions, however, were the source of great trouble to the Chinese. In 1854, the California Supreme Court ruled that the laws of the state intentionally excluded all people of color from giving evidence in court either for or against a white person, and, in 1867, a federal court held that the Chinese aliens
§11.4 1. SeeS. W. Kung, Chinese in American Life, 3, 30, 66 (1962). 2. Gunther Barth, Bitter Strength 56-58 (1964). 3. Kung, supra note 1, at 68; Carey McWilliams, Brothers Under the Skin 102 (rev. ed. 1964). 4. See generally Ronald Takaki, Strangers from a Different Shore 79-130 (1989) (documenting the treatment of Chinese immigrants in nineteenth-century America). 5. 118 U.S. 356 (1886). See also United States v. Wong Kim Ark, 169 U.S. 649 (1898), establishing that a Chinese born in the United States is a citizen, regardless of whether his parents are aliens. Ho Ali Kow v. Noonan, 12 F. Cas. 252 (No. 6,546) (C.C.D. Cal. 1876), invalidated the infamous "queue ordinance." Kung, supra note 1, at 22, explains that under this ordinance every male imprisoned in the county jail was required to have his hair cut to a uniform length of one inch from the scalp. As was well known, the custom of wearing queues was observed by practically every Chinese. The Chinese community aggressively posed sophisticated legal challenges to the grossly discriminatory legal restrictions imposed on them. See Charles J. McClain, In Search of Equality (1994) (reviewing their ultimately losing efforts to fight law with law).
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Chapter 11. Racism and Other "Nonwhites"
were not eligible for naturalization. 6 To achieve their objective of excluding Asians, the anti-Chinese forces realized that federal action was necessary. As a result of their political pressure, a joint special committee was appointed by Congress to study the "Chinese problem" in California. This committee concluded, in an oft-quoted report, that the presence of Chinese in California was advantageous to the capitalists but deleterious to the laboring classes. It also concluded that the intelligence of the Chinese was inferior to that of other races, including Negroes, and that coolies were men of vice; it recommended that they be denied naturalization and suffrage. The Fifteen Passengers Bill, which limited to 15 the number of immigrants that a ship could bring from China, was proposed and passed by Congress. It was vetoed, however, by the President, who considered it a violation of the Burlingame Treaty with China. This 1868 treaty did not give the Chinese the right to enter the United States (no treaty was needed for this purpose, since it was not until 1875 that Congress began to restrict immigration), but it recognized the "inalienable right" of man to change his home and allegiance as well as the "mutual advantage of the free migration of their citizens and subjects respectively from the one country to the other for purposes of curiosity, of trade, or as permanent residents." 7 This treaty was negotiated in 1880 to permit the United States to "regulate, limit, or suspend" the entrance of Chinese laborers, but "not to absolutely prohibit it." The power of interpretation was left to Congress, although it was provided that "the limitation or suspension shall be reasonable." 8 The Chinese Exclusion Act of 18829 became the first exclusively racial immigration law. 10 It was meant to carry into effect the treaty of 1880 by "suspending" the immigration of Chinese laborers for 10 years. It provided, however, that the Chinese laborers who had been in the United States since 1880 or who were to come within 90 days of the act's passage had the right to depart from the United States and reenter with an identifying certificate. In 1884, it was established that these certificates were the only permissible evidence in establishing a right of reentry.ll The Scott Act of 1888 declared void all outstanding certificates (at the time, numbering at least twenty thousand) and barred from reentering the United States all Chinese laborers who had not done so before its passage. 12 The Supreme Court upheld this act in the "Chinese Exclusion Case." 13 Although the Court conceded that the act contravened the treaties made with China, it held that treaties are not 6. People v. Hall, 4 Cal. Rep. 399 (1854). The Californian Supreme Court overturned the conviction of a white man convicted of killing a Chinese American because the conviction was based on the testimony of Chinese persons. 7. See Milton Konvitz, The Alien and the Asiatic in American Law 5 (1946). 8. Act of May 6, 1882, 22 Stat. 826. 9. 22 Stat. 58. 10. The second session of the first Congress, on March 26, 1790, enacted a naturalization law confining the right of becoming citizens to "aliens being free white persons." The law was cited by Chief Justice Taney in Dred Scott v. Taney, 60 U.S. (19 How.) 393, 419 (1857), supporting his conclusion that Africans, whether free or slave, were not intended by the Founding Fathers to hold
citizenship. 11. Act of July 5, 1884, 9, 3 Stat. ll5. 12. Act of Sept. 13, 1888, 25 Stat. 476. 13. Chae Chan Ping v. United States, 130 U.S. 581 (1889).
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The Chinese
§11.4.1
superior but equal to acts of Congress, and, therefore, the last expression of sovereign will controlled. It ruled that the power to exclude aliens is incident to sovereignty, which is delegated by the Constitution. The Court also held that the vested property rights are unaffected by the abrogation of a treaty, finding that it would be most mischievous if vested property rights could be so nullified. The Geary Act of 1892 extended the suspension for an additional! 0 years, and, in 1902, the suspension was converted into permanent exclusion. 14 The Act of 1892 provided that all Chinese laborers lawfully in the United States were required to obtain certificates of residence or face deportation. The Chinese raised large sums of money to sponsor litigation challenging the constitutionality of the act, but the Supreme Court upheld the Geary Act. The Court held that the determination of Congress was conclusive on the judiciary, and that the government has the inalienable right to expel all of any class of aliens, "absolutely or upon certain conditions, in war or in peace." 15 In its opinion, the Court referred to the unassimilable character of the Chinese in the United States. In 1927, the Court found that no equal protection violation resulted from the exclusion of a child with some Chinese blood from white schools under state law. 16 The United States entered the Second World War as an ally of China, and, the wrath of the nation being turned on Japan, American hostility to the Chinese was reduced. This change of heart, together with a goodwill visit by Madam Chiang Kai-shek, led to the repeal of the exclusion acts, although not without strenuous opposition. The Act of 1943 repealed all previous exclusion acts and established a token quota of one hundred Chinese immigrants. 17 This act was also a counter to Japanese propaganda against the United States. The Chinese gained the right of naturalization and were thus taken out of the category of citizens "ineligible for naturalization," a phrase used in discriminatory laws against Asians. The law remained prejudicial, however, in that only Asians did not fall under the "national origins" system. A Chinese immigrant was put under the Chinese quota even though his national origin was English or Malayan. In 1952, the Walter-McCarren Act was passed over bitter debate and a presidential veto. 18 The act retained the national origins system, but special racial quotas were established for Chinese and other Asians indigenous to a geographical Pacific triangle, drawn to include most Asian nations. It was not until 1965 that an amendment to the 1952 Act eliminated the discrimination against Asians in the immigration laws. 19 Specifically, the 1965 Act abolished the special immigration restrictions relating to Asians and forbade discrimination because of race, sex, nationality, place of birth, or place of residence. These amendments, as well as special provisions to allow Chinese immigrants to enter the country as refugees, have enabled the number of Chinese entering the United States to increase tremendously. Ironically, the sudden flow 14. Act of May 5, 1892,27 Stat. 25, 26, repealed, Dec. 17, 1943. 15. Fong Yue Ting v. United States, 149 U.S. 698 (1893). 16. Gong Lum v. Rice, 275 U.S. 78 (1927). 17. Act of Dec. 17, 1943,57 Stat. 600. 18. Act of June 27, 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. §§1101 et seq. See Higham, American Immigration Policy in Historical Perspective, 21 Law & Contemp. Prob. 235 (1956). 19. Act of Oct. 3, 1985, Pub. L. No. 89-236, 79 Stat. 911.
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Chapter 11. Racism and Other "Nonwhites"
of immigrants has severely strained the social fabric of Chinese communities, to the point of disintegration, but this problem stems from a different source than racial discrimination against immigrants, unless, of course, Chinatowns themselves are viewed as products of discrimination?0 The "Chinese Exclusion Cases," as they are called, have been brought to attention in the wake of September 11 and the anti-Asian/anti-immigrant backlash that resulted. This topic is discussed in more detail in § 11.5. Presently, it appears that all the racial discrimination in the immigration and nationality laws has been eliminated. In a sense, the Chinese alien's problems have been diffused and have become a part of the general "alien's problem." As for the immigration laws as a whole, serious issues of due process and equal protection remain? 1 In administering immigration laws, administrative agencies have much discretion. The Department of State, which issues the visas to aliens, has almost complete control over the number of aliens entering, since applicants have no recourse against a consul's denial of a visa. Thus, as with the Native Americans, the Court's willingness to defer to Congressional "plenary power" remains a serious problem. 22 Beyond problems of immigration, the Chinese in the United States are still widely thought to be intimately tied to China, and, as their history would seem to indicate, the discrimination faced by Americans of Chinese ancestry is in large part determined by Americans' attitudes towards China. 23 Professor Taunya Banks discusses interminority racial bias by tracing how the Chinese in Mississippi, who while a marginalized group when imported to work in the post-Civil War period gained status as shopkeepers serving the black community, subsequently developed the prejudices against blacks held by the whites who dominated them both. 24 §11.4.2
The Japanese
The Japanese, who in 1890 began immigrating to the United States in large numbers, arrived on the West Coast at one of the most inopportune periods in American history. Anti-Chinese feeling had reached its peak, and this hostility was easily transferred to the new Asian arrivals. Japan stunned the world with her victory in the Russo-Japanese War of 1905, and the military strength that Japan had displayed aroused fears of a "Yellow peril" in the United States.Z5 In 1906, the San Francisco Board of Education, then controlled by the Labor party, decided to enforce an ordinance passed the previous year that would segregate the city's Asian children. In the context of events, the school board's action 20. See Chin, New York Chinatown Today: Community in Crisis, 1 Amerasia J. (Mar. 1971). 21. See Rosenfield, 1 Immigration Law (rev. 1970). 22. See Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law oflmmigration, 46 UCLA L. Rev. 1 (1998). 23. See Paula C. Johnson, The Social Construction of Identity in Criminal Cases: Cinema Verite and the Pedagogy of Vincent Chin, I Mich. J. Race & L. 347 (1996). 24. Taunya Lovell Banks, Both Edges of the Margin: Blacks and Asians in Mississippi Mas ala, Barriers to Coalition Building, 5 Asian L.J. 7 (1998). 25. McWilliams, supra note 3, at 142-145.
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The Japanese
§11.4.2
was highly, and intentionally, provocative. Protests were lodged in Washington, and President Theodore Roosevelt denounced the ordinance as a "wicked absurdity." A suit by the Attorney General to enjoin the enforcement of the ordinance was never brought to trial, since President Roosevelt had negotiated the Gentlemen's Agreement (by which the Japanese government had agreed to restrict the flow of Japanese immigrants entering the United States), and the appeased school board agreed not to enforce the ordinance. California racists were not satisfied, however, and began to scream about a loophole in the agreement that allowed the importation of Japanese "picture brides." The fears of a Mongoloid invasion and contamination rose, and the Japanese immigrants, seeing this, petitioned the Japanese government not to allow any more Japanese women to come to the United States, in order to preserve the status quo of the Gentlemen's Agreement. 26 But racism and exclusion need not take the form of exclusion acts; in 1913, California enacted the Alien Land Laws. Many states followed suit. The laws were designed to prevent Japanese immigrants from earning a living in agriculture, thereby driving them out of the state. The Japanese had filled the agricultural labor vacuum in California, and again their fault was that they were "too efficient" and provided stiff competition for other agricultural laborers. The first Alien Land Law was enacted in 1913, and its constitutionality was established during the following decade. Nevertheless, for a number of years prior to World War II, enforcement was only halfhearted. Legal loopholes, administrative inactivity, and public indifference enabled Japanese aliens to circumvent many of the prohibitions. Although they were excluded from the labor movement and from many businesses, their ingenuity and hard work nevertheless enabled the Japanese to do well in small farming and merchandizing. But in the 1920s, the Alien Land Laws did not seem sufficiently restrictive to many Americans, and in 1924 an exclusion act was passed. The Quota Act of 1924 excluded from immigration "aliens ineligible to citizenship. " 27 Japanese aliens were not to gain the right to citizenship until the Walter-McCarren Act of 1952. Since the Chinese were already excluded, the 1924 Act was obviously aimed at Japanese immigrants. Japan's sense of honor was greatly offended. She was still suffering from the Tokyo earthquake, and the exclusion act was viewed as the direct opposite of Japan's response to America's similar tragedy. (Japan had sent generous assistance to San Francisco in the aftermath of its earthquake, just before the San Francisco School Board incident.) This direct affront has been cited many times as one of the major factors that enabled the military to gain the upper band in the Japanese government, leading eventually to World War II.Z 8 The Japanese attacked Pearl Harbor on December 7, 1941. The next day, December 8, 1941, the United States declared war on Japan, and all Japanese aliens were classified as "enemy aliens." On February 19, 1942, President Franklin Roosevelt issued Executive Order 9066, "giving authority to certain military commanders to prescribe military areas from which any or all persons may be excluded, 26. ld. at 146. 27. Act of May 26, 1924, 43 Stat. 153, 8 U.S.C. §§201 et seq. 28. See William Hosokawa, Nisei: The Quiet American 112-113 (1969).
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and with respect to which the right to enter, remain in, or leave, shall be subject to the discretion of the military commander," Lieutenant General John L. De Witt. 29 Executive Order 9102 established the War Relocation Authority on March 18, 1942?0 Significantly enough, certain pressure groups- the Western Growers Protective Association, the American Legion, the Native Sons of the Golden West, and various other groups-actively promoted the campaign to evacuate the Japanese. Some other pressure groups were the Grower-Shipper Vegetable Association, the Associated Farmers, and the California Farm Bureau. Carey McWilliams has written: There is an irony about mass evacuation which has somehow escaped attention. The economic vulnerability of the Japanese on the West Coast made their removal possible and this vulnerability had been brought about largely by external pressures and discriminations. In Hawaii the Japanese were not nearly so vulnerable; indeed they were the mainstay of the economic life of the Islands and hence could not be evacuated.... Mass evacuation was not the product of wartime hysteria; it was the logical end-product, the goal, of a strategy of dominance which began forty years earlier and which was closely related to a similar strategy of American dominance in the Pacific. The resident Japanese were always the hostages of this larger strategy. 31
Three cases were brought before the Supreme Court to test the constitutionality of the orders in three aspects: the curfew, the evacuation, and the internment. The first case, Hirabyashi v. United States, 32 presented the question whether the curfew restriction of March 24, 1942, adopted by General DeWitt, was based on an unconstitutional delegation by Congress of its legislative power and whether it unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries, in violation of the Fifth Amendment. The Court acknowledged the hardships imposed by the exclusion order on a large group of American citizens, but it affirmed the validity of the restriction, stating: We cannot say that these facts and circumstances, considered in the particular war setting, could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States .... We cannot close our eyes to the fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry.
In Korematsu v. United States, 33 the Court sustained the constitutionality of the evacuation order in a six-to-three decision. In Justice Murphy's dissenting opinion, DeWitt was quoted as saying before a congressional committee: "I don't want any of them here. They are a dangerous element. ... It makes no difference whether he is an American citizen, he is still a Japanese .... But we must worry about the Japanese all the time until he is wiped off the map."
29. 30. 31. 32. 33.
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Executive Order No. 9066, 7 Fed. Reg. 1407. Executive Order No. 9102 and Executive Order No. 9066, 7 Fed. Reg. 1407. McWilliams, supra note 3, at 164. 320 u.s. 81, 101-102 (1943). 323 U.S. 214, 235 n.2 (dissenting opinion) (1944).
The Japanese
§11.4.2
The same day that the Korematsu case was decided, the Supreme Court also considered the case of Ex parte Endo, 34 which tested the internment order. Endo sought release, on a writ of habeas corpus, from a War Relocation Authority camp. The Court upheld the writ, but only on extremely narrow grounds: that the detention was not authorized by the Congress or the President. The constitutional question was expressly avoided. Subsequent research by Peter Irons has revealed that the government fraudulently concealed its actual reasons for the internment of Japanese-American citizens from the Supreme Court during the litigation challenging the internment orders? 5 While the Japanese were interned, much of their property was confiscated, stolen, or escheated. Little compensation was given. One writer reports: On July 2, 1948, President Truman signed into law the Japanese American Evacuation Claims Act. The evacuees were given until January 3, 1950, to file claims against the government. By that deadline they filed 23,689 claims asking a total of $131,949,176-one third of the sum the Federal Reserve Bank had estimated they had lost. ... In all, some, $38,000,000 was paid out in evacuation claims -less than 10 cents for every dollar lost. Furthermore, claims were made on the basis of 1942 prices, and payment was made in inflated postwar dollars. In terms of reduced purchasing power, the evacuees were paid only a nickel in compensation for every dollar they had lost as a direct consequence of the evacuation. 3
In addition to loss of freedom, property, educational opportunities, businesses, and employment income, the 120,000 people of Japanese ancestry interned, more than two-thirds of whom were native-born American citizens, were subjected to onerous living conditions. They were forced to wear identification tags; and many suffered disease and hardship from exposure to the elements, poor sanitation, and an inadequate diet. Exposed to such conditions for up to four years, many died. In addition to disruption of familiar life and customs, they lost all rights to privacy, even to the extent of performing ordinary bodily functions. The interns had no freedom of expression or ability to communicate freely with others outside the camps and were denied the right to use the Japanese language or to read Japanese literature other than the Bible and the dictionary. Nevertheless, they had to swear an oath ofloyalty to the United States as a condition oftheir release. 37 In analyzing the overall effect of the wartime cases, Eugene Rostow has written: What the Supreme Court has done in these cases, especially in Korematsu v. U.S., is to increase the strength of the military in relation to civil government. It has upheld an act of military power without a factual record in which the justification for the act was analyzed. Thus, it has created doubt as to the standards of responsibility to which the 34. 323 u.s. 283 (1944). 35. See Peter Irons, Justice at War vii-ix (1983). 36. Hosokawa, supra note 28, at 445-447. Compensation under the act was paid only for loss of property that could be proved by records, 50 U.S.C. app. §1983(b). And once a claim was paid, the claimant waived all rights to make any further claims against the United States arising out of the evacuation. 50 U.S.C. app. §1984(d). 37. See Robert Wesley, Symposium: The Long Shadow of Korematsu, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?, 40 B.C. L. Rev. 429, 449-450 (1998).
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Chapter 11. Racism and Other "Nonwhites"
military power will be held. For the first time in American legal history, the Court has seriously weakened the protection of our basic civil right, the writ of habeas corpus. 38
The ease with which federal authorities had succumbed to old wives' tales about Black Dragon societies, emperor worship, and sabotage cults endowed antiNipponism with an intellectual acceptability that it had not possessed during earlier periods. Moreover, the federal program for relocation of the Japanese in 1942 provided an unparalleled opportunity for the state governments to conduct investigations and to adopt plans for systematic discrimination against the Japanese upon their return. Both the Korematsu decision itself and the United States' shameful history of internment of Japanese Americans has taken on new relevance, unfortunately, in light of the post-September 11 increase in anti-Asian violence and the institutionalization of ethnically motivated government processes such as the Special Registration Program, which is discussed in detail at the end of the chapter. Accordingly, both the California and Oregon legislatures amended their laws during the war years so as to provide for stricter control of Japanese land ownership, and in 1945 the Attorney General of California was given an appropriation to expedite: investigation by the counties of evasion of the Alien Land Law. Upon ascertainment of evasion, the state, in conjunction with the county, was to institute escheat proceedings divided between state and county. Such proceedings received judicial sanction by California courts but were struck down by the Supreme Court in Oyama v. California. 39 By a six-to-three decision, the Court ruled that the escheat action was unconstitutional because it was a denial of equal protection to the citizens in whose name the alien father had placed his property. The Oyama case established the escheat action as unconstitutional. Later litigation voided the Alien Land Law. In another important case, Takahashi v. Fish and Game Commission,40 the right of Issei (first-generation Japanese immigrants) to engage in commercial fishing was upheld by the Supreme Court. California had denied commercial fishing licenses to "aliens ineligible to citizenship" on the pretext that this was a conservation measure. The question presented was: Can California, consistently with the Constitution, use this federally created racial ineligibility for citizenship as a basis for barring Takahashi from earning his living as a commercial fisherman? The Supreme Court held that this violated the Equal Protection Clause and conflicted with the federal power to regulate immigration. After great pressure was brought, President Reagan signed the Civil Liberties Act of 1988, setting in motion the statutory means by which Japanese Americans would begin to receive federal reparations payments. 41 Government implementation of the measure has been slow, and it is estimated that only about 60,000 38. Eugene Rostow, The Japanese-American Cases- A Disaster, 54 Yale L.J. 489 ( 1945); see also Konvitz, supra note 7, at 244-276. 39. 332 U.S. 633 (1948). See The Alien Land Laws: A Reappraisal, 56 Yale L.J. 1017-1036 (1946-1947); Anti-Japanese Land Laws of California and Ten Other States, 35 Cal. L. Rev. 7 (1947). 40. 334 U.S. 410 (1948). 41. 50 U.S.C. app. §§1984(b)(4), (d).
726
The Mexicans
§11.4.3
survivors or their next of kin will be paid. About half of the internment survivors died before the legislation was passed. 42
§ 11.4.3
The Mexicans
When the Mexican American War ended in 1848, approximately 75,000 Spanish-speaking people lived in the borderlands that were now U.S. territory. In these areas (later to become the states of Texas, New Mexico, California, Arizona, and Colorado), immigrants from the south had begun establishing settlements in the early sixteenth century. Santa Fe had been functioning as the capital of "Nuevo Santander" (the Spanish name for New Mexico) for some 20 years before Jamestown was established in 1607. Living in isolation on land that was as yet hardly penetrated by traders and explorers from the eastern states, the settlers had until the 1820s only infrequent contact with Anglos (non-Spanish-speaking people), and this contact had not been antagonistic. The Southwest Territories passed from Spanish rule to Mexican sovereignty in 1821, when Mexico declared its independence from Spain. Mexico experienced severe internal political problems for about the next twenty years, and these problems culminated with the secession of Texas from Mexico in 1836. Mexico considered the 1845 Act of Annexation, under which Congress allowed Texas to enter the Union, an act of war, and armed conflict ensued in 1846. The result for the United States of the Mexican American War was the annexation of Texas and the rest of the southwest Territories. The Treaty of Guadalupe Hidalgo, signed on February 2, 1848, codified the secession and annexation of the Southwest Territories. The treaty further guaranteed both the civil and property rights of the Mexicans who agreed to become American citizens. An estimated 75,000 Mexicanos accepted American citizenship, but, as with other "nonwhite" Americans, neither citizenship nor treaties provided protection. Certainly, the treaty failed to protect the Chicano. 43 The borderlands of Mexico, part of a country long regarded by many Americans as poor, degenerate, and uncivilized, fell quickly to the surge of Anglos who migrated there. The war with Mexico had left a heritage of hatred, hostility, and contempt. The Anglos who flooded the southwest had little appreciation for the economic, cultural, and political history of the Chicanos, who fell victim to all the sufferings endured by a conquered people. The pattern of oppression and discrimination that has characterized AngloHispano relations for more than a century emerged in the course of westward expansion. Anglos were determined to take possession of the land. The pattern was reinforced when the demands of economic development created a need for 42. Wesley, supra note 37, at 451. 43. "Chicano," a diminutive of "mejicano," was first used as a sobriquet, "given in sympathy and exasperation," for the refugees from the Mexican Revolution in the years following 1910. On the inspiration of Rudolfo "Corky" Gonzales, the militants have adopted it to "announce a distinct people, once suppressed but now reclaiming their integrity." John Womack, The Chicanos, N.Y. Review of Books, Aug. 31, 1972, at 12, 14. In the "barrio" (that is, the Mexican American community), the word had long been used to distinguish Mexican Americans from Mexican citizens.
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Chapter 11. Racism and Other "Nonwhites"
cheap labor, a demand easily filled by successive waves of immigrants from Mexico. In the competition for land and for control over other resources, the provisions of the Treaty of Guadalupe Hidalgo guaranteeing the cultural autonomy and property rights of the Spanish-speaking inhabitants were forgotten. The arrival of the transcontinental railroads created strong pressures for economic development and increased the competition for control over the land. Mexican Americans were disadvantaged in their struggle for survival, not only by their small numbers (in 1860 they constituted only one tenth of the population of the southwest as a whole), but also by the cultural and geographical isolation they had experienced for generations. The "Spanish Colonials," descendants of the earliest Spanish-speaking settlers, acted as a buffer group between more recent arrivals and the dominant Anglo culture; while they thus helped to soften the impact of an alien and antagonistic social environment, they also impeded the development of group consciousness and self-organization among the Chicano masses. Protest was not lacking in the nineteenth century, but it was unsuccessful. Courtroom battles were lost, and the few organizations that fought for Mexican American rights-the Knights of Labor, the Gorras Blancos-fought in vain. 44 According to Carey McWilliams, political participation was suppressed by such techniques as withholding statehood from Arizona and New Mexico until1912until, that is, Anglos had achieved numerical superiority. In New Mexico, California, and Texas, the native upper-class Hispanos collaborated with the Anglos and bought off the Chicano masses with favors and minor patronage. 45 Organizing efforts were more successful after the Mexican Revolution of 1910, which produced a flood of new migrants-some 800,000 between 1910 and 1920. Even so, economic conditions continued to favor the exploitation of cheap labor. Federally financed irrigation of desert lands, which began in 1902, was felt in the mid-1920s when changes in American eating habits created a great demand for fruits and vegetables and new packaging methods made mass production feasible. One writer estimates that Mexican Americans provided about 75 percent of the labor that grew these crops. In addition, between 1910 and 1930, most of the cotton field-workers in Arizona, Texas, and California; 60 percent of the mine workers; and 80 percent of the railroad workers in the western states were Mexican Americans. 46 With the advent of "agri-business," the farm-village economy disintegrated, and the isolation that had rendered unity difficult came to an end. In addition, selfperception was influenced by revolutionary foment in Mexico: A new pride and self-confidence was born out of identification with the Mexican Indian, rather than from spurious links with the Spanish heritage. The League of Latin American Citizens (LULAC), a "self-improvement" group, was established in 1927, and in 1928 and 1930 migrant workers, organized as the Confederaci6n de Uniones Obreras Mexicanas, staged strikes in southern California. "But the tougher the fights, the uglier the defeats; though LULAC citizened along, the Confederation 44. See Womack, supra note 43, at 12. 45. McWilliams, supra note 3, at 134. 46. Cohen, The Failure of the Melting Pot, in The Great Fear: Race in the Mind of America 150 (Gary Nash & Richard Weiss eds., 1970).
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The Mexicans
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was busted with tear gas and clubs. " 47 Strikers were arrested or kidnapped and beaten by the growers' henchmen, and strike leaders were deported. Organized labor discriminated against Mexican Americans by excluding them from established unions and by creating ethnic wage differentials. The availability of "cheap Mexican labor" caused resentment among Anglos who could not exploit it for their own benefit. By the mid-1920s immigration laws were being enforced by "border patrols." Nevertheless, at least half a million Mexicans entered the United States between, 1920 and 1929; this is a conservative estimate, because nothing officially records the number of illegal entrants, which may have reached into in the hundreds of thousands. Agitation increased during the Depression; nearly 500,000 Mexican Americans, probably half of them American citizens, were deported. World War II marked a turning point: The manpower shortage created by the war meant new opportunities for Chicanos, as did the postwar boom. But entry into higher echelons of the economy did not ensure an end to discrimination or vigilante action. On the contrary, Anglos reacted violently. Shortly after the "relocation" of Japanese Americans, Californians directed their xenophobia at Mexican Americans in a "Campaign of Terror" that culminated in the "Zoot-Suit Riots" of June 1943. For a week, Anglo soldiers, policemen, and civilians rampaged in the Mexican American ghetto of Los Angeles, beating and stabbing their victims, many of whom were then arrested. Token social reform followed in the wake of economic progress. In 1947, segregated schools for Mexican Americans were outlawed. 48 The Community Services Organization (founded in 1947) and the Gl Forum (1948) reflected increasing self-awareness and self-assertiveness. By the early 1960s, Chicanos were participating with some success in the political process. "Viva Kennedy" clubs brought out the Chicano vote for John F. Kennedy, and Mexican American organizations helped to elect a few congressmen. Militancy increased in the wake of the civil rights movement. Some money became available to Chicano activists in 1964 and 1965 as a result of the War on Poverty, but the Delano grape strike led by Cesar Chavez undoubtedly had a greater impact on Chicanos than on American society at large. Activism has ranged from unionization of migrant workers to organization of Brown Beret self-defense units in the barrios and walkouts by high school students in protest against racist teachers and curricula. The rallying cry for protest was Ia raza "the people." Later, the movement split into "integrationist" and "separatist" branches. Internal ideological disputes evidenced a sense of success or at least of increased self-confidence. Response at the federal level has consisted of the Bilingual Education Act49 - eliminated under No Child Left Behind- and the appointments by the Nixon and subsequent administrations of some Spanish-speaking persons to 47. Womack, supra note 43, at 13. 48. Westminster Sch. Dist. v. Mendez, 161 F.2d 774 (9th Cir. 1947); similar action was taken in Texas in 1948, Delgado v. Bastrop lndep. Sch. Dist., Civ. No. 388 (W.D. Tex., June 15, 1948). See Rachel F. Moran, Bilingual Education as a Status Conflict 75 Cal. L. Rev. 321 (1987) (analyzing controversy over bilingual education as conflict over status between Anglos and Latinos). 49. 20 U.S.C. §§880(a) et seq. (1968).
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government posts. But a great many Mexican American families still earn a median income of only two-thirds that of Anglo families in the southwest, and millions of Chicanos in that region are living at a subsistence level. Now about 80 percent urbanized, Chicanos are still crowded into "Mextown" ghettos. In a series of school cases, courts have recognized Mexican American students as a cognizable ethnic group who have been the victims of segregated schools no less than have blacks and who are thus as entitled as blacks to the protection afforded by the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Not surprisingly, the position of Chicanos in terms of both earning power and employment is analogous to the deprivation and discrimination they have suffered in the area of education. The Mexican American Legal Defense and Educational Fund initiated a number of lawsuits based on Title VII, the employment discrimination section of the Civil Rights Act of 1964. The group cites statistics showing that employment discrimination directed against the Chicano remains prevalent. In the southwest, the unemployment rate of Chicanos is twice that of Anglos; Fund members maintain that even this figure does not reflect the true situation, since chronically underemployed farm workers are not included in the statistics. Because of the long tradition of economic and social deprivation, the Chicano has been denied a basic opportunity to participate in the political process. And American immigration policy as directed at Mexican Americans retains the hallmarks of racism that mark the history of U.S. immigration policy in general. Professor Kevin Johnson, in a lengthy article reviewing U.S. immigration policy visited on people of color, reports: Despite the fact that undocumented persons come from nations all over the world, the near exclusive focus of governmental and public attention at the tail end of the twentieth century has been on undocumented immigration from Mexico. The racial impact of the push to crack down on "illegal aliens" is unmistakable. Well-publicized border enforcement operations, little different from military operations, in El Paso, Texas (Operation Blockade, later renamed Operation Hold the Line due to protests from the Mexican Government) and San Diego, California (Operation Gatekeeper) have been aimed at sealing the U.S.-Mexico border and keeping undocumented Mexican citizens from entering the United States. Indeed, U.S. military forces assisted the Immigration & Naturalization Service (INS) in policing the border. At the same time, reported abuses against Mexican nationals along the border continue unabated. For example, in 1997, a U.S. Marine on patrol shot and killed a teenager, Esequiel Hernandez, Jr. (a U.S. citizen who had no criminal record) while he was herding his family's goats near the border. The U.S. General Accounting Office found that, despite the border enforcement buildup, the evidence was inconclusive about whether the strategy had proven effective. 5°
The United States Border Patrol reported 1013 migrants died between 1997 and mid-2001 trying to cross the southwest border. The number of deaths increased 50. Kevin R. Johnson, Race, the Immigration Laws, and Domestic Race Relations: A "Magic Mirror" into the Heart of Darkness, 73 Ind. L.J. 1111, 1137-1138 (1998). See also Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The Immigration Reform and Control Act of 1986, 8 Geo. Immigr. L.J. 343 (1994) (arguing for elimination of sanctions because of their ineffectiveness and because they have increased discrimination against persons of Mexican ancestry).
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September 11, 2001
§11.5
as the border patrol efforts intensified. 51 In the last few years, the Border Patrol has instituted a "zero-tolerance" policy in some areas along the southwest border only, in which apprehended illegal immigrants are prosecuted by federal authorities for a misdemeanor, sent to jail for 15 to 180 days and then deported. If they are caught illegally entering the country a second time, they are eligible for a felony charge of illegal entry and as much as two years in federal prison. 52 The comparison of how the law has addressed racial issues with other nonwhites offers a fearsome insight into how the dominant society, even today, would treat African Americans given sufficient political and economic motivation. The legal protections, barely adequate in normal times, would provide little insulation against the racial hostility against blacks that seems always lurking just beneath an all too thin veneer of racial civility. In addition to demonstrating how U.S. law treats those it considers "foreign," the differential treatment of citizens and noncitizens serves as a "magic mirror," revealing how dominant society might treat domestic minorities iflegal constraints were abrogated. Indeed, the harsh treatment of noncitizens of color reveals terrifying lessons about how society views citizens of color.
§11.5
SEPTEMBER 11, 2001
The events of September 11, 2001, have had a dramatic impact on U.S. racial policies and practices. Issues such as racial profiling have taken on new meanings in the public discussion; 1 race and ethnicity have been used as proxies for affiliation with terrorism; and the numbers of immigration-based detentions, including purely "preventive" based detentions, of persons from certain countries or ethnic or religious backgrounds has risen tremendous! y. 2 The federal government has also imprisoned a large number of foreign persons in Guantanamo Bay, Cuba, and in unknown locations abroad without formal charges or access to lawyers. In addition, the government has failed to extend traditional legal procedures to three U.S. citizens being held as "enemy combatants." 3 In addition to the detentions of foreign nationals and a small number of U.S. citizens, the federal government
51. Wayne A Cornelius, Death at the Border: The Efficacy and "Unintended Consequences" of U.S. Immigration Control Policy 1993-2001, Working Paper for the Center for Comparative Immigration Studies, available at http://www.ccis-ucsd.org/PUBLICATIONS/wrkg27.PDF. 52. Sylvia Moreno, Along the Border, a Zero-Tolerance Zone, Washington Post, June 18, 2006, at A03. In November 2007, the zero-tolerance zone was expanded in Texas. §11.5 l. See generally Deborah A. Ramirez, Jennifer Hoopes & Tara Lai Quinlan, Defining Racial Profiling in a Post-September 11 World, 40 Am. Crim. L. Rev. 1195 (2003). 2. See David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003). 3. This area of the law is one that is both highly secretive and evolving. While every effort has been made to ensure accuracy and up-to-dateness, the information contained in this section may not reflect changes made since the time of publication nor information that was not made generally available to the public.
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Chapter 11. Racism and Other "Nonwhites"
has conducted secret wiretapping and secret searches without a showing of probable cause of criminal wrongdoing. 4 The Attorney General of the United States, John Ashcroft, publicly announced that he was willing to engage in preventative detentions in the name of fighting terrorism, and his administration has followed through. 5 Under the rubric of fighting terrorism, the federal government has preventively detained a total of what is conservatively estimated to be over 5,000 foreign nationals (nonU.S. citizens). 6 This figure includes 1,182 persons admitted by the government to have been arrested in the first seven weeks of "sweeps" conducted by the Bush government after September 11, 2001; 7 1,100 persons detained in the Absconder Apprehension Initiative, 8 which explicitly prioritizes for deportation Arabs and Muslims among all foreign nationals living in the U.S. with outstanding deportation orders; 9 2,747 persons detained in connection with the Special Registration Program discussed in more detail later in this section; 10 and approximately 50 persons detained as material witnesses. Of these over 5,000 persons, a total of five (three foreign nationals and two U.S. citizens) have been charged with terrorism-related crimes. 11 Out of the five charged, two were acquitted of all terrorism charges, one was convicted of conspiracy to support terrorism, one had all charges dropped by the government when he pled guilty to a minor infraction, and one is awaiting trial. 12 Professor David Cole argues that while it may currently be politically expedient and easy to maintain a double standard and target foreign nationals (who do not vote or generally carry much political weight in the United States), this strategy carries tremendous risks for the civil rights and liberties of all persons, both citizen and noncitizen. Professor Cole also argues that such strategies are both unconstitutional and very dangerous for our collective security.U In addition, the conditions of detention have come under criticism, even from government sources. For example, the Office of the Inspector General (OIG), an independent organization reporting to Congress and the Attorney General, released two reports relating to the post-September 11 immigration detentions. 14 The OIG's 2003 Report looks at 762 detainees who were held in U.S. facilities on immigration violations as part of anti-terrorism initiatives and finds "significant evidence" that physical and verbal abuse by correctional officers occurred. 15 In addition, persons were detained for long periods of time without charges, access to
4. Id. 5. Cole, supra note 2. See generally Editorial, The Constitution Turned Upside Down, Pittsburgh Post-Gazette, Oct. 12, 2003, at E2. 6. Cole, supra note 2, at 25. 7. Id. 8. Id. 9. Id. 10. Id. II. Cole, supra note 2, at 26. 12. Id. 13. See generally Cole, supra note 2. 14. See Anita Ramasastry, How the U.S. Has Mishandled the Post-Sept. 11 Detention Process, CNN.com, Sept. 26, 2003. 15. Id.
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September 11, 2001
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lawyers, or information about their futures. 16 Many of these detentions have continued even after immigration issues have been resolved. 17 Much criticism has also been leveled at the detention of persons outside of domestic facilities. Nearly 400 persons are currently detained at Guantanamo Bay, Cuba, although the population was once double its current size. 18 There were also at least two known U.S. citizens detained there at some time, Jose Padilla and Yasser Esam Hamdi, who, like the other detainees at Guantanamo, were being held as "enemy combatants" based on allegations of terrorist involvement. 19 It has been reported that at least three children are among those being held in Guantanamo, a claim that sparked an international outcry.Z0 The American Bar Association's Task Force on Treatment of Enemy Combatants' Preliminary Report notes that the term "enemy combatant" "is not a term of art which has long established meaning. " 21 The U.S. government has maintained that persons labeled as "enemy combatants" may be detained indefinitely and "have no right under the law and customs of war or the Constitution to meet with counsel concerning their detention. " 22 The ABA Task Force notes that the government has taken the position that "with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so." 23 The Task Force argues that more comprehensive legal protections must be provided to such persons. Specifically, the Task Force recommends that the "administration should explain the basis and scope of its authority to detain U.S. citizens as enemy combatants; Congress should establish clear standards and procedures governing detention of U.S. citizens; citizen detainees should have access to judicial review to challenge their detention; citizen detainees should not be denied access to counsel; and consideration should be given to the international impact of our treatment of enemy combatants." 24 In addition to the Guantanamo detainees, an unknown number of noncitizen prisoners are being held by the military in secret foreign locations.Z5 Guantanamo Bay is the site of a U.S. naval base; its location outside of the United States means that prisoners, according to the United States government, are not entitled to the
16. Id. 17. ld. 18. David Bowker & David Kaye, Guantanamo by the Numbers, N.Y. Times, Nov. 10, 2007, at A15; Guantanamo Sheds Inmates, Wash. Post, Dec. 18, 2006, at A25. 19. After being detained in 2002, Padilla was eventually transferred to civilian custody in 2006 and tried in 2007. Hamdi was transferred to an American jail and eventually released when it became apparent that he was not a threat to national security. 20. Alice Wignall, The Prisoners ofGuantanamo Bay, The Guardian (London), May 6, 2003, at 63. See also Neil A. Lewis, More Prisoners to Be Released from Guantanamo, Officials Say, N.Y. Times, May 6, 2003, at A21. 21. American Bar Association Task Force on Treatment of Enemy Combatants, Preliminary Report (Aug. 8, 2002), available at http://www.abanet.org/leadership/enemy_combatants.pdf. 22. Id. at 7. 23. ld. at 3, referencing Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003). 24. ld. at 21, Summary of Recommendations. 25. Neil A. Lewis, Threats and Responses: The Tribunals; Six Detainees Soon May Face Military Trials, N.Y. Times, July 4, 2003, at AI.
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Chapter 11.
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same legal protections, such as access to a lawyer, 26 as they would be if detained domestically?7 Although initially very limited outside access to the detention camp in Guantanamo Bay was allowed, early photos showed prisoners kneeling in the scorching Cuban sun, shackled in chains and hooded. 28 These photos were taken when prisoners were detained in a makeshift camp entitled Camp X-Ray, which housed prisoners not in cells but in cages with link-chain "walls" and sheet metal roofs? 9 Camp X-Ray's prisoners had only buckets for toilets, and harsh lights were kept on every hour of the day?° Camp X-Ray has since been replaced by a newer camp, Camp Delta. Camp Delta is better equipped; it has toilets, cells, and beds equipped with arrows that point the way to Mecca. 31 Media access to Camp Delta is more open than was access to Camp X-Ray? 2 Despite somewhat better conditions in Camp Delta, its prisoners still remain in a vast legallimbo? 3 Reports of poor treatment still persist along with 41 reported suicide attempts among prisoners?4 The U.S. government contends that the Guantanamo detainees are "unlawful combatants" and thus do not qualify for prisoner of war status35 and attendant judicial protections under the Third Geneva Convention. 36 International lawyers have argued that, as prisoners of war, the detainees were entitled to release when the war in Afghanistan ended? 7 The United States claims that the prisoners are not entitled to any of the legal protections, such as access to a lawyer, the existence of formal charges, and the right to a fair and speedy trial, rights that are extended to prisoners held on U.S. soi1. 38 On June 28, 2004, in Rasul v. Bush, the Supreme Court held that the nearly 600 men imprisoned in Guantanamo Bay at the time had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement. 39 Reversing the U.S. Court of Appeals for the D.C. Circuit, the Court held that the right to habeas does not depend on citizenship, and affirmed the right of non-citizen detainees held at Guantanamo to challenge their detention in U.S. courts. 26. As of the time of publication, two of the detainees have been granted access to lawyers. One is Australian detainee David Hicks and the other is Yaser Esam Hamdi, a U.S.-bom suspect. These two cases are discussed in more detail later in this section. See Lawyer Says Cuba Appeal Prompted Pentagon, New York Times, Dec. 9, 2003. 27. Wignall, supra note 20, at 63; Marcia Coyle, Relief Denied, Challenging the Limits of Executive Authority, Cases over Guantanamo Bay Detainees Move Toward Supreme Court, Palm Beach Daily Bus. Rev., May 5, 2003, at AS. 2S. Wignall, supra note 20, at 63. 29. Id. 30. Id. 31. Id.; Caroline Overington, Camp Delta Lacks Nothing but Freedom, Sydney Morning Herald, May 29, 2003, at 16. 32. Overington, supra note 31, at 16. 33. Id. 34. David Bowker & David Kaye, Guantanamo by the Numbers, N.Y. Times, Nov. 10, 2007, at A15. 35. Neil A. Lewis, Aftereffects: Prisoners; Detainees from the Afghan War Remain in a Legal Limbo in Cuba, N.Y. Times, Apr. 24, 2003, at A21. 36. ld. See Coyle, supra note 27, at A8. 37. Lewis, Aftereffects, supra note 35, at A21. 3S. Wignall, supra note 20, at 63; Coyle, supra note 27, at AS. 39. 542 u.s. 466 (2004).
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Little over a week later, in another effort to avoid providing the detainees access to United States courts, the government authorized the establishment of Combatant Status Review Tribunals (CSRT) at Guantanamo. In the CSRTs, the military officers could review each detainee's "enemy combatant" status without the involvement of lawyers for the detainees and with numerous procedural shortcuts. For example, the CSRT procedures permitted the inclusion of evidence obtained under coercion or torture and denied detainees access to classified evidence, which in some cases constituted the majority of the evidence presented to the tribunal. In December 2005, Congress passed the Detainee Treatment Act of 2005, which stripped courts of jurisdiction over habeas corpus petitions filed on behalf of Guantanamo detainees and vested exclusive review of final decisions of CSRTs and military commissions in the D.C. Circuit Court. The following June, in Hamdan v. Rumsfeld, 40 the Supreme Court considered a challenge by a Guantanamo detainee charged under military commissions established by executive order. The Court held that the DTA did not preclude federal jurisdiction of pending habeas actions. It also ruled that the military commissions, as defined under the President's 2001 executive order, violated military law and the Geneva Conventions. In doing so, the Court rejected the arguments of Government representatives, including Pentagon officials and Defense Secretary Rumsfeld, that the detainees may be lawfully and indefinitely held until the effort against terrorism ends. 41 The largest public response to the U.S. anti-terrorism initiatives may, however, be in response to the Guantanamo detentions. International and domestic criticism of the status of Guantanamo detainees has been severe, especially from human rights groups, 42 and some of the battles on behalf of the detainees are taking place outside of courtrooms. A senior official of the International Committee of the Red Cross, the only group outside of the government allowed to meet the detainees and inspect the main detention center, recently broke from its standard policy of silence43 and criticized the United States for holding the detainees indefinitely and without proper legal process. 44 One of the chief concerns cited by the Red Cross is the complete uncertainty about the future shared by all detainees. In response to the Hamdan decision and Congress' prohibition of cruel, inhuman and degrading treatment during interrogations in the McCain Amendment to the DTA, the Military Commissions Act (MCA) was enacted in 2006. The MCA amends the War Crimes Act to immunize from punishment officials who engaged in, supervised, or condoned various forms of "torture lite"- outrages on personal 40. 126 S. Ct. 2749 (2006). 41. Lewis, Aftereffects, supra note 35, at 63. 42. Lewis, Threats and Responses, supra note 25, at AI. See also Wignall, supra note 20, at 6; Overington, supra note 31, at 16. 43. Lewis, Threats and Responses, supra note 25, at AI. The International Red Cross Committee generally operates under an agreement by which they exchange access for the promise that they will not publicize their findings but will instead bring their complaints to the government in charge. The Red Cross publicizes their views only when it feels that there is a distinct lack of action in response to their criticisms. 44. Id. See also International Red Cross website, available at http://www.icrc.org/web/ eng/ siteengO.nsf/htmi/5QRC5V?OpenDocument, where the views of the Red Cross official who went public with his findings are available.
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Chapter 11. Racism and Other "Nonwhites"
dignity, or cruel, inhuman, humiliating, and degrading treatment- and allows the admission of evidence obtained through these methods. 45 The MCA also severely limits the avenues of judicial review for non-citizens held in U.S. custody, eliminating judicial review for any claims challenging any aspect of detention or treatment of all non-citizen detainees determined to be "enemy combatants" or "awaiting such determination." Moreover, the MCA ratifies the limited CSRT review process that the DTA established as a substitute for habeas corpus. Shortly following the passage of the MCA, the Department of Justice notified the District Court for the District of Columbia that under the MCA the district court lacked jurisdiction to consider habeas corpus petitions brought on behalf of Guantanamo detainees. The plaintiff in Hamdan challenged the MCA's applicability to his habeas corpus petition, relying on the Supreme Court holding in Hamdan. The District Court held that the MCA prohibited the federal courts from exercising jurisdiction over his habeas petition. The Court of Appeals of the D.C. Circuit also ruled against the detainees in the consolidated cases of Boumediene v. Bush and Al Odah v. United States, holding that Guantanamo detainees had no constitutional right to habeas corpus review of their detentions in federal court. The court reasoned that the common law habeas did not extend to noncitizens captured abroad and held outside the United States and that the MCA eliminated any statutory right to habeas corpus. At first, the Supreme Court declined to hear the case. However, a few months later, in its first reversal in 60 years, the Supreme Court announced that it would hear the consolidated Al Odah and Boumediene cases. At the time of publication, both sides were briefing the case before the Supreme Court. There have also been lower court cases challenging other aspects of the U.S. government's anti-terrorism tactics. On the same day in which it announced the granting of certiorari in Al Odah and Rasul v. Bush, the Supreme Court announced the denial of certiorari in Global Relief Foundation v. Snow.46 In this case, the Court rejected without comment an appeal from The Global Relief Fund, an Illinois-based Islamic charity whose assets were frozen by the government three months after September 11, 2001. 47 Global Relief has not been charged with any terror-related crime and argues that it is purely a humanitarian organization with no links to terrorist activities. 48 Another important case in the anti-terrorism arena, MKB v. Warden, 49 is one about which very little is known and that previously did not seem to even exist. The plaintiff, known only by his initials, was arrested and charged with unknown federal crimes. The federal court made everything about the case secret. Two different federal courts have held hearings and issued rulings, yet there is no public
45. See Jenny S. Martinez, The Military Commissions Act and "Torture Lite": Something to Be Proud Of?, 48 Harv. Int'l L. J. Online 58 (2007), available at http://www.harvardilj.org/print/ 109#_ftnref2. 46. 315 F.3d 748 (7th Cir.), cert. denied, 124 S. Ct. 531 (2002). 47. Anne Gearan, High Court Will Hear Appeals from Guantanamo Prisoners, Associated Press, Nov. 10, 2003. 48. Id. 49. No. 03-6747.
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record of any action and no files or documents are available. 50 Lawyers are required not to speak about the case, and the filed documents and docket sheet are sealed from the public. 5 1 Furthermore, the very existence of a legal proceeding itself was hidden. 5 2 Its existence was only discovered when the case was briefly and accidentally listed on a federal court docket. There was no record that this case had ever arisen or that it was being heard until a docketing mistake resulted in a newspaper report that identified the defendant by name. 53 This case is an important one because it indicates that the Justice Department is engaging in tactics of complete secrecy even in federal habeas cases. 54 The case, which is currently on petition to the Supreme Court, would allow the Court to explicitly rule on whether such secret judicial proceedings are constitutional. 55 Those not suspected of terrorism who merely belong to certain ethnic and racial groups have also been the target of recent government policies. 5 6 In 2002, reviving provisions that have rarely been used since they were enacted in 1952, the Attorney General announced a policy requiring nonimmigrant men from certain designated countries to appear at their local Immigration Naturalization Services/ Department of Homeland Security offices 57 to submit to fingerprinting, photographs, and periodic registration under oath. 58 The Attorney General announced that these provisions were pursuant to already existing U.S. law. 59 The Attorney General targeted nonimmigrant men from primarily Arab and Muslim countries and required that they alone participate in a Special Registration Program. 60 While the Special Registration Program was announced as part of the general National Security Entry-Exit Registration System (NSEERS), the call-in registration procedures established for nationals and citizens of certain countries differed substantially from the more general policy of registration and fingerprinting that
50. Warren Richey, Secret 9/11 Case Before High Court, Christian Sci. Monitor, Oct. 30, 2003. 51. Id. 52. Id. 53. Id. 54. See id. 55. See id. 56. The section on the Special Registration Program and NSEERS draws heavily from research done by Benita Jain, Melissa Goodman, Gabrielle Prisco, and Kathryn Sabbeth under the auspices of the Arthur Garfield Hays Civil Liberties Program at New York University School of Law. 57. On March l, 2003, the Immigration and Naturalization Services transitioned into the Department of Homeland Security. See http://www.usdoj.gov/immigrationinfo.htm. 58. See Attorney General Prepared Remarks on the National Entry-Exit Registration System l (June 6, 2002), available at http://www.usdoj.gov/ag/speeches/2002/060502agpreparedremarks.htm. 59. Id. 60. All males from designated countries who were 16 years or older as of the date that registration began for the relevant call-in group had to register. See, e.g., 67 Fed. Reg. 67766, 67767 (Nov. 6, 2002). The first group subject to the Special Registration Program comprised certain nationals or citizens of Iran, Iraq, Libya, Sudan, or Syria. See 67 Fed. Reg. 67766 (Nov. 6, 2002). The second Special Registration Program group included certain nationals and citizens of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen. See 67 Fed. Reg. 70525 (Nov. 22, 2002). The third group subject to the Special Registration Program covers nationals and citizens of Pakistan and Saudi Arabia. See 67 Fed. Reg. 77642 (Dec. 18, 2002). The fourth group required to participate in the Special Registration Program includes nationals and citizens of Bangladesh, Egypt, Indonesia, Jordan, and Kuwait.
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Chapter 11.
Racism and Other "Nonwhites"
was taking place at the borders or other ports of entry. 61 Contrary to statements suggesting that periodic registration would be required for all nonimmigrants who stay in the country over 30 days, the Special Registration Program applied only "to those individuals of elevated national security concern who stay in the country more than thirty days." 62 Specifically, the Special Registration Program applied only to nonimmigrants from Arab and Muslim countries, with the exception of nationals and citizens of North Korea. 63 Since its implementation, the general rule that all such foreign nationals must periodically register has been suspended, but such registration may still be required by the Department of Homeland Security .64 The process of registration calls to mind two cases from the not-so-distant past, Korematsu v. United States 65 (upholding the internment of U.S. citizens of Japanese ancestry during World War II) and Narenji v. Civiletti66 (unsuccessfully challenging the process by which Iranian students were forced to register with the U.S. government during the Iranian hostage crisis). All call attention to the ways in which race, ethnicity, and national origin take on new national meanings in light of the perception of an external security threat. In addition, since September 11, 2001, hate crimes against Asian Pacific Americans, Muslims, persons of Arab or Middle Eastern descent, and persons incorrectly perceived to be Arab or Muslim, such as Sikhs, abound. Although by no means an exhaustive list, the Department of Justice has released a list of bias-motivated crimes that are being treated as a response to September 11. For example, on December 12,2001, the U.S. Attorney's Office for the Central District of California filed a criminal complaint against two defendants for "conspiring to damage and destroy, by means of an explosive, the King Fahd mosque and for possessing an explosive bomb to carry out the conspiracy." 67 The two defendants were also indicted under additional charges related to their alleged attempts "to damage and destroy, by means of an explosive, the office of the Muslim Public Affairs Council and the district office of U.S. Representative Darrell Issa." 68 In addition, many community groups have reported bias-motivated violence, including beatings, street harassment, and shootings. 69 According to a report put out by 61. Attorney General, supra note 58. The Attorney General announced that the NSEERS program consists of three components: first, fingerprinting and photographing at the border; second, periodic registration of individuals who stay in the United States for 30 days or more; third, exit procedures that track when nonimmigrants leave the country. The Special Registration Program was apparently part of the second component. 62. Attorney General, supra note 58. 63. Supra note 60. 64. Department of Homeland Security, NSEERS 30 Day and Annual Interview Requirements to Be Suspended, Dec. 1, 2003, available at: http://www.dhs.gov/xnews/releases/press_release_ 0306.shtm. 65. 323 U.S. 214 (1943). 66. 481 F. Supp. 1132 (D.D.C.), reversed, 617 F.2d 745 (D.C. Cir. 1979). 67. Department of Justice, Civil Rights Division, Enforcement and Outreach Following the September 11th Attacks, available at http://www.usdoj.gov/crtllegalinfo/discrimupdate.htm. 68. Id. 69. See Backlash: When America Turned on Its Own, A Preliminary Report to the 2001 Audit of Violence Against Asian Pacific Americans, available at http://www.napalc.org/literature/ annual_ report/Post9_1l.pdf. See also statements from the Asian American Legal Defense Fund, available at http://www.aaldef.org/violence.html; 2000 Audit of Violence Against Asian Pacific Americans, available at http://www.napalc.org/literature/annual_report/2000Audit.pdf.
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the National Asian Pacific American Legal Consortium (NAPALC), in the three months following September 11, 200 I, there were almost 250 "bias-motivated incidents targeting Asian Pacific Americans generally and South Asians particularly, [a] number [that] stands in stark contrast to the approximately 400-500 antiAPA incidents annually that NAPALC has reported in previous years." 70 At least two Asian Pacific Americans were murdered as a result of the backlash/ 1 and many of the incidents involved a high degree of physical violence. 72 The domestic repercussions of policies such as the Special Registration Program and the increasing hostilities faced by persons of Middle Eastern or Arab descent exist in a larger geopolitical framework in which tensions between the United States and other countries, particularly those considered "non-Western," is increasing. Issues of race, ethnicity, religion, and culture all figure prominently in these tensions. Although a thorough discussion of these issues is far beyond the scope of this text, it is critical to note that any current discussion of race in America takes place within the context of and is shaped by these current events. For many years, discussions of race in America have taken place in a context that emphasizes the racial categories of black and white. Although these categories are still highly relevant ones that carry much social meaning, issues of race and ethnicity have become ever more complex and nuanced. At the same time, the United States' history of race and racism can greatly inform current struggles for nonblack persons of color. Within the domestic United States, as well as within its foreign policy, South Asians, Arabs, Palestinians, and other persons of Middle Eastern descent are implicated by the United States' understandings of race and by its racism.
70. Backlash, supra note 69. 71. ld. at 2. 72. Id.
739
Table of Cases
Italics indicate principal cases and the locations of major discussions of these cases.
AACP v. AFMI Co., 493 Abernathy v. Alabama, 605 Abrams v. Unites States, 675 Action v. Gannon, 610 Adams v. Governor's Comm. on Post-Secondary Educ., 528 Adams v. Richardson, 137 Adarand Constructors, Inc. v. Pena, 9, 12, 189, 190, 191, 563, 564, 565 Adickes v. S. H. Kress & Co., 248 Adkins v. Children's Hospital, 47 Adoption of Vito, 538 Al Odah v. United States, 736 Alabama, United States v., 141, 142, 357 Alabama State Teachers Ass'n v. Alabama Pub. Sch. & College Auth., 139 Alabama-Coushatta Tribe of Texas v. United States, 699 Alamo Rent-a-Car v. Elections, 176 Alexander v. Gardner-Denver Co., 168, 212, 213, 214, 215, 218 Alexander v. Homes County Board of Education, 90 Alexander v. Louisiana, 302, 313 Alexander v. Oklahoma, 61-62 Alexander v. Riga, 455, 457 Alexander v. Sandoval, 574 Ali v. Alamo Rent-a-Car Inc., 176 Allen v. Gifford, 450 Allen v. Wright, 535 Allen v. State Board of Elections, 371 Allgeyer v. Louisiana, 47 Allison v. Citgo, 205 Alston v. Manson, 314 American Family Mut. Ins. Co., United States v., 449 American Ins. Co. v. Canter, 691 Ammons v. Dade City, Fla., 578 Anderson v. Martin, 358, 359 Apodaca v. Oregon, 304 Arlington Heights, Village of, v. Metropolitan Housing Development Corp., 10, 92, 313, 442, 485-489, 543
Ashcroft v. Georgia, 385 Asian American Business Group v. City of Pomona, 668 Atkins v. Texas, 313 Atkins v. Virginia, 283, 284 Austin Indep. Sch. Dist. v. United States, 92 Ayers v. Allain, 139,140, 142 Ayers v. Fordice, 145, 146 Ayers v. Fordice (Ayers II), 145 Ayers v. Lynch, 139 Ayers v. Mabus, 141 Badami v. Flood, 457 Baker v. Carr, 242, 361 Baker v. Columbus Municipal Separate Sch. Dist., 223 Baker v. Kissimmee, 576 Baldwin v. Franks, 232 Balistrieri, United States v., 450 Banks v. Perk, 483 Barrows v. Jackson, 429, 448 Bartels v. Iowa, 109 Baskin v. Brown, 356 Batson v. Kentucky, 284, 318-330, 336 Baumgardner v. Secretary, U.S. Dept. of Housing & Urban Dev., 450 Bazemore v. Friday, 139, 140, 141, 142 Beal v. Lindsay, 576 Beaty, United States v., 616 Beecher v. Wetherby, 688 Beer v. United States, 372, 374, 394-396, 405 Bell v. Hood, 255 Bell v. Maryland, 605 Berea College v. Kentucky, 119 Bermudez Zenon v. Restaurant Compostela, Inc., 588 Bethel School District No. 403 v. Fraser, 647-648 Beussink v. Woodland R-IV Sch. Dist., 652 Biaggi, United States v., 303 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 256
741
Table of Cases Blackburn v. Blackburn, 536 Blue v. U.S. Dept of Army, 206 Board of Commissioners v. Brown, 246 Board of Commissioners of Sheffield, Ala., United States v., 372 Board of Education of Oklahoma City Public Schools v. Dowell, 95 Board of Education of Westside Community Sch. v. Mergens, 134 Board of School Commrs. of City of Indianapolis, 92 Bob Jones University v. Johnson, 533 Bob Jones University v. Simon, 586 Bob Jones University v. United States, 532, 533, 534, 535, 586 Bolden eta!. v. J&R Inc., 570 Booker, United States v., 334 Boos v. Barry, 633 Booth v. Maryland, 270 Boudreaux v. Baton Rouge Marine Contracting Co., 168 Boumediene v. Bush, 736 Bowe, United States v., 335 Bowen v. Independent Publishing Co., Bowles, United States v., 333 Boyd v. United States, 569 Boynton v. Virginia, 568, 602, 603 Braden v. United States, 619 Bradley v. Milliken, 93 Bradshaw v. Swagerty, 672 Brady v. Bristol-Myers, Inc., 168 Bray v. Alexandria, 665 Breedlove v. Shuttles, 353, 356, 357 Brennan v. Armstrong, 92 Brignoni-Ponce, United States v., 263 Brotherhood of R.R. Trainmen v. Howard, 211 Brotherhood of R.R. Trainmen v. Virginia ex rei. Virginia State Bar, 361 Broussard v. School Bd. of Norfolk, 646 Browder v. Gayle, 599 Brown v. Board of Education, 5, 14, 20, 36, 74, 77, 85-90, 96, 99-111, 114, 115, 117, 118, 134, 137, 141, 144, 146, 186,357,469,482, 500,502,503,561,564,565,567,583,597, 601, 613, 638, 673, 685 Brown v. Board of Education (No. II), 87, 88, 89, 100 Brown v. Louisiana, 606, 608, 661, 662 Brown v. Oneonta, 262 Brown v. Scott, 662 Brown v. Thompson, 397 Bryan v. Koch, 577 Buchanan v. City of Jackson, 388 Buchanan v. Warley, 426, 428, 537 Buckhannon v. West Virginia Department of Health and Human Resources, 252, 569-570 Buntin, United States v., 234 Burney v. Housing Authority of the County of Beaver, 482
742
Burns v. Richardson, 386 Burns v. State (Alabama), 501 Bursey v. United States, 260 Burton v. Waller, 243 Burton v. Wilmington Parking Authority, 238, 431, 583, 585 "Bus v. Rail," 578 Bush v. Gore, 368-369, 385 Bush v. Vera, 401-403 Butler v. Cooper, 259, 260 Butler v. Perry, 567 Buycks-Robereson v. Citibank Fed. Sav. Bank, 493 Cadena v. The Pacesetter Corp., 204 Caldwell v. National Brewing Co., 168 California v. Bakke, 395 California v. Cabazon Band of Mission Indians, 701, 702 Callins v. Collins, 285 Campaign for Fiscal Equity, Inc. v. New York, 126 Campbell v. Louisiana, 327 Campbell v. Mason, 241 Canterbury v. West Virginia Human R. Commn., 528 Canton, City of v. Harris, 246 Capitol Square Review & Advisory Bd. v. Pinette, 134 Carey v. Brown, 662, 663 Carolene Products Co., United States v., 8 Carter, United States v., 329, 334 Carter v. Jury Commission of Greene County, 303, 338 Carter v. West Feliciana Parish School Bd., 94 Cartlidge, United States v., 323 Cartwight v. American Sav. Ass'n, 493 Castenada v. Partida, 278, 305, 310-315, 308, 310, 314, 336, 337 Cato v. Jilek, 531 Cecil, United States v., 329 Central Ga. Ry. v. Jones, 211 Central Presbyterian Church v. Black Liberation Front, 610 Chacon v. Ochs et a!., 529 Chae Chan Ping v. United States, 720 Chambers v. U.S. Dept. of Army, 206 Chaplinsky v. New Hampshire, 671 Cherokee Nation v. Georgia, 685, 688, 689 Chevy Chase Fed. Sav. Bk., United States v., 493 Chicago v. Mosley, 643 Chicago Lawyers' Committee for Civil Rights Under the Law, Inc. v. Craigslist, Inc., 447 Chicago R. I. & P. v. Allison, 556 Childress, United States v., 318 Chrisman v. City of Brookhaven, 84 Ciarolo v. New York, 244
Table of Cases Circuit City Stores, Inc. v. St. Clair Adams, 215, 217 Citizens for Underground Equality v. City of Seattle, 576 Civil Rights Cases, 17, 48, 51, 249, 302, 439, 555, 557, 559, 560, 561, 568, 605 Clark v. Board of Directors, 84 Clark v. Community for Creative Non-Violence, 672 Classic, United States v., 234, 355 Claybrook v. City of Owensboro, 84 Cleveland Bd. of Educ. v. LaFleur, 244, 248 Coates v. Cincinnati, 643 Cohen v. California, 663, 664 Coit v. Green, 533 Coker v. Georgia, 276, 295 Cole v. Tuttle, 241 Coles v. Havens Realty Corp., 464 Coleman v. Alabama, 302 Coleman v. General Motors Corp., 207 Collin v. Smith, 672 Collins v. Hardyman, 253, 254 Comer v. Cisneros, 437 Committee for Pub. Educ. and Religious Liberty v. Nyquist, 132, 133 Commonwealth (Massachusetts) v. Phillips & Woody, 287 Commonwealth (Massachusetts) v. Soares, 318 Commonwealth (Pennsylvania) ex rei. Brown v. Williamson, 83 Commonwealth (Pennsylvania) v. Loyal Order of Moose Lodge, 584 Conley v. Gibson, 211 Connor v. Finch, 391 Cook v. Twin Oaks Country Club, 588 Cooppage v. Kansas, 47 Coppedge v. Franklin County Bd. of Educ., 90 Cornelius v. Benevolent Protective Order of the Elks, 579, 586 Council v. Western & A.R.R., 568 Covington v. Edwards, 107 Cox v. Alabama, 501 Cox v. Louisiana, 606, 607, 614, Craig v. Alabama State University, 138 Crawford v. Willow Oaks Country Club, 588 Creek Nation, United States v., 697 Creek Nation v. United States, 696 Crenshaw v. City of Defuniak Springs, 576 Cresta, United States v., 303 Crow v. Brown, 483 Cruikshank, United States v., 48, 51, 223 Cruz v. Beto, 563 Cumming v. Richmond County Board of Education, 84-85, 119 Curtis v. Loether, 339 Cuyahoga Falls (Ohio), City of v. Buckeye Community Hope Fund, 435 D' Amato v. Wisconsin Gas Co., 254 Dailey v. City of Lawton, 488
Dallas County Comm., United States v., 387 Daniel v. Paul, 568, 579 Daniels v. Williams, 245 Danson v. Casey, 125 Darby v. Heather Ridge, 451 Davenport v. Cloverport, 84 Davis v. Bandimer, 379-380, 382, 383 Davis v. Board of School Commissioners, 91 Davis v. Mississippi, 287 Davis v. United States, 308 Dayton Bd. of Educ. v. Brinkman, 109 Debs, In re, 50 Decatur Fed. Sav. & Loan Ass'n, Unites States v., 493 DeCoteau v. District County Ct., 700 Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 204 Degraffenfield v. General Motors, 225 Delgado v. Bastrop Indep. Sch. Dist., 729 DeMatteis v. Eastman Kodak Co., 168 Department of Housing & Urban Development v. Rucker, 484 DeSantis v. Pacific Telephone & Telegraph Company, 226 Desert Palace v. Costa, 175 Detroit School Case, 110 DeWees v. Stevenson, 543 Dewell v. Lawson, 241 Director, Division on Civil Rights v. Slumber, Inc., 571, 572 Dixon v. Alabama State Board of Education, 361' 654-658 Dixon v. State (Mississippi), 353 Doe v. University of Mich., 672, 673, 674 Dogan, United States v., 356 Dombrowski v. Pfister, 619 Dougherty County, Ga. v. White, 372 Dowdell v. City of Apopka, 575 Downs v. Department of Public Welfare, 241 Dred Scott v. Sandford, 21, 31-36, 44, 50, 257, 346 Dred Scott v. Taney, 720 Drummond v. Fulton County Dept. of Family and Children's Services, 543 Duffield v. Robertson Stepherts & Co., 217, Duke, United States v., 367 Dunn v. Blumstein, 371 Duren v. Missouri, 303 Durham v. Red Lake Fishing & Hunting Club, 580 E.C. Knight Co., United States v., 50 Early v. Littlejohn, 259, 260 Eastlake, City of, v. Forest City Enterprises, Inc., 433 Eastway Constr. Corp. v. City of New York, 206 Edelman v. Jordan, 241
743
Table of Cases Edgewood Independent School District v. Kirby, 126 Edmonson v. Leesville Concrete Co., 325 EEOC v. Arabian American Oil Co., 201 EEOC v. Luce, Forward, Hamilton & Scripps, LLP (C.D. Cal. 2000), 217 EEOC v. Luce, Forward, Hamilton & Scripps, LLP (9th Cir. 2002), 217 EEOC v. Luce, Forward, Hamilton & Scripps, LLP (9th Cir. 2003), 216,217 EEOC v. Waffle House, Inc., 216 EEOC v. Wal-Mart Stores, Inc., 203 Eichman, United States v., 632, 633 Elk v. Wilkins, 692 Elkison v. Deliesseline, 28, 29 Elrod v. Bums, 102 Emerson v. Scott, 31 Emmett v. Kent School District No. 415, 653 Emporium Capwell Co. v. Western Addition Community Org., 212 Endo, Ex parte, 725 Eperesi v. Envirotest Systems Corp., 529 Erzonznik v. City of Jacksonville, 664 Espinoza v. Farah Mfg., 169 Evans v. Abney, 583 Evans v. Jeff D., 251 Evans v. Tubbe, 442 Ezold v. Wolf, Block, Schorr & Solis-Cohen, 221 Fadeyi v. Planned Parenthood Ass'n of Lubbock, Inc., 178 Faraca v. Clements, 527, 528 Farmer v. Farmer, 536 Farrakhan v. Locke, 363, 364 Farrakhan v. Washington, 363, 364 Felker v. Turpin, 267 Fernandes v. Costa Bros. Masonry, Inc., 176 Fiedler v. Marumsco, 535 Fiedler v. UAL Corp., 178 Fields v. South Carolina, 604 Fiske v. Lockheed Ga. Co., 254 Flax v. Potts, 95, 96 Fleet Mortgage Corp, United States v., 493 Fludd v. Tiller, 325 Fong Yue Ting v. United States, 721 Forbes, United States v., 323 Ford v. Tennessee, 609 Fordice, United States v., 142, 143-145 Fort v. White, 449 Fortson v. Dorsey, 386 Fountila v. Carter, 453 Fragrante v. City and County of Honolulu, 208 Frisby v. Schultz, 664 Frontera v. Sindell, 169 FTC v. Superior Court Trial Lawyers' Ass'n,
623 Fuller v. Phipps, 176 Fullilove v. Klutznick, 74, 186, 187, 188, 189
744
Fullilove v. Kreps, 187 Furman v. Georgia, 274-277, 278, 282, 283, 295, 305, 330 Fumco Construction Corp v. Waters, 170, 175 Gannon v. Action, 610 Gamer v. Louisiana, 604, 607, 625, 662 Garrison v. Louisiana, 625 Gaston County v. United States, 371 Gaudry v. Bureau of Labor & Indus., 571 Gautreaux v. Chicago Hous. Auth., 482 Geier v. Alexander, 140, 142 Geier v. Blanton, 138 Geier v. University of Tenn., 138 Georgia v. Ashcroft, 394, 405-407 Georgia v. McCollum, 327 Gertz v. Robert Welch, Inc., 625 Gibbons v. Ogden, 567 Giboney v. Empire Storage Co., 619 Giles v. Harris, 53, 118, 258, 343, 557-558 Giles v. Maryland, 306 Giles v. Teasley, 353 Gilliam v. HBE Corp., 570, 573 Gilmer v. Interstate/Johnson Lane Corp., 213, 214, 215, 218 Gingles v. Thornburgh, 383 Gladstone v. Village of Bellwood, 462, 463, 464 Glass Menagerie, Inc., United States v., 580 Global Relief Foundation v. Snow, 736 Glover v. St. Louis-San Francisco Railway Co, 211 Goldberg v. Kelly, 248 Goldsboro Christian Sch., Inc. v. United States, 532, 586 Gomillion v. Lightfoot, 359-362, 374, 377, 378, 379, 397, 486, 625 Gompers v. Bucks Stove & Range Co., 622 Gong Lum v. Rice, 119, 721 Gonzaga University v. Doe, 247 Gonzales v. Carhart, 441 Gore v. Turner, 450, 453 Gorley v. Metro-North Commuter R.R., 173 Goss v. Lopez, 361 Gramer, United States ex rei. Clarke v., 569 Grant, United States v., 334 Gratz v. Bollinger, 12, 136, 147 Graves v. Barnes, 390 Gray v. Board of Higher Education, 221 Gray v. Sanders, 361 Grayned v. City of Rockford, 642, 643, 645, 659 Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 254 Green v. Connally, 532, 533, 586 Green v. County School Board of New Kent County, 89-90, 107, 108, 139, 140 Green v. Rhode Island, 699 Gregg v. Georgia, 276
Table of Cases Gregory v. City of Chicago, 659-662 Gremillion v. NAACP, 619 Gresham v. Waffle House, Inc., 528, 529 Griffin v. Breckenridge, 253, 254, 255, 256, 611 Griffin v. School Bd., 90 Griggs v. Duke Power Co., 178-180, 183, 184, 198, 219, 222, 253, 487 Griswold v. Connecticut, 587 Grovey v. Townsend, 355 Grutter v. Bollinger, 9, 76, 78, 80, 112, 136, 137, 147, 563, 565 Guerra v. Manchester Terminal Corp., 169 Guest, United States v., 239 Guinn v. United States, 354 Gutwein v. Easton Publishing Co., 528 Hadnott v. Amos, 371 Haggerty, United States v., 632 Hail v. Pennsylvania State Police, 250 Hall v. DeCuir, 568 Hallowell v. United States, 696 Halprin v. Prairie Single Family Homes, 446 Ham v. South Carolina, 333, 334, 335 Hamdan v. Rumsfeld, 735, 736 Hamdi v. Rumsfeld, 733 Hamer v. Campbell, 367 Hamer v. Ely, 367 Hamilton, United States v., 303 Hamm v. Virginia State Board of Elections, 358, 359, 503 Harmon v. Forssenius, 356 Harmon v. Tyler, 426 Harper v. Virginia State Bd. of Elections, 357 Harpole, United States ex rei. Goldsby v., 306, 307, 345 Harris, United States v., 48, 232, 253 Harris v. Marsh, 208 Harrison v. Otto G. Heinzeroth Mortgage Co., 450 Harvey, United States v., 616 Havens Realty Co. v. Coleman, 463, 464, 465 Hawkins v. Town of Shaw, 575, 576 Hawthorne v. Kenbridge Recreation Ass'n Inc., 586 Hayden v. Pataki, 363 Hayes v. United States, 240 Hazelwood School District v. Kuhlmeier, 648 Heart of Atlanta Motel, Inc. v. United States, 567, 568 Heckman v. United States, 697 Henderson v. United States, 568 Henry v. First Nat'! Bank of Clarksdale, 620 Henry v. Rock Hill, 604 Hernandez v. New York, 328 Hernandez v. Texas, 303 Herrera v. Collins, 270 Hewitt v. Helms, 252 Hicks v. Weaver, 166, 172, 483
Hill v. Colorado, 641, 665, 666 Hill v. Texas, 303 Hills v. Gautreaux, 482, 483, 485, 488 Hirabyashi v. United States, 507, 724 Hishon v. King & Spalding, 220 Ho Ali Kow v. Noonan, 719 Hobbes v. Fogg, 345 Hog v. Sealer, 456 Holder v. Hall, 399 Holiday v. Belle's Restaurant, 528 Holland v. Illinois, 326 Holt v. Holt, 538 Holt v. Sarver, 562 Homan v. Resading, 588 Hopwood v. Texas, 7 Hughes Tool Co., 211 Hughes v. Dyer, 450 Hughes v. Superior Court, 623 Human Rights Comm. of N.M. v. Board of Regents of the Univ. of N.M. Coil. of Nursing, 572 Hunt v. Cromartie, 403-404 Hunter v. Erickson, 432, 438 Hunter v. Underwood, 363 Huntington, New York, Town of, v. Huntington Branch, NAACP, 436 Hurd v. Hodge, 429 Illinois v. Dunum, 334 International Longshoremen's Ass'n v. Allied International, Inc., 622 Iron Moccasin, United States v., 303 Irving v. J.L. Marsh, Inc., 672 Jackson v. Benson, 131 Jackson v. Conway, 577 Jackson v. Ellington, 645 Jackson v. State (Alabama), 501 James, United States v., 329 James v. Bowman, 48, 232 James v. Valtierra, 432, 433 J.E.B. v. Alabama ex rei. T.B., 327 Jefferson v. Hackney, 184 Jenkins v. Averett, 243 Jenkins v. Louisiana State Board of Education, 657 Johns, United States v., 531 Johnson, United States v., 240, 334 Johnson v. California (321 F.3d 791), 562 Johnson v. California (543 U.S. 499), 324, 562, 563, 564, 565 Johnson v. City of Arcadia, 575 Johnson v. Gov. of State of Florida, 363 Johnson v. Mcintosh, 690 Johnson v. NAACP, 619 Johnson v. Railway Express Agency, 168, 200 Johnson Lake, Inc., United States v., 578 Jones v. Alfred H. Mayer, Co., 168, 429, 438-442, 444, 587
745
Table of Cases
Jones v. Georgia, 313 Jones v. Jones, 538 Jordan v. City of Greenwood, 388 Jordan v. Hutchinson, 619 Joseph Skilken & Co. v. City of Toledo, Ohio, 489 J.S. v. Bethlehem Area Sch. Dist., 652 Junior Chamber of Commerce of Rochester, Inc. v. Jaycees, 585 Kagama, United States v., 691-695 Kamen v. American Tel. & Tel. Co., 207 Kane v. Oak Trust & Sav. Bank, 531 Karcher v. Daggett, 380, 397 Karuk Tribe of Calif. v. Ammon, 699 Katzenbach v. McClung, 567-568 Katzenbach v. Morgan, 344, 372, 373 Kelley v. Wisconsin Inscholastic Athletic Ass'n, 241 Kelo v. City of New London, 478 Kendrick v. Walder, 374 Kennedy Park Homes Ass'n v. City of Lackawanna, 488 Kenosha, City of, v. Bruno, 241 Keyes v. School District No. 1, Denver, Colo., 89, 99, 107, 108, 184 Keyishian v. Board of Regents, 248 King v. Greyhound Lines, Inc, 571 King v. Harris, 483 Kirkpatrick v. Preisler, 361 Kneipp v. Tedder, 247 Knowlton v. Teltrust Phones, Inc., 204 Kolender v. Lawson, 286 Kolstad v. American Dental Association, 202, 203,204,455,456,457,458 Korematsu v. United States, 8, 507, 724-726, 738 Krause v. Rhodes, 243 Kunstler, In re, 207 Kunz v. New York, 677
Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voight, 699 Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 134 Lane v. Wilson, 354 Langford v. City of Texarkana, Ark., 528 Langlois v. Abington Housing Authority, 437 Lankford v. Gelston, 258 Lanning v. SEPT A, 219 Lassiter v. Northhampton County Bd. of Elections, 373 Lauture v. International Bus Mach. Corp., 178 Lawes, United States v., 262 Layshock ex rel. Layschock v. Hermitage School District, 653 Leadership Roundtable v. City of Little Rock, 387 League of United Latin American Citizens (LULAC) v. Perry, 381-384
746
Ledbetter v. Goodyear Tire & Rubber Co., 172-178 Ledsinger v. Burmeister, 570, 572 Lee v. Nyquist, 91 Lee v. Southern Home Sites Corp., 441 Lee v. Washington, 563, 565 Leftwich, United States v., 334 Leibowitz v. New York Transit Authority, 177 Lemon v. International Union of Operating Engineers, 205 Lemon v. Kurtzman, 132, 133 Leonard v. City of Columbus, 631 Lewis v. Brown & Root, Inc., 207 Levin v. Yeshiva University, 226 Lincoln v. Case, 457 Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 107 Littlefield v. McGuffey, 450 Littleton v. Berbling, 243 Live-Stock Dealers' & Butchers' Ass'n v. Crescent City Live-Stock Landing & Slaughter-House, 560 Local 10 v. Federation of Musicians, 410 Local 12, United Rubber Workers, 211 Lochner v. New York, 8, 47, 50 Lockhart v. McCree, 328 Lodge v. Buxton, 387 Logan v. United States, 48, 232 Lombard v. Louisiana, 431 Long v. Ford Motor Co., 168 Lorance v. AT&T Technologies, 191, 194-195, 200 Los Angeles, City of, v. Lyons, 242 Louisiana, United States v., 142 Louisiana Acorn Fair Housing v. LeBlanc, 456 Louisiana ex rel. Gremillion v. NAACP, 619 Louisville & N. R.R. Co. v. Ritchel, 556 Loving v. Virginia, 8, 497, 498, 500, 503-505, 507, 512, 513 Loyal Order of Moose Lodge No. 107 v. Pennsylvania Human Relations Comm'n, 584 Lucas v. Colorado General Assembly, 361 Lucero v. Detroit Pub. Sch., 574 Lucido v. Cravath, Swaine & Moore, 220, 223
Mabo v. State of Queensland, 699, 713 Mabus, United States v., 141 Macheski v. Bizzell, 620 Madsen v. Women's Health Center Inc., 665 Mahaffey v. Aldrich, 653 Mahan v. Howell, 361 Mahone v. Waddle, 250, 256 Maine v. Thiboutot, 249 Major v. Treen, 373 Malley v. Briggs, 243 Marbury v. Madison, 107, 373 Mark v. Borough of Hatboro, 247 Martin v. Wainwright, 562
Table of Cases
Martin v. Wilks, 192-193, 194 Masterson v. LaBrum & Doak, 221 Matter of the Welfare of D.L., 543 Matthews, United States v., 323 Maxwell v. Bishop, 305, 306 Mazurie, United States v., 701 McCleskey v. Kemp, 9, 11, 129, 184, 185, 188, 274, 276-282, 283, 285, 314, 321 McCray v. Abrams, 318 McCray v. Bennett, 562 McCuller v. Gaudry, 571 McDaniel v. Barresi, 91 McDaniel v. Cory, 571, 571, 572 McDaniel v. Mutchnick, 325 McDonald v. Santa Fe Trail Trans. Co., 169 McDonald v. Verble, 452 McDonnell Douglas Corp. v. Green, 166, 169, 170, 175, 177, 195, 196, 201, 212, 222 McFarland v. Goins, 84 McGlotten v. Connally, 584, 585, 586 McGuinness v. Lincoln Hall, 177 Mcintire v. Bethel Indep. Sch. Dist. No. 3, 646 McLaughlin v. Florida, 497, 502-504, 564 McLaurin v. Greenville, 606 McLaurin v. Oklahoma State Regents, 86, 119 McMillan v. Escambia County, Fla., 387 McNeal v. Tate County Sch. Dist., 94 McNeil v. P-N&S, Inc., 449 McWilliams v. McWilliams, 537 Medtronic, Inc. v. Lohr, 665 Memphis, City of, v. Greene, 442, 443 Meredith v. Jefferson County Board of Education, 9 Meritor Sav. Bank v. Vinson, 673 Metro Broadcasting v. FCC, 189, 190 Meyer v. Holley, 457, 531 Meyer v. Nebraska, 109, 587 Miles v. Dickson, 616 Miles v. F.E.R.M. Enters., Inc., 453 Miller v. Apartments & Homes of N.J., Inc., 453 Miller-El v. Dretke, 284, 324, 325 Miller v. Johnson, 400 Milliken v. Bradley, 92, 93, 108, 109, 135 Milliken v. Bradley II, 110, 135 Missouri, K.T. Ry. v. Ball, 556 Missouri ex rel. Gaines v. Canada, 85, 119 Mitchell v. United States, 568 Mitchell v. Wisconsin, 679 Mitchum v. Foster, 249 Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc., 214 Mizell v. North Broward Hosp. Dist., 168 MKB v. Warden, 736 Mobile, City of, v. Bolden, 96, 375, 387 Mohr v. Dustrol, Inc., 176 Monell v. New York City Department of Social Services, 244-246, 251
Monroe v. Pape, 229, 238, 240-243, 250, 256 Moore v. Dempsey, 306 Moore v. Hughes, 225 Moorer v. South Carolina, 305 Moorer v. U.S. Department of Housing & Urban Development, 478 Moose Lodge No. 107 v. Irvis, 583, 584, 585, 586, 588 Morgan v. Virginia, 568 Morgan v. Woessner, 262 Mormon Church v. United States, 692 Morrison, United States v., 16, 17 Morse v. Frederick, 647, 648-651 Morton v. Mancari, 697 Moultrie v. Martin, 314 Mueller v. Allen, 133 Muntaqim v. Coombe, 362, 363 Murchu v. United States, 303 Murry v. Supreme Court, 219 Myers v. Anderson, 354 NAACP v. Alabama ex rel. Patterson, 102, 463, 619 NAACP v. Button, 102, 248, 361, 619 NAACP v. Claiborne Hardway Co., 620, 622, 623 NAACP v. Overstreet, 606, 618 NAACP v. The Medical Center, 577 NAACP v. Thompson, 619 Nairn v. Nairn, 501, 503, 504 Narenji v. Civiletti, 736 Nashville I-40 Steering Committee v. Ellington, 477, 478 National Ass'n of Gov't Employees v. City Public Serv. Bd., 588 National Education Association v. South Carolina, 223 New Negro Alliance v. Sanitary Grocery Co., 623 New York v. McCray, 318 New York City Jaycees, Inc. v. United States Jaycees, 585 New York State Club Ass'n v. City of New York, 580 New York State Nat'l Org. for Women v. Terry, 255 New York Times v. Sullivan, 624, 625 Newman v. Piggie Park Enterprises, Inc., 568 Newport, City of, v. Facts Concert, 244 Nixon v. Condon, 354 Nixon v. Herndon, 354 Nixon v. United States, 381 Norfolk & W. Ry. v. Stone, 556 Norris v. Alabama, 6, 303, 306 North Carolina Department of Transportation v. Crest Street Community Council, Inc., 252 North Carolina State Bd. of Educ. v. Swann, 91 Northern Trust Co., United States v., 493
747
Table of Cases
Northwest L. Restaurant Club, United States v., 578 Norwalk CORE v. Norwalk Redevelopment Agency, 476 Norwood v. Harrison, 587 NZ Maori Council v. Attorney General, 718 Oliphant v. Squamish Indian Tribe, 685 Oliver v. Shelly, 531 Oncale v. Sundowner Offshore Services, Inc., 226 Oregon v. Mitchell, 370 Organization for a Better Austin v. Keefe, 662 Ortwein v. Schwab O'Shea v. Littleton, 242, 243, 257 Otherson, United States v., 231 Oyama v. California, 726 Pace v. Alabama, 500, 502 PACE v. Doorley, 658, 659, 663 Padilla v. Carrier Air Conditioning, 173 Palmer v. Thompson, 583, 588 Palmore v. Sidoti, 186, 537, 538, 539, 543 Parents Involved in Community Schools v. Seattle School District No. 1, 9, 73-81, 96, 112,113,147 Parr v. Woodmen of the World Life Insurance, 528, 529 Parratt v. Taylor, 245 Pasadena City Bd. Educ. v. Spangler, 96 Patterson v. McLean Credit Union, 191, /93-194, 200, 588 Patton v. Mississippi, 303 Paul v. Davis, 244 Payne v. Tennessee, 270 Payne v. Travenol, 225 Pearson v. Murray, 85 Pederson v. Burton, 505 Pembaur v. City of Cincinnati, 245 Penry v. Lynaugh, 283 People v. Morales, 328 People v. Thomas, 318 People Acting Through Community Effort (PACE) v. Doorley, 658, 659, 663 People (California) v. Hall, 720 People (California) v. Wheeler, 318 People Helpers, Foundation Inc. v. Richmond, 456 People (Michigan) ex rel. Workman v. Board of Educ., 83-84 People (New York) v. Goetz, 292 People (New York) v. Kern, 291 People (New York) v. McCray, 318 People (New York) v. Street, 630 Perez v. Lippold, 500 Perez v. Sharp, 500 Perkins v. City of West Helena, 387 Perkins v. Matthews, 371
748
Perry v. Woodward, 178 Peters v. Kiff, 303, 339 Petersburg, City of, v. United States, 39/-392, 393 Peterson v. City of Greenville, 431, 604 Phiffer v. Proud Parrot Motor Hotel, Inc., 570, 571 Pierce v. Society of Sisters, 109, 587 Pierson v. Ray, 242, 243, 248 Pitts v. Wisconsin Dept. of Revenue, 585 Pittsburgh Black Musicians v. Local 60-4 71, Fed'n of Musicians, 410 Pleasant Grove v. United States, 575 Plessy v. Ferguson, 13, 14, 44, 48, 51, 84-87, 93, 103, 104, 118, 119, 121, 122, 123,357, 558-561, 565, 579 Poafpybitty v. Skelly Oil Co., 697 Police Department of Chicago v. Mosley, 659, 662 Political Civil Voters Org. v. City of Terrell, 387 Pollitt v. Bramel, 531 Pollock v. Farmers Loan & Trust Co., 50 Portee v. Hastava, 450, 451 Powell v. Alabama, 6, 306 Powell v. Super 8 Motels, Inc., 570, 573 Powelton Civic Homes Owners Ass'n v. HUD, 478 Powers v. Ohio, 326, 326, 327 Preferred Properties, Inc. v. Indian River Estates, Inc., 457 Pressley v. Etowah County Comm'n, 411 Price, United States v., 238, 239, 257 Price v. Pelka, 453 Price v. United States, 230 Price Waterhouse v. Hopkins, 195-196, 200, 201, 220, 226, 227 Prigg v. Pennsylvania, 40 Procunier v. Martinez, 563 Pulliam v. Allen, 249 Pyle v. South Hadley Sch. Comm., 646 Quiroga v. Hasbro Inc., 207 Quock Walker, 25 Ragen, United States ex rei. Montgomery v., 306 Ragin v. New York Times Co., 447 Rasul v. Bush, 734, 736 Ratliff v. Beale, 364 R.A. V. v. City of St. Paul, 635-638, 639, 640, 641, 642, 665, 677, 678, 679 Reese, United States v., 48, 51, 232 Reeves v. Sanderson Plumbing Products, Inc., 175, 176, 177 Regents of California v. Bakke, 136, 137, 147, 386,410 Reisman v. State of Tenn. Dept. of Human Serv., 543
Table of Cases Reiter v. Center Console Sch. Dist., 529 Reitman v. Mulkey, 431, 432, 438, 445 Rendell-Eaker v. Kohn, 129 Rene v. MGM Hotel Inc., 226 Reno v. Bossier Parish School Bd., 406 Republican Party of N.C. v. Martin, 384 Resident Advisory Board v. Rizzo, 488, 489 Reynolds v. Sims, 361, 386 Rice v. Elmore, 356 Richardson v. Howard, 464 Richardson v. Ramirez, 364 Richberg, United States v., 578 Richmond, City of, v. Deans, 426 Richmond, City of, v. J.A. Croson Co., 9, 12, 15, 76, 184, 188-191 Richmond, City of, v. United States, 372, 392394, 396 Riddick v. School Bd. of Norfolk, 94 Rip v. Dobbs Houses Inc., 528 Ristaino v. Ross, 334, 335, 336 Rivers, United States v., 334 Rivers v. Roadway Express, Inc., 588 Riverside, City of v. Rivera, 252 Rizzo v. Goode, 242, 244, 257 Roberts v. City of Boston, 82-84, 104, 558 Roberts v. United States Jaycees, 673 Robinson, United States v., 322, 334 Rodriguez v. Comas, 450 Roe v. Operation Rescue, 255 Roe v. Wade, 587 Rogers v. Lodge, 387 Rolax v. Atlantic Coastline R.R., 211 Roman v. Abrams, 303 Rome, City of, v. United States, 376 Romer v. Evans, 435 Rompilla v. Beard, 269, 270 Roper v. Simmons, 284 Rosales-Lopez v. United States, 331, 332 Rosebud Sioux Tribe v. Kneip, 687 Rosenberger v. Rector and Visitors of Univ. of Va., 134 Rosenblatt v. Baer, 625 Rosenblatt v. Cohen, 529 Rosenbloom v. Metromedia, Inc., 625 Rotary International v. Rotary Club of Duarte, 580 Rudolph v. Alabama, 306 Ruiz, United States v., 303, 326 Runyon v. McCrary, 102, 194, 251, 441, 533, 535, 586, 587 San Antonio Indep. Sch. Dist. v. Rodriguez, 109, 125 Sanders v. Dobbs Houses, Inc., 168 Santa Clara County v. Southern Pac. R.R., 47 Santa Fe Pac. R.R., United States ex rei. Hualpai Indians v., 688 Saunders v. Gen. Servs. Corp., 447 Saylor, United States v., 234
Schenck v. Pro-Choice Network, 665 Scheuer v. Rhodes, 243 School Dist of Omaha v. United States, 92 SCLC v. A.G. Corp, 620 Scott v. Alabama Board of Education, 656, 657, 658 Scott v. Emerson, 30 Screws v. United States, 232, 234-235, 257 Seaton v. Sky Realty Co., 449, 450 Seminole Tribe of Florida v. Butterworth, 701 Serrano v. Priest, 124, 125 Shanley v. Northeast Indep. Sch. Dist., 646 Shannon v. U.S. Department of Housing and Urban Development, 483 Shaw v. Hunt (Shaw 11), 401, 403 Shaw v. Reno (Shaw 1), 398-403, 408, 409, 419, 563, 565 Shawmut Mortgage Co., United States v., 493 Shelley v. Kraemer, 339, 340, 426, 428-429, 431,432,448,604,605 Shelton v. Tucker, 102 Shepard v. Florida, 307 Southern Burlington County NAACP v. Mt. Laurel Township, 490, 491 Shuttlesworth v. Birmingham Bd. of Educ., 108 Shuttlesworth v. City of Birmingham, 607 Siebold, Ex parte, 232 Simmons-Harris v. Goff, 131 Sims v. Georgia, 302 Singleton v. Jackson Mun. Separate Sch. Dist., 91 Sioux Nation, United States v., 997 Sipuel v. Board of Regents of the Univ. of Okla., 85, 119 Skokie, Village of, v. National Socialist Party of Am., 663, 671, 672 Slaughter-House Cases, 47 Smith v. Allwright, 355 Smith v. Century Concrete, Inc., 530 Smith v. Goguen, 630 Smith v. United States, 234 Smith v. Wade, 455 Snyder v. Louisiana, 325 Somerset v. Stewart, 29, 30, 31 South Camden Citizens in Action v. New Jersey Dept. of Protection, 574 South Carolina, United States v., 223 South Carolina v. Edwards, 604 South Carolina v. Katzenbach, 368, 369, 375 Southern Burlington County NAACP v. Township of Mt. Laurel (Mt. Laurel I), 490, 491 Southern Burlington County NAACP v. Township of Mt. Laurel (Mt. Laurel II), 490, 491 Space Hunters, Inc., United States v., 457 Spann v. Colonial Village, Inc., 465 Spence v. Washington, 630 Spriggs v. Diamond Auto Glass, 178 Sproule v. Fredericks, 353
749
Table of Cases
Spurlock v. United Airlines, Inc., 219 St. Louis, City of v. Praprotnik, 245 St. Mary's Honor Center v. Hicks, 171-172, 174 Stanford v. Kentucky, 284 Starrett Associates, United States v., 472 State (Arizona) v. Dean, 286 State (Florida) v. Neil, 318 State (Nevada) ex rei. Stoutmeyer v. Duffy, 83 State (New Jersey) ex rei. Pierce v. Union Dist. Sch. Trustees, 83 State (New Jersey) v. Gilmore, 318 State (New Mexico) v. Crespin, 318 State of Florida ex rei. Hawkins v. Board of Control, 137 State (South Carolina) v. Brown, 295 State (South Carolina) v. Tomlin, 323 State Farm Mut. Auto. Ins. v. Campbell, 453 Steele v. Louisville & Nashville R.R., 211 Steele v. Title Realty Co., 449, 450 Stenberg v. Carhart, 441 Stevens v. Dobs, 450, 452 Stewart v. Furton, 531 Stewart v. Martinez-Villareal, 268 Stone, United States v., 234 Strauder v. West Virginia, 48, 302, 304, 335, 336 Street v. New York, 629, 630 Sullivan v. Little Hunting Park Inc., 440, 579, 580 Supreme Court of Va. v. Consumers Union of U.S. Inc., 248 Swain v. Alabama, 306, 316-318, 322, 328, 340 Swann v. Charlotte-Mecklenburg Board of Education, 75, 89,90-91, 107, 108, 109,253 Sweatt v. Painter, 86, 119 Sweeney v. Board of Trustees of Keene State College, 222, 223 Sweezer v. Michigan Dept. of Corr., 173 Takahashi v. Fish and Game Commission, 726 Tallman v. Tabor, 543 Tancil v. Woods, 503 Taylor v. Louisiana, 303, 304, 328, 607 Tee-Hit-Ton Indians v. United States, 685, 688 Terry v. Adams, 355 Terry v. Ohio, 286 Test, United States v ., 329 Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, 529 Texas, United States v., 99, 357 Texas v. Johnson, 630, 632, 633 Texas Dept. of Community Affairs v. Burdine, 171, 172, 175 Thomas v. Diversified Contractors, 325 Thomas v. First Fed. Sav. Bank of Ind., 493 Thornburgh v. Gingles, 390-391, 402, 412 Tillman v. Wheaton-Haven Recreational Ass'n, Inc., 440, 441, 442, 579
750
Time, Inc. v. Hill, 625 Tindle, United States v., 323 Tinker v. Des Moines 1ndep. Community Sch. Dist., 644-648, 650 Tipton v. Aaron, 539 Toilet v. Henderson, 308 Trafficante v. Metropolitan Life Insurance Co., 461, 462, 463 Tropic Seas, Inc., United States v., 453 Trotter v. Board of Trustees of Univ. of Ala., 176 Tunica County Sch. Dist., United States v., 94 Turner v. Fouche, 303 Turner v. Murray, 321, 332 Turner v. Safley, 562, 563 Tyler v. Vickery, 219 Uhlrigh v. Harder, 247 UMWA, Dist. 12 v. Illinois State Bar Ass'n, 361 United Brotherhood of Carpenters & Joiners of America v. Scott, 254, 255, 611 United Jewish Organizations of Williamsburgh v. Carey, 372, 395-397, 416 United Jewish Organizations of Williamsburgh v. Wilson, 396, 409, 410 United States v. See name of opposing party United States ex rei. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, 437, 438 United States ex rei. Clarke v. Gramer, 569 Untied States v. United States Klans, 603 United Steel Workers of America v. Weber, 395 United Transp. Union v. State Bar of Mich., 361 University of Cal. v. Bakke, 189 University of Pennsylvania v. EEOC, 222 Uzell v. Friday, 410 Vaccaro, United States v., 323 Vadie v. Mississippi State Univ., 177 Valtierra v. Housing Auth., 433 Vieth v. Jubelirer, 380-381, 382, 383 Villafane v. Manson, 314 Villanueva v. Carere, 129 Virginia v. Black, 638-642 Virginia, Ex parte, 48, 302 Virginia v. Rives, 302 Waddell, United States v., 48, 232 Walker, United States v., 334 Walker v. City of Birmingham, 607, 608, 609 Walker v. Pointer, 462 Wallace v. Brewer, 64 Wallace v. State (Alabama), 322 Waller v. Butkovich, 314 Ward v. Flood, 83 Ward v. Rock Against Racism, 666 Wards Cove Packing Co. v. Antonio, 180-183, 191, 196, 197, 198, 199, 219, 314
Table of Cases
Warth v. Seldin, 462, 463 Washington v. Davis, 9, 92, 129, 183-191, 222, 223,280,313,442,486,487,489,575 Washington v. Lee, 562 Waters v. Wisconsin Steel Works, 168 Watson v. Fort Worth Bank & Trust, 181, 182, 191, 192 Watson v. Fraternal Order of Eagles, 580 Welfare of D.L., Matter of the, 543 Welsh v. Boy Scouts, 579 W esberry v. Sanders, 361 West Virginia State Bd. of Educ. v. Barnette, 102 Western Addition Community Org. v. Weaver, 477 Westminster Sch. Dist. v. Mendez, 729 Wheatley Heights Neigborhood Coalities v. Jenna Resales Co., 447 Whitcomb v. Charvis, 360, 386, 387, 388-390 White v. Regester, 374, 387, 389 Whitney v. California, 676 Whitney v. Greater N.Y. Corp of Seventh Day Adventists, 528 Whitus v. Georgia, 302, 303 Wi Pa Rata v. Bishop of Wellington, 717 Wicks v. Mississippi State Employment Serv., 588 Widmar v. Vincent, 134 Wiggins v. Smith, 269 Wik Peoples v. Queensland, 713 Wilhelm v. Continental Title Co., 254 Wilkerson v. Texas, 323 Will v. Michigan Department of Stated Police, 246 William v. Wall ace, 614 Williams, United States v., 334 Williams v. Alioto, 258 Williams v. Board of Educ. of Fairfax Dist., 84 Williams v. City of Dothan, Ala., 576, 578 Williams v. City of Fairburn, 453
Williams v. Mississippi, 353 Williams v. Taylor, 269 Williams, United States v., 334 Wilson v. Kauffman, 325 Winters v. Cook, 307 Wisconsin v. Mitchell, 677, 678, 679 Wisconsin v. Yoder, 587 Wisniewski v. Board of Education of Weedsport Central School District, 653 Witherspoon v. Illinois, 304 Witters v. Washington Dept. of Services for the Blind, 133 Wong Kim Ark, United States v., 719 Woodard v. Virginia Board of Bar Examiners, 219 Woods-Drake v. Lundy, 452 Wooten v. Federal Express Corporation, 530 Worcester v. Georgia, 686, 687, 688 Wright v. Cork Club, 579 Wright v. Rockefeller, 184, 377, 378 Wright v. The Salisbury Club, Ltd., 579 Wright v. Universal Maritime Serv. Corp., 214, 215, 218 Wygant v. Jackson Board of Education, 184, 187, 188, 191 Yankton Sioux Tribe v. United States, 687 Yarbrough, Ex parte, 48, 232, 385 Yick Wo v. Hopkins, 692, 719 Yonkers Bd. of Educ, United States v., 115 Young, Ex parte, 241 Young, United States v., 329 Young v. International Tel. & Tel. Co., 168 Young v. New York City Transit Auth., 672 Younger v. Harris, 243, 244 Zelman v. Simmons-Harris, 110, 131 Zobrest v. Catalina Foothills Sch. Dist., 133 Zuni Indian Tribe of N.M. v. United States, 699
751
Index
ABC News/Washington Post poll on death penalty, 271 Abolition of slavery, 25-27 Aboriginal Australians, 704-715 Abortion issue and protests, 664-667 Accountants and Title VII coverage, 220 Ackerman, Bruce, 468 Act of 1943 repealing Chinese exclusion acts, 721 Adam's Mark Hotel, 573 Adarand Constructors, Inc. v. Pena (1995), 12, 189-191 Adler, Amy, 679-680 Administration of justice. See Justice, administration of Adoption and Safe Families Act of 1997 (ASFA), 545 The Adoption Institute, 549 Adoptions, interracial, 539-551 American Indian Child Welfare Act of 1978, 551-553 hypo, 539-541 international adoption, 549-551 legislation, 544-545 nonaccommodation, 547-549 race-matching and accommodation, 545-547 Affirmative action college admission policies, 9, 409 congressionally approved programs, 189 employment programs, 409 jury selection, 335-337 African Americans. See Black history; specific topics Age Discrimination in Employment Act (ADEA), 202, 213 Agency-principal law, 457 Aggregate right, creation of, 408-409 Akron, Ohio, housing ordinance, 432 Alabama cumulative voting, 418 disfranchisement provisions, 350, 351 miscegenation laws, 500-501 redistricting, 359-362 state colleges, 141-142 voting system, 417 Alcohol-related cases, 298 Alien immigrants. See Immigrants
Amar, Akhil, 369 American Bar Association on capital punishment, 269 Task Force on Treatment of Enemy Combatants, 733 American Bar Association on capital punishment, 272 American history and race, 19-72. See also Black history American Indian Child Welfare Act of 1978, 551-553 American Indians. See Indians, American Americans with Disabilities Act of 1990, 214, 216 attorney's fees, 569 expansion by 1991 Civil Rights Act. See Civil Rights Act of 1991 Amsterdam, Tony, 271 Anders, Gary, 703 Anderson, Bernard, 153 Annexation challenges, 391-394 "Anomaly thesis," 66-67 Antiterrorism and Effective Death Penalty Act (AEDPA, 1996), 267-268 Antitrust, 621, 623 Anti-war protests, 669-670 Appiah, Anthony, 515, 517, 523-524 Arbitration procedures in fair employment cases, 211-219 Arkansas disfranchisement provisions, 350, 351 Armstrong, Margalynne, 454-455 Articles of Confederation, 686 Ashcroft, John, 732 Association for Community Organizations for Reform Now (ACORN) study on minority mortgages, 493, 495 Attorneys fees. See Attorney's fees ineffective representation in death penalty cases, 269, 284-285 licensing, 219-220 Title VII coverage, 220-221 Attorney's fees Civil Rights Attorney's Fee Awards Act of 1976, 206, 251-252, 453 limit in civil rights cases, 569-570
753
Index
Atwood, Barbara, 553 Augusta National, 581-582 Australia and Aboriginal Australians, 704-715 Automobile sales, 588, 589-593 Ayers, Ann, 14-15 Ayres, Ian, 589-590 Bailey, Nellie, 479 Baldus, David, 11, 266, 277, 283 Banks, Richard, 510, 547-548 Banks, Taunya, 722 Barsh, Russel, 553 Bartholet, Elizabeth, 220, 547-548 Bell, Derrick, 65, 76, 339, 535 Bennett, Lerone, 48 Bergeron, Rachel, 544, 546 Berry, Mary Frances, 45, 257 "Best interests ofthe child" standard, 538-539, 543, 544 Bilingual education, 99 Bilingual Education Act of 1968, 729 Birth control, court-ordered, 296 Bittker, Boris, 59-60 Bivens rule, 256 Black, Charles, 102, 103, 104, 582-583 Black Codes, 282, 556 Black colleges, 136-147 Black diaspora, 62-66 effect on voting rights, 373-374 Black history. See also Slavery abolition of slavery, 25-27 Civil War amendments and Civil Rights Acts, 45-48 Dred Scott case (1857), 21, 31-36, 44, 257 Emancipation Proclamation, 21-25, 36, 45 emigration and resettlement, 62-66 hypo, 69-72 involuntary sacrifice, principle of, 43-45 nineteenth century experience, 52-56 overview, 19-21 racial realism, 66-69 Reconstruction era, 48-52 reparations, 56-62 Black middle class, 149-150 Blackmun, Harry, 249 "Black Power," 626 Black women criminal punishment and, 295-297 employment discrimination, 224-225 interracial relationships, views on, 510-511 marriage gap and, 510 Blockbusting, 445, 662 Bob Jones University, 532-535, 586 Bond, Julian, 664 Border Patrol, U.S., 730-731 Bost, Suzanne, 513-514 Boston, Massachusetts, 82, 129, 479 Bowers, William, 309-310 Boycotts, 259, 616-624, 729
754
Brown v. Board of Educ. decision (1954), 14,85-89,96,99-111, 115, 117-123, 357, 561 Bunche's (Ralph) racial assessment, current relevance of, 1-8, 19 Burger Court, 90-93, 108-109, 179, 254, 318-320 Burk, Martha, 581 Burlingame Treaty (1868), 720 Buses, public. See Train and bus segregation Bush, George W., 260 Business enterprises, minority, 187-188 Business necessity standard, 219 Busing. See Desegregation Butler, Judith, 678-679 Butler, Paul, 297-301
California Alien Land Laws (1913), 723, 726 bilingual education, 99 Car Buyers Bill of Rights, 592 Chinese population of, 719-720 Constitution Article 34 (low-rent housing), 432-433 Japanese population of, 722-723, 726 miscegenation ruled unconstitutional, 500 prison segregation, 562-564 Proposition 14 (housing discrimination), 430-436 school finance, 124-125 Calmore, John, 369, 408 Campbell, Ernest, 97, 610 Capital Jury Project data on black jurors, 309-310 Capital punishment. See Death penalty Carmichael, Stokely, 626 Carriere, Jeanne, 553 Car sales, 588, 589-593 Carter, Robert L., 88-89 Carter, Stephen, 292-293 Casper, Gerhard, 342, 344 Censorship. See Free speech Census and racial categories, 497-498, 525 Center for Urban Economic Development (University of Illinois at Chicago), 210 Charter schools, 127-130 "Chattels personal," 27 Chemerinsky, Erwin, 189, 562, 637 Chicanos. See Mexican Americans Child abduction, 551 Child custody and interracial relationships, 535-539 Children. See Adoptions, interracial Childs, Erica Chito, 511 Child Welfare League of America (CWLA), 546 Chinese Americans, 719-722 Chinese Exclusion Act of 1882, 720 Chinese Exclusion Case (1889), 720-721
Index
Churches and interracial relationships, 532-535 Churchill, Ward, 684 Circumstantial evidence of discriminatory intent, 175-176, 200 Citizen Action Group study on jury composition, 314-315 City of. See name of specific city Civil Liberties Act of 1988, 56, 726 Civil Rights Act of 1866, 46, 560, 692 Civil Rights Act of 1870-1875, 47, 51, 557558, 567. See also Section 1981 Civil Rights Act of 1957, 366 Civil Rights Act of 1960, 366 Civil Rights Act of 1964 scope of voting rights under, 366 Title II, public facilities, 567-580, 588 Title VII, employment. See Title VII Civil Rights Act of 1991, 196-205 business necessity rule and, 219 class actions and, 205 nongovernmental discrimination covered by, 587-588 punitive damages and, 203-204 remedial policies and, 202-203 Civil Rights Attorney's Fee Awards Act of 1976, 206, 251-252, 453 Civil Rights Cases (1883), 555, 557, 559-560 Civil rights groups, role of, 5 Civil trials and jury selection, 338-340 Civil War Amendments, 6, 45-48, 233, 257. See also specific Civil Rights Act by year Clark, Kenneth, 481 Class class-based programs, 15-16 poor white status and opposition to integration, 106 urban renewal cases, 476 voting rights and, 353 Class actions Civil Rights Act of 1991 and, 205 Hispanic school children in Texas, 125 Indians and standing to sue, 692 Memphis street closure, 441-443 Class-based programs, 15-16 Clegg, Roger, 364 Cleveland voucher plan, 131-132, 135 Clinton, Bill, 420, 493, 523 Cloward, Richard A., 601, 614-615 Cobbs, Price, 507, 508 Cohen, Mark, 591 Cole, David, 301-302, 732 Collective bargaining agreements. See Unions Colleges and universities admission of black students to state colleges, 7 affirmative action admission policies, 9 black colleges, 136-147 hypo, 146-147
professors and Title VII coverage, 222-223 Color-Blind Adoption Act (proposed), 549 Color-blind constitutionalism, 8-17, 79 "Color of law." See State action Combatant Status Review Tribunals (CSRT), 735 Commerce Clause, 567-568 Compelling state interest, 8, 73, 75-79, 186, 188-190, 400-402, 489, 532, 565 Conference on the Death Penalty in the Twenty-First Century (American University, 1995), 271 Conflict of laws and slavery, 28-31 Connecticut voting system, 417 Conspiracy, 231, 239, 259 Constitutional amendments and civil remedies, 255-257 Constitutional interpretation Article I, §2, 357, 364 Article I, §4, 381 Article III, 462-463 Articles I and IV, 38 color-blind constitutionalism, 8-17, 79 Consumer boycotts. See Boycotts Continental Congress, 37 Covered employees, definition of, 201 Cox, Archibald, 255 Cox, Oliver, 506-507 Cracker Barrel, 573 Craigslist, 44 7 Crenshaw, Kimberle, 9-10, 225 Criminal disenfranchisement laws, 362-365 Criminal justice system, 265-302. See also Jury selection black sexuality and, 295-297 contemporary racial vigilantes, 290-294 death penalty, 11-12, 184-185, 265-285 disruption of Black families and, 296-297 hypo of prison segregation, 565-566 jury nullification and, 297-301 O.J. Simpson case and, 301-302 prison segregation, 562-565 racially disproportionate penalties, 285-290 racial profiling, 260-264, 286-287 recidivism, 289-290 sentencing, 185 Criminal remedies for civil rights violations, 231 ineffective criminal penalties, 232-235 Critical race theory, 9, 12, 14, 679 Cross burning by whites, 635-642 R.A. V. v. City of St. Paul (1992), 635-638, 678 Virginia v. Black (2003), 637, 638-642 Cruel and unusual punishment, 276. See also Eighth Amendment Custody cases and interracial relationships, 535-539
755
Index Cuyahoga Falls, Ohio, referendum repealing low-income housing ordinance, 435-436 Damages Civil Rights Act of 1991, 202-203 housing discrimination, 448-458 public accommodations statutes, 571 Davis, Angela J., 287-288 Davis, David Brion, 19 D.C. Sentencing Project, 300 Death penalty, 11-12, 184-185, 265-285 Furman v. Georgia (1972), 274-276, 281-282, 283, 305 McCleskey v. Kemp (1987), 11, 184-185, 188, 276-285, 301, 321 Defamatory statements and protest rights, 624-625 Delgado, Richard, 678 Democratic Party black vote and, 557 domination of, 341-348, 352, 421 redistricting and, 385, 407 suffrage restrictions sought by, 353 Demonstrations. See Protests Denny's Restaurant, 572-573 Derrida, Jacques, 600 Desegregation Brown v. Board of Educ. decision (1954), 14, 85-89, 96, 99-111, 115, 117-123, 357, 561 cases in late 1960s and after, 89-99 changing ideology of, 96-97 Cumming v. Richmond County Bd. of Educ. ( 1899), 84-85 equal education, struggle for, 81-85 gains and losses, 98-99 Green v. County Sch. Bd. of New Kent County (1968), 89-90 hypo, 111-113,117-123 judicial retreat from, 95-96 post-Swann decisions, 91-99 public housing, 480-485 racial balance debate revisited, 97 Roberts v. City of Boston (1850), 82-84, 104 Swann v. Charlotte-Mecklenburg Bd. of Educ. (1971), 90-91 tracking and disenchantment, 93-95 Detainees. See Guantanamo detainees Detainee Treatment Act of 2005, 735 de Tocqueville, Alexis, 25, 345 DeWitt, John L., 724 Diallo in NYC police shooting incident, 294, 669 Dilution of votes. See Voting rights Discovery, Doctrine of, 690-691 Disenfranchisement. See Voting rights Disparate impact cases, 178-180
756
Disparate treatment cases, 172-178, 20 I Displaced persons, 478 DNA as evidence, 273 genetic makeup and, 515 Doctrine of Discovery, 690-691 Dollard, John, 509 Dorsen, Norman, 634 Douglass, Frederick, 20, 45, 510 Downs, Anthony, 466-468, 471 Downsizing, 185-186 Draft Riots (1863), 24 Dred Scott case (1857), 21, 30-36, 44, 257 Drug cases and sentencing, 301 Dubler, Ariela, 502, 503 Du Bois, W.E.B., 523-524 Dudziak, Mary, I 05 East St. Louis race riot (1917), 230 Economic status of blacks, 149-153 Education. See Colleges and universities; Desegregation; Schools Eighth Amendment, 274-275, 277, 284 Eisenhower, Dwight, 226 Elections. See Voting rights Electoral College, 369 Eleventh Amendment, 241, 702 Elks, Order of, 584-586 Emancipation Proclamation, 21-25, 36, 45 Emigration as answer to racism, 62-66 hypo, 69-72 Eminent domain, 478 Emotional distress, damages for, 449-452 Employment discrimination. See also Fair employment black women, 224-225 effect of, 149-161 erosion of remedies, 180-208 ex-convicts, 290 interracial couples and, 527-530 Ledbetter v. Goodyear Tire & Rubber Co. (2007), 172-178 legal restraints, efficacy of, 161-166 Lorance v. AT&T Tech. (1989), 194-195 Martin v. Wilks (1989), 192-193 Patterson v. McLean Credit Union (1989), 193-194, 588 Price Waterhouse v. Hopkins (1989), 195-196 punitive damages, 203-204 Washington v. Davis (1976), legacy of, 183-191, 489 Watson v. Fort Worth Bank & Trust (1988), 192 white-collar workers and, 219-224 Employment laws. See Fair employment Empowerment zones, 479-480 Enemy combatants. See Guantanamo detainees Enforcement Act of 1870, 231
Index
England and racism, 703-704 English language requirements, 668, 696 bilingual education and, 99 Epstein, Richard, 163-164 Equal Employment Opportunity Commission (EEOC), 167, 528 "Essence," race as, 517-518 Exclusionary zoning challenges, 490-491 Fair employment, 149-227. See also Employment discrimination; Title VII arbitration procedures, 211-219 Civil Rights Act of 1991, 196-201 current economic status of blacks, 149-153 gender and race, 224-225 labor relations law remedies, 210-211 overview of fair employment laws, 167-169 prelude to 1991 Amendments, 191-196 Rule 11 sanctions, 206-208 Section 1981, 168-169 sexual orientation, 226-227 Title VII, 167-168, 169-180 unionization and, 156, 209-210 Fair hearings for student protestors, 654-658 Fair housing, 425-496. See also Housing discrimination Arlington Heights, Village of v. Metropolitan Housing Dev. Corp. (1977), 10, 485-488, 489 continuing segregation and occupancy controls, 466-472 hypo, 443-444, 447-448, 458-461, 470-471, 473-475 interracial couples and, 530-532 Jones v. Alfred H. Mayer Co. (1968), 438-439 middle class dominance theory, 466-467 mortgage discrimination, 492-496 municipal resistance to integrated housing, 436-438 post-Jones cases, 440-441 pre-Arlington Heights standards, re-emergence of, 488-489 predatory lending, 494-496 preferences of blacks, 469-470 private membership, 440-441 proof standards in municipal land use challenges, 485-491 public housing, 480-485 referenda as threat to civil rights, 430-436 resistance to integration, 430-438 restrictive covenant cases, 428-430 Section 1982 and, 438-443, 461 standing and, 461-466, 476 "tipping point" phenomenon, 468-469, 483 urban renewal and, 475-480 zoning challenges, 490-491
Fair Housing Act of 1968, 444-448. See also Fair housing standing and, 461-466 Fair Housing Amendments Act of 1988, 449, 569 Fannie Mae, 494-495 Farrakhan, Louis, 715 Federal Arbitration Act (FAA), 215-216, 217 Federal Reserve Board report on mortgages (1991), 492 Felons and voting rights, 362-365 Fetal endangerment prosecutions, 295-296 Fifteen Passengers Bill (proposed), 720 Fifteenth Amendment compared with Fourteenth Amendment, 372 enactment of, 47 gerrymandering cases, 377, 379 redistricting and, 360 state disfranchisement of rights under, 346-353. See also Voting rights violations of, 355, 369-370 Fifth Amendment Dred Scott case (1857), 31-36 due process, 236, 326 Heart of Atlanta Motel case (1964), 567 Takings Clause, 478, 699 First Amendment rights, 259. See also Free speech establishment clause and use of school vouchers, 132 free-exercise clause, 534, 535 Indians, 695-696 private clubs and, 579 Piss, Owen, 106, 343 Flag-burning cases, 629-635 Flag Protection Act of 1989, 632, 633 Florida disfranchisement provisions, 350, 351, 368 interracial relationships, 502-503 Forman, James, 59, 609-610 Foster, Gail, 115-116 Foster care, 542 Founding Fathers and slavery, 36-40 Fourteenth Amendment black colleges and, 137 Civil Rights Cases and, 239, 559-560 enactment of, 47 gerrymandering cases, 377, 383 government services and, 575 housing segregation and, 426 jury selection and, 319. See also Jury selection poll tax and, 357 sit-in protestors and, 604, 605-606 state action requirement. See State action zoning cases, 486-488 Fourth Amendment, 255-256, 260-264 Franklin, Benjamin, 20, 30, 39, 519, 629 Franklin, John Hope, 106, 555 Freddie Mac, 494-495
757
Index
Frederickson, George, 708 Freedmen's Bureau, 48 Freedom of association, 102 Freeman, Alan David, 12, 484 Freeman, Cathy, 706 Free speech, 667-668 abortion protests, 665-666 boycotts and, 618, 622, 624 cross burning and, 639-641 defamation and, 625 fighting words and hate speech, 636-63 7, 653, 677-679 flag burning and, 631 picketing and, 658-660 protests and, 596, 601, 605, 610, 615, 616, 644-645, 656, 663-664 racist speech and, 671-680 schools and speech issues, 645-654 Freund, Paul, 360-361 Fried, Charles, 599-600, 657 Frieden, Bernard, 494 Frymer, Paul, 420-423 Fugitive Slave Act of 1850, 64 Funding of schools, 123-127 Gallup Poll on death penalty, 272 Gaming on Indian lands, 701-703 Garrison, William Lloyd, 20 Garvey, Marcus, 4, 64 Gates, Henry, 668 Geary Act of 1892, 721 Gender. See Women Gentlemen's Agreement to restrict Japanese immigration, 723 Gentrification, 4 79-480 Georgia redistricting, 400, 405-407 Gerken, Heather, 408-409 Gerrymandering, 377-385 Davis v. Bandimer (1986), 377-380 LULAC v. Perry (2006), 381-385 political reasons for, 383-385 Vieth v. Jubelirer (2004), 380-381 Glass Ceiling Report (2000), 172 Global Relief Fund, 736 Goetz, Bernhard, 291-292 Gotanda, Neil, 12-13, 14 Government contracts and set-asides, 187-188 Government services and facilities, 574-578 Graber, Mark A., 35-36 Grand jury selection, 310-315 Greeley, Horace, 22 Grier, William, 507, 508 Griffith, Ezra, 544, 546 Grillo, Trina, 525 Guadalupe, Treaty of, 727 Guantanamo detainees, 731, 733-735 Guerrero, Manuel P., 551-552 Guinier, Lani, 7, 368-369, 410-417, 419 Gurian, Craig, 447, 464-465
758
Habeas procedure death penalty cases, 267-268 detainees, 736 Haiti, 63 Harlem and empowerment zones, 479-480 Harris, Cheryl, 16-17 Hart, Danielle Kie, 208 Harvard Civil Rights Project study (2003), 98 Harvard Law Review on all-white juries, 322 on punitive damages in employment cases, 203-204 Hate crimes since September 11, 2001, 738 Hate speech, 636-637, 653, 677-679 Hayes-Tilden Compromise (1876), 41-42, 44, 347, 560 Haygood, Ryan, 365 Health care, racial disparity in, 159 Health facilities, protests near, 664-667 Heilbroner, Robert, 54-55 Helms, Jesse, 67 Hernandez, Tanya Kateri, II Hickman, Christine, 523, 524 Hispanics. See Latinos in U.S. Hochschild, Jennifer, 66-67 Homeland Security, Department of, 627, 738 Home Mortgage Disclosure Act of 1989 (HMDA), 493 Homosexuality, 226-227, 526 Hospitals relocating from inner cities, 577 Hotels and segregation/discriminatory policies, 567-568, 570, 573. See also Public facilities Housing and Community Development Act of 1974, 576 Housing and Urban Development Act, 574 Housing discrimination, 92, 427-428. See also Fair housing California Proposition 14, 430-436 continuing segregation and occupancy controls, 466-472 damages for, 448-458 employment discrimination compounded by, 155 ex-convicts, 290 hypo, 443-444, 447-448, 458-461, 470-471, 473-475 interracial relationships and, 530-532 punitive damages, 449, 452-453, 455-458 Housing testers, 427, 465-466 Howard, Jacob Merritt, 1 Howard Beach incident (NY), 290-291 Huntington, New York, zoning, 436 Illinois cumulative voting, 418 death penalty, 272
Index
Immigrants Chinese, 719-722 Japanese, 722-727 labor issues, 156-157 Mexican, 727-731 National Security Entry-Exit Registration System (NSEERS), 737-738 September 11, 200 I, aftermath and, 731-739 voting issues, 374 white race and, 519 Immunity of municipalities, 241-244 Indentured servants, 26, 40 Indiana apportionment statutes, 388-389 Indian Child Welfare Act of 1978 (ICW A), 552-553 Indian Claims Commission Act of 1946, 697 Indian Gaming Regulatory Act of 1988 (IGRA), 702 Indians, American Allotment Period, 694-695 American Indian Child Welfare Act of 1978, 551-553 Doctrine of Discovery and, 690-691 gaming law and, 701-703 guardian-ward relationship (1930s to present), 696-701 jurisdiction of tribal courts, 700 Plenary Power Doctrine, 686, 690-696, 697, 698 racism against, 684-703 Indigent defendants in death penalty cases, 270 Ineffective representation in death penalty cases, 269, 284-285 Initiative for a Competitive Inner City, 479 Injunctive relief, 454 "Innocent" third parties, protection of, 14-15 Integration. See Fair housing; Public facilities; Schools Interethnic Adoption Provisions (1996), 544 International adoption, 549-551 International Committee of the Red Cross, 735 International effect of Brown decision, 105 International treatment of nonwhites, 703-718 Aboriginal Australians, 704-715 Maori of New Zealand, 715-718 Internet Craigslist, 447 school speech and, 652-654 Internment of Japanese in WWII, 8, 723-726 Interracial relationships, 497-553 adoptions, 541-551 child custody and, 535-539 colonial legislation on, 33 employment discrimination and, 527-530
evolving perceptions, 509-521 housing discrimination and, 530-532 hypo, 539-541 Loving v. Virginia (1967), 503-505 McLauglin v. Florida (1964), 502-503 miscegenation, 497-509 religious belief and, 532-535 Interstate Commerce Act, 602-603 Involuntary sacrifice, principle of, 43-45 Irons, Peter, 725 Israelis, 704 Jackson, Jesse, 617 Jackson, Kenneth T., 480, 492 Jacobs, David, 266 Japanese Americans, 8, 722-727 Jaybird Association, 355 Jefferson, Thomas, 36-37 "Jena 6," 642, 670-671 Jim Crow laws, 44, 555-556, 613 Joh, Elizabeth, 263 Johnson, Alex, 144-145 Johnson, James Weldon, 601-602 Johnson, Kevin, 263, 730 Johnson, Lyndon, 368 Johnson, William, 581-582 Johnston, Elliot, 712 Joint Center for Economic and Political Studies, 154 Jordan, Winthrop, 499, 509 Judicial review compelling interest. See Compelling state interest strict scrutiny. See Strict scrutiny standard Voting Rights Act of 1965 and, 369-373 Judicial supremacy Brown decision and, 107-109 Jury nullification, 297-301 Jury selection, 302-304 affirmative action in, 335-337 Batson v. Kentucky (1986), 318-325 Castaneda v. Partida (1977), 308, 310-315, 336 civil juries, 338-340 exclusion standard, 310-315 hypo, 337-338 peremptory challenges, 304, 316-331 post-Batson era, 325-331 racial composition of jury, 309-310 racial neutrality in, 325, 329 removal for cause, 299 standards of proof, 312-315 Swain v. Alabama (1965), 306, 313, 316-317, 318, 340 voir dire and racial bias, 299, 331-335 Jury size, 337 Jury verdicts, 305-310 effect of diversity on, 314-315
759
Index
Justice, administration of, 229-340. See also Criminal justice system; Lynchings attorney's fees. See Attorney's fees constitutional amendments and civil remedies, 255-257 criminal remedies for civil rights violations, 231-235 grand jury selection, 310-315 hypo, 264-265 jury selection, 302-304 jury verdicts, 305-310 Monell v. New York City Dep't of Social Servs. (1978), 244-245, 247 post-Monel! cases, 245-249 racial profiling, 260-264 Screws v. United States (1945), 235-237 Section 1983 remedies, 240-251 Section 1985(3) remedies, 253-255 societal limits on basic protections for blacks, 257-265 summary punishment via racial violence, 229-230 Juvenile criminals, execution of, 283-284 Kalven, Harry, 305 Karst, Kenneth, 524 Keating, Paul, 712 Kennedy, John F., 598, 729 Kennedy, Randall, 281, 299-300, 301, 501, 513,544,553,611 Kentucky Racial Justice Act of 1985, 282 Kerner Commission, 27, 425 Kidd, Rosalind, 710 King, Martin Luther, Jr. assassination of, 626 Birmingham Easter Sunday marches and, 607 "Letter from Birmingham City Jail," 598-599 Montgomery bus boycott and, 617 Poor Peoples Campaign (1968) and, 7, 41 Selma demonstrations for voter registration and, 367-368 Kousser, J. Morgan, 351 Kovel, Joel, 508-510 Kozol, Jonathan, 98 Ku Klux Klan, 230, 348, 530-531, 638-639 Kushner, James, 574, 576 Labor relations laws, 210-211 Language requirements. See English language requirements Latinos in U.S. charter schools and, 128-129 class action on behalf of school children in Texas, 124-125 jury selection and, 303, 328, 332 Mexican immigrants, 727-731
760
mortgage discrimination against, 493 racial profiling, 263 school segregation, 99 Lawrence, Charles, 10-11, 280, 677, 678 Layoffs, 185-186 LeBlanc, Clark, 666 Lee, Jayne, 515-516, 517-518 Leipold, Andrew, 298-299 LeMelle, Tilden J., 54 Lemon test, 132-133 Lester, Julius, 64-65 Levinson, Sanford, 380 Liberia, 63 Liebman, James, 272-273 Lincoln, Abraham, 21-24, 36, 63 Literacy requirements for voting, 351-352, 366, 371, 373 Litwack, Leon F., 25, 49, 346, 425-426 Logan, Rayford W., 49 Lopez, Ian Haney, 522-523, 526 Louima in NYC police brutality incident, 293 Louisville, Kentucky, 73-7 4 Loury, Glenn, 288-289 Low-income housing, 432-433, 435, 467, 478, 493 LULAC (League of Latin American Citizens), establishment of, 728 Lynchings, 229-230, 237-240, 273, 641-642, 708 Lynd, Paul, 330 Lynd, Staughton, 36, 38-40 Magagna, Joan, 427 Maldonado, Solangel, 550 Mank, Bradford, 247 Maori of New Zealand, 715-718 Marriage. See Interracial relationships Maryland slavery laws, 499-500 Massachusetts affordable public housing, 437 preference voting, 418 Matrilineage, 519 Matsuda, Mari, 674, 675, 678, 679 Mauer, Marc, 364 McCain Amendment to DTA (2006), 735 McGee, Henry, 477 McPherson, James M., 51-52 McWilliams, Carey, 724, 728 Memphis, Tennessee, street closure, 441-443 Mentally retarded criminals, execution of, 283 Meredith, James, 626 Mexican American Legal Defense and Educational Fund, 730 Mexican Americans, 727-731. See also Latinos in U.S. Mexican American War, 727 Middle class dominance theory, 466-467 Military Commissions Act of 2006 (MCA), 735-736
Index
Miller, Jerome, 300 Miller, Loren, 87 Miller, Robin, 526 Mills, John Stuart, 2 Milwaukee voucher plan, 131, 135 Minda, Gary, 622-623 Minorities other than Black Americans. See Racism against other nonwhites Minority business enterprises (MBEs) and set-asides, 187-188 Miscegenation laws, 497-509 Misrepresentation as form of housing discrimination, 465 Mississippi state colleges, 139, 141, 142-144 Missouri Compromise of 1820, 31 MIT and University of Chicago study on black employment, 154 Mixed motive cases, 176, 201 Montoya, Jean, 329-330 Moose Lodges, 583-584, 585-586 Moran, Rachel, 513 Morgan, Edmund, 40, 66, 500 Mortgage discrimination, 492-496 Mortgage Reform and Anti-Predatory Lending Act of 2007 (proposed), 495 Moses, Dirk, 709 Mt. Laurel Township, New Jersey, 490-491 Mulroy, Steven, 417-419, 420 Multiethnic Placement Act of 1994 (MEPA), 544 Multiple-box laws, 351 Multiraciality, 524-527 Municipalities advertising and English language requirements, 668 land use challenges, 485-491 liability under §1981, 250-251 liability under §1983, 241-249 noise ordinances, 642-645 picketing restrictions in residential areas, 658-664 punitive damages against, 244 resistance to integrated housing, 436-438 services and facilities, 575-577 zoning. See Zoning challenges Myrdal, Gunnar, 66-67, 505-507 NAACP strategy boycotts organized by, 618-622 1930s strategy, 3 restaurant chains and, 573 school funding and, 124 on school integration, 73-74, 85, 88, 97 white primary and, 354 Narrowly tailored classifications, 9, 73, 77-79,
186, 188-189, 400-401, 563-565 Nashville interstate construction in black neighborhood, 477-478
National Association for Equality in Higher Education (NAFEO), 137 National Association of Black Social Workers (NABSW), 542, 545-546 National Association of Social Workers (NASW), 545, 546 National Coalition to End Racism in America's Child Care System, 549 National Commission on the Causes and Prevention of Violence (1969), 597 National Employment Law Project, 158 National Labor Relations Act of 1968 (NLRA), 210 National Law Journal study on capital punishment, 269 National Organization of Black Law Enforcement Executives, 669 National Security Entry-Exit Registration System (NSEERS), 737-738 Native Administration Act of 1936 (Australia), 710-711 Native Americans. See Indians, American Nelson, Jill, 110 Neo-Nazi organizations and right to demonstrate, 663-664 Neville, A. 0., 711 New Deal cases, 8 New Orleans redistricting, 394-395 New York affordable public housing, 437 charter schools, 129 criminal disenfranchisement law, 362-363 Diallo in police shooting incident, 294 gerrymandering, 377-378 Goetz incident on subway, 291-292 Howard Beach incident, 290-291 Louima in police brutality incident, 293 racial profiling, 261 redistricting, 395-397 school finance, 126-127 New York City Civilian Complaint Review Board, 669 New Zealand Maori, 715-718 Nicholls, Francis Tillou, 44 Niebuhr, Reinhold, 20-21, 613-614 Nimmer, Melville, 631 Nineteenth century experience and racism, 52-56 Nixon, Richard, 90, 729 Noise ordinances, 642-645 North American Council on Adoptable Children, 549 North Asian Pacific American Legal Consortium (NAPALC), 739 North Carolina disfranchisement provisions, 350, 371 proposed Racial Justice Act, 282 redistricting, 398-400, 40 l, 403-404 voting system, 417
761
Index
Northwestern University study on black employment, 153 Norwalk urban renewal, 476-477 Obama, Barack, 7-8, 341 O'Brien, Molly, 134 Occupancy. See Fair housing Office of Inspector General (OIG) report on post-September II immigration detentions, 732-733 Ogletree, Charles, 61, 273-274, 284-285, 296, 671 O.J. Simpson case, 301-302, 525 Omi, Michael, 516, 518 Ordinances. See Municipalities Pakistan, 595 Palestinians, 704 Parents, incarceration of, 296-297 Parker, Wendy, 165 Patriot Act. See U.S.A. Patriot Act "Pattern or practice" of discrimination, 366 Pennsylvania voting system, 417 Peremptory challenges. See Jury selection Perlmutter, Patricia, 320 Perry, Twila, 547 Piar, Daniel F., 205 Picketing. See Protests Pildes, Richard, 407 Pilger, John, 705 Piven, Frances Fox, 601, 614-615 Plenary Power Doctrine, 686, 690-696, 697, 698 Police brutality, 293-294, 669-670 Police officers' liability "good faith" defense and, 243 Section 1981 claims, 250-251 Section 1983 claims, 245-246 Poll taxes, 351, 356-358 Poor Peoples Campaign (1968), 7, 41 Poor whites. See Class Populist movement, 7, 41, 44, 51, 106, 556, 557 Porter, Michael, 479 Poussaint, Alvin, 512 Powell, John, 521 Predatory lending, 494-496 Preference voting, 418 Pregnant women and drug use, 295-296 Pretext analysis of employment discrimination, 195-196, 200 "Pretext-plus" analysis, 177 Prima facie case for Title VII claims, 169-170 Primary elections, 6, 354-356 Prisons. See Criminal justice system Private clubs exemption from Title II, 102, 578-582 liquor laws enforced differently in black social clubs, 259-260 Section 1981 and, 586-589
762
state action and, 582-584 tax subsidies and, 584-586 Professional employees under Title VII, 219-224 Proof. See Standards of proof Property rights of Indians, 695, 698-699 Proportionate interest representation theory, 416-417 Prosecutorial discretion, 287-288 Protests, 595-681 Bethel School District No. 403 v. Fraser (1986), 647-648 boycotts and counterattacks, 259, 616-624 "creative disorder" and the courts, 601-603 cross burning by whites, 635-642 defamatory statements and, 624-625 demonstrations since sit-in period, 625-626 fair hearings for student protestors, 654-658 flag-burning cases and, 629-635 Hazelwood Sch. Dist. v. Kuhlmeier (1988), 648 health facilities, outside of, 664-667 hypo, 651-652, 653-654, 680-681 lawful protestor's dilemma, 596-600 legal analysis of, 598-600 Morse v. Frederick (2007), 648-651 police brutality, against, 669-670 prosecutorial zeal to punish black students, against, 670-671 in residential areas, 658-664 response to, 627-635 school protests, 642-658 school speech and Internet, 652-654 sit-ins, 603-611 social reform via, 611-616 voting rights demonstrations, 367-368 Prothrow-Stith, Deborah, 116 Public facilities, 555-593 car sales, 589-590 government services and facilities, 574-578 hypo, 565-566 marketplace discrimination, 589-593 private club exemption, 102, 578-582 public accommodations statutes, 570-572 segregation statutes, 555-557 Supreme Court's mid-twentieth-century rejection of segregation, 561-565 Supreme Court's nineteenth-century approval of segregation, 557-559 value of dramatic instance, 572-573 Public housing, 290, 432-433, 480-485 black opposition to, 483-484 exclusion of black tenants, 484-485 Public Works Employment Act of 1977, 187 Punitive damages employment discrimination, 202-204 housing discrimination, 449, 452-453, 455-458 municipal liability, 244
Index
Quade, Quintin, 419 Quota Act of 1924, 723 Quotas in housing, 472-475 Race riots, 230 Racial animus, 173, 331-335, 590 Racial assessment. See also White self-interest Bunche's (Ralph) assessment, current relevance of, 1-8, 19 current state of, 9-17, 66-69 fear of inundation by blacks, 55-56 hypo, 17-18 Racial identity, 514-527 biology and, 514-517 choice in, 522-524 election ballot to designate race, 358 multiraciality, 524-527 "racial essence," 517-518 sociohistorical construction of race, 518-521 state statutes requiring for official purposes, 358-359 Racial Justice Act (proposed 1988), 281 Racial profiling, 260-264, 286-287 Racial protests. See Protests Racial realism, 66-69 Racism against other nonwhites, 683-739. See also Indians, American; International treatment of nonwhites Chinese in U.S., 719-722 Japanese in U.S., 722-727 jury selection and, 303 Mexicans in U.S., 727-731 post -September 11, 2001 terrorist attacks, 731-739 Racism and racialization, 516-517 Racist speech and First Amendment rights, 671-680 Radford, Mary, 220 Railway Labor Act of 1976 (RLA), 210 Rape, 295, 305, 306, 316, 509 Rap music, 523, 668 Raskin, Jamin, 666 Recidivism, 289-290 Reconstruction era, 48-52, 229 Redistricting. See Gerrymandering; Voting rights Reed, Veronica, 465-466 Rehnquist Court, 95-96, 109, 132, 242, 270, 328, 408 Reiman, Jeffrey, 365 Religious belief and interracial relationships, 532-535 Remedies. See specific acts and causes of actions Reparations for racism, 56-62 Republican Party domination of Southern politics, 67-68, 384 redistricting and, 382, 384, 407, 413
Residency requirements for voting, 351 Residential areas. See also Fair housing; Housing discrimination picketing in, 658-664 Restatement of Agency, 457-458 Restaurants. See Private clubs; Public facilities Restrictive covenant cases, 339-340, 428-430 Revenue Sharing Act, 574 Reynolds, Henry, 708 Rist, Ray, 114 Roberts, Dorothy, 295, 296, 297 Roberts Court, 441 Robinson, Brandon N., 564 Robinson, Randall, 60-61, 62 Romano, Renee, 513 Romero, Gloria, 564 Roosevelt, Franklin, 723 Roosevelt, Theodore, 723 Roper, Donald, 28 Rostow, Eugene, 725-726 Rotary Clubs, 580-581 Rule 11 sanctions, 206-208 Runaway slave cases, 298. See also Dred Scott case (1857) Ryan, Jim, 135 "Same-decision" defense, 200-201 Sanjek, Roger, 516 Saujani, Reshma M., 191 Saxer, Shelley Ross, 429-430 Schmitt, John, 209 Schools, 73-147. See also Colleges and universities; Desegregation black colleges, 136-146 charter schools, 127-130 equal education, struggle for, 81-85 exclusion of white applicants from black colleges, 146-147 finance, 123-127 housing discrimination and, 467 hypo, 111-113, 117-123, 146-147 income, integration achieved through, 111-113 protest rights, 642-658 racial interest-convergence principles, 109-111 religious-based schools practicing discrimination, 535 Seattle-Louisville decision (2007), 73-81, 96 "separate but equal" doctrine, 84-85 single-race schools, 113-117 single-sex schools, 116-117 speech issues, 645-654 Swann case (1971) and following Supreme Court decisions, 90-99 teachers and Title VII coverage, 221-223 tracking systems, 93-95 vouchers, 130-135 Schuchter, Alan, 609 Schuchter, Arnold, 58-59, 475
763
Index
Scott, John Anthony, 559-560 Scott Act of 1888, 720 Seattle-Louisville decision (2007), 73-81, 96 Second Chance Act of 2005, 289 "Second-generation" discrimination, 162 Section 1981 employment and, 168-169, 194, 200 government services and, 574 police misconduct cases, 250-251 private clubs and, 586-589 Section 1982 housing and, 438-443, 461 private clubs and, 578-579 Thirteenth Amendment and, 439, 441-443 Section 1983 remedies, 240-251, 259, 377, 537, 574 Section 1985(3) remedies, 253-255, 610-611, 665 Section 1988 fee cases, 251-252 Segregation. See Fair housing; Public facilities; Schools Self-interest of whites. See White self-interest Selmi, Michael, 165-166 Seniority systems, 194-195, 225 "Separate but equal" doctrine, 13, 84-85, 561 September 11, 2001 terrorist attacks, 627-628 racial policies of U.S. following, 596, 731-739 racial profiling following, 263-264 Set-asides and minority business enterprises (MBEs), 187-188 Sex discrimination in employment, 172-178, 224-225 Sexual harassment of employees, 177-178 Sexuality of blacks and criminal justice, 295-297 Sexual orientation, 226-227, 526 Sexual relationships. See Interracial relationships Simpson, O.J. See O.J. Simpson case Single-member districts, 385 Single-race schools, 113-117 Single-sex schools, 116-117 Sister Sou1jah, 523 Sit-ins, 602-611. See also Protests Sixth Amendment, 303, 319, 329 Slaughterhouse Cases (1873), 559 Slave Codes, 282 Slavery abolition of, 25-27 compromise over, origin and development of, 40-43 conflict of laws and, 28-31 Dred Scott case (1857), 21, 31-36, 44 Founding Fathers and, 36-40 miscegenation and, 499-500 start of in U.S., 27-28 Slum clearance, 475-480 Smith, Pamela, 117
764
Social reform via racial protests, 611-616 Societal limits on basic protections for blacks, 257-265 Sociohistorical construction of race, 518-521 Sommers, Samuel, 315 South Carolina miscegenation laws, 501 voting rights, 356, 369-370 Sovereign immunity, 241 Standards of proof jury selection, 312-315 municipal land use challenges, 485-491 Standing fair housing law, 461-466 Indian tribes, 692-693, 696-697 Standing and fair housing law, 476 State action charter schools and, 129 civil rights cases and, 238-239 "color of law" and §§241 and 242, 232-233, 236 "color of law" and §1983, 248 private clubs and, 582-584 redistricting and, 361 restrictive covenants and, 428-429 Section 1983 and, 240-241 Section 1985(3) and, 253-254 white primary and, 355 Statistical discrimination theories, 590. See also Disparate treatment cases Steel, Lewis, 612-613 Steinberg, Steven, 157, 161 Steinbrink, Stephen R., 493 Stevenson, Bryan, 266, 267-268 "Stray remarks" vs. racial animus, 173-174 Strict scrutiny standard, 8-9, 12-14 housing discrimination, 472 school desegregation, 74-79 voting rights, 402, 409 Sturm, Susan, 161-162, 173 Subdistricting, 411-413 Subprime lending, 494-495 Supreme Court, U.S. death penalty cases, 266, 281 "means-oriented" approach to equal protection, 12 shielding of businesses, 50 sit-in protests and, 611-616 special relationship with American blacks, 6 Swinton, David H., 150, 152 Sykes, Roberta, 704-705, 714 Takings Clause, 478, 699 Talty, Stephan, 514 Taslitz, Andrew, 261, 262-263 Taxes poll taxes, 351, 356-358 private clubs and tax subsidies, 584-586
Index
Teachers and Title VII coverage, 221-223 Tennessee disfranchisement provisions, 350, 351 Tennessee State University, 138, 139-140 Terrorism. See September 11, 2001 terrorist attacks Testers, 427, 465-466 Texas apportionment statutes, 389-390 Bill of Rights, 355 cumulative voting, 418 death penalty, 268-269, 284 disfranchisement provisions, 350 jury service qualifications, 336 Latinos on juries, 328 redistricting, 382, 401-403 school finance, 124-125 white primary, 355 Third party, proposal for, 412-413 Thirteenth Amendment enactment of, 46, 47 1991 Act and, 588 Section 1982 and, 439, 441-443 Thomas, Clarence, confirmation hearings, 517 "Tipping point" phenomenon, 468-469, 483 Title II. See Civil Rights Act of 1964 Title VII, 167-168, 169-180 disparate impact cases, 178-180 disparate treatment cases, 172-178 interracial associations, coverage of, 528-530 Mexican Americans and, 730 prima facie case, 169-170 professional employees under, 219-224 rebuttal of prima facie case, 170 Title VIII. See Fair Housing Act of 1968 Tobias, Carl, 207 Torres, Gerald, 7 Tracking systems in schools, 93-95 Trade and Intercourse Acts (1790), 687 Train and bus segregation, 555, 558-559, 617 Tralka, David W., 479 Treaty. See name of specific treaty Trespass, 602 Trials. See Jury selection Tribal rights. See Indians, American Tribe, Laurence, 372, 667 Troutt, David, 293-294 Troy, Daniel, 419-420 Tuition vouchers, 130-135 Tulsa, Oklahoma, 61-62 Twenty-fourth Amendment, 356 Two-party system, 412-413, 421-422 Unconscious racism, 10, 191 Unemployment rates, 151-152, 521 Unions, 156, 209-210
arbitration procedures, 211-219 Mexican Americans and, 729 United Nations Convention against Racial Discrimination, 713 Universities. See Colleges and universities University of Michigan Policy on Discrimination and Discriminatory Harassment of Students in the University Environment, 673 University of Pennsylvania study on Rule 11 sanctions, 206 Urban Institute study on white testers, 427 Urban renewal and black housing, 475-480 U.S.A Patriot Act, 627-629 U.S. Border Patrol, 730-731 U.S. Bureau of Prisons statistics on rape convictions, 305 U.S. Census and racial categories, 497-498, 525 U.S. citizens employed overseas, 201 U.S. Commission on Civil Rights on 2000 presidential election, 369 U.S. Sentencing Commission, 301 Vargas, Sylvia R. Lazos, 435 Verdicts, 305-310 Verdun, Vincene, 57 Village of. See name of village Violence against Women Act, 16-17 Violence in inner cities, 116 Violence in protests. See Protests Virginia annexation challenges, 391-394 miscegenation laws, 501, 503-505 poll tax, 356-357 Voir dire, 299, 331-335 Voter ID laws, 357 Voting rights, 341-423 aftermath of disfranchisement, 373-377 aggregate right, creation of, 408-409 ambivalence of whites on, 345-349 annexation challenges, 391-394 at-large elections and dilution of black vote, 385-388 Beer v. United States (1976), 394-395 Bush v. Vera (1996), 401-403 criminal disenfranchisement laws, 362-365 disfranchisement provisions, 349-353 futility component in black voting, 420-423 Georgia v. Ashcroft (2003), 385, 405-407 gerrymandering, 377-385 Gomillion v. Lightfoot (1960), 359-362, 486, 625 Hunt v. Cromartie (1999), 403-404 hypo, 423 Indians, 695 judicial review, 369-373 legislation in twentieth century, 365-369 Mexican Americans, 729
765
Index Miller v. Johnson (1995), 400 multi-member dilution standards, 374, 376-377, 385, 388-391, 412 overt racial designations, 358-359 Petersburg, City of v. United States ( 1972), 391-392 poll taxes, 356-358 redistricting challenges, 359-362, 394-409 reserved racial representation, 409-420 Richmond, City of v. United States (1975), 392-394 Shaw v. Reno line of cases (1993 & 1996), 397-401, 419 symbolic voting rights, 354-365 Thornburgh v. Gingles (1986), 390-391,412 United Jewish Orgs. of Williamsburgh, Inc. v. Carey (1977), 372, 395-397, 409,410 Whitcomb v. Chavis (1971), 386, 387, 388-389 white primaries, 6, 354-356 White v. Regester (1973), 387, 389-390 Voting Rights Act of 1965, 344, 367-368. See also Voting rights criminal disenfranchisement laws and, 362-363 gerrymandering cases, 383 judicial review and, 369-373 1982 amendments, 373, 375-377, 380, 388, 390,412 Vouchers for school choice, 130-135 Waitangi, Treaty of (New Zealand), 717-718 Walter-McCarren Act of 1952, 721, 723 War Relocation Authority, 724 Warren Court, 86-89, 99-111, 316-317
766
Washington, Booker T., 4 Weaver, Vesla Mae, 288 Wechsler, Herbert, 100-104, 107, 109-110 White-collar workers and employment discrimination, 219-224 White employees, coverage by Title VII, 168-169 White flight, 92, 468-469 White self-interest, 24-25, 54 Brown decision and, I 03-106 Williams, Patricia, 290-291, 292, 526, 549, 674 Williams, Robert, 685 Wilson, William Julius, 152, 160, 556, 557 Winant, Howard, 516, 518 Windschuttle, Keith, 708-709 Women. See also Black women access to all-male golf course, 581-582 pregnant women and drug use, 295-296 sex discrimination in employment, 172-178, 224-225 single-sex schools, 116-117 Violence against Women Act, 16-17 Woodward, C. Vann, 43 Woodworth, George, 266 Wright, Richard, 150 Wrongful termination based on racial discrimination, 178 Yoshino, Kenji, 526 "Zebra killings" in San Francisco, 258 Zeisfel, Hans, 305 Zionism, 704 Zipperer, Ben, 209 Zoning challenges, 10-11, 436, 485-491 "Zoot-Suit Riots" of 1943, 729
