[SOUND] I've been talking about the chronology with regard to racial classifications requiring separation of the races, going from Plessy to Brown, and of course on Brown the court didn't specify a remedy. A year later, in 1955 the court decided another case called Brown versus Board of Education. This is often referred to as Brown II, and there again the Supreme Court did not give the NAACP what it wanted. It did not order an immediate end to segregation. Instead, the Supreme Court, the very famous language said, it would send the case back to the federal district courts to bring about desegregation quote, with all deliberate speed. Now, I've often found that phrase strange, even an oxymoron. Speed connotes haste, deliberate connotes going slow, how can you have slow going fast? And so it is that the court sends the case to the lower courts. And says, bring about this education with all to live with speed. In the decade after Brown, almost no desegregation was achieved. If you look at 1964, a decade after the Brown decision In Alabama, Mississippi, and South Carolina not one black child was attending school with a white child. In North Carolina, which always prided itself on being one of the more progressive of the Southern states, less than one-tenth, 1%. A black attended to school with whites then things begin to change with regard with schools some of was in 1964 the supreme court finally said that all too much deliberation and anonymous speech. Some of it is that the courts were, one by one, striking down the things that Southern states were doing to try to prevent school segregation. And, also, something very important happened from Congress. As I've talked about earlier in this lecture, Congress passed the 1964 Civil Rights Act. The most important civil rights law to be adapted since the 19th Century, the end of reconstruction. Title VI of the 1964 Civil Rights Act said that recipients of federal funds cannot discriminate on the basis of race. The then department of health education and welfare said that any school system that segregated on the basis of race would be deemed to violate title 6 and could not have federal money. Every school system requires and depends on federal money, and so this now was a sword to be used to end school segregation. Slowly segregation began to disappear. From 1964 to 1988, by every measure, American public schools became less racially segregated. There are many measures of this. You can look at the percentage of students who go to a school, there's more than 90% of one race. Since 1988, by every measure, American public schools each year have become more racially segregated, and according to UCLA professor Gary Orfield, they're becoming more segregated at an accelerating rate. Why is this? Well, a lot of it is to do with the Supreme Court. In 1974, in Milliken versus Bradley, the Supreme Court said generally, there cannot be inter-district remedies for segregation. That is, you can't take children from the city school and move them to suburbs, or children from the suburbs and move them to the city. Since often what you have in the United States is city school systems that are overwhelmingly minority students, so when I have suburban systems, that are overwhelmingly white, without some form of inter-district remedy, you're not going to achieve desegregation. Many school systems of the United States have inner city school systems where more than 90% students are minority, students of color. No amount of desegregation can work without inter-district remedies. In 1991 in Oklahoma City versus Dowell, the Supreme Court said once a school desegregation plan is in effect, it has to then be lifted, even if it means resegregation of schools. And most recently in 2007, and parents involved in community schools, say that school has never won. The Supreme Court said that school districts cannot voluntarily choose to use race as a factor in assigning students to schools to achieve desegregation. Cannot do this unless they meet strict scrutiny. All of this is contributed to the resegregation of American Public Education. Resegregation, that as Professor Oldfield says, is occurring in an accelerated rate. Now you'll notice that I'm talking about the progression with regard to segregation and desegregation. I have focused on schools. What about all of the other areas of southern life that were segregated by law? Here the Supreme Court did something very interesting. Starting in 1955 and continuing to the mid-1960s, The Supreme Court in a series of decisions, declared unconstitutional laws requiring segregation, but the Court did so without judicial opinions. So in cases involving buses, and parks, and beaches, and courthouse seating, one by one the Supreme Court declared those laws unconstitutional, but it didn't write an opinion, this is almost unheard of. It's the American, based on the English legal tradition, the judges write opinions to explain their reasoning, to be able to provide guidance to the lower courts and the legislature. But hearing the court declared the segregation unconstitutional without opinion. Maybe the court did this because it felt that the clearest message was to say, this isn't allowed. Without giving explanation. Maybe the court did this because they couldn't come up with an explanation they'd be unanimously agreed to. But there's also the sense of the court missed real opportunity. Never did the court write the opinion that explained why segregation is inherently incompatible with equal protection. After all, segregation is based on the assumption of the superiority of one race and the inferiority of another, and that's incompatible with the reigning notion of equal protection of the laws. So with regard to how to prove a racial classification, what I've discussed so far is racial classification that exists on the face of the law. There are laws that disadvantage minorities, laws that disadvantage white and minorities, and laws that require segregation of the races. But there's also another way of proving a racial classification. What if a law is facially race-neutral? It doesn't mention race, but the way it's administered has a racially discriminatory effect. Take, for example, the difference between sentencing for powder cocaine and crack cocaine. Powder cocaine and crack cocaine are physiologically the same, yet powder cocaine tended to be the drug of choice among whites, crack cocaine more among African Americans and Latinos. And the sentences for crack cocaine were 100, 200, 500 times greater than for powder cocaine. A tremendous discriminatory effect against blacks and Latinos compared to whites. There are many examples of this, the draft during the 1960s. African Americans were 11% of the population, but 50% of those drafted. So how are these laws that are facially neutral but have a discriminatory effect to be treated? The Supreme Court has said that if a law is facially race neutral, it'll be treated as a racial classification only if it can be proven that there's both a discriminatory impact and a discriminatory intent behind the law. The key case here was Washington versus Davis in 1976. Washington DC required that in individual had to pass the test in order to be a police officer. Statistics show that African Americans failed that test significantly more often than whites. Notice the Washington DC law was facially race neutral, said nothing about race. Just said if somebody wants to be a police officer they had to pass a test. But it was a discriminatory impact, and a challenge was brought under equal protection. The supreme court said proving discriminatory impact is not enough to show a racial classification. The law is facially neutral to prove a racial classification, to in legal terms, trigger strict scrutiny rather than rational basis with you. The plaintiff would have to approve that the intent, that the purpose behind the law was the disadvantaged minorities. Justice Byron Wright wrote the opinion for the court. He said, equal protection is meant to deal with intentional discrimination. He says besides, there's so many laws of all sorts, criminal laws for example, that may have more of an effect on minorities than on whites because race is correlated with poverty, and laws against that hurt the poor more than the rich. So we don't want to open all these laws to challenge them. And so it has been the law ever since, for 40 years now, that if a law is facially race neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory purpose. This has been important in many cases. Take for example the death penalty. There's a case called McCleskey versus Kemp. It involved the administration of the death penalty in Georgia. There were powerful statistics showing that the death penalty was administered in a racially discriminatory fashion. A University of Iowa law professor, since passed away, David Baldess had done statistical studies, holding all other variables constant and saying race was determining who was getting the death penalty. But the Supreme Court, in a 5-4 decision, rejected the constitutional challenge. The court said, that's just proof of discriminatory impact. To bring a challenge, there has to also be proof that either the intent behind the legislation of the death penalty, or the jury's motivation was racist. And so the court allowed the death penalty, even though there was the racially discriminatory impact. Or my example, the crack cocaine sentencing. Lawsuits were brought arguing that the disparity based on race between crack and powder cocaine, for denial of protection to blacks and Latinos. But the court once more upheld the law saying, proof of discriminatory impact is not enough. There should also be a showing of discriminatory intent. Is this desirable? Because what equal protection is about. Or is it undesirable, because equal protection should be about eliminating the discriminatory effects of laws in society. Given the history of racism in the United States, can't it be presumed that when there's such a discriminatory impact it reflects an underlying discriminatory purpose? But that's not what the Supreme Court has said. So then to pull this together, there's two ways of proving a racial classification. One is, it's right on the face of the law. The law in it's very term speaks of race. If so, the laws going to have to meet strict scrutiny, the law's unlikely to be upheld. The other is if the law is facially neutral. It doesn't mention race. But it's a fact, it's administration is to discriminate. Then it will be treated as a racial classification, only if it can be proven that there's both discriminatory impact and discriminatory intent, a very difficult standard to meet.
