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Smoking guns

| Monday, September 19, 2016

This year marks the 40th anniversary of one of the most critical Supreme Court decisions on race and discrimination, and yet few people are likely to have heard of it. Washington v. Davis (426 U.S. 229 (1976)) involved the constitutionality of Test 21, originally created by the federal government and used by various entities, including municipal police forces, to assess the qualifications of job applicants. The use of the test by the District of Columbia police force was challenged by African-American applicants who had failed the test.

In addition to other facts presented to the lower court, the applicants pointed out that between 1968 and 1971, 57% of black applicants failed the test, as compared to 13% of white applicants. The test was intended to be “race neutral,” but the plaintiffs in the case asserted that the effect of the test was to disproportionately favor white applicants, in violation of the Equal Protection Clause of the 5th Amendment of the U.S. Constitution, one of the Reconstruction Amendments that gave the rights of citizenship to newly freed slaves.

Consider this statement taken from Test 21:

“Although the types of buildings in ghetto areas vary from the one-story shack to the large tenement building, they are alike in that they are all drab, unsanitary, in disrepair and often structurally unsound.” The quotation best supports the statement that all buildings in ghetto areas are A) overcrowded; B) undesirable as living quarters; C) well-constructed; D) about to be torn down; or E) seldom inspected.

While I am not sure what this type of statement has to do with identifying effective and competent police officers, it reflects a cultural norm and perspective that is unfamiliar, if not outright hostile, to minority applicants. In addition to the condescending tone of the question, it uses idiom and vocabulary that may have proven difficult for applicants that dealt with generations of baked-in inequality in education. Black applicants were likely not surprised, but perhaps greatly disappointed, to face yet another seemingly race-neutral measure that operated to discriminate against otherwise qualified individuals. The U.S. Court of Appeals, District of Columbia Circuit, agreed with the plaintiffs and held that Test 21’s disproportionate impact on black applicants was unconstitutional. The D.C. police appealed to the Supreme Court.

Writing the majority opinion for the Court, Justice Byron White stated that precedent did not support the proposition that a law can violate constitutional equal protection solely based on its effect; it also needed a showing of governmental intent to discriminate. As with so many of the standards established by the Supreme Court  — e.g., “arbitrary and capricious,” “rational basis,” “clearly erroneous” — the standard used is often dispositive of the result. In this instance, Justice White employed a lower “rationally related” standard, where all the Court had to find to support use of the test was to determine that the test was rationally related to some legitimate government purpose. If such a rational relationship could be shown — e.g., assuring a minimum level of verbal skills — then the constitutionality of Test 21 was certain. The Court held out a glimmer of hope for future cases in stating that the additional evidence of intent may be enough to trigger a higher standard of review, i.e., strict scrutiny. Decades of litigation have demonstrated that without the smoking gun of intent, disproportionate impact cases since the holding in Washington v. Davis have been difficult to win.

A quick historical footnote about Justice White: Byron “Whizzer” White was an All-American football player at the University of Colorado. He was appointed to the Supreme Court by President Kennedy, and over time White proved to be an increasingly conservative voice on the Court. He dissented as to the requirement of the notice of rights in the face of police interrogation in Miranda v. Arizona, and also objected to the Court’s opinion legalizing abortion in Roe v. Wade. In an interview in the Los Angeles Times, he characterized the court’s ruling in the latter case as “an improvident and extravagant exercise … of raw judicial power.”

Now minority litigants facing disproportionate negative impact from government actions must meet the challenge of finding the fabled smoking gun — persons so intent on discrimination that that they leave clear evidence of their intent to deprive a segment of citizens of their constitutional rights. Perhaps it should not be a surprise, in this time of open-carry supporters, smoking guns still can be found.

Recently, in North Carolina v. NC Conference of NAACP (Order of August 31, 2016), the Supreme Court denied North Carolina’s request to stay a federal appeals court ruling striking down the state’s restrictive voting law, blocking voter ID requirements and restoring early voting, same-day registration, preregistration and out-of-precinct provisional voting. The law was challenged as allegedly discriminating against African-American voters and burdening the right to vote, in violation of the U.S. Constitution’s 14th Amendment and the Voting Rights Act.

Prior to the Supreme Court ruling, the executive director of North Carolina’s Republican Party emailed a memo to state elections boards, urging them to push for “party line changes” that cut back on early voting hours. The memo said that Republican board members “should fight with all they have to promote safe and secure voting and for rules that are fair to our side,” and that “Republicans can and should make party line changes to early voting.” Such clear evidence of partisan intent is rare, but the open display of such “smoking guns” may well serve to cause self-inflicted wounds on those who encourage racist actions in the guise of race-neutral restrictions.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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About Raymond Ramirez

Ray Ramirez is an attorney practicing, yet never perfecting, law in Texas while waiting patiently for a MacArthur Genius Grant. You may contact him at [email protected]

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