Muir v. Louisville Park Theatrical Association Brief for Appellant

    No. 00-730

In The

si’upm ne Court of tfyo tlnttrfi S tates

Adarand Constructors, Inc.,
Petitioner,

v.

Norman Y. Mineta, Secretary of the United States 
Department of Transportation, et ah,

Respondents.

On Writ of Certiorari to the 
United States Court of Appeals for the Tenth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENTS

f

received
1 e 0001

OFFICE OF THE CLERK 
SUPREME COURT, U.S.

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
James L. Cott 

* Robert H. Stroup 
—Elise C. Boddie 

Lia B. Epperson 
Naacp Legal Defense and 

Educational Fund, Inc . 
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

Dated: August 10, 2001

‘“ Attorneys for Amicus Curiae 
* Counsel o f  Record



1

TABLE OF CONTENTS

Page

Table o f Authorities ...............................................................iii

Interest o f Am icus .......................................................................1

Summary of Argument...............................................  1

ARGUMENT-

I This Country Maintained A De Jure Racial 
Caste System That Brutally Enslaved African 
Americans For Over Two Hundred Years And 
For Nearly A Century Thereafter Deprived 
Them Of Fundamental Human And Civil 
R ig h ts .............................................................................. 3  •

A. The Founding Fathers, Congress,
And This Court Sanctioned Slavery ............... 4

B. The History Of The Fourteenth
Amendment Demonstrates That The 
Drafters Intended It To Permit Race- 
Specific Measures ................................   9

C. The Federal Government Maintained 
De Jure Racial Segregation And 
Discrimination After Reconstruction 
And Through The Mid-Twentieth
Century............................................................ 11



11

TABLE OF CONTENTS (continued)

Page

D. Federal Policies In The Twentieth
Century Perpetuated The Status Of 
African Americans As Third-Class 
Citizens ..................... ............................. .. . 15

E. Federal Government Policy Has
Fostered Pervasive Racial 
Discrimination In The Construction 
Industry  ............................................ .. 20

II The Effects O f Government-Sanctioned Racial
Oppression And Racial Caste Are Evident In The 
Continuing Economic And Social Disparities 
Between Blacks And Whites   ..............................24

Conclusion 29



Ill

TABLE OF AUTHORITIES
Page

Cases:

Blyew v. United States,
80U.S. 581 (1872)................... .. ............................  14

Brown v. Board of Education,
347U.S. 483 (1954) ........................................... 2, 15

Buchanan v. Warley,
245 U.S. 60 (1917)................................................... 11

Dred Scott v. Sandford,
60 U.S. (19 How.) 393 (1 8 5 7 )..................... ............ 8

EEOC v. Local 638,
81 F.3d 1162 (2d Cir. 1996)..................................  23n

Groves v. Slaughter,
40 U.S. (15 Pet.) 449 (1841) .................................... 7

James v. Bowman,
190 U.S. 127 (1903).................................................  13

Jones v. Van Zandt,
46 U.S. (5 How.) 215 (1 8 4 7 ).................................... 8

Moore v. Illinois,
55 U.S. (14 How.) 13 (1 8 5 2 ).................................... 8

Nixon v. Herndon,
273 U.S. 536(1927).................................................  11



IV

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Plessy v. Ferguson,
163 U.S. 537(1896) ................................... 2 ,14 ,15

Prigg v. Pennsylvania,
41 U.S. (16 Pet.) 539 (1842) ................................  7 ,8

Railway Mail Association v. Corsi,
326 U.S. 88 (1945).................................................... 11

Regents of the University of California v. Bakke,
438 U.S. 265 (1978).................................................. 11

Roberts v. City of Boston,
59 Mass. 198 (1850) ...............................................  6n

Shelley v. Kraemer,
334 U.S. 1 (1948)...................................................  18n

The Antelope,
23 U.S. (10 Wheat.) 66 (1825)......... .......................7

The Civil Rights Cases,
109 U.S. 3 (1883)...................................................... 14

The Slaughter House Cases,
83 U.S. 36 (1873)...................................................... 11

United States v. Cruikshank, 
92 U.S. 542(1875) . 14



V

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

United States v. Harris,
106 U.S. 629(1883)..........................................  13-14

United States v. Reese,
92 U.S. 214(1876)...............................    14

Constitution:

U.S. Const, art. I, § 2 ..........................................................   . 4n

U.S. Const, art. I, § 8 ...............................   4n, 5n

U.S. Const, art. I, § 9 .......................................................4n, 5n

U.S. Const, art. Ill, § 1 . . .  ..................................................... 5n

U.S. Const, art. IV, § 2 ........................................................... 5n

U.S. Const, art. IV, § 4 ........................................................... 5n

U.S. Const, art. V .........................................   4n

U.S. Const, amend. X III.......... .............................................. 5n

U.S. Const, amend X IV ....................     . 4

U.S. Const, amend X V I ................   4n



VI

TABLE OF AUTHORITIES (continued)

Page

Legislative Materials:

Cong. Globe, 39th Cong., 1st Sess. (1865), 
reprinted in The Reconstruction 
Amendments Debates (Alfred Avins 
ed.,2ded. 1974)....................................................  9-10

Other Authorities'.

Reed Abelson, Anti-Bias Agency is Short of Will
and Cash, N.Y. Times, July 1, 2001, at A12 . . . .  20n

T. Alexander Aleinikoff, A Case for Race-
Consciousness, 91 Colum. L. Rev. 1060
(1991)...................................................... lOn, 15n, 16n

David W. Bartelt, Housing the “Underclass,”
in The Underclass Debate (Michael B. Katz
ed., 1993) ..................................... .. 27n

John F. Bauman, Norman P. Hummon &
Edward K. Muller, Public Housing,
Isolation and the Urban Underclass,
Philadelphia's Richard Allen Homes,
1941-1965, 17 J. of Urb. Hist. 281 (1991) . . . . . .  19n

Derrick Bell, Faces at the Bottom o f the 
Well (1992) .............................. 20n



vii

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

M. Bendick et al., Measuring Employment Dis­
crimination Through Controlled Experiments,
23 Rev. of Black Pol. Econ. 32 (1 9 9 4 )...............  20n

Lerone Bennett, Jr., Before the Mayflower:
A History of Black America (5th ed. 1982) . . 6n, 12n

David Bernstein, The Davis-Bacon Act: Vestige of
Jim Crow, 13 Nat'l Black L.J., 276 (1994) ......... 21n

Mary Frances Berry, Black Resistance/White
Law(2ded. 1996) .................................................  12n

Mary Frances Berry, Slavery, the Constitution, and 
the Founding Fathers: The African American 
Vision, in African Americans and the Living 
Constitution (John Hope Franklin &
Genna Rae McNeil, eds., 1995)......... 4n, 5n, 12n, 13

Rebecca M. Blank, An Overview of Trends in Social 
and Economic Well-Being, by Race, in 
1 America Becoming (Neil J. Smelser, 
et al. eds., 2001) ................................................. .. . 26n

Jomills Henry Braddock II & James M. McPartland,
How Minorities Continue to be Excluded from 
Equal Employment Opportunities: Research 
on Labor Market and Institutional Barriers,
43 J. of Soc. Issues 28 (1987) ............. 24n, 27n-28n



Vlll

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Center on Budget and Policy Priorities, Analysis 
of Census Bureau’s Income and Poverty 
Report for 1999 (2000) <http://www. 
cbpp.org/9-26-00pov.htm> .................................. 25n

William Cohen, Negro Involuntary Servitude in the 
South, 1865-1940: A Preliminary Analysis,
4 2 J .S . Hist. 31 (1976) .........................................  16n

Chandler Davidson & Bernard Grofman eds.,
Quiet Revolution in the South: the Impact of
the Voting Rights Act 1965-1990 (1994) . . . . . .  13n

Norman Fainstein, The Underclass/Mismatch 
Hypothesis as an Explanation for Black 
Economic Deprivation, 15 Pol. & Soc’y 
403 (1986-87) ..................................    27n

Joe R. Feagin & Clairece Booher Feagin,
Discrimination American Style (1978) ............. 24n

Michael Fix & Raymond J. Struyk eds., Clear and
Convincing Evidence (1992)    28n

Horace Edgar Flack, The Adoption of the Fourteenth
Amendment (1908) ...............................................  10n

Eric Foner, Reconstruction: America’s Unfinished 
Revolution 1863-1877 (1988) .................... 7n, lOn

http://www.cbpp.org/9-26-00pov.htm
http://www.cbpp.org/9-26-00pov.htm


IX

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

John Hope Franklin, From Slavery to Freedom
(4th ed. 1974) ..................... .....................................  3n

John Hope Franklin, Race and the Constitution 
in the Nineteenth Century, in African 
Americans and the Living Constitution 
(John Hope Franklin & Genna Rae McNeil
eds., 1995) .............................................. ............ 6n, 7

Joshua B. Freeman, Hardhats: Construction Workers, 
Manliness and the 1970 Pro-War 
Demonstrations, 26 J. of Soc. Hist. 737 
(1993) ...........................................................  2 In, 22n

Henry Louis Gates, Jr., Editorial, The Future of 
Slavery’s Past, N.Y. Times, July 29, 2001,
§ 4, at 1 5 .................................................................. 4n

Ralph Ginzburg, 100 Years of Lynchings (1988) ........... 12n

Stephen Jay Gould, The Mismeasure of Man (1981) . . . . 8n

William B. Gould, Black Workers in White
Unions (1977) .................................................. .. . 24n

A. Leon Higginbotham, Shades of Freedom: Racial 
Politics and Presumptions of the American 
Legal Process (1 9 9 6 )............................................  13n



X

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Herbert Hill, Race and Ethnicity in Organized Labor:
The Historical Sources of Resistance to 
Affirmative Action, 12 J. of Intergroup 
Rel. 6 (Winter, 1984).................... 15n, 21n, 22n, 23n

Arnold R. Hirsch, Making the Second Ghetto:
Race and Housing in Chicago, 1940-1960
(2d ed. 1998) ........ .................................................  20n

Matthew Holden, Jr., Race and Constitutional
Change in the Twentieth Century, African 
Americans and the Living Constitution (1995) . . 12n

Harry J. Holzer & Keith R. Ihlanfeldt, Customer
Discrimination and Employment Outcomes 
for Minority Workers, 113 Q.J. ofEcon.
835(1998) ............................................................... 28n

Harry J. Holzer, Informal Job Search and Black Youth
Unemployment, 77 Am. Econ. Rev. 446(1987) . 28n

Harry J. Holzer, Race Differences in Labor Market
Outcomes Among Men, in 2 America Becoming
(Neil J. Smelser et al. eds., 2001) ........................  28n

Harry J. Holzer, Why Do Small Establishments Hire 
Fewer Blacks than Large Ones?, 33 J. of Hum. 
Resources 896 (1998) ............. .............................. 28n-



XI

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Kenneth T. Jackson, Crabgrass Frontier: The 
Suburbanization of the United States 
(1985) .............................................................. 17n, 18n

Gerald D. Jaynes & Robin M. Williams eds.,
The Schooling of Black Americans, in A 
Common Destiny (1 9 8 9 )................ ..................... 26n

Gerald D. Jaynes & Robin M. Williams eds., Overview:
Then and Now, in A Common Destiny ( 1989) . . 27n

Alfred H. Kelly et ah, 2 The American Constitution: Its
Origins and Development (7th ed. 1991) .............lOn

Richard Kluger, Simple Justice (1975) ............................... 3n

Robert C. Lieberman, Shifting the Color Line
(1998)............................................................. I6n, 17n

Marc Linder, Farm Workers and the Fair Labor
Standards Act: Racial Discrimination in the
New Deal, 65 Tex. L. Rev. 1335 (1987) . . .  16n, 17n

Joseph Lupton & Frank Stafford, Household
Financial Wealth, (Thousands of 1999 Dollars), 
Institute for Social Research (Jan. 2000) <http:// 
www.isr.umich.edu/src/psid/wealthcomp.pdf> . . 25n

http://www.isr.umich.edu/src/psid/wealthcomp.pdf
http://www.isr.umich.edu/src/psid/wealthcomp.pdf


TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Joseph Lupton & Frank Stafford, Household Net
Worth, (Thousands of 1999 Dollars), Institute 
for Social Research (Jan. 2000) <http:// 
www.isr.umich.edu/src/psid/wealthcomp.pdf> . .  25n

Marian F. MacDorman & Jonnae O. Atkinson,
Infant Mortality Statistics from the 1997 
Period Linked Birth/Infant Death Data Set,
47 Nat’l Vital Stat. Rep. 2 (1999) ........................  25n

Anthony Marx, Racial Trends and Scapegoating:
Bringing in a Comparative Focus, in
1 America Becoming (Neil J. Smelser
et al. eds., 2 0 0 1 )................. ......................... .. 30n

Douglas S. Massey & Nancy A. Denton, American 
Apartheid, Segregation and the Making of the 
Underclass (1993) .........................................  26n, 27n

Douglas S. Massey, Residential Segregation and
Neighborhood Conditions in U.S. Metropolitan
Areas, in 1 America Becoming (Neil J.
Smelser et al. eds., 2 0 0 1 ) ..............................  26n, 27n

Randall M. Miller & John D. Smith eds., Dictionary
of Afro-American Slavery (1988) ...................  5n, 6n

http://www.isr.umich.edu/src/psid/wealthcomp.pdf
http://www.isr.umich.edu/src/psid/wealthcomp.pdf


Xlll

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Richard Morin, Misperceptions Cloud Whites’
View of Blacks, Wash. Post, July 11,
2001, at A 1 ......................................................24n, 25n

Maurice E. R. Munroe, The EEOC: Pattern and Practice
Imperfect, 13 Yale L. & Pol'y Rev. 219 (1995) . . 21n

William E. Murray, Homeowners Insurance 
Redlining: The Inadequacy o f Federal 
Remedies and the Future of the Property 
Insurance War, 4 Conn. Ins. L.J. 735 (1997-98) . 19n

National Center for Education Statistics, Quick
Tables & Figures, Percentage distribution of 
16- to 24-year olds who were not enrolled in 
school and had not completed high school, by 
race/ethnicity and recency of migration: 1997. 
<http://nces.ed.gov/quicktables/> ....................... 26n

National Center for Health Statistics, Estimated
Life Expectancy at Birth in Years, by Race 
and Sex, (1999) <http://www.cdc.gov/nchs/
fastats/pdf/47_28tl2.pd£> ....................................25n

Melvin L. Oliver & Thomas M. Shapiro, Black
Wealth/White Wealth (1995).......................  17n, 29n

http://nces.ed.gov/quicktables/
http://www.cdc.gov/nchs/


XIV

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Melvin L. Oliver & Thomas M. Shapiro, Wealth 
and Racial Stratification, in 2 America 
Becoming (Neil J. Smelser et al. eds., 2001) . . . .  19n

Gary Orfield, Federal Policy, Local Power and 
Metropolitan Segregation, 89 P o l Sci. Q.
784-90 (1974-75) ................................... 17n, 18n, 19n

Gary Orfield, Schools More Separate: Consequences
of a Decade of Resegregation (2001)...................  26n

Gary Orfield, Segregated Housing and School
Resegregation, in Dismantling Desegregation 
(Orfield et al. eds., 1996) .......................................  20n

Stephen Plass, Dualism and Overlooked Class 
Consciousness in American Labor Laws,
37 Hous. L. Rev. 823 (2 0 0 0 )........................ 21n, 22n

Jill Quadagno, The Color of Welfare (1994)............. .. 16n

Jill Quadagno, The Transformation of Old Age
Security (1988).............................. ......................... 16n

Yale Rabin, The Roots of Segregation in the Eighties:
The Role of Local Government Actions, in
Divided Neighborhoods (Gary A. Tobin
ed., 1 9 8 7 )................. ......................................  17n, 19n.



XV

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Bernard D. Reams, Jr. & Paul E. Wilson eds.,
Segregation and the Fourteenth Amendment
in the States (1975) ....................... ......................... 7n

Jed Rubenfeld, Essay: Affirmative Action, 107 Yale
L.J. 427 (1997) ....... ............................... .. 9n, lOn

Eric Schnapper, Affirmative Action and the Legislative 
History of the Fourteenth Amendment,
71 Va. L. Rev. 753 (1 9 8 5 ).......................  9n, lOn, 11

Stephen J. Schwab, Employment Discrimination, in 3
Encyclopedia o f Law and Economics (Boudewijn 
Bouckaert & Gerrit De Geest eds., 2000) ..........  20n

Janny Scott, Rethinking Segregation Beyond Black 
and White, N.Y. Times, July 29, 2001,
§ 4, at 1, 6 . . .  ........................ ................................. 26n

Michael Selmi, The Value of the EEOC: Reexamining 
the Agency's Role in Employment 
Discrimination Law, 57 Ohio St. L.J. 1 (1996) . . 2 In

Helene Slessarev, The Collapse of the Employment 
Policy Agenda: 1964-1981, in Dream and 
Reality: The Modem Black Struggle for 
Freedom and Equality (Jeannine Swift 
ed., 1991) 22n



XVI

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Glenda G. Sloane, Creative Financing and Discrimination: 
Discrimination in Home Mortgage Financing, 
in A Sheltered Crisis: The State of Fair Housing 
in the Eighties (United States Civil Rights 
Commission ed., 1983) ........................ 17n, 18n, 19n

George Strauss & Sidney Ingerman, Public Policy and 
Discrimination in Apprenticeship, reprinted in 
Negroes and Jobs (Louis A. Ferman ed., 1968) . . 23n

Thomas Sugrue, The Origins of the Urban Crisis
(1996) ........................... ................ .. 21n, 22n, 23n

Thomas J. Sugrue, The Structures of Urban Poverty, 
in The Underclass Debate (Michael B.
Katz ed., 1993).............................................. .. • - • 18n

Ronald Takaki, A Different Mirror: A History of
Multicultural America (1993) ................. ............... 8n

Jacobus TenBroek, Equal Under Law (1965) ................. lOn

Anthony C. Thompson, Stopping the Usual Suspects:
Race and the Fourth Amendment, 74 N.Y.U.L.
Rev. 956 (1 9 9 9 )........................................................ 9n

Ronald Turner, Thirty Years of Title VII's Regulatory 
Regime: Rights, Theories, and Realities,
46 Ala. L. Rev. 375 (1995) ................... 20n



xvu

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

U.S. Bureau of Labor Statistics, Household Data:
Annual Averages, Unemployed Persons by 
Marital Status, Race, Age and Sex, <ftp:// 
ftp.bls.gov/pub/special.requests/lf/aat24.txt> . . . 25n

U.S. Bureau of Labor Statistics, Office of Employment 
and Unemployment Statistics, Current Population 
Survey, Usual Weekly Earnings of Employed Full- 
Time Wage and Salary Workers by Occupation,
Sex, Race and Hispanic Origin, 2000 Annual 
Averages.........................................................  24n-25n

U.S. Census Bureau, Median Household Income by 
Race and Hispanic Origin: 1967 to 1999, 
<http://www.census.gov/hhes/income/ 
income99/incxrace.html> .......................................24n

United States Commission on Civil Rights, The Fair
Housing Amendments of 1988: The Enforcement 
Report (1988)  ............................................... 20n, 28n

Roger Waldinger & Thomas Bailey, The Continuing
Significance of Race: Racial Conflict and Racial
Discrimination, 19 Pol. & Soc'y 292
(1991)............................................ 21n, 22n, 23n, 24n

Bmce Williams, Black Workers in an Industrial Suburb
(1987) ......................................................................  28n

ftp://ftp.bls.gov/pub/special.requests/lf/aat24.txt
ftp://ftp.bls.gov/pub/special.requests/lf/aat24.txt
http://www.census.gov/hhes/income/income99/incxrace.html
http://www.census.gov/hhes/income/income99/incxrace.html


XV111

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Without Sanctuary: Lynching Photography in America
(2000).................................................................. .... 12n

John Yinger, The Racial Dimension of Urban
Housing Markets in the 1980s, in Divided 
Neighborhoods (Gary A. Tobin ed., 1987) ......... 20n

Howard Zinn, A People’s History of the United
States 200 (1980) ..................................... ............ .. 12n



BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENTS*

Interest of Amicus

The NAACP Legal Defense and Educational Fund, Inc. 
(“T D P ’) is a non-profit corporation established under the laws 
of the State of New York. It was formed to assist black persons 
in securing their constitutional rights through the prosecution of 
lawsuits and to provide legal services to black persons suffering 
injustice by reason of racial discrimination. For six decades, 
LDF attorneys have represented parties in litigation before this 
Court and the lower courts involving race discrimination and 
various areas of affirmative action. LDF believes that its 
experience in and knowledge gained from such litigation will 
assist the Court in this case.

Summary of Argument

For hundreds of years, blacks were systematically and 
violently deprived of the rights and privileges of full citizenship 
reserved for white men since this country’s founding. The 
adoption of the Fourteenth Amendment in 1868 offered new 
hope that blacks would enjoy rights long afforded to whites. 
This promise however, was short-lived.

Following only a decade of Reconstruction, the federal 
government abandoned the guarantees of the Fourteenth 
Amendment and its role of protecting newly freed blacks. 
Instead, it left in place a racially tiered society that continued to 
privilege whites, and white men in particular, and to deprive 
generations of blacks of social, political, and economic capital. 
The most pernicious aspects of this racial caste system were

‘Letters of consent by the parties to the filing of this brief have been 
lodged with the Clerk of this Court. No counsel for any party authored this 
brief in whole or in part, and no person or entity other than amicus made any 
monetary contribution to the preparation or submission of this brief.



2

prevalent not just in the South but throughout the country. The 
exclusion of blacks from the economic mainstream cemented 
the effects of slavery and the “separate but equal” doctrine 
sanctioned by this Court in Plessy v. Ferguson, 163 U.S. 537 
(1896). As such, by the time this Court finally ended the 
scourge of legally sanctioned apartheid in Brown v. Board o f  
Education, 347 U.S. 483 (1954), official governmental policy 
had already established a system that subjugated black citizens 
much as slavery had done to their ancestors a century before.

The continuing effects of this pervasive racial subordination 
are evident in the severely depressed socioeconomic standing of 
the vast majority of blacks. The structural inequalities that 
social scientists have found limit the educational, employment, 
and asset-building opportunities of African Americans today are 
directly and powerfully rooted in this country’s long- 
maintained, govemmentally sanctioned discriminatory policies 
and customs. They are not vestigial, attenuated remnants of 
amorphous “societal discrimination.”

The barriers faced by African Americans, as a class, who 
seek to establish construction businesses and obtain contracts, 
are thus very different in nature, origin and intensity from those 
that may be encountered by individuals of different 
backgrounds, contrary to Petitioner’s suggestion. The 
Fourteenth Amendment authorizes race-conscious remedies that 
redress the cumulative effects of centuries of government- 
sanctioned discrimination against blacks and the exclusion of 
blacks from the economic mainstream. The Department of 
Transportation’s Disadvantaged Business Enterprise program, 
therefore, serves the compelling governmental interest of 
remedying this country’s incontrovertible history of racial 
oppression and of fulfilling the unfinished promise of the 
Fourteenth Amendment.



3

ARGUMENT

I. This Country Maintained A De Jure Racial Caste System 
That Brutally Enslaved African Americans For Over 
Two Hundred Years And For Nearly A Century 
Thereafter Deprived Them Of Fundamental Human And 
Civil Rights.

Race has been a critical dividing line in American society 
since the earliest days of colonial settlement. Nearly four 
centuries ago, blacks were kidnaped and forcibly brought to this 
country to be sold into slavery. For two and a half centuries, 
African Americans were held in slavery and deprived of the 
most basic human rights.1 There can be no meaningful 
evaluation of the need for race-conscious remedial measures 
without first understanding the fundamental role that slavery, 
racial segregation, and pervasive racial discrimination by public 
and private actors have played in denying generations of blacks 
social, political, and economic opportunity while 
simultaneously conferring significant advantages on whites. 
“[B]ecause there was slavery . . . because the vision of others 
was shaped by slavery, and because most African Americans 
still experience unpleasant reminders that we are the 
descendants of those who were enslaved,” we must understand 
and acknowledge the legacy of slavery until it ceases to

1 Although well documented, the deplorable status of slaves in American 
history bears repeating. Slaves were denied any form of education and, in 
many states, were legally forbidden to learn how to read. They had no right 
to vote, to participate in any political activities, to marry, or to contract out 
their services. As property, they could be bought, sold, leased, and seized 
on the whim of their owner. Masters had almost total discretion in exacting 
punishment, and many slaves endured brutal beatings. See generally, JOHN 
Hope Franklin, From Slavery to Freedom (4th ed. 1974); Richard 
Kluger, Simple Justice 27 (1975).



4

“constrict the freedom and opportunities of African 
Americans.”2

A. The Founding Fathers, Congress, And This Court 
Sanctioned Slavery.

The Founding Fathers established a government that 
sanctioned the wholesale denial of elemental human rights to 
blacks. As Frederick Douglass stated, the United States 
Constitution “was made in view of the existence of slavery, and 
in a manner well calculated to aid and strengthen that heaven­
daring crime.”3

During the Constitutional Convention of 1787, the Founding 
Fathers legitimized and secured the institution of slavery by 
including several clauses that sanctioned the practice. The 
Constitution treated a slave as three-fifths of a person for 
purposes of apportioning Congressional representatives and 
taxes among the States.4 The Constitution also contained a 
clause ensuring that the “Migration or Importation” of slaves 
would not end before 1808, and a provision prohibiting the 
amendment of that clause.5

The Founding Fathers included a number of clauses that

2 Mary Frances Berry, Slavery, the Constitution, and the Founding 
Fathers: The African American Vision, in AFRICAN AMERICANS AND THE 
Living Constitution 11,19 (John Hope Franklin & Genna Rae McNeil, 
eds., 1995); see also Henry Louis Gates, Jr., Editorial, The Future o f  
Slavery’s Past, N.Y. Times, July 29, 2001, § 4, at 15 (“Western regrets 
about slavery have a different character because here the responsibility for 
slavery is carried forward from past to present in the form of wealth. 
Slavery is embedded in American prosperity.”).

3 Berry, supra n.2, at 14 (quoting Frederick Douglass, The Constitution 
and Slavery, N. STAR, Mar. 16, 1849).

4 U.S. CONST, art. I, § 2, amended by U.S. CONST, amend. XIV; U.S. 
CONST, art. I, § 8, amended by U.S. CONST, amend. XVI.

5 U.S. Const, art. I, § 9; art. V.



5

were instrumental in maintaining the institution of slavery. The 
Fugitive Slave Clause, for example, provided for the capture 
and return of slaves to their masters.6 Other provisions called 
on the federal government to protect the states from domestic 
violence, such as slave rebellions, and required Congress to call 
forth the militia to suppress such insurrections.7 Further, the 
Constitution prohibited taxes on the exports produced by 
slaves.8 In addition, the electoral college provision on its face 
gave whites in slave states a disproportionate influence in 
presidential elections, because it counted nonvoting slaves in 
apportioning representatives to the electoral college.9 
Moreover, none of these provisions could be amended without 
the agreement of three-quarters of the states.10 Such provisions 
clearly show that the Founding Fathers firmly intended to leave 
intact a system in which blacks were the chattel of whites.

Congress passed laws that further strengthened the institution 
o f slavery.11 In 1793 and 1850, Congress enacted fugitive slave 
laws that empowered the federal government to apprehend 
fugitives and offered no protection against enslavement to 
northern blacks who had been bom free.12 Nearly “every free

6 U.S. CONST, art. IV, § 2, affected by U.S. CONST, amend. XIII.

7 U.S. CONST, art. IV, § 4; U.S. CONST, art. I, § 8.

8 U.S. Const, art. I, § 9.

9 U.S. CONST, art. Ill, § 1.

10 Berry, supra n.2, at 11-12.

11 Subsequent Congressional legislation enabled the westward expansion 
of slavery. The Kansas-Nebraska Act, enacted in 1854, permitted slavery 
to extend north of the region previously protected from slavery by the 
Missouri Compromise of 1820. Dictionary of Afro-American Slavery 
381 (Randall M. Miller & John D. Smith eds,, 1988).

12 An alleged owner need only bring the purported fugitive before any 
federal or state court and, upon proof of identity, the “fugitive” would be



6

person of color was in imminent danger of being taken up and 
placed in slavery with no opportunity whatever to establish a 
valid claim to freedom.”13

turned over to his captor. Proof of identity could be fulfilled by oral 
testimony. There was no provision for a trial or for the alleged fugitive to 
testify on his or her own behalf. DICTIONARY OF AFRO-American SLAVERY 
275. The Fugitive Slave Act of 1793 also exacted a $500 penalty for 
concealing or obstructing the arrest of an escaped slave. Id. The Fugitive 
Slave Act of 1850 created a “commissioner” who was authorized to issue 
warrants entitling the captor to remove fugitives to the South. As an 
incentive to capture blacks and force them into bondage, commissioners 
were paid $10 each time they authorized the removal of a fugitive and only 
$5 when they found that the person seized was not a fugitive slave. Id.

13 John Hope Franklin, Race and the Constitution in the Nineteenth 
Century, in AFRICAN AMERICANS AND THE LIVING CONSTITUTION 21, 25 
(John Hope Franklin & Genna Rae McNeil eds., 1995). Although blacks 
suffered from virulent racism in the South, it would be a mistake to conclude 
that other parts of the country were immune from racial oppression. 
Discrimination was rampant in all facets of Northern society, including 
housing, public transportation, and public venues, such as stores, 
restaurants, and hotels. The prospects of northern blacks were grim:

Most free blacks. . .  lived along the docks and wharves and in alleys.. . .  
[WJhites herded blacks into groups and pointed to the city limits. [Newly 
arrived] immigrants . . .  cracked their skulls and burned their homes and 
churches. Some whites said openly that the only solution to the “Negro 
problem” was the “Indian solution.” . . .  “It would be better to kill them 
off at once, for there is no other way to get rid of them.” . . .  “We know 
how the Puritans did with the Indians, who were infinitely more 
magnanimous and less impudent than the colored race.”

Lerone Bennett, Jr ., Before the Mayflower: A History of Black 
America 180, 181 (5th ed. 1982). Thus, “[sjtanding outside the pale of 
justice, enslaved in the South, despised in the North, nineteenth-century 
blacks tasted the dregs of bitterness.” Id.

Racial caste was also explicitly enforced in the area of education. In 
Roberts v. City o f Boston, 59 Mass. 198, 206 (1850), the Massachusetts 
Supreme Court upheld school segregation for white and black children as a 
valid exercise of legislative power. Indeed, segregation was practiced in the 
public school systems of Delaware, Illinois, Indiana, and Ohio.



7

In addition to the scourge inflicted on free blacks by the 
Fugitive Slave Acts, federal and state governments enacted laws 
to prevent free blacks from enjoying any of the rights and 
privileges of citizens. The Naturalization Act of 1790, for 
example, barred free blacks from becoming naturalized 
citizens.14 Four states —  Indiana, Illinois, Iowa, and Oregon — 
closed their borders to blacks altogether.15 In the Washington 
and Indiana territories, Congress denied free blacks the right to 
vote. Franklin, supra n,13, at 24. The individual states 
followed suit: every state that entered the Union after 1800, 
with the exception of Maine, restricted the right to vote to white 
males. Id. at 26-27. Likewise, the Second Congress passed a 
law establishing a uniform militia throughout the United States, 
but limited enrollment to white male citizens. Id. at 23.

This Court facilitated the institutionalization of slavery 
through a succession of cases in the early nineteenth century 
that confirmed the status of blacks as mere property, see, e.g., 
Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841); The 
Antelope, 23 U.S. (10 Wheat.) 66 (1825), and solidified 
Congress’s authority “to secure to the citizens of the 
slaveholding States the complete right. . .  of ownership in their 
slaves.” Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 540 
(1842). The power over fugitive slaves, this Court concluded, 
“was so vital to the preservation o f . . .  domestic . . .  institutions, 
that i t . . . constituted a fundamental article w ithout. . . which

Segregation and the Fourteenth Amendment in the States 71,141, 
157-65, 504-06, 510-11 (Bernard D. Reams, Jr. & Paul E. Wilson eds., 
1975). Iowa, Massachusetts, Michigan, New Jersey, New York, and 
Pennsylvania did not require racial segregation in the schools as a matter of 
law but allowed localities to educate blacks and whites separately. Id. at 
174-75, 276, 296, 399, 410-14,418, 538-39.

14 Franklin, supra n. 13, at 23.

15 Eric Foner, Reconstruction: America’s Unfinished Revolution 
1863-1877 26(1988).



8

the Union could not have been formed.” Id. Other cases held 
that a person could be liable for damages to a slave owner if 
caught harboring fugitive slaves, even if the person had no 
actual notice that the harbored persons were slaves. See Moore 
v. Illinois, 55 U.S. (14 How.) 13 (1852); Jones v. VanZandt, 46 
U.S. (5 How.) 215 (1847).

Perhaps the most notorious and insidious of these cases was 
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred 
Scott solidified the wretched standing of African descendants 
and obliterated any meaningful distinction between the “rights” 
o f free blacks and slaves. The Court concluded that blacks were 
not intended to be included as citizens but were “regarded as 
beings of an inferior order. . .  altogether unfit to associate with 
the white race, either in social or political relations; and so far 
inferior, that they had no rights which the white man was bound 
to respect.. . . ” Id. at 407. In its ruling, seven members of the 
Court recognized and upheld the racial caste system in the 
United States, where no person of African descent, free or slave, 
would be afforded the most basic rights. Until the ratification 
o f the Fourteenth Amendment in 1868, blacks could claim no 
rights of citizenship long afforded whites as a matter of 
course.16

16 Whites created evermore ingenious means of oppressing blacks. Anti­
miscegenation laws prohibited the inter-marriage of blacks and whites to 
protect, according to Benjamin Franklin, the purity of “the lovely White.” 
Ronald Takaki, A Different Mirror: A History of Multicultural 
America 109 (1993). An ideology of blacks as inferior, “naturally lazy,” 
and “childlike” was developed to justify racial segregation. In Philadelphia, 
Dr. Samuel Morton announced that the skulls of whites had a larger cranial 
capacity and, therefore, that whites were more intellectually capable. Id. at 
108; see also STEPHEN JAY GOULD, THE MlSMEASURE OF Man 50-72 
(1981). In the North, blacks were commonly regarded as criminals, causing 
some states to restrict their migration. Ohio and Indiana, for example, 
“required entering blacks to post a $500 bond as a guarantee against 
becoming a public charge and as a pledge of good behavior.” Takaki, 
supra, at 109. This view of black criminality is strikingly similar to the



9

B. The History Of The Fourteenth Amendment 
Demonstrates That The Drafters Intended It To 
Permit Race-Specific Measures,

The Congress that authored the Fourteenth Amendment 
recognized that race-conscious governmental policies were not 
only permissible but clearly necessary to redress the economic 
and social devastation that for centuries had been visited upon 
African Americans. Preceding the ratification of the 
Amendment in 1868, Congress enacted a series of race-specific 
social welfare laws for blacks,17 and legislation which, though 
facially race neutral, was clearly intended to benefit blacks.18 
These measures were required to ameliorate the effects of the 
“Black Codes” that were adopted by southern states to tyrannize 
and oppress African Americans.19 Cong. Globe, 39th Cong., 1st

views that have spawned widespread “racial profiling” in today’s society, 
including assumptions that blacks are engaged in criminal behavior. See, 
e.g., Anthony C. Thompson, Stopping the Usual Suspects: Race and the 
Fourth Amendment, 74 N.Y.U .L. REV. 956 (1999).

17 See Jed Rubenfeld, Essay: Affirmative Action, 107 YALE L.J. 427, 
429-31 (1997).

18 See generally Eric Schnapper, Affirmative Action and the Legislative 
History o f the Fourteenth Amendment, 71 VA. L. Rev. 753 (1985).

19 These “Black Codes” were startling in the breadth of restrictions 
imposed on the newly freed blacks. Among such state legislation were bills 
in South Carolina “making . ..  freedmen servants [and] providing that the 
persons for whom they labor shall be their masters, [and] that the relation 
between them shall be the relation of master and servant”; and in Georgia, 
requiring that servants work from “sunrise to sunset,” and providing that 
wages would be “forfeited by leaving,” that the employer could “discharge 
servants for disobedience, drunkenness, immorality, or want of respect,’’and 
that a $500 fine or four-month prison sentence could be imposed on a 
servant who left or on any person who “enticfed] servants away.” CONG. 
Globe, 39th Cong., 1st Sess. 39 (1865), reprinted in THE RECONSTRUCTION 
AMENDMENTS Debates 95 (Alfred Avins ed., 2d ed. 1974). Mississippi 
and Louisiana had proposed similar legislation intended to strip blacks of all 
economic rights and social and political standing. Id. These extraordinarily



10

Sess. 39 (1865), reprinted in T h e  RECONSTRUCTION 
A m e n d m e n t s  D e b a t e s  95 (Alfred Avins ed., 2d ed. 1974).

There is significant evidence that a major reason for the 
adoption of the Fourteenth Amendment was to ensure 
constitutional support for the race-conscious legislation passed 
by Congress.20 Such legislation embraced a variety of race- 
specific programs targeted for blacks. Congress enacted laws 
appropriating funds for “the relief of destitute colored women 
and children,”21 for “colored” persons in the District of 
Columbia,22 and for black Union soldiers.23 The Freedmen’s 
Bureau Acts adopted by the Reconstruction Congress also 
authorized relief for blacks, including “provisions, clothing, and 
fuel” and the sale of up to forty acres for refugees and freedmen.

harsh and punitive working conditions were “enforced by a police apparatus 
and judicial system in which blacks enjoyed virtually no voice whatever.” 
FONER, supra n.15, at 203.

20 See generally Schnapper, supra n. 18, at 784-88; see also HORACE 
Edgar Flack, The Adoption oftheFourteenth Amendment20, 94-95 
(1908); Alfred H. Kelly et al., 2 The American Constitution: Its 
Origins AND Development 332-33 (7th ed. 1991); T. Alexander Aleinikoff, 
A Case for Race-Consciousness, 91 COLUM. L.Rev. 1060, 1114 (1991).

The one point upon which historians of the Fourteenth Amendment 
agree, and, indeed which the evidence places beyond cavil, is that the 
F ourteenth Amendment was designed to place the constitutionality of the 
Freedmen’s Bureau and civil rights bills. . .  beyond doubt. . .  [T]he new 
amendment was written and passed, at the very least, to make certain that 
that statutory plan was constitutional, to remove doubts about the 
adequacy of the Thirteenth Amendment to sustain it, and to place its 
substantive provisions in the Constitution.

Jacobus TenBroek, Equal Under Law 201,203 (1965).

21 Rubenfeld, supra n.17, at 430 (citing Act of July 28, 1866, ch. 296, 
14 Stat. 310,317).

22 Id. at 431 (citing Resolution of Mar. 16, 1867, No. 4, 15 Stat. 20).

23 Id.



11

Schnapper, supra n. 18, at 760. Later legislation reauthorizing 
the Freedmen’s Bureau provided more explicit protection and 
aid for free blacks, id. at 772-73, while limiting the Bureau’s 
authority to aid white refugees, id. at 772.

This legislative history illustrates that the drafters — who 
considered and squarely rejected opposition to Freedmen’s 
Bureau legislation on the grounds that such statutes excluded 
whites — could not have intended to bar race-specific measures 
under the Fourteenth Amendment.24 This is confirmed by early 
decisions o f this Court, which recognized that the “one 
pervading purpose” of the Reconstruction Amendments was 
“the freedom of the slave race, the security and firm 
establishment of that freedom, and the protection of the newly- 
made freeman and citizen from the oppressions of those who 
had formerly exercised unlimited dominion over him.”25 The 
Slaughter House Cases, 83 U.S. 36,71 (1873); see also Regents 
o f the Univ. o f  California v. Bakke, 438 U.S. 265, 398 (1978) 
(Marshall, J. dissenting); Railway Mail Ass ’n v. Corsi, 326 U.S. 
88, 94 (1945); Nixon v. Herndon, 273 U.S. 536, 541 (1927); 
Buchanan v. Warley, 245 U.S. 60 (1917).

C. The Federal Government Maintained De Jure Racial 
S e g reg a t io n  And D iscr im in at ion  After  
Reconstruction And Through the Mid-Twentieth 
Century.

The hope that Reconstruction would finally unshackle 
African Americans and place them on an equal social, political, 
and economic footing soon faded. After barely a decade of 
Reconstruction, the federal government withdrew from its role

24 See generally Schnapper, supra n. 18.

25 Although the Court did not suggest that only African Americans were 
protected by the Fourteenth Amendment, it nonetheless recognized that the 
“pervading spirit” and purpose of that Amendment was to remedy the evil 
of slavery. The Slaughter House Cases, 83 U.S. 36, 71-72 (1873).



12

of protecting the newly-freed blacks.26 The Hayes-Tilden 
Compromise of 1877 resulted in the withdrawal of Union troops 
from the South and removed “the last military obstacle to the 
reestablishment of white supremacy there.”27 Southern whites 
— determined to reassert their dominance over blacks — 
launched massive campaigns of intimidation and terror 
throughout the South.28

Early efforts to secure white hegemony focused on depriving

26 Frederick Douglass eloquently stated the position of African 
Americans at the close of the nineteenth century: “So far as the colored 
people of the country are concerned, the Constitution is but a stupendous 
sham . . . keeping the promise to the eye and breaking it to the heart. . . . 
They have promised us law and abandoned us to anarchy.” Berry, supra 
n.2, at 15 (quoting Frederick Douglass, Speech on the Occasion o f the 
Twenty-Fourth Anniversary o f Emancipation in the District o f Columbia, 
Washington D.C., 1886, in THE LIFE AND WRITINGS OF FREDERICK 
DOUGLASS 431 (Philip S. Fonered., 1955)).

27 Howard Zinn, A People’s H istory of the United States 200 
(1980).

28 Mary Frances Berry, Black Resistance/White Law  72-79, 81 
(2d ed. 1996). From Emancipation through the mid-twentieth century, the 
lynching of blacks was a common practice. More than 10,000 lynchings 
occurred between 1878 and 1898 alone. Bennett, iupran.13, at258. Itwas 
not unusual for a paper to advertise a lynching and for crowds to come on 
chartered trains. Id. at 271; see also generally RALPH GINZBURG, 100 
Years of Lynchings (1988); W ithout Sanctuary: Lynching 
Photography in America (2000) (graphic description and illustration of 
disturbing and barbaric nature of lynchings.). The overwhelming majority 
of blacks lynched were charged with “crimes” such as “testifying against 
whites in court, seeking another job, using offensive language, failing to say 
‘mister’ to whites, disputing the price of blackberries, attempting to vote and 
accepting the job of postmaster.” Bennett, supra n.13, at 271. Far from 
condemning the lynching of blacks, many presidents, including Franklin 
Delano Roosevelt, “passively accepted lynching as a normal part of life.” 
Matthew Holden, Jr., Race and Constitutional Change in the Twentieth 
Century, AFRICAN AMERICANS AND THE LIVING CONSTITUTION, 117, 131 
(1995).



13

blacks of their right to vote. With the acquiescence of the 
national government, blacks were defrauded and intimidated at 
the polls. Berry, supra n.2, at 81 -83. State legislatures adopted 
voting requirements, such as poll taxes and literacy tests, which 
had the purpose and effect of further disenfranchising blacks.29 
The advent of the all-white Democratic primary in southern 
states dominated by the Democratic party guaranteed white 
supremacy by completely denying blacks political 
participation.30 As black disenfranchisement spread throughout 
the South, blacks’ modest political gains were quickly eroded.31 
Blacks were completely deprived of any voice in federal, state, 
or local government. The effects of the denial of black suffrage 
were far-reaching. Blacks lacked the power to vote out 
governments that imposed rigid segregation and that denied 
them government resources.

Decisions by this Court foreshadowed the government’s 
massive retreat from the guarantees of the Fourteenth 
Amendment and further betrayed black aspirations of equality. 
See, e.g.,Jamesv. Bowman, 190 U.S. 127 (1903); United States

29 A. Leon Higginbotham, Shades of Freedom : Racial Politics and 
Presumptions of the American Legal Process 173 (1996); see also 
Quiet revolution in the South: the Impact of the v oting Rights Act 
1965-1990 41-45, 67-70, 104-06, 136-38, 157-58, 192-96,233-35,271-73 
(Chandler Davidson & Bernard Grofman eds., 1994). As one Mississippi 
judge candidly commented, “there has not been a full vote and a fair count 
in Mississippi since 1875 . . .  we have been preserving the ascendancy of 
the white people by . . . stuffing ballot boxes, permitting perjury and . . . 
carrying the elections by fraud and violence.” Id. at 174.

30 Higginbotham, supra n.29, at 166-67.

31 Black officials, elected for the first time during Reconstruction, lost 
their seats. Such black political representation would not be seen again for 
nearly a hundred years in states such as Georgia, North Carolina, and 
Louisiana. Other states, such as Texas and Florida, would not witness the 
election of any black representative for the next century. Higginbotham, 
supra n.29, at 128-29 (text accompanying photographs).



14

v. Harris, 106 U.S. 629 (1883); United States v. Reese, 92 U.S. 
214 (1876); United States v. Cruikshank, 92 U.S. 542 (1875); 
Blyew v. United States, 80 U.S. 581 (1872). Most notorious 
among these decisions were The Civil Rights Cases, 109 U.S. 
3 (1883), andPlessyv. Ferguson, 163 U.S. 537 (1896). In The 
Civil Rights Cases, the Court declared unconstitutional the Civil 
Rights Act of 1875 which had outlawed racial segregation in 
public accommodations. The opinion, authored by Justice 
Bradley, concluded that the “private wrong” of racial 
discrimination in public accommodations was beyond the reach 
of the Fourteenth Amendment. The illogic of Bradley’s opinion 
could not be more apparent: after two centuries of the systemic 
oppression and subjugation of blacks in which state and federal 
resources were used to perpetuate the institution of slavery, this 
Court determined that a remedy for such deeply rooted injustice 
was beyond its power. Bradley’s opinion fully illustrates the 
extent to which this Court blinded itself to the exceedingly sorry 
plight of the newly-freed blacks:

When a man has emerged from slavery, and by the aid of 
beneficent legislation has shaken off the inseparable 
concomitants of that state, there must be some stage in the 
progress of his elevation when he takes the rank of a mere 
citizen, and ceases to be the special favorite of the laws, and 
when his rights as a citizen, or a man, are to be protected in 
the ordinary modes by which other men’s rights are 
protected.

109 U.S. at 25. In Plessy v. Ferguson this Court placed its 
imprimatur on the “separate but equal” doctrine and enshrined 
a government-sanctioned racial caste structure for another two 
generations. 163 U.S. 537 (1896). Disregarding the history and 
purpose of the Fourteenth Amendment and this country’s 
entrenched racial hierarchy, this Court concluded:

[A] statute which implies merely a legal distinction between 
the white and colored races —  a distinction which is founded



15

in the color of the two races, and which must always exist so 
long as white men are distinguished from the other race by 
color —  has no tendency to destroy the legal equality of the 
two races.

163 U.S. at 543. Plessy marked the formal demise of the 
government’s short-lived efforts to right deeply rooted wrongs 
against blacks. It would not be until Brown v. Board o f  
Education, decided nearly sixty years and two generations later, 
that this Court would take a decisive step to rectify this 
country’s long legacy of racial persecution.

D. Federal Policies In The Twentieth Century 
Perpetuated The Status Of African Americans As 
Third-Class Citizens.

Twentieth-century governmental policies— both before and 
after Brown — have perpetuated the legacy of slavery and state- 
sanctioned segregation and discrimination by erecting barriers 
that depressed black economic advancement and that 
substantially eliminated opportunities for generations of blacks 
to amass personal and familial assets. Even with the hard 
fought victory of Brown and the end of de jure segregation in 
public schools, blacks continued to suffer the frontal effects of 
federal policies designed to ensure their status as third-class 
citizens/2

32 In the racial pecking order, this country has reserved a peculiar form 
of hostility for blacks even beyond that directed against most 
disenfranchised racial and ethnic minorities. Although “white ethnics often 
experienced severe hardship due to unjust treatment, they also benefitted 
from the far more pervasive and brutal discrimination” against blacks. 
Herbert Hill, Race and Ethnicity in Organized Labor: The Historical 
Sources o f Resistance to Affirmative Action, 12 J. OF INTERGROUP REL. 6 
(Winter, 1984). Unlike immigrants, “[t]he vast majority of [blacks] . . . 
arrived not on immigrant ships, but on slave ships.” Aleinikoff, supra n.20, 
at 1124. “[W]hen the ingenious American devices for excluding blacks 
from society are contrasted with the assimilationist welcome accorded 
immigrants, one can quickly. . .  formulate a sensible answer to the question



16

For the first third of the century, the majority of blacks lived 
in a plantation economy that was “essentially feudalistic.”33 As 
sharecroppers and tenant farmers, blacks were trapped in an 
economy that required them to pay more than they earned, and 
therefore they lived in “perpetual indebtedness [that kept] the 
tenant farmer nearly . . .  as securely tied to the land and to his 
landlord as he was under slavery.”34 Even here, blacks were 
paid less than whites and, consequently, were less able to escape 
the system.35

Although conceived to promote the general social welfare, 
New Deal economic programs imposed serious barriers to black 
economic advancement. Provisions of the Social Security Act, 
insisted upon by southern Congressmen,36 for more than two 
decades excluded domestic servants and agricultural workers 
from old-age pension coverage and unemployment benefits — 
the core programs of the Social Security Act. The racial effects 
of this exclusion were dramatic. More than 60% of the 
excluded workers were African-American, and “in the cotton 
states of the Deep South (Mississippi, Alabama, Georgia and 
South Carolina) more than three in four excluded workers were

that lies deep in many white minds: why can’t blacks do what my immigrant 
ancestors did?” Id.

33 Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial 
Discrimination in the New Deal, 65 TEX. L. REV. 1335, 1347 (1987). See 
also, William. Cohen, Negro Involuntary Servitude in the South, 1865-1940: 
A Preliminary Analysis, 42 J. S. HIST. 31 (1976) (describing series of state 
laws in effect as late as 1930s and 1940s that limited economic freedom of 
blacks in the South).

34 Linder, supra n.33, at 1349.

35 Id. at 1347.

36 Jill Quadagno, The Transformation of Old Age Security 134 
(1988). See also Robert C. Lieberman, Shifting the Color Line 24-25, 
39, 59-60 (1998); JILL QUADAGNO, THE COLOR OF WELFARE 21 (1994).



17

black.”37 For similar reasons, another New Deal measure that 
brought a measure of economic security to many Americans 
omitted large numbers of blacks. When Congress adopted the 
Fair Labor Standards Act in 1938, it incorporated the same 
agricultural and domestic worker exemptions as featured in the 
Social Security Act.38

With the support and encouragement of state and local 
actors,39 the federal government adopted policies that severely 
limited black home ownership opportunities, thereby depriving 
blacks of one of the most effective routes to personal and family 
wealth accumulation.40 For decades beginning in the 1930s the 
Federal Housing Administration (“FHA”) actively fostered 
residential segregation.41 Even after restrictive covenants were 
outlawed by this Court in 1948,42 the FHA overlooked devices 
adopted by neighborhood organizations and private citizens that 
accomplished the same discriminatory ends as the restrictive

37 Lieberman, supra n.36, at 44.

38 Linder, supra n.33, at 1351-53.

39 See generally Yale Rabin, The Roots o f Segregation in the Eighties: 
The Role o f Local Government Actions, in DIVIDED NEIGHBORHOODS 208- 
26 (Gary A. Tobin ed., 1987).

40 Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White 
Wealth 16 (1995).

41 The racially discriminatory practices and mortgage insurance policies 
of federal agencies, including the FHA, the Veterans Administration, and 
the Federal Home Loan Bank Board are well documented. See, e.g., 
Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of 
THE United States 196-218 (1985); GlendaG. Sloane, Creative Financing 
and Discrimination: Discrimination in Home Mortgage Financing, in A 
Sheltered Crisis: The State of Fair Housing in the Eighties 85-87  
(United States Civil Rights Commission ed., 1983); Gary Orfield, Federal 
Policy, Local Power and Metropolitan Segregation, 89 POL. SCI.Q. 784-90  
(1974-75).

42 Shelley v. Kraemer, 334 U.S. 1 (1948).



18

covenants.43 These discriminatory practices, and similar 
practices by the Veterans Administration, excluded African 
Americans from major federal housing support programs. FHA 
deputy commissioner Philip Maloney reported in 1967 that in 
“a number of large urban centers . . . virtually no minority 
family housing has been provided through FHA.”44

The FHA also institutionalized overtly discriminatory 
lending practices that denied black families the opportunities to 
buy homes and accumulate equity.45 It defined “incompatible 
racial elements” as grounds for rejecting a mortgage and 
encouraged appraisers to rely upon physical barriers or racial 
covenants to guarantee against the encroachment of 
“inharmonious racial groups.”46 Redlining practices by the 
FHA and the Federal Home Loan Bank Board continued 
through the 1970s. Private banks and savings-and-loan 
associations patterned their lending policies on the 
discriminatory practices of the FHA, extending the reach of 
federal policy deep into the private sector. Moreover, these 
private practices continued into the 1990s. Comparably 
qualified black families are still rejected for home loans 60%

43 Orfield, supra n.41, at 788.

44 Id. at 789 (citing CONG. REC.S15456 (1967)).

45 See JACKSON, supra n.41, at 213-14.

46 Orfield, supran.Al, at 786. For example, the FHA in Detroit in 1940 
required a developer to construct a six-foot-high, foot-thick wall extending 
nearly a half-mile to assure the “stability” of a white neighborhood being 
built adjacent to a black neighborhood. Thomas J. Sugrue, The Structures 
o f Urban Poverty, in THE UNDERCLASS DEBATE 113 (Michael B. Katz ed., 
1993). Federal public housing policies have also fostered racial segregation. 
From the outset of public housing during the New Deal era, the federal 
government deferred to local officials on the location of public housing 
units. Faced with local resistance to building in predominantly white areas, 
federal officials sited public housing in predominantly black, economically 
depressed neighborhoods, a pattern that continues to the present. Sloane, 
supra n.41, at 85-87.



19

more often than white families.47 Federal regulators acquiesced 
in this discriminatory conduct throughout the 1970s and 
1980s.48

Federal “urban renewal” policy devastated black urban areas. 
“Slum clearance,” officially introduced in 1949, diminished 
available housing for African-Americans49 and ripped apart 
black neighborhoods by destroying local businesses.50 Along 
with federal public housing policy that concentrated African 
Americans in racially isolated, economically depressed areas, 
urban renewal policies destabilized inner cities, setting in 
motion a downward economic spiral that further limited blacks’ 
access to capital. Perhaps nowhere are the deleterious ripple 
effects of these policies more apparent than in the devastation 
of largely black inner-city urban areas, including severe 
economic underdevelopment, substandard schools, limited 
housing, rampant unemployment, and a paucity of j obs that pay 
a livable wage.51 The deep involvement of the federal 
government in these policies not only reinforced previous 
patterns but lent them “a permanence never before seen,” one

47 Melvin L. Oliver & Thomas M. Shapiro, Wealth and Racial 
Stratification, in 2 A merica BECOMING 241 (Neil J. Smelser et al. eds., 
2001). See also William E. Murray, Homeowners Insurance Redlining: The 
Inadequacy o f Federal Remedies and the Future o f  the Property Insurance 
War, 4 Co n n . In s . L.J. 735 (1997-98) (on persistence of “redlining” in 
closely-related property insurance industry).

48 Sloane, supra n.41, at 85-87.

49 See, e.g., Orfield, supra n.41, at 787 (citing N atio n al  Co m m ission  
o n  U rba n  Problem s, B uilding  the A m erican  C ity  163 (1968)).

50See, e.g., John F. Bauman, Norman P. Hummon & Edward K. Muller, 
Public Housing, Isolation and the Urban Underclass, Philadelphia’s 
Richard Allen Homes, 1941-1965, 17 J. OFURB. HlST.281 (1991).

51 Id. at 286. The federal highway program, which facilitated suburban 
expansion, also contributed to racial isolation in major urban areas. Rabin, 
supra n.39, at 208, 211.



20

that “virtually constituted a new form of de jure segregation.”52 
The passage of otherwise landmark civil rights legislation has 
failed to ameliorate the widespread and deeply rooted effects of 
longtime government policies devised to oppress blacks and to 
subvert black achievement.53

E. Federal Government Policy Has Fostered Pervasive 
Racial Discrimination In The Construction Industry.

The federal government has perpetuated a highly racially 
stratified construction industry by protecting segregated trade 
unions and, in effect, barring blacks from obtaining positions as 
skilled craft laborers and ultimately positioning themselves to 
advance in the industry. In the early and mid-twentieth century, 
black migrants from the South were excluded from all but the

52 A rnold  R. H irsch , M aking  the Sec o n d  G hetto: Ra c e  a n d  
H ousing  in C hicago , 1940-1960 254-55 (2d ed. 1998).

53 For example, despite the passage of the Fair Housing Act in 1968 and 
an amended version in 1988, enforcement of housing anti-discrimination 
laws continues to be inadequate. See United States Commission on Civil 
Rights, The Fair Housing Amendments o f 1988: The Enforcement Report 
5 (1988); Gary Orfield, Segregated Housing and School Resegregation, in 
Dismantling Desegregation 299 (Orfield et al. eds., 1996); John Yinger, 
The Racial Dimension o f Urban Housing Markets in the 1980s, in Divided 
Neighborhoods 64 (Gary A. Tobin ed., 1987). Enforcement of 
employment anti-discrimination laws has also been severely limited by lack 
of government resources, see M. Bendick et al, Measuring Employment 
Discrimination Through Controlled Experiments, 23 REV. OF BLACK POL. 
ECON. 32 (1994); Reed Abelson, Anti-Bias Agency is Short o f Will and 
Cash, N.Y. TIMES, July 1, 2001, at A12, and deficiencies in Title VII’s 
enforcement scheme. See Derrick Bell, Faces at the Bottom of the 
WELL 55-56 (1992); Stephen J. Schwab, Employment Discrimination, in 3 
Encyclopedia of Law and Economics 588-89 (Boudewijn Bouckaert & 
Gerrit De Geest eds., 2000); Maurice E. R. Munroe, The EEOC: Pattern 
and Practice Imperfect, 13 YALEL.&P0L’YR£V.219,279(1995);Michael 
Selmi, The Value o f the EEOC: Reexamining the Agency’s Role in 
Employment Discrimination Law, 57 OHIO St. L. J. 1, 64 (1996); Ronald 
Turner, Thirty Years o f Title VII’s Regulatory Regime: Rights, Theories, and 
Realities, 46 Ala. L. Rev. 375, 479 (1995).



21

most menial construction jobs in the North despite their 
extensive experience in carpentry and masonry.54 When blacks 
began to make inroads in construction, Congress intervened to 
protect white union members against wage competition from 
black workers by enacting the Davis-Bacon Act. In the hearings 
that preceded passage of the Act, advocates for the legislation 
made repeated racial statements regarding southern workers 
brought north to work on federal projects.55 In 1935, Congress 
acquiesced in and effectively sanctioned the racially 
exclusionary practices of labor unions when it rejected efforts 
to include anti-discrimination provisions in the National Labor 
Relations Act.56 During the 1970s, federal officials 
“choreographed resistance to the desegregation of the 
construction industry.”57 As a result, racially discriminatory 
practices in construction are more “impregnably secure” than in 
perhaps any other institution in the United States.58

Such discrimination has impeded the entry of African 
Americans into the construction industry, either as employees 
or as self-employed business owners. Blacks are “persistently 
more under-represented among the ranks of self-employed 
persons in construction than they have been in traditionally 
discriminatory skilled crafts.”59 And this remains the case

54 Th o m as Sug ru e , The O rigins of the U r b a n  C risis, 115 (1996).

55 D avid  Bernstein, The Davis-Bacon Act: Vestige o f Jim Crow, 13 
N a t ’l b l a c k  L.J. 2 7 6 ,2 8 1 -8 7  (1994).

56 Stephen Plass, Dualism and Overlooked Class Consciousness in 
American Labor Laws, 37 HOUS. L. REV. 823, 851-52 (2000).

57 Joshua B. Freeman, Hardhats: Construction Workers, Manliness and 
the 1970 Pro-War Demonstrations, 26 J. OF SOC. HIST. 737 (1993).

58 See generally Hill, supra n.32.

59 R oger W aldinger & Thomas Bailey, The Continuing Significance o f 
Race: Racial Conflict and Racial Discrimination, 19 POL. & SOC’Y 2 9 2 ,2 9 6  
(1991). See also H elene Slessarev, The Collapse o f the Employment Policy



22

despite two decades of affirmative action efforts in government 
contracting.60

These barriers are more than just those experienced by all 
newcomers to an industry, but rather are distinctly racial in 
character. In the late nineteenth and early twentieth century, 
“trade unions frequently were the instrument that forced black 
workers out of jobs they had traditionally held by replacing 
them with immigrant white workers after union organization.”61 
The unions opposed inclusion of anti-discrimination measures 
in the National Labor Relations Act.62 In 1969, white workers 
held raucous demonstrations to oppose desegregation efforts 
affecting building trades.63 Resistance to desegregation 
continued through the middle and late twentieth century.64

For example, black enrollment in apprenticeship programs in 
Detroit declined between 1957 and 1966, with only 41 blacks 
enrolled as apprentices out of a total of 2,363, or 1.7% of the 
total.65 Detroit’s patterns were similar to those existing 
elsewhere.66 In New York City, the construction business

Agenda: 1964-1981, in DREAM AND REALITY: THE MODERN BLACK 
Struggle for Freedom and Equality 115 (Jeannine Swift ed., 1991) 
(finding federal government’s expenditure of over $4 million in subsidies 
between 1967 and 1970 for programs to recruit blacks for union 
apprenticeship programs failed to open doors for blacks in building trades).

60 Hill, supra n.32, at 296.

61 Id

62 Plass, supra n.56, at 850-53.

63 Freeman, supra n.57, at 734.

64 Id. at 737; Waldinger & Bailey, supra n.59, at 293-94.

65 Sugrue, supra n.54, at 117.

66 Id. at 116. One study found that according to the 1960 census, only 
3.3% of all apprentices are black, while in California and New York, “the 
two largest and . . . most progressive states in the Union,” the percentage



23

experienced a boom in the 1980s such that “the value of 
construction contracts doubled in real terms between 1976 and 
1987, which in turn doubled the size of the local construction 
labor force.”67 However, this building boom “left black workers 
out in the cold.”68 During this period, black employment in 
construction declined almost 15 percent.69 By the close of the 
1980s, black underrepresentation in the industry and its skilled 
trades was worse than it had been in 1970.70 Similar patterns 
existed in other major U.S. cities.71

Federal anti-discrimination laws have been ineffective in 
dealing with the pervasive discrimination in the construction 
industry. Many unions in the building trades successfully 
evaded laws barring employment discrimination despite decades 
of litigation.72 The informality of the construction industry’s 
personnel practices facilitates racial discrimination by “not only 
creating] natural barriers to outsider groups,” but also by 
“thwartfing] public policies designed to counter 
discrimination.”73 Because the construction industry tends to be

falls to 1.9 and 2.0 respectively.” George Strauss & Sidney Ingerman, 
Public Policy and Discrimination in Apprenticeship, reprinted in NEGROES 
AND JOBS 299 (Louis A. Ferman ed., 1968).

67 Waldinger & Bailey, supra n.59, at 292.

68 Id.

69 Id. at 296.

70 Id.

71 Id. at 294 (“A continuing histoiy of racial conflict over construction 
jobs is one that New York shares with virtually all major cities.”).

72 Hill, supra n.32, at 39. See also Sugrue, supra n.54, at 116-17. One 
building-trades union has openly resisted state and federal anti- 
discrimination laws for nearly a half-century. EEOC v. Local 638, 81 F.3d 
1162 (2d Cir. 1996); Hill, supra n.32, at 39.

73 Waldinger & Bailey, supra n.59, at 293-94.



24

dominated by small firms that rely on social networks for 
hiring, enforcement against race discrimination tends to be more 
difficult and less effective.74 Deep resistance to desegregation 
within the construction industry strongly demonstrates that only 
race-conscious relief can remedy the racial discrimination in the 
industry.75

II. The Effects O f Government-Sanctioned Racial 
Oppression And Racial Caste Are Evident In The 
Continuing Economic And Social Disparities Between 
Blacks And Whites.

Every major economic indicator demonstrates that African 
Americans continue to experience significant economic 
disparities compared to whites. In 1999, black median 
household income stood at only 63% of that of non-Hispanic 
whites.76 Blacks earn less than whites in virtually every 
occupational group.77 The unemployment rate for blacks is 2.4

74 Id.

75 Joe R. Feagin & Clairece Booher Feagin, Discrimination 
American Style 51 (1978); William B. Gould, Black Workers in 
White Unions 281 (1977) (“Despite the multitude of plans and programs, 
not a great deal has been done to alter the institutional rigidity which limits 
Black access to construction jobs.”); Waldinger & Bailey, supra n.39, at 
314; Jomills Flenry Braddock II & James M. McPartland, How Minorities 
Continue to be Excludedfrom Equal Employment Opportunities: Research 
on Labor Market and Institutional Barriers, A3 J. OF SOC. ISSUES 28 (1987).

76 U.S. Census Bureau, Median Household Income by Race and 
Hispanic Origin: 1967 to 1999, <http://w w w .census.gov/ 
hhes/income/income99/incxrace.html>; see also Richard Morin, 
Misperceptions Cloud Whites ’ View o f  Blacks, WASH. POST, July 11,2001, 
at A 1 (Although 42% of whites believe that the average black earns as much 
as the average white, “[i]n fact, substantial differences persist between black 
and white earnings. The median household income for whites was $44,366 
in 1999, compared with $27,910 for blacks.”).

77 U.S. Bureau of Labor Statistics, Office of Employment and 
Unemployment Statistics, Current Population Survey, Usual Weekly

http://www.census.gov/hhes/income/income99/incxrace.html
http://www.census.gov/hhes/income/income99/incxrace.html


25

times that of the white unemployment rate,78 and blacks are 
twice as likely as whites to be in poverty,79 African Americans 
lag far behind white Americans in overall wealth. For every 
dollar of wealth the median white household held in 1999, the 
median black household held 9 cents.80 Net worth for the 
median black household declined between 1994 and 1999 while 
net worth for white households increased 20%.81 African 
Americans are 2.3 times more likely to die in infancy than 
whites, are three times more likely to be below the poverty level 
than non-Hispanic whites, and have a lower life expectancy than 
whites.82

Black high school students drop out of school at 1.76 times

Earnings o f Employed Full-Time Wage and Salary Workers by Occupation, 
Sex, Race and Hispanic Origin, 2000 Annual Averages, at 13-16, 25-28. 
While less than 30% of whites earn less than $25,000, almost half of all 
blacks in 1999 earned less than that. Morin, supra n.76, at A7.

78 U.S. Bureau of Labor Statistics, Household Data: Annual Averages, 
Unemployed Persons by Marital Status, Race, Age and Sex, 
<ftp://ftp.bls.gov/pub/special.requests/lf/aat24.txt>.

79 Morin, supra n.76, at A7.

80 Joseph Lupton & Frank Stafford, Household Financial Wealth, 
(Thousands o f 1999 Dollars), Institute for Social Research (Jan. 2000) 
<http://www.isr.umich.edu/src/psid/wealthcomp.pdf>.

81 Joseph Lupton & Frank Stafford, Household Net Worth, (Thousands 
o f  1999 Dollars) Institute for Social Research (Jan. 2000) 
<http://www.isr.umich.edu/src/psid/wealthcomp.pdf>.

82 Center on Budget and Policy Priorities, Analysis of Census Bureau’s 
Income and Poverty Report for 1999 (2000) <http://www. 
cbpp.org/9-26-00pov.htm>; National Center for Health Statistics, Estimated 
Life Expectancy at Birth in Years, by Race and Sex, (1999) 
<http://www.cdc.gov/nchs/fastats/pdf/47_28tl2.pdf>; Marian F. 
MacDorman & Jonnae O. Atkinson, Infant Mortality Statistics from the 
1997 Period Linked Birth/Infant Death Data Set, 47 N aT’L VITAL STAT. 
Rep. 2 (1999).

ftp://ftp.bls.gov/pub/special.requests/lf/aat24.txt
http://www.isr.umich.edu/src/psid/wealthcomp.pdf
http://www.isr.umich.edu/src/psid/wealthcomp.pdf
http://www.cbpp.org/9-26-00pov.htm
http://www.cbpp.org/9-26-00pov.htm
http://www.cdc.gov/nchs/fastats/pdf/47_28tl2.pdf


26

the rate of white students.83 Black high school graduates are 
significantly less likely than their white peers to enter college 
within a year of graduation.84 Even at the college level, racial 
differences in completion rates have increased since the early 
1990s.85 Despite increasing racial diversity in the country 
generally, the racial segregation of public schools has increased 
in the past decade.86

Black/white segregation in housing —  the market that 
determines one’s schooling, peer groups, safety, jobs, insurance 
costs, public services, home equity, and, ultimately, wealth87 —  
“remains the most extreme” of all residential segregation.88 “No 
other ethnic or racial group in the history of the United States 
has ever, even briefly, experienced such high levels of 
residential segregation.”89 Moreover, unlike the experience of 
other ethnic groups, segregation of African Americans is not

83 National Center for Education Statistics, Quick Tables & Figures, 
Percentage distribution o f 16- to 24-year olds who were not enrolled in 
school and had not completed high school, by race/ethnicity and recency o f 
migration: 1997. <http://nces.ed.gov/quicktables/>.

84 The Schooling o f Black Americans, in A COMMON DESTINY 378-79 
(Gerald D. Jaynes & Robin M. Williams, Jr. eds., 1989).

85 R ebecca M . Blank, An Overview o f Trends in Social and Economic 
Well-Being, by Race, in 1 AMERICA BECOMING 26  (N eil J. Smelser, et al. 
eds., 2001).

86 Gary Orfield, Schools More Separate: Consequences o f a Decade o f  
Resegregation 14, 17 (2001).

87 Douglas S. Massey & Nancy A. Denton, American apartheid, 
Segregation and the Making of the Underclass 235 (1993).

88 Janny Scott, Rethinking Segregation Beyond Black and White, N.Y. 
T im e s , July 29, 2001, § 4, at 1, 6.

89 Douglas S. Massey, Residential Segregation and Neighborhood 
Conditions in U.S. Metropolitan Areas, in 1 AMERICA BECOMING 399, 401 
(Neil J. Smelser et al. eds., 2001).

http://nces.ed.gov/quicktables/


27

explained by class —  “no matter how socioeconomic status is 
measured, black segregation remains universally high.”90

These disparities exist, in whole or in part, as a result of 
racial discrimination and its continuing effects.91 Blacks 
experience persistent disparities in family income, a legacy of 
p a s t92 and present pervasive race discrimination in housing 94 
and in the labor market.

In the labor market, African Americans continue to face the 
exclusionary barriers created by segregated social networks, 
information bias, and statistical discrimination.94 All factors

90 Massey & Denton, supra n.87, at 88 (1992).

91 See, e.g., Overview: Then and Now, in A  COMMON DESTINY 50 
(Gerald D. Jaynes & Robin M. Williams eds., 1989). A number of studies 
show a direct correlation between discrimination and the degree of racial 
segregation in different urban areas. Massey, supra n.89, at 419.

92 David W. Bartelt, Housing the “Underclass, ” in THE UNDERCLASS 
Debate (Michael B. Katz ed., 1993).

93 National studies have found pervasive racial discrimination in the sales 
and rental markets. Massey, supra n.89, at 418-20. A 1988 study concluded 
that African Americans and Latino Americans have at least a 50% chance 
of facing discrimination in the rental and sales markets. United States 
Commission on Civil Rights, supra n.53, at 1-2; see also Massey & Denton, 
supra n.87, at 99; A COMMON DESTINY, supra n.91, at 50 (“There is 
extensive documentation of the purposeful development and maintenance 
of involuntary residential exclusion and segregation. Residential 
segregation has not been an unplanned, spontaneous process, nor has it 
disappeared along with legal segregation.”); Norman Fainstein, The 
Underclass/Mismatch Hypothesis as an Explanation for Black Economic 
Deprivation, 15 POL. & SOC’Y 403, 439-40 (1986-87) (“Combined with 
virulent racism in housing markets . . . outright discrimination along with 
more subtle forms of channeling in labor markets goes a long way toward 
explaining black economic disadvantage”).

94 Braddock & McPartland, supra n.75, at 27 (“Minorities face special 
difficulties in the employment process not only because they are victims of 
past discrimination in educational and occupational opportunities, but also



28

being equal, blacks on average are less likely to receive job 
offers than whites95 and can expect to “sample about 50 percent 
more jobs than whites to get an offer.”96 Black applicants are 
also “much less likely to be hired by small establishments than 
large ones and are less likely to be hired for jobs that involve 
significant contact with white customers.”97 The greater the 
degree of informality and subjectivity in the hiring process, the 
greater the likelihood of discrimination.98 Absent 
comprehensive federal government protection and regulations, 
“the prospects o f suburban job opportunities for black workers 
are dismal at best” due to general white “aversion” against 
blacks.99

Distinct racial barriers have also limited the entrepreneurial 
opportunities of African Americans. While self-employment

because of the specific barriers that qualified individuals often encounter at 
present because of their membership in a race or ethnic minority group.”); 
see also MICHAEL FIX & RAYMOND J. STRUYK eds., CLEAR AND 
CONVINCING Evidence (1992); Braddock & McPartland, supra n.75, at 5- 
39; Bendick, supra n.53; Harry J. Holzer & Keith R. Ihlanfeldt, Customer 
Discrimination and Employment Outcomes for Minority Workers, 113 Q.J. 
OF ECON. 835-67 (1998); Harry J. Holzer, Why Do Small Establishments 
Hire Fewer Blacks than Large Ones?, 33 J. OF HUM. RESOURCES 896-914 
(1998).

95 Harry J. Holzer, Race Differences in Labor Market Outcomes Among 
Men, in 2 A m erica  BECOMING (Neil J. Smelser et al. eds., 2001) 106; Fix 
& Struyk, supra n.94.

96 Fix & Struyk, supra n.94, at 193.

97 Holzer, supra n.94, at 106. See also Holzer, supra n.95, at 896-914; 
Holzer & Ihlanfeldt, supra n.94, at 835-67.

98 Holzer, supra n.94, at 106; Braddock & McPartland, supra n.75, at 
5-39;Holz er, Informal Job Search and Black Youth Unemployment, 77 Am . 
ECON. REV. 446-452 (1987).

99 Bruce W illiams, Black Workers in an Industrial Suburb 193 
(1987).



29

has been the key to economic success and wealth accumulation 
for many Americans, blacks “have faced levels of hardship in 
their pursuit of self-employment that have never been 
experienced as folly by or applied as consistently to other ethnic 
groups, even other nonwhite ethnics.”100 For many years during 
the first half of the twentieth century, many types of businesses 
were off-limits to African-Americans, and those African- 
American businesses that did exist were restricted to all-black 
segregated markets. Barriers to entry prevent blacks from 
competing in an open market. This has ensured “low levels of 
black business development and has kept black businesses 
relatively small.”101

Conclusion

The barriers faced by African Americans, as a class, who 
seek to establish construction businesses and obtain contracts, 
are thus very different in nature, origin and intensity from those 
that may be encountered by Americans of different 
backgrounds, contrary to Petitioner’s suggestion. While non­
black persons or families may, on an individual basis, 
experience disadvantages that limit or impede their economic 
potential, this country’s long-maintained, govemmentally- 
sanctioned discriminatory policies and customs continue to this 
day to systemically impede access to the economic mainstream 
for blacks. Such racial disadvantage is not — as this Court has 
sometimes suggested —  the vestigial, attenuated remnant of 
amorphous “societal discrimination,” but has resulted from 
deeply rooted racial discrimination by federal, state, and local 
government actors as well as private individuals aided by 
discriminatory government policies.

100 Oliver & Shapiro, supra n.40, at 45.

101 Id. at 47.



30

The powerfully entrenched disparities between blacks and 
whites that result, accompanied by ongoing racial 
discrimination, persist in making this country race-conscious, 
notwithstanding determined efforts by some to deny —  in the 
face of every indication to the contrary — the continuing 
significance of race:

The appeal of color-blindness is that it projects as moral 
what is not; by refusing to see and act on the reality of 
continued discrimination, the color-blind can project 
themselves as above the fray, unsullied by manipulations 
of color. This, of course, leaves the problem unsolved, 
and, even worse, ensures that the problem will be 
ignored.”102

This Court should turn away from such a course and hold 
that the Fourteenth Amendment authorizes race-conscious 
remedies that redress the cumulative effects of centuries of 
government-sanctioned discrimination against blacks and the 
exclusion of blacks from the economic mainstream; and that the 
Department of Transportation’s Disadvantaged Business 
Enterprise program, therefore, serves the compelling state 
interest of remedying this country’s incontrovertible history of 
racial oppression and of fulfilling the unfinished promise of the 
Fourteenth Amendment.

For the foregoing reasons, the judgment of the court below 
should be affirmed.

102 Anthony Marx, Racial Trends and Scapegoating: Bringing in a 
Comparative Focus, in 1 AMERICA BECOMING 311 (Neil J. Smelser et al. 
eds., 2001).



Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
James L. Cott 

* Robert H. Stroup 
Elise C. Boddie 
Lia B. Epperson 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

Attorneys for Amicus Curiae

* Counsel o f Record

Dated: August 10, 2001