Protecting the 14th Amendment
By Eva Paterson
Huffington Post

For almost 150 years, the 14th Amendment has been the backbone of civil rights law in America. Its protection of individual rights for all — from freed slaves to immigrants to workers fighting against race discrimination — has made this amendment an honorary member of the Bill of Rights.

No wonder it is under attack.

In recent months, Republican Senators and state legislators have sought the public spotlight by calling for an end to the amendment’s guarantee of citizenship to those born on U.S. soil. If a child’s parents are not documented, they shout, that child should not be allowed to be a citizen. If they had their way, they would roll back a U.S. Supreme Court decision, U.S. v. Wong Kim Ark, decided more than a century ago.

If this is what the enemies of the 14th Amendment are doing in the spotlight, imagine what they are doing behind the scenes to eviscerate the measure. Those who want to turn the clock back on civil rights also are trying to undo the Amendment’s Equal Protection clause, making it virtually impossible for victims of discrimination to find justice in our courts. Read more.

A recent decision handed down by the U.S. Ninth Circuit Court of Appeals raises this important question: Can victims of contemporary forms of discrimination and disparity find justice in our courts?

The court ruling came in the case of Sylvia Darensburg, an African-American mother of three who lives in East Oakland. Every day, along with tens of thousands of low-income African-American, Asian and Latino bus riders in the Bay Area, Sylvia experiences the reality of transit inequality.

According to the case, Darensburg v. Metropolitan Transportation Commission, Sylvia relies on the AC Transit bus system as her primary means of transportation to her job during the day and to college classes at night. She endures long waits for the two buses she needs to take, with each trip taking an hour or more each way. On her way home at night, she has to walk 12 blocks from the nearest bus stop in her neighborhood.

Sylvia is not alone in making such an arduous journey—almost 80 percent of AC Transit riders are people of color, and over 70 percent have incomes below $30,000. Nearly 60 percent are entirely dependent on public transit. Click here to read the article.

Earlier this year, the Equal Justice Society (EJS), the Lawyers’ Committee for Civil Rights, Legal Services for Prisoners with Children, and the American Parole and Probation Association submitted an amicus brief in the Ninth Circuit case, Farrakhan v. Gregoire, which would determine whether Washington’s felon disenfranchisement law violated the Voting Rights Act of 1965 (VRA). Section 2 of the VRA was enacted to protect against racial discrimination in voting, and prohibits states from using any voter qualification system that results in a denial of the right to vote on account of race or color. Here, Washington’s disenfranchisement law resulted in the loss of voting rights to an astonishing 24 percent of African-American men and 15 percent of Washington’s overall black population.

An earlier ruling by a three-judge panel of the Ninth Circuit relied on undisputed, “compelling” evidence of racial bias throughout Washington state’s criminal justice system to determine that the disproportionate disenfranchisement of Blacks, Latinos and Native Americans as a result of this bias violates Section 2 of the VRA. The case was subsequently taken up by an en banc, eleven-judge panel.

In a disheartening ruling, the en banc panel overruled the three-judge panel and upheld Washington’s felon disenfranchisement law. While acknowledging the presence of discrimination in Washington state’s criminal justice system, the court declined to adopt the previous holding that Washington’s disenfranchisement law violates the VRA because it found no evidence of intentional discrimination.

The court concluded:

[P]laintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.

Because plaintiffs presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained, we conclude that they didn’t meet their burden of showing a violation of the VRA. (Emphasis added.)

The court’s conclusion is particularly troubling given that – as noted by the earlier three-judge panel – voter discrimination need not be intentional to violate Section 2 of the VRA. In fact, Section 2 was explicitly drafted to cover both intentional and disparate impact-based instances of discrimination. The court’s holding provides yet another example of how the “intent” requirement first articulated in the 1976 Supreme Court case Washington v. Davis gradually has crept into areas of law beyond 14th Amendment equal protection jurisprudence, denying victims of discrimination access to meaningful relief in a wide variety of contexts.

According to EJS President Eva Paterson, “In the years since Washington v. Davis was decided, the requirement of proving discriminatory intent has barred countless victims of discrimination from accessing a legal remedy because it fails to address contemporary forms of discrimination. We no longer have George Wallace’s chanting: ‘segregation now, segregation tomorrow, segregation forever’ on the school house steps, yet we continue to see race-based disparities in almost every measure of societal well-being. Requiring proof that these disparities resulted from ‘intentional’ discrimination simply makes no sense in an age when the majority of racial bias is implicit or structural.”

Extensive empirical and theoretical research confirms that implicit bias substantially motivates disproportionate outcomes even absent an express intent to discriminate. However, courts have been slow to acknowledge this reality. For instance, in McCleskey v. Kemp, a 1987 Supreme Court case, a habeas petitioner presented statistical evidence showing grave disparities in the imposition of the death penalty in Georgia. Specifically, a review of over 2,000 cases illustrated that the death penalty was assessed in 22% of cases involving black defendants and white victims, and just 1% of those involving black defendants and black victims. Likewise, application of the death penalty was 4.3 times higher when the defendant was charged with killing a white victim. Despite this clear evidence of systemic racial bias, the Supreme Court held that the petitioner failed to show discriminatory intent or purpose sufficient to establish a violation of the Equal Protection Clause. Moreover, the Court insinuated that accepting McCleskey’s claim would require the court to address discrimination present throughout the criminal justice system, a task that was simply “too large” for the Court to undertake. Making a similar argument in Farrakhan, the Pacific Legal Foundation asserted that allowing disenfranchisement statutes to be invalidated based on unintentional racial discrimination would require states to monitor their criminal justice systems to ensure that arrests and convictions were “racially balanced.” [1]

These arguments fly in the face of the notion of equal protection enshrined by the 14th Amendment. That the task of “addressing systemic bias within the criminal justice system” is too large is not a reason to avoid undertaking it. In fact, justice demands that we do undertake this task, alongside the task of addressing systemic bias throughout our society, and that our courts do the same. This is why the Equal Justice Society’s commitment to overturning Washington v. Davis and the Intent Doctrine is so essential. Voters in Washington State and victims of discrimination everywhere should again be able to rely upon the 14th Amendment’s guarantee of equal protection under the law.

The Equal Justice Society is a national legal organization that promotes a vision of a society where race is no longer a barrier to opportunity. To achieve its mission, EJS is active in a number of criminal justice and voting reform initiatives, as well as cases that highlight modern-day manifestations of discrimination.

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[1] Bob Egelko, Court upholds Washington inmate voting ban, The San Francisco Chronicle, October 8, 2010, available at: http://articles.sfgate.com/2010-10-08/bay-area/24117303_1_felons-appeals-court-justice-system

Equal Justice Society President Eva Paterson spoke with Berkeley, Calif.-based KPFA radio earlier today about Height’s passing. We’ll add the audio from that conversation once it becomes available.

President Barack Obama mourned Height’s passing. “Michelle and I were deeply saddened to hear about the passing of Dorothy Height – the godmother of the Civil Rights Movement and a hero to so many Americans,” said the President via the White House press office. “Ever since she was denied entrance to college because the incoming class had already met its quota of two African American women, Dr. Height devoted her life to those struggling for equality. She led the National Council of Negro Women for 40 years, and served as the only woman at the highest level of the Civil Rights Movement – witnessing every march and milestone along the way. And even in the final weeks of her life – a time when anyone else would have enjoyed their well-earned rest – Dr. Height continued her fight to make our nation a more open and inclusive place for people of every race, gender, background and faith. Michelle and I offer our condolences to all those who knew and loved Dr. Height – and all those whose lives she touched.”

“I am deeply saddened by the passing today of my dear friend and mentor, Dorothy Irene Height,” former U.S. Secretary of Labor Alexis M. Herman said. “She was a dynamic woman with a resilient spirit, who was a role model for women and men of all faiths, races and perspectives. For her, it wasn’t about the many years of her life, but what she did with them.”

“Throughout her life, Dr. Height inspired countless women to become effective leaders. She advocated for families and encouraged children to value education and social justice. To draw on the words of NCNW founder Mary McLeod Bethune, Dr. Height leaves us love, hope, the challenge of developing confidence in one another, respect for the use of power, faith and racial dignity. She was a national treasure who lived life abundantly. She will be greatly missed, not only by those of us who knew her well, but by the countless beneficiaries of her enduring legacy.”

For her years of service to the nation, which stretch back to her work with former First Lady Eleanor Roosevelt, Height was awarded America’s two highest civilian awards, the Presidential Medal of Freedom in 1994 by President Bill Clinton and the Congressional Gold Medal in 2004 through an act of Congress.
Height’s name is synonymous with the NCNW, an organization she headed from 1957, when she was elected the organization’s fourth national president, to l998, when she became the group’s chair and president emerita.

She was a key figure throughout the Civil Rights Movement. She was the female team leader in the Civil Rights Leadership, along with the Rev. Martin Luther King Jr., Whitney H. Young, A. Philip Randolph, James Farmer, Roy Wilkins and John Lewis. At the 1963 March on Washington, Height was on the platform when King delivered his “I Have a Dream” speech.

During the civil rights era, Height led NCNW to deal with unmet needs of women and their families by combating hunger and establishing decent housing and homeownership programs through the federal government for low-income families. Her organization led voter registration drives and established “Wednesdays in Mississippi” where interracial groups of women would help at Freedom Schools. The organization’s accomplishments under Height are numerous. NCNW developed model international, national and community-based programs that were replicated by many other groups, from teen-age parenting to pig “banks” that addressed hunger in rural areas. In 1975, she initiated the sole African-American private voluntary organization working in Africa, building on the success of NCNW’s domestic projects.

NCNW established the Bethune Museum and Archives for Black Women, the first institution devoted to black women’s history, and the Bethune Council House as a national historic site. The organization dedicated the statue of the first woman and person of color on public land, Mary McLeod Bethune, in the nation’s Capitol. It also established the Black Family Reunion Celebration in 1986 to reinforce the historic strengths and traditional values of the African-American family. Height was also a key figure in the YWCA beginning in 1937 as assistant executive director of the West 137th Street branch of the New York YWCA.

From 1944 to 1977, she served on the staff of the National Board of the YWCA of the USA and held several leadership positions in public affairs and leadership training. Additionally, she served as director of the National YWCA School for Professional Workers. In 1965, she was named director of the Center for Racial Justice, a position she held until her retirement. In l970, Height spearheaded the YWCA Convention’s adoption of its “One Imperative” to the elimination of racism. Born in Richmond, Va., and reared in Rankin, Pa., Height’s career as a civil rights advocate began in 1933 when she became a leader of the United Christian Youth Movement of North America in the New Deal era.

She worked to prevent lynching, desegregate the armed forces, reform the criminal justice system and allow free access to public accommodations. She was also known for her extensive international and developmental education work.

She was one of 10 American youth delegates to the World Conference of Life and Work of the Churches in Oxford, England.

In 1938, Height was one of 10 American youth invited by Eleanor Roosevelt to spend a weekend at her Hyde Park, N.Y., home to plan and prepare for the World Youth Conference to be held at Vassar College. In 1939, she was a representative of the YWCA to the World Conference of Christian Youth in Amsterdam Holland. In 1947, Height became national president of Delta Sigma Theta after serving for three years as vice president. In 1952, she served as a visiting professor at the University of Delhi, India in the Delhi School of Social Work.

Height also experienced her share of the kind of discrimination that she spent her life fighting. In her memoir, Open Wide the Freedom Gates, she described her traveling to New York’s Barnard College at their request for an interview.

“Although I had been accepted, they could not admit me,” she wrote. “It took me a while to realize that their decision was a racial matter: Barnard had a quota of two Negro students per year, and two others had already taken the spots.”

She subsequently pursued studies at New York University, where she earned her Master’s Degree in psychology.

At its 1980 commencement ceremonies years later, Barnard College awarded Height its highest honor, the Barnard Medal of Distinction. She has received 36 honorary doctorate degrees.

The state Senate Public Safety Committee yesterday approved a bill proposing changes in the criminal justice system to ensure that no one is sentenced to die because of race or ethnicity.

Senate Bill 1331, the “California Racial Justice Act,” introduced on Feb. 19 by Sen. Gilbert Cedillo (D-Los Angeles), is modeled after similar legislation already enacted in Kentucky and North Carolina. The Act seeks to remedy a defect in the criminal justice system where the race or ethnicity of the defendant, the victim or the jurors may skew how the death penalty is applied.

Five senators voted in favor of moving the legislation forward: committee chair Sen. Mark Leno, bill author Sen. Gil Cedillo, Sen. Loni Hancock, Senate President pro Tem Darrell Steinberg and Sen. Roderick Wright.  Sen. Dave Cogdill and Sen. Bob Huff voted in opposition. The bill, with amendments, will be re-referred to the Senate Committee on Appropriations.

EJS staff attorney Sara Jackson and Aundre Heron of California Crime Victims for Alternatives to the Death Penalty were among those testifying in support of the bill.

“If California continues to impose the death penalty, it is vital that we ensure that the justice system weighs all factors in a case and that no one is sentenced to die because of the race or ethnicity of the individuals involved,” said Sen. Cedillo. “The Racial Justice Act would create a procedure for the court to determine whether race was a significant factor in the decision to seek or impose the death penalty in each case.  Procedural hurdles that prevent a full and fair hearing based on racial bias should be eliminated to ensure the integrity of our justice system.”

Research shows that the death penalty is not applied fairly in California. A defendant is three or four times more likely to be sentenced to die in cases where the victim is white than in cases where the victim is African American or Latino. Meanwhile, murder cases in which the victim is African American or Latino often remain unsolved. African Americans have long been over-represented on death row. In recent years Latinos have increasingly been sentenced to death. One California prosecutor testified that it was standard policy in his office to exclude African American women from juries in death penalty cases.

For more information, visit http://equaljusticesociety.org/law/rja.