Category Archives: Discrimination

Legislating Racial Discrimination: The Davis-Bacon Act and Minimum Wage Laws

Legislating Racial Discrimination:  The Davis-Bacon Act and Minimum Wage Laws

William Derek Green

 

            It is an oft-stated maxim that the road to hell is paved with good intentions.  At the intersection of social and economic policy, this warning has perhaps most often been applied to the minimum wage, particularly by economists—on both sides of the political spectrum.  While the level at which a minimum wage becomes undesirable is a point of considerable debate, there is broad agreement that a minimum wage, when high enough, excludes from the labor market those whose productivity is worth less than the minimum that an employer is required by law to pay.[1]  The resulting unemployment is highest among those with the least opportunity to develop essential skills early in life, meaning that minorities, who may have decreased access to quality education, are likely to be among the most adversely affected.[2]  Today, minimum wage supporters are almost certainly motivated by good intentions despite the potentially negative effects of such a policy, but there exists a disturbing history of bad intentions in the imposition of minimum wage laws in the United States.[3]

            While the use of a minimum wage to exclude blacks from employment in apartheid-era South Africa[4] would not come as a surprise to anyone, most Americans would be shocked to learn that the same thing has happened in the United States in the form of the Davis-Bacon Act.[5]  This law came about as a result of union pressure to establish a minimum wage for federally-funded construction projects so that union workers could not be undercut by those willing to be paid less to perform the same work.[6]  Constituting a large proportion of those willing to be paid less were blacks migrating north to look for jobs and to escape the burdens of the Jim Crow-era south.[7]  Indeed, blacks constituted a disproportionately large percentage of the unskilled construction work force at the time of the bill’s passage in 1931.[8]  Eliminating blacks from employment on federally-funded construction projects was not the unintended consequence of race-neutral bill, it was a primary motive for passage of the Act.  Congressional testimony surrounding the Act is rife with references to maintaining “proper racial representation” and ending the use of “migratory labor.”[9]  More specifically, one representative lamented that a “contractor from Alabama…has cheap colored labor that he transports…and it is labor of a sort that is in competition with white labor throughout the country.”[10]  Another stated that “[y]ou will not think that a southern man is more than human if he smiles over the fact of your reaction to that real problem you are confronted with in any community with a superabundance or large aggregation of negro labor.”[11] 

            The Act was not merely intended to be discriminatory towards black employment.  There is evidence that it actually accomplished that goal with great success.  By ensuring that the local union wage rate was used on the majority of federally-funded construction project, blacks, who were largely excluded from union membership, were effectively shut out of the labor market for these projects.[12]  One study found that Davis-Bacon wage determinations were fifteen to forty percent higher than the prevailing market rate.[13]  Because all workers, skilled and unskilled, were subject to the same minimum wage rates, there was no benefit to hiring unskilled labor.  Blacks were primarily relegated to unskilled jobs and largely excluded from craft unions, so exceedingly few were hired—there was no reason to hire unskilled laborers if skilled laborers could be obtained in their stead and for the same rate.[14]  Accordingly, the period between 1930 and 1950, which was marked by extensive federal works projects, was also subject to a “rapid increase in the black/white unemployment ratio.”[15] 

            It would seem to the observer with even a cursory knowledge of Constitutional jurisprudence that the Davis-Bacon Act is potentially invalid under the test set out in Village of Arlington Heights v. Metropolitan Housing Development Corporation.[16]  In that case, the Supreme Court found that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”[17]  The Court noted further that discriminatory intent need not be the sole motivating factor in passing the challenged legislation for it to be Constitutionally invalid.[18]  Considering that “legislative or administrative history may be highly relevant” to showing discriminatory intent, “especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports,”[19] the Davis-Bacon Act would seem to be highly susceptible to being overturned in federal court.  The single time the Act has been challenged, however, the court granted the government’s motion for summary judgment, finding the Act constitutional.[20]

            None of this is to suggest that the Davis-Bacon Act should be repealed today.  Even though a piece of legislation was passed with discriminatory intent, it may still be non-discriminatory in practice, especially in light of 80 years of subsequent legislation.  Indeed, there is conflicting evidence as to whether the effects of the Davis-Bacon Act were ever discriminatory to begin with, much less today.[21]  But at the very least, economic theory tells us that minimum wage laws can be used to discriminate against disfavored groups, and the passage of the Act shows that even in America, legislators have actually imposed minimum wages for the purpose of discriminating against those groups.  Given the overwhelming popularity of minimum wage laws today, the history of the Davis-Bacon Act serves as a useful reminder that even something so seemingly harmless, so apparently well-intentioned as a minimum wage can be manipulated into something discriminatory and undesirable.


[1] See, e.g., Dan Fuller & Doris Geide-stevenson, Consensus Among Economists:  Revisted, 34 J. of Econ. Educ. 369 (2003).

[2] See, e.g., Walter Williams, Race & Economics, 39 (2011).

[3] See, e.g., Walter Williams, Minimum wage increases discrimination against poor people, Washington Examiner (March 5, 2013 at 5:30 PM) http://washingtonexaminer.com/walter-williams-minimum-wage-increases-discrimination-against-poor-people/article/2523335; For a more in-depth overview of the use of the minimum wage and other economic policies as a tool for government-enforced discrimination, see Williams, supra note 2.

[4] See, Williams, supra note 2, at 46-48.

[5] Davis-Bacon Act, ch. 411, 46 Stat. 1494 (1914) (current version at 40 USC §§ 3141-3144, 3146, 3147 (2012)).

[6] Williams, supra note 2, at 33, 34.

[7] David E. Bernstein, The Davis-Bacon Act:  Let’s Bring Jim Crow to an End, 2 (January 18, 1993) http://www.cato.org/sites/cato.org/files/pubs/pdf/bp017.pdf.

[8] Id.

[9] Williams, supra note 2, at 34, 35.

[10] Id. at 34.

[11] Bernstein, supra note 5, at 2.

[12] Id. at 3.

[13] Williams, supra note 2, at 35.

[14] Id. at 36.

[15] Id.

[16] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).

[17] Id. at 265.

[18] Id. at 265, 266.

[19] Id. at 268.

[20] Brazier Construction Co., Inc., v. Reich, Institute for Justice (Feb. 9, 2013, 8:00 PM), http://www.ij.org/brazier-construction-co-inc-v-reich.

[21] See, e.g., Peter Philips, Thoughtless Think Tanks:  Factoid Scholarship and Sound Bite Thinking About the History and Intent of Prevailing Wage Laws, Econ. Dept. Univ. of Utah (Feb. 2001) (arguing that scholarship criticizing the Davis-Bacon Act overemphasizes its discriminatory intent and effects); Dale Belman & Peter Phillips, Prevailing Wage Laws, Unions and Minority Employment in Construction:  A Historical and Empirical Analysis, in The Economics of Prevailing Wage Laws 101-122 (H. Azari-Rad & P. Philips eds., 2005) (arguing from an econometric standpoint that the effects of the Davis-Bacon Act have not been discriminatory towards blacks).

University of Texas Southwestern Medical Center v. Nassar: A Significant Threat to Employees

University of Texas Southwestern Medical Center v. Nassar: A Significant Threat to Employees

by: Abigail Castleberry

The Supreme Court’s decisions on DOMA and the Voting Rights Act caused a media circus this year. Though garnering little attention from the media, University of Texas Southwestern Medical Center v. Nassar[1] is one of the Court’s most significant employment decisions in years. The decision fundamentally effects how employees who experience retaliation seek redress.

Naiel Nassar, Respondent, is a physician of Middle Eastern descent who worked for Petitioner as both a faculty member and staff physician.[2] The Respondent claimed his supervisor, Dr. Beth Levine, showed bias against him due to his ethnic heritage.[3] Constant criticism from Levine caused Nassar great distress.[4] Nassar, in order to remove himself from Levine’s supervision, made an agreement with the Petitioner that allowed him to continue working for the hospital without being member of the faculty. [5] Upon resigning his faculty position, Nassar wrote a letter detailing the reasons for his resignation and naming Levine’s discriminatory actions as the primary force behind the move.[6] Dr. Fitz, Levine’s supervisor, outraged by the letter, wanted Levine exonerated and placed pressure on the Petitioner to withdraw Nassar’s job offer, which it later was.[7] Nassar then filed two claims under Title VII.[8] First, he alleged that the Petitioner discriminated against him based on race, religion, and national origin, therefore violating 42 U.S.C.§ 2000e -2(a).[9] He also claimed that Fitz’s efforts to prevent him from securing his position was a violation of 42 U.S.C. §2000e -3(a)[10] as it constituted impermissible retaliation.[11] The trial court found for Nassar on all counts and granted large compensatory damages and back pay.[12]

The confusion surrounding the case arises from the mixed-motive proof structure that is available for employment discrimination claims. In Price Waterhouse v. Hopkins, six Justices agreed that a plaintiff could prove status based discrimination if he or she could show that one of the prohibited traits was a motivating factor in the employer’s decision, not merely the sole decision.[13] This lessened the burden of causation applied to employment discrimination claims. In the Civil Rights Act of 1991, Congress codified this lesser burden in a new statute, 42 U.S.C. § 2000e-2(m).[14] The issue before the Court was what standard of causation should be applied to a claim of retaliation and whether the new statute applied to retaliation claims. The majority found that the Congress’s revisions were only applicable to status based discrimination and inapplicable to claims of retaliation.[15] To support their argument, the majority points to the fact that Congress, in drafting 2000-2(m), only included within the statute status based violations of race, color, religion, sex, and national origin.[16] The court concluded that if Congress wanted the burden of causation to be lessened on retaliation claims, it would have clearly stated so in the statute.[17] Furthermore, in deciding that retaliation claims should fall under but-for causation, the Court relied heavily upon on tort law as well as the reasoning of Gross v. DBL Financial Services, Inc. [18] Gross analyzed the meaning of the Age Discrimination in Employment Act (ADEA).[19]  The language used within the ADEA is similar to that used within Title VII, especially in its use of the phrase “because of.”[20] The Court, in Gross, interpreted “because of” to be indicative of but-for causation. [21] The Court found that Gross’s interpretation of the phrase to be the definitive answer to their inquiry.[22] Therefore, for a plaintiff to succeed on a claim of retaliation, he or she must prove that retaliation was the sole motivating factor in an employment decision.[23]

The Court’s decision suffers from a number of flaws. First, it clearly rejects the precedent set out in Price Waterhouse and leans too heavily upon the Gross. In Price Waterhouse, the Court made it clear that any form of discrimination, either retaliation or status based, could utilize the “motivating factor” causation to prove a claim. It appears the court rejected their findings in Price Waterhouse in favor of Gross, but this decision makes little sense. In Gross, the Court stated very clearly that their decision was only applicable to the ADEA.[24] In fact, the Court explained that the statutes were “materially different.”[25] Apparently, the Court rejected stare decisis in choosing to find an ADEA decision controlling in a Title VII claim, in opposition to Title VII precedents.

Furthermore, the Court gave little concern to Congress’s intentions behind the 1991 revisions. The Court, in supporting its decision, concluded that if Congress intended to extend “mixed motive” causation to retaliation claims, it would have specifically done so.[26] This interpretation of Congress’s intentions makes little sense. In 1991, Congress accepted a majority of the reasoning in Price Waterhouse and incorporated it into the code. Congress only rejected the Court’s allowance of an employer to be fully exonerated.[27] Congress found this too employer friendly and allowed plaintiffs the ability to recoup attorney’s fees even if the employer was exonerated.[28] The Court apparently finds the Congress’s adjustment to the Price Waterhouse decision to be a rejection of the Court’s original finding and therefore chose to interpret the statute in the narrowest possible sense. This runs contrary to the original intent of Congress in that it wished provide more protection for employees. The Court’s new interpretation creates a more employer-friendly statute, clearly snubbing Congressional intent.

More importantly, the Court ignores the realities of employer discrimination. The majority commented that the number retaliation claims made to the EEOC has risen significantly and outpace all other claims of discrimination.[29] According the majority’s opinion, many of these claims are likely frivolous rather than the symptom of actual wrongs committed against employees.[30]  As Justice Ginsburg states, “[R]etaliation is inextricably bound up with status-based discrimination.[31] Rarely are employers’ actions motivated by a single intention. The statute “does not protect merely the . . . [minority] worker who is perfect . . . such a worker needs no protection except from irrational employers, and they are rare. It protects . . . the imperfect . . . worker from being treated worse than the [majority] one.”[32] With the Court’s decision in Nassar, this protection is threatened.


[1] 133 S. Ct. 2517 (2013).

[2] Id.at 2523.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 2524.

[8] Id.

[9] Id.; 42 U.S.C. § 2000e-2(a)(2006).

[10] 42 U.S.C. 2000e-3(a)(2006).

[11] 133 S. Ct. at 2524.

[12] Id.

[13] 490 U.S. 228, 228 (1988).

[14] 105 Stat. 1071 (1991); 42 U.S.C. § 2000e-2(m)(2006).

[15] 133 S. Ct. at 2532-33.

[16] Id.

[17] Id.

[18] 557 U.S. 167 (2011).

[19] Id.

[20] 29 U.S.C § 623 (2006); 42 U.S.C. § 2000e-2(a).

[21] 557 U.S. at 180.

[22] 133 S. Ct. at 2521.

[23] Id. at 2534.

[24] 557 U.S. at 173-74.

[25] Id.

[26] 133 S. Ct. 2532.

[27] 42 U.S.C § 2000e-2(m)(2006).

[28]Id.

[29] 133 S. Ct. at 2531.

[30] Id. at 2532.

[31] Id. at 2547.

[32] 913 F.2d 398, 403 (7th Cir. 1990).

Hoover Public Transportation

Hoover Public Transportation

Tiffany Ray

The Hoover City Schools in Central Alabama are no strangers to controversy. Among other things, the school system in recent years has endured a grade-changing scandal that resulted in several high-profile firings, and it has been sued by a student who was allegedly injured and arrested after falling asleep in class.[1] Now, the system is receiving national attention for its recent decision to end busing services for all but disabled students, a move that will disproportionately impact minority students.[2] The anticipated cuts have sparked criticism from some parents and community members, who have cited concerns about the decision’s potential to increase traffic as well as student tardiness and truancy.[3] Critics also worry about the safety of students who could be forced to walk long distances along busy commercial thoroughfares, or on streets with no sidewalks, and the additional burden the cuts will place on low-income families to get their kids to school.[4]

Clearly, the effects of such a decision are likely to impact Hoover as whole. However, findings that minority families may be disproportionately burdened by the loss of bus service are concerning and raise questions about what obligation public schools have to provide not only educational opportunities to children residing within their boundaries, but access to those opportunities.

Hoover has provided systemwide school bus services to students since its inception in 1988.[5] School officials claim eliminating the service, a measure approved by the school board July 15, is necessary to address funding shortfalls.[6] When it eliminates busing in the next school year, it will become one of only a handful of systems in the state that don’t provide it, and it will be the first to withdraw the service from its community.[7] Some parents have decried the decision for the burden it will place on low-income families who rely on busing to get their kids to school. Indeed, some allege that creating such a burden may be precisely the point: that eliminating bus service is a way to encourage families who would rely on such services to move elsewhere, or to discourage new low-income families from moving in.[8]

Whatever the motives of school officials in putting bus service on the chopping block in lieu of other programs or services, it certainly appears that a significant number of students will be impacted by the decision, and minority students particularly so. A local newspaper report found that nearly half of Hoover students were identified as likely bus riders next year, when the cuts take effect.[9] The report also found that 63 percent of black students in the Hoover system were likely bus riders, compared with only 44 percent of white students and about 55 percent of students categorized as “other.”[10]

The Supreme Court in its 1954 Brown v Board of Education of Topeka decision laid out the notion of equal educational opportunity, saying education is “perhaps the most important function of state and local governments … it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”[11] The legislature followed with the Civil Rights Act of 1964, which prohibited not only intentional discrimination in programs receiving federal assistance, but also activities which unintentionally create discriminatory effects.[12] As Zachary W. Best explained in The Georgetown Law Journal, this disparate impact claim was successfully made in Lau v Nichols, where the Court found that schools discriminated by failing to provide adequate instruction to non-English-speaking students. [13] Since Lau, however, the evolution of disparate impact, with its burden-shifting framework (requiring plaintiffs to set out a prima facie case of discrimination, then offering defendants the opportunity to justify its actions on other, nondiscriminatory grounds, then returning to plaintiffs to show the defendants’ objectives are a merely a pretext for discrimination or could have been reached by other, nondiscriminatory means) has proven difficult for plaintiffs to overcome.[14] Moreover, individuals may no longer bring suit under Title VI but must funnel their claims through the U.S. Department of Education.[15]

The Supreme Court said in Washington v. Davis, the “central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.”[16] However, the Court set the standard for a showing of Equal Protection violations similarly high, saying its “cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.”[17] Indeed, speaking of school desegregation cases, the Court said such an act “must ultimately be traced to a racially discriminatory purpose,” though it went on to add that a disproportionate impact is at least relevant to showing a Constitutional claim.[18]

Best examines the issue in light of increasingly punitive school disciplinary policies and their disproportionate impact on minority students, calling for new standards in evaluating such claims, including a requirement that school systems not only enact policies neutrally, but that they do so with the goal of equal opportunity firmly in mind.[19] Requiring systems to actively seek out equal opportunity would “disallow apathy” and would comport better than current judicial policies with the intent of Equal Protection and Title VI, Best says.

Given the increasingly restrictive judicial review of disparate effects claims, a claim that eliminating school busing services violates guarantees of equal educational opportunities would seem to face significant roadblocks. Assuming a prima facie argument could be made, the district would be required to show a nondiscriminatory purpose for the cuts, and school officials already have spoken publicly about the system’s mounting budgetary problems, its deficit spending, and the difficulty of keeping up with its ever-increasing enrollment in the face of declining revenues.[20] Although the state reimburses school systems for most (about 80 percent currently) of its transportation costs, the large Hoover system will save an estimated $2.5 million a year of its own money by eliminating busing.[21] However, that’s a tiny piece of the district’s annual budget, estimated this year at about $167 million, and it still leaves the system with a $14 million hole in its budget.[22] Officials have said they targeted bus services because they wanted to keep spending cuts “away from the classroom,” but it seems more likely that these particular cuts would keep some children – a disproportionate number of them minority students – away from school.[23] Still, public outcry over the cuts may be having some impact: Hoover’s Superintendent, Andy Craig, has said the district is devising alternatives to bus cuts.[24] Stay tuned.


[1] Jon Solomon and Erin Stock, “Political football: Hoover city, school leaders helped make coach powerful,” AL.com, Feb. 27, 2008, http://blog.al.com/bn/2008/02/political_football_hoover_city.html; Kelsey Stein, “Hoover student claims in lawsuit that she was injured, arrested after falling asleep at desk, AL.com, May 9, 2013, http://blog.al.com/spotnews/2013/05/hoover_student_claims_in_lawsu.html.

[2] Marie Leech, “Hoover bus cuts: Minority students more likely to ride bus than white students, data show,” AL.com, Sept. 17, 2013, http://blog.al.com/spotnews/2013/09/hoover_bus_cuts_minority_stude.html.

[3] Jon Anderson, “Hoover parents beg school officials to reverse school bus cuts at forum (photos),” AL.com, Aug. 8, 2013, http://blog.al.com/spotnews/2013/08/hoover_parents_beg_school_offi.html; Jon Anderson, “Crowd fills Hoover school boardroom to air concerns over planned school bus cuts (photos),” AL.com, July 29, 2013, http://blog.al.com/spotnews/2013/07/crowd_fills_hoover_school_boar.html.

[4] Anderson, Supra note 3.

[5] Marie Leech, “To bus or not to bus: Four points as Hoover eyes ending bus services,” AL.com, Sep. 3, 2013, http://blog.al.com/spotnews/2013/09/hoover_will_become_sixth_and_b.html.

[6] Jeremy Gray, “Hoover to cut school bus service in 2014-15 school year in effort to save $2.5 million,” AL.com, July 15, 2013, http://blog.al.com/spotnews/2013/07/hoover_to_cut_school_bus_servi.html.

[7] Leech, supra note 5.

[8] Marie Leech, “Hoover bus cuts: Minority students more likely to ride bus than white students, data show,” AL.COM, Sept. 17, 2013, http://blog.al.com/spotnews/2013/09/hoover_bus_cuts_minority_stude.html.

[9] Id.

[10] Id.

[11] Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 493 (1954).

[12] Zachary W. Best, “Derailing the Schoolhouse-to-Jailhouse Track: Title VI and a New Approach to Disparate Impact Analysis in Public Education,” 99 Geo. L.J. 1671, 1685 (2011).

[13] Lau v. Nichols, 414 U.S. 563 (1974).

[14] Best, supra note 13.

[15] Id.

[16] 429 U.S. 229, 239 (1976).

[17] Id.

[18] Id. at 240-41.

[19] Id. at 1714.

[20] Marie Leech, “To bus or not to bus: Four points as Hoover eyes ending bus services,” AL.COM, Sep. 3, 2013, http://blog.al.com/spotnews/2013/09/hoover_will_become_sixth_and_b.html; Jon Anderson, “Hoover parents beg school officials to reverse school bus cuts at forum (photos),” AL.com, Aug. 8, 2013, http://blog.al.com/spotnews/2013/08/hoover_parents_beg_school_offi.html.

[21] Leech, supra note 20.

[22] Marie Leech, “Hoover bus cuts: Minority students more likely to ride bus than white students, data show,” AL.COM, Sept. 17, 2013, http://blog.al.com/spotnews/2013/09/hoover_bus_cuts_minority_stude.html.

[23] Leech, supra note 21.

[24] Anderson, supra note 20.

Club Membership on College Campuses: An Argument for Discrimination

Club Membership on College Campuses: An Argument for Discrimination

Jack ODowd

A recent article in the University of Alabama student newspaper, The Crimson White,1 stirred up controversy when it questioned the recruitment practices of a large segment of the university’s sororities. According to the article, a stellar candidate was denied membership in many of the sororities she rushed simply because she was black. Despite the recruit’s 4.3 high school GPA, excellent marks during the rush process, and the fact that her grandfather was an Alabama trustee, no “white” sororities extended an offer of membership to her. Equally shocking was the revelation that in the history of the Panhellenic sorority system, there has been only one black member.

In 2013 exclusionary behavior such as this, refusing a bid to a black girl, is undoubtedly an anachronism and my reasoned judgment is that it is not the way most sorority systems behave (or should behave). But what if sororities, or student membership associations in general, believed that discrimination on the basis of race was central to their group purpose? Because it is so rare to see such blatant discrimination in the über politically correct higher education environment, few people would even think to consider whether a sorority should be able to legally discriminate against blacks. Besides the fact that it is poor form from a social and moral standpoint, why shouldn’t private clubs made up of college students be able to discriminate on the basis of race?  How is the right to freely associate, a First Amendment right entitled to the most rigorous protections, implicated in this debate?

The right of American citizens to freely associate, first explicitly recognized in NAACP v. Alabama ex rel Patterson, flows from the First Amendment, which guarantees freedoms of speech, press, and peaceful assembly.2 One of the most important reasons the First Amendment exists, is to protect unpopular speech. Through free association, persons sharing a common unpopular belief may draw strength from another, otherwise afraid to voice their opinion, and this bond may facilitate “the ability to independently define one’s identity that is central to any concept[] of liberty.”3 The freedom of association furthers a group’s ability to advance “a wide variety of political, social, economic, educational, religious, and cultural ends.”4 Implicit in the idea of the freedom to associate, is the freedom to dissociate, or refuse to allow certain unwanted people to be a part of your group. Importantly though, an “individual’s statutory freedom from discrimination trumps a group’s constitutional freedom from expressive association unless that group can establish a nexus between its exclusionary policy and its expressive association.”5 Thus, by refusing to extend a bid to a prospective sorority sister or group member, club members may be doing no more than exercising fundamental constitutional rights, if exclusion is tied to the purposes of the group.  This could be the case for a hypothetical student organization, we’ll call it Kappa Kappa Kappa, dedicating to advancing the political and cultural agenda of white people. Associational rights are particularly important where admitting members would undermine the purposes and goals of the group, and even more so where the views of the group are unpopular.

A survey of the case law shows that the rights of free association of university groups are gradually eroding, and universities, spurred by a desire to foster “inclusivity” and “diversity”, are forcing groups to admit unwanted members. Though discrimination on the basis of race is, admittedly, not the most sympathetic group philosophy, abridging distasteful speech may eventually lead to other types of less sinister viewpoints being curtailed. The case law bares this out.

In Christian Legal Society v. Martinez6, a group of Christian law students at Hastings College of Law was denied official recognition by the college because CLS required its members to sign a “statement of faith” affirming that homosexuality is sinful. This requirement violated the college’s non-discrimination policies, which forbid student groups from discriminating in admission on the basis of, among other things, sexual orientation. The Supreme Court found that the school’s total inclusion policy furthered its own pedagogical interests, and that because the policy was “viewpoint neutral” in that it did not single out a particular type of discrimination, it did not offend the groups free speech rights.7 In other words, the non-discrimination policy at Hastings was not a selective one, and any viewpoint discrimination was merely incidental to the school promoting its “all comers” policy.

By contrast, some schools have enacted particular policies that seek to eradicate certain types of discrimination. In Alpha Delta Chi-Delta Chapter v. Reed, a Christian student group was denied university recognition because the group’s membership rules required members to be Christians.8 The school justified denying the group recognized status by referencing its “commitment to diversity”, which required official university groups to undertake efforts to ensure diversity within their group. However, “as a matter of practice some student groups were allowed to limit membership to those who agree with the clubs purpose, ideology, or mission.”9 This included a requirement by the Lebanese club that members be willing to work toward an independent Lebanon, an Immigrant Rights Coalition that required members to believe certain things about immigration, and a Planned Parenthood club that required members to be committed to abortion rights.10 Thus, the university’s discrimination policy was not viewpoint neutral, and apparently singled out discrimination on the basis of religion.

In light of Alpha Delta, it is clear that even if a university has a facially viewpoint neutral non-discrimination policy, it may still be engaging in inappropriate viewpoint discrimination by sanctioning those groups whose philosophy is contrary to the mainstream. The result will be that once a group’s philosophy falls out of favor, that group’s membership policy will be regulable. In Healy v. James, the Supreme Court emphasized that discrimination against an unpopular viewpoint by a university is an unacceptable limitation of group speech rights,11 no matter how abhorrent the group philosophy may be. It may be important though to distinguish between group thought and group action, with the former always being allowed and the latter being susceptible regulation due to the university’s interest. Thus, even if a group wanted to discriminate against blacks as part of its group philosophy, actually discriminating against blacks may be outweighed by the university’s compelling interest. At what point though should a university policy permit the school to undermine the associational rights of more savory forms of discrimination, such as religious clubs discriminating against atheists, or fraternities discriminating against women?

Although we may find a university group’s decision to engage in racial discrimination distasteful, that decision could, in theory, be part of the group’s right to express its own political, cultural, religious, or other belief. If so, then the ability of that sorority to discriminate, on any basis, ought to be protected, no matter how abominable, vile, bigoted, hateful, or offensive we may find it. Only the most pressing university interest, such as the health and safety of students, should be justification to diminish individuals’ associational rights. If not, the associational freedoms that are really worth protecting will eventually be gone, always having to succumb to even the most tenuous rationale. As one University of Alabama graduate, Justice Hugo Black, wrote, “I do not believe that it can be too often repeated that the freedoms of speech, press, petition, and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”12

 

 

2 357 U.S. 449 (1958).

3 Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984).

4 Id. at 622.

5 9 Wm. & Mary Bill Rts. J. 591, 593 (2001).

6 120 S. Ct. 2871, 2981 (2010).

7 Compare this policy with a policy that says, “only discrimination on the basis of race is forbidden, all other types of discrimination are allowed.” Such a policy would not be viewpoint neutral.

8 648 F.3d 790, 795 (9th Cir. 2011).

 

9 62 Cath. U. L. Rev. 575, 592 (2012).

10 Id. at n. 126.

11 408 U.S. 169, 170-71 (1972) (university refused to recognize a student group dedicated to “disruption and violence.”)

12 367 U.S. 1, 137 (1961).

“Stand Your Ground”: Strike It Down

Kyle Mathis, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Kyle Mathis, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

On February 26, 2012, an African-American teen named Trayvon Martin was found shot to death in a small community north of Orlando. Who was his killer? George Zimmerman, a 28-year-old leader of the Sanford, FL community watch program; a position he had essentially bestowed upon himself.

Zimmerman remains a free man, protected by a Florida law known by many as a ‘Stand Your Ground’ law. Florida was the first of several states to pass a “Stand Your Ground” law which legally allowed someone to take proactive measures and use deadly force as a means of self-protection outside of their own home (which was the previous, traditional limit for such use of force).[1] Prior to the passage of the 2005 law, an individual faced with a situation which may call for self-defense was legally obligated to first and foremost attempt to flee. Because Zimmerman is able to claim that he suspected that Martin was committing a crime and that he “reasonably” believed that he was in personal danger, (it seems) he has been granted a certain level of immunity from being punished for his actions. This has created a good deal of controversy around the country.

Since the incident, bill sponsor, Former State Senator Durrell Peadon (R) and other members of the Florida legislature have started speaking out against this interpretation of their law.[2] They claim the Florida legislature did not intend this kind of result in passing this bill, but simply intended to provide a measure of self-protection for honest Americans. In fact, representatives have said that if the facts show that the alleged actions of Zimmerman on February 26 are true, then he will find no protection in their law. But that is not really their call anymore, is it? Now the matter is in the hands of the Florida justice system.

One provision of the law in question can be found in §776.013 of the Florida statute.[3] Specifically section (1) reads:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonable believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

A few things jump out about the text of this law and the facts of this situation. First, is the question of whether Zimmerman was even attacked. From what is publicly known about Zimmerman’s conversations with the police, they seem to indicate that, in fact, Zimmerman may have been the one who initiated contact with the teen. The second issue is the use of the ever problematic reasonable belief standard in a statute which allows one individual to end the life of another and potentially go unpunished for this action. Another provision of Florida law, §776.012, gives further possible protection to Zimmerman and reads:

 A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if: (1) he or she reasonable believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.[4]

This provision may aid Zimmerman in attempting to defend his actions as it does not place a requirement on the individual to have been first attacked. However, even with 776.012, there is still a problem with the reasonable belief standard. A “forcible felony” as stated in both 776.012 and 776.013 is defined under Florida statute §776.08 and includes: “murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”[5]

  A classmate put these statutes in a way that really rang out for me: “Authorized Vigilante Justice.” Since hearing that, I have seen others voice a very similar opinion.[6] I grew up in South Central Texas, and I also own multiple firearms. I am a firm believer in an individual’s right to own and bear arms. Similarly, the right to defend yourself and your home are also codified in Florida statute §776.013. However, that right should not eclipse the rights of another individual’s rights.

Under the letter of the law there is a decent chance that a jury could find that Zimmerman reasonably believed that Martin was robbing a home, or any other of the many crimes applicable under §776.08. That is the problem. The state of Florida has allowed the beliefs of an individual with a gun to become a form of justice, and that simply should not be permissible.

There is no claim that Trayvon Martin actually committed a felonious crime or was in the process of committing one before his encounter with George Zimmerman that fateful night. But even if Martin had done something wrong, he is owed several things by our justice system, including the right to have a jury determine whether he is actually guilty of committing any crime. Instead, being a lone outsider in a community late at night seems to have given Zimmerman a right to take on the roles of everyone in our judicial system, from police officer to judge to executioner. The due process rights (not to mention the life) Zimmerman stole from Martin that night show, in and of itself, why the Florida law, as written, is simply unacceptable.

This is not to say that the idea of a “Stand Your Ground” law cannot work. It can. However, no law which gives an individual a right to end the life of another should be based on a standard that they reasonably believed that one thing or another was going to happen. An officer cannot arrest me without some measure of probable cause and a judge cannot sentence me to death until a prosecutor has proved to a jury that I have committed a crime punishable by death beyond a reasonable doubt. However, because Zimmerman was just an average citizen with a gun, he is allowed an almost indefinable standard by which to decide whether Martin had the right to continue living.

For a law of this type to be effective, it will take a clearer statute and standard by which to determine whether a crime is happening and a narrower definition of what allows an individual to initiate the use of deadly force against another. Several of the listed forcible felonies are obviously understandable (such as arson, sexual battery, aircraft piracy, etc.); however, others do not seem to warrant the punishment of potential death by citizen. For example, under Florida law, one is allowed to kill another if one finds it reasonably necessary to prevent them from committing an imminent car-jacking. To save the possession of a third-party from being stolen, it would be ok to kill someone. This is unreasonable.

The Florida courts should have the opportunity to look at Zimmerman’s case, if only for the fact they could have the opportunity to strike the law down and force the legislature to re-assess the how the law is written. Clearer definitions need to be implemented so that an individual must have more than just a subjective belief that a crime is being committed or that someone is threatening them. It may not be as extreme as needing to see a weapon, but a level of accountability must be in place for those who will take it upon themselves to put the words of 776.012 and 776.013 into effect.

We may never have a clear picture of what happened that night between Martin and Zimmerman Sanford, Florida. Instead, we will get a picture that involves a nation displaying a level of rage and debate over the actions taken that night by Zimmerman. Some have called this a race issue, and they may be right.[7] There is not enough known about Zimmerman to know if he would be driven by racial prejudice to act in this way. Others will say this is a gun rights issue, and they may be right, too.[8] There are many issues at play here. But in the end, I see only one solution being the correct one under the United States Constitution, and that is to arrest and try George Zimmerman for murder allowing for him to officially raise his self-defense claim (up to this point it has been the decision of the police and District Attorney’s to not arrest Zimmerman as they have determined he acted within the bounds of Florida statutes §776.013 and §776.012 in a court of law. Then it should be the responsibility of the courts to shoot down the defense and rule this law to be unconstitutional, so that Zimmerman is punished for his actions and the state of Florida’s legislature will be forced to fix this law so that another person will not feel justified by over-zealously taking the life of one of their fellow men.


[8] http://www.thenewamerican.com/opinion/950-bob-confer/11309-qstand-your-groundq-and-self-defense

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Alabama’s Immigration Law Does No Good

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Alabama House Bill 56 is the latest and most aggressive state immigration law to date. According to Micky Hammon, the bill’s chief sponsor, it was designed to “attack every area of an illegal alien’s life.”  Surpassing the controversial Arizona and Georgia legislation, the bill calls for strict enforcement of its measures, which range from creating a civil cause of action against employers who fire citizens while retaining illegal aliens; requiring public schools to determine the immigration status of all incoming students and their parents;  to requiring police officers to make a reasonable attempt to determine the residency and immigration status of a person stopped, if there is a reasonable suspicion that the person is an illegal immigrant.

The new law, passed in by the Alabama legislature and signed by Governor Robert Bentley, has already been challenged as a preemption of federal power, with mixed results.  But perhaps more interesting is the specter of racism cast by this law. There are illegal immigrants of every color in this country.  However, it is the Hispanic community, both U.S. citizens and illegal immigrants, which has become the focus of this debate.  As such it is only appropriate to consider the effects of the bill on both groups.

Latinos make up approximately 3.9% of the Alabama’s population, or about 185,602 people.[1]  It is estimated that illegal immigrants make up around 64% of the Hispanic population, or around 120,000 people.[2] Moreover, the two groups are often interwoven—i.e. children, who are citizens, may have parents who are here illegally.  The implications of H.B. 56 for Hispanic citizens of Alabama are terrifying.  Already nightly newscasts are broadcasting stories on “How to Stay Safe,” which include tips like always carrying “papers.” After the passage of H.B. 56, Hispanic Americans are forever foreigners in the eyes of the fellow citizens—they must be constantly ready to prove that they belong here as citizens and lawful residents.  However, “showing papers” may be the least of these worries if the Alabama legislature is successful in getting the law enforced in its entirety.

U.S. District Court Judge Sharon Blackburn blocked some portions of the law which made it a criminal offense to conceal, harbor, transport, or shield an illegal immigrant.  If the Alabama legislature is successful in its appeal, many Hispanic families would be confronted with the dilemma of being forced from their home in order to keep their family together, or face criminal charges if they continue to have contact with family members who are illegally in the state. Furthermore, approved portions of the law place children, who are legally in the U.S., whose parents are illegal immigrants, in an untenable position. Also, H.B. 56 section 30 makes it a felony for an illegal immigrant to enter into a business contract with the State of Alabama.  The implications may not be apparent at first glance, but in many parts of the Alabama, utilities, such as water, sewage, and electricity, are only available through the State. Clearly, as claimed in the Federal appeal, Alabama’s new law is “highly likely to expose persons lawfully in the United States, including school children, to new difficulties in routine dealings.”[3]

For those Latinos not lawfully in the U.S., the message is clear—Get Out. The only remaining question is where? Although some families are leaving the country voluntarily, many are simply crossing state lines. Either way, they are moving carefully, since the law became effective on September 29th , many illegal immigrants fear detention, or criminal charges, if they are seen by law enforcement. As Vianey Garcia, an illegal immigrant said, “We have to move. We have to leave everything.  We can’t take anything because I’m afraid they can stop us and say why are you moving?”

The repercussions of H.B. 56 are already apparent.  The Thursday the law went into effect (September 29th) scores of Latino students were absent from schools, and many have never returned.  Although it is too early for reliable statistics, anecdotal evidence from the community suggests many Latino families are fleeing in fear. Proponents of the law have lauded the early signs of success; they are driving immigrant families from the state. However, it is the climate of fear created by H.B. 56 that most worries its opponents.

Fear, it is the one word that cuts through every article, news report, and interview on H.B. 56. After all, the law is an “attack” on illegal immigrants; and by proxy, their family members who are legally in the U.S., and let’s be honest, Latinos in general. The law tried to create criminal and civil sanctions not just against illegal immigrants themselves, but also against anyone who would employ, transport, aid, or even encourage them—they have been cast as lepers by Alabama lawmakers. As the stereotypical face of illegal immigration, Hispanics face suspicion and disdain lest others be exposed to the taint of illegal immigration.

It has been said H.B. 56 and its Arizona and Georgia counterparts are a cry for help—an extreme reaction to the federal government’s inaction to state immigration concerns. And like most extreme measures, it has produced a result, but at what cost? The federal government has cited concerns that extreme state immigration policies interfere with the federal strategy and enforcement—hardly a convincing argument when it was the inaction of the federal government that prompted the passage of H.B. 56 in the first place. Civil rights groups, like the Southern Poverty Law Center, claim the law will lead to racial profiling, chill children’s access to education, and result in violations of the Due Process and Equal Protection clauses. Church leaders have also protested the law, claiming it violates, and in some cases would criminalize actions prompted by Christian values. The agricultural sector says it is unable to find a replacement workforce, that crops are rotting unpicked in the fields. For a state so recently ravaged by tornadoes, contractors are concerned that a dearth of workers will cause long delays in rebuilding the state.

Furthermore, proponents of the immigration law claim it is designed to protect the residents of Alabama from bearing the costs of illegal immigrants; but there is no clear evidence that illegal immigration creates a financial burden.[4] Moreover, evidence exists that illegal immigrants may be an economic boon. It is estimated that in 2010 illegal immigrants in Alabama paid $130.3 million in state and local taxes.[5] Furthermore, “if all unauthorized immigrants were removed from Alabama, the state would lose $2.6 billion in economic activity, $1.1 billion in gross state product, and approximately 17,819 jobs.”[6]

I am not contesting the importance of resolving illegal immigration. It is an important issue that begs resolution, but H.B. 56 is not the solution; moreover, it creates more problems.Furthermore, I recognize that illegal immigrants are not United States citizens, and therefore not entitled to all of the rights and privileges guaranteed by the Constitution. However, this “attack” is not well executed, and both legal and illegal residents of Alabama have been harmed by its carelessness. H.B. 56 is so poorly crafted, and that is evident in that it has created enormous hardships without serving any of its stated interests. The problem of illegal immigration deserves more consideration than reactionary legislation.  History is filled with examples of minorities whose rights and liberties have been trampled because they are the scapegoat for a larger problem. The state of Alabama has a chance to choose a different road; to draw on its history and turn from the, perhaps popular, path of segregation and instead draft legislation that actually addresses the needs of its citizens.

Sources:

http://news.yahoo.com/obama-administration-appeals-alabama-immigration-law-220502628.html

http://blog.al.com/birmingham-news-commentary/2011/10/viewpoints_undocumented_doesnt.html

http://www.csmonitor.com/USA/2011/0929/Alabama-life-already-changing-under-tough-immigration-law

http://www.splcenter.org/get-informed/news/splc-civil-rights-groups-file-emergency-request-to-block-key-provisions-of-alabama

http://abcnews.go.com/blogs/headlines/2011/10/latino-students-withdraw-from-alabama-schools-after-immigration-law-goes-into-effect/

http://www.scribd.com/doc/66701706/Summary-Opinion-on-Alabama-Immigration-Law

http://blog.al.com/breaking/2011/09/federal_judge_throws_out_xxxx.html

http://www.immigrationpolicy.org/just-facts/new-americans-yellowhammer-state

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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