Are African-Americans still protected by equal protection?

Sat Sep 9 14:23:00 PDT 2000

Dear Eugene,
Thanks for the comments and thoughts.  I agree, *formally* Blacks (and
everybody else) are protected by equal protection, but  equal protection for
Blacks--and other minority groups-- has been so eviscerated that it is
relatively meaningless.  It's not  so much that the COurt hasn't gone "so
far as some would like" as it is a reversion to *Plessy's* "we can't do
anything about 'societal' discrimination" punt by the Court.  This approach
ignores the law's role in shaping society and vice versa.  Moreover,  the
appropriation of "reverse discrimination" and suggestion by O'Connor in
*Croson* that  white people face stigma (and badges of
inferiority/servitude?) if there's any categorization such as MBE programs I
find *very* hard to swallow  and wildly out of touch with reality.  And then
there's the *San Jose* case  argued Sept. 6, where Kennard says 209  means
the "People of California by an overwhelming majority have made a policy
determination" [the overwhelming majority of those who bothered to turn out
and vote]  that Lockyer later said would return us "to de facto preferences
for whites."   So in theory Blacks are "protected" but  in fact we're back
to post-reconstruction in terms of formal constitutional law, IMHO.
        Best,
         Lynne

on 9/8/00 11:27 AM, Volokh, Eugene at VOLOKH at MAIL.LAW.UCLA.EDU wrote:

       That's a plausible argument for the claim that the Court hasn't gone
as far as some might like in protecting blacks -- but it still seems to me
very hard to say that blacks are not still protected by equal protection (in
the sense that once, under the Good Courts, they were, but now they aren't
any more).
-----Original Message-----
From:   Lynne Henderson [SMTP:hendersl at IX.NETCOM.COM]
Sent:   Friday, September 08, 2000 11:14 AM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Re: Are African-Americans still protected by equal
protection?

At one level, Prof. Duncan is right;  at another, he is overlooking
structures that are proxies for "whites only"--e.g., those things that track
race in a significant way.  Of course,the Supreme Court has made "disparate
impact" cases under Equal Protection (and increasingly under Title VII)
virtually impossible to win for prople of color challenging programs that
produce such skewed results.  Indeed, it is my hunch that the current
standard for "intent to discriminate" is almost impossible to meet--unlike
the standard for review of  proof necessary to uphold intentional murder in
criminal cases, which is fairly loose, or even for discrimination against
interstate commerce,  the standard of proof for intentional race
discrimination is not only beyond a reasonable doubt, it has to be absolute
proof interpreted narrowly.
Lynne

Lynne Henderson
Boyd School of Law-UNLV
lynne.henderson at ccmail.nevada.edu

on 9/8/00 7:52 AM, Rick Duncan at conlawprof at YAHOO.COM wrote:

> Andy asks whether the Equal Protection Clause still
> protects African-Americans or whether it currently
> protects only whites against Affirmative Action
> programs.
>
> I assume no one on this list doubts that a "whites
> only" scholarship at a public university would be
> struck down without a dissent as a denial of equal
> protection. Similarly, an admissions program that gave
> *white* students a large plus would be DOA in the
> courts under the Equal Protection Clause. Why aren't
> these cases showing up in the reporters? Because the
> state does not operate "whites only" scholarships or
> provide racial preferences in admissions to whites.
> Nor do we have 10% set aside programs benefitting,
> say, Irish-American contractors seeking government
> contracts. The only racial classifications that I am
> aware of in today's world are those that benefit
> non-whites; thus, the Equal Protection cases deal with
> these kinds of racial classifications and not with
> racial classifications that no longer exist.
>
> --Rick Duncan
>
>
> --- Andrew Koppelman <akoppelman at NWU.EDU> wrote:
>> I'm teaching fourteenth amendment this term, and am
>> trying to remember what
>> the last case is in which an African-American
>> plaintiff successfully
>> claimed that a state was unconstitutionally
>> discriminating on the basis of
>> race.  My guess is that it was Batson v. Kentucky in
>> 1986, and I can't even
>> guess what the last one was before that.  Am I
>> correct?  I suppose that
>> there are also some school desegregation cases in
>> which the lower court's
>> decree was upheld.  But my impression is that most
>> of the work that the
>> equal protection clause now does in the world is to
>> protect white people
>> from affirmative action programs.
>>
>> I'd like to have the views of this list's members,
>> but am doubtful whether
>> this is worth starting an on-list thread over.
>> There are issues of
>> constitutional law, but they are likely to be
>> tediously familiar to
>> everyone.  I just want to get the facts straight.
>> Eugene, can you offer
>> some guidance on this?  But I'd be very grateful for
>> off-list responses.
>>
>> ________________________________________
>>
>> Andrew Koppelman
>> Associate Professor of Law and Political Science
>> Northwestern University School of Law
>> 357 East Chicago Avenue
>> Chicago, IL  60611-3069
>> (312) 503-8431
>> mailto:akoppelman at northwestern.edu
>> ________________________________________
>
>
> =====
> Rick Duncan (conlawprof at yahoo.com)
>
> __________________________________________________
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