Tag Archive for 'race'

On This Day: Regents of the University of California v. Bakke

On June 28, 1978—34 years ago today—a split Supreme Court ruled 5-to-4 that although affirmative action admissions policies were often constitutional, the University of California Medical School at Davis had violated the Fourteenth Amendment when it denied admission to a white man simply because 16 of the 100 seats were reserved for non-white students.

Allan Bakke, a white man, had twice sought admission to the medical school, and had been rejected both times. His college GPA and test scores exceeded those of any of the 16 minority students admitted; however, the University’s affirmative action program automatically set aside each of those 16 seats for non-white students.

The case eventually made its way to the Supreme Court, where Bakke contended that the University had violated the Fourteenth Amendment’s equal protection clause by refusing him admission solely on the basis of his race.

The Supreme Court found 5-to-4 in favor of Bakke; however, the ruling was not clear-cut. Four of the justices contended that the racial quota system was a violation of civil rights; four others argued that it was constitutionally permissible. Justice Lewis F. Powell, Jr., was torn. He contended that the use of race was valid as one of several admissions criteria, but ultimately broke the tie in favor of Bakke, arguing that the University’s rigid use of this system was unconstitutional.

In his opinion, with which four other justices concurred, Powell wrote:

. . . it is evident that the Davis special admission program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time the preferred applicants have the opportunity to compete for every seat in the class.

The split decision sent mixed messages. It upheld affirmative action systems as constitutional in some cases; however, it also placed limitations on the use of such policies, defining as unconstitutional the rigid application of racial quotas to the extent that said quotas went beyond ensuring diversity to infringe upon the rights of another group of students.

The validity and present-day necessity of affirmative action programs is still a topic of contention, as is the concept of reverse discrimination. Lawyers, judges, school officials, and the general public remain torn on the extent to which affirmative action helps and hinders—and this is a topic unlikely to be resolved anytime soon.

To read the full text of Powell’s opinion, click here.

To listen to the oral argument and the opinion announcement, click here.

For more information, and to view photos and video footage, click here.

To learn more, check out Howard Ball’s The Bakke Case: Race, Education, and Affirmative Action (University Press of Kansas, 2000).

For more on racial diversity in California, check out Mark Brilliant’s The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978 (Oxford University Press, 2010).

Numerous books discuss affirmative action, including Terry Anderson’s The Pursuit of Fairness: A History of Affirmative Action (Oxford University Press, 2005) and George Curry’s The Affirmative Action Debate (Basic Books, 1996).

On This Day: Shelley v. Kraemer

On May 3, 1948—64 years ago today—the Supreme Court in a landmark decision in Shelley v. Kraemer ruled that courts could not enforce racial covenants on real estate.

In 1945, the Shelleys, who were African American, purchased a home in a residential neighborhood in Missouri—a neighborhood which was governed by a private restrictive covenant preventing African Americans from owning property within the subdivision. A white family, the Kraemers, sued the Shelleys in an effort to prevent them from moving in.

A trial court ruled in favor of the Shelleys, but the Supreme Court of Missouri sided with the Kraemers, holding that the covenant was enforceable because it was purely a private agreement.

The case made its way to the Supreme Court of the United States, where six justices (three justices had previously disqualified themselves from the case) ruled unanimously that courts could not prevent real estate sales to African Americans, even when property was covered by racially restrictive covenants. Although private parties could abide by the terms of such covenants, they did not have the right to seek judicial enforcement when the restrictions were challenged, because enforcement by court injunctions would constitute state action in violation of the Fourteenth Amendment to the United States Constitution.

The decision stated, in part, that:

The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. Seventy-five years ago this Court announced that the provisions of the Amendment are to be construed with this fundamental purpose in mind. Upon full consideration, we have concluded that in these cases the States have acted to deny petitioners the equal protection of the laws guaranteed by the Fourteenth Amendment.

Although Shelley v. Kraemer (consolidated with the similar case McGhee v. Sipes) did not outlaw or eliminate racially restrictive covenants, it did, through its rejection of court injunctions, mark a major milestone in the fight for equality, foreshadowing significant improvements to come.

To read the Court’s opinion, click here.

Today, the Shelleys’ house in St. Louis, Missouri, is a national historic landmark.

Click here, here, and here to learn more about Shelley v. Kraemer’s companion case, McGhee v. Sipes. (This case was later remembered in the film The Color of Courage).

For more on this topic, check out Housing Desegregation and Federal Policy (ed. John Goering), available through UNC Press’s Enduring Editions collection.

Readers might also be interested in Olivia’s Story: The Conspiracy of Heroes behind Shelley v. Kraemer, in which Jeffrey Copeland constructs a first-person narrative based on archival sources and interviews to tell a story of racism and discrimination, and the struggle to combat them.

Remembering Hernandez v. Texas

On May 3, 1954—58 years ago today—the Supreme Court in its landmark decision Hernandez v. Texas ruled that Mexican Americans (and all other racial groups) were due equal protection under the Fourteenth Amendment to the United States Constitution.

After agricultural worker Pete Hernandez was indicted for murder by an all-white grand jury in Jackson County, Texas in 1951, his attorneys attempted to invalidate the indictment, arguing that Mexican Americans were barred from participating as jury commissioners, grand jurors, and petit jurors. In fact, a Mexican American had not served on a jury in his county in more than 25 years.

After the trial court denied Hernandez’s motion, an all-white jury sentenced him to life in prison. The Texas Court of Criminal Appeals affirmed the decision, and eventually the case made its way to the Supreme Court of the United States, where Hernandez’s lawyers contended that the Fourteenth Amendment guaranteed protection both on the basis of race and class, and that the jury selection process was discriminatory because of class-based exclusion.

In a unanimous opinion, the Supreme Court asserted that the Fourteenth Amendment extends to all racial groups—not just white or African American—and that the exclusion of a distinct class from jury service (given that there was a substantial number of persons of Mexican descent in the county) violated the Amendment’s equal protection clause. The ruling read, in part:

Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in there being no members of this class among the six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner. The judgment of conviction must be reversed.

A major triumph in the Mexican American civil rights movement, the case provided valuable precedent for later cases such as Cisneros v. Corpus Christi ISD (1971)—an education equality case which recognized Hispanics as an identifiable minority group. Hernandez v. Texas affected minorities of all backgrounds in its implication that all racial and class groups are protected by the Fourteenth Amendment.

The Texas State Historical Association has a great summary of the case: click here.

For more information, including case files, click here.

To read the abstract of the case, click here.

To read a news story published during the trial, click here.

To read a news story published one day after the ruling, click here.

To read a New York Times editorial referring to Hernandez v. Texas as “the Hispanic ‘Brown’ case,” click here.

For more information, check out Michael Olivas’ Colored Men and Hombres Aquí: Hernandez v. Texas and the Emergence of Mexican American Lawyering (Arte Público Press).

Historians respond to the killing of Trayvon Martin

This post has been crossposted from UNCPressblog.com. View the original post here.

Minkah Makalani, author of In the Cause of Freedom: Radical Black Internationalism from Harlem to London, 1917-1939, writes at the NewBlackMan blog:

Watching Sybrina Fulton and Tracy Martin fight back tears and struggle through an unimaginable range of emotions in talking about their son Trayvon Martin’s death, I recognized an expression I’ve seen only once before. It was the same look on my mother’s face nearly twenty years ago, when my brother died after being shot: empty, confused, lost. Like Trayvon’s parents, my mother had no reference for how to handle that depth of pain, for how to help her other children confront the unimaginable, while simultaneously planning a funeral and having to wrap her mind around never seeing a son she had seen nearly everyday for eighteen years.

Trayvon Martin’s killing at the hands of vigilante George Zimmerman, and my brother’s murder, are similar yet quite different. Both were teenaged black boys, and both of their killers remain free. Both were adored by their families and friends, had gregarious personalities, and their losses have left loved ones searching for answers to explain the fulsome lives cut so horribly short. And their deaths have revealed to those closest to them the fabric of a social order where the loss of black life figures less as a rupture than as an intricate weave in the pattern.

Makalani goes on to explore the perception of the black body in American society:

At the risk of a sacrilege, at issue is not whether Zimmerman was racist or hated black people. Outside the hate crime provision that would allow federal prosecution, whether he used a racial slur is largely irrelevant to the question of where and how black life fits into the structure of race in America. The claims and convoluted reasoning of Zimmerman’s father, lawyer, and friends that he is not racist, even if true, do not change the fact that Zimmerman operated within the matrices of race that deems black life a perpetual threat which only deadly force can halt. That Zimmerman was a vigilante helped bring this case into our national consciousness. But as Mark Anthony Neal explains, rather than an individual act, at issue is “the way that black males are framed in the larger culture . . . as being violent, criminal and threats to safety and property.”

I urge you to read Makalani’s full post, “Death Without Sanction or Ceremony,” at NewBlackMan.

Blair L. M. Kelley, author of Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson, approaches the subject from the classroom. She writes at Ebony.com:

When I teach about the history of the segregated South, sometimes my students remark that things are just as bad now as they were then, that conditions for Black Americans are still as bleak for too many. Often my response is that if someone were to hang me or them by that tree in front of the building, someone would come. The law would investigate. Our citizenship would matter in at least that crucial way.

This month is challenging that assumption. When Trayvon Martin was murdered for looking “suspicious,” killed without any pretense of a trial, the police failed to come. I know that they came to the scene of the crime, but they failed to come with the force of the law on behalf of this young man. His body was tested by the state with the assumption that somehow he was the criminal and needed to be screened for drugs and alcohol. It was Martin’s guilt, not his murderer’s, that was assumed on the scene. The police decided on the scene that Martin’s death was justified, not worthy of careful investigation or trial. They didn’t even bother to use his cell phone to try and contact his next of kin quickly. Instead his body would be left unidentified for days.

Read Kelley’s full post, “A New Strange Fruit: Martin’s Murder Takes Us Back” at Ebony.com.

The title of her article refers to an old ballad about lynching that was made famous by Billie Holiday. If you’re not familiar with the wrenching song, take a deep breath and watch Holiday sing it here:


Remembering Griggs v. Duke Power Company

On March 8th,  41 years ago, the Supreme Court in Griggs v. Duke Power Co. issued a unanimous ruling that transformed America’s workplaces, successfully striking a blow to employment discrimination.

In this case, the Legal Defense and Educational Fund of the National Association for the Advancement of Colored People (NAACP) represented thirteen African-American employees of North Carolina’s Duke Power Company—a company which plaintiffs argued had reserved the best jobs for whites and assigned African Americans to the least-desirable positions.

Although the Civil Rights Act of 1964 prohibited employers from discriminating on the basis of race, Duke Power—like many other companies—found ways around this legislation, in this case by requiring a high school diploma or specific IQ test scores as prerequisites for higher-level positions.

The NAACP legal team, led by Jack Greenberg, argued the case before the Supreme Court in 1970. The Supreme Court in a unanimous decision on March 8, 1971, ruled:

What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. . . . The [Civil Rights] Act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. . . . If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.

This decision represented one of the earliest examples of the “disparate impact” framework which has since been used to eliminate arbitrary barriers to equal employment opportunity for all individuals, and which was codified in the Civil Rights Act of 1991.

For more information and to listen to the oral argument, click here.

Another summary of the case and its significance can be found here.

The NAACP: 103 Years of History

On this day, 103 years ago, the National Association for the Advancement of Colored People (NAACP) was formed in order to secure for all citizens the rights guaranteed by the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution: an end to slavery, equal protection under the law, and universal suffrage for adult males.

Organized only six months after the Springfield (Illinois) Race Riot left eight African Americans dead, the NAACP brought together some of the nation’s most prominent civil rights leaders, both black and white. Within nine years of its founding, the NAACP had organized 165 branches, with a total of roughly 44,000 members.

Most Americans connect the NAACP with W.E.B. Du Bois, whose Niagara Movement had focused on many of the same goals; however, many don’t realize that Du Bois, who was one of 60 original members, was one of only a handful of African American members. In fact, when the organization named its first board of directors in 1910, Du Bois, as the director of publications and research, was the only African American among the NAACP’s executives. (William English Walling, Ida B. Wells-Barnett, Josephine Ruffin, and Jane Addams were other notable early members.)

Through democratic processes, the NAACP has consistently fought to eliminate racial prejudice and ensure equality for minorities. During the mid-1900s, the NAACP became increasingly well known for its lawyers’ tireless work within the court system. Lawyers such as Thurgood Marshall (who would later become the first African American Supreme Court justice) argued case after case, chipping away at legalized segregation and discrimination. (See, for example, Gaines v. Canada).

The organization’s official publication, The Crisis, which Du Bois founded in 1910, is still published today. And the NAACP continues to fight for equality, both within the courts and without. (See, for example, this recent lawsuit).

For more information about the NAACP, click here.

To learn more about the NAACP’s battle against segregation, check out Mark Tushnet’s The NAACP’s Legal Strategy against Segregated Education, 1925-1950 (UNC Press, 2005 reprint).

Kenneth Janken wrote a wonderful biography of one of the NAACP’s prominent members: Walter White: Mr. NAACP (UNC Press, 2006).

Troy Davis, Innocence, and the Death Penalty

The death penalty has become so infrequent in the United States that when executions take place, as they do behind closed doors in the quiet hours of the morning, they attract a great deal of attention. This is particularly true when race is in play, as it often is, and as it was in the two executions that took place on September 22, those of Troy Davis and Russell Brewer.

Brewer’s execution received short shrift in what felt like a rare reversal of attention. His crime, the horrific torture and murder of James Byrd, received a vast amount of press coverage back in 1998. Byrd was an African American man who was beaten and chained to the back of a truck by Brewer, who was white, and two other white men. The men dragged Byrd down a backwoods country road, leaving what was left of his body unrecognizable. (Ross Byrd, son of the victim, came out in opposition to the execution, saying that life in prison was punishment enough.) It was a hate crime that equaled or exceeded the bloody excesses of the Jim Crow era, and resulted in Texas Governor and current candidate for the Republican presidential nomination Rick Perry signing into law the James Byrd Jr. Hate Crimes Prevention Act, creating new punishments for hate crimes and becoming the foundation for similar federal legislation.

Troy Davis

If Byrd’s death left a legacy that at least seeks to protect people from hate crimes, Troy Davis lived out a much more troubling legacy: the long shadow of Jim Crow. Black men in the American South face execution in numbers far out of proportion to their population, most often for crimes against whites. This isn’t just true in the South, of course, but as Christopher Hitchens wrote recently in Lapham’s Quarterly, “the business of execution is carried on more enthusiastically and more systematically in the states of the former Confederacy.” That enthusiasm was on display at the recent GOP debate, when the crowd cheered the 234 executions that have taken place in Texas under Rick Perry.

That enthusiasm and a snarl of legal technicalities weathered the pull of a steadily eroding case against Davis. In 1991, Davis was sentenced to death for the murder of an off-duty police officer. The testimony of the witnesses called varied wildly as to the description of the shooter, who according to their accounts wore a white shirt or a yellow one, had facial hair or did not, was 20 or 30 years old, stood 6 foot 2 or 5 foot 9, and weighed 130 pounds or 180. And those are just a handful of the inconsistencies that emerged in witness testimony. Seven of nine witnesses later recanted. There was no physical evidence and the safety valves intended to keep innocents from death failed to function.

Yet the power of doubt in Davis’s case was brushed away when the Supreme Court ruled that in his appeal, Davis had to provide compelling evidence of his innocence, meaning that in order to remove himself from death row (and, by the way, spend the rest of his life in prison) Davis would need to meet a substantially higher standard than prosecutors did when they secured a conviction. In dissenting on the Court’s decision to grant Davis an opportunity to challenge his conviction, Justice Antonin Scalia infamously dismissed the idea that so-called actual innocence gave an appelant legal standing under the Constitution.

This renewed focus on witness reliability now joins with a renewed focus on innocence, which followed a renewed focus on the whether lethal injection hurts (if it does, then should our conscience?), which followed concerns about bias, which followed concerns about–well, you get the picture. But rather than these various issues coalescing into a single bloc of opposition against the death penalty, they seem to emerge piecemeal as one, then another, convicted criminal is executed. The concern aroused by the previous execution subsides and is replaced by a new concern. There is, in short, no momentum.

What does this mean? Most likely that the number of death sentences and executions in the United States will continue to decline. But also, that the small number of states and counties that actually execute people will dwindle to some lower limit and stay there. We know that counties that have executed one person are more likely to execute another–this is what one researcher calls “the power law of death.” The power law of death means that counties that have executed before are more likely to continue to do so, and that counties that haven’t won’t start. The numbers bear this out. Harris County, Texas, is the only county in the country that has executed more than 50 people since 1977. Its 116 executions is more than triple as many as occurred in the runner-up, Dallas County. Just 14 counties have executed 10 or more people, all of them in Texas, Oklahoma, and Missouri. If the main predictor of execution is execution, the death penalty can hardly be more arbitrary.

Is execution just a bad habit? Yes and no. We know that racial bias plays a huge role in the death penalty process, from indictment to execution, and that no amount of technical adjustments, such as those made following Furman v. Georgia, can eliminate it. We know that those with diminished mental capacity are more likely to be executed. We know that legal defense for the poor is often inadequate. And finding legitimate solutions to any of these problems, which would be a difficult task with a genuine desire to fix the problem, has become impossible since the death penalty assumed its position as a purity test for American politicians.

With little variation, supporters of an increasingly doctrinaire and punitive Republican Party supports, even relishes (the cheers at the debate), the prospect of execution. Those cheers didn’t signal bloodlust. Instead, they sprang from the kind of brutish defiance and willful ignorance that is a defining feature of modern-day conservatism (see, too, evolution, global warming, taxation). To be a true fan of the Republican team means savoring your opponents’ defeats, even if those defeats come in the form of men and women executed. Democrats, gambling as they often do that they cannot anger liberals so much that they’ll lose their support (they’re wrong–Ralph Nader, anyone?) and committed to bending over backwards to appease so-called Independents and moderates, trot alongside the wagon and sometimes partake in cowardly acts of support, the most notorious occurring in 1992, when candidate Clinton’s left the trail for Arkansas to oversee the execution of Ricky Ray Rector.


The death penalty’s efficacy as political shorthand exceeds its efficacy as punishment. Occasionally, grown-ups have said as much and abandoned it, most recently Pat Quinn in Illinois. But as long as Americans view the use of the death penalty as a form of political expression and as long as we cling to the belief that it offers closure to victims (a recently-invented concept that has gained traction without much proof of its existence); as long as race, poverty, and mental disability relegate its use to the least-valued among us; as long as we are satisfied with patches and safety valves, it will continue in one form or another. The rickety machinery of death, to use Justice Henry Blackmun’s term, will keep sputtering and lurching along, carrying with it men like Troy Davis and carrying with it, too, our national conscience. Our conscience deserves better stewards than the handful of politicians who insist on doing things as they’ve always been done.

What Is Race?

A new interactive exhibit in Charlotte, N.C., helps us examine our preconceptions about race and learn about genetic markers of race (a surprise to some:  there aren’t any; human beings are all remarkably similar under our skin).  Read about it in the Raleigh News & Observer here.

Food for Thought: Race and the Senate

Just two years after electing the nation’s first African American president, Americans now have a Senate without a single African American member …

New Books

Via Mary Dudziak, what looks like two great new books about race and identity in America: The History of White People by Nell Irvin Painter and The Making of African America: The Four Great Migrations by Ira Berlin. They’re reviewed in the New York Review of Books by Edmund Morgan and Marie Morgan.