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Excerpted From: Taunya Lovell Banks, What Is a Community? Group Rights and the Constitution: the Special Case of African Americans, 1 Margins: Maryland's Interdisciplinary Publication on Race, Religion, Gender, and Class 51 (Spring, 2001) (141 Footnotes) (Full Document)


TaunyaLovellBanksIn 1992 after a woman reported that she had been robbed in her home by a young black man, police officers in the predominately white upstate New York town of Oneonta tried to “locate and question” every African American or “black” man in the town. The police lost track of the assailant near the campus of the State University of New York College at Oneonta (SUCO). The police requested and SUCO provided them with a list of its black male students. Finding no suspect, over the next several days the police stopped and questioned more than 200 “'non-white’ persons on the streets and inspect[ed] their hands for cuts.” The students on the list provided by SUCO and the persons approached and questioned sued alleging that they were targeted because of their race. They claimed that the police's actions violated their rights under 42 U.S.C. § 1983, the Fourth Amendment and Equal Protection Clause. Their attorneys sought class certification for the student plaintiffs and separate certification for the other plaintiffs. The district court granted certification for the student class, but not the second class. The court reasoned “that each individual [in the second class] had experienced a separate and factually distinct encounter with the police.” Thus, the second group of plaintiffs had to proceed individually with their claims even though they were targeted by the police simply because of their race and gender.

The conduct of the police in Brown v. City of Oneonta is an extreme example of racial profiling. A more common police practice, nicknamed “driving while black,” targets black motorists. Studies suggest that black Americans are disproportionately and systematically stopped by police officers while traveling on the highways. The race of the person detained by the police is frequently the only basis for the action. Courts admit that a proven disparity between the number of white and black motorists stopped by the police suggests a constitutional race-based violation. Yet too often courts frame these violations as individual rather than group claims. The law does not clearly provide a group-based remedy for race-based constitutional violations. Following western liberal tradition, constitutional rights in the United States are framed as individual rather than group rights. Courts, however, routinely recognized group rights. Corporate entities, which are voluntary communities of shareholders, have rights. Similarly, trade unions, which are voluntary communities of workers, have group-based rights to negotiate with employers on behalf of their members. Likewise, religious and charitable associations have group-based rights. So do Native American communities like the Hopi, Navajos, and Cherokees, who are formally recognized by the federal government and are treated as domestic sovereign entities. Even activist civil rights organizations have group rights. So, perhaps it is misleading to say that American law only protects individual rights.

With the exception of the protection afforded to religious groups under the First Amendment, positive group rights are conferred by laws or treaties rather than constitutional mandate. Yet Justice Stone in United States v. Carolene Products expressed the once commonly held belief that the Supreme Court can exercise judicial review to protect the rights of “discrete and insular” minority groups from the tyranny of the majority. In theory, at least, racialized minority groups in the United States, particularly blacks, have a right under the Thirteenth and Fourteenth Amendments to be free from discrimination or stigmatization by the state. Under the Equal Protection Clause, the United States Supreme Court strictly scrutinizes any type of race-based governmental action. This protection of discrete and insular racialized minority groups, however, focuses on the individual rights of group members and not the groups themselves.

In this essay I join others who argue that discrimination against people raced as black in the United States is group-based discrimination. Thus, courts should be open to group-based claims and remedies. I caution, however, that any group rights based on African ancestry should only apply in very limited and, perhaps, extraordinary circumstances because the black community is increasingly loose-knit and heterogeneous.

In search for an appropriate standard to determine when legal recognition of black group rights should be triggered, I start with Beauharnais v. Illinois. In Beauharnais, the United States Supreme Court speculated that blacks as a group might be defamed. Ultimately, the Court backed away from the group defamation language in Beauharnais because it runs counter to constitutional jurisprudence grounded in the principle of individual rights. So, I turn to international human rights laws for guidance.

In exploring group-based rights, I ask whether the contemporary black community fits the definitions of protected groups developed internationally. I conclude that in most instances, a claim of group-based rights for people raced as black in the United States seldom fits the types of claims usually assigned group recognition in other countries. The racial profiling of blacks may be one of those exceptional claims. Lastly, I suggest that the loosely knit heterogeneous group labeled as the black community should push for legal recognition of limited group-based rights to address these exceptional cases.

[. . .]

Ronald Garet writes:

So long as equal protection jurisprudence is devoted exclusively to individual and social values, group rights will be undefined and left unprotected. Equal protection will actually produce certain group-protective outcomes, but it will also protect groups where protection is not called for by any group value. More importantly, it will fail to protect groups where that protection is called for by group values.

People raced as black in the United States need to acknowledge that race is not the end all and be all for black Americans. Community membership, even increasingly for people raced as black, is temporal and transcendent-- limited purpose. Thus, we must be more critical in our assumptions about the existence and nature of the black community in the United States. Broad legal recognition of group rights for racially subordinated groups like blacks may be ill advised.

Although questioning the construction of the racial category black or African American as a unitary interest group, I nevertheless urge black Americans to be strategically essentialist on racial matters. Racial profiling is a good example of an issue that impacts all persons raced as black. In the absence of a group-based remedy, there will be multiple individual legal attacks on racial profiling practices. Where a strong case for a unitary community interest can be made, requiring individuals to litigate separately is both expensive and time consuming. Both plaintiffs and the legal system will suffer and any relief obtained may be insufficient.

Some narrowly tailored recognition of group rights is needed. Otherwise race-based practices, like racial profiling, that affect an entire racialized community will effectively chill freedom of movement for that segment of the citizenry. Groups of citizens, who fear traveling on the highways of this country based solely on their membership in racialized group, are being denied equal protection under the law when they are unable to secure the legal protection of their government.

Jacob A. France Professor of Equality Jurisprudence, University of Maryland. The author thanks Katherine Vaughns and her research assistant, Elizabeth Taylor, class of 2002.

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