Law and Race Commons^™

Remorse, Not Race: Essence Of Parole Release?, Lovashni Khalikaprasad

Journal of Race, Gender, and Ethnicity

No abstract provided.

Concealed Motives: Rethinking Fourteenth Amendment And Voting Rights Challenges To Felon Disenfranchisement, Lauren Latterell Powell

Michigan Journal of Race and Law

Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike.

In light of those failures, …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John Powell, Stephen Menendian

john a. powell

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman

University of Michigan Journal of Law Reform

The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian

University of Michigan Journal of Law Reform

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

The Riddle Of Hiram Revels, Richard A. Primus

Articles

In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

Minority Preferences Reconsidered, Terrance Sandalow

Reviews

During the academic year 1965-66, at the height of the civil rights movement, the University of Michigan Law School faculty looked around and saw not a single African-American student. The absence of any black students was not, it should hardly need saying, attributable to a policy of purposeful exclusion. A black student graduated from the Law School as early as 1870, and in the intervening years a continuous flow of African-American students, though not a large number, had been admitted and graduated. Some went on to distinguished careers in the law.

Can Minority Voting Rights Survive Miller V. Johnson, Laughlin Mcdonald

Michigan Journal of Race and Law

Part I of this Article reviews the congressional redistricting process in Georgia, particularly the State's efforts to comply with the Voting Rights Act and avoid the dilution of minority voting strength. Part II describes the plaintiffs' constitutional challenge and the State's asserted defenses, or more accurately its lack of asserted defenses. Part III argues that the decision of the majority rests upon wholly false assumptions about the colorblindness of the political process and the harm caused by remedial redistricting. Part IV notes the expansion in Miller of the cause of action first recognized in Shaw v. Reno. Part V …

"What's So Magic[Al] About Black Women?" Peremptory Challenges At The Intersection Of Race And Gender, Jean Montoya

Michigan Journal of Gender & Law

This Article addresses the evolving constitutional restraints on the exercise of peremptory challenges in jury selection. Approximately ten years ago, in the landmark case of Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause forbids prosecutors to exercise race-based peremptory challenges, at least when the excluded jurors and the defendant share the same race. Over the next ten years, the Court extended Batson's reach.

If The Eye Offend Thee, Turn Off The Color, John Harrison

Michigan Law Review

A Review of The Color-Blind Constitution by Andrew Kull

Black Innocence And The White Jury, Sheri Lynn Johnson

Michigan Law Review

Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that …

From Brown To Bakke: The Supreme Court And School Integration: 1954-1978, Michigan Law Review

Michigan Law Review

A Book Notice about From Brown to Bakke: The Supreme Court and School Integration: 1954-1978 by J. Harvie Wilkinson III

Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow

Articles

Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the …

Segregation In Public Education: The Decline Of Plessy V. Ferguson, Paul G. Kauper

Michigan Law Review

In the landmark case of Plessy v. Ferguson decided in 1896, the Supreme Court of the United States gave its sanction to the "separate but equal" doctrine in the interpretation of the equal protection clause of the Fourteenth Amendment. More particularly, the Court held that a state statute requiring racial segregation in railway service did not result in a denial of the equal protection of the laws. This decision did not go unchallenged. Kentucky-born Justice John Harlan remonstrated in a dissenting opinion of extraordinary force. Crying out like a lone voice in the wilderness he predicted that the judgment declared …

Constitutional Law-Equal Protection-Damage Action For Breach Of Racial Restrictive Covenant, Richard W. Pogue S.Ed.

Michigan Law Review

Plaintiffs sued at law to recover damages for breach of a racial restrictive covenant, alleging that defendants violated the covenant by conveying restricted property to persons of the Negro race and placing them in possession and occupancy. The circuit court granted defendants' motion to dismiss. On appeal, held, affirmed. The Fourteenth Amendment prevents the maintenance of an action for breach of racial restrictive covenants. Phillips v. Naff, (Mich. 1952) 52 N.W. (2d) 158.

Constitutional Law-Fourteenth Amendment Equal Protection Segregation In Recreational Facilities Furnished By A Municipality, James S. Taylor S. Ed.

Michigan Law Review

The plaintiff, a Negro, was denied admission to a municipal golf course under an ordinance setting aside certain public parks for the exclusive use of Negroes, and providing that all other public parks were for the exclusive use of white people. Only the public parks provided for the "whites" had golf courses, though in all other respects the park facilities offered were substantially equal. The plaintiff brought an action in a federal district court for a declaratory judgment as to his civil rights and for an injunction protecting such rights. The injunction was denied on the grounds that the facilities …

The Unhappy History Of Civil Rights Legislation, Eugene Gressman

Michigan Law Review

The enforcement by federal legislation of the constitutional right of individuals is a story written largely in terms of confusion, distortion and frustration. Seldom, if ever, have the power and the purposes of legislation been rendered so impotent. Indeed, this story constitutes one of the saddest chapters in the historic struggle to effectuate the American ideal of freedom and equality for all.

The Fourteenth Amendment And The "Separate But Equal" Doctrine, Joseph S. Ransmeier

Michigan Law Review

Recent cases in which the Court has overthrown enforced separation in public higher education on the ground of inequality but without consideration of the merits of the separate but equal rule have been the occasion for an outpouring of law review discussion on the subject. The present paper is a part of this stream. Its purpose is two-fold: first, to set forth the judicial history of the modern separate but equal rule, noting its pre-Fourteenth Amendment origin and the rather uncritical manner in which courts permitted it to infiltrate its way from one area of the law to another; and …

Constitutional Law-Fourteenth Amendment-Discrimination In Selection Of Grand Jurors, Alan C. Boyd S. Ed.

Michigan Law Review

Defendant's conviction of murder was affirmed by the Texas Court of Criminal Appeals, which rejected defendant's claim that discrimination in selection of the indicting grand jury had violated his constitutional rights. Defendant pointed out that the Negro proportion of grand jurors had uniformly been less than the ratio of Negroes to the total population of the county, and that on the past twenty-one lists the commissioners had consistently limited the number of Negroes to not more than one on each grand jury. On certiorari to the United States Supreme Court, held, reversed. Limitation of the number of Negroes on …

Constitutional Law--Due Process-Federal Restrictions On The Use Of Confessions In State Criminal Proceedings, F. L. Adamson

Michigan Law Review

Undisputed evidence established that petitioner, a negro boy of fifteen, was arrested at about midnight, October 19, 1945 and taken to police headquarters. He was questioned by the police with no friend or counsel present. He was not informed of his right to counsel or of his right to refuse to answer. At about five in the morning, October 20, he confessed. He was then informed of his rights and his statement taken and transcribed. He was photographed by a newspaper photographer, and then placed in jail. On October 23 he was, for the first time, taken before a magistrate …

Constitutional Law-Equal Protection-Judicial Enforcement Of Race Restrictive Covenant, Charles B. Blackmar S.Ed.

Michigan Law Review

The highest courts of Missouri and Michigan, and the Court of Appeals for the District of Columbia, had held that restrictions against occupancy of land by negroes were enforceable by injunction. On certiorari, held, reversed. Enforcement of such restrictions by state courts constitutes a denial of equal protection of the laws. Enforcement by courts of the District violates the Civil Rights Act of 1866, and also it is contrary to the public policy of the United States to allow a federal court to enforce an agreement which a state court could not constitutionally enforce. Shelley v. Kraemer, (U.S. …

Constitutional Law-Fourteenth Amendment-Equal Protection Of The Laws-Racial Segregation In Public Educational Institutions, Neal Seegert S.Ed.

Michigan Law Review

Segregation of races, particularly separation of white and colored races, has long been condoned by American courts as permissible under the Fourteenth Amendment to the Constitution of the United States. Underlying the traditional view is the idea that the equal protection clause is not violated by segregation so long as equal facilities are provided for both races. On this basic premise a large number of jurisdictions, particularly the southern states, have predicated constitutional provisions and statutory enactments compelling racial segregation, while a number of other states where segregation has not been forbidden by express constitutional or statutory provision have achieved …

Constitutional Law-State Court Enforcement Of Race Restrictive Covenants As State Action Within Scope Of Fourteenth Amendment, John A. Huston S.Ed.

Michigan Law Review

The current housing shortage with the overcrowded living conditions and substandard accommodations which it imposes on the most numerous classes of society has made particularly significant in the competition for housing areas the discriminations generally enforced against negroes and other racial minority groups. Both normal population growth and the suspension of new construction during the great depression and the late war have contributed to an emergency in which the circumstances of our negro population are materially worse than those of any other group. Aggravating this result has been the shift in negro population occasioned by the wartime demand for industrial …

Parties - Representative Suits As Res Judicata- Rejection Of Doctrine Of Class Suits In Successive Actions To Enforce Mutual Covenants In Land, Gerald M. Lively

Michigan Law Review

Some 500 frontage owners in a certain described residential district entered into mutual covenants which stipulated against the sale to, or occupation of, such land by negroes. In an action to enjoin a breach of one of these covenants the defense was asserted that a condition precedent requiring ninety-five per cent of the frontage owners to sign the agreement had not been performed. On a trial of the merits it was found that only about fifty-four per cent of the frontage owners had actually signed. However, in a prior action, an owner, on behalf of herself and other like property …

Constitutional Law-Exclusion From Juries On Grounds Of Race And Color-Scottsboro Case

Michigan Law Review

A negro convicted of rape in one of the so-called "Scottsboro" cases moved to quash the indictment and the trial venire, alleging systematic exclusion of negroes from the grand and petit juries on the grounds of race and color. The trial court overruled the motions, and the Alabama Supreme Court sustained this decision, holding that the evidence failed to establish such exclusion. On certiorari to the United States Supreme Court, held, that the refusal to quash the indictment and trial venire was a denial of equal protection of the laws contrary to the Fourteenth Amendment, since the evidence on …

Constitutional Law - Discrimination Against Negroes - Control Of Party Membership, Everett S. Brown

Michigan Law Review

The petitioner, R. R. Grovey, allegedly a citizen of the United States and of Texas, and possessing all the qualifications of a voter, was refused a ballot for a Democratic party primary because he was of the Negro race. Grovey demanded ten dollars damages from the respondent, Albert Townsend, the county clerk, a state officer. The Revised Civil Statutes of Texas provide for primary elections and regulate absentee voting. When Grovey demanded of Townsend an absentee ballot it was refused in virtue of a resolution of the state Democratic convention of Texas, adopted May 24, 1932, as follows:

"Be it …

Segregation Of Residences Of Negroes, Arthur T. Martin

Michigan Law Review

Most white people do not want Negroes for neighbors. For many years this race prejudice alone seemed adequate to secure the type of domiciliary segregation which the majority desired. In recent years, however, Negro incursions into so-called white territory have become more numerous, and white landowners have resorted to legal devices to secure race exclusiveness in residential sections. In considering the validity of these segregation devices the courts have not ordinarily purported to take into account the social desirability of the end sought. No examination has been made of the factors back of Negro migration into white territory. No thought …

Primary Elections And The Constitution, Luther Harris Evans

Michigan Law Review

Recent attempts in Texas and elsewhere to exclude Negro voters from primary elections reveal the unsettled state of constitutional law in this field. Two struggles of principle, individualism versus police power and States' rights versus nationalism, are outlined in the judicial opinions reviewed below under the following headings: (I) Basis of state power over primaries; (II) Limitations on state power over primaries imposed by the Fourteenth and Fifteenth Amendments; (III) Basis of state power over primaries for nominating United States Senators and Representatives; and (IV) Basis of national power over primaries for nominating United States Senators and Representatives.

Constitutional Law-Equal Protection-Disparity Of Privilege And Discrimination

Michigan Law Review

The equal protection clause of the fourteenth amendment provides that no person or class of persons shall be denied the same protection of the laws that others in the same place and under like circumstances enjoy. But it has been said that "equality and not identity of privileges and rights is what is guaranteed to the citizen" by the fourteenth amendment. People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232. Any law which in terms provides for identity of privileges and rights, but which operates in such a manner as to produce political or economic inequality. because of …