The Kerr principle, state action, and legal rights.

Author:Herzog, Don

A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed--even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an unconstitutional outcome. Jumping off from an analysis of that case, Professor Herzog shows that that structure recurs across a wide range of puzzling cases in constitutional law, some well-known, some not. Not only may the state not respond to some facts about private parties, sometimes it must actively combat them. So the structure raises questions about state action and legal rights. Herzog uses the structure to show that, despite conventional wisdom, state action is about responsibility, not causation. He then turns to legal rights and shows that neither purpose nor effects tests can explain the turns the law takes in these cases; instead, Herzog develops a new conception, that of the overextended rule.


Ordinarily, the state should do what citizens want. That's at the bottom of democratic responsiveness to public opinion, of the consent of the governed, and of the pursuit of social welfare. But sometimes the law bars that responsiveness. Sometimes, the state may not justify an action by appealing to the views of private third parties. And I don't mean cases in which the law, standing alone, is obviously unconstitutional. Instead, apparently unobjectionable laws, when coupled with particular facts about private parties, sometimes yield unconstitutional outcomes.

I dub this constitutional obstacle the Kerr principle, after the case that launches this Article. (1) At its core, the principle bars the state from serving as a conduit for private parties' illegitimate preferences. And the Kerr principle sometimes applies when there is really no plausible case that the state is concealing its own invidious purposes or otherwise somehow cheating. But only sometimes, so we need an account of why the Kerr principle kicks in only when it does. I offer the principle as a bit of mid-range theory, a conceptual structure that unifies and illuminates far-flung and baffling cases, some (in)famous, some unknown. So the Kerr principle has explanatory force: it saves us from the embarrassing business of making up one lame ad hoc story after another, case by case. And it has justificatory force: it's wonderfully easy to approve of the structure the explanation brings into view.

But I also want to press on and use the Kerr principle to get some traction on some slippery old problems about state action and legal rights. Let's take state action first. We're used to thinking that state action is about causation. In this view, you can't imagine a constitutional violation unless you can point to some state action somewhere in the (more or less immediate) chain of events leading to the illicit outcome. Against that view, I argue that state action is about responsibility, not any kind of causation. Causation routinely leads to responsibility, but it's neither necessary nor sufficient. Nor is my claim a utopian proposal about a better constitutional law than the one we actually have. Mythology aside, extant doctrine actually shows that state action is about responsibility. And that gives the Kerr principle surprising power: sometimes the state has to do more than fail to accommodate private preferences; sometimes it has to block them.

And then legal rights. Affirmative entitlements aside, we have two familiar pictures of how to think about legal rights. In one view, rights forbid the state from acting for certain reasons, but are wholly powerless against acts done for other reasons. In another, rights serve as shields against any and all state actions that (significantly) burden what the right protects. In the marathon ping-pong matches between purpose and effects tests, categorical rules and balancing, I root shamelessly for purpose and categorical rules. Purpose won't always do the requisite work, but I argue that we shouldn't take refuge in the indefensible project of balancing. Instead, I introduce a new category, that of an overextended rule. Whatever the state's purpose, a right can block it from using even a generally applicable rule in the wrong domain--and from responding to considerations properly off-limits. We're used to thinking a law can run afoul of the Constitution by not being generally applicable enough. It turns out that laws can also be too generally applicable to be constitutional. So the Kerr principle doesn't just explode a well-worn debate between two tired, or I daresay tiresome, alternatives. It points the way to a new, constructive alternative view of legal rights.

In Part I, I introduce the Kerr principle by exploring the case I've named it for, which I chose because it perfectly exemplifies the principle and because it should be much better known. (2) In Part II, I canvass cases embodying the same principle, some well known, some not, ranging from equal protection to free speech to establishment of religion. And I note some boundaries to the Kerr principle, settings in which the state is permitted, even required, to respond to the views of private third parties to justify its actions. In Part III, I show that the Kerr principle can require the state to take affirmative steps to avoid illicit outcomes. I survey court orders requiring such action and instances of [section] 1983 liability found in settings in which the state has done nothing. In Part IV, I ask what the Kerr principle suggests about legal rights and argue that contrary to appearance, it does not support the view that burdens on rights require balancing. Instead, I design some conceptual machinery to show what it does suggest. I'll cheerfully reveal my secret pugnacious instinct here, though I won't return to it explicitly: jurisprudence ought to go doctrinal. We can make headway by thinking not about the readily ridiculed idea of a legal right, but about actual legal rights.


I don't know why she sued. "I was never enraged or anything like that," (3) she recalled years later. "I just wanted to be able to get a job that I wanted." (4) But another time, she demurred that she'd never wanted the job. "I don't mean I was a radical," she said, but she sued "just to make a point," if also to open doors for others. (5) People "followed tradition, right straight down the line. That wasn't me. I was different." (6)

Louise Kerr had applied for a training program at Baltimore's Enoch Pratt Free Library. The library routinely had too many applicants, so the director and his assistants would decide who could take the competitive entrance examination. The staffer "looked at me in disbelief when I asked him for an application." (7) She was rejected. Why?

Well, she was black, and the library had a uniform history of rejecting black applicants--some two hundred of them, in fact. And once, it had had a formal policy of not hiring blacks as staff assistants "in view of the public criticism which would arise and the effect upon the morale of the staff and the public." (8) The city was twenty percent black, so the public in question must have been whites. Softening its earlier obdurate stance, the library had hired two blacks as technical assistants in a branch with mostly black patrons. But the library trustees also had resolved "that it is unnecessary and unpracticable to admit colored persons to the Training Class." (9) On this description, the library's decision to reject Kerr might look like an everyday case of forbidden racial discrimination. So she sued, alleging that she'd been refused "solely because of her race or color." (10)

The library denied it. The justification for excluding blacks from the training program, the district court found,

has been the determination of the Trustees that better service can be given to the people of Baltimore by selecting them only from white persons, for one reason, because the great majority of those who use the main library and most of its branches are white persons, and the great majority of the technical staff are also white. (11) The circuit court credited the finding. Don't sniff: there was evidence that the library trustees wished to do gradual battle with their white clientele's racism. (12) One trustee testified:

It was felt by the Trustees that service with colored librarians was not what was wanted by the users of the Pratt Library, and we felt it was something that should be worked out slowly. There are certain problems to be met. (13) Another testified:

I think we felt we were starting on a course of action which we hoped would be successful, and we did not feel it could be successful if it were advanced too rapidly, and I don't think any of us know just how far or how rapidly we can proceed along this line. (14) Much modern equal protection doctrine frets about a facially neutral rule with an illicit motivation. But here we have the inverse: a rule that's racially discriminatory on its face, but is justified by nonracial considerations. A formalist might say that the language of the rule--that it refers to race and so isn't colorblind--is sufficient to strike it down. But the complications here can't be handled so easily.

Suppose the board had adopted a rule that said, "In hiring and training decisions, ranking library staff must be attentive to serving the library patrons." Pursuant to that rule, ranking staff might decide that if the white public is racist, it would be wrong to train and hire black librarians: patrons would use the library less. The staff could make that decision...

To continue reading