Louisiana Associated General Contractors: A Case Study in the Failure of a State Equality Guarantee to Further the Transformative Vision of Civil Rights

• Author: John Devlin
• Position: William Hawk Daniels Professor of Law, Louisiana State University
• Pages: 887-915

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William Hawk Daniels Professor of Law, Louisiana State University.

Introduction

In listening to the presentations that have been made by my colleagues over the last two days, I am struck once again by the virtually exclusive reference to and emphasis upon national sources of law: the national Constitution; national statutes; national courts and in particular the nine individuals who comprise the national Supreme Court. Certainly, this is not happenstance or oversight. If, as my colleague John White has asserted, modern Civil Rights law was "born" forty-nine years ago with the U.S. Supreme Court's decision in Brown v. Board of Education,¹ then it is also fair to say that it was born, at least in part, out of a largely justified loss of faith in state law processes as a primary guarantor of civil rights. For those of us who have studied-and usually, by doing so, promoted reliance on-state constitutional declarations of rights as primary sources of protection of rights, this may well be our dirty little secret. For the truth is, state constitutional rights guarantees proved, for much of the near-century from the abolition of slavery until the coming of Brown, largely incapable of protecting or promoting the civil rights of African American or other marginalized groups in society. As we all know, the battle cry of "states' rights" was and is more frequently invoked in opposition to, rather than in favor of, efforts to secure legal protection of civil rights. It remains rare for those who passionately support the civil rights agenda to also believe strongly in decentralization of the process of protection of civil rights by law. It appears equally rare for those who speak loudly of the need for states to return to their traditional role as primary protectors of rights to also believe strongly that such an independent tradition should emphasize real world protection of the interests of victims of societal discrimination. And, certainly, at least some state courts independently construing state constitutional or other sources of law in the area of civil rights have exhibited what appears to be unseemly glee in interpreting those state sources of law to make achievement of the goals of Brown more, rather than less, difficult.² Thus, there Page 888 surely are reasons to believe that those who might be tempted to rely on state law as a protector of civil rights would be casting their seed on stony ground indeed.

And yet . . . .

The last twenty years have shown that exclusive reliance on national law, national courts and the national Constitution to protect civil rights is no guarantee of progress either. The same quality of centralization that allowed progressive Justices to launch the civil rights revolution half a century ago, also-as several preceding speakers over the last two days have noted-allowed their successors to gradually convert the federal Fourteenth Amendment from its intended role as the basis of remedial civil rights legislation, into its new role as an obstacle to real world assistance for victims of structural unfairness in society.³ As the very premise of this conference confirms, virtually exclusive reliance on federal law has not, in the long run, served to preserve the vision of civil rights protection that was birthed with such hope in Brown. It may well be time to reconsider the merits of a more decentralized approach.⁴

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Accordingly, this paper attempts to begin a process of investigating whether state constitutions can serve as a source of principles which can be used to further the civil rights of those who are, to a greater or lesser degree, marginalized within our society. It will focus on the state constitutional tradition I know best, that of Louisiana. Unfortunately my conclusion will be that in Louisiana, at least, the prospect for robust independent state constitution based "voice" in civil rights is poor. There is little organic tradition of constitutional protection of civil rights in this state. Those provisions of the current Louisiana constitution which may have traction for this purpose are largely derived from federal sources and, not surprisingly, are unlikely to be interpreted in a manner that will provide a philosophical alternative to federal analysis of the Fourteenth Amendment's equal protection clause. Indeed, where the state judiciary has most notably departed from federal analysis of constitutional equality-in the Louisiana Supreme Court's decision in Louisiana Associated General Contractors v. State ("LAGC")⁵ - it has done so in a way that mirrors and furthers certain basic presuppositions of current federal law. Because of that flawed analysis, the Louisiana Constitution, as interpreted in LAGC, not only provides no truly independent contribution to debate over civil rights but also, I am sorry to say, creates an additional obstacle to achievement of real world equality for traditionally disfavored groups.

In other states, however, the prospect may be brighter. The last part of this presentation provides a very preliminary sketch of why some other states may have a better opportunity to provide a viable alternative to current federal analysis of constitutional equality and its relation to the achievement of a more transformative vision of civil rights. Some states do enjoy an indigenous tradition of constitutional protection of human equality, one which developed and Page 890 has been interpreted independently of the federal Fourteenth Amendment. In these states, the prospect for a truly independent state constitutional contribution to the debate remains alive.

Prologue: On The Meaning Of "Civil Rights" And The Lagc Disaster

I doubt that I am capable of defining what "civil rights" means, whether in some broader sense or in the particular sense that is the focus of this conference. However, I do feel confident in asserting that one aspect of that concept is and must be that the law is "purposive" with respect to the dignity and equality of citizens. Civil rights law (like the law of constitutional equality) should not be a mere system of formal rules divorced from social reality. Rather, I believe, the concept of civil rights under law that underlies Brown and its progeny includes an acceptance that one central purpose of civil rights law is to transform society, to destroy a social system that systematically subordinated certain groups of people and protected the de facto superior status of other groups. It follows, I think, that this notion of civil rights includes an acceptance that the law should not always be "blind" to race or any other characteristic that reflects or impacts on that system of subordination. According to this vision, law should instead remain aware of continuing social inequalities, and accept good faith race-conscious (as well as class-conscious, immigrant-conscious, age-conscious, gender-conscious, or any other relevant "conscious") efforts to undo those inequalities.⁶

If this is, indeed, what "civil rights" means, at least in part, then the 1996 decision of the Louisiana Supreme Court in Louisiana Associated General Contractors v. State ("LAGC")⁷ stands as a strong and negative indication of the present utility of state constitutional law regarding constitutional equality in relation to civil rights.⁸ In LAGC, discussed below, the Louisiana Supreme Court held that the state constitution's guarantee of individual dignity, section 3 of the Louisiana Declaration of Rights, absolutely prohibits the state from making any distinctions between persons on the basis of race and therefore precluded the state from establishing a set aside Page 891 program for minority contractors. The court went beyond federal law to hold that the state constitutional prohibition against such an affirmative action program is absolute, regardless of whether a particular program might be shown to be narrowly tailored to serve a compelling government interest-such as, for example, society's compelling need to redress the continuing effects of prior discrimination. The decision in LAGC has had and will continue to have a profound impact on the ability of state institutions in Louisiana to fulfill promise of Brown. Race-conscious affirmative action in Louisiana has largely ceased, except insofar as such efforts are directly mandated by federal law.

For one who, like me, both advocates a vision of civil rights and constitutional equality that would encourage rather than prohibit good faith efforts to target remedial programs for the benefit of those still suffering from the continuing effects of a history of discrimination, and who also hopes for a more pluralistic legal dialogue on the meaning and application of deep constitutional ideas, the decision in LAGC is problematic indeed. I applaud the apparent desire of the Louisiana Supreme Court to develop an independent body of doctrine regarding the meaning of "human dignity" as defined and guaranteed by the state constitution. However, as one who also believes that at least some forms of affirmative action are necessary to achieve real world equality, I mourn the actual result of LAGC. Thus the problems that...