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How the U.S. Supreme Court helped create police abuse

Identifying and fighting institutionalized racism in federal court is nearly impossible

A black teenager in Baltimore told Department of Justice investigators that as he and his girlfriend walked on a street near his home last January, two Baltimore police officers stopped him. They sought his brother, they told him, who they thought to be a drug dealer. One officer forced the teenager against a wall and frisked him, a Fourth Amendment violation that elicited no contraband. That officer then snatched off the teenager’s jacket and sweatshirt and frisked him again. No contraband.

“Give your girl your phone. I’m checking you right now,” the officer ordered. He then yanked down the teenager’s pants and boxer shorts and strip-searched him, a wildly illegal act, as his girlfriend and onlookers watched him suffer through a public affront to his human dignity.

The officers, however, depicted the event much differently. The search, they claimed in their police report, constituted a consensual pat down that uncovered narcotics. A strip-search? That never happened. The teenager’s public defender, however, received no evidence of those supposed narcotics and the state’s attorney’s office later dismissed the drug charges for lack of evidence.

The teenager filed a complaint with the Baltimore Police Department detailing his ordeal and identifying eyewitnesses. The teenager told the Department of Justice that after he filed the complaint, the same officer accosted him near a McDonald’s close to his home. That officer again threw him against a wall, “pulled down his pants, and grabbed his genitals.” No charges were filed against the teenager this time. The teenager believed the officer sought to retaliate and intimidate him.

This account, and many similarly harrowing tales, fill a 163-page report released by the Department of Justice detailing how Baltimore unleashes discriminatory policing upon its black citizenry. Such reports have become practically a cultural tradition: The Justice Department, after a widely discussed death of a black person at the hands of the police, descends upon urban metropolises, combs through minority neighborhoods, uncovers ingrained institutional racism, and finally issues an exhaustive report validating the local black population’s antipathy toward the justice system.

A protestor raises his fist outside of the Baltimore Police Department's Western District police station during a march and vigil for Freddie Gray, Tuesday, April 21, 2015, in Baltimore.

A protestor raises his fist outside of the Baltimore Police Department’s Western District police station during a march and vigil for Freddie Gray, Tuesday, April 21, 2015, in Baltimore.

AP Photo/Patrick Semansky

Baltimore now asks what to do next. Soon some other city will, too. And then another. Black folk, meanwhile, continue to walk a long tortuous path toward equality. America seemingly lacks the resolve to allow blacks to rest weary and wounded feet. Everyone, though, should wonder what got us here. Words in the U.S. Constitution guarantee equality under the law. Words in civil rights statutes guarantee equality under the law. Why does equality, despite decades of walking, seem to retreat into the horizon with every step forward?

The legislative branch can craft the words in an amendment or a statute. But words represent just a heart. The judicial branch makes the heart beat. The Supreme Court over the last 40 years has bleached the equal protection clause out of the Constitution and effectively repealed an integral part of Title VI of the Civil Rights Act of 1964. The space where that Baltimore police officer tightened his paws around that teenager’s genitals was created by a Supreme Court more interested in relieving state actors from their duty to comply with anti-discrimination law than in safeguarding the rights of people of color.

Civil rights attorneys’ use of the law to compel police departments to expunge racial discrimination from within promotes the nation’s interest in being the land where fairness reigns. But the Supreme Court has disarmed these attorneys, enabling departments around the country to fester as vast petri dishes for racism.

Congress, in 1866, drafted the Fourteenth Amendment, which, among other things, secured in the Constitution a federal guarantee of legal equality for the freed slaves with the equal protection clause. It reads “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” But a little more than a century later, the Supreme Court castrated this potentially potent guarantor of racial equality, impeding minorities in cities such as Baltimore from cleansing institutional racism from the criminal justice system.

The story starts, peculiarly enough, with blacks who aspired to become police officers in the nation’s capital. Anyone pursuing entry into the Washington, D.C., police force in the early 1970s had to successfully complete a 17-week training program, meet physical and character standards, be a high school graduate and earn a grade of at least 40 out of 80 on a test that measured verbal and reading ability, comprehension skills and vocabulary.

Blacks, however, disproportionately failed the test. In a class action lawsuit, blacks hoping to become officers contended that the statistical disparity in test scores between racial groups rendered the department’s hiring policy unconstitutional; they claimed it violated the equal protection clause. The plaintiffs stated, more specifically, that the city adopted a hiring policy that created a “disparate impact,” a disproportionately adverse effect on black applicants. Because, percentagewise, more blacks failed the exam than whites, blacks had a lower chance of qualifying for the police force. Their case, Washington v. Davis, reached the Supreme Court in 1976.

Justice Byron White, writing for a 7-to-2 majority, held that courts can only find that a law or governmental action violates the equal protection clause when a plaintiff demonstrates that a disparate impact resulted from a racially discriminatory motive. A plaintiff, in other words, has to show that a state actor intended to discriminate and that intention caused a discriminatory result. The plaintiffs presented no proof the D.C. police department intended to racially discriminate. The court, consequently, deemed the hiring policy constitutional. Plaintiffs since Davis must prove discriminatory intent to win an equal protection lawsuit. This puts a heavy burden on the backs of racial minorities, as McCleskey v. Kemp, decided in 1987, demonstrates.

A member of the Baltimore Police Department stands guard outside of the department's Western District police station as men hold their hands up in protest during a march for Freddie Gray, Wednesday, April 22, 2015, in Baltimore.

A member of the Baltimore Police Department stands guard outside of the department’s Western District police station as men hold their hands up in protest during a march for Freddie Gray, Wednesday, April 22, 2015, in Baltimore.

AP Photo/Patrick Semansky

Warren McCleskey, a black man, was convicted for the May 1978 murder of a white police officer during the robbery of an Atlanta furniture store and sentenced to death. McCleskey appealed his case to the Supreme Court, arguing Georgia administered capital punishments in a discriminatory fashion, violating the equal protection clause. Those who murdered whites were more likely to be sentenced to death than those who murdered blacks. Black killers, furthermore, were more likely to receive the death penalty than their white counterparts. Because McCleskey was black and his victim white, he was particularly likely to die at the hands of the state.

McCleskey lacked direct evidence of discriminatory intent. He used, instead, a statistical study, the so-called Baldus study, conducted by law professor Richard Baldus and social scientists. The study determined that during a 10-year period, Georgia’s prosecutors “sought the death penalty in 70 percent of the cases involving black defendants and white victims; 32 percent of the cases involving white defendants and black victims; 15 percent of the cases involving black defendants and black victims; and 19 percent of the cases involving white defendants and black victims.” Georgia juries, moreover, assessed the death penalty “in 22 percent of the cases involving black defendants and white victims; 8 percent of the cases involving white defendants and white victims; 1 percent of the cases involving black defendants and black victims; and 3 percent of the cases involving white defendants and black victims.”

Although McCleskey presented no direct evidence of discrimination, he offered a statistical analysis that excluded nonracial explanations.

The Supreme Court still rejected his claim. The Baldus study, the court held, proved neither Georgia prosecutors, nor his jury acted with discriminatory motive. The Baldus study shows racial imbalances that seem “to correlate with race,” Justice Lewis Powell wrote for a 5-to-4 court, “an inevitable part of our criminal justice system.” McCleskey’s death sentence was upheld. Georgia executed him in an electric chair in September 1991.

The Supreme Court’s requirement that plaintiffs prove discriminatory intent in equal protection cases creates dual dilemmas for civil rights attorneys. First, discriminatory actors can violate the equal protection clause if they prevent evidence of their discrimination from falling into the hands of their victims. Second, requiring proof of intentional discrimination ignores how implicit racial bias precipitates discriminatory results.

Examining one of the few cases where the Supreme Court found an equal protection violation helps illustrate the first dilemma. In Hunter v. Underwood, decided in 1985, black plaintiffs took aim at an Alabama felony disenfranchisement statute enacted in 1901 during the state’s convention to draft a new constitution. Two historians at the original trial testified that the men who re-wrote the constitution constructed the statute specifically to steal suffrage rights from black men. “Repeatedly through the debates,” one historian stated, “[constitutional convention] delegates say that they are interested in disfranchising blacks and not interested in disfranchising whites.” The statute produced the intended discriminatory effect. The Supreme Court, therefore, found an equal protection violation. But these historians could only document intentional discrimination because, in 1901, Alabamans stood on the proverbial mountaintop and screamed their discriminatory ambitions.

The world operates much differently in the 21st century, where the stench of overt racism rarely seeps into the public sphere. Racism now is more carbon monoxide, a deadly, odorless gas. Imagine that the prosecutor in McCleskey’s case truly sought the death penalty because of McCleskey’s race. How could McCleskey present proof? He, like all criminal defendants of color, had little ability to demonstrate intentional racial discrimination by a prosecutor.

Police stand guard as demonstrators, marking the one-year anniversary of the shooting of Michael Brown, protest along West Florrisant Street on August 10, 2015 in Ferguson, Missouri.

Police stand guard as demonstrators, marking the one-year anniversary of the shooting of Michael Brown, protest along West Florrisant Street on August 10, 2015 in Ferguson, Missouri.

Scott Olson/Getty Images

A prosecutor might also be influenced to seek the death penalty because of implicit racial biases against blacks. Implicit racial bias — the well-documented idea that hidden racial biases foraging through our brains tarnish our decision-making without our awareness — mars our cultural fabric and helps explain racial imbalances in the criminal justice system. Police officers stop, frisk and arrest black and brown people at elevated rates. Prosecutors bring charges against black and brown people for crimes they allow whites to skate away from. Those charges tend to be harsher. Juries convict at higher rates. Judges impose harsher sentences.

Overt discrimination — explicit anti-black animus — explains some of this. But social science demonstrates implicit racial bias also motivates such disparate outcomes. The Supreme Court has never directly addressed whether a decision resulting from implicit racial bias violates the equal protection clause. But a Supreme Court adhering to precedent would have to conclude that decisions tainted by implicit bias do not run afoul of the Constitution.

The Supreme Court has concocted an interpretation of the equal protection clause tailored for the Jim Crow era.

The equal protection clause, as interpreted, exerts pressure on states and cities to hide evidence of their discrimination rather than to prevent it. The Supreme Court permits discrimination because the evidence required to prove it rarely exists. The equal protection clause hence holds little more than symbolic value to people of color.

The Alabama state constitution, as amended in 1990, declared English the state’s official language. The Alabama Department of Public Safety, accordingly, changed the driver’s license exam to English-only. Martha Sandoval, as the representative of a class-action lawsuit, sued the state in 1996, arguing that the English-only exam violated Title VI of the Civil Rights Act of 1964.

Title VI prohibits agencies that receive federal funds from discriminating on account of race, color, or national origin. Two sections of Title VI are relevant here. Section 601 contains Title VI’s simple anti-discrimination principle: “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Section 602 allows federal departments and agencies to issue rules, regulations or orders that will further the anti-discrimination principle outlined in section 601.

The Department of Justice, pursuant to section 602, issued a regulation stating that recipients of federal funds “may not … utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.” Thus recipients of federal funds, in this case, Alabama’s department of public safety, are generally forbidden from pursuing or enforcing policies that generate disparate impacts. Sandoval argued that the Alabama’s driver’s license examinations discriminated against non-English speakers and thus violated this regulation.

But the Supreme Court, which decided Alexander v. Sandoval in 2001, never addressed whether Alabama violated the law. The case, instead, hinged on whether Sandoval had a right to sue. A 5-to-4 opinion, written by Justice Antonin Scalia, concluded that Section 602 did not give citizens a private right of action, meaning Sandoval could not bring a lawsuit to enforce the Section 602 regulation. She lost her case because she had no right to bring it. Sandoval could have sued under Section 601, but that section, Scalia wrote, only prevents intentional discrimination. Sandoval, of course, could never offer evidence that Alabama intentionally discriminated.

For a plaintiff to have a private right to sue under a section of a federal statute like Section 602, Congress must grant the right of a private person to sue. Section 602, though, fails to explicitly mention such a right. Section 601 mentions no right, either. A simple reason explains why.

When Congress devised Title VI, as Justice John Paul Stevens observed in his dissent, courts normally inferred that Congress intended to grant a private right of action when enacting these sorts of statutes. Scalia, who admonished that a judge’s duty was to discover what a law meant when it was written, ignored that when Congress wrote Section 602, it had every reason to expect that judges would infer a right to private action. The Sandoval opinion reveals the Scalia the civil rights community detested: a jurist who betrayed his own philosophy to reach his preferred anti-minority outcomes.

If the right to sue under Section 602 existed, the Supreme Court would have evaluated the legality of the English-only exam under a disparate impact inquiry. Just because a policy produces a disparate impact, though, does not make it illegal. It means, rather, that the state has to provide a compelling reason to justify the policy and demonstrate that the policy is “narrowly tailored” to the goal, that is, that the policy does not discriminate any more than necessary to achieve the compelling reason. Alabama could have won by clearing these two admittedly high hurdles. Disparate impact helps promote racial fairness because it forces states to examine their actions and avoid producing unequal outcomes absent strong justifications.

The Sandoval decision wrested a powerful tool away from Baltimore’s minority population, since the Baltimore Police Department’s conduct, per the Department of Justice report, engendered disparate impacts. Black community leaders, in fact, refer to “Two Baltimores,” with white Baltimore receiving much better service from the police department. The many problems rife within the department include poor oversight, substandard training and a lack of institutional controls to ensure that officers adhere to legal boundaries. Allowing citizens to pull the levers of anti-discrimination law would help spur the police department to act in a racially egalitarian manner. The fear of being sued motivates. And victory provides legal remedies that might introduce dramatic departmental reforms.

Judge Jerome Frank, in a 1943 judicial opinion, minted the term “private attorney general.” It describes a private attorney who pursues lawsuits on behalf of clients that are in the public interest. NAACP attorney Thurgood Marshall, a Baltimore native, represents the archetype of the private attorney general–a lawyer who during the Second Reconstruction pursued lawsuits not just on behalf of black folk contesting segregated education but also on behalf of a nation desperately needing to untether itself from racial apartheid.

One way to empower the American people,” writes Willamette University College of Law professor Gilbert Paul Carrasco, “is to recognize rights of action that enable the American people to act as private attorneys general for the enforcement of the civil rights laws. The federal government’s role is important, but, in many instances, the beneficiaries of the laws will be denied their rights if they are required to rely on the machinery of a federal agency for redress.”

Carrasco indicates how society forges progress through the court system: having laws that private attorneys general enforce to push racial equality through the wall of recalcitrance. The Supreme Court, though, has crippled such efforts.

“As a civil rights attorney who has litigated a variety of race discrimination cases over the past 20 years,” said Reggie Shuford, executive director of the Pennsylvania American Civil Liberties Union, “Supreme Court jurisprudence has sincerely hindered my ability to fight institutional racism.”

“Racism today,” he continued, “is more subtle and implicit, making it hard to satisfy a burden of proof that was established when racism and discrimination looked different. As a result, whereas federal courts were once a place of first resort in fighting institutionalized racism, today they fail to provide a meaningful remedy.”

The highest court could not strike the equal protection clause out of the Constitution, but it could interpret it so that private attorneys general would not waste their time bringing lawsuits. The Supreme Court could not void Section 602 of the Civil Rights Act of 1964, but it could plunder the right of private attorneys general to sue under it. We have, in theory, meaty guarantees of legal equality that, in practice, guarantee only morsels.

The next time the Department of Justice delivers a report documenting institutional racism in an American city, we need not wonder why this tragic ritual endures.

Brando Simeo Starkey is an associate editor at Andscape and the author of In Defense of Uncle Tom: Why Blacks Must Police Racial Loyalty. He crawled through a river of books and came out brilliant on the other side.