The article can be downloaded here.

After Washington v. Davis, the Equal Protection Clause, as in Plessy v. Ferguson, was interpreted to prevent racial justice for communities of color. The Davis Court announced the intent doctrine: that the Equal Protection Clause only protects those discriminated against pursuant to a discriminatory motives.

But as Charles Lawrence announced in his piece entitled The Id, The Ego, and Equal Protection, discrimination is frequently the result of an unconscious mind. By focusing on a motive inquiry, moreover, courts limit remedy to the most overt of discriminatory acts. The evidentiary burden is too high.

Brando’s article argues that the Equal Protection Clause is no longer an effective tool for stigmatized minorities, and needs to be re-invigorated to further racial equality.

Those seeking to overturn Davis must, though, grapple with the reality that the original public understanding of the Equal Protection Clause does not render discriminatory acts resulting from unconscious bias unconstitutional.

Brando argues that the Fourteenth Amendment’s original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation’s formulation. Originalists implicitly agree with this contention.

Indeed, Originalists’ equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment’s legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues.

The Equal Protection Clause, writes Brando, must be re-invigorated so that its new understanding reflects both our deepening knowledge of unconscious bias and our appreciation for how a discriminatory motive can be easily hidden.

The article has already generated a reaction from Lawrence B. Solum, John E. Cribbet Professor of Law and Philosophy and Co-Director of the Institute for Law and Philosophy at the University of Chicago School of Law on the Legal Theory Blog:

I enjoyed this interesting piece, but it’s exposition of originalism does (by my lights) capture the content of contemporary originalist theory (the so-called “new originalism” or “original public meaning originalism”). In particular, the author might want to consider the distinction (original made by Mark Greenberg and emphasized by Jack Balkin) between original expected applications and the original public meaning of the constitutional text.

Brando graduated in June of 2008 with a J.D. from Harvard Law School, where he was a research assistant at both the Jamestown Project, a think tank, and at the Law School’s library researching various matters for professors. He was also was an opinion editorialist for the Harvard Law Record, the school’s newspaper.

He also published several works: Uncle Tom and Clarence Thomas: Is the Abuse Defensible?, The Veil of Fair Representation: Maurice Clarett v. NFL, “Acting White” and the Achievement Gap: Burden or Myth?: A Research Brief & Recommendations for Educators, Policymakers & Members of the Media, and Drastic Action: The 1983 Course Boycott at Harvard Law School.

Prof. Sander’s lawsuit attempted to compel the State Bar to release information regarding applicants’ race, GPA, and bar exam scores in order to advance his research on what he terms the “mismatch hypothesis” – that affirmative action in law schools actually harms Black students by putting them in schools where they are unable to compete.

Sander’s findings to date have been readily contested, and his requests for confidential Bar data repeatedly denied – however, he has continued to pursue his claims in court, prompting attempted intervention by law students who claim that release of the confidential data would violate their right to privacy.

Judge Curtis Karnow ruled that Sander’s request should be denied because the data he requested is not a public record under California law (this order is currently pending, and will not be final until entered by the Court). Sander and his colleagues have stated that they intend to appeal this ruling.

While the final outcome of this case remains to be seen, this initial proposed ruling is a victory for the law students whose private records are at risk of being released without their permission.

Below is a more extensive summary of the March 24 preliminary decision in Sander v. State Bar of California by EJS law clerk Audrey Daniel.

Petitioner Richard Sander has filed suit seeking information from the State Bar of California. Specifically, he is attempting to compel the Bar to release information, including race, GPA, Bar exam scores, etc. for applicants for the Bar exam. Sander plans to utilize this data to argue that affirmative action hinders African Americans’ progress in becoming attorneys. EJS has joined the opposition to protect the privacy of Bar applicants against Sander gaining access to their personal information, and using it for such purposes.

The case will be heard in two stages. First, the judge will decide whether the particular data that Sander requests is considered public record. If so, and Sander prevails at the first stage, then the court will then hear the second phase. There, the judge will consider the privacy and burden issues implicated in the request.

The judge recently issued a Proposed Statement of Decision on phase one. Based on a variety of authorities that Sander claimed allowed him access to this information, the judge found that none of them mandated the Bar release this type of personal information of its applicants. This proposed decision is not yet final, but indicates that the court is heavily swayed towards denying Sander’s requests.

Sander first argued that he is entitled to this data based on the common law right of access to documents filed with the courts. However, the California Supreme Court has distinguished between documents related to adjudication and those that do not, when applying such a right of access. The Court there ruled that while there is a broad public right to documents related to judicial hearings and records, it does not include materials not related to a trial or adjudication. The judge in the case at hand found that the personal information that Sander seeks clearly does not relate to a trial or adjudication, and he therefore is not entitled to it based on this theory.

Sander also claims that he is entitled to the data as judicial records. He argues that there is a broad, general right to access of judicial records. While the definition of judicial records is in fact broad, even more so than the common law right to access, it still does not encompass the type of information that Sander seeks.

Another avenue for access asserted was Proposition 59, the California Public Records Act, which could be a potential basis on which Sander is entitled to the information. He argues that the voters’ intent was to include every writing of a public official, even if it was simply in the possession of an official and not actually written by an official. The court, though, did not find his evidence of that intent sufficient, and found that the plain language of the Proposition would not include Bar applicants’ personal information. While the Act expanded public access, it is limited to meetings of public bodies and writings of public officials. Information collected by officials regarding private individuals does not fall under either category. Thus, Sander cannot gain access to these records under Proposition 59.

The court could now rule that based on neither the common law right of access, the right of access to judicial records, nor Proposition 59, Sander did not have a right to this information. The countervailing policy that we support is the privacy rights of all applicants who gave this information with the understanding that it would not be released to the public in any form. While we expect Sander to appeal this decision, EJS commends the court on recognizing and honoring the privacy of California Bar exam applicants.

EJS has long wanted to engage in the next level of overturning the Intent Doctrine. Finding just the right Director of Law and Policy was critical to achieving this goal. And Reggie is the perfect fit.

Reggie is currently a senior staff counsel in the American Civil Liberties Union Foundation’s Racial Justice Program. An attorney with the ACLU since 1995, he helped pioneer legal challenges to racial profiling practices nationwide and is the ACLU’s chief litigator in challenges to racial profiling, leading national litigation efforts and consulting with ACLU state affiliates and others in cases of “driving while black or brown,” airport profiling, and profiling related to the war on terror.

Shuford’s advocacy to promote affirmative action includes leading recent efforts in Missouri and Oklahoma to defeat anti-affirmative action ballot initiatives, similar to California’s Prop. 209. Those initiatives were also sponsored by Ward Connerly and his supporters.

His docket has also included cases involving educational adequacy and equity, the school to prison pipeline, and the right to counsel for indigents. He also has been involved in advocacy against racism in the use of the death penalty.

Since September 11, 2001, working with colleagues around the country, he has filed a half dozen landmark lawsuits against major airlines alleging racial discrimination, as well as a nationwide challenge to the Transportation Security Administration’s management of the No-Fly List.

He has authored numerous petitions and briefs for cases that were presented to the U.S. Supreme Court dealing with matters of discrimination, the Equal Protection Clause and First and Fourth Amendment rights. He has published articles related to racial profiling, affirmative action, and violence in the African American community.

Reggie also teaches and speaks regularly around the country and internationally, including Moscow, Geneva, and Canada, on issues of racial justice, profiling, discrimination, national security, and other topics, and has appeared on numerous television programs, including CNN’s Burden of Proof and Talk Back Live, ABC’s 20/20, Court TV’s Pros and Cons and Crier Today, NBC’s Nightly News and Dateline, an MTV documentary, True Life: I Am Driving While Black, and was featured in Leading the Way: The History of Black Lawyers and Judges in America Throughout the Twentieth Century, on Court TV.

He has been interviewed on various radio and TV programs, including National Public Radio and MSNBC, and has been quoted in major newspapers such as The New York Times, The Washington Post, USA Today and the Guardian. In addition to his litigation responsibilities, Shuford is the ACLU’s Recruitment and Retention Officer for attorneys of color on the national legal staff.

Prior to the ACLU, Reggie worked in private practice in Raleigh, N.C., with the firm Richard Schwartz & Associates, specializing in education law. Just after graduating law school, he clerked with the Hon. Henry E. Frye of the Supreme Court of North Carolina. He is a graduate of the University of North Carolina School of Law, in Chapel Hill, where he was his graduating class president. He is a Wasserstein Public Interest Fellow at Harvard Law School for the 2009-10 academic year and the recent recipient of the University of North Carolina School of Law’s Distinguished Alumnus Award.

We’re elated that Reggie’s joining the EJS team and hope that you have a chance to meet him (or see him again) after he joins us in mid-May.

The Pacific Legal Foundation continues its assault on equal opportunity and fairness by attacking the California state Department of Justice’s brief to the California Supreme Court on the constitutionality of Prop. 209 (“AG Takes Fire on Prop 209,” May 11).

The Foundation employs hyperbole to counter the arguments posed by the Attorney General, when in fact his letter brief only outlined the specific circumstances when article I, section 31 of the California Constitution (Prop. 209) would be misaligned with the protections afforded by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

The Attorney General was correct in questioning whether Prop. 209 serves a compelling governmental interest, saying in his letter that “there appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment.”

“Ironically,” continued the letter brief in Coral Construction Inc. v. City and County of San Francisco, S152934, “by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.”

We believe that Prop. 209 is invalid on its face, and that this was clear from the moment it was passed. But the experience of California since the proposition’s passage demonstrates even more clearly how the measure has distorted the political process by placing remedial legislation out of the reach of minorities and women, and the devastating effect that this has had on California as a whole.

Prop. 209 Created More Barriers to Opportunity

In the public contracting arena, minority- and women-owned businesses have been decimated by Prop. 209. Without the ability to appeal to their local or state representatives to enact legislation to remediate demonstrated discrimination and exclusion, minority- and women-owned businesses have seen a return to the “old boys network” where majority-owned firms monopolize virtually all of the contracting work and often do not even allow minority- and women-owned firms to compete for contracting opportunities.

A comprehensive study of the California Department of Transportation’s contracting showed that after passage of Proposition 209, minority businesses experienced a greater than 50 percent reduction of total awards and contracts on Caltrans projects, translating into millions of dollars in lost revenues.

Two-thirds of the certified transportation construction minority businesses that existed in California in 1996 are out of business. Women-owned businesses have been similarly adversely affected, experiencing a 40 percent decline in Caltrans contract dollars over the past decade.

Prop. 209 devastated other arenas as well. The repeal of inclusive admissions policies in the University of California system has led to dramatic decreases in under-represented minority student enrollment, particularly at the flagship campuses of UC Berkeley and UCLA. In the fall of 2006, the freshman class at UCLA had only 96 African-American students, the lowest number since the early 1970s.

The situation at the State’s graduate schools is equally bleak. Entering Black law students at Berkeley, Davis and UCLA in 2005 comprised less than three percent of the entering class, far below their enrollment levels in 1970 (let alone in the early 1990s). Latino enrollment at these law schools likewise dropped by nearly 50 percent in the wake of Prop. 209. At the UC medical schools, Prop. 209 led to a 43 percent drop in underrepresented minority enrollment between 1995-1996 and 2001-2002.

These numbers are troubling on many different levels. For individual minority students, they mean fewer educational opportunities overall and increased feelings of isolation for those who find themselves in non-diverse educational settings. On a broader level, these declines mean that many UC campuses are no longer even close to reflective of California as a whole. This in turn undermines one of the primary missions of the taxpayer-funded UC system – to train the state’s future leaders.

Prop. 209 Violates Equal Protection Principles

Under the precedent that the U.S. Supreme Court set forth in Washington v. Seattle School Dist. No. 1 and Hunter v. Erickson, Prop. 209 clearly violates federal equal protection principles by making beneficial race- and gender-based legislation more difficult to enact than similar legislation benefiting other groups.

Whereas, for example, disabled individuals or veterans or other groups may all petition their local government to enact laws to even out the playing field, minorities and women in California cannot. Their only recourse to achieve such legislation is to go to “the most inaccessible political level” and to seek a state constitutional amendment overturning Proposition 209.

Prop. 209 thus unquestionably reallocates political power in a manner that operates to the disadvantage of minorities and women: precisely the type of “political structure” distortion that the U.S. Supreme Court has held violates federal equal protection principles.

The real-world impact of Prop. 209 ‘s distortion of equal protection principles is profound and is felt every day in neighborhoods and communities throughout California. These decreases in opportunity highlight how severely Prop. 209 has skewed the political structure of the State at a time when California itself is becoming increasingly diverse.

Attorney General Jerry Brown’s brief illuminates for the Supreme Court a sound legal foundation for eliminating Prop. 209, which has pushed disadvantaged groups farther away from equal opportunity.

Dennis Herrera is city attorney of the City and County of San Francisco, which is the appellant in the Coral Construction case. Eva Paterson is co-founder and president of the Equal Justice Society, which joined an amicus curiae brief in the case. Oren Sellstrom is associate director of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, which filed an amicus brief on behalf of the Coalition for Economic Equity.

California State Attorney General Jerry Brown today filed a brief (PDF) with the state Supreme Court today opining that article 1, section 31 of the California Constitution (Prop. 209) is unconstitutional as applied in certain circumstances.

The letter brief was filed in response to the Supreme Court’s request for an opinion regarding Coral Construction v. City and County of San Francisco, a case pending before the Court concerning whether San Francisco’s attempt to remedy longstanding exclusion of minority- and women-owned businesses in its public contracting violates article I, section 31.

The letter stated: “To the extent that the prohibitions against race- and gender-based discrimination in article I, section 31 of the California Constitution (hereafter referred to as section 31) are aligned with the prohibitions enforced under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, section 31 is constitutional.

“However, to the extent that section 31 is interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal Constitution, pursuant to Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457 (Seattle) and Hunter v. Erickson (1969) 393 U.S. 385 (Hunter). To that extent, section 31 would create an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest.”

“It is unclear precisely what governmental interest section 31 was intended to serve,” the letter also stated. “If it is the interest in protecting all Californians from discrimination based on race or gender, that is concededly a compelling governmental interest. However, there appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment.

“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.”

The Equal Justice Society and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, on behalf of a coalition of more than 60 organizations and individuals advocating against the constitutionality of Prop. 209, applaud Attorney General Jerry Brown for his position on this issue.

We will continue to argue that the state Supreme Court should take this opportunity to strike down Prop. 209, an initiative responsible for much harm to communities of color, women and to California as a whole.

Download the Attorney General’s letter

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