Affirmative action as government speech

UCLA Law Review

Volumn 59, Issue 1, 2011, Pages 2-58

  Carter Jr , William M ^a  

^a TEMPLE UNIVERSITY   (United States)

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EID: 84255192688     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (270)

1. Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1131
2. 555 U. S. 460 (2009) (alteration in original) (citations omitted) (internal quotation marks omitted).
3. Parents Involved in Cmty. Schs. v. Seatde Sch. Dist. No. 1, 551 U. S. 701, 746 (2007) (plurality opinion) (citations omitted) (internal quotation marks omitted).
4. See, e.g., Mario L. Barnes, Erwin Chemerinsky & Trina Jones, A Post-Racial Equal Protection?, 98 GEO. L. J. 967, 968 (2010) (describing "post-racialism" as "a set of beliefs that coalesce to posit that racial discrimination is rare and aberrant behavior as evidenced by America's and Americans' pronounced racial progress") ;
5. Sumi Cho, Post-Racialism, 94 IOWA L. REV. 1589, 1594 (2009) (describing postracialism as the "belief that due to the significant racial progress that has been made, the state need not engage in race-based decision-making or adopt racebased remedies, and that civil society should eschew race as a central organizing principle of social action").
6. See Darren Lenard Hutchinson, Racial Exhaustion, 86 WASH. U. L. REV. 917, 919 (2009) (citing polling data to show that "an abundance of statistical data consistendy demonstrates that persons of color tend to believe that racism remains a substantial barrier to their social and economic advancement, while whites tend to dismiss racial status as a contemporary marker of disadvantage and privilege"). Indeed, many Americans also believe that discrimination against whites is now as significant a problem as discrimination against racial minorities.
7. See, e.g., Charles M. Blow, Let's Rescue the Race Debate, N. Y. TIMES, Nov. 20, 2010, graph at A19 (citing polling data from a survey by the Public Religion Research Institute in which 48 percent of whites, but only 30 percent of blacks and 32 percent of Hispanics, agreed with the statement that "discrimination against whites has become as big a problem as discrimination against blacks and other minorities").
8. R. A. Lenhardt, Understanding the Mark Race, Stigma, and Equality in Context, 79 N. Y. U. L. REV. 803, 806-07 (2004) (same).
9. U. S. CONST, amend XIV, §1.
10. See, e.g., Derrick Bell, Racial Equality: Progressives' Passion fir the Unattainable, 94 VA. L. REV. 495, 516 (2008) (The [Supreme] Court's treatment of affirmative action policies designed to remedy past employment discrimination is a striking illustration of the judicial determination-shared by much of society-to protect innocent whites from any loss in the race remediation process." (internal quotation marks omitted)).
11. See, e.g., Johnson v. California, 543 U. S. 499, 505 (2005) ("We have insisted on strict scrutiny in every context, even for so-called "benign' racial classifications, such as race-conscious university admissions policies, race-based preferences in government contracts, and race-based districting intended to improve minority representation. " (citations omitted)).
12. See, e.g., Ricci v. De Stefano, 129 S. Ct. 2658 (2009) (incorporating equal protection doctrine to find that a city's efforts to avoid racially disparate impact in promotions violated Tide VTI of the Civil Rights Act of 1964) ;
13. Parents Involved in Cmty. Schs. v. Seatde Sch. Dist. No. 1, 551 U. S. 701 (2007) (striking down school districts' race-conscious efforts to prevent resegregation of public schools) ;
14. Gratz v. Bollinger, 539 U. S. 244, 275 (2003) (holding that an undergraduate university violated equal protection because it considered applicants' race mechanistically, rather than as an "individualized" factor, in admissions decisions) ;
15. Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 227 (1995) (holding that strict scrutiny applied to a federal program designed to increase participation of underrepresented minority businesses in federal contracts) ;
16. Shaw v. Reno, 509 U. S. 630, 657-58 (1993) (holding that strict scrutiny applied to a state redistricting plan that created a majority black voting district in order to avoid dilution of black voting strength) ;
17. City of Richmond v. J A. Croson Co., 488 U. S. 469, 511 (1989) (declaring unconstitutional a city's program that designated a portion of the city's construction funds for minority-owned firms) ;
18. Regents of the Univ. of Cal v. Bakke, 438 U. S. 265, 319-20 (1978) (plurality opinion) (striking down Univetsity of California-Davis Medical School's admissions program under which a set number of slots were reserved for applicants from underrepresented minority groups).
19. See, e.g., Adarand, 515 U. S. at 205-10 (describing the relevant statutory and regulatory provisions).
20. See, e.g., Grutter v. Bollinger, 539 U. S. 306, 315-16 (2003) (describing University of Michigan Law School's policy that considered race as one of a number of variables in admissions decisions) ;
21. Gratz, 539 U. S. at 255-56 (describing University of Michigan's undergraduate admissions policies under which applicants belonging to underrepresented minority groups received additional points on admissions scale).
22. See, e.g., Adarand, 515 U. S. at 240 (Thomas, J., concurring in part and concurring in the judgment) ("[T]here is a moral [and] constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality." (second alteration in original) (citation omitted) (internal quotation marks omitted)).
23. See Shaw, 509 U. S. at 657-58 (holding that strict scrutiny applied to a state legislature's decision to create a majority black voting district). The fact that minority voters would have a better opportunity to elect representatives of their choice cannot be seen as a "disadvantage" to nonminority voters unless nonminorities' votes are somehow diluted, which was not the case in Shaw. See infra notes 49-63 and accompanying text (discussing Shaw).
24. See Parents Involved in Cmty. Schs. v. Seatde Sch. Dist. No. 1, 551 U. S. 701, 711-12 (2007) (striking down race-conscious voluntary school integration plans).
25. See Ricci v. De Stefano, 129 S. Ct. 2658 (2009).
26. Cf. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1527 (2000) (stating that "[a] person suffers expressive harm when she is treated according to principles that express negative or inappropriate attitudes toward her").
27. 163 U. S. 537 (1896).
28. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U. S. 701, 780 (2007) (Thomas, J., concurring) (stating, in a case striking down voluntary school integration plans, that "[i]n place of the color-blind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart... [and that] no such distinction is apparent in the Fourteenth Amendment") ;
29. Fullilove v. Klutznick, 448 U. S. 448, 526 (1980) (Stewart, J., dissenting) ("The command of the equal protection guarantee is simple but unequivocal. In the words of the Fourteenth Amendment 'No State shall... deny to any person... the equal protection of the laws.' Nothing in this language singles out some 'persons' for more 'equal' treatment than others." (emphasis in original)) ;
30. John Marquez Lundin, The Call fir a Color-Blind Law, 30 COLUM. J. L. & SOC. PROBS. 407, 441 (1997) (arguing that the text of the Equal Protection Clause supports the colorblindness doctrine because "it is perfectly clear from the text that the rights granted by the amendments are general and unqualified [and that t]here is thus no textual support for the argument that these rights apply differently to people of different races").
31. ™.
32. 347 U. S. 483 (1954) ;
33. see, e.g., Parents Involved, 551 U. S. at 746 ("In Brown v. Board of Education, we held that segregation deprived black children of equal educational opportunities.... It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954." (citations omitted)).
34. As Justice Scalia noted, the bare text of most constitutional provisions cannot answer most interpretive questions. "In textual interpretation, context is everything, and the context of the Constitution tells us... to give words and phrases an expansive rather than narrow interpretation-though not an interpretation that the language will not bear." ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 37 (1997). To posit that the words "equal protection of the law" always, only, and ineluctably mean formal equal treatment requires divorcing those words from the context in which they were written. But even putting aside context for the moment, the text itself does not conclusively answer the pertinent question. It is, after all, the Equal Protection Clause, not the Equal Treatment Clause. Had the Reconstruction Framers meant to require only formal governmental "treatment," they presumably would have chosen to use that word in the text. Moreover, the word they did use-"protection"-implies, inter alia, "[t]hat which... preserves from injury"
35. WEBSTER'S AMERICAN DICTIONARY OFTHE ENGLISH LANGUAGE (1st ed. 1828), available at http://1828.mshaffer.com. Under this reading, the government could therefore seek to "protect" rational minorities "equally" by enacting laws to prevent or remedy the harms that fall on them particularly and that would remain unredressed absent government action.
36. See, eg., Parents Involved, 551 U. S. at 829 (Breyer, J., dissenting) (citing an array of race-conscious remedial programs enacted during Reconstruction for the proposition that "diose who drafted [the Fourteenth] Amendment... would have understood the legal and practical difference between the use of race-conscious criteria... to keep the races apart, and the use of race-conscious criteria... to bring the races together") ;
37. Christopher W. Schmidt, Listening to History? Parents Involved, Brown, and the Colorblind Constitution, Legal Workshop (Apr. 30, 2009)
38. based on Christopher W. Schmidt, Brown and the Colorblind Constitution, 94 CORNELL L. REV. 203, 206 (2008) (arguing that the colorblindness doctrine has "litde basis in the original meaning of the Fourteenth Amendment [and that t]he legislators who in 1866 drafted the Amendment also passed distinctly color-conscious legislation designed to help the newly freed slaves") ;
39. see also Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 993 (2007) ("[T]he Congress which drafted the Fourteenth Amendment also enacted numerous laws specifically benefiting blacks.").
40. See, e.g., Neil Gotanda A Critique of Our Constitution Is Calor-Blina," 44 STAN. L. REV. 1, 39 (1991) (characterizing Justice Harlan's dissent as "rejecting the majority's view that racial segregation is unconnected to oppression" and "refusing to adopt the [majority's] rigid legalism") ;
41. Cedric Merlin Powell, Blinded by Color: The New Equal Protection, the Second Deconstruction, and Affirmative Inaction, 51 U. MIAMI L. REV. 191, 203 (1998) (The theoretical allure of colorblindness begins with an acontextual examination of Justice Harlan's dissent in Plessy. no mention is made of Justice Harlan's concern with racial subordination [and] no reference is made to how the concept of race shaped his vision of constitutional equality....").
42. See, e.g., Christopher W. Schmidt, Brown and the Colorblind Constitution, 94 CORNELL L. REV. 203, 238 (2008) ("Even if the NAACP... briefs in Brown led with calls for a colorblind interpretation of the Fourteenth Amendment, the bulk of these briefs were dedicated to demonstrating the dangers of a racial caste system and the harms of segregated schools to children.... To now portray the NAACP as embracing one claim to the exclusion of the other distorts the historical record.").
43. See, e.g., Reva Siegel, Equality Talk Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 HARV. L. REV. 1470, 1481-83 (2004) (noting that Brown's reasoning rested on the harms of segregation in public schools, not the condemnation of all racial classifications as per se unconstitutional because, inter alia, the Supreme Court was not yet prepared to embrace the implications that a strict colorblindness principle would have had for a variety of other laws, including antimiscegenation statutes).
44. Professor Siegel, for example, suggests that the current state of equal protection doctrine can be seen as "preservation-through-transformation. " Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1113 (1997) (Pubitemid 127436893)
45. (citing Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE LJ. 2117, 2178-87 (1996)). When a prior legal regime for maintaining racial hierarchies becomes discredited (for example, Pussy's "separate but equal" doctrine), a new rhetoric is developed (for example, colorblindness) that formally disavows that prior regime. The rhetorical or doctrinal distancing from the old regime creates a narrative of progress, which masks the fact that substantive change may be much more limited than the new rhetoric or doctrine suggests.
46. 551 U. S. 701 (2007).
47. An expressive harm can be defined as an alleged harm that "results from the ideas or attitudes expressed mrough a governmental action, rather than from the more tangible or material consequences that action brings about." Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506 (1993).
48. 551 U. S. at 727.
49. To the extent that a message is thought to be harmful because of the social meaning it carries, that meaning can be derived from what the speaker intends to communicate, what the listener ascribes to the communication, some objective measure of meaning, or some combination of all three. See Kelly Sarabyn, Racial and Sexual Paternalism, 19 GEO. MASON U. C. R. L. J. 553, 558 (2009). In any case, no meaning can be ascribed to a message if the message remains unexpressed, which seems to have been Justice Kennedy's point in Parents Involved.
50. At best, the plurality's opinion alluded to two concrete disadvantages imposed by the school assignment plans: (1) one student's parents thought he would fare better at their first-choice school in light of his attention deficit hyperactivity disorder and dyslexia; and (2) another student would have to go to a school farther away from his home. Parents Involved, 551 U. S. at 713-14, 717. The plurality's reasoning, however, did not turn upon either of these facts; rather, it rested on the alleged expressive harm.
51. 509 U. S. 630 (1993).
52. Vote dilution occurs when a district form or voting procedure "operate[s] to minimize or cancel out the voting strength of racial minorities," for example, by submerging a minority group within a larger white population that consistently votes as a bloc to defeat the minority group's preferred candidates. Thornburg v. Gingles, 478 U. S. 30, 47 (1985) (citations and internal quotation marks omitted).
53. Show, 509 U. S. at 655-56.
54. see also Deborah Hellman, Tie Expressive Dimension of Equal Protection, 85 MINN. L. REV. 1, 27 (2000) ("In Shaw, there were no allegations of vote dilution, thus no concrete harm to white voters as a result of the oddly shaped majority-minority district"). To be clear, the redistricting did have a consequence: White voters would no longer be guaranteed to win all the seats even if they voted as a bloc But equal protection does not guarantee a right for a single group to perpetually win a disproportionate share of seats. And in any event, the Court's more conservative Justices have insisted that equal protection only protects individuals, not groups. (Pubitemid 33629890)
55. See, e.g, Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 239 (1995) (Scalia, J., concurring in part and concurring in the judgment) ("Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual...."). The only injury any individual white voter could have alleged in Shaw was the expressive harm of government race consciousness.
56. The Court attempted to analogize the facts of Shaw to Gomillion v. Lightfoot, 364 U. S. 339 (1960), which involved redisricting that changed the boundaries of the city of Tuskegee, Alabama, "from a square to an uncouth twenty-eight-sided figure in a manner that was alleged to exclude black voters, and only black voters, from the city limits"
57. Shaw, 509 U. S. at 640 (internal quotation marks omitted). The Gomillion Court held that although the redisricting statute was neutral on its face, the plaintiffs had stated a prima facie equal protection claim because the redrawn district's shape was inexplicable on any ground other than racial segregation.
58. Gomillion, 364 U. S. at 341. Gomillion, however, unlike Shaw, involved not just race consciousness but also a concrete injury from the race-conscious action. In Gomillion, the result was to exclude virtually all black voters from the city's boundaries, thereby depriving them of the ability to vote on city matters.
59. See Shaw, 509 U. S. at 681-82 (Sourer, J., dissenting) (arguing that the difference between Shaw and other "affirmative action" cases was that in those other cases, race was used "to the advantage of one person... at the obvious expense of a member of a different race....[and] by contrast, the mere placement of an individual in one district instead of another denies no one a right or benefit provided to others").
60. Shaw, 509 U. S. at 644 (internal quotation marks omitted).
61. Id (quoting Wright v. Rockefeller, 376 U. S. 52, 66 (1964) (Douglas, J., dissenting)).
62. Id (quoting Wright, 376 U. S. at 67 (Douglas, J., dissenting)).
63. Id at 648-49 (quoting Wright, 376 U. S. at 67 (Douglas, J., dissenting)) ;
64. 129 S. Ct. 2658 (2009).
65. See Richard Primus, Tie Future of Disparate Impact, 108 MICH. L. REV. 1341, 1354 (2010) ("Despite the Court's professed intention to avoid equal protection issues, the Ricci premise is properly understood as a constitutional proposition as well as a statutory one.").
66. Ricci, 129 S. Ct. at 2664.
67. Tide VII prohibits both "disparate treatment" (intentional discrimination) and "disparate impact" (racial disparities caused by facially neutral employment practices). See 42 U. S. C. § 2000e-2 (a) (1), (k) (2006).
68. Ricci, 129 S. Ct. at 2670 (citations omitted) (internal quotation marks omitted).
69. see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U. S. 53, 67 (2006) (finding that Title VII's antiretaliation provision requires a tangible "injury or harm," either inside or outside of the workplace).
70. See Ricci, 129 S. Ct. at 2696 (Ginsburg, J., dissenting) ("[The city officials] were no doubt conscious of race... but this did not mean they had engaged in racially disparate treatment.... All the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion. " (alterations in original omitted) (internal quotation marks omitted)) ;
71. see also Helen Norton, The Supreme Court's Post-Racial Turn Towards a Zero-Sum Understanding of Equality, 52 WM. & MARY L. REV. 197, 245 (2010) ("Mr. Ricci was not treated differently than any other firefighter based on race, and in fact was not treated differently than any other firefighter at all: the test results were discarded for all, regardless of race, and no one was promoted, regardless of race."). Indeed, it was primarily for this reason that the district court rejected the plaintiffs' equal protection claim in Ricci.
72. See Ricci v. De Stefano, 554 F. Supp. 2d 142, 160-62 (D. Conn. 2006) (rejecting the plaintiffs' equal protection claim because, inter alia, no unequal treatment occurred).
73. Ricci is therefore in substantial tension with the Court's earlier decision in Palmer v. Thompson, 403 U. S. 217 (1971), which held that some actual differential treatment must occur in order for an equal protection injury to exist. Palmer is discussed in detail in Part II, infra.
74. Ricci, 554 F. Supp. 2d at 160 ("[A]pplication of the [civil service rules] would [only] give top scorers an opportunity for promotion, depending on the number of vacancies, but no guarantee of promotion; it is even conceivable that the applicant with the highest score never would be promoted." (emphasis in original) (internal quotation marks omitted)). The higher-scoring test takers were differently situated from those who scored lower in the following sense: Under the civil service rules, they may have had a greater hope of being promoted if vacancies were available. In other words, a sufficiendy high score was a necessary, but not sufficient, condition for promotion. Accordingly, those firefighters with higher scores perhaps had a greater hope of promotion than those with lower scores. This attenuated hope, however, is not the equivalent of a vested right to promotion. To the extent those firefighters were deprived of something, it was the expectation that promotions would continue to be made without regard to the existing pattern of minority exclusion.
75. As Justice Ginsburg noted in dissent, it is for this reason that "[t]his litigation does not involve affirmative action" as traditionally defined. Ricci, 129 S. Ct. at 2700 (Ginsburg, J., dissenting). The equal protection cases from which the Ricci Court drew the strong basis in evidence standard all involved traditional affirmative action measures by which the government, for putatively worthy goals, distributed a benefit on the basis of race. Ricci is therefore not only in tension with cases like Palmer v. Thompson, but also with the very precedents upon which it purported to rely.
76. Ricci, 129 S. Ct. at 2700 (Ginsburg, J., dissenting).
77. As discussed toward the end of this Part, not even in Brown v. Board of Education, 347 U. S. 483 (1954), did the Supreme Court find that the expressive harm of de jure segregation standing alone violated equal protection.
78. 451 U. S. 100 (1981).
79. Section 1982 provides that "[a]ll citizens of the United States shall have the same right... to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U. S. C. § 1982 (2006).
80. U. S. CONST, amend. XIII.
81. In addition to prohibiting literal slavery and involuntary servitude, the Thirteenth Amendment has been interpreted to prohibit "badges and incidents of slavery," that is, the lingering vestiges of the slave system. See, e.g., Jones v. Alfred H. Mayer Co., 392 U. S. 409, 413 (1968) (holding that the Thirteenth Amendment empowered Congress to enact legislation prohibiting private housing discrimination).
82. Greene, 451 U. S. at 109.
83. For a full discussion of this issue, see, for example, William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U. C. DAVIS L. REV. 1311 (2007) ;
84. Jennifer Mason McAward, The Scope of Congress's Thirteenth Amendment Enforcement Power After City of Boerne v. Flores, 88 WASH. U. L. REV. 77 (2010).
85. Greene, 451 U. S at 111-12, 119 (stating that although "the motorists who will be inconvenienced by the closing are primarily black, the extent of the inconvenience is not great" and that "[t]he closing has not affected the value of property owned by black citizens, but it has caused some slight inconvenience to black motorists").
86. see also David Tyler, Traffic Regulation or Racial Segregation? The Closing of West Drive and Memphis v. Greene (1981), 66 TENN. HIST. Q. 56 (2007), available at http://dlynx.rhodes.edu/jspui/bitstream/10267/2400/1/Hollywood- springdale-David-Tyler.pdf (describing in detail the history of racial segregation and hostility in the era leading up to Greene).
87. Plaintiffs also alleged that the city's actions violated the Equal Protection Clause. The Court rejected this claim, holding that "the absence of proof of discriminatory intent forecloses any claim that the official action challenged in this case violates the Equal Protection Clause.... " Greene, 451 U. S. at 119.
88. 403 U. S. 217 (1971).
89. See generally JEFF WILTSE, CONTESTED WATERS: A SOCIAL HISTORY OF SWIMMING POOLS IN AMERICA 154-80 (2007) (discussing the history of and resistance to efforts to desegregate municipal swimming pools).
90. See also GEORGE M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND: THE DEBATE ON AFRO-AMERICAN CHARACTER AND DESTINY 1817-1914, at 252 (1987) ;
91. A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 41-47 (1978) ;
92. Martha A. Myers, The New South's "New" Black Criminal: Rape and Punishment in Georgia, 1870-1940, in ETHNICITY, RACE, AND CRIME 145, 146 (Darnell F. Hawkins ed., 1995).
93. I provide such context here not as an historical exercise but because, as the Court has recendy reiterated, "Context matters when reviewing race-based governmental action under the Equal Protection Clause." Grutter v. Bollinger, 539 U. S. 306, 327 (2003).
94. See Brief for Petitioners at 4, Palmer, 403 U. S. 217 (No. 107)
95. * 4 (The City of Jackson and the State of Mississippi have for many years maintained a steel-hard, inflexible, undeviating official policy of segregation"
96. (quoting United States v. City of Jackson, 318 F.2d 1, 5 (5th Cir. 1963)) (internal quotation marks omitted)).
97. See, e.g., TAYLOR BRANCH, PARTING THE WATERS 482-91 (1988) (describing Mississippi's segregationist policies).
98. See RAYMOND ARSENAULT, FREEDOM RIDERS: 1961 AND THE STRUGGLE FOR RACIAL JUSTICE 251-94 (2006).
99. 364 U. S. 454 (1960).
100. see also Interview by Charlene Thompson With Hillman Frazier in Jackson, Miss. (Aug. 5, 1998), available at http://mshistory.k12.ms.us/articles/60/index. php?s= extra&id=258 ("Allen C. Thompson [the mayor of Jackson during the Freedom Rides and the Palmer v. Thompson litigation] was... known for the famous Thompson Tank. He used that to arrest the marchers at the time. And also he used the police force and the fire department to spray the marchers at the time.").
101. See generally ADAM NOSSITER, OF LONG MEMORY: MISSISSIPPI AND THE MURDER OF MEDGAR EVERS (1994).
102. See also TAYLOR BRANCH, PILLAR OF FIRE: AMERICA IN THE KING YEARS 108 (1998) (discussing Evers's assassination).
103. Among other matters, Bamett had been held in contempt of court for obstructing the courtordered desegregation of the University of Mississippi. See Meredith v. Fair, 328 F.2d 586 (5 th Cir. 1962) (en banc).
104. Reginald Oh, Interracial Marriage in the Shadows of Jim Crow: Racial Segregation as a System of Racial and Gender Subordination, 39 U. C. DAVIS L. REV. 1321, 1324 (2006) (The systematic physical and social separation of the white and black races was fundamental to maintaining a social system of white supremacy and black inferiority.").
105. Palmer v. Thompson, 403 U. S. 217, 226 (1971).
106. As an example of such a cognizable effect, the Court cited Gomillion v. Lightfoot, 364 U. S. 339 (1960), wherein "the Alabama Legislature's gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections"
107. Palmer, 403 U. S. at 225.
108. See, e.g., William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 HARV. C. R.-C. L. L. REV. 17, 33-36 & nn. 85-96 (2004) and authorities cited therein.
109. Powers v. Ohio, 499 U. S. 400, 424 (1991) (Scalia, J., dissenting) (internal quotation marks omitted).
110. In Powers, the Court extended its holding in Batson v. Kentucky, 476 U. S. 79 (1986), to encompass race-based peremptory jury challenges where the defendant and the excluded juror are of different races. The Court reasoned that the defendant in such cases had a kind of third-party standing to object to the racialized treatment of the stricken juror, despite the fact that the defendant himself would presumably suffer no prejudice by having a juror of his own race seated on the jury.
111. Powers, 499 U. S. at 410-11. Justice Scalia dissented because, in his view, race-based peremptory challenges are based on the "undeniable reality... that all groups tend to have particular sympathies and hostilities-most notably, sympathies... towards their own group members." Id at 424 (Scalia, J., dissenting). Because, Justice Scalia reasoned, "that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them," there is neither unequal treatment nor opprobrium or stigma. Id;
112. see also United States v. Armstrong, 517 U. S. 456, 465 (1996) (holding that under "ordinary equal protection standards..., [in order to] establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted").
113. 347 U. S. 483 (1954).
114. See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L. J. 421, 427 (1960) ("[T]he social meaning of segregation is the putting of the Negro in a position of walledoff inferiority....").
115. Plessy v. Ferguson, 163 U. S. 537, 560 (1896) (Harlan, J., dissenting).
116. Brown v. Bd. of Educ, 347 U. S. 483, 494 (1954).
117. cf. Shaw v. Reno, 509 U. S. 630, 682 n. 4 (Souter, J., dissenting) (distinguishing Shaw from Brown by noting that "a principal consequence of school segregation was inequality in educational opportunity provided, whereas use of race (or any other group characteristic) in districting does not, without more, deny equality of political participation").
118. 388 U. S. 1 (1967).
119. See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639, 655 (2002) (stating, in upholding an Ohio program providing publicly funded school vouchers that could be used at religious schools, that the "endorsement inquiry" depends upon "the history and context' underlying a challenged program"
120. (quoting Good News Club v. Milford Cent. Sch., 538 U. S. 98, 119 (2001))).
121. Loving, 388 U. S. at 6.
122. See, e.g., DORA APEL, IMAGERY OF LYNCHING: BLACK MEN, WHITE WOMEN, AND THE MOB 44 (2004) (stating that "[a]nti-miscegenation laws supported lynch law in seeking to maintain white social domination through the prevention of intermixing and the resultant 'racial blurring"') ;
123. N. Jeremi Duru, The Central Park Five, the Scottsboro Boys, and the Myth of the Bestial Black Man, 25 CARDOZO L. REV. 1315, 1327 (2004) ("[L]ynchings were generally justified as appropriately responsive to attacks on white womanhood and were motivated by a fear of the black man's mythic sexual savagery.").
124. See Loving, 388 U. S. at 4. The Lovings, for example, pleaded guilty and were each sentenced to one year in prison. The trial court, however, suspended their sentences on the condition that they leave Virginia and not return together for twenty-five years.
125. I recognize that certain Justices, most notably Justice Thomas, believe that government race consciousness inevitably stigmatizes racial minorities. See, e.g., Grutter v. Bollinger, 539 U. S. 306, 373 (2003) (Thomas, J., concurring in part and dissenting in part) (arguing that affirmative action programs stigmatize racial minorities because "[t]hese programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences"
126. (quoting Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 241 (1995) (Thomas, J., concurring in part and concurring in judgment))). If that were invariably (or even frequently) the case, one would expect to more often see racial minorities, rather than whites, as plaintiffs in cases challenging affirmative action programs. Moreover, the assumption that affirmative action programs stigmatize racial minorities is most often framed as involving self-doubt as to whether one deserved something based on one's own merit or instead received it because of race. Whatever force that argument may have in other contexts, it is inapposite here. It is difficult to see how government race consciousness that does not involve the allocation of a tangible resource or benefit, one that would otherwise ordinarily be distributed based on nonracial factors, could lead to this sort of stigma being imposed on racial minorities. It is doubtful, for example, that children of color in the Seattle and Louisville school districts at issue in Parents Involved were plagued by self-doubt as to whether they had earned the right to be assigned to a given public school. Finally, recent empirical research casts serious doubt on the claim that racial minorities view affirmative action programs as stigmatizing.
127. See Deirdre M. Bowen, Brilliant Disguise: An Empirical Analysis of a Social Experiment Banning Affirmative Action, 85 IND. L. J. 1197, 1199 (2010) (describing a national study seeking to gauge whether racial minorities experienced affirmative action as stigmatizing, and concluding that, while "one would anticipate that underrepresented minority students attending school in the states that [ban] race-based admissions would suffer lower rates of internal and external stigma as well as less hostility in the form of racism from nonminority students.... [i]n fact, the opposite is true, [and u]nderrepresented minority students in states that permit affirmative action encounter far less hostility and internal and external stigma than students in anti-affirmative action states").
128. Shaw v. Reno, 509 U. S. 630, 647 (1993).
129. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U. S. 701, 730 (2007) (plurality opinion) (stating that equal protection embothes "the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class"
130. (quoting Miller v. Johnson, 515 U. S. 900, 911 (1995)) (internal quotation marks omitted)) ;
131. Cf. Parents Involved, 551 U. S. at 834 (Breyer, J., dissenting) (distinguishing the case from earlier "affirmative action" cases because the student assignment plans did not involve "the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply") ;
132. Cristina M. Rodriguez, Against Individualized Consideration, 83 IND. L. J. 1405, 1417 (2008) (arguing that "merit" is not a meaningful concept when considering assignment to general elementary and secondary public schools).
133. See generally Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 YALE L. J. 1278 (2011) (identifying the antibalkanization principle as an independent doctrinal middle ground between colorblindness theory and antisubordination theory, under which government action violates the Equal Protection Clause when it is seen as causing divisiveness and threatening social cohesion).
134. Lawrence v. Texas, 539 U. S. 558, 602 (2003) (Scalia, J., dissenting) (criticizing the majority for rinding unconstitutional a Texas law criminalizing certain homosexual conduct and overruling Bowers v. Hardwick
135. 478 U. S. 186 (1986)). I do not share Justice Scalia's belief that the Court should avoid ruling on contentious social issues even when they involve discrimination against minorities, nor do I believe that the Court's decision in Lawrence was wrong. Indeed, in Lawrence, the Court was presented not just with an expressive harm to gays, but also a concrete disadvantage imposed upon them, criminal prosecution. Rather, I quote his dissent in Lawrence to point out that, in the debate over colorblindness versus positive color consciousness, the Court has taken a side rather than acting as a neutral observer of the democratic debate about race.
136. Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1139
137. 555 U. S. 460 (2009) (Stevens, J., concurring) (describing the government speech doctrine as "recently minted").
138. See Helen Norton & Danielle Keats Citron, Government Speech 2.0, 87 DENVER U. L. REV. 899, 901 (2010) (stating that the doctrine is "a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint").
139. See, e.g., Johanns v. Livestock Mktg. Ass'n, 544 U. S. 550, 559 (2005) ("In all of the cases invalidating exactions to subsidize speech, the speech was, or was presumed to be, that of an entity other than the government itself.") ;
140. Legal Servs. Corp. v. Velazquez, 531 U. S. 533, 541 (2001) ("We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker.... ").
141. See Johanns, 544 U. S. at 559 ("[S]ome government programs involve, or entirely consist of, advocating a position. ").
142. Summum, 129 S. Ct. at 1131.
143. Cf. Rust v. Sullivan, 500 U. S. 173, 194 (1991) (stating by way of analogy, in rejecting a First Amendment challenge to federal regulations prohibiting funding recipients from promoting or discussing abortion, that "[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage...communism and fascism" (citation omitted)).
144. See, e.g., Summum, 129 S. Ct. at 1139 (Stevens, J., concurring) ("[E]ven if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution's other proscriptions, including those supplied by the Establishment and Equal Protection Clauses.").
145. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 135-79 (1980) (discussing "process defect theory" as a reason for judicial intervention on behalf of minorities).
146. For the argument that laws suppressing speech "pose the inherent risk that the Government seeks... to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion," see Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641 (1994).
147. Cf United States v. Carolene Prods. Co., 304 U. S. 144, 153 n. 4 (1938) (recognizing without deciding that "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").
148. Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U. S. 217, 235 (2000).
149. See, e.g., Summum, 129 S. Ct. at 1132 (justifying the government speech doctrine in terms of democratic accountability and stating that "[i]f the citizenry objects [to a governmental message], newly elected officials later could espouse some different or contrary position" (internal quotation marks omitted)). Transparency is an underlying assumption of the political accountability rationale for the government speech doctrine because the political process can only function as a check on government speech if a reasonable recipient of the speech would know that the speech is the government's.
150. See, e.g., Gia B. Lee, Persuasion, Transparency, and Government Speed, 56 HASTINGS LJ. 983, 988 (2005) (stating that "[w]hen the government participates in public debate, it should make the fact of its participation transparent") ;
151. 500 U. S. 173 (1991).
152. See Rust, 500 U. S. at 178-81 (describing the regulations in detail).
153. 531 U. S. 533 (2001).
154. 129 S. Ct. 1125
155. 555 U. S. 460 (2009).
156. See, e.g., Erwin Chemerinsky, Moving to the Right, Perhaps Sharply to the Right, 12 GREEN BAG 2D 413, 427 (2009) (critiquing the government speech doctrine because it could lead the government to engage in "blatant viewpoint discrimination simply by adopting private speech as its own") ;
157. Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 IOWA L. REV. 1259, 1262-63 (2010) (criticizing the government speech doctrine, and arguing, inter alia, that "it is unclear... why the government should have the affirmative First Amendment right to speak, since the structural function of the First Amendment is to limit government power") ;
158. U. S. CONST, amend. I;
159. see also Texas v. Johnson, 491 U. S. 397, 404 (1989) (stating that "[t]he First Amendment literally forbids the abridgment only of speech" (internal quotation marks omitted)).
160. Johnson, 491 U. S. at 404 (finding flag burning to be expressive conduct protected by the First Amendment, and stating that the Court has "long recognized that [the First Amendment's] protection does not end at the spoken or written word.... [and] we have acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First [Amendment]" (citations and internal quotation marks omitted)).
161. See, e.g., Wisconsin v. Mitchell, 508 U. S. 476, 484 (1993) (stating that the Court's cases "reject the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea" (internal quotation marks omitted)).
162. Johnson, 491 U. S. at 404 (alteration in original) (internal quotation marks omitted).
163. see also Spence v. Washington, 418 U. S. 405, 410 (1974) (holding that, in applying the expressive conduct analysis, "the context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol").
164. Deborah L. Brake, When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law, 46 WM. & MARY L. REV. 513, 579 (2004) ("[T]he expressive force of law and other government action shapes social meaning [and] this influence on social meaning may affect individual and collective behavior wholly apart from the sanctions of law enforcement.") ;
165. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 951 (1995) ("Any society or social context has... social meanings-the semiotic content attached to various actions, or inactions, or statuses, within a particular context.") ;
166. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2051 (1996) ("There can be no doubt that law, like action in general, has an expressive function.... Many debates over the appropriate content of law are really debates over the statement that law makes, independent of its (direct) consequences."). (Pubitemid 126408773)
167. Maximizing the use of limited public space in the way the government believes best could be characterized as an instrumental purpose. But the government would be basing its judgment about the best use of public space on the expressive value of non-Christian displays. Cf. Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1139, 1134
168. 555 U. S. 460 (2009) (noting that, in deciding what monuments to display on limited public land, "[g]overnment decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture").
169. See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1208 (3d ed. 2009) ("Because even for originalists there is little guidance from history or the framers' intent as to the meaning of the First Amendment [beyond the prohibition on prior restraints and rejection of the crime of seditious libel], the Supreme Court inescapably must make value choices as to what speech is protected.").
170. 129 S. Ct. 2658 (2009).
171. Ricci v. DeStefano, 554 F. Supp. 2d 142, 162 (D. Conn. 2006) (emphasis added).
172. I do not suggest that government action should be insulated from equal protection scrutiny simply because it is undertaken to avoid public criticism or retain the favor of voters. To the contrary, in cases where such actions result in unequal treatment, subordination, or stigma, I would argue that they do implicate the Equal Protection Clause. See, e.g., Benjamin Schwarz, Insidious Weakness, ATLANTIC MONTHLY, May 1998, http://www.meatlantic.com/past/docs/ issues/98may/weakhtm (discussing the career of Orval Faubus, governor of Arkansas during the Little Rock school integration crisis in 1957, and stating that his actions in opposing the integration of Little Rock Central High School were largely motivated by political expediency and electoral concerns). As discussed in Part II, however, I do not believe that the city's actions in Ricci resulted in unequal treatment, subordination, or stigma.
173. Ricci, 129 S. Ct. at 2685 (Alito, J., concurring) (arguing that the city's actions were not truly intended to avoid disparate impact liability, but that instead one could "infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Reverend] Kimber and other influential leaders of New Haven's African-American community"
174. (quoting Ricci, 554 F. Supp. 2d at 162)). Justice Alito's imagery of radical black "wrath" and "sabotage" was both unfairly pejorative and unnecessarily inflammatory (pun intended). The characterization of the black community's successful political advocacy as amounting to sinister subversion of the political process falsely equated "political considerations with unlawful discrimination"
175. Texas v. Johnson, 491 U. S. 397, 404 (1989).
176. See Spence v. Washington, 418 U. S. 405, 410 (1974).
177. Mary Jean Dolan, Government Identity Speech and Religion: Establishment Clause Limits After Summum, 19 WM. & MARY BILL RTS. J. 1, 52 (2010)
178. (quoting CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 127 (2007)) (internal quotation marks omitted).
179. The critical race theory insight of perspectivalism, for example, insists that race, culture, gender, sexual orientation, political affiliation, and other group identities should matter a great deal in determining social meaning. See, e.g., RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION 55 (2001). The insight that one's mode of cognition may be strongly affected by group identity is not limited to critical race theorists. For example, a recent empirical study reveals substantial group differences in the perceived meaning of the same communication.
180. In Scott v. Harris, 550 U. S. 372 (2007), the Supreme Court affirmed summary judgment in favor of a police officer who was sued for ending a high-speed chase by ramming his police car into the fleeing vehicle, causing serious injuries to the suspect. The Court found, based on a video recording of the chase, that "no reasonable juror" could believe other than that the decision to use deadly force was justified. In the study, the same video was shown to a diverse group of approximately 1350 laypeople.
181. See Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837 (2009). The study found, inter alia, that when shown the video, substantial majorities agreed with the Court's resolution of the facts, but that "African Americans, lowincome workers, and residents of the Northeast, for example, tended to form more pro-plaintiff views of the facts than did the Court. So did individuals who characterized themselves as liberals and Democrats."
182. A straightforward example is the difference in meaning likely to be ascribed to a common racial epithet when uttered in the context of, for example, a rap song, versus a stranger of a different race directing the same word at an African American personally. Similarly, it is likely that a different meaning would be ascribed to a swastika viewed as part of a documentary about World War II than one spray-painted on the wall of a synagogue. For a sophisticated examination of the role of context in ascribing social meaning to government action, see generally B. Jessie Hill, Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test, 104 MICH. L. REV. 491 (2005).
183. Transcript, Frank Ricci Testifies at Sonia Sotomayor's Confirmation Hearings, WASH. POST, July 16, 2009, http://www.washingtonpost.com/wp-dyn/ article/2009/07/16/AR2009071603090.html.
184. See Cheryl I. Harris & Kimberly West-Faulcon, Reading Ricci: Whitening Discrimination, Racing Test Fairness, 58 UCLA L. REV. 73, 88-89 (2010) (describing this history, and noting that New Haven "had been repeatedly and successfully sued by African Americans and Latinos over its hiring and promotional practices-virtually all facially race neutral-that operated to shut nonwhites out.....[and that o]vert and intentional racial exclusion and segregation remained pervasive in many urban fire departments even decades after Brown") ;
185. Ann C. McGinley, Ricci v. DeStefano; A Masculinities Theory Analysis, 33 HARV. J. L. & GENDER 581, 588-95 (2010) (tracing the history of exclusion of white women and racial minorities from firefighting jobs in New Haven and other urban fire departments and the resultant desegregation and discrimination lawsuits).
186. See, e.g., Ricci v. DeStefano, 554 F. Supp. 2d 142, 150 (D. Conn 2006) ('Plaintiffs' theory is that [city officials] urged the [civil service board] not to certify the results in the interest of pleasing minority voters and other constituents in New Haven whose priority was increasing racial diversity in the ranks of the Fire Department.").
187. 418 U. S. 717, 783 (1974) (Marshall, J., dissenting) ;
188. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U. S. 701, 725 (2007) (plurality opinion) ("Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment.").
189. 551 U. S. at 731 n. 14 (second alteration in original) (quoting the board's website).
190. (quoting Miller v. Johnson, 515 U. S. 900, 911 (1995)) (internal quotation marks omitted).
191. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F. Supp. 2d 1224, 1225 (W. D. Wash. 2001) (upholding Seattle's school assignment plan, and finding that "[f]or over thirty years the Seatde School District has made efforts to ameliorate the often pernicious consequences of the racial isolation in its schools that would, but for those efforts, track the racial segregation of the city's housing patterns")
192. rev'd and remanded, 551 U. S. 701;
193. Hampton v. Jefferson Cnty. Bd. of Educ, 72 F. Supp. 2d 753, 755-67 (W. D. Ky. 1999) (describing in detail the history of segregation in Louisville public schools).
194. For example, a 2001 survey found that over 80 percent of parents in the Louisville/Jefferson County school district supported the desegregation plan at issue in Parents Involved. Chris Kenning, Supreme Court to Hear Jefferson's School Suit, LOUISVILLE COURIER-J., June 6, 2006, at A1;
195. see also Meaghan Hines, Note, Fulfilling the Promise of Brovm? What Parents Involved Means for Louisville and the Future of Race in Public Education, 83 NOTRE DAME L. REV. 2173, 2218 (2008) (citing local news reports and letters to newspapers for the proposition that "many Jefferson County parents and students demonstrated their disappointment after [the Supreme Court's ruling in Parents Involved\, imploring the school district to continue its efforts to instill its students with an appreciation for diversity").
196. For the sake of length, I have purposefully omitted an expressive conduct analysis of Shaw v. Reno, 509 U. S. 630 (1993). Suffice it to say that (1) the Court treated the case as one involving solely an expressive harm, and (2) I believe the redistricting in Shaw had sufficient expressive content to meet the expressive conduct test.
197. See, e.g., Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132-37
198. 555 U. S. 460 (2009).
199. See, e.g., Hein v. Freedom From Religion Found., Inc., 551 U. S. 587, 593-94 (2007) (quoting the Executive Order establishing the White House Office of Faith-Based and Community Initiatives for the purpose of ensuring that "private and charitable community groups, including religious ones... have the fullest opportunity permitted by law to compete on a level playing field [for federal funds]") ;
200. Rust v. Sullivan, 500 U. S. 173 (1991) (abortion) ;
201. Andy Birkey, Minneapolis City Council Passes Resolution Denouncing Uganda's Anti-Homosexuality Bill, MINN. INDEP., Dec. 18, 2009, http://minnesotaindependent.com/52186/minneapolis-city-council-passes- resolutiondenouncing-ugandas-anti-homosexuality-bill (describing a city council resolution opposing a Ugandan bill that would impose harsh criminal penalties for homosexual conduct) ;
202. Bloomington Resolutions Oppose Iraq War, Patriot Act, Seek Higher Minimum Wage, DEMOCRACY NOW, May 6, 2005, http://www.democracynow.org/2005/5/6/ bloomington-resolutions-oppose-iraq-war-patriot (discussing municipal resolution opposing the U. S. invasion of Iraq) ;
203. Scott Mobley, Redding Council Votes to Oppose Legalizing Marijuana, REDDING RECORD-SEARCHLIGHT, Aug. 3, 2010, hrtp://www.redding.com/news/2010/aug/ 03/redding-council-votes-oppose-legalizing-marijuana (discussing a city resolution opposing California Proposition 19, which would have legalized possession of marijuana).
204. Civil Service, CITY OF NEW HAVEN HUMAN RESOURCES, http://www. cityofhewhaven.com/HumanResources/CivilServke.asp (last visited Sept. 27, 2011).
205. See Joint Appendix, Ricci v. DeStefano, 129 S. Ct. 2658 (2009) (Nos. 07-1428, 08-328) (providing transcripts of the hearings). Notably, these hearings were held over the initial protest of Reverend Kimber, who apparently would have preferred that the Board of Fire Commissioners first have the opportunity to meet privately with the CSB.
206. Ricci, 129 S. Ct. at 2685 (Alito, J., concurring) (stating that "Reverend Kimber protested the public meeting, arguing that he and the other fire commissioners should first be allowed to meet with the CSB in private"). This fact does much to dispel the notion that the process operated through secret back-room dealing.
207. Ricci, 129 S. Ct. at 2692 (Ginsburg, J., dissenting) (summarizing the hearings).
208. For example, the issue was thoroughly covered in the local media. See, e.g., William Kaempffer & Angela Carter, City Fire Tests Have No Easy, Cheap Fix, NEW HAVEN REG., Feb. 2, 2004, http://www.nhregister.com/articles/2004/02/ 02/import/10901527.txt;
209. William Kaempffer, Fire Department Sure to Be Sued Over Exams, NEW HAVEN REG., Feb. 6, 2004, http://www.nhregister.com/arricles/2004/02/06/import/ 10927406.txt [hereinafter Kaempffer, Fire Department Sure to Be Sued];
210. William Kaempffer, Fire Exams Pose Problems, City Lawyer Says, NEW HAVEN REG., Jan. 23, 2004, http://www.nhregister.com/articles/2004/01/23/import/ 10855004.txt;
211. William Kaempffer, Firefighters Say Tests for Promotions Are Flo-wed, NEW HAVEN REG., Jan. 21, 2004, http://www.nhregister.com/articles/2004/01/21/ import/10840559.txt.
212. At the time of the decision regarding whether to certify the test results, the CSB had three white members, one Latino member, and one black member. See Kaempffer, Fire Department Sure to Be Sued, supra note 227. The one black member was recused from the hearings and the vote because her brother was a New Haven firefighter and a candidate for promotion.
213. Ricci v. DeStefano, 554 F. Supp. 2d 142, 150 n. 5 (D. Conn. 2006). The New Haven Board of Aldermen at that time was comprised of twelve white members, twelve black members, five Latino members, and one Asian member. Telephone Interview by Jonathan Mayer With Albert Lucas, Dir. of the Office of Legislative Servs. for New Haven, Conn. (July 28, 2011).
214. Ricci, 129 S. Ct. at 2688 (Alito, J., concurring).
215. Among other matters, racial and ethnic data is used by the Justice Department to make determinations about compliance with the Voting Rights Act and by private plaintiffs in Voting Rights Act litigation. See Recommendations From the Interagency Committee for the Review of the Racial and Ethnic Standards to the Office of Management and Budget Concerning Changes to the Standards for the Classification of Federal Data on Race and Ethnicity, U. S. CENSUS BUREAU, July 9, 1997, http://www.census.gov/population/www/socdemo/race/Directive-15. html (explaining that claims of vote dilution under Section 2 of the Voting Rights Act and requests for preclearance under Section 5 of the Act for changes to voting procedures "are usually determined by reference to decennial census data on race and emnicity") ;
216. Language Use: Frequently Asked Questions, U. S. CENSUS BUREAU, http://www.census.gov/hhes/socdemo/language/about/faqs.html (last updated Nov. 15, 2010) (explaining that "[o]ne of the main purposes of collecting information on languages is for Voting Rights determination [and information about languages spoken at home and English-speaking ability is used to determine bilingual election requirements under the Voting Rights Act"). Such information is also used to determine compliance with various provisions of the federal No Child Left Behind Act
217. 20 U. S. C. §§ 6301-7941 (2006).
218. Alex Seitz-Wald, Beck: The Census Is the Government's Attempt to 'Increase Slavery,' THINKPROGRESS. ORG, Mar. 9, 2010, http://thinkprogress.org/ 2010/03/09/beck-census-slavery (discussing a popular television commentator's opposition to the collection of census data regarding respondents' race). Lest the reader believe that opposition to the collection of such data is far-fetched or limited to fringe opinion, it is worth noting that supporters of Proposition 54 couched their arguments explicitly in constitutional terms and that the measure, although defeated, was supported by a third of the voters.
219. see also Ritu Kelotra, Civil Rights Groups: Proposition 54 Defeat Is Victory for All, LEADERSHIP CONF., Oct. 8. 2003, http://www.civilrights.org/ equal-opportunity/proposition-54/civil-rights-groups-proposition-54-defeat- isvictory-for-all.html (noting that the measure was defeated 64 to 36 percent).
220. See, e.g., Minority and Women Outreach Program, FED. DEPOSIT INS. CORP., http://www.fdic. gov/buying/goods/mwopAndex.html (last updated Apr. 14, 2009) (describing the Federal Deposit Insurance Corporation's Minority and Women Outreach Program, which seeks to "ensure the inclusion, to the maximum extent possible, of minorities and women... in all contracts entered into by the FDIC by providing outreach, education, and networking for firms owned by minorities and women) ;
221. Brent Staples, Editorial, The Country Can Learn a Lesson From These Students, N. Y. TIMES, Dec. 6, 2010, at A26 (discussing the Annual Biomedical Research Conference for Minority Students, which is sponsored by the National Institute of General Medical Sciences (a division of the federal National Institutes of Health) and aims to increase the participation of underrepresented racial minorities in the sciences). The threat to such programs from a strict colorblindness principle is not hypothetical
222. In Hi-Voltage Wire Works, Inc. v. City of San Jose, 12 P.3d 1068 (Cal. 2000), the California Supreme Court held that a city program mandating that government contractors conduct minority and women's outreach violated California Proposition 209, which generally forbids government consideration of race. The court stated that the program illegally required contractors to treat minority and women subcontractors "more advantageously by providing them notice of bidding opportunities, soliciting their participation, and negotiating for their services, none of which they must do for non-[minority or women subcontractors]. The fact that prime contractors are not precluded from contacting non-[women or minority firms] is irrelevant."
223. see also Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 CALIF. L. REV. 1139, 1144 n. 19 (2008) (noting that the University of California ended various minority outreach programs after the enactment of California Proposition 209).
224. For example, in order to detect racial profiling, many states require the collection of racial data on traffic stops and other law enforcement encounters. See Paul Heaton, Understanding the Effects of Antiprofiling Policies, 53 J. L. & ECON. 29, 29 (2010) ("By 2007, a total of 25 states had enacted legislation requiring police agencies to collect data on the race of motorists involved in traffic stops, with selected police departments in 22 other states voluntarily agreeing to collect such data."). Similarly, Executive Order 12, 898, issued by President Clinton, requires federal agencies to make environmental justice part of their mission "by identifying and addressing... disproportionately high and adverse human health or environmental effects of [their programs] on minority populations..."
225. 3 C. F. R. § 859 (1995).
226. It is of course true that in a world of limited resources, every dollar spent on, for example, minority outreach programs, enforcement of civil rights laws, or collecting data to monitor racial discrimination and disparities could be spent elsewhere. But generalized grievances regarding government spending priorities are generally nonjusticiable. See, e.g., Allen v. Wright, 468 U. S. 737 (1984) (holding that parents of African American public school students lacked standing to bring a claim alleging that the IRS improperly failed to terminate tax-exempt status of racially discriminatory private schools). When I speak of distributing limited resources, I have in mind discrete decisions regarding allocation of a specific government resource to one person rather than another, such as admission of certain students to a university, or the award of a particular government benefit (for example, employment or government funds) to a specific individual.
227. See Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1139
228. 555 U. S. 460 (2009) (Stevens, J., concurring) ("[E]ven if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution's other proscriptions, including those supplied by the Establishment and Equal Protection Clauses.").
229. See Summum, 129 S. Ct. at 1131 ("A government entity has the right to speak for itself. It is entided to say what it wishes, and to select the views that it wants to express." (emphasis added) (citations, alteration, and internal quotation marks omitted)) ;
230. Legal Servs. Corp. v. Velazquez, 531 U. S. 533, 541 (2001) ("We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker.... "). Moreover, as discussed earlier, the political process rationale for the government speech doctrine also implicidy requires that it be clear that the speech is the government's.
231. See, e.g., Alexander Tsesis, The Problem of Confederate Symbols: A Thirteenth Amendment Approach, 75 TEMP. L. REV. 539, 609 (2002) (arguing that "[t]he civil rights gained through the Reconstruction Amendments... trump government speech" because "the incorporation of Confederate imagery into state symbolism... draws meaning from a history in which the Confederacy stifled the voices of blacks and abolitionists") ;
232. James Forman, Jr., Note, Driving Dixie Down: Removing the Confederate Flag From Southern State Capitals, 101 YALE L. J. 505, 515 (1991) (stating that "[t]he selection of an exclusionary symbol to fly above the state capitol is harmful in part because of the effect it may have on the desire and ability of the excluded to participate in the political and legal processes") ;
233. See United States v. Carolene Prods. Co., 304 U. S. 144, 152 n. 4 (1938) (recognizing without deciding that "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").
234. Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U. S. 217, 235 (2000) ("When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy.").
235. "A person engages in borrowing when, in the course of trying to persuade someone to adopt a reading of the Constitution, that person draws on one domain of constitutional knowledge in order to interpret, bolster, or otherwise illuminate another domain. " Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 MICH. L. REV. 459, 463 (2010).
236. R. A. V. v. City of St. Paul, Minnesota, 505 U. S. 377 (1992), provides an example of the incoherence that can be caused by borrowing. In R. A. V., Justice Scalia's majority opinion struck down a hate speech ordinance on the ground that the law violated the First Amendment as an impermissible content-based distinction within a category of unprotected speech. In reaching this conclusion, the opinion borrowed concepts from equal protection doctrine to inform its interpretation of the First Amendment in several ways. First, the opinion spoke repeatedly of "content discrimination" rather than "content-based distinctions"
237. See, e.g., Republican Party of Minn. v. White, 536 U. S. 765, 774-75 (2002) (applying strict scrutiny to a state law prohibiting candidates for judicial elections from announcing their views on disputed legal or political issues) ;
238. Turner Broad. Sys., Inc. v. FCC, 512 U. S. 622, 642 (1994) ("[T]he most exacting scrutiny [applies] to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.... In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny...." (citations omitted)).
239. 438 U. S. 265 (1978).
240. 539 U. S. 306 (2003).
241. Shaw v. Reno, 509 U. S. 630, 647 (1993).
242. Parents Involved in Cmty. Schs. v. Seatde Sch. Dist. No. 1, 551 U. S. 701, 746 (2007) (plurality opinion) (internal quotation marks omitted).
243. Shaw, 509 U. S. at 648.
244. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-61 (1992).
245. Viewing the Court's strict colorblindness cases as involving expressive harms is more sensible as matter of standing than viewing them as involving unequal treatment, but it does not completely resolve the issue of standing in those cases. For example, the lack of unequal treatment or tangible injury calls into question whether the plaintiffs in those cases suffered the kind of particularized harm necessary for standing. In Allen v. Wright, 468 U. S. 737 (1984), for example, the Court held that parents of African American public school students lacked standing to challenge the IRS's failure to terminate racially discriminatory private schools' tax-exempt status. The Court reasoned that "the stigmatizing injury often caused by racial cliscrimination" was insufficient alone to confer standing because "such injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct"
246. see generally Samuel Issacharoff & Pamela S. Karlan, Standing and Misunderstanding in Voting Rights Law, 111 HARV. L. REV. 2276 (1998) ; (Pubitemid 128403214)
247. Note, Expressive Harms and Standing, 112 HARV. L. REV. 1313 (1999) ;
248. Kenji Yoshino, Covering, 111 YALE. L. J. 769, 830 (2002) (discussing various ways in which equal protection doctrine manifests an "assimilationist bias" or disrespects difference).
249. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U. S. 701, 741 (2007) (plurality opinion) ("Our cases clearly reject the argument that motives affect the strict scrutiny analysis.").
250. Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell," 108 YALE L. J. 485, 503 (1998).
251. Cf. City of Richmond v. J A Croson Co., 488 U. S. 469, 495 (1989) (plurality opinion) (stating that "[i]f 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," but rejecting that argument on the facts of the case (citations and internal quotation marks omitted)).
252. Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 224 (1995) (first alteration in original)
253. (quoting Croson, 488 U. S. at 494).
254. See Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 WM. & MARY L. REV. 267, 281-82 (1991) (The will of the community, in a democracy, is always created through a running discussion between majority and minority.... [that] subjects the political and social order to public opinion, which is the product of a dialogic communicative exchange open to all." (internal quotation marks omitted)). Indeed, current First Amendment doctrine values pluralism of opinion so strongly drat it protects hate speech, which scholars have suggested is more akin to an assault than an opinion and therefore has little social value.
255. See, e.g., 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).
256. This should be particularly important for those Justices who most stridendy proclaim the importance of judicial modesty and deference to legislatures. See, e.g., Sosa v. Alvarez-Machain, 542 U. S. 692, 750 (2004) (Scalia, J., concurring) (criticizing the Court's alleged countermajoritarianism and stating that "[t]his Court seems incapable of admitting that some matters-any matters-are none of its business" (emphasis in original)) ;
257. United States v. Virginia, 518 U. S. 515, 567 (1996) (Scalia, J., dissenting) (The virtue of a democratic system with a First Amendment... is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. ") ;
258. Romer v. Evans, 517 U. S. 620, 636 (1996) (Scalia, J., dissenting) (This Court has no business imposing upon all Americans the resolution [of the debate about the morality of homosexuality] favored by the elite class from which the Members of this institution are selected....").
259. Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132
260. 555 U. S. 460 (2009) ("If the citizenry objects [to a governmental message], newly elected officials later could espouse some different or contrary position. " (internal quotation marks omitted)) ;
261. Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U. S. 217, 235 (2000) ("When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy.").
262. See, e.g., Parents Involved in Cmty. Schs. v. Seatde Sch. Dist. No. 1, 551 U. S. 701, 748 (2007) (plurality opinion) (The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.") ;
263. League of United Latin Am. Citizens v. Perry, 548 U. S. 399, 511 (2006) (Roberts, C. J., concurring in part, concurring in the judgment in part, and dissenting in part) (stating, in a vote dilution case, that "[i]t is a sordid business, this divvying us up by race") ;
264. Adarand, 515 U. S. at 239 (Scalia, J., concurring in part and concurring in the judgment) ("In the eyes of government, we are just one race here. It is American. ").
265. New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).
266. 376 U. S. 254.
267. I am not using the term heckler's veto in a strict First Amendment sense, which involves the concern that the government may silence a private speaker ostensibly to protect him or her from a hostile audience. See, e.g, HARRY KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT 140 (1965) (describing the concern about the heckler's veto as follows: "If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve."). Here, of course, my concern is not that the government will silence a private speaker due to a heckler's veto. Rather, it is that the heckler's veto consists of the divisiveness that government attention to racial inequality allegedly causes, which is sufficient to silence the government under the Court's colorblindness doctrine. The anticipated reaction of a few operates to silence the many who have adopted such policies through their democratically elected representatives, even where such policies cause no harm beyond offense at the message expressed.
268. I am highly skeptical, both as a scholar and as an African American, that colorblindness accurately describes the current state of either our minds or our society. See, e.g, Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. REV. 465 (2010) (arguing that scientific evidence from the field of implicit social cognition establishes that colorblindness as a description of human behavior is empirically unsound) ;
269. See, e.g., The Cultural Cognition Project at Yale Law School, http://www.culturalcognition. net (last visited July 24, 2011) ;
270. see also Charles M. Blow, Op-Ed, A Nation of Cowards?, N. Y. TIMES, Feb. 20, 2009, at A21 (citing polling data revealing that "72 percent of whites thought that blacks overestimated the amount of discrimination against them, while 82 percent of blacks thought that whites underestimated the amount of discrimination against blacks").