EJS’s new Director of Law and Policy, Reggie Shuford, delivered the following remarks at our 5th Annual Judge Constance Baker Motley Civil Rights Fellowship Luncheon, held today at the Empress of China restaurant in San Francisco. Reggie’s keynote was preceded by an introduction by EJS President Eva Paterson and a presentation by third-graders from Civicorps Elementary School in Oakland, Calif., who attended the April 2010 commemoration of the April 1960 founding of the Student Nonviolent Coordinating Committee at Shaw University in Raleigh, N.C.
Following Reggie’s remarks, EJS board chair Anthony Solana, Jr., moderated a panel with Reggie, President and General Counsel of MALDEF Thomas A. Saenz, and Regional Counsel Mona Tawatao of Legal Services of Northern California. EJS board member Jim Brosnahan concluded the program.
The luncheon program at this event provided litigators and service providers with an analysis of recent developments in Equal Protection and anti-discrimination law, with particular reference to the “intent” doctrine as originally established in the U.S. Supreme Court decisions in Washington v. Davis, and McCleskey v. Kemp. Potential litigation approaches were discussed, including litigation and public education strategies utilized in the historic case of Brown v. Board of Education and more recent racial profiling cases. The speakers also shared thoughts on the legal ramifications of current social science regarding unconscious bias and discrimination create the possibility of new formulations impacting potential civil rights litigation.
EJS expresses its appreciation to our event sponsors: Barbara Caulfield; Wilson Sonsini Goodrich & Rosati; Arnold & Porter; van Loben Sels/RembeRock Foundation; National Center for Lesbian Rights; Lieff Cabraser Heimann & Bernstein; Altshuler Berzon LLP; Covington & Burling LLP; Arlene Mayerson; Morrison Foerster. And to the firms and organizations that purchased tables: Minami Tamaki LLP; Lawyers Committee for Civil Rights; Legal Services of Northern California; Remcho, Johansen, & Purcell, LLP; Colette Holt & Associates; Charles Houston Bar Association; California Faculty Association.
The Judge Constance Baker Motley Fellowship was established to invigorate the next generation of progressive legal practitioners seeking to transform anti-discrimination law and policy. Proceeds from the luncheon will go towards supporting the 2009-10 fellowship of a recent law school graduate committed to advancing racial justice through innovative legal strategies and progressive public policy.
REMARKS BY REGGIE SHUFORD AS PREPARED FOR DELIVERY
Thank you, Eva, for the very generous introduction.
And can I just say – wow! Our future is in good hands! I certainly know better than to follow kids on a program. Especially such talented kids as these. Hard to be unmoved and cynical in the presence of such unadulterated enthusiasm and excitement. It really does make you hopeful for the future. It also makes you want very much for that enthusiasm to continue, that children in America and all over the world will be able to hold on to their dreams and aspirations, and that no superficial or unnecessary obstacles will get in the way of the realization of those dreams.
SETTING THE TABLE
I am, in fact, reminded of one of my former clients, Gregory, who was a dreamer. Gregory was a little older than these students when I met him about ten years ago. Great kid. Really shy and reserved. Pretty much kept to himself. Sort of in his own head. One thing was clear, though: he idolized his father, Master Sergeant Rossano Gerald. Gregory’s parents were divorced and SGT Gerald was often deployed overseas, so father and son prized whatever time they had together. In August 1998, SGT Gerald thought it would be a great idea for Gregory, who was then 12, to spend some time with his paternal relatives, so the two of them embarked on a cross-country trip from Maryland to Oklahoma for a family reunion. Within minutes of crossing the Oklahoma border, SGT Gerald and Gregory were stopped by the police, allegedly for following another car too closely. They were warned but not cited and eventually allowed to go on their way.
Within just a few miles, SGT Gerald and Gregory were stopped again. This time by the Oklahoma Highway Patrol, allegedly for failing to signal before changing lanes. During the course of a two-and-a-half hour stop, the Oklahoma Highway Patrol dismantled SGT Gerald’s car (a red 1991 300ZX), handcuffed SGT Gerald and placed him in a patrol car with the air conditioner turned off, separated him from Gregory so that Gregory was out of his sight, placed Gregory in another, hot patrol car with a barking and salivating German Shepherd dog and questioned each of them separately, threatened that, if they tried to run away, the dog would attack them, refused to follow Army protocol and notify SGT Gerald’s commanding officer of the stop, lied and accused SGT Gerald of running drugs or money laundering and of having a “secret compartment” in his car containing drug residue, and caused over $1000 in damage. Of course, no drugs or any other contraband were found. Again, SGT Gerald and Gregory were not even ticketed and were left to clean up the mess caused by the troopers and the dog.
We sued the troopers involved and the Oklahoma Highway Patrol for having a policy and practice of racial profiling. We brought claims under the Equal Protection Clause of the 14th Amendment, Title VI, and the Fourth Amendment. We threw in the kitchen sink to prove our claims. We compiled statistics to demonstrate the disproportionate targeting of African-American motorists. We provided anecdotes from African-Americans who believed they had been wrongfully stopped or searched by the Oklahoma Highway Patrol. We had compelling testimony from experts in police practices, statistics and even canines. We included stirring testimony from SGT Gerald and Gregory about the profound impact and disruption this experience had on their lives. And we lost. To be more precise, we lost all of our racial discrimination claims on summary judgment. Our fourth amendment claim survived, and the case ultimately settled. Sure, the money came in handy, and later helped pay for Gregory to go to college, but it was an extremely unsatisfying end to an egregious case, and it haunts me to this day. Everyone – everyone – knew this case was all about race. Yet, the law provided no remedy for what happened to Gregory and his father on that hot August day.
It was cold in New York on December 31, 2001. It’s always cold in New York on New Year’s Eve. Michael Dasrath, was flying from New York to Florida to spend time with his wife and two young sons. Michael was a banker for JP Morgan Chase in New York, while his wife worked for Continental Airlines in Tampa. Edgardo Cureg, a PHD candidate in mathematics at the University of South Florida, happened to be on the same flight as Michael Dasrath. He, too, was returning home to Tampa to be with family for New Year’s Eve. While the flight awaited take-off, Ed Cureg, who is from the Philippines, spoke with his mathematics professor, an Indian man who happened to be on the same flight. Michael Dasrath, who is an American citizen originally from South America, sat in his assigned seat one row behind Ed Cureg in first class and never said a word to them, or anybody for that matter. Not one word. A female passenger walked up the aisle to first class on a few occasions and stared at the three men. She then summoned the pilot and told him that “three brown-skinned men are behaving suspiciously.” The pilot failed to ask the woman to elaborate on those behaviors, and he never questioned Michael Dasrath, Ed Cureg or Ed’s professor. Instead, he left the cabin area. Thereafter, a flight supervisor came aboard the plane and asked the three men to leave the plane. After their removal, the flight supervisor explained that the pilot said that a passenger was uncomfortable with their presence. Michael, Ed and Ed’s professor had to wait hours for a later flight, which flew to Orlando as there were no more flights to Tampa. The men were placed on the later flight without any additional security checks and right back in first class. We sued on behalf of Michael Dasrath and Ed Cureg, and our complaint against Continental Airlines raised claims under both federal and state laws against discrimination, including Title VI, which prohibits discrimination by recipients of federal financial assistance, and 42 USC section 1981, which prohibits discrimination in the making and enforcement of contracts. While we won in the early rounds, the case was ultimately tossed out on summary judgment. Again, no remedy for the racial discrimination to which these men had been subjected. The outcome of this case also continues to haunt me to this day, and I know for a fact that it has forever changed Michael Dasrath. Years later when another one of my airline profiling cases received a lot of publicity, and long after his case had been put to rest, Michael called me to ask if there was anything at all that could be done. My heart broke upon receiving that call, especially after having to respond: No.
THE PROBLEM
The problem is abundantly clear: the 14th Amendment isn’t what it used to be. The same can be said of statutes like section 1981 and Title VI, which have borrowed heavily from equal protection jurisprudence. The main culprit is Washington v. Davis, a 1976 Supreme Court case that articulated the intent standard that causes so much heartache for civil rights practitioners and victims of discrimination today.
Davis involved two African-American applicants who failed personnel tests for jobs as police officers in Washington, DC. The two applicants alleged that the test was unconstitutional because it disproportionately failed blacks, excluding them from work at the police department. Despite evidence that the government’s actions created a discriminatory impact, the Court held that the Constitution was not violated because the plaintiffs could not show that the racial inequality was not merely incidental but rather was intentional. Under this standard, it is no longer sufficient to show that a policy favors one race over another or the policy-makers knew the effects of their decision or policy would be racially biased. A law or policy will be held unconstitutional only if enacted with the specific purpose to treat people differently based on their race. As demonstrated above, the result is that countless otherwise valid claims are lost, dismissed or never even brought.
And as if Davis wasn’t bad enough, the icing on the cake came 11 years later in McCleskey v. Kemp, in which the Supreme Court rejected devastating evidence of racial disparity in the imposition of the death penalty. For example, the evidence showed that if the victim was white, the defendant was 4.3 times more likely to receive the death penalty than if the victim were black. If the victim was white AND the defendant black, it was 11 times more likely to result in a death sentence than if the victim were black and the defendant white. The Court rejected McCleskey’s claim that his death sentence was unconstitutionally imposed on the basis that the evidence did not demonstrate an intent to discriminate. Despite the overwhelming evidence of disparity, the Court found no proof that the jurors sentenced McCleskey to death with the clear intention of discriminating on the basis of his race. Warren McCleskey was executed by the State of Georgia on September 25, 1991.
Again, the problem is clear: equal protection jurisprudence has failed to keep pace with the way that discrimination is now practiced and experienced in America today. Racism today is by and large (but certainly not always) not of the explicit n-word variety, or, as one of my colleagues observed, the kind with signs in diners or above water fountains that restrict access to certain races of people. So, unlike in the past, resort to the courts provides no meaningful remedy. We know what the problem is. The more important question is how do we redefine the intent doctrine to make it more responsive to the modern-day reality of racism and discrimination. Our charge is an ambitious one, to be sure, but an essential one, as well.
STRATEGY
The strategy to overturn Plessy v. Ferguson’s separate but equal doctrine, which culminated in the landmark Brown v. Board of Education case of 1954, is instructive. The strategy, known as the “Houston Plan”, was a long-term strategy combining impact litigation, the innovative use of social science, and collaboration with well-connected, media savvy centrist, progressive and occasionally radical civil rights organizations. A long-term strategy is a good thing. For us, it means we don’t need to overturn Washington v. Davis tomorrow. Instead, we can be strategic about which cases and fact patterns to bring, i.e., those that lend themselves best to an implicit bias/structural discrimination analysis, which jurisdictions to bring them in, whether to bring them in state vs. federal courts, or before certain judges, and when exactly to bring them.
Second, the Brown strategy incorporated innovative social science. EJS’s goal is to do likewise, again by introducing the concepts of unconscious bias and structural discrimination into legal jurisprudence. We are in the very early stages of this thinking, but potential areas might be racial disparities in Medicare spending; non-criminal cases where there is no allegation of wrongdoing on the part of the plaintiff; and cases which are likely to prevail on other grounds but where judicial analysis of unconscious bias theory could create some helpful jurisprudence. Public contracting, higher education, school to prison pipeline (the imposition of disparate disciplinary measures in the education setting) might be other areas.
Finally, potential alliances with now-friendly federal agencies, like the EEOC and the Department of Education, and in the areas of health care and housing might prove fertile ground for the introduction of unconscious bias theory. Such alliances with other rights organizations and advocates (including many of you), potentially across the political spectrum, are in keeping with the Brown strategy, as well.
The good news is that we won’t necessarily have to start from scratch, in that unconscious bias theory is already being used in some areas of the law, namely Title VII. In a Business Week article from May 2006, the author says that if an employer is faced with a class action lawsuit based on gender or race, there is at least a 50% chance that plaintiffs will cite unconscious bias theory. E.g., Dukes v. Wal-Mart (class cert. granted April 2010, with two million women plaintiffs, making it the largest of its kind in American history)(Our good friend Brad Seligman of the IMPACT FUND is lead counsel and was just featured in the New York Times). Granted, T7 has a disparate impact standard, where evidence of unconscious bias might be more readily accepted.
That said, some judges appear to be willing to consider evidence of unconscious bias in equal protection cases, as well. For example, in Chin v. Runnels, 343 F.Supp.2d 891 (N.D. Cal. 2004), the petitioner sought a writ of habeas corpus on the basis that his murder conviction was unconstitutional due to a history of Chinese-Americans, Filipino-Americans, and Hispanic-Americans being excluded as grand jury forepersons, in violation of his right to equal protection. Petitioner, of Chinese-American ancestry, presented uncontroverted statistical evidence demonstrating that from 1960 to 1996, grand jury forepersons were underrepresented with respect to these three groups. In fact, there were NO Chinese-American, Filipino-American, or Hispanic-American forepersons during that 36-year period. On rebuttal, there was testimony by two court personnel involved in the jury selection process that they looked at attributes like “leadership ability,” “administrative skills,” and “people skills” in recommending a foreperson. Other testimony was that the “perfect example” of what judges were looking for, was that “[h]e was a claims examiner for [X company]. He dealt with paper constantly. He also had a totally sunny disposition, friendly . . . [a] hardy handshake sort of guy.”
Judge Breyer, of the Northern District of California, ultimately denied the writ, on the basis of the narrow and exacting standard of review. In his conclusion, however, he noted that if the standard were de novo, he would have delved further into the state court’s findings, given the absolute absence of Chinese-American, Filipino-American, or Latino forepersons for 36 years. He then went on for a number of pages, discussing unconscious bias theory – where, he observed, the folks who selected the jury forepersons probably meant well but likely were nevertheless influenced by stereotypes of Asians, in particular, as passive, unassertive, more technical-than people-oriented, and not leadership material. Judge Breyer recalled the testimony about judges looking for folks with “people skills” and the individual who was described as a “perfect example, a friendly . . . hardy handshake of a guy” and wondered whether unconscious biases and stereotypes had come into play.
In addition to the Brown strategy, another potentially useful model is international human rights law. Not only do most other major countries have a disparate impact standard, the common and growing citation to international human rights principles in American jurisprudence suggests a path we might consider traveling. Litigants are showing a greater willingness to include international human rights principles in their arguments, and courts, in particular the Supreme Court, especially of late, have shown greater receptivity to those arguments. E.g.,
Graham v. Florida – (a case decided by the Supreme Court just last month, May 17, 2010)(outlawing sentences of life without parole for juveniles for a nonhomicide crime);
Roper v. Simmons – 543 U.S. 551 (2005)(striking down the death penalty for juveniles);
Atkins v. VA – 536 U.S. 304, 316 n.21 (2002)(outlawing the death penalty for defendants with mental retardation);
Grutter v. Bollinger, 539 U.S. 306, 344 (2003)(Ginsburg, J., concurring)(upholding the University of Michigan law school’s affirmative action program); and
Lawrence v. TX, 539U.S. 558, 576-77 (2003)(holding unconstitutional TX’s law prohibiting sodomy).
As with international law, not all judges will be on board, to say the least, with respect to unconscious bias doctrine. Especially early on. But some judges, like Judge Breyer, appear ready to listen. In fact, we have heard one judge refer to implicit bias as a topic of growing interest on the bench, given its applicability to jury, employment, housing and other claims, and that state courts are “way ahead” of federal courts in terms of providing training on implicit bias to incoming and sitting judges. So, it is up to us to give them something to hang their hats on. If you are litigating a discrimination case, you should seriously consider incorporating unconscious bias theory. For those judges who are not with us, well, it is our responsibility as advocates to nudge them along. As the late, great Sister Dorothy Height said, “If the time is not ripe, we have to ripen the time.”
While he was my client, SGT Gerald told me two things that I will never forget. First, he spoke of how humiliating the experience was. A frequently decorated soldier, stoic, proud and not given to outbursts of emotion or hyperbole, he said: I have spent the majority of my adulthood trying to spread America’s ideals and principles of democracy and humanity abroad. Yet, I return home for just a brief period of time in between tours of duty, and am made to feel like a second-class citizen in my own country.
The second thing he said, recalling being separated from Gregory during the stop and unable to see what was happening to him, was that the experience made him break one of his earliest promises to his son, who he told as a baby that he would always be there to protect, no matter what. Although this incident was not his fault in any way, he felt he had let his only son down.
Our goal of redefining the intent doctrine is ambitious but it is not optional. We need to ripen the time so that the students from Civic Corps and the Gregorys of the world will always, always enjoy America’s promise of first-class citizenship. I hope you will join EJS in this fight.