Racial Exclusion: State Action and System-Reference
Chapter 2
Racial Exclusion: State Action and System-Reference
The Fourteenth Amendment to the US Constitution (1868) entitled all persons subject to its jurisdiction to the equal protection of the laws and empowered Congress to enforce the Amendment by appropriate legislation. Nonetheless, the Supreme Court upheld various forms of de jure and de facto racial exclusion well into the twentieth century.1 The contradiction between abstract legal equality and concrete racial inequality was abated by creative use of doctrines and tests, foremost among which were the “state action doctrine”2 and the “rational basis review.”3 The state action doctrine limited the regulatory scope of constitutional provisions to relations between the state and individuals and exempted those between private parties. The rational basis review found many state-mandated racial classifications in accordance with constitutional provisions.
Initially the only exception to this rule was slavery. Over time, however, the Court expanded the scope of state responsibility to actions previously considered private and found arbitrary racial classifications once held reasonable. For example, the exclusion of African Americans from primary elections administered by local parties was initially upheld as private action, but later struck down as state action. De jure racial segregation in public transportation, places of public accommodation and public education was initially considered reasonable, but was later found unreasonable and unconstitutional, as was the poll tax.4
Echoing Myrdal (1964 [1944]), variation in the Court’s rulings is often examined against a backdrop of social stratification. Be it as a “sociological predicament” of democracy (i.e., a tension between its egalitarian ideals and the reality of status hierarchy) or as a competition between a “white supremacist” and an “egalitarian transformative” institutional order,5 conflicts over racial equality are seen as struggles among different groups of people over “social esteem and material resources, for privilege and prestige.”6 At issue is the “exercise [of] governing power” over distribution of resources by placing people in “racial categories.”7 As industrialization, urbanization, internal and international migration, two world wars, the Cold War, the civil rights movement, etc. changed the balance of power between groups of people and/or institutional orders, so the story goes, systems of social meaning associated with the previous status hierarchy began to crumble and new ways of conceiving race relations became possible. Law has participated in this process by creating and maintaining certain constructions of race and foreclosing others.8 Throughout, the Court is seen as a majoritarian institution, usually supportive of the dominant political regime, and a defender of the rights of minorities only after they have acquired substantial political clout.9
Despite valuable contributions, such accounts rest on inadequate descriptions of the underlying structural transformations. While it is often acknowledged that claims to racial equality proliferate as the old stratified order begins to crumble, both such claims and their selective judicial validations are still examined in terms of the declining social order. What has been on the rise, however, is neither another stratified order nor an egalitarian one; rather, it is a functionally differentiated order that, while transformative, rests on contingent and often contagious social exclusions. Therefore, investigations of legal reasoning (as the terrain upon which the “struggle over power and meaning” unfolds and “the boundaries of the plausible and the realm of the reasonable” are negotiated)10 need to take into account the multiplicity of social systems by reference to which racial classification can be made meaningful, and examine the role of legal doctrine accordingly.
In other words, equal protection challenges based on race concern the use of race as a principle for social exclusion. By granting a hearing, the Court admits variety of extant legal meanings of the racial classification in question. As the meaning, intention and consequences of racial classification vary with the social system by reference to which they are understood,11 to appreciate the significance of the state action doctrine and rational basis review we need to examine their role in determining the system-reference of disputed racial classifications. This requires a shift of focus from the conflicting interests of groups and the Court’s side-taking therein to the differentiated functions of societal systems and the Court’s recognition thereof. We trace Court rulings in jury service, suffrage, access to public transportation and places of public accommodation, and finally public education. We see how the legal meaning of racial classification changes as the Court shifts its system-reference from interaction systems to organizations or from organizations to societal systems. The Court’s determination of the reasonableness of racial classification is explained accordingly. The argument is twofold: a) regardless of the actors involved, the state is found responsible for racial classification when the system in question is recognized to have a societal scope; b) regardless of the intentions or consequences, racial classification is found unconstitutional when the system in question is recognized to fulfill a differentiated function.
Jury Service and Law
In the adversarial legal tradition of the US, a jury has been seen as a defendant’s protection against the arbitrary administration of justice and an essential element of a fair trial.12 Racial exclusion from jury service denies both the equal right of citizens to participate in the administration of justice and the equal right of defendants to access justice. But until recently only the latter triggered judicial review of jury selection processes. Litigation was initiated on behalf of allegedly wrongfully convicted defendants rather than excluded jurors.
During the Reconstruction period (1865–77), statutory racial exclusion from jury service was repealed in most States as newly enfranchised blacks gained political clout. In Maryland, Kentucky and West Virginia, however, where minority black voters could not elect Republican governments, such exclusions remained in place. In 1879, Strauder v. West Virginia reversed the conviction of a black man by an all-white jury, holding statutory exclusion of blacks from jury service a violation of the Equal Protection Clause.13 Since then, many variations in the Court’s rulings on racial discrimination in jury service have involved changes in the evidentiary formulae to establish the occurrence of racial classification and determine the criterion of its reasonableness.
Absent statutory racial exclusion, for many decades it was almost impossible to establish racial discrimination in jury selection. For example, in 1898, Williams v. Mississippi unanimously upheld the death penalty of a black defendant by an all-white jury on the ground that he had not demonstrated actual discrimination in the administration of racially neutral criteria. At the time, Mississippi restricted jury service to voters and imposed a literacy test on voting. This ensured de facto exclusion of blacks from jury service without the need for de jure exclusion.14 Most convictions handed down by all-white juries were upheld by the Court, presuming the constitutionality of administrative action and deferring to fact-findings by State courts that had found no discriminatory state action. Even where no black person had served on a jury for decades, the Court put the burden of proof on the plaintiff to show discrimination in jury selection in his own case.
The result was enormous disparity in both access to and administration of justice depending on the dynamics of local politics. For the first three decades of the twentieth century, de facto racial exclusion in jury service remained in place in all southern States and black defendants were systematically denied equal access to justice, as lynching and mob-dominated trials in the primarily rural jurisdictions of southern States were left untouched.15 In the absence of national legal standards, jury selection remained subject to the dynamics of local politics.
A change was signaled in 1935 when, in Norris v. Alabama, a unanimous Court reversed the conviction of a black defendant by holding “systematic and arbitrary exclusion” of blacks from jury service a prima facie violation of the Equal Protection Clause. To determine whether a federal right was denied, the Court held, it was not enough to examine its denial “in express terms”; rather, the Court had to examine “whether it was denied in substance and effect.”16 This marked the beginning of closer examination of evidence and administrative action in jury selection by the Supreme Court.17 Although determining jurors’ qualification was a political question within State jurisdiction, the Court expanded the oversight of the legal system to the reasonableness of jurors’ qualifications and the efficacy of their application.
In subsequent years, the Court devised further distinctions to determine whether a racially disproportionate jury composition indicated deliberate and systematic exclusion or a random outcome of neutral classifications. The scope of state action was gradually expanded to all steps of the jury selection process, from statutory provisions, to their administration, to peremptory challenges by the prosecutor, and finally to those by the defense.18 So was the judicial oversight of their constitutionality.
In the 1960s and 1970s, to win an Equal Protection challenge to an all-white jury, the defendant had to prove systematic racial discrimination in administrative action.19 Yet, systematic racial discrimination alone did not automatically win the case. The defendant had to “prove that the decision-makers in his case acted with discriminatory purpose.”20 In 1991, Batson v. Kentucky did away with the requirement of systematic discrimination and allowed prima facie challenges based only on the facts of the case.21 Substantial racial under-representation on a jury would shift the burden of proof to the state to show the absence of deliberate racial exclusion. This decision made prosecutors’ use of peremptory challenges subject to judicial review and thus legal standards.
At the end of the twentieth century, the Court was divided over the constitutionality of racial discrimination in peremptory challenges. In 1990, Holland v. Illinois allowed the prosecutor to use race in peremptory challenges. The Court held that although the venire (i.e., the panel of prospective jurors from which a jury is selected) should represent a fair cross-section of the community, the “initial representativeness [could be] diminished by allowing both the accused and the State to eliminate persons thought to be inclined against their interests.”22
A year later, Powers v. Ohio held prosecutors’ race-based peremptory challenges in violation of the Equal Protection right of the excluded juror.23 It also gave the defendant third-party standing to raise an the Equal Protection challenge on behalf of the juror so excluded. The following year, Georgia v. McCollum extended that ruling to the defense. The Court called peremptory challenges by the defense state action, and gave the state third-party standing to file an Equal Protection challenge on the part of the excluded juror if the defense’s peremptory challenge was deemed racially discriminatory.24 Whether the defendant and the excluded juror were of the same race was inconsequential. The paradoxical nature of this decision was not lost on its opponents:
The Court reaches the remarkable conclusion that criminal defendants being prosecuted by the State act on behalf of their adversary when they exercise peremptory challenges during jury selection … but our cases do not compel this perverse result. To the contrary, our decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions … The ability to use peremptory challenges to exclude majority race jurors may be crucial to empaneling a fair jury. In many cases, an African American, or other minority defendant, may be faced with a jury array in which his racial group is underrepresented to some degree, but not sufficiently to permit challenge under the fourteenth Amendment. The only possible chance the defendant may have of having any minority jurors on the jury that actually tries him will be if he uses his peremptories to strike members of the majority race.25
Justice Scalia called the decision to treat the action of a criminal defendant prosecuted by the state as state action “terminally absurd” and added:
Today’s decision gives the lie once again to the belief that an activist, ‘evolutionary’ constitutional jurisprudence always evolves in the direction of greater individual rights. In the interest of promoting the supposedly greater good of race relations in the society as a whole (make no mistake that that is what underlies all of this), we use the Constitution to destroy the ages-old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury that they consider fair.26
How can we make sense of this divide in the Court over the constitutionality of race-based peremptory challenges by the defense? The Court seems to have come full circle: from limiting its inquiry to the formal denial of a right, to “strict scrutiny” of its denial in substance and effect, and again back to restricting itself to formal equality regardless of substance and effect.27 It is hard to connect the changes in the meaning of peremptory challenges to status stratification or competing institutional orders. In fact, both the National Association for the Advancement of Colored People and opponents of affirmative action programs on the bench were against the Court’s decision. In terms of a hierarchy of rights, expansion of the scope of state action to peremptory challenges by the defense appears to favor the “right of citizens to sit on juries over the rights of the criminal defendant” whose life and liberty might be at stake.28 Examination of the system-reference of peremptory challenges, however, gives the ruling another significance.
At issue seem to be two conceptions of the jury. Dissenting Justices in Georgia v. McCollum observed the jury in the traditional manner, as a buffer between the defendant and the legal system. Their primary question about jury selection concerned access to, rather than administration of, justice. The requirements of the two need not be in harmony. Thus, they argued that “a defense lawyer best serves the public not by acting on behalf of the State or in concert with it, but rather by advancing ‘the undivided interests of his client’.”29 That is why, even when the prosecutor’s peremptory challenges were subject to scrutiny, defense action was not scrutinized.30
The majority, however, observed the jury as part of the societal system of law itself, and the jury service as an opportunity to participate in the democratic process and administration of justice.
The jury system postulates a conscious duty of participation in the machinery of justice … One of its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse.31
For the Court, the primary function of the jury system was not to ensure fair outcomes for defendants, but to sustain “public confidence in the integrity of the criminal justice system.” Therefore, it was essential to demonstrate the non-prejudicial character of the process from beginning to end. The criminal defendant became a state actor when the Court observed that “in exercising a peremptory challenge, a criminal defendant [was] wielding the power to choose a quintessential governmental body.” Thus, it became “an affront to justice, to argue that the right to a fair trial includes the right to discriminate against a group of citizens based upon their race.”32 Access to and administration of justice became subject to the same legal standards.33
In sum, initially only de jure racial exclusion could automatically connect to the network of legal decisions and trigger the Equal Protection Clause. De facto racial exclusion failed to do so on its own. It required more connective operations to activate the Equal Protection Clause (e.g., evidence of discriminatory administrative action or intention). The reach of the Equal Protection Clause was gradually extended to systematic racial exclusion, non-systematic racial exclusion, prosecutor’s peremptory challenge and finally that of the defense. In each iterative application of the code “constitutional/unconstitutional” to what had formerly been assumed constitutional, another step in the process of jury selection became subject to constitutional standards and judicial oversight. What we have witnessed is the increasing functional differentiation of the legal system and the gradual autonomy of access to and administration of justice from the dynamics of local politics.
Suffrage and Politics
The Fifteenth Amendment (1870) brought racial discrimination in State and national elections under federal jurisdiction, but did not make all steps of the electoral process subject to constitutional standards.34 As with the jury service, in the absence of statutory racial exclusion, disfranchised plaintiffs were denied relief for decades. Lack of enforcement power, the supposedly moot character of post-election cases, and lack of jurisdiction over criminal interference with voting were among the reasons stated for denying relief.35 In southern States blacks were easily disfranchised by various means, including qualifying literacy tests, poll taxes, administrative ruses, registration fraud, direct intimidation and violence. While African Americans were entitled to vote, their enjoyment of that right was determined by the dynamics of local politics in which the Court would not intervene.
It was only in 1915 that Guinn v. United States annulled an Oklahoma Constitutional Amendment for its grandfather clause.36 In 1927 Nixon v. Herndon struck down statutory exclusion of blacks from primary elections in Texas.37 However, when Texas left voting qualifications to the discretion of party officials, and the Democratic Party of Texas banned African Americans from voting in primary elections, the Court found no fault.38 Nine years later, Smith v. Allwright found racial classification by local party officials unconstitutional.39
Remaining in effect for many years in various States,40 white primaries were complemented by discriminatory administration of voting qualifications, gerrymandering of voting districts and imposition of poll taxes. The Court has ruled against gerrymandering intended to dilute black votes, but it has not struck down electoral schemes such as at-large elections solely due to their disparate racial effects.41 Only in 1966, after the Twenty-Fourth Amendment (1964) had abolished the poll tax in federal elections,42 did the Court overrule its previous decision and hold unconstitutional all poll taxes in State elections.43
The change in the meaning of racial classification as the result of shifting its system-reference is best exemplified by rulings on the white primaries and the poll tax, albeit the poll tax did not directly involve race. Let us review them in more detail.
[The] Democratic Party in that state is a voluntary political association and, by its representatives assembled in convention, has the power to determine who shall be eligible for membership and, as such, eligible to participate in the party’s primaries … The Legislature of Texas has not essayed to interfere, and indeed may not interfere, with the constitutional liberty of citizens to organize a party and to determine the qualifications of its members.44
Smith v. Allwright found the state responsible for the same actions. This time the Court made a distinction between membership privileges of no concern to the state and those consequential to the electoral process:
The privilege of membership in a party may be … no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.45
While the party officials were neither paid nor controlled by the state, inasmuch as their actions determined access to the electoral process, the state became responsible for them. The formerly private action of party officials became state action when the system-reference of their actions changed from that of a voluntary association, i.e., an organization, to the societal system of politics.
Similarly, the once reasonable poll tax became the unreasonable poll tax by shifting the reference of its reasonableness from taxation to election, from the economic system to the political system. In Breedlove v. Suttles