Jim Crow's long goodbye.

• Author: Chin, Gabriel J.
• Position: Judicial discussions of affirmative action and racial justice - From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality

1. INTRODUCTION

   Most judicial discussions of affirmative action and racial justice are unsatisfying because they omit a fundamental category of evidence: Information which would provide a basis for evaluating the scope of Jim Crow and its systematic consequences. Some assessment of the entirety of the institution is necessary to have an informed view of whether Jim Crow has been eliminated. While there is much scholarship, legislative history and jurisprudence about particular issues such as school segregation or racial disenfranchisement, especially at specific times and places, there is apparently no source which makes it possible to analyze the scope of racial discrimination through law and custom over time on a national level. There is no source, for example, identifying all of the school systems in the United States that were segregated by law or custom, no reference listing even the largest governmental agencies and corporations known to have practiced formal racial discrimination in employment.

   The absence of systematic factual information and the consequent necessity of over-reliance on intuition are significant because the Supreme Court and its justices often explore the question of whether it is time to declare that they have put America's race problem behind them. In exploring these questions, the justices seem to believe that a level playing field is both important and legally significant.

   In Grutter v. Bollinger, (1) a majority of the Court concluded that the promised land had not yet been reached. The majority approved an affirmative action program at the University of Michigan Law School; in a series of opinions, every member of the Court addressed the question of when affirmative action would be unnecessary. Justice O'Connor's opinion for the majority noted that:

   It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased.... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. (2) Whatever the actual underlying rationale for this forecast, (3) the Court's prediction rests on the idea that within 25 years, a sufficiently racially diverse student body will be achieved through ordinary sorting and application processes. When that happens, the decades of debate about the permissibility of affirmative action and the rationales for it will become moot; affirmative action will not be justified as a means of remedying past discrimination, because it will have been remedied, and it will not be justified as a means of achieving diversity because diversity will result automatically, just as it does, for example, with respect to Asian Americans, Italian Americans, and those of the Jewish faith.

   Although the perspectives of the concurring and dissenting opinions were quite different, they shared with the majority the explicit or implicit premises that race-neutrality is desirable, that the nation is moving towards racial fairness and that judges can tell when (or that) the nation has achieved equal opportunity. Justice Thomas's dissent quoted Frederick Douglas, who argued for nothing more or less than equitable treatment: "'What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice.'" (4)

   Justice Ginsburg argued that the legacy of past discrimination was too weighty either to declare victory now, or even to establish any particular time limit:

   As lower school education in minority communities improves, an increase [in minority students with high grades and test scores] may be anticipated. From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action. (5) The opinions rest on the core value of equal opportunity, which seems to be the "justice" desired by Justice Thomas, as well as the engine of the increased grades and test scores predicted in Justice O'Connor's opinion, and hoped for in Justice Ginsburg's.

   Judicial evaluation of the development of African Americans in the context of the larger society is part of a long judicial tradition. In 1883, in the Civil Rights Cases, (6) the Court held that the Fourteenth Amendment applied only to state action, and thus that Congress had no power to prohibit private discrimination. They were also exasperated with undue congressional concern for special rights for African American:

   When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected by the ordinary modes by which other men's rights are protected. (7) In Regents of the University of California v. Bakke (8) Justice Blackmun voted for affirmative action with simultaneous conviction and regret:

   I yield to no one in my earnest hope that the time will come when an "affirmative action" program is unnecessary and is, in truth, only a relic of the past. I would hope that we could reach this stage within a decade at the most. But the story of Brown v. Board of Education, 347 U.S. 483 (1954), decided almost a quarter of a century ago, suggests that that hope is a slim one. (9) Again, although the conclusions differed, a century apart, both opinions reflected confidence that the "stage" of African American progress could be reliably determined. However, they support their conclusions primarily with judicial decisions, which, even if not quite random, cannot be assembled to create an accurate picture of the world.

   Judges could not base their decisions on systematic analyses of Jim Crow because there are no systematic analyses of Jim Crow. For example, we know there was segregation in the schools, but there is no single source identifying the school districts in this country practicing unconstitutional racial segregation and what happened in those school districts after Brown v. Board of Education. We know African Americans used to be excluded from all jobs or good jobs at some institutions, but there is no catalog of the major corporate and governmental employers who refused to hire African Americans and when those policies ended. We know African Americans and others used to be denied the right to purchase property in particular areas through racially restrictive covenants in real estate documents, but there is no national calculation of the prevalence of restrictive covenants and their effects on African American housing patterns and African American wealth creation. We know African Americans used to be denied the right to serve on juries in criminal and civil cases, but there is no estimate of the number of verdicts that might have been affected by this discrimination, or their economic and other consequences. We know that laws were passed to harm members of particular races, but there has been no effort to identify the laws still on the books designed to promote racial separation or deny African Americans equal opportunity.

   There are two major implications of the absence of this type of evidence. First, there has never been a formal national project to eliminate the structure and effects of racial discrimination the way there has been, for example, to eliminate polio or provide a national highway system. Such a project would be impossible without reliable information about the scope of racial discrimination. In the absence of a conscious, systematic effort to eliminate the vestiges of past discrimination it is much less likely that it will happen. Second, there has been no calculation of the national effects of racial discrimination, how society at any point differs from how it would have looked in the absence of discrimination. Again, such a calculation is impossible in the absence of systematic information about the scope of racial discrimination.

   Part II of this essay examines one of the most heavily studied and litigated aspects of Jim Crow, the state legislative response to Brown v. Board of Education, and shows that much of the statutory effort to evade Brown in the former Confederate states remains on the books, some of it in ways that could be used to discriminate on the basis of race now. (10) Part III explores some of the implications of the fact that large portions of the states' efforts to defy the Constitution remain on the books. (11) The essay concludes by proposing a comprehensive study of racially discriminatory laws and policies in the United States in order to make it possible for policymakers and the public to analyze the legacy of racial discrimination or lack thereof. (12)

2. JIM CROW LAWS ON THE BOOKS TODAY

   Perusal of the codes of laws (13) of the States of the Union shows that fifty years after Brown, Jim Crow has not gone away. Various Jim Crow measures, and in particular a significant fraction of the statutes enacted to derail integration, remain in the statutes or constitutions of Alabama, Georgia, Louisiana, Mississippi, Missouri, South Carolina, Tennessee, Virginia, and West Virginia. (14)

   1. MASSIVE RESISTANCE TO INTEGRATION

      Brown v. Board of Education's declaration that segregation in public schools was unconstitutional stunned many white communities in states practicing racial segregation. (15) One technique states used to avoid integration was simply to refuse to do it, (16) or even violently resist it. (17) This effort was supported by various kinds of state statutes.

      A significant example of this remains on the books in Louisiana. Sub-Part G-2 of the Louisiana Statutes governing public schools is titled "OPERATION OF...