by Michael Avery

Protests by tens of thousands of Americans, black and white, have urged us to remember that Black Lives Matter. The movement is an outgrowth of concern over the epidemic of police violence against black people. But the issue of whether black lives matter as much as white lives is much broader. And from the beginning of our republic, it has been to a great extent a question of constitutional law. The nation’s founders wrote slavery into the Constitution to achieve compromises that would permit the creation of a United States. When that union was ripped apart by the Civil War, the Congress rewrote the Constitution to forbid slavery and to require that all people receive the equal protection of the law in the Thirteenth and Fourteenth Amendments.

As I was beginning to prepare my column for this month, I bought a new house. Trying to cut down on the boxes of files I had to move, I started to go through some of my papers. I came across a transcript of a speech I gave to a section of the Massachusetts Bar Association in 1991. My topic was racially motivated police misconduct, and I came to the conclusion that we cannot get very far in solving that problem through litigation. That had surprised me at the time, given that I was twenty years into a career as a civil rights lawyer and had spent a lot of my energy trying to right racial wrongs by bringing lawsuits. I continued to pursue that career and helped a lot of individual clients seek justice. But my opinion about the limits of litigation hasn’t changed. The Supreme Court is to blame.

Most citizens know the landmark Supreme Court cases on race: Dred Scott, which decided that black persons, whether slaves or not, were not citizens, and led to the Civil War; Plessy v. Ferguson, which established the doctrine of “separate but equal” that led to nearly a century of state-sponsored apartheid; and Brown v. Board of Education, which finally turned the tide and restored some of the promise of the Equal Protection Clause. In the last forty years, however, lesser known cases have raised doubts about whether the Constitution still protects equality.

Warren McCleskey was a twenty-one-year-old black man who participated in the armed robbery of a furniture store in Fulton County, Georgia, on October 12, 1978. A white police officer was killed. At least one of the bullets recovered from his body was fired from a revolver that matched the description of the gun that McCleskey carried, and two witnesses testified they heard him admit to the shooting. He was convicted of murder and sentenced to death.

His case reached the Supreme Court in 1987. He appealed his death sentence on the ground that carefully collected data proved that the criminal justice system in Georgia denied black defendants equal protection of the law. A law professor at the University of Iowa, David Baldus, studied over 2,000 murder cases in Georgia in the 1970s. He analyzed race and 230 non-racial variables that affected whether a defendant would get the death penalty. To determine the difference race made, Prof. Baldus used a statistical procedure known as a multiple regression analysis. He focused on homicides that were neither the most aggravated nor the least aggravated, in other words, cases in the mid-range where decision-makers had a real choice about what to do. After accounting for the influence of non-racial factors, he showed that in such cases a defendant charged with killing a white person was 4.3 times more likely to receive the death penalty than one charged with killing a black person.

The raw data was more dramatic. Defendants convicted of killing whites received the death penalty in 11 percent of the cases, but those convicted of killing blacks only 1 percent of the time. The sentence was death for 22 percent of black defendants convicted of killing white victims; 8 percent in cases with white defendants and white victims; 1 percent in cases with black defendants and black victims; and 3 percent in cases with white defendants and black victims.

The fact that a black person who kills another black person had only one chance in a hundred of getting the death penalty is startling. It raises the question whether anyone in authority cared about black lives. Prosecutors asked for death in only 15 percent of the cases where blacks killed blacks, compared to 70 percent of the cases where blacks killed whites. The Court accepted the Baldus data as correct for the purposes of McCleskey’s case.

The Fourteenth Amendment, adopted in 1868, provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The language is simple, and one would think it would be interpreted literally—that the law should protect everyone equally. Determining what that means in individual cases, however, is more complicated. When a statute or government regulation explicitly discriminates on the basis of race, proving a violation of the Equal Protection Clause is straightforward. We know that the law that required blacks to ride in the back of the bus was unconstitutional, although it’s worth remembering that the Supreme Court didn’t decide that until 1956, after the Montgomery, Alabama bus boycott and nearly a century after the Fourteenth Amendment was adopted.

We no longer expect, however, to find laws or regulations that are as blatantly discriminatory as hanging signs on water fountains, restrooms, or restaurants that say “Whites Only.” The contemporary problem arises when laws, regulations, or government actions discriminate in practice against black people, even though the rules do not mention race. Under these circumstances, applying the Equal Protection Clause is more complicated.

When McCleskey’s case reached the Supreme Court, the Court had already decided in previous cases, starting with an employment case in 1976, that the fact that government action discriminated in practice was not enough to find it unconstitutional. A majority of the justices had repeatedly ruled that only intentional, or purposeful, discrimination violated the Equal Protection Clause. That requires proof that officials consciously planned to discriminate on the basis of race.

The Court said that McCleskey needed to prove that decision-makers in his individual case intended to discriminate on the basis of race: namely that either the prosecutor or the jurors in his case recommended or imposed the death penalty because he was convicted of killing a white person rather than a black person, or because he was black rather than white. Finding such proof would be a near impossibility, since a criminal defendant has no power to review jury deliberations or to force a prosecutor to explain why he or she sought the death penalty.

Faced with that insurmountable hurdle, McCleskey argued that the statistics showed that race had so infected the Georgia system that we should infer that purposeful discrimination had taken place. The Court declined to do so. The Court reasoned that differences in treatment are inevitable. It said the four-to-one difference in the imposition of the death penalty based on the race of the victim did not compel a conclusion of intentional discrimination. Indeed, the Court declared it would require “exceptionally clear proof” to find that the prosecutor or the jurors had abused their discretion. It concluded that the Baldus data did not demonstrate “a constitutionality significant risk of racial bias.”

McCleskey also argued that once it had been shown that the system discriminated against blacks, the fact that Georgia officials were willing to tolerate discrimination should be treated the same as if they had intended to discriminate in the first place. That’s a persuasive argument, but the Court flatly rejected it. It said that a challenger must show that the government continued to maintain a system “because of,” not merely “in spite of,” its discriminatory effect. Again, as a practical matter, this would be nearly impossible to prove. One would have to find a record of legislators declining to make reforms explicitly for racial reasons.

After the Supreme Court rejected his appeal, Georgia executed Warren McCleskey in the electric chair on September 25, 1991.

Requiring proof of a purpose to discriminate by culpable government actors results in the denial of a remedy for discrimination where the law should supply one. The choice to define equal protection in terms of intentions rather than consequences tolerates government policies that destroy black lives. The stark reality of our current constitutional jurisprudence is that black lives don’t matter as much as the state of mind of government officials.

The Supreme Court has in effect focused on the perpetrators of discrimination, not the victims. Shouldn’t it be the harm to the victims that should be our principal concern? Picture the man stumbling toward the death chamber, knowing he was condemned to die because of the color of his skin, unable to avoid it because his lawyers could not prove that a particular person consciously intended to discriminate against him. Doesn’t requiring culpable perpetrators to invoke constitutional sanctions suggest that the injuries of the victims of discrimination do not compel a remedy—that black lives do not matter?

The way the Supreme Court interprets the Equal Protection Clause does not take into account how racial discrimination occurs today, neither with respect to police misconduct nor with respect to other issues. Consider, for example, the problem of segregated schools. In 2007, the Supreme Court reviewed efforts by Seattle, Washington and Jefferson County, Kentucky, to voluntarily reduce racial imbalance in their public schools by taking race into account when assigning students to schools. In 1954, when the Supreme Court decided Brown v. Board of Education, the principal problem had been de jure segregation—official government policies that maintained separate schools for whites and blacks. Today the problem is de facto segregation that results from social causes. Such segregation persists despite formal government policies that are neutral with respect to race. Seattle had never operated legally separate schools based on race and had never been subjected to court-ordered desegregation. Jefferson County had engaged in de jure segregation in the past. The federal court in Kentucky imposed involuntary desegregation plans from 1975 to 2000. Then it ruled that the problem was solved and terminated its orders.

In the next decade, officials in both Seattle and Jefferson County became concerned about the effect of segregated residential housing on racial imbalance in schools. They devised and adopted plans to address the problem. White parents filed lawsuits against the plans and took their cases to the Supreme Court. The constitutional question was whether a school district that had not operated legally segregated schools, or one where de jure segregation had been eliminated by court-ordered desegregation, might choose to classify students by race in making school assignments.

Residential housing segregation dramatically impacts the racial makeup of public schools. Housing segregation results from a complex matrix of historical discrimination in a variety of social institutions and practices, including intentional discrimination by sellers and real estate agents, the lack of equal employment opportunities, and systemic causes such as redlining mortgage loans by financial institutions. It is impossible to redress the consequences of this diffuse social discrimination by evaluating schools individually, requiring proof of intentional racial discrimination to justify imposing a remedy.

We cannot understand the threats to black lives today with a definition of racism that is limited to subjective and intentional discrimination. The image of Sheriff Bull Connor blowing civil rights advocates off the streets of Birmingham with water hoses is an important icon of civil rights history, but it does not describe the ways in which race affects contemporary society. Much racial discrimination is subconscious. Everyone uses stereotypes in daily life, often without knowing it. We place others into categories for a variety of purposes, without awareness of the racial consequences. These categories can become entrenched in our culture, and in institutional structures. The term “institutional racism” implies systems that predictably result in racial imbalance through deeply ingrained, although frequently unconscious, patterns of perception, classification, affinity, and associations.

Despite that, Chief Justice Roberts rejected the importance of social discrimination in his opinion for the Court in Parents Involved, concluding, as the Court had done in earlier cases, “[R]emedying past societal discrimination does not justify race-conscious government action.” The Court said that social discrimination is not that significant. Much of our social history was thus deemed irrelevant. The reality of black lives does not matter. The Supreme Court’s disregard for the actual conditions that cause school segregation all but destroyed the ability of local government to address the problem.

Conservatives reject race conscious remedies for discrimination and promote the notion that the Constitution is colorblind. Colorblindness has rhetorical appeal. It sounds fair to many people. When we substitute All Lives Matter for Black Lives Matter, however, we ignore the very real concern over police violence against black people that engendered the Black Lives Matter movement.

My principal expertise as a civil rights lawyer is police misconduct. I have litigated and written about police cases for over forty years and know as well as anyone that police officers may abuse their authority with persons of every race. To borrow a phrase, some of my best clients were white. But the well-publicized spate of deaths of black people in the hands of the police demands that we focus attention on the significant role that race plays in police misconduct.

The colorblind principle rejects any remedies for discrimination that are based on racial classifications. The Fourteenth Amendment, however, prohibits subordination based on race, but not all classifications based on race. Yale Law Professor Stephen L. Carter put it this way: “To say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppression is to trivialize the lives and deaths of those who have suffered under racism.” Prohibiting all racial classifications obscures the fact that racism is not merely a system that distinguishes one race from another, but one that allocates power to the white race and denies power to minority races.

The Court also justified its decision in Parents Involved with the argument that the Equal Protection Clause “protect[s] persons, not groups.” The view that the Fourteenth Amendment protects individuals not groups is a central element of a conservative understanding of the Equal Protection Clause. It limits both the scope of discrimination that can be considered as a justification for remedies, and the scope of who may benefit from such measures. This concept suggests that only a person who has directly suffered discriminatory treatment is entitled to a remedy. It implies that a history of underrepresentation of African Americans at a school or in a work place does not give a new African American applicant any greater entitlement to a place at the school or to a job than a white applicant, and that race conscious measures are inappropriate remedies for the underrepresentation of a minority group as a class.

This exclusive focus on individual rights ignores the fact that the Fourteenth Amendment was enacted to assist the freed slaves as a class. Slavery and the state-sponsored apartheid that followed were institutions designed to oppress the minority races and to benefit the dominant white race as a class, not discrete acts directed at individuals. The abolitionist movement and the Reconstruction Era constitutional amendments were intended to benefit the entire minority population. Remedies for a class of victims of discrimination should be appropriate under the Equal Protection clause.

Do black lives matter in the Supreme Court? Currently several constitutional principles and ideological positions stand in the way: that a person who challenges government action on the ground that it denies equal protection of the law must prove that officials intended to discriminate; that the Equal Protection Clause guarantees only equal opportunity, not results; that the government may not use racial classifications to remedy social discrimination; that the Equal Protection Clause secures the rights of individuals, not groups; and that the Fourteenth Amendment requires that government action be colorblind, rather than color conscious.

This conservative understanding of the Equal Protection Clause must change. As our understanding of racism matures from a focus on individual malice to an appreciation of unconscious and institutional racism, the jurisprudence of the Equal Protection Clause must be refined. An insistence on requiring proof of purposeful discrimination no longer protects black lives. A rejection of all racial classifications does not allow for necessary race-conscious measures to address social discrimination. Exactly what multi-factor tests should be employed will best be determined as individual cases reach the Supreme Court and the justices consider how to apply general principles to specific circumstances. That is our common law tradition.

It is important, however, to consider the role that politics plays in the selection of Supreme Court justices. The current state of equal protection jurisprudence is not the result of happenstance, or because the principles the Court has employed are doctrinally correct. Constitutional law has been influenced by a long term strategy by ideologues, such as the members of the conservative Federalist Society, to shape the law in this manner and to select judges who support their views. President Donald Trump has outsourced the selection of judges to the Federalist Society. His first Supreme Court appointment, Justice Neil Gorsuch, is irrevocably committed to the conservative point of view.

To make meaningful change, we must develop a greater consciousness among our citizens of the damage that has been done to black lives. The slogan Black Lives Matter is not simply a declaration of fact with which one can agree or disagree. To look on it that way invites the bland response that all lives matter. Black Lives Matter is an invitation to action, a summons to engage in change. In the future, will black lives matter in the Supreme Court? It depends upon whether the American people demand the appointment of justices committed to infusing the Equal Protection Clause with the teeth to ensure racial equality. 

Michael Avery is Professor Emeritus at Suffolk Law School in Boston. He began practicing law in 1970 and specialized in civil rights, police misconduct, and criminal defense.

Endnotes

1 McCleskey v. Kemp, 481 U.S. 279 (1987).

2 Washington v. Davis, 426 U.S. 229 (1976) (rejecting a challenge to a written exam to select police officers that excluded African Americans at a rate more than four times the rate for whites).

3 Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

4 Parents Involved, supra, 551 U.S. at 731.

5 Stephen L. Carter, “When Victims Happen To Be Black,” 97 Yale L.J. 420, 433-434 (1988).

6 Parents Involved, supra, 551 U.S. at 743 (emphasis in original).

7 For a history of the conservative legal movement and the Federalist Society, see Michael Avery and Danielle McLaughlin, The Federalist Society: How Conservatives Took the Law Back from Liberals (Vanderbilt University Press, 2013).

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