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Purpose & Effect

Purpose & Effect. Washington v. Davis (1976). Facts: Test 21 has (race based) disparate impact Blacks not proportionally represented on Police Force Blacks fail Test 21 at higher rate than Whites Test 21 bears no relation to job performance Claim: Test 21 violates EP clause

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Purpose & Effect

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  1. Purpose & Effect

  2. Washington v. Davis (1976) • Facts: • Test 21 has (race based) disparate impact • Blacks not proportionally represented on Police Force • Blacks fail Test 21 at higher rate than Whites • Test 21 bears no relation to job performance • Claim: Test 21 violates EP clause • ENDS: Competent Police Force • MEANS: Intelligence Test (pass/fail Test 21) Con Law II

  3. Washington v. Davis (1976) • Standard of Review • Does “Test 21” discriminate on basis of race? • What does “deny equal protection of laws” mean? • Treatment as an equal vs. Equality of treatment • Difference between de facto and de jure discrim’n • When does discriminatory impact = discriminatory treatment? Con Law II

  4. Washington v. Davis (1976) • Why do 4 times as many blacks fail Test 21 as whites? • Intentionally discriminatory • Unintentionally discriminatory • Test 21 simply does a poor job of measuring ability • at least with respect to qualifications for police officer • Test 21 does a good job of measuring ability AND blacks are not as capable as whites • how significant is unconscious racism in America? Fails Strict Scrutiny Might Fail Rational Basis Test 21 does what it was designed to do – weed out unqualified applicants Con Law II

  5. Washington v. Davis (1976) • Test 21 does a good job in measuring skills required of a police officer in DC. • True or False • Dove Counterballance Intelligence test does a good job in measuring relevant skills. • True of False • Isn’t there a risk that “neutral” tests can easily mask intentional or built-in race bias? • See Sharif v. NY Educ. Dep't, 709 F. Supp. 345 (SDNY 1989) (SAT unlawfully discriminates on basis of sex) • Stevens: no bright line between purpose/impact try your luck Con Law II

  6. Requirement of Purpose • Only intentional discrimination covered by EP clause (and EP component of 5th amd. DP) • Burden is always on plaintiff to prove intent • Forbidden classification appearing on face of law • Smoking Gun (legis. history, other facts) • Systematic or gross statistical disparity • Not sufficient to prove intent, but raises inference • Burden shifts to defendant to proffer plausible race-neutral reason for disparate impact • Burden then shifts back to plaintiff to prove that state justification is false or implausible • Why isn’t disparate impact unconstitutional? Con Law II

  7. Requirement of Purpose • Palmer v. Thompson (1971) • Racially-motivated purpose in closing white-only swimming pool did not render action illegal • Not because legislative purpose is irrelevant • But because after the action, there was no longer any disparate impact • Both discriminatory impact AND purpose are required • Exception: racial discirmination appearing on face of law • Different standards apply to civil rights laws • Note discussion of Title VII • Disparate impact alone may violate the statute • Is this within congress’ power? Con Law II

  8. Arlington Heights v. MHDC (1977) • Intent to discriminate need not be sole purpose; but must be a “motivating factor” • Race is an illegal factor for any state action • But, if race is only one “factor” state has opportunity to show that it was not a dispositive factor • I.e., the same action would have been taken anyway • Why should state be able to sanitize after the fact? • Indicators • legislative history (smoking gun) • unusual/unpredictable outcome • Since wealth discrim. is ok, it is often used as proxy for race disc. Con Law II

  9. Personnel Admin. v. Feeney (1979) • Does Massachusetts veterns preference discriminate on the basis of sex? • Or on basis of military service? • Disparate impact on women would be immaterial • Only 1.8% veterans are female, 98% male • US military discriminates against women • Neutral Mass. law incorporates effects of intentional discrimination of another entity • This defendant (not all state actors combined) must intend to discriminate against the suspect class Con Law II

  10. Personnel Admin. v. Feeney (1979) • Problem of multi-actor discrimination • Where end result (ultimate outcome) is the product of multiple levels of discrimination, eg: • private bias (housing patterns) serves as basis for • unequal school district funding, which results in • unequal educational opportunties, which results in • racially disparate admissions results at state college • Each entity responsible only for own action • Awareness (even continuation) of racially disparate effects does not equal intent • Action must be because of, not in spite of, race • State has no obligation to redress de facto discrim’n Con Law II

  11. Rogers v. Lodge (1982) • Facts: • Blacks a majority in Burke Cnty, GA • Single multimember district voting scheme • No blacks ever elected to Bd of Commissioners • Intentional Race discrim? • Multimember districts violate EP if "conceived or operated as purposeful device to further racial discrim. by minimizing, cancelling out or diluting the voting strength of racial elements.” Con Law II

  12. Rogers v. Lodge (1982) • District Court findings: • Historical (de jure) practice as proof of intent • Other impairments • Party discrimination • County size made electoral participation difficult • Neutral in origin but maintained to “submerge the will of the [racial] minority” Con Law II

  13. Hunter v. Underwood (1985) • Disparate Impact • 10x Blacks disenfranchised by AL Const. § 182 • Minor offenses such as presenting a worthless check and petty larceny fall under § 182, while more serious nonfelony offenses such as second-degree manslaughter, assault on a police officer… do not • Discriminatory Purpose • Motive of individual delegates not relevant • Must be unifying purpose • found on face of legislation or in leg. history • smoking gun: Intent of 1901 Act clear in record Con Law II

  14. Hunter v. Underwood (1985) • Discriminatory Purpose • Intent of 1901 Act clear in record • delegates believed the crimes selected for inclusion in § 182 were more frequently committed by blacks • Convention of 1901 was part of a movement that swept post-Reconstruction South to disenfr. blacks • "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." • Is law saved by intent to disen. poor whites too • State must show it would have been enacted anyway • Effect of 14th Amd. § 2? Con Law II

  15. The remainder of these slides not covered Fall, 2006 Con Law II

  16. source: USDoJ, Divil Rights Division, Voting Section Con Law II

  17. No. of Black Southern Legislators, 1868-1900 & 1960-1992 Con Law II

  18. McClesky v. Kemp (1987) • Claim: GA capital sentencing administered in a racially discriminatory way • Discriminatory administration of neutral law • Compare Yick Wo • Baldus study Con Law II

  19. McClesky v. Kemp (1987) • Claim: GA capital sentencing administered in a racially discriminatory way • Discriminatory administration of neutral law • Compare Yick Wo • Baldus study 4.3 times as likely to receive death sentence Con Law II

  20. McClesky v. Kemp (1987) • Discriminatory Intent • Sentencing disparity was intended to fall along racial lines • Does gross stat’l disparity raise inference of intent? • Which shifts burden to state to show plausible non-discriminatory purpose • Powell: such a non-discrimiantory purpose is shown: McClesky committed murder • Discretion is built into the system (const’ required) • Perhaps blacks objectively more deserving of DP than whites (other factors controlled for in Baldus study) • Different state actors (juries) in each case • Does Georgia DP statute enforce private bias? • Any way to overcome that without declaring DP unconst? Con Law II

  21. McClesky v. Kemp (1987) • Discriminatory Intent • Is discriminatory intent shown if state retains a law or practice it knows to produce racially disparate outcomes? • Neutral when adopted, but intentionally maintained to produce disparate outcome • Neutral when adopted, and state simply indifferent to racially disparate outcome (DP given 11 times as often in white-victim cases than black-victim cases) • Brennan: lest we forget, this is GEORGIA we’re talking about • Noted in Furman v. Georgia (1972; DP unconst’l) awareness of discriminatory impact is not sufficient Con Law II

  22. McClesky v. Kemp (1987) • Discriminatory Impact • Were it not for such discriminatory design, McClesky would not have been sentenced to death …. or • Were it not for such discriminatory design, McClesky would not have been as likely to be sentenced to death • Victim race influences risk of DP • Compare affirmative action cases Con Law II

  23. Mobile v. Bolden (1980) • 15th Amendment • “The right of citizens of the United States to vote shall not be denied or abridged .. on acount of race, color, or previous condition of servitude” • Same requirement of purpose applied • Do multi-member (at large) voting districts violate 15th amd if blacks can’t get elected? • No structural imped-iments to voting • Unequal voting power must be analyzed under the 14th amd Con Law II

  24. Mobile v. Bolden (1980) • Do multi-member (at large) voting districts violate 14th amd if blacks can’t get elected? • 35% of Mobile is black; no black ever elected • but 3/14 in single district state legislative elections • S.Ct. has noted the “winner-take-all aspect [of at-large districts], their tendency to submerge minorities and to overrepresent the winning party” • Racial districting violates EP (Gomillion, Shaw) • Still must prove intent • What relevance of past de jure discrimination? • No “original sin” Con Law II

  25. Proving Intent • Arlington Heights v. MHDC (1977) • Hunter v. Underwood (1985) • smoking gun: Intent of 1901 Act clear in record Con Law II

  26. Peremptory Challenges • State action? • By prosecutor in criminal case? • By defense lawyer, or lawyers in civil case? • Batson v. Kentucky (1986) • Prima facie case (statistical disparity?) • Burden shifts to offer race-neutral explanation • Evaluation (by judge) of the explanation • Hernandez v. NY (1991) • Exclusion of latino juries justified by race-netural explanation – language ability “Batson Hearing” Con Law II

  27. Manheim Counterbalance Test • At what campus in May, 1970 did national guardsmen shoot and kill students protesting the Vietnam War? • Who wrote the "Invisible Man"? What is the novel about? • What was the original name for the Los Angeles area? • a. Alta California • b. Aztlan • c. Ciudad de Los Angeles • d. Bear Flag Republic • A synonym for "jim crow" is: • a. buzzard • b. raven • c. apartheid • d. bourbon • Who is the "father of rock and roll"? • a. Chuck Berry • b. Elvis Presley • c. Buddy Holly • d. Bill Haley • Where do you end up if you follow the "drinking gourd"? back Con Law II

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