Trampling whose rights? Democratic majority rule and racial minorities: A response to Chin and Wagner

Harvard Civil Rights-Civil Liberties Law Review

Volumn 43, Issue 1, 2008, Pages 127-164

  Banks, Taunya Lovell ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 40949152109     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (314)

1. Grant Farred, America's Africa: Barack Obama and the Aporia of Race, 8 SAFUNDI: THE J. OF S. AFR. & AM. STUD. 103, 103 (2007).
2. Bob Herbert, Lessons Never Learned, N.Y. TIMES, Dec. 28, 2006, at A35. He continues: Those dreams did not include visions of an enormous economically disadvantaged population that would continue to live in poverty, or near-poverty, more than 40 years later; or a perennially ragged public school system, largely segregated in fact, if not by law, that would turn out generation after generation of educationally deprived children; or a black prison population so vast and so enduring it would come to seem normal to legions of black youngsters, actually dictating to a great extent their tastes in fashion, art and music; or a level of sustained violence that has condemned thousands upon thousands of black youngsters to an early grave. Id.
3. U.S. CONST, amend. XIII.
4. U.S. CONST, amend. XIV.
5. U.S. CONST, amend. XV.
6. DERRICK BELL, RACE, RACISM AND AMERICAN LAW 44 n.3 (5th ed. 2004) (citing RAYFORD W. LOGAN, BETRAYAL OF THE NEGRO (1965), originally published as THE NEGRO IN AMERICAN LIFE AND THOUGHT: THE NADIR, 1877-1901 (1954)).
7. Id. at 44-45.
8. 163 U.S. 537 (1896) (holding racially separate but equal facilities mandated by law do not violate the equal protection clause).
9. See The Civil Rights Cases, 109 U.S. 3 (1883) (holding that the Fourteenth Amendment does not reach private discriminatory acts);
10. United States v. Harris, 106 U.S. 629 (1883) (holding that the Fourteenth Amendment does not empower the federal government to criminalize actions by private citizens against fellow state citizens);
11. United States v. Cruikshank, 92 U.S. 542 (1876) (holding that the Fourteenth Amendment does not incorporate the Bill of Rights);
12. United States v. Reese, 92 U.S. 214 (1875) (holding that the Fifteenth Amendment does not guarantee blacks the right to vote, but only the right not to be excluded from the franchise due to race);
13. The Slaughter-House Cases, 83 U.S. 36 (1872) (distinguishing between state and federal citizenship with respect to the Fourteenth Amendment's Privileges and Immunities Clause).
14. Gabriel J. Chin & Randy Wagner, The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 HARV. C.R.-C.L. L. REV. (2008).
15. Chin and Wagner assert that while blacks were a political minority nationally, in the second half of the nineteenth century they were "an absolute majority" in three soumern states (Louisiana, Mississippi and South Carolina) and "the largest single voting bloc" in four other states (Alabama, Florida, Georgia and Virginia), in which blacks constituted "over 40% of the population." Id. at 66.
16. Id. at 80.
17. Id. at 74.
18. Id. at 73 (citing Ralph Bischoff, Minority Rights and Majority Rule, 39 VA. L. REV. 607, 612 (1953)).
19. Id. at 67 (citing ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16 (2d ed. 1986)).
20. Id. at 80-97.
21. Id. at 96-97.
22. Some might question whether protection of black enfranchisement in the South during the late nineteenth century would have prevented this disadvantage given the hardened racial attitudes of the time and the widespread use of intimidation and violence to expel blacks from towns and counties, or discourage voters. Although black Americans might have been able to elect law enforcement officials, history indicates that hostile whites willingly used intimidation, economic coercion, and violence to undercut the voting power of black Americans, whether majorities or minorities. For a discussion of this point, see generally JAMES W. LOEWEN, SUNDOWN TOWNS: A HIDDEN DIMENSION OF AMERICAN RACISM (2005) (arguing that between 1890 and 1968 thousands of communities across the United States systematically excluded blacks from living in them). Even the authors concede that federal intervention to protect black voters during this period was "diminish[ing]." Chin & Wagner, supra note 10, at 89.
23. Chin & Wagner, supra note 10, at 105.
24. Id. at 97 (citing Reynolds v. Sims, 377 U.S. 533, 562 (1964);
25. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1896)).
26. Id. at 110. Akhil Reed Amar recounts the Supreme Court's consistent disregard for the rights of blacks in America. He writes, "[T]he Philadelphia Constitution was pro-slavery, but the Taney Court was far worse, and grossly dismissive of the rights of free blacks. The Waite/Fuller Court damned government-sponsored integration in the Civil Rights Cases and blessed government-sponsored segregation in Plessy v. Ferguson." Akhil Reed Amar, The Supreme Court 1999 Term - Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 65 (2000). He continues, "And the Civil Rights Cases remain good law in the year 2000, paving the way for the Court to invalidate yet anomer congressional civil rights law . . . ." Id. at 66.
27. Chin & Wagner, supra note 10, at 110. Chin and Wagner use several key late-nineteenth and early-twentieth-century cases to support their point. Id. at 110-15 (citing Giles v. Teasley, 193 U.S. 146 (1904);
28. Giles v. Harris, 189 U.S. 475 (1903);
29. Williams v. Mississippi, 170 U.S. 213 (1898);
30. Plessy v. Ferguson, 163 U.S. 537 (1896);
31. Strauder v. West Virginia, 100 U.S. 303 (1879);
32. Hall v. DeCuir, 95 U.S. 485 (1877)).
33. 304 U.S. 144(1938).
34. Id. at 152-53, 152 n.4. The pertinent text of the footnote reads: There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth .... It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation .... Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious ... or national ... or racial minorities . . . . ; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
35. Id. For a discussion of Footnote 4, see generally Jack M. Balkin, The Footnote, 83 Nw. U. L. REV. 275 (1989);
36. Louis Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 COLUM. L. REV. 1093 (1982) (discussing earlier drafts of the note, the first of which Lusky wrote as a clerk to Justice Stone);
37. Lewis F. Powell, Jr., Carolene Products Revisited, 82 COLUM. L. REV. 1087, 1092 (1982) ("Professor Fiss . . . has termed Footnote 4 of Carolene Products 'the great and modern charter for ordering the relations between judges and other agencies of government' .... [T]he influence of Footnote 4 cannot be measured accurately by simple enumeration of cases in which it has been cited. Nonetheless, I have counted at least twenty-eight cases in which Footnote 4 has been cited in a majority, concurring, or dissenting opinion of the Supreme Court.") (citation omitted).
38. For a sample of Supreme Court cases citing Footnote 4, see, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 218 (1995);
39. Gregory v. Ashcroft, 501 U.S. 452, 468-69 (1991);
40. United States v. Munoz-Flores, 495 U.S. 385 (1990) (Stevens, J., concurring);
41. Foley v. Connelie, 435 U.S. 291, 294 (1978);
42. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-14 (1976);
43. Hampton v. Mow Sun Wong, 426 U.S. 88, 102-03 (1976);
44. In re Griffiths, 413 U.S. 717 (1973);
45. Sugarman v. Dougall, 413 U.S. 634, 642-43, 655-58 (1973);
46. Graham v. Richard son, 403 U.S. 365 (1971).
47. Chin & Wagner, supra note 10, at 96-97. The authors' characterization of state action, however, is quite broad. They write: "[T]o the extent that violent or fraudulent disenfranchisement was the result of truly private action, those private citizens or their co-conspirators be came officeholders. They continued their policies of disenfranchisement, legal and extralegal." Id. at 97. Some legal scholars might take issue with this conclusion. The Fourteenth and Fifteenth Amendments were intended primarily to protect blacks from "state actions" that denied blacks equal protection of the laws and the right to vote. The Supreme Court in the Civil Rights Cases ruled that the Fourteenth Amendment did not apply to private actions. 109 U.S. 3 (1883). This very narrow interpretation of state action initially allowed the Court to characterize political party primaries that excluded black voters as private discriminatory acts. See Grovey v. Townsend, 295 U.S. 45 (1935). Then, in a series of cases culminating in Smith v. Allwright, the Court developed the "public function" doctrine whereby certain functions traditionally performed by government retain their public character even when performed by private actors. 321 U.S. 649, 659-61 (1944). The private actions Chin and Wagner refer to do not seem to fit even under this broader interpretation of state action.
48. Chin & Wagner, supra note 10, at 125.
49. Id. at 76.
50. Id.
51. See, e.g., Paul Butler, A Symposium on the Legacy of the Rehnquist Court: Rehnquist, Racism and Race Jurisprudence, 74 GEO. WASH. L. REV. 1019, 1029-32, 1039-42 (2006);
52. Dan Carney & Alexander Starr, New Order in the Court, Bus. WK., Apr. 23, 2001, at 88;
53. Neil A. Lewis, Mixed Results for Bush in Battles Over Judges, N.Y. TIMES, Oct. 22, 2004, at Al;
54. Neil A. Lewis & David Johnston, Bush Would Sever Law Group's Role in Screening Judges, N.Y. TIMES, March 17, 2001, at Al;
55. John Nichols, Karl Rove's Legal Tricks: Packing the Judiciary with Right-Wingers, THE NATION, July 22, 2002, at 11;
56. Roger Clegg, Picking the Next Justice, NAT'L REV. ONLINE, Apr. 19, 2002, http://nationalreview.com/clegg/ clegg041902.asp (last visited Oct. 31, 2007).
57. Chin & Wagner, supra note 10, at 117-18.
58. 488 U.S. 469 (1989).
59. 476 U.S. 267 (1986).
60. After the Supreme Court outlawed the all-white primary, this Arkansas newspaper editor urged its white readers to support the poll tax, which would effectively disenfranchise many black voters. See Virginia E. Hench, The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, 48 CASE W. RES. L. REV. 727, 732 (1998) (citing C. Calvin Smith, The Politics of Evasion: Arkansas' Reaction to Smith v. Allwright, 1944, 17 J. NEGRO HIST. 40, 41 (1982)).
61. Chin & Wagner, supra note 10, at 68-70.
62. 60 U.S. 393 (1857).
63. See CHESTER JAMES ANTIEAU, THE INTENDED SIGNIFICANCE OF THE FOURTEENTH AMENDMENT 3-4 (1997);
64. Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1746-48 (2007);
65. Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. I (1955). Desmond King and Stephen Tuck argue forcefully "that Southern white supremacy was constructed in conjunction with, rather than in opposition to developments in the rest of the country after Reconstruction." Desmond King & Stephen Tuck, De-Centering the South: America's Nationwide White Supremacist Order After Reconstruction, 194 PAST & PRESENT 213, 214 (2007).
66. See, e.g., CHESTER JAMES ANTIEAU, THE INTENDED SIGNIFICANCE OF THE FOURTEENTH AMENDMENT (1997);
67. CHESTER JAMES ANTIEAU, THE ORIGINAL UNDERSTANDING OF THE FOURTEENTH AMENDMENT (1981);
68. JAMES EDWARD BOND, NO EASY WALK TO FREEDOM: RECONSTRUCTION AND THE RATIFICATION OF THE FOURTEENTH AMENDMENT (1997);
69. FREDERICK P. LEWIS, THE DILEMMA IN THE CONGRESSIONAL POWER TO ENFORCE THE FOURTEENTH AMENDMENT (1980);
70. HERMINE HERTA MEYER, THE HISTORY AND MEANING OF THE FOURTEENTH AMENDMENT: JUDICIAL EROSION OF THE CONSTITUTION THROUGH THE MISUSE OF THE FOURTEENTH AMENDMENT (1977).
71. Reflecting disagreement about the intent of the amendment, ratification was not without controversy. Five southern states and two border states (Maryland and Delaware) resisted ratification of the Fourteenth Amendment that required them to guarantee all people, including blacks, equal protection of the law. "The amendment was subsequently ratified by Alabama, July 13, 1868;
72. Georgia, July 21, 1868 (after having rejected it on November 9, 1866);
73. Virginia, October 8, 1869 (after having rejected it on January 9, 1867);
74. Mississippi, January 17, 1870;
75. Texas, February 18, 1870 (after having rejected it on October 27, 1866);
76. Delaware, February 12, 1901 (after having rejected it on February 8, 1867);
77. Maryland, April 4, 1959 (after having rejected it on March 23, 1867);
78. California, May 6, 1959;
79. Kentucky, March 18, 1976 (after having rejected it on January 8, 1867)." National Park Service, 14th Amendment to the U.S. Constitution Proposal and Ratification, available at http://www.nps.gov/archive/malu/ docu-ments/amendl4.htm (last visited Oct. 31, 2007). New Jersey, Oregon and Ohio subsequently rescinded their ratifying votes. Id.
80. James Thomas Tucker writes that while it was clear that the Thirteenth Amendment overruled that portion of "the Dred Scott decision to the extent it allowed the federal government to deprive slave owners of their 'property' . . . there was widespread disagreement over whether the effects of the Amendment went any further." James Thomas Tucker, Tyranny of the Judiciary: Judicial Dilution of Consent Under Section 2 of the Voting Rights Act, 1 WM. & MARY BILL RTS. J. 443, 474 (1999). Tucker goes on to discuss how the Fourteenth Amendment clarified the citizenship status of black Americans and how the privileges and immunities, equal protection and due process clauses "gave specific meaning to American citizenship." Id. at 479. Northerners were concerned that the grant of citizenship to blacks, the vast majority of whom resided in the South, would shift even more power to the South than the Three-Fifths Clause of Article I and questioned whether the Fourteenth Amendment gave Congress the right " 'to prescribe the qualifications of voters in a State, or . . . act directly on the subject.' . . . [Further] black suffrage in the northern states was a practical impossibility be cause of its unpopularity." Id. at 480. More importantly, Tucker, quoting John Mabry Mathews, the leading authority on the Fifteenth Amendment for the first half of the twentieth century, writes "that politics not principle was the dominant factor [explaining the enactment of that amendment] .... "The Fifteenth Amendment had a limited object-first, to enfranchise the northern Negro, and second, to protect the southern Negro against disenfranchisement.'" Id. at 483-84
81. (quoting JOHN MABRY MATHEWS, LEGISLATIVE AND JUDICIAL HISTORY OF THE FIFTEENTH AMENDMENT 20-21, 77, 50 (1909)).
82. The Civil Rights Cases, 109 U.S. 3 (1883);
83. United States v. Harris, 106 U.S. 629 (1883).
84. The Slaughter-House Cases, 83 U.S. 36 (1872).
85. Chin & Wagner, supra note 10, at 88.
86. See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOC RACY IN THE UNITED STATES 6 (2000). Of course, these early black voters had to satisfy property and other restrictions. Id.
87. See LEON LITWACK, NORTH OF SLAVERY 74, 79 (1961);
88. David Skillen Bogen, The Maryland Context of Dred Scott: The Decline in the Legal Status of Maryland Free Blacks 1776-1810, 34 AM. J. LEGAL HIST. 381, 396-403 (1990) (discussing the loss of franchise for free blacks in Maryland).
89. King & Tuck, supra note 37, at 220 (citing Leslie H. Fishel, Jr., Northern Prejudice and Negro Suffrage, 1865-1870, 39 J. NEGRO HIST. 12 (1954)). King and Tuck continue: "Out West, the four thousand black Californians were barred from voting, jury service, testifying in court, homesteading or marrying across the colour line." Id.
90. The 39th Congress made enfranchisement of black adult males a requirement for readmission of the former confederate states to the Union. For a discussion of this process, see Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 GEO. L.J. 259, 269-73 (2004). But states outside the Deep South governed by Democrats refused to extend the franchise to blacks.
91. King & Tuck, supra note 37, at 220 (citing Leslie H. Fishel, Jr., Northern Prejudice and Negro Suffrage, 1865-1870, 39 J. NEGRO HIST. 12 (1954)). Only when the interests of white Republicans were threatened during the 1868 presidential election did the Republican-dominated Reconstruction Congress consider a constitutional amendment to protect black voters.
92. See MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR EQUALITY 29 (2004). Members of Congress needed the black vote to counteract a resurrected southern-influenced Democratic party, but they also wanted to control access to the franchise. Id. at 29.
93. U.S. CONST, amend. XV, § 1.
94. Six states outside the Deep South (California, Delaware, Kentucky, Maryland, Oregon, and Tennessee) rejected the Fifteenth Amendment outright, and New York rescinded jts adoption. 14th Amendment to the U.S. Constitution Proposal and Ratification, available at http://www.nps.gov/archive/malu/ documents/amendl5.htm (last visited Oct. 18, 2007).
95. Id.
96. Chin & Wagner, supra note 10, at 96 (citing Terry v. Adams, 345 U.S. 461, 473 (1953);
97. United States v. Cruikshank, 92 U.S. 542 (1875).
98. Chin & Wagner, supra note 10, at 114-16 (discussing Giles v. Teasley, 193 U.S. 146 (1904);
99. Giles v. Harris, 189 U.S. 475 (1903);
100. Williams v. Mississippi, 170 U.S. 213 (1898)).
101. 189 U.S. 475 (1903). According to the Court, anyone who had registered to vote before January 1, 1903, was registered for life and would not be subject to the literacy requirements of the later law. [B]efore 1903 the following male citizens of the State, who are citizens of the United States, were entitled to register, viz.;
102. First. All who had served honorably in the enumerated wars of the United States, including those on either side in the 'war between the states.' Second. All lawful descendants of persons who served honorably in the enumerated wars or in the war of the Revolution. Third. 'AH persons who are of good character and who understand the duties and obligations of citizenship under a republican form of government.' As we have said, according to the allegations of the bill, this part of the Constitution, as practically administered and as intended to be administered, let in all whites and kept out a large part, if not all, of the blacks, and those who were let in retained their right to vote after 1903 . . . Id. at 482-83.
103. Chin & Wagner, supra note 10, at 115;
104. 193 U.S. 146 (1904).
105. 189 U.S. at 488.
106. 193 U.S. at 164.
107. Chin & Wagner, supra note 10, at 116.
108. Id.
109. Id. at 97 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). 59 Id. (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964));
110. see also Reynolds v. Sims, 377 U.S. 533, 562 (1964).
111. Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980).
112. DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 472 (5th ed. 2004). Bell continues: "[BJlacks, while citizens, are always subject to 'democratic domination'; their views, aspirations, even basic political rights subject to the prevailing belief that America, and every part of it, must be controlled by whites." Id.
113. 712 F. Supp. 1523, 1537 (M.D. Fla. 1989).
114. U.S. COMM'N ON CIVIL RIGHTS, VOTING IRREGULARITIES IN FLORIDA DURING THE 2000 PRESIDENTIAL ELECTION (2001), available at http://www.usccr.gov/pubs/vote2000/report/main.htm. The Commission reported: "Nine of the 10 counties with the highest percentage of African American voters had spoilage rates above the Florida average. Of the 10 counties with the highest percentage of white voters, only two counties had spoilage rates above the state average .... Where precinct data were available, the data show that 83 of the 100 precincts with the highest numbers of spoiled ballots are black-majority precincts." Id. at xiii. According to the Commission these voting irregularities resulted from: (1) a general failure of leadership from those with responsibility for ensuring elections are properly planned and executed; (2) inadequate resources for voter education, training of poll workers, and for Election Day trouble-shooting and problem solving; (3) inferior voting equipment and/or ballot design; (4) failure to anticipate and account for the expected high volumes of voters, including inexperienced voters; (5) a poorly designed and even more poorly executed purge system; and (6) a resource allocation system that often left poorer counties, which often were counties with the highest percentage of black voters, adversely affected.
115. Id. at xvii.
116. Id. at xii. The Executive Summary reads: Statistical analysis shows that the disparity in ballot spoilage rates-i.e., ballots cast but not counted-between black and nonblack voters is not the result of education or literacy differences. This conclusion is supported by Governor Jeb Bush's Select Task Force on Election Procedures, Standards and Technology, which found that error rates stemming from uneducated, uninformed, or disinterested voters account for less than 1 percent of the problems . . . Approximately 11 percent of Florida voters were African American; however, African Americans cast about 54 percent of the 180,000 spoiled ballots in Florida during the November 2000 election based on estimates derived from county-level data. These statewide estimates were corroborated by the results in several counties based on actual precinct data.
117. Id.
118. Id. More specifically, the Commission noted that "black voters were nearly 10 times more likely than nonblack voters to have their ballots rejected. . . . [Approximately 14.4 percent of Florida's black voters cast ballots that were rejected . . . comparefd] with approximately 1.6 percent of nonblack Florida voters . . . ." Id.
119. Id. at xiii ("The magnitude of the disenfranchisement, including the disparity between black and nonblack voters, is supported by the testimony of witnesses at the Commission's hearings. These witnesses include local election officials, poll workers, ordinary voters, and activists.").
120. Id. (citing the Voting Rights Act of 1965, 42 U.S.C. §§ 1973-1973bb-1 (2000)).
121. U.S. COMM'N ON CIVIL RIGHTS, supra note 63, at xiii. In 2002, the Commission further reported: "The Justice Department investigated some of the abuses involving access to the polls by individuals with limited English proficiency and individuals with disabilities. How ever, other irregularities have not been investigated by the department." U.S. COMM'N ON CIVIL RIGHTS, VOTING RIGHTS IN FLORIDA 2002: BRIEFING SUMMARY 1 (2002), available at http://www.law.umaryland.edu/ marshall/usccr/documents/VotingRightsFla02CRbrief.pdf;
122. see also Roger Roy, Orange Is Justice's 3rd Target: Threat of Lawsuit over Vote Criticized as "Whitewash," ORLANDO SENTINEL, May 24, 2002, at Al (noting that of the investigations and suits brought by the Department of Justice after the 2000 election, "none of the imminent federal suits in Florida deal with complaints from black voters"). The Government Accountability Office also published a report on the Justice Department's investigations. GOV'T ACCOUNTABILITY OFFICE, DOJ ACTIVITIES TO ADDRESS PAST ELECTION-RELATED VOTING IRREGULARITIES 71, 77 (2004), available at http://www.gao.gov/ new.items/d041041r.pdf (de tailing the investigations generated by complaints about the conduct of the 2000 elections in Florida and other states).
123. U.S. COMM'N ON CIVIL RIGHTS, supra note 63, at xiii-xiv.
124. See REVITALIZING DEMOCRACY IN FLORIDA: THE GOVERNOR'S SELECT TASK FORCE ON ELECTION PROCEDURES, STANDARDS AND TECHNOLOGY (2001), available at http://www.collins center.org/usr_doc/Election%20Report.pdf;
125. see also U.S. COMM'N ON CIVIL RIGHTS, supra note 63, at 14 (describing the settlement of a lawsuit brought by the NAACP and others against Florida state and local election officials and agencies).
126. For a discussion of this litigation, see generally ROBERT M. JARVIS ET AL., BUSH v. GORE: THE FIGHT FOR FLORIDA'S VOTE (2001);
127. THE VOTE: BUSH, GORE, AND THE SUPREME COURT (CASS R. SUNSTEIN & RICHARD A. EPSTEIN eds., 2001).
128. 531 U.S. 98 (2000).
129. See BUSH v. GORE: THE COURT CASES AND THE COMMENTARY xiii-xiv (E.J. DIONNE, JR. & WILLIAM KRISTOL eds., 2001).
130. Dionne & Kristol, Introduction to BUSH v. GORE, supra note 73, at 1.
131. See RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTI TUTION, AND THE COURTS 78 (2001) (noting that in Florida "exit poll data show[ed] blacks favor[ed] Gore by a margin of 93 percent to 7 percent");
132. Gerald M. Pomper, The 2000 Presidential Election: Why Gore Lost, 116 POL. SCI. Q. 201, 206 (2001) (noting the 48 percent " 'racial gap' between blacks' support for Gore and whites' support for Bush" and that "African American support for the Republican candidate was lower than in any election since the 1960s").
133. See Erwin Chemerinsky, How Should We Think About Bush v. Gore?, 34 LOY. U. CHI. L.J. 1, 7-9 (2002) (describing the federal laws and constitutional provisions mandating that the matter be resolved by Congress had the Court not stopped the recount process).
134. See Hugh M. Lee, An Analysis of State and Federal Remedies for Election Fraud: Learning from Florida's Presidential Election Debacle, 63 U. PITT. L. REV. 159 (2001) (discussing inadequacies of state election fraud remedies);
135. Note, Elections: Developments in the Law: VI. Postelection Remedies, 88 HARV. L. REV. 1298, 1299 & n.3 (1975) (noting that despite the availability of various remedies, "[historically, political considerations have caused prosecuting attorneys to ignore most election violations"). But see Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS. 265, 305-10 (2007) (describing the in creased likelihood of immediate intervention in elections due to recent reforms in election law).
136. See Bob Herbert, A Chill in Florida, N.Y. TIMES, Aug. 23, 2004, at A19 (describing additional efforts to suppress the black vote in Florida);
137. Bob Herbert, Days of Shame, N.Y. TIMES, NOV. 1, 2004, at A25 (describing Republican efforts to suppress the black vote in Philadelphia, Pennsylvania, and Milwaukee, Wisconsin);
138. Bob Herbert, For Bush, Bad News Is Bad News, N.Y. TIMES, Oct. 25, 2004, at A21 (Republican Party trying to "intimidate" Demo cratic voters in key states like Ohio and Florida);
139. Bob Herbert, Protect the Vote, N.Y. TIMES, Sept. 13, 2004, at A23;
140. Bob Herbert, Sacrifice and Sabotage, N.Y. TIMES, Oct. 1, 2004, at A27 (describing a study by two University of Miami professors of "so-called vote errors in Miami-Dade County" during the 2000 presidential election);
141. Bob Herbert, Suppress the Vote?, N.Y. TIMES, Aug. 16, 2004, at A15 (describing Florida state police intimidation of elderly black voters in their homes);
142. Bob Herbert, Voting While Black, N.Y. TIMES, Aug. 20, 2004, at A23 (describing state actors' involvement in black voter suppression in Florida). 19 Herbert, Protect the Vote, supra note 78.
143. PEOPLE FOR THE AMERICAN WAY FOUNDATION & NAACP, THE LONG SHADOW OF JIM CROW: VOTER INTIMIDATION AND SUPPRESSION IN AMERICA TODAY (2004), available at http://www.pfaw.org/pfaw/general/default.aspx?oId= 16368. The study cites reported instances of voter suppression or intimidation in Detroit, Michigan; Kentucky; Florida; Texas; Philadelphia, Pennsylvania; Louisiana; and South Carolina. Id. In addition, the study identifies reports of similar activity targeting Hispanic and Native American voters. Id.
144. Id. These strategies included distributing misleading voter information in black communities, "implementing] ... a 'potential felon' purge list" to remove black voters from the rolls, requiring voters to provide photo identification when not required by state law, using "armed, plainclothes officers ... to question elderly black voters in their homes," planning the use of "vote challengers" in heavily black precincts, and trying to prevent qualified black college students from a majority black college from voting in the county where the school was located. Id. According to the study, Republican-initiated voter suppression efforts targeting black Americans date back to 1981. Id.
145. Many southern states excluded otherwise qualified black voters from participating in political party primary elections. In most instances, the primary election was the key race since there was no meaningful two-party system in these states. The history of the all-white primary in Texas is particularly instructive. When the all-white primary was challenged, the Supreme Court ruled on Fourteenth Amendment Equal Protection grounds that states could not directly exclude black voters. Nixon v. Herndon, 273 U.S. 536 (1927). The Texas legislature, responding to Herndon, attempted to maintain the exclusion by giving the Democratic Party power to determine who could participate in its party primary election. The Texas Supreme Court up held this law, characterizing the party as a "voluntary association," which had the right to determine its membership and exclude otherwise qualified voters from participating based solely on race. Bell v. Hill, 123 Tex. 531, 534 (1934). In a series of decisions, the U.S. Supreme Court ruled both for and against Texas' versions of the all-white primary. Nixon v. Condon, 286 U.S. 73 (1932) (holding all-white primary authorized by state Democratic Executive Committee unconstitutional because the Executive Committee was a state creation);
146. Grovey v. Townsend, 295 U.S. 45 (1935) (holding all-white primary authorized by Democratic Party state convention constitutional);
147. Smith v. Allwright, 321 U.S. 649 (1944) (finally striking down Texas's all-white primary relying on the Fifteenth Amendment).
148. See Chin, supra note 46, at 305 ("Many felon voting bans were passed in the late 1860s and 1870s, when implementation of the Fifteenth Amendment and its extension of voting rights to African-Americans were ardently contested." (quoting Angela Behrens et al., Ballot Manipulation and the "Menace of Negro Domination": Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 AM. J. Soc. 559, 559 (2003)));
149. Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 AM. SOC. REV. 777, 780 (2002) (noting "1.8 million of the 4.7 million felons and ex-felons currently barred from voting are African Americans . . . [and that] [b]ecause African Americans are overwhelmingly Democratic Party voters, felon disenfranchisement erodes the Democratic voting base by reducing the number of eligible African American voters") (internal citations omitted).
150. 509 U.S. 630, 642-43 (1993) (striking down a minority-majority district reapportionment plan).
151. 364 U.S. 339, 341 (1960).
152. Id. at 347.
153. See, e.g., United Jewish Org., Inc. v. Carey, 430 U.S. 144 (1977) (upholding the creation of a Jewish minority-majority district);
154. Beer v. United States, 425 U.S. 130 (1976) (up holding the creation of a black minority-majority district);
155. Wright v. Rockefeller, 376 U.S. 52 (1964) (upholding creation of several nonwhite majority districts). But see, Davis v. Bandemer, 478 U.S. 109 (1986) (finding Equal Protection violation where minority-majority district is created in area with no concentration of minority voters);
156. Gaffney v. Cummings, 412 U.S. 735 (1973) (holding district that excludes a racial group of its pre-existing municipal franchise violates the Equal Protection Clause).
157. 509 U.S. at 658. In a later case, Miller v. Johnson, the Court, applying strict scrutiny, struck down a state redisricting plan that resulted in the creation of minority-majority districts on the basis that the plan was not narrowly tailored to serve a compelling governmental inter est. 515 U.S. 900 (1995).
158. See Nicholas A. Valentino & David O. Sears, Old Times There Are Not Forgotten: Race and Partisan Realignment in the Contemporary South, 49 AMER. J. POL. SCI. 672, 674 (2005) (noting that political parties are divided "quite decisively along racial lines . . . [and that] Republicans are almost all white, and blacks are the dominant core of the Southern Democratic Party").
159. See Vieth v. Jubelirer, 541 U.S. 267 (2004);
160. Georgia v. Ashcroft, 539 U.S. 461 (2003);
161. Hunt v. Cromartie, 532 U.S. 234 (2001);
162. Sinkfield v. Kelley, 531 U.S. 28 (2000);
163. Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997);
164. Abrams v. Johnson, 521 U.S. 74 (1997);
165. Lawyer v. Dep't of Justice, 521 U.S. 567 (1997);
166. Shaw v. Hunt, 517 U.S. 899 (1996);
167. Bush v. Vera, 517 U.S. 952 (1996).
168. Chin & Wagner, supra note 10, at 7 (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 293 (1978) (opinion of Powell, J.)).
169. 476 U.S. 267(1986).
170. 488 U.S. 469 (1989). See Stephen M. Rich, Ruling by Numbers: Political Restructuring and the Reconsideration of Democratic Commitments After Romer v. Evans, 109 YALE L.J. 587, 605 n.l 13 (1999);
171. Constitutional Scholars' Statement on Affirmative Action After City of Richmond v. J. A. Croson Co., 98 YALE L.J. 1711, 1712 (1989) (signatories included constitutional law notables Paul Brest, Yale Kamisar, John Hart Ely, Kenneth L. Karst, Frank I. Michelman, Geoffrey R. Stone, Cass R. Sunstein, Laurence H. Tribe, Norman Dorsen, and Jesse Choper trying to put a positive spin on the Court's decision).
172. Chin & Wagner, supra note 10, at 71.
173. John E. Nowak, Brown v. Board of Education After Forty Years: Confronting the Promise: The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 349 (1995).
174. Chin & Wagner, supra note 10, at 78 (citing Missouri v. Jenkins, 515 U.S. 70, 102 (1995)).
175. Id.
176. 476 U.S. 267 (1986).
177. Wygant v. Jackson Bd. of Educ, 746 F.2d 1152, 1158 (6th Cir. 1984). The specific provision read as follows: [T]eachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. In no event will the number given notice of possible layoff be greater than the number of positions to be eliminated. Id. at 270. In response to several complaints by the Jackson NAACP, the Jackson Board of Education in 1969 created an "ad hoc committee of teachers, school administrators and faculty union representatives" to study how to remedy school segregation and minority faculty hiring problems. Brief for Lawyers' Committee for Civil Rights Under Law & ACLU as Amici Curiae Supporting Respondents at 7, Wygant v. Jackson Bd. of Education, 476 U.S. 267 (1986) (No. 84-1340). The committee's recommendations, coupled with an additional NAACP complaint and a racially-motivated explosion at a high school, prompted the School Board to create the provision that was ultimately challenged. Id. at 9-10;
178. 476 U.S. at 287-88 (White, J., concurring).
179. Wygant, 746 F.2d at 1156.
180. Id. at 1158.
181. Wygant, 476 U.S. at 271-72.
182. Id.
183. Id. at 272. By the time the Supreme Court agreed to hear the case, all but one of the white teachers had been rehired, but all were seeking back pay. Philip Hager, Justices Accept Minority Preference Case, L.A. TIMES, Apr. 16, 1985, § 1, at 10.
184. Wygant, 746 F.2d at 1157.
185. Id. "We believe that it is within the power and authority of the parties to this agreement so to do, and that their action is in no respect in violation of the United States Constitution or federal law." Id. Nonetheless, as the majority of the Supreme Court noted, when teachers were asked individually, "[n]inety-six percent of . . . [those] who responded . . . expressed a preference for the straight seniority system" in the case of a layoff. Wygant, 476 U.S. at 270 n.l.
186. Wygant, 476 U.S. 267.
187. Id. at 270.
188. Id. at 277-78.
189. Id. at 278.
190. See id. at 283.
191. Id. at 297-300 (Marshall, J., dissenting).
192. Id. at 305. Marshall continued: "Testimony of both Union and school officials illustrates that the Board's obligation to integrate its faculty could not have been fulfilled meaningfully as long as layoffs continued to eliminate the last hired." Id. at 307.
193. Id. at 315 (Stevens, J., dissenting).
194. Granted, some scholars might quibble with my characterization of unions as democratic bodies given the statutory protections granted union members to challenge union decisions. See generally 29 U.S.C. § 158(b) (2000) (proscribing unfair labor practices by unions). 1 use the phrase "democratic processes" to describe a degree of representativeness that is a cornerstone of American democracy.
195. For a discussion of the point in the context of the Regents of University of California v. Bakke. 438 U.S. 912 (1978), litigation, see JOEL DREYFUSS & CHARLES LAWRENCE III, THE BAKKE CASE: THE POLITICS OF INEQUALITY 81-82, 210-11 (1979).
196. Martin v. Wilks, 490 U.S. 755, 792 n.31 (1989) (Stevens, J., dissenting).
197. Richmond v. J.A. Croson Co., 488 U.S. 469, 495-96 (1989).
198. Id. at 529 (Marshall, J., dissenting). There is a long history dating back to the colonial era of efforts, often reinforced by law, to discourage blacks from engaging in profitable commercial enterprises. For a discussion of this history, see Robert E. Suggs, Racial Discrimination in Business Transactions, 42 HASTINGS L.J. 1257, 1260-62 (1991).
199. Croson, 488 U.S. at 544 (Marshall, J., dissenting) (citing Richmond v. United States, 422 U.S. 358, 373 (1975)).
200. Croson, 488 U.S. at 554-55.
201. Id. at 553.
202. Id.
203. Id. at 534.
204. 448 U.S. 448 (1980).
205. The plan was to be in effect for no more than five years. Croson, 488 U.S. at 478. The plan was no longer in force by the time the case was argued before the Court in 1988. Id. at 478.
206. Id. Congress, based on extensive legislative findings in the 1970s about the lingering effects of these discriminatory laws and practices, enacted the Public Works Employment Act of 1977. Pub. L. No. 95-28, 91 Stat. 116 (codified at 42 U.S.C. § 6701 et seq. (2000)). This Act contained a provision that required state and local governments to set aside ten percent of their federal grants to procure services or supplies for businesses owned or controlled by identified racial minority groups. Croson, 488 U.S. at 530-33 (Marshall, J., dissenting).
207. The City Council broadly defined minority-owned business to include any business owned and controlled by "citizens . . . who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts." Id. at 478 (plurality opinion). Given the city's racial history, the category of beneficiaries was overbroad and thus the Court's antagonism is somewhat understandable. But as Justice Marshall points out, there was ample support for the fact that blacks had been excluded in the past; thus, the majority should have preserved the preference for black entrepreneurs and not have struck down the entire provision. Id. at 550 (Marshall, J., dissenting).
208. The City Council similarly said that the plan was designed to remedy past discrimination that favored white businesses and to prevent the city's present spending decisions from "reinforcing and perpetuating the exclusionary effects of past discrimination." Id. at 537.
209. Id. at 477 (plurality opinion). This provision was designed to remedy the widespread disparities throughout industry catalogued by Congress six years earlier, and not simply discrimination against minority contractors in Richmond. Id.
210. Id. at 555 (Marshall, J., dissenting). At public hearings on the merits of the plan, five people spoke in opposition and two in favor. Id. at 479 (plurality opinion). The City Council heard testimony that minorities were almost non-existent in the area's major construction trade associations, and that in the past, minorities had been excluded from the local construction industry. Id. The virtually all-white contractors' associations in Richmond opposed the measure. Id. at 480. But no witness denied that race discrimination had been widespread in the city's construction industry. Id. at 534-35. (Marshall, J., dissenting) (citing the federal district court's opinion, Civ. Action No. 84-0021 (E.D. Va., Dec. 3, 1984)). Nor was there any direct evidence during the hearing or the ensuing litigation that the measure was the result of impermissible city council motives. Id. at 546, 537.
211. Id. at 551 (Marshall, J., dissenting).
212. Id. at 495 ("If one aspect of the judiciary's role under the Equal Protection Clause is to protect 'discrete and insular minorities' from majoritarian prejudice or indifference . . . some maintain that these concerns are not implicated when the 'white majority' places burdens upon itself . . . .") (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)).
213. Chin & Wagner, supra note 10, at 71.
214. Croson, 488 U.S. at 480. Justice O'Connor wrote: "To a large extent, the set-aside of subcontracting dollars seems to rest on the unsupported assumption that white prime contractors simply will not hire minority firms .... '[T]here is no finding-and we decline to assume-that male Caucasian contractors will award contracts only to other male Caucasians.'" Id. at 502 (citing Assoc. Gen. Contractors of Cal. v. City & County of San Francisco, 813 F.2d 922, 933 (9th Cir. 1987)).
215. Id. at 529, 544 (Marshall, J., dissenting). Justice O'Connor conceded that Richmond's long history of both public and private discrimination "contributed to a lack of opportunities for black entrepreneurs," but she concluded that this history alone is insufficient to justify the set-aside provision. Id. at 499 (plurality opinion). She even speculated that "[b]lacks may be disproportionately attracted to industries other than construction." Id. at 503. Of course, if there were no jobs available to blacks, one would not expect them to engage in a futile exercise.
216. Id. at 490-92.
217. Id. at 491.
218. Justice Marshall countered: "The fact is that Congress' concern in passing the Recon struction Amendments, and particularly their congressional authorization provisions, was that States would not adequately respond to racial violence or discrimination against newly freed slaves. To interpret any aspect of these Amendments as proscribing state remedial responses to these very problems turns the Amendments on their heads." Id. at 559. (Marshall, J., dissenting).
219. Croson, 488 U.S. at 495-96. Reginald Oh writes that Justice O'Connor in essence accused the City Council of "acting out of pure racial politics, [and] . . . out of a desire to harm white interests in order to benefit black interests." Reginald C. Oh, Mapping a Material ist Lat Crit Discourse on Racism, 52 CLEV. ST. L. REV. 243, 249 (2005).
220. The Croson case reached the Court twice. In the first case the Court vacated the judgment for the City and remanded it in light of a recent decision, Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). J.A. Croson Co. v. Richmond, 478 U.S. 1016 (1986). Upon rehearing, the appellate court in a split decision struck down the plan. See J.A. Croson Co. v. Richmond (Croson II), 822 F.2d 1335, 1359 (4th Cir. 1987). Justice O'Connor writes that the lower appellate court concluded that the statistical evidence presented to the city council "had little or no probative value in establishing prior discrimination in the relevant market, and actually suggested 'more of a political than a remedial basis for the racial preference.'" 488 U.S. at 485 (citing Croson II, 822 F.2d at 1359).
221. Croson, 488 U.S. at 524 (Scalia, J., concurring). Justice Scalia characterized racial preferences as attempts to "even the score." Id. at 528. Justice Marshall retorted that "[t]he sole . . . circumstance which the majority cites [to justify invoking strict scrutiny] ... is the fact that blacks in Richmond are a 'dominant racial grou[p]" .... While I agree that the numerical and political supremacy of a given racial group is a factor bearing upon the level of scrutiny to be applied, this Court has never held that numerical inferiority, standing alone, makes a racial group 'suspect' and thus entitled to strict scrutiny review." Id. at 553 (Marshall, J., dissenting). Justice Blackmun added "History is irrefutable, even though one might sympathize with those who-though possibly innocent in themselves-benefit from the wrongs of past decades." Id. at 561 (Blackmun, J., dissenting).
222. Id. at 516 (Stevens, J., concurring).
223. Justice Marshall wrote: "[L]ike the federal provision [in Fullilove], Richmond's does not interfere with any vested right of a contractor to a particular contract; instead it operates entirely prospectively. Richmond's initiative affects only future economic arrangements and imposes only a diffuse burden on nonminority competitors." Id. at 549 (Marshall, J., dissenting) (citations omitted).
224. See also Samuel Issacharoff, When Substance Mandates Procedure: Martin v. Wilks and the Rights of Vested Incumbents in Civil Rights Consent Decrees, 77 CORNELL L. REV. 189, 213 (1992) (arguing against consent decrees that undermine the subsequent property interests of incumbent employees in their jobs). Robert Suggs writes that the Court, by its "focus on past discrimination to the exclusion of current discrimination[,] created the false impression that the beneficiaries of business set-asides occupy a position analogous to the beneficiaries of employment hiring goals." Suggs, supra note 119, at 1310.
225. See generally Cheryl Harris, Whiteness as Property, 106 HARV. L. REV. 1709 (1993).
226. Chin & Wagner, supra note 10, at 15.
227. Id. at 4.
228. For example, blacks comprised 76 of the 124 delegates at the 1868 South Carolina state constitutional convention and were a clear majority. After lengthy discussions of education, the convention voted for a constitutional right to free public education, but some black dele gates disagreed about whether participation in the public education system should be compulsory or voluntary. Similarly, there was some minor disagreement among the black delegates about implementing a literacy requirement for voting. W.E.B. Du Bois, BLACK RECONSTRUCTION IN AMERICA, 1860-1880, at 389, 396-98 (1935).
229. While poor black Americans in urban areas tend to support school voucher plans, "black advocacy groups like the NAACP still oppose vouchers, as do older African Americans - who are more likely to vote . . . [thus] [s]upport for school choice among African Americans isn't likely to result in a shift in public policy." Brian P. Matron, Promoting Racial Equality through Equal Educational Opportunity: The Case for Progressive School-Choice, 2002 BYU EDUC. & L.J. 53, 102 & n.219 (2002) (internal citations and quotations omitted).
230. Chin & Wagner, supra note 10, at 66-67.
231. Id. at 72. For a discussion of this point see supra notes 50-61 and accompanying text.
232. Id. at 80.
233. W.E.B. Du Bois writes that in 1860, only 3,651 black children in the South attended school because virtually all the slave-holding states had laws that prohibited teaching slaves to read and write. Enforcement was lax in some states until the 1831 Nat Turner rebellion in Virginia, after which "these laws were strengthened and more carefully enforced." Du Bois, supra note 146, at 638. In contrast, by 1860, approximately three-quarters of free blacks in the United States were literate. Id. at 638.
234. Id. at 638-44.
235. Id. at 645.
236. Id. at 637. He continues: "The eagerness to learn among American Negroes was exceptional in the case of a poor and recently emancipated folk." Id.
237. 175 U.S. 528 (1899).
238. 163 U.S. 537 (1896).
239. 175 U.S. at 544-45 (accepting the school board's assertion that the need for primary schools was pressing and the decision to close the black school was based on financial considerations).
240. RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF Brown v. Board of Education and Black America's Struggle for Equality 751-78 (1975).
241. See Erwin Chemerinsky, The Segregation and Resegregation of American Public Education: The Court's Role, 81 N.C. L. REV. 1597, 1604-09 (2003);
242. Gary Orfield and David Thronson, Dismantling Desegreation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 770-73 (1993);
243. Diane Ravitch, Desegregation: Varieties of Meaning, in SHADES OF BROWN: NEW PERSPECTIVES ON SCHOOL DESEGREGATION 38-39 (Derrick Bell ed., 1980).
244. See, e.g., Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973).
245. Taunya Lovell Banks, Brown at 50: Reconstructing Brown's Promise, 44 WASHBURNL.J. 31, 54-55 (2004);
246. see NUMAN V. BARTLEY, THE RISE OF MASSIVE RESISTANCE: RACE AND POLITICS IN THE SOUTH DURING THE 1950's 67-81 (1969).
247. Charles R. Lawrence, III, On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 YALE L. J. 1353, 1360 (2005);
248. see also Banks, supra note 161, at 55 n.155 ("In November 1952, South Carolina voters approved a constitutional amendment eliminating the state's duty to educate all children, thus allowing conversion to a private school system to avoid racial desegregation. The governors of Mississippi and Virginia considered submitting similar proposals . . . Following [Brown] states across the south passed tuition grant programs . . . .") (citing Molly Townes O'Brien, Private School Tuition Vouchers and the Realities of Racial Politics, 64 TENN. L. REV. 359, 385 (1997)).
249. Banks, supra note 161, at 32. Students in rural communities and small towns and large urban cities are more likely to attend racially integrated schools. Id. at 32 n.10 (citing GARY ORFIELD & CHUNGMEI LEE, Brown at 50: King's Dream or Plessy's Nightmare? 19 (Jan. 2004), available at http://www.civilrightsproject. ucla.edu/research/reseg04/brown50.pdf.).
250. Ryan S. Vincent, No Child Left Behind, Only the Arts and Humanities: Emerging Inequities in Education Fifty Years After Brown, 44 WASHBURN L.J. 127, 137 (2004).
251. See Erica Frankenberg & Chungmei Lee, RACE IN AMERICAN PUBLIC SCHOOLS: RAPIDLY RESEGREGATINO SCHOOL DISTRICTS 20 (2002), available at http://www.civilrightsproject. ucla.edu/research/deseg/ Race_in_American_Public_Schoolsl.pdf (reporting that, in 2000, "some of the largest school districts like New York, Prince George's County and Miami-Dade [had] the highest levels of Latino segregation . . . [and that,] [s]imilar to black exposure indices, many of the districts . . . where Latino isolation [was] highest [were] central city districts with a small proportion of white students").
252. Banks, Brown at 50, supra note 161, at 43 n.72.
253. Dowell v. Oklahoma City, 498 U.S. 237 (1991).
254. ORFIELD & LEE, supra note 163, at 40.
255. 347 U.S. 483, 494 (1954).
256. 539 U.S. 306, 330 (2003).
257. 539 U.S. 244 (2003) (striking down Michigan's undergraduate admissions program as not sufficiently narrowly tailored to meet the University's articulated compelling governmental interest).
258. 539 U.S. at 330.
259. Id. at 343 ("It has been 25 years since Justice Powell [in Bakke] first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.") (citations omitted).
260. Gratz, 539 U.S. at 301 (Ginsburg, J., dissenting) (citing Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 CAL. L. REV. 1251, 1276-91 (1998)).
261. ORFIELD & LEE, supra note 163, at 40.
262. See Gratz, 539 U.S. at 298-99 (Ginsburg, J., dissenting, joined by Souter, J., and Breyer, J.).
263. Deborah N. Archer, Moving Beyond Strict Scrutiny: The Need for a More Nuanced Standard of Equal Protection Analysis for K Through 12 Integration Programs, 9 U. PA. J. CONST. L. 629, 636 n.45 (2007).
264. Jenkins, 515 U.S. at 131 (Thomas, J., concurring);
265. Freeman v. Pitts, 503 U.S. 467, 490 (1992) (quoting Dayton v. Bd. of Educ, 433 U.S. 406, 410 (1977));
266. Bd. of Educ. v. Dowell, 498 U.S. 237, 248 (1991) (quoting Spangler v. Pasadena City Bd. of Educ, 611 F.2d 1239, 1245 n.5 (9th Cir. 1979) (Kennedy, J., concurring)).
267. 127 S. Ct. 2738, 2757 (2007).
268. Id. at 2791. Justices Ginsburg, Souter, Stevens and Breyer dissented.
269. Id. at 2792 (Kennedy, J., concurring) (suggesting non-racial mechanisms for achieving diversity that include "strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in targeted fashion; and tracking enrollments, performance and other statistics by race.").
270. See, e.g., Sam Dillon, Alabama School Rezoning Plan Brings Out Cry of Resegregation, N.Y. TIMES, Sept. 17, 2007, at Al (describing "a sweeping rezoning plan" adopted by Tuscaloosa, Alabama school authorities that resulted in hundreds of black students who attended racially integrated schools being "sent to virtually all-black, low-performing schools").
271. Chin & Wagner, supra note 10, at 104.
272. See infra notes 185-92 and accompanying text.
273. See infra notes 196-98 and accompanying text.
274. For a discussion of this point, see Banks, Brown at 50, supra note 161.
275. Id. at 40-41.
276. See generally George Lipsitz, The Possessive Investment in Whiteness: Racialized Social Democracy and the "White" Problem in American Studies, 47 AM. Q. 369 (1995).
277. See Daria Roithmayr, Barriers to Entry: A Market Lock-In Model of Discrimination, 86 VA. L. REV. 727, 734 (2000);
278. Daria Roithmayr, Locked in Segregation, 12 VA. J. SOC, POL'Y & L. 197 (2004) (discussing continuing residential segregation).
279. Roithmayr, Locked in Segregation, supra note 189, at 204.
280. See Erwin Chemerinsky, The Segregation and Resegregation of American Public Education: The Courts' Role, 81 N.C. L. REV. (2003), reprinted in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK? 29, 36 (John Charles Boger & Gary Orfield eds., 2005).
281. See JONATHAN KOZOL, THE SHAME OF THE NATION: THE RESTORATION OF APARTHEID SCHOOLING IN AMERICA 50-62 (2005);
282. see also JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS 122-23 (1991) (describing differences in per pupil expenditures among New York City area public school systems).
283. See EDUCATION TRUST, THE FUNDING GAP 2005: LOW-INCOME AND MINORITY STUDENTS SHORTCHANGED BY MOST STATES 1-2 (2005), available at http://www2.edtrust.org/NR/ rdonlyres/31D276EF-72El-458A-8C71-E3D262A4C91E/0/FundingGap2005.pdf.
284. See, e.g., Rose v. Council for Better Educ, Inc., 790 S.W.2d 186 (Ky. 1989);
285. Campaign for Fiscal Equity, Inc. v. State (CFE II), 801 N.E.2d 326 (N.Y. 2003).
286. Christopher E. Adams, Comment, Is Economic Integration the Fourth Wave in School Finance Litigation?, 56 EMORY L.J. 1613, 1620 (2007) (referring to the so-called third wave of educational equity cases, which focuses on the "adequacy" of the education received in public schools where per pupil expenditures are equal).
287. See Molly S. McUsic, The Future o/Brown v. Board of Education: Economic Integration of the Public Schools, 117 HARV. L. REV. 1334, 1335 (2004);
288. James E. Ryan, Schools, Race, and Money, 109 YALE L.J. 249, 308 (1999);
289. Angela Ciolfi, Note, Shuffling the Deck: Redisricting to Promote a Quality Education in Virginia, 89 VA. L. REV. 773, 776 (2003).
290. Jonathan D. Glater & Alan Finder, Diversity Plans Based on Income Leave Some Schools Segregated, N.Y. TIMES, July 15, 2007, at A24.
291. Id.
292. 411 U.S. 1 (1973).
293. Milliken v. Bradley, 418 U.S. 717 (1974).
294. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002).
295. See Press Release, Rod Paige, Secretary of Education, U.S. Dept. of Educ, Paige Cites Progress in Black Education But Notes Achievement Gap has Widened Over Past Two Decades (Nov. 19, 2005), available at http://www.ed.gov/news/pressreleases/2003/10/1014 2003b.html (noting that achievement rates for black and Latino elementary and secondary students lag behind those for white and Asian students).
296. Charles R. Lawrence, III, Who is the Child Left Behind?: The Racial Meaning of the New School Reform, 39 Suffolk U. L. Rev. 699, 700 (2006).
297. Id. at 706. Lawrence continues: "[N]owhere does it speak of ending racism or dismantling segregation. The Act's proponents deplore the disproportionate injury that American schools inflict upon poor black and brown children, but accept no responsibility for that injury .... To listen to the discourse on No Child Left Behind is to hear a story of failing schools without a history - a history of segregation, of inadequate funding, of white flight, of neglect, of eyes averted and uncaring while the savage inequalities of American education grew even wider." Id.
298. Id.
299. Vincent, supra note 164, at 138.
300. Id.; accord Lawrence, supra note 203, at 706.
301. Vincent, supra note 164, at 136.
302. RICHARD FRY, THE CHANGING RACIAL AND ETHNIC COMPOSITION OF U.S. PUBLIC SCHOOLS, at i (2007), available at http://pewhispanic.org/ reports/report.php?ReportID=79 ("Latinos in 2005-06 accounted for 19.8% of all public school students, up from 12.7% in 1993-94.").
303. Id. ("Roughly three-in-ten Hispanic (29%) and black (31%) students attended schools in 2005-06 that were nearly all-minority(. . . [schools with] fewer than 5% of the students are white), and these percentages were both somewhat higher than . . . 1993-94, when they stood at 25% for Hispanic students and 28% for black students.").
304. Banks, supra note 161, at 57.
305. Lawrence, supra note 203, at 717.
306. Id.
307. Derrick Bell writes that several decisions during the Court's 1988 term shattered any hope among forward-thinking civil rights advocates that the jurisprudence growing out of Brown would withstand continued resistance to full citizenship for black Americans. DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 667 (5th ed. 2004).
308. Bob Herbert, Lessons Never Learned, N.Y. TIMES, Dec. 28, 2006, at A35.
309. Colorism claims are just one example of the more sophisticated race discrimination claims courts face today. See, e.g., Taunya Lovell Banks, Colorism: A Darker Shade of Pale, 47 UCLA L. REV. 1705, 1744 (2000);
310. see generally Leonard M. Baynes, If It's Not Just Black and White Anymore, Why Does Darkness Cast a Longer Discriminatory Shadow than Lightness? An Investigation and Analysis of the Color Hierarchy, 75 DENV. U. L. REV. 131 (1997);
311. Trina Jones, Shades of Brown: The Law of Skin Color, 49 DUKE LJ. 1487 (2000);
312. Tanya Kateri Hernandez, Multiracial Matrix: The Role of Race Ideology in the Enforcement of Antidiscrimination Laws, A United States-Latin America Comparison, 87 CORNELL L. REV. 1093 (2002).
313. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2837 (2007) (Breyer, J., dissenting) ('To invalidate the [racial balancing] plans under review is to threaten the promise of Brown. The plurality's position, I fear, would break that promise."). Arguably, if advocates could find a method that Justice Kennedy would approve, he could join with the four dissenters to uphold the use of race as a factor in a future case.
314. Roithmayr, Locked in Segregation, supra note 188, at 204. Other theoretical sources include citizenship scholarship, see, e.g., Jennifer Gordon & R.A. Lenhardt, Citizenship Talk: Bridging the Gap Between Immigration and Race Perspectives, 75 FORDHAM L. REV. 2493 (2007), which asks whether the advancement of racial or social equality should be couched in citizenship terms; international human rights norms, see, e.g., Barbara Stark, Economic Rights in the United States and International Human Rights Law: Toward an Entirely New Strategy, 44 HASTINGS L.J. 79 (1992); and perhaps even modern forward-looking constitutions in countries like South Africa, see, e.g., Ziyad Motala, Constitution Making in Divided Societies and Equality: Reflections on the Israeli-Palestinian and South African Experiences, 50 How. L.J. 471 (2007).