Abstract

Excerpted From: Gabriel J. Chin, Black Equal Citizenship and Residential Segregation in the Supreme Court's Race Jurisprudence, 75 UC Law Journal 1581 (August, 2024) (94 Footnotes) (Full Document)

Geography, it has been said, is destiny. Arranging for a disfavored minority to reside in a geographically distinct area facilitates discrimination and oppression in ways that would be difficult or impossible in communities where that minority lived amongst the majority: Political gerrymandering, unfair taxation, hostile legislation, unequal law enforcement, inferior educational opportunities, deprivation of useful public services and access to employment, and infliction of “disamenities,” undesirable land uses are all easier if minorities are concentrated. Compared to other racial and ethnic groups, African Americans now do disproportionately live in segregated enclaves, and suffer the consequences of that separation. African Americans as a group have lower incomes, wealth, and educational attainment, and are more likely to be convicted of crimes or imprisoned than members of other groups. The Kerner Commission Report, issued in 1968 at the height of the Civil Rights movement, outlined many of these disparities. Half a century later, African Americans' income and educational attainment has increased in real terms--but so has that of other groups. Accordingly, significant disparities between African Americans and others persist.

If it is assumed that Framers of Reconstruction after the Civil War intended to create genuine equality for the newly freed formerly enslaved persons, then one might imagine that contemporary segregation of Black Americans is a legal problem, at least to the extent that it is worth asking whether that segregation is the product of unlawful discrimination in violation of the constitutional and statutory civil rights Congress created. But the Court has been remarkably uncurious about that issue. Generally, the justices of the Court addressing the issue have assumed that current residential segregation--and its segregative effects on education, employment, and other domains of life--have been the result of neutral economic pressures and voluntary choice not compelled by law. This is, of course, a conceivable empirical possibility. But given the importance of racial justice in the Constitution, and as a matter of social policy, the Court should grapple more frankly with the history, and make more informed judgments about whether the current situation is just something that happened because of free choice, or is the consequence of unlawful discrimination.

Part I of this Essay briefly outlines some of the Supreme Court jurisprudence on the nature of residential segregation, explaining that for the past fifty years, many justices have decided cases based on the assumption that housing patterns in the United States are explained by free choice. Part II challenges the Court's assumptions, outlining some of the many forms of public and private housing discrimination which are now understood to violate the Constitution and civil rights laws which have been explored in detail by recent scholarship. It proposes that discrimination was widespread, persistent and intense. This history raises substantial doubt that the free choice hypothesis can be correct, at least not without much more substantial engagement with the existence and operation of the techniques of discrimination deployed against African Americans.

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This gives rise to a fifth and final question: Is the Court aware of any group in the modern history of the world that has been the subject of extensive, prolonged and successful oppression, but through “neutral” means, without social restructuring, has more or less “caught up” with the majority in the areas of lifespan, income, and education? For this to happen, African Americans would not merely have to progress, from a starting point of much less material advantage, but would have to progress at a rate faster than other groups which have been advantaged, or disadvantaged less. Instead of being regular people, each African American would have to be a star to develop their human capital at a greater rate than other people--is this a realistic expectation? Has it ever happened before? If unprecedented, then there is reason to doubt that it will happen now.

Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor of Law, UC Davis School of Law.