Discriminatory Intent Requirement: The "Separate but Equal"
Doctrine of the Twenty-first Century?-A Critical
Examination of Felon Disenfranchisement Laws and Related
Government Practices in the United States
Cecilia Zhang Stiber*
TABLE OF CONTENTS
I. IN TRODUCTION ........................................................
347
H. SEGREGATION LAWS IN A CONSCIOUSLY RACIST SOCIETY .......................
355
A . H idden Bondages.............................................
355
B . LegalizingRacism .............................................
357
C. Interest-ConvergenceTheory ......................................
361
Ell. MOVING TO FELON DISENFRANCHISEMENT LAWS ...........................
363
A. HistoricalRoots ofFaciallyNeutralDisenfranchisementLaws ..........
363
B. Modern Neutrality-FelonDisenfranchisementLaws and the War
on D rugs ...................................................
367
C. The New Definitions of "Black Crimes" and Their Effect on
D isenfranchisem ent............................................
368
IV. MAINTAINING THE HIERARCHY ........................................
374
A. DiscriminatoryIntent Requirement inGeneral ..........................
375
B. DiscriminatoryIntent in DisenfranchisementLaws .......................
378
V ANEW VEIL---"SEPARATE BUT EQUAL" AND THE DISCRIMINATORY
INTENT REQUIREMENT ..................................................
383
VI. C ONCLUSION .........................................................
387
I. INTRODUCTION
How far has America come from the days of poll taxes, grandfather clauses, and
literacy requirements?' Recent statistics are quite telling:
*
The author, formerly known as Dilu Cecilia Zhang, graduated cum laude from Boston
College Law School in 2005. She would like to thank Professor Anthony Farley for his insightful
comments and valuable guidance. She would also like to extend her gratitude to Heather Kupcha
and Lisa Wang for their perceptive discussions and resourceful assistance, as well as to her husband,
Jason A. Stiber, for his continuous support
1.
Andrew L. Shapiro, ChallengingCriminalDisenfranchisementUnder the Voting Rights
Act: A New Strategy, 103 YALE L.J. 537, 537-38 (1993) (describing post-Civil War southern state
conventions that introduced voting barriers, such as literacy and property tests, poll taxes,
understanding clauses, and grandfather clauses).
GONZAGA LAW REVIEW
[Vol. 41:2
1.4 million African American men, or 13 percent of the black adult male
population, are disenfranchised, reflecting a rate of disenfranchisement that is
seven times the national average. More than
one-third (36 percent) of the total
2
disenfranchised population are black men.
Ten states disenfranchise more than one in five adult black men; in eight of these
states, one in four black men is permanently disenfranchised.
In Florida and Alabama, 'more than
4 30 percent of all African American men
have lost their rights to vote forever.'
These are the results produced by an American society 134 years after ratifying the
Fifteenth Amendment to its Constitution, which accorded voting rights to all
5 United
States citizens regardless of "race, color, or previous condition of servitude.,
Proponents of felon disenfranchisement laws believe that voting is not a
fundamental right-it is a privilege. 6 Roger Clegg, a supporter of felony
disenfranchisement, maintains that society is not required to ignore someone's
criminal record once he gets out of prison, especially when the record undermines the
ex-prisoner's trustworthiness and loyalty, two characteristics required of voters.7
Christopher P. Manfredi, another proponent, also suggests that protecting the integrity
of a liberal democracy preserves and promotes the civic virtues on which democracy
depends. 8
Thus, disenfranchising ex-felons serves the principle objective of a
2.
See HUMAN RIGHTS WATCH, THE SENTENCING PROJECr, Losing the Vote: The Impact of
Felony
Disenfranchisement
Laws
in
United
States,
1
(Oct.
1998),
http://www.sentencingproject.org/pdtfs/9080.pdf.
3.
Id
4.
Hilary 0. Shelton, Director of Washington Bureau, NAACP, statements at the hearing
on H.R. 906 (The Civic Participation and Rehabilitation Act of 1999) before the Subcommittee on
the Constitution of the House Committee on the Judiciary, 106th Congress (October 21, 1999),
http://www.house.gov/judiciary/shel 102 .htm.
5.
U.S. CoNsT. amend. XV, § 1 ("The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any State on account of race, color, or previous
condition of servitude.").
6.
Roger Clegg, Who Should Vote?, 6 TEX. REV.L. & POL. 159, 174 (2001); see also
Human Rights Watch, supra note 2 ("Once the privilege of wealthy white men, the vote is now a
basic right held as well by the poor and working classes, racial minorities, women and young
adults.").
7.
See Clegg, supra note 6, at 174; see also Note, The Disenfranchisementof Ex-Felons:
Citizenship, Criminality, and "The Purity of the Ballot Box," 102 HARv. L. REv. 1300, 1307-08
(1989) (quoting Washington v. State, 75 Ala. 582, 585 (1884) ("the manifest purpose" of denying
suffrage to ex-convicts is "to preserve the purity of the ballot box, which is the only sure foundation
of republican liberty, and which needs protection against the invasion of corruption, just as much as
against that of ignorance, incapacity, or tyranny.")).
8.
Christopher P. Manfiedi, Judicial Review and Criminal Disenfranchisement in the
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
349
democratic regime "by suspending the right to vote of individuals who have
manifestly demonstrated that they lack those virtues, while simultaneously
reinforcing the principle that citizenship entails responsibilities and duties as well as
rights and privileges." 9 However, to many legal scholars, practitioners, and civil
rights activists, these results are unacceptable.10 To the average American, these
results should cause shock and outrage.
Political entities and courts in the United States have developed constitutional
and judicial interpretative strategies supporting the present day gloom."
Currently,
United States and Canada,60 REv. POL. 277, 294 (1998).
9.
Id
10.
See, e.g., Elena Saxonhouse, Unequal Protection: Comparing Former Felons'
Challenges to Disenfranchisement and Employment Discrimination,56 STAN. L. REv. 1597, 1604
(2004) ("The practice of depriving individuals of the right 'preservative of all rights' long after they
have served their sentences ... raises basic questions of fairness and humanitarian treatment");
Shapiro, supra note 1, at 538 ("Criminal disenfranchisement-the denial of the vote to citizens
convicted of crimes-was the most subtle method of excluding blacks from the franchise."); John R.
Cosgrove, Four New Arguments Against the Constitutionalityof Felony Disenfranchisement,26 T.
JEFFERSON L. REv. 157, 158 (2003) (where the author's primary purpose is to "motivate lawyers
around the country to bring cases of first impression presenting significant argument against the
constitutionality of felony disenfranchisement").
11.
See generallyFLA. CoNsT. art. VI, § 4 ("No person convicted of a felony, or adjudicated
in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until
restoration of civil rights or removal of disability."); IowA CoNST. art. 1I, § 5 ("No idiot, or insane
person, or person convicted of any infamous crime, shall be entitled to the privilege of an elector.");
[T]he following persons are excepted and shall not have the right to vote: 1.
Persons convicted in any court of competent jurisdiction of treason, or felony, or
bribery in an election, or of such high misdemeanor as the General Assembly may
declare shall operate as an exclusion from the right of suffrage, but persons hereby
excluded may be restored to their civil rights by executive pardon; 2. Persons who,
at the time of the election, are in confinement under the judgment of a court for
some penal offense.
KY. CONST. § 145; NEB. CoNsT. art. VII, § 2 ('No person shall be qualified to vote who is non
compos mentis, or who has been convicted of treason or felony under the laws of the state or of
the United States, unless restored to civil rights."); VA. CoNsT. art. II, § 1 ("No person who has been
convicted of a felony shall be qualified to vote unless his civil rights have been restored by the
Governor or other appropriate authority.");
Our analysis begins with the basic principle that a defendant who alleges an equal
protection violation has the burden of proving 'the existence of purposeful discrimination.'
A corollary to this principle is that a criminal defendant must prove that the purposeful
discrimination 'had a discriminatory effect' on him. Thus, to prevail under the Equal
Protection Clause, McCleskey must prove that the decisionmakers in his case acted with
discriminatory purpose.
McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (citations omitted); Vill. of Arlington Heights vs.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) ("Proof of racially discriminatory intent or
purpose is required to show a violation of the Equal Protection Clause.");
[W]e have not held that a law, neutral on its face and serving ends otherwise within
GONZAGA LAW REVIEW
[Vol. 41:2
Florida, Iowa,' 2 Kentucky, Nebraska, and Virginia still permanently disenfianchise13
ex-felons without automatic reinstatement upon the completion of sentence.
Several other states disenfianchise certain categories of ex-offenders while restoring
voting rights to others: Alabama,
Arizona, Delaware, Maryland, Nevada, Tennessee,
4
Washington, and Wyoming. l
States that disenfranchise ex-felons typically implement procedures for
reinstating voting rights.' 5 However, due to the "cumbersome and politically
the power of government to pursue, is invalid under the Equal Protection Clause
simply because it may affect a greater proportion of one race than of another.
Disproportionate impact is not irrelevant, but it is not the sole touchstone of an
invidious racial discrimination forbidden by the Constitution. Standing alone it
does not trigger the rule, that racial classifications are to be subjected to the
strictest scrutiny and are justifiable only by the weightiest of considerations.
Washington v. Davis, 426 U.S. 229, 242 (1976) (citations omitted);
[T]he Supreme Court of [Mississippi] said: 'Within the field of permissible action
under the limitations imposed by the Federal Constitution, the convention swept
the field of expedients, to obstruct the exercise of suffrage by the negro race.' And
further the court said, speaking of the negro race: 'By reason of its previous
condition of servitude and dependencies, this race had acquired or accentuated
certain peculiarities of habit, of temperament, and of character, which clearly
distinguished it as a race from the whites. A patient, docile people; but careless,
landless, migratory within narrow limits, without forethought; and its criminal
members given to furtive [offenses], rather than the robust crimes of the whites.
Restrained by the Federal Constitution from discriminating against the negro race,
the convention discriminates against its characteristics, and the [offenses] to which
its criminal members are prone.' But nothing tangible can be deduced from this. If
weakness were to be taken advantage of, it was to be done 'within the field of
permissible action under the limitations imposed by the Federal Constitution,' and
the means of it were the alleged characteristics of the negro race, not the
administration of the law by officers of the state. Besides, the operation of the
constitution and laws is not limited by their language or effects to one race. They
reach weak and vicious white men as well as weak and vicious black men, and
whatever is sinister in their intention, if anything, can be prevented by both races
by the exertion of that duty which voluntarily pays taxes and refrains from crime.
It cannot be said, therefore, that the denial of the equal protection of the laws arises
primarily from the constitution and laws of Mississippi; nor is there any sufficient
allegation of an evil and discriminating administration of them.
Williams v. Mississippi, 170 U.S. 213, 222 (1898).
12. On July 5th, 2005, Iowa Governor Tom Vilsack signed an executive order restoring
voting rights to convicted felons once their sentences has been served. Because the action is an
executive order, not a law, future governor may overturn the order with a subsequent executive order,
http://www.govemor.state.ia.us/news/2005/july/july0405_l.html. (last visited Oct. 21, 2005).
13.
RIGHT To VOTE, At the State Level, http://www.righttovote.org/state.asp (last visited Oct.
21,2005).
14.
See id.
15.
Marc Mauer, Felon Voting Disenfranchisement."A Growing Collateral Consequence of
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
351
challenging" nature of these procedures, the possibility for ex-prisoners to regain
voting rights is often illusory.16 In some instances, states require a gubernatorial
pardon or order; in others, a pardon or order from the parole board is necessary.' 7 In
Mississippi, an ex-convict who wants to vote must either secure an executive order
from the governor or get a state legislator to introduce a bill on his behalf, convince
two-thirds of the legislators in each house to vote for it, and have it signed by the
governor. 1 In Florida, an ex-felon must wait ten years after completion of sentence
before seeking a gubernatorial pardon and restoration of voting rights.' 9
Table A 20 illustrates the impact of felon disenfranchisement laws on black men
versus the impact of these laws on total population in states where permanent
disenfranchisement laws are still intact.
Mass Incarceration,12 FED. SENT. R. 248,2 (2000).
16.
Id.
Application for executive clemency-When any person intends to apply for
remission of any fine or forfeiture or the commutation of any punishment, or for
pardon or restoration of civil rights, he or she shall request an application form
from the Parole Commission in compliance with such rules regarding application
for executive clemency as are adopted by the Governor with the approval of two
members of the Cabinet. Such application may require the submission of a
certified copy of the applicant's indictment or information, the judgment
adjudicating the applicant to be guilty, and the sentence, if sentence has been
imposed, and may also require the applicant to send a copy of the application to
the judge and prosecuting attorney of the court in which the applicant was
convicted, notifying them of the applicant's intent to apply for executive clemency.
FLA. STAT. § 940.03 (2005).
17.
Mauer, supranote 15, at 2; see also RIGHT TO VOTE, supra note 13 (In Alabama, eligible
ex-felons "can apply for a certificate of eligibility from the state parole board"; in Florida, former
felons may apply for a pardon or seek the restoration of voting rights from the Board of Executive
Clemency; in Virginia, "any former felon seeking to regain their right to vote may apply for a
'removal of political disabilities' certificate from the Governor five years after the completion of their
sentence"; in Arizona, "[p]ersons who have been convicted of two or more felonies may restore their
right to vote through a court process or by seeking a pardon"; in Iowa, Kentucky, Maryland, and
Wyoming, an eligible former felon seeking to regain the right to vote must apply for a pardon from
the Governor).
18.
HuMAN RIGHTS WATCH, supra note 2, at 6; LAwYERS' COMMITrEE FOR CIvIL RIGHTS
UNDER
LAw,
Restore
Your
Right
to
Vote
in
Mississippi,
http://www.lawefscomm.org/epO4/50states/mississippi.pdf (last visited Dec. 7, 2004).
19.
HUMAN RIGHTS WATCH, supra note 2, at 6; see also FLA. STAT. § 940.03; FLA. RuLES OF
ExECuTrvE CLEMENCY, at http://www.state.fl.us/fpc/Policies/ExecClemency/ROEC06202003.pdf
(last visited Aug. 24, 2005).
20. See HuMAN RIGHTS WATCH, supra note 2, at 8-10 (Table A is created by author as a
refined representation of the reference cited.).
GONZAGA LAW REVIEW
[Vol. 41:2
Table A-Disenfranchised Felons by State
Percentage of
adult population
State
Percentage of black men
disenfranchised
disenfranchised
Florida
Iowa
Kentucky
Nebraska
Virginia
5.9%
2.0%
0.8%
1.0%
5.3%
31.2%
26.5%
7.7%
10.2%
25.0%
These alarming statistics clearly trace the color line.2 1 For example, in all these
states, the likelihood that a black man will become disenfranchised by state
disqualification statutes is at least four times that of the total population.22 In some
cases, it is as high as tenfold.
What has the United States judiciary made of these results traceable by race?
The Supreme Court concluded that Section 2 of the Fourteenth Amendment 4 allows
states to disenfranchise convicted felons who have completed their sentences and
paroles.2 5 In Richardson v. Ramirez,2 6 the Supreme Court upheld a California felon
disenfranchisement law by concluding that Section 2 of the Fourteenth Amendment
enabled such state-level rule making, thereby allowing the state law to avoid equal
27
protection scrutiny demanded by the first section of the same amendment.
See id
21.
22. See id. In Mississippi, the percentage of black men disenfranchised is approximately
four times that of the percentage of adult population disenfranchised. See HuMAN RiGHTs WATCH,
supranote 2, at 8-10.
23. Id In Iowa and Nebraska, the percentage of black men disenfranchised is approximately
ten times that of the percentage ofadult population disenfranchised. Id
24. U.S. CoNsT. amend. XIV, § 2 provides:
But when the right to vote at any election for the choice of electors for President and Vice
President of the United States, Representatives in Congress, the Executive and Judicial
officers of State, or the members of the Legislature thereof, is denied to any of the male
inhabitants of such State... exceptforparticipationin rebellion, or other crime, the basis
of representation therein shall be reduced. (emphasis added).
Richardson v. Ramirez, 418 U.S. 24, 54 (1974) (holding that the exclusion of felons
25.
from the vote has an affirnative sanction in Section 2 of the Fourteenth Amendment).
26. -d
27. Id.; see also THE SENTENCING PROJECT, Felony DisenfranchisementLaws in the United
Law,"
at
Under
State
Disenfranchised
of
Felons
"Categories
States,
http://www.sentencingproject.org/pdfs/1046.pdf (indicating that currently, California restores the
right to vote for felons after release from incarceration and completion ofparole).
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
353
Alternatively, courts have held felon disenfranchisement laws to be constitutional
unless explicit discriminatory intent is shown by the challengers of these laws. 28 In
City of Mobile v. Bolden,29 the Court reiterated its position on facially neutral laws
that "official actions will not be held unconstitutional solely because it results in a
racially disproportionate impact."3 Accordingly, the court concluded, "where the
character of a law is readily explainable on grounds apart from race . . .
disproportionate impact alone cannot be decisive, and courts must look to other
evidence to support a finding of discriminatory purpose."3 ' The Supreme Court
subsequently applied this intent requirement in Hunter v. Underwood in order to
invalidate an Alabama disenfranchisement law with the proof of an explicit racist
purpose.33
Logically, the heavy legal burden carried by the discriminatory intent
requirement is appropriate for a society that is aware of its racist components, but not
for a community infused with hidden unconscious remnants of its racist past.34 In
other words, although the intent requirement would have invalidated many explicitly
prejudicial social programs in post-Civil War America, it remains of little help to
victims of modem unconscious racism because present-day discriminatory
underpinnings, largely, go undetected.3 5
28.
See generally Cotton v. Fordice, 157 F.3d 388, 391-92 (5th Cir. 1998); Wesley v. Collins,
791 F.2d 1255, 1262 (6th Cir. 1986); Jones v. Edgar, 3 F. Supp. 2d 979,981 (C.D.I1. 1998).
29. City ofMobile v. Bolden, 446 U.S. 55, 70 (1980).
Id. (quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 26430.
65 (1977)).
City of Mobile,446 U.S. at 70.
31.
Hunter v. Underwood, 471 U.S. 222 (1985).
32.
33.
Id at 228-29. The Court stated that:
Although understandably no 'eyewitnesses' to the 1901 proceedings testified, testimony
and opinions of historians were offered and received without objection. These showed
that the Alabama Constitutional Convention of 1901 was part of a movement that swept
the post-Reconstruction South to disenfranchise blacks. The delegates to the all-white
convention were not secretive about their purpose. John B. Knox, president of the
convention, stated in his opening address: 'And what is it that we want to do? Why it is
within the limits imposed by the Federal Constitution, to establish white supremacy in this
State.
Id (citations omitted); see Tanya Dugree-Pearson, Disenfranchisement-ARace NeutralPunishment
for Felony Offenders or A Way to Diminish the Minority Vote?, 23 HAMLINE J. PUB. L. & POL'Y 359,
394(2002).
34.
See Charles R. Lawrence, The Id, the Ego, and Equal Protection: Reckoning with
UnconsciousRacism, 39 STAN. L. REV. 317, 319-44 (1987).
35. See id.; see also McCleskey v. Kemp, 481 U.S. 279,292 (1987) (holding that petitionerdefendant did not satisfy the burden of proving discriminatory purpose because a study showing
racial disparity in death penalty imposition in Georgia failed to establish that decision makers in
defendant's case acted with discriminatory purpose in violation of equal protection clause);
Washington v. Davis, 426 U.S. 229, 242 (1976) (ruling that a civil service employment entry exam
GONZAGA LAW REVIEW
[Vol. 41:2
In Scenes of Subjection, Saidiya Hartman profoundly illustrates the plight of
newly freed black men in the late 1800s, by citing civil and political disabilities
reinforced by Whites against black citizens in various areas of life, such as labor
discipline, domestic structure, and public facilities. 36 She argues that "[w]hile the
inferiority of blacks was no longer the legal standard, the various strategies of state
racism produced a subjugated and subordinate class within the body politic, albeit in
neutral or egalitarian guise." 37 Consequently, "racial slavery was transformed rather
than annulled. 3 8 Her observations keenly reflect the historical reality rendered by
the Supreme Court's upholding of the "separate but equal" doctrine enumerated in
Plessy v. Ferguson.39 Today, with the emergence of the discriminatory intent
requirement, Hartman's political and legal constructions of late nineteenth-century
America are still echoed in the outcomes of modem Supreme Court decisions such as
City ofMobile4 0 and Washington v.Davis.4
This article argues that modem disenfianchisement laws, like other facially
neutral laws with discriminatory impacts, reveal a parallelism between enforcing the
"separate but equal" doctrine in a self-consciously racist society and applying the
discriminatory intent requirement in the unconsciously racist culture of today's
America.42
The article begins by examining the historical reality of status-racisM 43 in
various areas of freedmen's life under the deceptive appearance of a guarantee for
freedom, equality, and justice at the dawn of post-Civil War era.44 It traces the roots
of facially neutral disenfranchisement laws in the United States back to the post-
with disproportionate impact was constitutional); United States v. Clary, 34 E3d 709, 712 (1994)
[hereinafter ClaryI]] (deciding that penalty for crack cocaine, which is one-hundred times greater
than penalty for powder cocaine, did not deprive black defendants of equal protection).
36.
SAIDiYA V HARTMAN, SCENES OF SUBJECnON-TERROR, SLAvERY, AND SELF-MAKiNG IN
NINETEENTH-CENTURYAMERICA 10 (Oxford University Press 1997).
37. Id.
38.
Id
39. See generally Plessy v. Ferguson, 163 U.S. 537 (1896).
40.
City of Mobile,446 U.S. at 73-74 (holding that Mobile's at-large electoral system did not
violate the rights of the city's black voters because plaintiff did not sufficiently prove an
unconstitutionally discriminatory purpose).
41.
See generally Washington, 426 U.S. at 242-46 (holding that the requirement for law
enforcement candidates to take "Test 21," an employment qualification examination developed by
the Civil Service Commission designed to test verbal ability, vocabulary, reading and comprehension,
was not unconstitutional because the test was neutral on its face, and discriminatory impact alone
does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny).
42. See discussion infra Part V-VI.
43. Neil Gotanda, A Critique of "Our ConstitutionIs ColorBlina "44 STAN. L. REv. 1, 3740 (1991) (the "status-race concept" was most famously adopted by Chief Justice Taney in Dred
Scott v. Sandford, 60 U.S. 393 (1957)).
44.
See discussion infra Parts IIA-C.
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
355
Reconstruction era during which Southern states rebelled against the forced
ratification of the Fifteenth Amendment by deploying hidden agendas in election
programs to exclude Blacks from the ballot box.45 Next, the article argues that,
juxtaposed with the tactics of the "War on Drugs" and the discriminatory intent
requirement, modem disenfranchisement laws are no less racially-biased than the
resistant southern statutes of the early 1900s.
This article exposes the abduction of civil rights from a racially-identifiable
group of outcast citizens who have continuously been expelled from the civil and
political citizenry by the very laws which promised to abrogate their desperate
conditions. In conclusion, the article confirms some critical race theorists' notions
that the unconsciousness in modem-day racism allows the permanence of racism in
America.4 6 It also creates a dilemma in which the very same rights for which an
under-privileged minority group struggled relentlessly, ultimately trap the victimized
with no more tales to tell and no more appeals to make.
II. SEGREGATION LAWS IN A CONSCIOUSLY RACIST SOCIETY
A. Hidden Bondages
The Emancipation Proclamation and the passage of the Thirteenth Amendment,
declaring the illegality of slavery in United States, reasonably gave slaves hope that
they would be, once and for all, freed from their shameful bonds.47 However, what
were amorphous forms of slavery enforced with unbreakable badges of
awaited them
48
inferiority.
In the wake of the post-Civil War era, educational books were written and
published to cultivate the freed men into productive and rational human beings.4 9
Policy makers believed that "the formerly enslaved needed to be trained as free
laborers since they had never worked under conditions of consent and contract and
were ignorant of the principles of self-discipline and restraint." 50 Practical manuals,
See discussion infra Part II.A.
45.
See Lawrence, supra note 34, at 322-35; see generally DERRICK BELL, FACEs AT THE
46.
BorToM OF THE WELL: THE PERMANENCE OF RACISM 4-13 (BASIc BOOKs 1992).
47.
U.S. CONsT. amend. XIII, § 1 ("Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction."); EMANCIPATION PROCLAMATION, 12 Stat. 1268
(1863); see HARTMAN, supranote 36, at 125.
See HARTMAN, supranote 36, at 125.
48.
49.
Id.at 128-34; REv. IsAAC W. BRINCKERHOFF, ADVICE TO FREEDMEN (1864); JARED BELL
WATERBURY, FRIENDLY COuNsELs FOR FREEDMEN (American Tract Society, 1864); HELEN E.
BROWN, JOHN FREEMAN AND HIS FAMILY (American Tract Society, 1864); CLINTON B. FisK, PLAIN
COUNsELS FOR FREEDMEN, (1866).
HATMAN, supranote 36, at 127.
50.
GONZAGA LAW REVIEW
[Vol. 41:2
such as Advice to Freemen, Friendly Counselsfor Freedmen,John Freemanand His
Family, and Plain Counselsfor Freedmen, were designed to impart practical advice
to black adults as well as children with lessons in areas such as labor, conduct,
consumption, hygiene, marriage, home decorating, chastity, and prayer.51
Appropriate conduct for former slaves was defined through the eradication of
"indecorous, proud, and seemingly reckless behavior," and with the adoption of
virtues in "humility, responsibility, and restraint. ' 5 2 These manuals revealed the
inherent white supremacy that social activists felt as they confidently imputed their
notions of proper citizenry and rational humanity onto a new class of undeserving
citizens whom they 3thought lacked the requisite characteristics to survive in a
civilized community.
The texts also hid new forms of bondages that the freed slaves were called to
endure.54 The visible oppressions of formal slavery were inherited in ostensible
economic opportunities as black men and women began to bear the burden of earning
for survival.55 For example, a passage from Advice to Freemen called on its target
audience to "bend your back joyfully and hopefully to the burden."5' 6 Similarly, in
John Freeman and His Family, author Helen E. Brown wrote that the body was
"meant to work"; she further explained that "some must work with the hands, while
others work with the head... Everyone must be willing to do his part, just where he
is needed most."57 This line of social indoctrination unveiled a pre-established labor
classification that followed the race line. 58 What Blacks enjoyed, at the onset of their
emancipation, was not the apparent liberty and equality promised in the Civil War
Amendments, but a social framework based on their cultural inferiority and legal
51.
52.
Id. at 128.
Id.
53.
See id. at 127-35; CHARLES
GEORGE, LIFE UNDER THE JIM CROW LAWS
9-10 (Lucent
Books 2000).
Since blacks were never considered equal to whites, they were expected to call all
whites 'masters' and 'mistress,' speak only when spoken to, and never look a white
person directly in the eye. Thus, a tradition of control of one race by another was
established. Because most white southerners believed in the superiority of the
white race, they insisted that the long-standing social customs continue. As
recently as the 1960s, blacks in the South were expected to address white people
by 'Mrs.,' 'Mrs.,' or 'Miss,' but white called blacks by their first names. Blacks
were also supposed to step aside when whites passed by them.
Id
54.
HARTMAN, supra note 36, at 125-37 (including, "debt peonage, a reign of terror, nearly
one-hundred years of remaining separate and resolutely unequal, second class citizenship, and an as
yet realized equality.").
55.
Id
56.
57.
58.
REv. IsAc W. BRNcERHoFF,ADvic To FREEmAN (1864).
Id.(quoting HELEN E. BROWN, JOHN FREEMAN AND His FA ILY).
See HARTMAN, supra note 36,at 135.
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
357
illegitimacy. 59 Political and legislative movements during the same period of time
failed to renounce these practices; in fact, they legitimized the unequal social sphere
and perpetuated the pattern of status-racism by implementing
discriminatory laws
60
that flew in the face of the promises of liberty and equality.
B. Legalizing Racism
In a landmark decision, the Supreme Court in Plessy v. Ferguson condoned and
supported the practice of racial stigmatism through the "separate but equal"
doctrine. 61 Louisiana enforced the notion of black inhumanity and codified the legal
inferiority of freed slaves by forcing black citizens to ride in separate coaches on a
train.62 Homer Plessy, a citizen who appeared to be White but was of one-eighth
African-American heritage, attempted to ride a railroad car reserved for Whites in an
effort to protest the indignity of segregation and to challenge its validity.6 3 Ironically,
in upholding the Louisiana segregation law, Justice Brown justified that the law
actually denoted equality because separation in public transportation did not imply
the inferiority of one race to the other.64 Specifically, he concluded that if "the
enforced separation of the two races stamps the colored race with a badge of
inferiority,"
it is "solely because the colored race chooses to put that construction
65
upon it."
What Justice Brown failed to overcome, however, is the inherent conflict in his
analysis of the notion of whiteness as "property" and the negative stigma produced by
the segregation law.66 While Justice Brown rejected that segregation fixed a badge of
59. See id at 165; GEORGE, supra note 53, at 13 (explaining that Black Codes were passed
to restrict
Blacks'civil
rights; exemplary laws prohibited Blacks from interracial marriage,owning or
possessing fire
anns, serving on the juries, or testifying against white men); JERROLD M. PACKARD,
AMERICAN NIGHTMARE: THE HISTORY OF JIM CROW 164 (St. Martin's Press 2002).
Slave-era etiquette of interracial relations did not end with the Civil War. If
anything, it calcified. Over the additional one hundred years that racism held
much of American in thrall, the etiquette of Jim Crow became an unbendingly
enforced system of social control, a strict mode of life throughout the South, its
tenets observed by whites and black just as strictly as if it were written in the
constitutions and statute books of these white supremacist states.
Id.
60.
61.
See HARTMAN, supranote 36,at 180-83; infra note 67 and accompanying text.
Plessy, 163 U.S.at551-52.
62.
63.
Id at 540.
DERRICK BELL, StLENT COVENANs--BROWN v. BOARD OF EDUCATION AND THE
UNFULFILLED HOPES FOR RACIAL REFORM 12 (Oxford University Press 2004).
64.
See Plessy, 163 U.S. at 551.
65.
Id
66.
See id at 549; HARVEY FIRESIDE, PLESsY V.FERGUSON: SEPARATE BUT EQUAL? 104-07
(EnslowPublishers, Inc. 1997).
GONZAGA LAW REVIEW
[Vol. 41:2
inferiority on the ostracized citizens in Louisiana, he also hypothesized that "if
[Plessy] be a white man, and assigned to a colored coach, he may have his action
for
67
damages against the company for being deprived of his so-called 'property."'
Common sense should lead us to conclude that if sitting in a colored coach is not
a badge of inferiority, then a white man assigned to that coach has not incurred any
damages, to his reputation or economically, and should not have any claims for legal
actions. Thus, the very fact that a white man was entitled to collect damages in this
instance proves the notion that to be assigned to a colored coach was indeed a badge
of inferiority. To be sure, southem legislators largely ignored this inconsistency.
Lawmakers capitalized on the legislative innocence later proclaimed in the
68
Plessy opinion.
Justice Brown defended the legislature's decision to segregate
public transportation on the ground that "Legislation is powerless to eradicate racial
The Plessy decision made it appear reasonable for states to punish citizens of
different races who engaged in public activities, such as traveling, schooling, or
enjoying entertainment together. There were at least four absurd premises behind
that legal conclusion. First, as the light skin of Plessy showed, race was not a
scientific concept, since human skin color comes in a rainbow of shades rather
than just black and white. Racist legislators tried to avoid any ambiguity about
race by defining it in terms of ancestry. Until the 1980s, Louisiana classified those
with a thirty-second or more of their lineage nonwhite as black. How many of us
could prove the racial identity of each great-great-great-grandparent? ...Fourth,
as the Supreme Court permitted segregation in the social arena, it claimed that civil
rights of African Americans would have full constitutional protection. It soon
become apparent that an African American would not be given respect as a voter or
jury member while treated publicly as a social outcast.
Id.
67. See Plessy, 163 U.S. at 549.
68.
FIRESIDE, supra note 66, at 100-02.
[T]he [Plessy] decision was found to put 'the official stamp of the highest court in
the country upon the miserable doctrine that several millions of American citizens
are of an inferior race and unfit to mingle with citizens of other races.' The
publication for a black church saw Plessy as virtually allowing any discriminatory
state law (unless it took away the rights of African Americans to vote or to serve
on juries) 'on the ground that race conflict will arise, if the prejudices of large
numbers of the white race are thwarted.' . . . The Louisiana segregation law of
1890 followed on the heels of similar acts in Tennessee (1881), Florida (1887),
Mississippi (1888), and Texas (1889). In 1891, railway travel was segregated in
Alabama, Kentucky, Arizona and Georgia. In the wake of the Plessy decision,
South Carolina (1898), North Carolina (1899), Virginia (1900), Maryland (1904),
and Oklahoma (1907) were added to the list of Jim Crow states. Segregated
transportation had been known in the South long before Plessy, but the Supreme
Court decision now put the federal government's authority behind state laws that
made it a crime to sit in cars or compartments outside of those reserved for one's
'race'.
Id (citations omitted).
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DISCRIMINATORY INTENT REQUIREMENT
359
instincts, or to abolish distinctions based upon physical differences... [i]f one race be
inferior to the other socially, the Constitution of the United States cannot put them
upon the same plane." 69 The Supreme Court's idea of legislative irrelevance
to
70
conscious racism paved the way for states to create more discriminating laws.
Citing the maintenance of general prosperity and public well-being, states
invoked their police power to enforce statutes that placed restraints on black citizens'
personal freedom. 71 "The legitimate exercise of the state's police power superseded
the matter of individual civil rights and licensed this violation of individual rights on
behalf of a greater good."'72 In this sense, courts as well as several states used the
pronouncement that "separate but equal" was a lawful and socially unavoidable
doctrine in order to justify subjugating a group of purportedly inferior and undesirable
citizens. 73 As it appeared, in a society defined by racial differences, equality was
believed to be achieved as long as Blacks kept to their own sphere and were afforded
the same treatments within that social space.74 Thus, the "separateness" in the
69. Plessy, 163 U.S. at 552.
70. See CONG GLOBE, 39th Cong., 1st Sess. 505 (1866) (during congressional debate of
state police power in 1866, one senator suggested that the proper exercise of police power means
"legislating in relation to the prejudices of a people ...
not to legislate against their prejudices."); see
also GEORGE, supra note 53, at 9-10.
The Jim Crow Laws were, in essence, statutes demanding the total segregation of
blacks from whites and, therefore, affected almost every aspect of daily life for
both races. They dictated segregation in churches, schools, housing, jobs, and
public places. Blacks were segregated on all forms of public transportation, in
sports and recreation, as well as in hospitals, orphanages, prisons, and asylums.
Segregation was eventually extended to funeral homes, morgues, and cemeteries.
Id
71.
HARTMAN, supra note 36, at 198-99.
72.
Id at 198.
73.
See id.
at 193-94.
74. See Plessy, 163 U.S. at 551-52.
If the two races are to meet upon terms of social equality, it must be the result of
natural affinities, a mutual appreciation of each other's merits, and a voluntary
consent of individuals. ... 'This end can neither be accomplished nor promoted by
laws which conflict with the general sentiment of the community upon whom they
are designed to operate. When the government, therefore, has secured to each of
its citizens equal rights before the law, and equal opportunities for improvement
and progress, it has accomplished the end for which it was organized, and
performed all of the functions respecting social advantages with which it is
endowed.' Legislation is powerless to eradicate racial instincts, or to abolish
distinctions based upon physical differences, and the attempt to do so can only
result in accentuating the difficulties of the present situation. If the civil and
political rights of both races be equal, one cannot be inferior to the other civilly or
politically. If one race be inferior to the other socially, the constitution of the
United States cannot put them upon the same plane.
GONZAGA LAW REVIEW
[Vol. 41:2
"separate but equal" doctrine consumed and veiled the inequality, which was
accepted by Whites as an inherent outcome of Blacks' inferiority.7
Plessy revealed the delusion in the freedom promised in the Thirteenth
Amendment. 76 By pennitting the separation of Whites and Blacks, the Supreme
Court nullified the constitutional guarantee of freedom and provided legal support for
the idea that "the Thirteenth Amendment did not confer basic civil rights to the
formerly enslaved,' 77 but merely abolished chattelism and a domestic relation.78 This
argument stems from the view that slavery was a private relationship between two
persons--the master and
the slave-rather than a public institution subject to
79
government regulation.
Thomas Hendricks, a Democratic Senator from Indiana and Vice President under
Grover Cleveland, in a debate on the Freedmen's Bureau during the 39th Congress
explained:
What is slavery? It is not a relation between the slave and the State; it is not a
public relation; it is a relation between two persons whereby the conduct of the
one is placed
under the will of the other. It is purely and entirely a domestic
80
relation.
To former slave owners who viewed slavery in a purely domestic context, the only
rational effect of the Thirteenth Amendment was to sever the forced tie between slave
and master-not to grant the privileges of citizenry to the former slaves. 8' Thus, even
75.
See GEORGE, supra note 53, at 10-11.
Overall, whites felt, black would get along fine as long as they remember 'their
place.' ... Jim Crow Laws were an attempt by southern whites in the late 1800s
and early 1900s to return blacks to their status of inferiority and servitude without
actually calling it slavery. Behind this attempt was a belief that had existed for
decades: Blacks, as a race, were inferior to whites.
Id
76.
See Plessy, 163 U.S. at 542.
77.
HARrMAN, supra note 36, at 173-74; see Plessy, 163 U.S. at 542.
78.
See HARrMAN, supranote 36, at 174.
79.
See id.
at 173-74.
80.
CONG GLOBE, 39th Cong., 1st Sess. 318 (1866).
81.
SeeHARTMAN, supranote36,at 174.
[I]f the Thirteenth Amendment conferred no new rights and only abolished 'mere
chattelism,' then blacks in effect were denied the privileges of citizenship. As
might be expected, advocates of this position contended that the republic was a
white man's government and that, as Dred Scott held, blacks were neither
embraced nor included in the 'person' of the Constitution. If the Thirteenth
Amendment only liberated the slave from his master, then blacks occupied the
doubtful position of being free but without the basic rights of citizenship.
Id.;
see also Dred Scott v. Sanford, 60 U.S. 393, 413 (1856) (holding that free negroes were not
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
though the Thirteenth Amendment abolished slavery, it 82
did not do away with statusracism in the consciously racist society of the late 1800s.
C. Interest-Convergence Theory
Perhaps the illusory guarantee of freedom was not ironic. The perpetuation of
status-race, in view of the abolition of slavery and the passage of the Civil War
Amendments, harmonizes with Derrick Bell's interest-convergence theory.83 Bell
proposes the notion that "black rights are recognized and protected when and only so
long as policymakers perceive that such advances will further interests that are their
84
primary concem."
Contrary to what some former slaves believed when the Emancipation
Proclamation was issued, the North, in freeing the slaves, did not intend to end
slavery, but rather to preserve the Union.85 Abraham Lincoln, in a letter to Horace
Greeley professed that his "paramount object... [was] to save the Union, and [was]
not either to save or to destroy slavery." 86 He went on to explain:
If I could save the Union without freeing any slaves, I would do it; and if I could
save it by freeing all the slaves, I would do it; and if I could save it by freeing
citizens within the meaning of the United States Constitution); CONG GLOBE, 39th Cong., 1st Sess.
499.
82.
HARTMAN, supra note 36, at 174.
83.
BELL, supranote 63, at 49-58.
84.
Id. at 49.
85.
Id.at 53; see KENNETH M. STAMPP, AND THE WAR CAME 181, 184, 206 (Louisiana State
University Press 1970). Regarding President Lincoln's pre-Civil War attitudes toward issues of
slavery and Southern secession, the author explained:
To be sure, he was no apologist for Negro servitude; and he had whole heartedly endorsed
the Republican demand that it be confined to its present limits.... Not only did he confess
the right of Southerners to hold their human property, but he admitted an obligation to
respect the fugitive-slave law and denied any belief in racial equality. His position was, in
fact, the lowest common denominator of the Republican antislavery creed.... He was too
much of a nationalist and believed too thoroughly in the indestructibility of the Union to
pay it even the lip service that some did. Nothing stood out more distinctly in the record
of the President-elect than his conviction that peaceful disunion was utterly impossible.
Id. (citation omitted). Further, on the purpose of Civil War, the author notes: "Republicans fully
understood that the Union must be saved to make their future secure. Some of Lincoln's followers
evidently believed that a war for the Union promised other political benefits. It appeared to many, in
fact, as the only program that could hold their organization together." Id. at 206 (footnotes omitted).
86.
Letter to Horace Greeley (Aug. 22, 1862), THE COLLECIED WORKS OF ABRAHAM
LINCOLN VOL. V 388 (Roy P.Basler ed., Rutgers Univ. Press 1953).
GONZAGA LAW REVIEW
[Vol. 41:2
some and leaving others alone, I would also do that. What I do about
87 slavery
and the colored race, I do because I believe it helps to save the Union.
In severing ties between slaves and their masters, lawmakers allowed freedom to
former slaves only to the extent necessary to maintain national unity. 88 Ending the
immorality of forced labor and racial oppression was only incidental to the higher
priority of the dominating class of citizens, rather than an intended outcome. 8 9 Thus,
90
the Thirteenth Amendment itself, confirmed by subsequent legal interpretations,
only freed slaves from their masters, and did not confer any tangible rights to former
slaves or institute any further positive changes in their social status. 91 Moreover, it
follows, from the interest-convergence theory, that if continued subjugation of former
slaves stabilized a national base, then perpetuation 9of
such was unavoidable, justified,
2
and welcomed, regardless of its moral repugnance.
Public recognition that the Thirteenth Amendment functioned only to abolish
slavery without an affirmative grant of any meaningful civil rights, along with the
legal confirmation that the doctrine of "separate but equal" afforded the equality
guaranteed by the Fourteenth Amendment, sent a message to southern legislatures
that there were ways to maintain a racial hierarchy within the bounds of the
Constitution. 93 The public and the courts gave southern legislatures a necessary
87.
Id.
88.
See id.
89.
See id.
90.
Plessy, 163 U.S. at 542; McCabe v. Atchinson, Topeka & Santa Fe Ry. Co., 235 U.S.
151 (1914) (held that Oklahoma's "separate coach law" was constitutional under the "separate but
equal" doctrine); Cumming v. County Bd. of Educ., 175 U.S. 528 (1899) (affirmed that Richmond
County Board of Education's maintenance of a school system exclusively for white students did not
deprive black plaintiffs the equal protection of the law).
91.
92.
93.
SeeHARTMAN, supranote36, at 151.
See BELL, supra note 63, at 47-58.
See supra note 67 and accompanying text; C. VANN WOODWARD, THE STRANGE CAREER
OF JIM CRow 83-84 (3d ed. 1974).
The standard devices for accomplishing disfranchisement on a racial basis and
evading the restrictions of the Constitution were invented by Mississippi, a pioneer
of the movement and the only state that resorted to it before the Populist revolt
took the form of political rebellion. Other states elaborated the original scheme
and added devices of their own contriving, though there was a great deal of
borrowing and interchange of ideas throughout the South. First of all, the plan set
up certain barriers such as property or literacy qualifications for voting, and then
cut certain loopholes in the barrier through which only white men could squeeze.
The loopholes to appease (though not invariably accommodate) the
underprivileged whites were the 'understanding clause,' the 'grandfather clause,'
or the 'good character clause.' Some variation of the scheme was incorporated
into the constitutions of South Carolina in 1895, Louisiana in 1898, North Carolina
in 1900, Alabama in 1901, Virginia in 1902, Georgia in 1908, and Oklahoma in
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
cushion of support to minimize Blacks' civil and political participation through the
implementation of various
explicitly racist programs, including felon
94
disenfranchisement laws.
i. MOVING TO FELON DISENFRANCHISEMENT LAWS
A. HistoricalRoots of FaciallyNeutralDisenfranchisementLaws
The history of felon disenfranchisement is a familiar tale of diminution of black
political power.95 It was a continuation of the expanding southern states' rights that
limited the development
of black citizenry through legal maneuvers exemplified and
96
condoned in Plessy.
After the congressional enactment of the Fifteenth Amendment in 1870, the
federal government demanded its ratification as a condition of readmittance for the
few southern states that had yet to be readmitted to the Union. 97 The forced
acceptance ultimately guaranteed passage of the amendment.9 8 However, passage of
this constitutional amendment did not provide the necessary security to ensure that
1910. The restrictions imposed by these devices were effective in decimating the
Negro vote, but in addition all these states as well as the remaining members of the
old Confederacy-Florida, Tennessee, Arkansas, and Texas-adopted the poll tax.
With its cumulative features and procedures artfully devised to discourage
payment, the poll tax was esteemed at first by some of its proponents as the most
reliable means of curtailing the franchise-not only among the Negroes but among
objectionable whites as well.
Id
94.
See supra note 68 and accompanying text; infra notes 210, 212 and accompanying text.
95.
See Williams v. Mississippi, 170 U.S. 213 (1898) (deciding that Mississippi's 1890
disenfranchisement and voter qualification laws cannot be held to violate the Fourteenth Amendment
merely based on a showing that they may operate as a discrimination against Blacks, without proof
of an actual discrimination in the case under consideration); RiCHARD WORMSER, THE RISE AND FALL
OF JIM CRow 23 (St. Martin's Press 2003).
In 1869, Congress tried to give additional support to black voters by passing the
Fifteenth Amendment. On the surface, the amendment prohibited federal and state
governments from depriving any citizen of the vote on racial grounds, . . . . The
amendment, ratified in 1870, contained many loopholes. It failed to make voting
requirements universal and protect the rights of the blacks to run for office and or
sit on juries. Nor did the amendment prohibit literacy tests, poll taxes, and
educational testing as requirement for voting.
Id
96.
Plessy, 163 U.S. at 551.
97.
BEL,supranote 63, at 57-58; U.S. CONST. amend. XV, § 1("The right of citizens of the
United States to vote shall not be denied or abridged by the United States or by any State on account
of race, color, or previous condition of servitude.").
98.
Bell, supra note 63, at 57-58.
GONZAGA LAW REVIEW
[Vol. 41:2
black citizens would actually enjoy suffrage. 99 The categorization of "black crimes"
was legitimized under the guise of moral qualifications, translated through legal
definitions. 100 A number of state constitutions were ratified and went unchallenged
after the passage of the Fifteenth Amendment.
The 1890 Constitution of Mississippi was an example in which "[w]ithin the
field of permissible action under the limitations imposed by the federal constitution,
the [state] convention swept the circle of expedients to obstruct the exercise of the
franchise by the negro race."' ' 1 In Ratcliff v. Beale, a state judge further explained
what the "circle of expedients" entailed:
By reason of its previous condition of servitude and dependence, [the negro]
race had acquired or accentuated certain peculiarities of habit, of temperament,
and of character, which clearly distinguished it as a race from that of the
whites-a patient, docile people, but careless, landless, and migratory within
narrow limits, without forethought, and its criminal members given rather
furtive offenses than to the robust crimes of the whites. Restrained by the
federal constitution from discriminating against the negro race, the convention
discriminated against10its
characteristics and the offense to which its weaker
2
members [are] prone.
Consequently, convictions of "bribery, burglary, theft, arson, obtaining money or
goods under false pretense, perjury, forgery, embezzlement or bigamy," which were
all thought to1°3be typical "black crimes," became sources of voter disqualifications in
Mississippi.
99. Id.at 58.
100. Shapiro, supra note 1, at 540-43.
101. Ratcliffv. Beale, 20 So. 865, 868 (1896); Miss. CONsT. of 1890, art. XII, § 241.
Every male inhabitant of this State, except idiots, insane persons and Indians not
taxed, who is a citizen of the United States, twenty-one years old and upwards,
who has resided in this State two years, and one year in the election district, or in
the incorporated city or town, in which he offers to vote, and who is duly
registered as provided in this article, and who has never been convicted of bribery,
burglary, theft, arson, obtaining money or goods under false pretenses, perjury,
forgery, embezzlement or bigamy, and who has paid, on or before the first day of
February of the year in which he shall offer to vote, all taxes which may have been
legally required of him, and which he has had an opportunity of paying according
to law, for the two preceding years, and who shall produce to the officers holding
the election satisfactory evidence that he has paid said taxes, is declared to be a
qualified elector; but any minister of the gospel in charge of an organized church
shall be entitled to vote after six months residence in the election district, if
otherwise qualified.
Id. (emphasis added).
102. Ratcliff,20 So. at 868.
103. Id. Judge Cooper's proposition that Blacks "had acquired or accentuated certain
2005/06]
365
DISCRIMINATORY INTENT REQUIREMENT
Similarly, in 1901, the Alabama State Convention passed its Article III, Section
182, which provided for the disenfranchisement of persons convicted of, amongst
other offenses, "any crime... involving moral turpitude.' ' 10 4 The president of the
convention, John B. Knox, provided this proclamation in his opening address at the
state event: "And what is it that we want to do? Why it is within the limits imposed
by the Federal Constitution, to establish white supremacy in this state."'1
dissection of the convention reveals the following:
5
A
[M]ost of the proposals disqualified persons committing any one of a long
list of petty as well as serious crimes which the Negro, and to a lesser
extent the poor whites, most often committed . . . Most of the crimes
contained in the report of the suffrage committee came from an ordinance
by John Fielding Bums, a black belt planter. The crimes he listed were
those he had taken cognizance of for years in his justice of the peace court
06
in the Burnsville district, where nearly all his cases involved Negroes.'
peculiarities of habit, of temperament, and of character, which clearly distinguished it as a race from
that of the whites ... " and that "its criminal members given rather to furtive offenses than to the
robust crimes of the whites" exemplifies the notion of "black crime" in late 1800s. Id He went on to
reveal that instead of discriminating against the negro race, legislators at the Mississippi 1890 State
Constitutional Convention discriminated against what were believed to be the characteristics of the
Blacks and the offenses to which Blacks were prone. Id
104. ALA. CONST. of1901, art. lI,§ 182.
The following persons shall be disqualified both from registering, and from voting,
namely: All idiots and insane persons; those who shall by reason of conviction of crime be
disqualified from voting at the time of the ratification of this Constitution; those who shall
be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny,
receiving stolen property, obtaining property or money under false pretenses, perjury,
subornation ofpejury, robbery, assault with intent to rob, burglary, forgery, bribery, assault
and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation,
crime against nature, or any crimepunishable by imprisonment in the penitentiary,or of
any infamous crime or crime involving moral turpitude;also, any person who shall be
convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of
another, or of buying or offering to buy the vote of another, or of making or offering to
make a false return in any election by the people or in any primary election to procure the
nomination or election of any person to any office, or of suboming any witness or registrar
to secure the registration of any person as an elector.
(emphasis added).
105. John B. Knox, Address at the Constitutional Convention of Alabama (May 22, 1901),
available
at
http://www.legislature.state.al.us/mis/history/constitutions/1901/proceeding/l901_proceedings/proc
eedingsvoll/html (last visited Oct. 28, 2005).
106. MALcOLM C. McMILLAN, CONSTrTUToNAL DEvELOPMENT INALABAMA 1798-1901: A
STUDY INPOLMCS, THE NEGRO AND SECrIONALISM 275 (Reprint Company 1978).
GONZAGA LAW REVIEW
[Vol. 41:2
Francis B. Simpkins, in his book PitchforkBen Tilman, explained that "[i]t is not
difficult to perceive how ... elaborate regulations were designed to discriminate
against the Negro."' ° 7
Evidently, South Carolina also tailored its criminal
disenfranchisement laws between 1890 and 1910 to "black crimes," including
"crimes.. .to which [the Negro] was especially prone: thievery, adultery, arson, wifebeating, housebreaking, and attempted rape. Such crimes as murder and fighting, to
which the white man was as disposed as the Negro, were significantly omitted from
the list."' 8
In an openly racist post-Civil War society, state legislation that carried explicit
discriminatory intent targeted at specific racial minority groups were condoned and
accepted as the political norm. 10 9 Overtime, as America erases the ugly vestiges of
slavery and status-racism from its consciousness--beginning with the Supreme
Court's decision in Brown v. Board of Education110 to condemn the formerly
legitimate "separate but equal" doctrine-it inherits the memory of a racial hierarchy
into its unconsciousness.'
Charles R. Lawrence explains: "Americans share a
common historical and cultural heritage in which racism has played and still plays a
dominant role. Because of this shared experience, we also inevitably share many
ideas, attitudes, and beliefs that attach to an individual's race and induce negative
feelings and opinions about nonwhites."' 1 2 Unsurprisingly, as traditional forms of
explicit racial discrimination become politically incorrect and unacceptable, new
forms of unconsciously3 discriminatory tactics and legislations emerge behind the veil
of modem neutrality."
107. STMKiNs, FRANcis B., PrrCHFORKBENTLLMAN 297 (1944).
108. Id.; see S.C. CoNST. of1868, art. lI, § 6.
The following persons are disqualified from being registered or voting: First.
Persons convicted of burglary, arson, obtaining goods or money under false
pretenses, perjury, forgery, robbery, bribery, adultery, bigamy, wife-beating, housebreaking, receiving stolen goods, breach of trust with fraudulent intent, fornication,
sodomy, incest, assault with intent to ravish, miscegenation, larceny, or crimes
against the election laws: Provided,That the pardon of the Governor shall remove
such disqualification.
Id.
109.
110.
111.
112.
113.
100:1 ratio
supra note
and judicial
Shapiro, supranote 1, at 537.
347 U.S. 483 (1954).
Lawrence, supra note 34, at 322.
Id (citation omitted).
See infra notes 125-128 and accompanying text (federal sentencing disparity is in a
as between sentences for crack offenses and sentences for powder cocaine offenses);
13 and accompanying text (describing state disenfranchisement laws currently in force
requirement of discriminatory intent in a constitutional challenge).
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
367
B. Modem Neutrality-FelonDisenfranchisementLaws andthe War on Drugs
A cursory examination reveals that most modem disenfranchisement statutes
lack the explicit racial undertone found in post-Civil War statutes. For example: the
Florida constitution disqualifies those "convicted of a felony"; 1 14 Alabama's
constitution forbids persons who are convicted of "any crime punishable by
imprisonment in the penitentiary" from registering
to vote;' 15 and Iowa condemns
1 16
crime."
infamous
those convicted of "any
The judiciary has also been willing to overlook any original racist intent if the
state has shown a minimum degree of effort to rectify its racist past. 117 In Cotton v.
Fordice,the United States Court of Appeals for the Fifth Circuit found a Mississippi
disenfranchisement statute to be facially neutral and constitutional.' 18 As compared
to the original state constitution,' 19 the current list of disqualifying crimes only differs
by the removal of "burglary" and the additions of "murder" and "rape." 120 While the
Mississippi legislature's effort seems to be minimal at best, the Fifth Circuit deemed it
a sufficient gesture of reform. 12 1 The court reasoned that "although . . . the
114. FLA. CoNsT., art. VI, § 4 ("No person convicted ofafelony, or adjudicated in this or any
other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of
civil rights or removal of disability.") (emphasis added).
115. ALA.CoNsT.,art.VIII,§182:
The following persons shall be disqualified both from registering, and from voting,
namely: All idiots and insane persons; those who shall by reason of conviction of crime be
disqualified from voting at the time of the ratification of this Constitution; those who shall
be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny,
receiving stolen property, obtaining property or money under false pretenses, perjury,
subornation of pejury, robbery, assault with intent to rob, burglary, forgery, bribery, assault
and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation,
crime against nature, or any crimepunishableby imprisonment in the penitentiary,or of
any infamous crime orcrime involving moralturpitude; also, any person who shall be
convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of
another, or of buying or offering to buy the vote of another, or of buying or offering to
make a false return in any election by the people or in any primary election to procure the
nomination or election of any person to any office, or of suboming any witness or registrar
to secure the registration of any person as an elector.
(emphasis added).
116. IowA CoNST., art. II, § 5 ("No idiot, or insane person, or person convicted of any
infamous crime, shall be entitled to the privilege of an elector.").
117. Cotton, 157 E3d at 392 (stating that because the statute now seeks to punish all
criminals convicted of certain crimes, and not solely Afican-Americans, the statute is not
unconstitutional).
118. Id
119. Ratcliff,20 So. at 868.
120. Cotton, 157 F.3dat 391.
121.
Id at 390-92; Mississippi's current constitution grants the right to vote to:
GONZAGA LAW REVIEW
[Vol. 41:2
constitutional disqualifying provision originally intended to discriminate against
black felons, . . [t]he voters of Mississippi willingly broadened § 241 through the
constitutional amendment process to included violent crimes not previously included
in the list.' 122 Therefore, "[b]ecause Mississippi's procedure resulted ... in a reenactment of §241, each amendment superseded the previous provision and removed
the discriminatory taint associated with the original version."
Proponents of modem disenfranchisement laws are often seduced by the
apparent neutrality of disenfranchisement statutes. Roger Clegg, in his article "Who
Should Vote?," fervently supports the disenfranchisement of ex-felons. 24 He
suggests:
[Clriminals are 'overrepresented' in some groups and 'underrepresented' in
others is no reason to change the laws. If large numbers of young people, black
people, or males are committing crimes, then our efforts should be focused on
solving 25those problems. It is bizarre instead to increase criminals' political
power.1
This line of reasoning, however, lacks an analysis of the underlying presumption that
those convictions are fair across board.
C. The New Definitions of "Black Crimes" and Their Effect on Disenfranchisement
Despite courts' efforts to uphold the fairness of state disenfranchisement laws, a
deeper examination of the underlying criminal justice system, particularly
incarceration rates and sentencing policies, dispels any neutrality proclaimed in
disenfranchising ex-felons. 126 A study surveying the prison population finds that, as
Every inhabitant of this state, except idiots and insane persons, who is a citizen of the
United States of America, eighteen (18) years old and upward, who has been a resident of
this state for one (1)year, and for one (1)year inthe county inwhich he offers to vote, and
for six (6) months inthe election precinct or in the incorporated city or town inwhich he
offers to vote, and who is duly registered as provided in this article, and who has never
been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under
false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified
elector, except that he shall be qualified to vote for President and Vice President of the
United States if he meets the requirements established by Congress therefore and is
otherwise a qualified elector.
Miss. CONST., art XII,
§ 241
122. Cotton, 157 F.3d at 390-92.
123. Id
124. Clegg, supra note 6, at 174.
125. Id at 177.
126. Jones v. Edgar, 3 E Supp. 2d 979, 980 (1998) ("facially neutral state action is valid
unless motivated by a discriminatory purpose"); Wesley v. Collins, 791 F.2d 1255, 1262 (1986) ("[A]
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
of 2003, nearly 6 in 10 persons in local jails were racial or ethnic minorities-Blacks
making up nearly 40% of the jail population. 127 The same study also showed that
"[b]lacks were 5 times more likely than whites, nearly 3 times more likely than
and over 9 times more likely than persons of other races to have been in
Hispanics,
28
jail."'
The difference in the severity of punishment between people convicted of crack
cocaine offenses and those convicted of powder cocaine offenses also sheds some
light on the disproportionate population in prisons. 129 Mandatory sentencing laws for
drug offenses were passed on the premise that crack cocaine was 50 times more
addictive than powder cocaine. 130 Congress, subsequently, created a sentencing
policy that doubled the addiction ratio so that federal sentences for crack offenses are
in a 100:1 quantity ratio to sentences for powder cocaine offenses.' 3 1 In other words,
while a conviction for the sale of 500 grams of powder cocaine triggers a 5-year
are required to trigger the same 5mandatory sentence, only
32 5 grams of crack cocaine
year prison sentence.'
Studies have shown that, due to economic realities, most people accused of crack
133
cocaine offenses are black, while most powder cocaine defendants are non-black.
More specifically, crack cocaine is cheaper, and Blacks are disproportionately
poor. 134 Also, crack is usually sold in smaller quantities in open-air markets, such as
urban areas, where a higher percentage of minorities and low income persons reside,
and where greater concentration of law enforcement is present. 135 Thus, arrests for
violation of the Equal Protection Clause of the Fourteenth Amendment is established only where
there is proof of a racially discriminatory intent or purpose.... The challenged legislation must have
been pursued 'at least in part because of,' not merely 'in spite of,' it adverse effects upon an
identifiable [racial] group.").
127. Paige M. Harrison, Jennifer C. Karberg, US Department of Justice,Bureau of Justice
8
(2004),
2003
Midyear
at
Jail
Inmates
and
Prison
Statistics,
http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim03.pdf (last visited Dec. 2, 2004).
128. Id
129. Michael Coyle, The Sentencing Project, Race and Class Penalties in Crack Cocaine
Sentencing 1, http://www.sentencingproject.org/fpdfs/5077.pdf (last visited Nov. 14, 2004).
130. Id
131. Id
132. Id
133.
See UNrTED STATES SENTENCING COMMISSION, Special Report to the Congress: Cocaine
and Federal Sentencing Policy (1995), http://www.ussc.gov/crack/exec.htm; see also Coyle, supra
note 129, at 8-9.
134. Paul Butler, By Any Means Necessary: Using iolence and Subversion to Change
Unjust Law, 50 UCLAL. REV. 721,734 (2003); Bernadette D. Proctor, Joseph Dalaker, US Census
Bureau, Poverty in the United States 11, http://www.census.gov/prod/2003pubs/p60-222.pdf (last
visited Aug. 22, 2005) (reporting that in 2002, poverty rate for Blacks was at 24.1 percent, for nonHispanic whites was 8 percent, and for Asians was 10.1 percent, and for Hispanics was 21.8 percent).
135. Coyle, supra note 129, at 8.
GONZAGA LAW REVIEW
[Vol. 41:2
drug offenses are more likely to occur in these metropolitan areas as compared to
wealthy suburban neighborhoods, where the sale and consumption of drugs are more
likely to occur indoors.' 36 The defendant in United States v. Clary'37 provided
evidence that 98.2 percent of defendants convicted of crack cocaine charges in the
138
Eastern District of Missouri between the years of 1988 and 1992 were black.
Moreover, nationally, 92.6 percent of the defendants convicted of federal crack
cocaine39violations during 1992 were black, and 4.7 percent of the defendants were
white.'
Numerous attempts have been made by various players in the "War on Drugs" to
remedy the racial disparity and to implement changes in the Congressional
sentencing policy against cocaine. For example, the science and technology
community has published academic articles and has appeared before Congress to
dispel myths about crack cocaine's more potent effect.
A 1996 study published in
the Journal of American Medical Association found that both crack and powder
cocaine have similar effects on the body.' 4 ' The former Director of the National
Institute on Drug Abuse and a Professor of Psychiatry and Behavioral Sciences,
Charles Shuster, testified before the Senate Judiciary Committee in 2002 that "once
cocaine is absorbed into the bloodstream and reaches the brain, its effects on brain
chemistry are identical regardless of whether it is crack or power."' 42 The same
Most criminal justice analysts argue that racial disparities in arrest and
imprisonment relate to demographics. Crack is usually sold in small quantities in
open-air markets. Power is more expensive and is usually sold in larger quantities
behind closed doors in locations that are inherently private. In urban areas the
"fronts" of crack use and sales are large metropolitan centers which gather the
greater emphasis of law enforcement. Since minorities and lower income persons
are most likely to inhabit these areas, they are therefore at greater risk of arrest for
crack cocaine possession than are white and higher income powder offenders. The
latter inhabit working class and upper-class neighborhoods where drug sales are
more likely to occur indoors instead of the street sales of the urban neighborhoods
that receive disproportionate (greater) attention from law enforcement.
Id
136. Id.at 8-9.
137. United States v. Clary, 846 F. Supp. 768, 786 (E.D. Mo. 1994) rev'd 34 F.3d 709 (8th
Cir. 1994).
138. Id.at 786 (citing to defendant's exhibition that out of the 57 convictions for crack
cocaine during 1988 and 1990, 56 were received by Blacks and only one was received by a White/
lispanic).
139. Id at 786 n. 54 (citing 1992 U.S. Sentencing Commission representative sample of all
drug cases received for fiscal year 1992; U.S. Sentencing Commission, Monitoring Data files (April
1-July 31, 1992)).
140. Coyle, supranote 129, at 2.
141. Id at 2 (citing Dorothy K. Hatsukami, Marian W. Fischman, Crack Cocaine and
CocaineHydochloride:Are the Differences Myth or Reality?, JAMA, Nov. 20, 1996).
142. Id
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DISCRIMINATORY INTENT REQUIREMENT
371
scholar later acknowledged that the easier physical intake of crack cocaine creates a
higher risk of addiction; however, he only recommended a quantity ratio for
sentencing policies at 3:1, as opposed to 100:1.143
Similarly, the United States Sentencing Commission has repeatedly urged
Congress to change the ratio, finding there was little rationale for the 100:1 disparity;
President Clinton also endorsed a 10:1 ratio in the last year of his second term. 1 4
However, Congress has remained unmoved. Indeed, in 2002, President Bush's
Deputy Attorney General, Larry D. Thompson, was been quoted by the New York
Times, indicating that "[t]he current federal policy and guidelines for sentencing
crack cocaine offenses are appropriate," and that crack "traffickers should be subject
to significantly higher penalties than traffickers of like amounts of powder
[cocaine]. 14 5
Efforts on the legal front have also proven to be futile. In Clary, an 18-year old
defendant with no prior criminal convictions entered a plea of guilty for possession
with intent to distribute crack. 146 Before sentencing, defendant Clary filed a motion
for downward sentence departure-arguing that the ten-year mandatory minimum
sentence that he was facing violated his equal protection rights guaranteed by the
Fifth Amendment, which commands that similarly situated defendants be treated
alike. 147 Judge Cahill in the U.S. District Court in the Eastern District of Missouri
meticulously traced the roots of racial impact of drug laws and found that the
defendant had been, indeed, denied equal protection of the laws, as the punishment
assessed against him was 100 times greater than the punishment for the same
violation involving powder cocaine. 48 However, this encouraging turn of events was
143. ld at5.
144. Coyle, supra note 129, at 6-7; see also Plan Narrows Gap Between Crack Powdered
Cocaine Sentences, CNN NEws, July 22, 1997, http://www.cnn.com/US/9707i22/crack.sentencing
(last visited Aug. 22, 2005) ("President Clinton has approved a proposal to reduce the difference
between sentences for selling crack cocaine and powdered cocaine. The plan offered by Attorney
General Janet Reno and Clinton's drug-policy adviser, Gen. [ret.] Barry McCaffrey, would lower the
difference in sentencing for the two different forms of cocaine to a 10-1 ratio.").
145. Neil A. Lewis, Justice Department Opposes Lower Jail Terms for Crack N.Y
Mar. 20, 2002, at A24.
146. Clary,846 E Supp. at 797.
TIMES,
147. Id. at 769-73.
148. Id. at 774-75.
Prior to the civil rights era, Congress repeatedly imposed severe criminal sanctions
on addictive substances once they became popular with minorities. Historically, a
consortium of reactionary media and a subsequently inflamed constituency have
combined to influence Congress to impose more severe criminal sanctions for use
of narcotics once they became popular with minorities ....
Ambivalence and
outright hostility" toward Chinese coupled with the concern that opium smoking
was spreading to the upper class, provided the foundation for the passage of the
1909 Smoking Opium Exclusion Act. "Yellow Peril" was a term used in the years
between the Great Wars to express the fear that the huge population of the Far East
GONZAGA LAW REVIEW
[Vol. 4 1:2
short-lived. A mere seven months later, the Eighth Circuit reversed Judge Cahill's
decision in a brief court opinion that upheld the constitutionality of crack cocaine
statutes. 49 Particularly, the court reasoned:
[E]ven if a neutral law has a disproportionate adverse impact on a racial
minority, it is unconstitutional only if that effect can be traced to a discriminatory
purpose. Discriminatory purpose 'implies that the decisionmaker, in this case
[Congress], selected or reaffirmed a particular course of action at least in part
because of, not merely in spite of, its adverse effects upon an identifiable group.'
We conclude that there was no evidence that Congress or the Sentencing
Commission had a racially discriminatory motive when
it crafted the Guidelines
50
with extended sentences for crack cocaine felonies. 1
In coming to its conclusion, the appeals court rejected Judge Cahill's proposition that
unconscious racism is imbedded in drug statutes as well as law enforcement of these
statutes.! 51
The court also dismissed Judge Cahill's assessment that the
discriminatory intent requirement will not show the hidden and subtle forms of
52
unconscious racism.
A critical examination of the underlying criminal justice system exposes the
inhumanity and prejudice extended by state disenfranchisement laws.' 53 With courts'
permission, a group of minority citizens continue to be subjected to a set of penalty
guidelines and law enforcement tactics that are known to have a disparate negative
impact on the group.' 54 However, these citizens' political conditions are exacerbated
posed a military threat to the West. This fear induced an aversion to the opium
usage believed to be prevalent in Chinese communities and foisted anti-opium
legislation. The Harrison Act of 1914, the first federal law to prohibit distribution
of cocaine and heroin, was passed on the heels of overblown media accounts
depicting heroin-addicted black prostitutes and criminals in the cities. The author
of the Act, Representative Francis Harrison, moved to include coca leaves in the
bill "since [the leaves] make Coca-Cola and Pepsi-Cola and all those things are
sold to Negroes all over the South. At one point the bill appeared to be facing
defeat until Dr. Hamilton Wright, the American delegate to the Hague Opium
Conference, 1911-1912, submitted an official report in which he warned Congress
of the drug crazed blacks in the South whose drug habits 'threaten[ed] to creep into
the higher social ranks of the country."'
Id (citation omitted).
149. See generally Clary,34 F.3d at 709.
150. Id.at 712.
151. Id.
152. Id at 713.
153. See Mauer, supranote 17, at 1("[F]or example, an 18-year-old convicted of felony drug
possession inVirginia who is sentenced to a treatment program which he successfully completes is
disenfranchised for life even though he may not have spent a day injail.").
154. See supra note 129 and accompanying text.
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
373
by a supplementary establishment of state laws that strip away their right to vote,
which could be the only venue for the politically victimized to voice opinions of
discontent with biased governmental regulations. 155 In a society where individuals
unconsciously exclude their racist ideas from their awareness because racism is
condemned by social norm, 156 courts' unwillingness to scrutinize laws that are
facially neutral,
but racist in action, obliterates any hope of redemption for the
157
subjugated.
155. See FLA. CoNST. art. VI, § 4 ("No person convicted of a felony, or adjudicated in this or
any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of
civil rights or removal of disability."); IOWA CoNsT. art. II, § 5 ("No idiot, or insane person, or person
convicted of any infamous crime, shall be entitled to the privilege of an elector."); KY. CONST. § 145.
Every citizen of the United States of the age of eighteen years who has resided in
the state one year, and in the county six months, and the precinct in which he offers
to vote sixty days next preceding the election, shall be a voter in said precinct and
not elsewhere but the following persons are excepted and shall not have the right
to vote: 1. Persons convicted in any court of competent jurisdiction of treason, or
felony, or bribery in an election, or of such high misdemeanor as the General
Assembly may declare shall operate as an exclusion from the right of suffrage, but
persons hereby excluded may be restored to their civil rights by executive pardon;
2. Persons who, at the time of the election, are in confinement under the judgment
of a court for some penal offense; 3. Idiots and insane persons.
Id.;
NEB. CoNsT. art. VII, § 2 ("No person shall be qualified to vote who is non compos mentis, or
who has been convicted of treason or felony under the laws of the state or of the United States,
unless restored to civil rights."); VA. CONST. art. II, § 1.
In elections by the people, the qualifications of voters shall be as follows: Each
voter shall be a citizen of the United States, shall be eighteen years of age, shall
fulfill the residence requirements set forth in this section, and shall be registered to
vote pursuant to this article. No person who has been convicted of a felony shall be
qualified to vote unless his civil rights have been restored by the Governor or other
appropriate authority. As prescribed by law, no person adjudicated to be mentally
incompetent shall be qualified to vote until his competency has been reestablished.
Id.;
Jessica Feierman, Creative Prison Lawyering: From Silence To Democracy, 11 GEO. J. ON
POvERTY L. &POL'Y 249, 269-71 (2004).
156. Lawrence, supra note 34, at 323.
157. See City of Mobile, 446 U.S. at 70 ("[W]here the character of a law is readily
explainable on grounds apart from race ...
disproportionate impact alone cannot be decisive, and
courts must look to other evidence to support a finding of discriminatory purpose."); ill of
Arlington, 429 U.S. at 265 ("Proof of racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause."); Washington, 426 U.S. at 242.
We have not held that a law, neutral on its face and serving ends otherwise within
the power of government to pursue, is invalid under the Equal Protection Clause
simply because it may affect a greater proportion of one race than of another.
Disproportionate impact is not irrelevant, but it is not the sole touchstone of an
invidious racial discrimination forbidden by the Constitution. Standing alone it
does not trigger the rule, that racial classifications are to be subjected to the
strictest scrutiny and are justifiable only by the weightiest of considerations.
GONZAGA LAW REVIEW
[Vol. 41:2
IV.MAINTAINING THE HIERARCHY
I will say, then, that I am not, nor ever have been in favor of bringing about in
any way the social and political equality of the white and black races--that I am
not nor ever have been in favor of making voters or jurors of negroes, nor of
qualifying them to hold office, nor to intermarry with white people; and I will
say in addition to this that there is a physical difference between the white and
black races which I believe will ever forever forbid the two races living together
on terms of social and political equality. And inasmuch as they cannot so live,
while they do remain together, there must be the position of superior and
inferior. I am as much as any other
man am in favor of having the superior
158
position assigned to the white race.
These words secured Abraham Lincoln great acceptance amongst openly racist
Americans when he made the speech in his sixth debate against Steven Douglas at
Quincy, Illinois in 1858.159
In modem times, it would be inconceivable for a politician to manifest such
direct support of racial hierarchy. 16 0 Citizens in America, for the better part, have
been trained to reject, at least publicly, such overly racist social agenda.1 61 "It is no
Id
158.
159.
THE LINCOLN-DOUGLAS DEBATES OF 1858,247 (Robert T.Johannsen ed. 1965).
Id.
160. Clary,846 F. Supp. at 776.
161. See Jacqueline A. Gilbert, Bette Ann Stead, John M. Ivancevich, Diversity Management:
A New OtganizationalParadigm,JOURNAL OF BusINEss ETHICS (Aug., 1999).
In the past few years, a seemingly endless stream of academic literature and
advertisements, as well as popular books and videotapes which tout the benefits of
diversity in the workplace have filled bookshelves and the airwaves. Increased
diversity has been suggested to enhance problem solving capabilities of a group, to
provide better service to a diverse customer base, and to boost organizational
creativity. To harness all of these activities into a cogent plan, it has further been
suggested that organizations engage in "diversity management." Diversity
management is a voluntary organizational program designed to create greater
inclusion of all individuals into informal social networks and formal company
programs.
Id John Leo, Speech PoliceEncirclingthe Bases, THE WASHINGTON TIMES, Feb. 9,2000, at Al5.
Now a theory has arisen on the campuses and spread through the intellectual
world: Oppression must be rooted out by changing the consciousness of
Americans, especially "privileged" citizens (ordinary white people) who do not
consider themselves bigots. Sensitivity training and diversity training, by federal
and state agencies, employers and universities, is the leading weapon of the new
consciousness police.
Id Sean Valentine, Gary Fleischman, Ethics Codes and Professionals' Tolerance of Societal
Diversity, JOURNAL OF BUSINESS ETHICS (Nov., 2002).
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
375
longer consistent with American ideology to speak in terms of inherent racial traits.
162
But the myth of racial inferiority remains embedded in the fabric of our culture."'
Consequently, when the intent to target a specific race of citizens is blatantly
expressed in government legislation, courts are willing to strike them down because
supporting such regulations would directly conflict with a social consensus against
racial injustice. 163 Therefore, meeting the judicial discriminatory intent requirement
becomes fairly straightforward for statutes that are blatantly racist. 164 However, when
overt prejudice is replaced by subtle methodologies that take advantage of the
unconsciously
racial underpinnings, proving wrongful purpose is almost
65
impossible.'
A. DiscriminatoryIntentRequirement in General
In 1976, the Supreme Court decided that the disproportionate impact of a civil
service test, when neutral on its face and absent discriminatory intent, does not
wan-ant the conclusion that the test was a purposely discriminatory device. 166 In
Washington v. Davis, two unsuccessful black applicants for positions as police
officers in the District of Columbia brought a class action suit against the former
167
Police Commissioner of the District of Columbia and other civil service officials.
The candidates alleged that the Department's recruiting procedures discriminated on
The supervision of diversity typically includes "multiple efforts, constant
reinforcement, and broad-scale change initiatives" that bring together employees
of many backgrounds. Organizations advocate diversity by altering the internal
context, by emphasizing the moral aspects of diversity, and by linking diversity
initiatives to the planning process. Diversity-based programs such as 'diversity
counsels' and 'sensitivity training' can also be used to facilitate the process. Top
managers can stress the magnitude of diversity "through moral persuasion, through
personally surveying change efforts, and through concerted efforts to change
employees' awareness of key issues." Workplace diversity has a number of ethical
considerations. Diversity supervision "includes moral, ethical, and results-based
reasons such as fairness, upholding the dignity of every person, and optimizing the
full range of skills and abilities of the workforce."
Id. (citation omitted).
162. Lawrence, supranote 34, at 375.
163. See Hunter v. Underwood, 471 U.S. at 222, 229-33 (1985); Brown, 347 U.S. 483;
Sweatt v. Painter, 339 U.S. 629 (1950).
164. See Hunter,471 U.S. at 229-33.
165. See Lawrence, supra note 34, at 319 (suggesting that "a motive-centered doctrine of
racial discrimination places a very heavy, and often impossible, burden of persuasion."); see also
Kenneth L. Karst, The Costs of Motive-CenteredInquiry, 15 SAN DIEGO L. REV. 1163, 1165 (1978);
Larry G Simon, Racially Prejudiced Governmental Actions: A Motivation Theory of the
ConstitutionalBan Against RacialDiscrimination,15 SAN DIEGO L. REV. 1041, 1097-107 (1978).
166. Washington v. Davis, 426 U.S. 229,246 (1976).
167.
Id.at232.
GONZAGA LAW REVIEW
[Vol. 41:2
the basis of race against black applicants by a series of practices that included a
written personnel test, known as "Test 21.,068 "Test 21" was an examination that
"developed by the Civil Service Commission ...to test verbal ability, vocabulary,
reading and comprehension. ' 169 It was reported that four times as many Blacks as
Whites failed the test. 170 The two black applicant-plaintiffs contended that the
discriminatory impact established that the test violated their rights under the due
process clause of the Fifth Amendment. 17 1 The Supreme Court rejected this
argument-holding that discriminatory impact alone cannot trigger sufficient
suspicion for the judiciary to strictly scrutinize the underlying statute, let alone prove
72
the statute unconstitutional.1
By rejecting the statistical significance of the disparate impact, the Supreme
173
Court refused to recognize an undercurrent of racial elements in the test outcomes.
When viewed in historical and cultural contexts, these elements often embody
weighty evidence of prejudice. For example, both "the nature of the work" as a job
of police officer and "the nature of applicants' exclusion" based on a test for
proficiently in communication skills carry a substantial "cultural meaning" to the
74
outcome.'
Charles R. Lawrence suggests "It is significant that the challenged action..
excluded Blacks from working as police officers and not as mail carriers or bus
drivers."' 175 He goes on to explain that historically "The occupation of police officer
has [held] symbolic meaning within our culture."' 76 Particularly, police officers have
been equated with the characteristics of authority, control, protection, and sanctioned
168.
Id.
at 234.
169. Id.
at 234-35 (quoting Davis v.Washington, 348 F.Supp. 15, 16 (D.D.C. 1972)).
170.
Washington, 426 U.S. at 237.
171. Id.
at 232-33.
172. Id.
at242.
173. Id.
at 245-46; Lawrence,supranote 34, at 370.
I suggest that there are two such elements. The first
involves the nature of the
work or activity from which [b]lacks have been excluded: the job of police officer
in a predominantly but entirely black community. The second relates to the reason
given for their exclusion: that they failed to demonstrate sufficient proficiency in
verbal and written language skills.
Id.
174.
Lawrence, supranote 34, at 355-56.
I propose a test that would look to the 'cultural meaning' of an allegedly racially
discriminatory act as the best available analogue for and evidence of the collective
unconscious that we cannot observe directly.
This test would evaluate
governmental conduct to see if it conveys a symbolic message to which the culture
attaches racial significance.
Id.
175.
Id.at 370.
176. Id.
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
377
violence.1 77 For slaves it was often a "[w]hite police force of overseers and sheriff's
posses that enforced the master's law.' ' 178 For Whites, who were not accustomed to
seeing Blacks in positions of power and authority, the notion of a black police force
would invariably cause resistance and resentment.
If the court were convinced that the absence... of substantial numbers of black
police officers on the DC force would be interpreted as the maintenance... of
culturally instilled beliefs about the need to control blacks and the appropriate
roles for blacks and whites in authority relationships, then the Civil Service
Commissioner's decision to rely on 'Test 21' would have racial meaning.' 79
The nature of the black applicants' exclusion from the police force as a result of
failing in proficient communication skills should have convinced the court that the
discriminatory test outcomes were not merely happenstance.' 80 As described earlier,
American history has instilled a social myth that Blacks are culturally as well as
intellectually inferior.18 1 Their purported substandard intellect has been frequently
used as a justification for subjugation.182 If an altemative cultural perception views
177. Id.
178. Id
179. Id.at 372-73.
180. Lawrence, supra note 34, at 372.
181. See supra notes 59-60 and accompanying text.
182. Id.
See
KENNETH L. KARST, LAW'S PROMISE, LAW'S EXPRESSION: VISIONS OF POWER IN
(Yale University Press 1993).
By the late eighteenth century, when a growing spirit of egalitarianism necessitated
an apology for slavery, the argument was founded on a theory of the innate
biological inferiority of black men and women. In this view black people as a
group represented not Reason but 'innocent nature'; they were called moral
children who lacked the capacity for self-determination.
Id.; PACKARD, supra note 59, at 161.
The pseudoscience of eugenics, a popular enterprise in America through a large
part of the nineteenth century, persuaded many whites that blacks had gone as high
THE POLmcS OF RACE, GENDER, AND RELIGION 86
as they could go on the ladder of civilization, that there was plainly no way to
breed greater capability into the race. All sorts of studies of human head capacity
and cranial thickness and brain weight were cooked up into an ingenious-sounding
soup to support such claptrap. Robert Bennett Bean in The Race of Man provides
an example of this eugenics approach to racism: "The neuromuscular mechanism
in the Black Race is less controlled, and when the nerve impulses, not so finely
graded as in the White Race, reach the mimetic muscles, the latter are set into
sudden, strong contractions of a primitive type. The bulky lips are pulled upward
and outward, the large white teeth are exposed in contrast with the black face, and
instead of a graded smile or laugh we notice the broad grin characteristic of the
Black Race."
Id (citation omitted).
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[Vol. 41:2
the disparate outcome of "Test 21" as a confirmation of the intellectual inferiority of
Blacks, then the civil service test is indeed attached with a racial meaning. 83 The
"political prioritizing" of linguistic skills over ability to "establish rapport with
residents of the communities with which they work," or selecting candidates needing
sensitivity training over candidates needing communication
8 4 training should carry
significant evidentiary value to show hidden racial agendas.
However, the Supreme Court's dismissal of discrimination arguments in the
absence of proof of openly racist motives destroys any possibility of finding
unconscious racial components.' 8 5 The judicial posture that requires a showing of
discriminatory intent for facially neutral laws ultimately puts the burden on the victim
to prove the impossible--to show a thing that inherently does not exist.
B. DiscriminatoryIntent in DisenfranchisementLaws
In its application to voting rights cases, the discriminatory intent requirement
86
produces similar results. In City of Mobile,"
black citizens of Mobile, Alabama
brought a class action suit alleging that the city's at-large method of electing its
commissioners unfairly diluted the voting strengths of Blacks in violation of Section
2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments.' 87 The
Supreme Court overruled the decisions of both the district and the appellate courts
below by upholding the election method in Alabama.' 88 The Court reasoned that
183. Lawrence, supranote 34, at 375.
184. Id.
185. See supra notes 150-151 and accompanying text.
186. City of Mobile v. Bolden, 446 U.S. 55 (1980).
187. Id. at 58; Accord. U.S. CoNsT. amend. XIV, § 2.
But when the right to vote at any election for the choice of electors for President
and Vice President of the United States, Representatives in Congress, the
Executive and Judicial officers of State, or the members of the Legislature thereof,
is denied to any of the male inhabitants of such State ... except for participationin
rebellion, or other crime, the basis of representation therein shall be reduced.
Id (emphasis added); U.S. CONST. amend. XV, § 1 ('The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on account of race, color, or
previous condition of servitude").
188. City ofMobile, 446 U.S. at 59--60.
In [1911], the Alabama Legislature authorized every large municipality to adopt a
commission form of government. Mobile established its City Commission in the
same year, and has maintained that basic system of municipal government ever
since. The three Commissioners jointly exercise all legislative, executive and
administrative power in the municipality. They are required after election to
designate one of their number as Mayor, a largely ceremonial office, but no formal
provision is made for allocating specific executive or administrative duties among
the three. As required by the state law enacted in 1911, each candidate for the
Mobile City Commission runs for election in the city at large for a term of four
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
379
because the Fifteenth Amendment "prohibits only purposefully discriminatory denial
or abridgment by government of the freedom to vote 'on account of race, color, or
previous condition of servitude, ' " 189 "disproportionate impact alone cannot be
decisive, and courts must look to other evidence to support a finding of
discriminatory purpose."' 190 Congress reacted in 1982 to ease the standard for
proving violations of the Voting Rights Act.' 9' Nevertheless, the discriminatory
intent requirement remains the legal standard for plaintiffs bringing constitutional
92
challenges.'
In Hunter v. Underwood,'93 the Supreme Court found a facially neutral law that
disenfranchised persons convicted of crimes of moral turpitude unconstitutional
because evidence of "zeal for white supremacy" surfaced in Official Proceedings of
the 1901 Constitutional Convention of Alabama.' 94 What happens when such
evidence cannot be found on a tangible medium? What happens when such evidence
is the very disease that infests the subconscious of policymakers, a disease that cannot
be diagnosed or publicized?
Moreover, "courts have read Hunter as the only exception-rather than as one of
several possible exceptions-to... [the] general rule that felon disenfranchisement is
constitutional."' 95 Courts that have refused to scrutinize states' selection of certain
felonies as disqualifying offenses cite Hunter's "focus on intentional discrimination
as evidence that states may disenfranchise
felons in any way they desire so long as
96
they do not act on the basis of race."'
Subsequent to Hunter, courts have also severely limited disenfranchised
plaintiffs' ability to produce the necessary evidence of discriminatory intent.' 97 For
years in one of three numbered posts, and may be elected only by a majority of the
total vote.
Id (citations omitted).
189. Id. at 65.
190. Id. at 70.
191. Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat 131 (codified as
amended at 42 U.S.C. § 1973b) (1982).
192. See Wesley v. Collins, 791 F.2d 1255, 1262 (1986) (citing Vill. of Arlington Heights v.
Metro. Hous. Dev., 429 U.S. 252,265 (1977)).
193. Hunter v. Underwood, 471 U.S. 222 (1985).
194. Id.. at 229; see supra note 103 and accompanying text.
195. Note, One Person,No Vote: The Laws of Felon Disenfranchisement,115 HARv. L. REv.
1939, 1951-52, 1959-61 (2002) [hereinafter One Person, No Vote] (suggesting considerations of a
state's administration of pardon or clemency process and a state's compliance with the limiting nature
of Section 2 of the Fourteenth Amendment in its selection of disenfranchising crimes).
196. Id. at 1952; see Cotton, 157 F.3d at 391; Baker v. Pataki, 85 E3d 919, 931 (2d Cir.
1996); Wesley, 791 F.2d at 1262; Jones v. Edgar, 3 F. Supp. 2d 979, 980; Perry v. Beamer, 933 F.
Supp. 556, 559 (E.D. Va. 1996).
197. One Person,No Vote, supra note 195, at 1951 (citing Wesley, 791 F.2d at 1262; Jones, 3
F. Supp. 2d at 981).
GONZAGA LAW REVIEW
[Vol. 41:2
example, in Cotton, even though the court conceded that Alabama "was motivated by
a desire to discriminate against blacks," it, nonetheless, concluded that "each
[subsequent] amendment superseded the previous provision and removed the
discriminatory taint associated with the original
version," even though the core of the
98
discriminatory law remained unchanged.
In Wesley v. Collins,'99 a black citizen of Tennessee commenced an action
alleging that the Tennessee Voting Rights Act of 1981 denied him the rights secured
under the Federal Voting Rights Act Amendments of 1982, and the Fourteenth and
Fifteenth Amendments.2" 0 Charles Wesley pleaded guilty to a charge of being an
198. One Person,No Vote, supra note 195, at 1951 (quoting Cotton, 157 F.3d at 391-92).
199. Wesley, 791 F.2d 1255.
200. Id. at 1257; see generally Tennessee Voting Rights Act of 1981, TENN. CoDE ANN. §219-143 (1981):
The following provisions shall govern the exercise of the right of suffiage for those
persons convicted of an infamous crime:
(1) No person who has been convicted of an infamous crime, as defined by § 40-20-112,
in this state shall be permitted to register to vote or vote at any election unless such person
has been pardoned by the governor, or the person's full rights of citizenship have otherwise
been restored as prescribed by law. However, the governor may attach to any such pardon
a special condition that such person shall not have the right of suffirage until a date certain
in the future, or until the expiration of the pardoned sentence, whichever period of time is
less.
(2) No person who has been convicted in federal court of a crime or offense which would
constitute an infamous crime under the laws of this state, regardless of the sentence
imposed, shall be allowed to register to vote or vote at any election unless such person has
been pardoned or restored to the full rights of citizenship by the president of the United
States, or the person's fill rights of citizenship have otherwise been restored in accordance
with federal law, or the law of this state.
(3) No person who has been convicted in another state of a crime or offense which would
constitute an infamous crime under the laws of this state, regardless of the sentence
imposed, shall be allowed to register to vote or vote at any election in this state unless such
person has been pardoned or restored to the rights of citizenship by the governor or other
appropriate authority of such other state, or the person's full rights of citizenship have
otherwise been restored in accordance with the laws of such other state, or the law of this
state.
(4) The provisions of this section, relative to the forfeiture and restoration of the right of
suffrage for those persons convicted of infamous crimes, shall also apply to those persons
convicted of crimes prior to May 18, 1981, which are infamous crimes after May 18,
1981;
TENN. CODE ANN. §40-20-112 (1981): Upon conviction for any felony, it shall be the
judgment of the court that the defendant be infamous and be immediately disqualified
from exercising the right of suffrage. No person so convicted shall be disqualified to
testify in any action, civil or criminal, by reason of having been convicted of any felony,
and the fact of conviction for any felony may only be used as a reflection upon the
person's credibility as a witness;
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
381
2 1
accessory after the fact to the crime of larceny and received a suspended sentence. 0
The offense was defined as a felony in Tennessee, and Wesley was disenfranchised
pursuant to Tennessee Voting Rights Act of 1981.202 The state statute provided that
any person who has been "convicted of a crime or offense in federal court or another
state court which would constitute an infamous crime in Tennessee, shall not be
permitted to register to vote or to vote in any election until pardoned or until his full
rights of citizenship have been restored."'23 In holding that the Tennessee Voting
Rights Act did not violate the equal protection clause of the Fourteenth Amendment,
the court reasoned that such violation can' only
°4 be established where "there is proof of
2
purpose.
or
intent
discriminatory
racially
The court in Wesley specifically addressed the precedent set in Hunter, and
distinguished its decision on the fact that "it was conceded by the state in Hunterthat
the disenfianchisement of Blacks played a major role in the statute's enactment as
reflected by the record of the state convention at which the statute was signed into
law.' 2 0 5 Predictably, the court rejected any possibility of discrimination based on race
Voting Rights Act Amendments of 1982, 42 U.S.C. §1973 Denial or abridgement of right
to vote on account of race or color through voting qualifications or prerequisites;
establishment ofviolation:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure
shall be imposed or applied by any State or political subdivision in a manner which results
in a denial or abridgement of the right of any citizen of the United States to vote on
account of race or color, or in contravention of the guarantees set forth in section
1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if,
based on the totality of
circumstances, it is shown that the political processes leading to nomination or election in
the State or political subdivision are not equally open to participation by members of a
class of citizens protected by subsection (a) of this section in that its members have less
opportunity than other members of the electorate to participate in the political process and
to elect representatives of their choice. The extent to which members of a protected class
have been elected to office in the State or political subdivision is one circumstance which
may be considered: Provided,That nothing in this section establishes a right to have
members of a protected class elected in numbers equal to their proportion in the
population.
201. Wesley, 791 F.2d at 1257.
202. Id.
203. Id (citing TENN. CODEANN. § 2-19-143).
204. Wesley, 791 F.2d at 1262 (citing Vtl. of Arlington Heights v. Metro. Hous. Dev. 429
U.S. 252,265 (1977)).
205. Id at 1262-63. The Hunter Court reviewed historical texts from the Alabama
Constitutional Convention and specifically quoted the opening address of John Knox, president of
the convention, who remarked, "And what is it that we want to do? Why it is within the limits
imposed by the Federal Constitution, to establish white supremacy in this State." Hunter v.
Underwood, 472 U.S. 222,229 (1985).
GONZAGA LAW REVIEW
[Vol. 41:2
by noting that "[a] review of the legislative debates surrounding the enactment
of the
' 20 6
challenged Tennessee statute ...reveals no such intent to discriminate.
In Jones v. Edgar,207 the United States District Court of Central District of
208
Illinois echoed the sentiments of Wesley.
Judge Mills reasoned that since "[t]he
Supreme Court has repeatedly held that facially neutral state action is valid unless
motivated by a discriminatory purpose,'2 °9 and "the Plaintiff cannot make a
connection between the historical discrimination against blacks and the
disenfranchisement of voters," 210 the Illinois disenfranchisement provision2 1 did not
violate the Fifteenth Amendment. 212 The court dismissed the notion that
disenfranchisement laws have any statistical significance on specific groups of racial
213
minorities.21 It referenced the district court judge's opinion in Wesley which
provided:
Felons are not disenfranchised based on any immutable characteristic, such as
race, but on their conscious decision to commit an act for which they assume the
risks of detection and punishment. . . .Accordingly, the performance of a
felonious act carries with the perpetrator's
decision to risk disenfianchisement in
214
pursuit of the fiuits of the misdeed.
The consistent and broad application of the discriminatory intent requirement to
invalidate disenfianchisement laws remains an immovable obstacle for ex-felons
wishing to challenge state laws that permanently disqualify their voting rights. 215 As
long as racist intent, rather than disparate impact, remains as an indispensable element
of a constitutional challenge, courts will be unmoved by the disturbing statistics cited
at the beginning of this article. 21 6 Furthermore, under the discriminatory intent
206. Wesley, 791 F.2d at 1263.
207. Jones v. Edgar, 3 F.Supp. 2d 979 (1998).
208.
Jones,3F.Supp. 2d at 980-81.
209. ld.at 980.
210. Id.
at 981.
211. ILL. CoNsr., art. 11, §2 ("A person convicted of a felony, or otherwise under sentence in
a correctional institution or jail, shall lose the right to vote, which right shall be restored not later than
upon completion of his sentence.").
212. Jones,3 F. Supp. 2d at981.
213. Id.at 981 ("The mere fact that many incarcerated felons happen to be black and latino is
insufficient grounds to implicate the Fifteenth Amendment or the Voting Rights Act.").
214. Id.at 981 (quoting Wesley, 605 F. Supp. 813).
215. See supra note 121 and accompanying text; see also City of Mobile, 448 U.S. at 70;
Washington v. Finlay, 664 F.2d 913, 919 (5th Cir. 1981) ("Claims of racially discriminatory vote
dilution ...can only be established by proof (a) that vote dilution, as a special form of discriminatory
effect exists and (b) that it results from a racially discriminatory purpose chargeable to the state.")
(emphasis omitted).
216. See supra notes 3-4 and accompanying text
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
383
requirement, ex-felons' chances of political participation would remain as
meaningless as a freed slave's right to equality under the "separate but equal"
doctrine. 217
V. ANEW VEIL--"SEPARATE BUT EQUAL" AND THE
DISCRIMINATORY INTENT REQUIREMENT
The parallelism between the modem intent requirement and the "separate but
equal" doctrine from the early twentieth century is undeniable. Though the
contextual fabrics of their establishment are quite different, their inherent
contradictions, the judicial reaction to their applications, and the resulting hegemony
are almost identical.2 18 In other words, the "separate but equal" doctrine was born
during a time when conscious racism ran rampant." 1
The Black Codes and Jim
217. See supranotes 190-203 and accompanying text.
218. See infra notes 208-227 and accompanying text.
219. See DOCUMENTARY HISTORY OF RECONSTRUCTION: POLrITcAL, MILrrARY, SOCIAL,
RELIGIOUS, EDUCATIONAL AND INDuSTRIAL, 1865 TO THE PRESENT TME (Walter L. Fleming, ed.,
Arthur H. Clark 1906-1907) 1:425-26 (documenting a white South Carolinian's view on
Reconstruction):
The black man is what God and nature and circumstances have made him. That he
is not fit to be invested with these important rights may be on fault of his. But the
fact is patent to all that the negro is utterly unfitted to exercise the highest
functions of the citizen. The government of the country should not be permitted to
pass from the hands of the white man into the hands of the negro ....
As citizens
of the United States we should not consent to live under negro supremacy, nor
should we acquiesce in negro equality. Not for ourselves only, but on behalf of the
Anglo-Saxon race and blood in this country, do we protest against this subversion
of the great social law, whereby an ignorant and depraved race is placed in power
and influence above the virtuous, the educated and the refine.
Id.; WoRMsER, supra note 95, at 21 (depicting southern Whites reaction to black suffi-age):
Whites were enraged at being forced to enfranchise blacks. Governor Perry of
South Carolina protested to Congress: 'The radical Republican Party forgets that
this is a white man's government and created for white men only; and that the
Supreme Court of the United States has decided that the Negro is not an American
citizen under the Federal Constitution.
Id.; see also PACKARD, supra note 59, at 152-53.
During the Jim Crow years racism was sometimes taught from the floor of the U.S.
Senate. In the post-World War I era, J. Thomas Heflin of Alabama had become
one of the most powerful legislators in America. He was also one of the most
racially inflammatory men ever to occupy a Senate seat. ... After reading a copy of
his letter to his fellow legislators from the Senate floor, the Alabama lawmaker
continued with a few additional remarks. 'Mr. President, I cry out against [racial
intermarriage] in New York, in Alabama, in very state of the Union. I tell you ... it
leads to troublesome things. When Negroes in other states read about some Negro
marrying a white girl up in New York under Tammany rule, it puts the devil in
GONZAGA LAW REVIEW
[Vol. 41:2
Crow laws, which were infused with white supremacy notions, were the foundational
pieces to the segregationist theory.22 On the other hand, we live in a time when
public racist statements are frowned upon and avoided in favor of an appearance of
social equality and judicial fairness. The discriminatory intent requirement emerged
as a doctrinal tool that embraced this positive cultural image;221 it adapted itself to a
them... you have a Negro buck going out and waylaying a white girl on the way
home from school in the rural districts of my state or some other state...
Whenever a Negro crosses this dead line between the white and the Negro races
and lays his black hand on a white woman, he deserves to die. That is the way we
feel about it, and we are not the only ones who feel that way. The senator from
Idaho [William Borah] once said in this chamber, 'You Southerners are not the
only ones who lynch Negroes for rape. We in the Northern states lynch them just
as quickly as you do when they commit that crime against a white woman,' and
that is true. It is the call of the blood.
Id Not a single senator moved to censure Heflin's remarks.
220. SeeGEORGE, supranote53,at 13.
The Black Codes placed blacks in a sort of twilight zone between slavery and
freedom. In South Carolina,..., blacks were prohibited from working in any job
other than agriculture without obtaining a permit. Louisiana required all black
farm laborers to sign a contract with the landholder during the first days of
January. This contract was binding for the entire calendar year, and blacks were
then not allowed to leave their place of employment without the landowner's
permission. Several states provided that 'blacks found without lawful employment
were to be arrested as vagrants and auctioned off or hired to landholders who
would pay their fines. Although the codes guaranteed some rights, such as
legalizing black marriages, allowing blacks to own property, and the right to sue
and be sued, the main purpose was to restrict blacks' civil rights. Interracial
marriages, ownership or possession of firearms, serving on juries, and testifying
against white men were all prohibited.
Id (footnotes omitted); WOODWARD, supra note 93, at 6-7.
In the early years of the twentieth century, it was becoming clear that the Negro
would be effectively disfranchised throughout the South, that he would be firmly
relegated to the lower rungs of the economic ladder, and that neither equality nor
aspirations for equality in any department of life were for him. The public
symbols and constant reminders of his inferior position were the segregation
statutes, or 'Jim Crow' laws. They constituted the most elaborate and formal
expression of sovereign white opinion upon the subject. ... [The segregation code]
lent the sanction of law to a racial ostracism that extended to churches and schools,
to housing and jobs, to eating and drinking. Whether by law or by custom, that
ostracism extended to virtually all forms of public transportation, to sports and
recreations, to hospitals, orphanages, prisons, and asylums, and ultimately to
funeral homes, morgues, and cemeteries.
Id.
221.
See KENNETH
KARST, LAW'S PROMISE, LAW'S EXPRESSION, VISIONS OF POWER IN THE
POLmCS OF RACE, GENDER, AND RELIGION 74-77 (Yale University Press 1993) (In his model of
formal racial neutrality, the author suggests that those who accept the premise of "racial neutrality,"
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
385
new generation of unconscious and submerged racial elements in order to maintain a
social22hegemony that does not look too different from the one that existed a century
2
ago.
Both doctrines contain inherent contradictions that can only be overcome by
recognition of their racial components. Justice Warren, in Brown v. Board of
223
Education, 2 acknowledged the theoretical inconsistency in the "separate but equal"
doctrine by explaining that "[s]eparate educational facilities are inherently
unequal. 224 The nature of the contradiction in "separate but equal" went undetected
and overlooked for over half a century225 because, in a culture where racial hierarchy
was accepted as a norm, the evil of "separateness" in "separate but equal" was folded
into the latter "equality" part of the doctrine. And the freed slaves were asked to do
the impossible-to exist as equals in a fundamentally hierarchical social fiamework.
Similarly, the discriminatory intent requirement also assumes the impossible-that
i.e., governmental neutrality on the subject of race, evaluate challenged discriminatory acts without
reference to their general societal contexts. These constituents assume that present conditions
represent equilibrium, that is, "as if history began this morning." In other words, "racial equality has
nothing to do with questions about black and white people's incomes or employment or housing or
education." The only relevant issue is "whether the letter of the law establishes different rights or
obligations for black and white people.").
222. See Lawrence, supra note 34, at 324-25.
The existing intent requirement's assignment of individualized fault or
responsibility for the existence of racial discrimination distorts our perceptions
about the causes of discrimination and leads us to think about racism in a way that
advances the disease rather than combating it. By insisting that a blameworthy
perpetrator be found before the existence of racial discrimination can be
acknowledged, the Court creates an imaginary world where discrimination does
not exist unless it was consciously intended. And by acting as if this imaginary
world was real and insisting that we participate in this fantasy, the Court and the
law it promulgates subtly shape our perceptions of society. The decision to deny
relief no longer finds its basis only in raw political power or economic selfinterest; it is now justifiable on moral grounds. If there is no discrimination, there
is no need for a remedy; if blacks are being treated fairly yet remain at the bottom
of the socioeconomic ladder, only their own inferiority can explain their
subordinate position.
Id (footnotes omitted).
223. Brown, 347 U.S. at 483.
224. Idat 495.
225. Missouri v. Canada, 305 U.S. 337, 352 (1938) (held that Missouri must afford separate
legal educational facilities to Blacks if the same facilities are afforded to white residents); Gong Lum
v. Rice, 275 U.S. 78, 87 (1927) (affinming the state's expulsion of a pupil who was a United States
citizen and of Chinese decent from a public school exclusively for white students did not deprive the
pupil equal protection of law); McCabe, 235 U.S. at 160; Beale v. Holcomb, 103 F. Supp. 218, 219
(1950).
GONZAGA LAW REVIEW
[Vol. 41:2
one can find a wrongful purpose226
in a tangible medium when such intent exists as an
unconscious social undercurrent.
Courts miss the point when demanding proof of racist intent because intent can
only be identified by one's conscious awareness of his or her decisions; and precisely
because we live in an unconsciously racist society today, one cannot be aware of the
underlying racist motives that drive him or her to a particular choice. 2 2 7 Thus, the
inherent contradiction between the judicial requirement
and the cultural context in
228
which it operates renders the task impossible.
Judges' reactions to the application of each principle are also quite similar. In
Plessy, Justice Brown dismissed the plaintiff's argument that "enforced separation of
the two races stamps the colored race with a badge of inferiority ' 229 by noting that
"[i]f this be so, it is not by reason of anything found in the act, but solely because the
colored race chooses to put that construction upon it.',23° In other words, a Supreme
Court justice saw the racial stigma in segregation as a manifestation of the plaintiff's
own inferiority complex rather 2than
a constructive effort to perpetuate social rankings
1
community.
Surrounding
by his
An analogous line of reasoning also surfaces in modem disenfranchisement
decisions that insist on proof of intent, as well as scholarly opinions that defend
disenfranchisement laws. 232 For example, in Jones, the district court judge, after
finding that the plaintiff failed to do the impossible,233 dispelled any racial
implications of disenfranchisement laws and observed: "The mere fact that many
incarcerated felons happen to be black and latino is insufficient grounds to implicate
the Fifteenth Amendment. ' 234
Roger Clegg also decried the repeal of
disenfranchisement statutes as an effort "to increase criminal's political power,":
The fact that these statutes disproportionately disenfranchise men and young
people is not cited as a reason for changing them, nor does it matter that some
racial or ethnic groups may be more affected than others. That criminals are
226. See Lawrence, supra note 34, at 343-44 ("There will be no evidence of self-conscious
racism where the actors have internalized the relatively new American cultural morality which holds
racism wrong or have learned racist attitudes and beliefs through tacit rather than explicit lessons.").
227. See id; supra notes 149-150 and accompanying text (describing leading cases requiring
discriminatory intent for constitutional challenges to facially neutral laws).
228. See Lawrence, supra note 34, at 319.
229. Plessy, 163 U.S. at551.
230. Id
231. Id.
232. See Jones, 3 F. Supp. 2d at 981, Wesley, 791 F.2d at 1562; Clegg, supra note 6, at 16869; Manfredi, supra note 8, at 299, 304 (disenfianchisement justified by "liberal principles of
citizenship and punishment.").
233. Jones, 3 F. Supp. 2d at 981 ('M]ak[ing] a connection between the historical
discrimination against blacks and the disenfranchisement of voters.").
234. Id.
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
387
"overrepresented" in some groups and "underrepresented" in others is no reason
to change the laws. If large numbers of young people, black people, or males
are committing
crimes, then our efforts should be focused on solving those
23 5
problems.
Clearly, when modem scholars and judges are confronted with law and its
resulting disparate racial impact, many have not shed the habit of looking at the
conditions of the subjugated as reasons for their own demise.236 Just as Justice
Brown rejected the racial stigma argument as a frivolous noise-maker for freed slaves
when he upheld "separate but equal,"2 37 courts and legal practitioners today put aside
the disparate impact of felon disenfianchisement laws as a decorative garnish and
urge the castaways to238stop accusing unfairness in the law and start avoiding their
felonious way of life.
Finally, the combination of the "War on Drugs" tactics and the discriminatory
intent requirement destroys any chance for ex-felons to prove the injustice in
disenfianchisement laws or to voice any political discontent with statutes that directly
affect their survival and reintegration. This multi-faceted political and legal
integration binds the victimized in a hopeless condition in which civil liberties are
taken away from them with apparent moral justifications and judicial legitimacy. The
resulting outcome of requiring a showing of discriminatory purpose is not too distinct
from that of upholding "separate but equal." Both instances lead to the preservation
of a social hierarchy that continues to morph itself through emergence of new
political tactics and judicial obstacles.
VI. CONCLUSION
Efforts to create a positive appearance of equality and justice feed our cultural
obsession with images. 239 In modem day America, the self-enforced "political
240
correctness" reflects our society's psychological need to reject the evils of racism.
It creates a delusion that the vestiges of slavery can be erased with the passage of laws
24 1
that provide equality and freedom without regard to the enforcement of those laws.
235. Clegg, supranote6,at 177.
236. ld.
237. Plessy, 163 U.S. at 551-52.
238. See supranote 221 and accompanying text.
239. See JoHN LEO, INCORREcT THOUGHTS: NoTEs ON OUR WAYWARD CULTURE, 10
(Transaction Publishers 2001) ("PC [political correctness] was actually a coherent social movement
sweeping steadily through the colleges, the courts, the media, the feminist movement, and the arts
world. The goals of the movement were... equality, inclusion, liberation, racial justice.").
240. See id.
241. See U.S. CoNsT. amend. XIII, § 1 ("Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly convicted, shall exist within the
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It sustains the hallucination that rights granted are the rights obtained. Because our
cultural psyche only recognizes apparent prejudices, it misses the underlying racial
242
components fed to us through various social mediums and stereotypes.
The judicial insistence on proof of discriminatory intent reinforces this artificial
understanding of racism in America. 243 By requiring plaintiffs who challenge facially
neutral laws to introduce evidence from a non-tangible medium, namely the
defendant's unconscious psyche, the judiciary misconceives social challenges and
acquiesces to political manipulations. 244 Consequently, just as the "separate but
245
equal" doctrine allowed segregation to flourish as a social norm in the last century,
the discriminatory intent requirement of our era justifies the perpetuation of
unrecognized injustice for the victimized in the twenty-first century. The modem
legal scheme ultimately allows a condition predicted by Justice Harlan in his dissent
in Plessy:
United States, or any place subject to their jurisdiction."); U.S. CONST.amend. XIV,§ 1:
All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
Id U.S. CONST. amend. XV, § 1 ('The right of citizens of the United States to vote shall not be denied
or abridged by the United States or by any State on account of race, color, or previous condition of
servitude.").
242. See Lawrence, supranote 34, at 343.
A crucial factor in the process that produces unconscious racism is the tacitly
transmitted cultural stereotype. If an individual has never known a black doctor or
lawyer or is exposed to blacks only through a mass media where they are portrayed
in the stereotyped roles of comedian, criminal, musician, or athlete, he is likely to
deduce that blacks as a group are naturally inclined toward certain behavior or
unfit for certain roles.
Id.
243. See supra note 149-150 and accompanying text
244. See id
245. See supra note 59 and accompanying text; see also GEORGE, supranote 53, at 35.
Separate facilities? Yes. Equal? Hardly. Blacks received one message from
whites, which was clearly stated and implied through treatment: Blacks were
inferior to whites and would never be considered equals, law or no law. The
burden of segregation weighted on America's black population not only through
legal separation from whites in public places and discrimination in business
dealings but also in the general attitude most southern whites held toward blacks
and the social customs which blacks were forced to comply. So it was that Jim
Crow laws and practices affected a black person from cradle to grave.
2005/06]
DISCRIMINATORY INTENT REQUIREMENT
The white race deems itself to be the dominant race in this country. And so it is,
in prestige, in achievements, in education, in wealth, and in power. So I doubt
not, it will continue to be for all time, if it remains246true to its great heritage, and
holds fast to the principles of constitutional liberty.
246. Plessy, 163 U.S. at 559.