Jean v. Nelson Brief of Amicus Curiae in Support of Petitioners

    No. 84-5240

I l f  T H E

j&uprm? tour! of tl?£ ln if || 8t&t?&
O ctober; T e e m , 1984

M arie L u cie  .Teak , et al.,
Petitioners,

'V.

A lan  N elson , et al.,
Respondents.

O N  W R IT  O P CER TIO R A R I TO T H E  U N IT E D  STA TES 

CO U RT Ol? A P P E A L S  F O E  T H E  E L E V E N T H  C IR C U IT

BRIEF OF AMICUS CU M AE  NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF PETITIONERS

J u l iu s  L eV o n n e  C h a m bers  
C h a r les  S t e p h e n  R a lsto n * 
P enda  D . H air

99 Hudson Street
New York, New York 10013
(212) 219-1900

Attorneys for the N AACP Legal 
Defense and Educational 
Fund, Inc.

* Counsel of Record

Dated: January  17, 1985



TABLE OF CONTENTS
Page

Table of Authorities .... ........  ii
Statement of Interest of

Amicus Curiae . . . . . . . . . . . . . . .  1

SUMMARY OF ARGUMENT .............. 3

ARGUMENT
I. The Constitution Prohibits 

Invidious Racial Discrimi­
nation Against Excludable 
Aliens .................. 4

Conclusion ....................... 14

i



Table of Authorities

Case s Paqe

Bob Jones University v, United
States, U.S. , 103 S.Ct.
2017 (19F3T .....777........ 2,6

Brown v. Board of Education, 347
U.S. 483 (1954) ........... 2,10,11

Franks v. Bowman Transportation
Co., 424 U.S. 747 (1976) .... 2

Fullilove v. Klutznick, 448 U.S.
448 ( 1980) .................. . 2

Hernandez v.Texas, 347 U.S. 475
( 1954) .........____......... 7

Jean v. Nelson, 711 F.2d 1455
( 1983) ......   ....... 5

Jean v. Nelson, 727 F.2d 957 (1984)
(en banc) ................... 5

Korematsu v. United States, 323
U.S. 214 ( 1944) .............  7

NAACP v. Button, 371 U.S. 415
( 1963) .......................  2

Palmore v. Sidoti, U.S. ,
104 S.Ct. 1879TT984) .777... 8

Shaughnessy v. Mezei, 345 U.S.
206 (1953) ................... 12,13

ii



Page
Strauder v. West Virginia, 100

U.S. 303 (1880) ............. 6,10

Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 
(1971) ...................... 2

Truax v. Raich, 239 U.S. 33
(1915) ...................... 6

University of California Regents 
v. Bakke, 438 U.S. 265 
1978} .................... 2,6,9,11

Yick Wo v. Hopkins, 118 U.S. 356
(1886} ...................... 6

Statutes
Fair Housing Act of 1968, 42

U.S.C. § § 3601 et seq ... 7

Title II of the Civil Rights 
Act of 1964, 42 U.S.C.
§ 2000a et seq  ..... . 7

Title VI of the Civil Rights Act 
of 1954, 42 U.S.C. § 2000d 
et seq ...................... 8

Title VII of the Civil Rights 
Act of 1954, 42 U.S.C.
§ 2000e et seq .............. 7

- iii -



No. 84-5240

IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1984

MARIE LUCIE JEAN, et al.,

Petitioners,
v.

ALAN NELSON, et al..

Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

For the Eleventh Circuit
rs

Brief of Amicus Curiae NAACP Legal 
Defense and Educational Fund, Inc. 

In Support of Petitioners

Statement of Interest of Amicus Curiae

The NAACP Legal 

t ional Fund, Inc. ,
Defense 
is a

and Educa- 
non-profit

corporation which was established for the



2

purpose of assisting black citizens in 

securing their civil rights. It has been 

cited by the Court as having "a corporate 

reputation for expertness in presenting 

and arguing the difficult questions of law 

that frequently arise in civil rights 

litigation." NAACP v. Button, 371 U.S. 

415, 422 (1963). The Legal Defense Fund 

has appeared before the Court on numerous 

occasions representing parties or as 

amicus curiae in cases involving the 

meaning and scope of constitutional and 

statutory guarantees of equality and 
non-discrimination.1

1 See, e.g. , Brown v. Board of Education, 
347 U.S. 483 H  954) ; SwaTTriTv. Chariot te- 
Mecklenburg Board of Education,'̂ 4OTuTsTT 
(1971); Franks v. Bowman Transportation 
Co., 424 U.S. 747 (1976); University of 
California Regents v. Bakke ,~T33~lj7sT2g5' 
(1978); Fullilove v. Klutznick, 448 U.S. 
448 ( 1986T7~Bob Jb(ne¥~Un7v¥FiTty v. United 
States, U7s3 “ T 63 S.Ct. 2017
(1983). “



3

This case presents the isssue whether 
official United States government policies 
of invidious racial and national origin 
discrimination are beyond the reach of the 
constitution because the immediate victims 
are excludable aliens. The case involves 
not only the interests of excludable 
aliens, but also the interests of citi­
zens, who are harmed by the atmosphere of 
racial prejudice promoted by an official 
policy of discrimination. The Court's 
resolution of the issues presented by this 
case may materially affect the ability of 
amicus to advance its program of vindi­
cating the civil rights of black citizens.

SUMMARY OF ARGUMENT 
This case does not concern merely the 

rights of illegal, excludable aliens. The 
case is about the right of citizens to a 
government that sets an example for the



4

rest of society. The actions of defen­

dants in this case set an example of 

racial prejudice and hatred. This example 

can be expected to permeate throughout 

society, reinforcing racist attitudes and 

undermining the national goal of eliminat­

ing racial and ethnic discrimination. 

Any official policy and program incorpor­

ating invidious racial lines, regardless 

of the identify of the immediate victims, 
represents an affront to the constitu­

tional guarantee of equal protection.

ARGUMENT

I. The Constitution Prohibits
Invidious Racial Discrimination 
Against Excludable Aliens

The court of appeals panel found that 
defendants' policy of detaining Haitian 

refugees is based on their national origin 

and the fact that their skin color is



5

black. 711 F .2d at 1484-85, 1487-1502.
Other racial and ethnic groups are not
subject to detention even though they are
equally illegal and excludable from the
United States. Ld. The panel's findings

2are supported by the record and were not 
challenged by the en banc court. Nonethe­
less, the en banc court reached the 
astounding conclusion that official 
government policies of racism are totally 
beyond the scope of the constitution so
long as the direct victims of those

3policies are excludable aliens.

2 Documents in the record show that de­
fendants intended to create detention 
camps to "be filled largely by blacks." 
PX 71a.

3 See 727 F. 2d at 984. The absurd result of 
the en banc court's ruling is that 
Congress could enact and the Executive 
Branch could execute a law that required 
all black excludable aliens to be sum­
marily killed.



6

Elimination of invidious discrimina­
tion on the basis of race and ethnic 
origin is a national goal of the highest 
order. The Court has recognized the 
"fundamental policy of eliminating racial 
discrimination" that is "rooted in our 
constitution" and supported by the 
Congress and the Executive Branch. Bob
Jones University v. United States, ___
U.S. , 103 S.Ct. 2017, 2024, 2030
(1983). This policy, which originated in 
the struggle of black Americans for 
equality, has been "extended to all ethnic 
groups seeking protection from official 
discrimination." University of California 
Regents v. Bakke, 438 U.S. 265, 292
(opinion of Powell, J.). See Strauder v. 
West Virginia, 100 U.S. 303, 308 (1880)
(Celtic Irishmen)(dictum); Yick Wo v. 
Hopkins, 118 U.S. 356 ( 1886)(Chinese);
Truax v. Raich, 239 U.S. 33, 41 (1915)



7

(Austrian resident aliens); Korematsu v.
United States, 323 U.S. 214 ( 1944)(Japan-
ese-Amer icans) ; Hernandez v. Texas, 347
U.S. 475 (1954)(Mexican-Americans).

The national policy to eradicate race
and national origin discrimination extends
beyond official discrimination. Congress
and the Executive Branch have adopted an
array of measures designed to prohibit or
discourage private discrimination. 

4 5Employment, housing, public accommoda­
tions^ and programs receiving federal

4 Title VII of the Civil Rights Act of 1954, 
42 U.S.C. § 2000e et seq.

5 Fair Housing Act of 1968, 42 U.S.C. §§ 
3601 et seq.

6 Title II of the Civil Rights Act of 1964, 
42 U.S.C. § 2000a et seq.



8

. . 7financial assistance are a few examples 
of the types of private discrimination 
that our country is seeking to eliminate.

Of course*, we are still a long way 
from the goal of eliminating racial and 
ethnic prejudice from our society. In 
order to free society from this evil, 
it is necessary that our government set 
the example. Thus, the constitutional 
guarantee of equal protection focuses its 
mandate on the actions of public offi­
cials, rather than on the identity of the 
immediate victims of those actions. The 
central purpose of the equal protection 
guarantee is "to do away with all govern­
mental ly-imposed discrimination based on
r^ce." Palmore v. Sidoti, ___ U.S. ,
104 S.Ct. 1879, 1881-82 (1984)(emphasis
added). "Racial and ethnic distinctions

7 Title VI of the Civil Rights Act of 1964, 
42 U.S.C. § 2000d et seq.



9

of any sort are inherently suspect and 
thus call for the most exacting judicial 
examination." University of California 
Regents v. Bakke, 438 U.S. 265, 291 
( 1 978)(opinion of Powell, J. ) (emphasis 
added).

It has long been recognized that the 
harm from official acts of discrimination 
extends beyond the direct victims. 
Official policies and programs of race and 
national origin discrimination corrupt our 
governmental institutions, stigmatize all 
members of the disfavored group and incite 
further discrimination. As early as 1880 
the Supreme Court took note of the 
devastating consequences of official of 
racism, concluding that exclusion of 
blacks from juries

"is practically a brand upon 
them, affixed by law; an asser­
tion of their inferiority, and a 
stimulant to that race prejudice 
which is an impediment to



1 0

securing to individuals of the 
race that equal justice which the 
law aims to secure to all 
others."

Strauder v. West Virginia, 100 U. S. 303, 
308.

The landmark decision in Brown v. 
Board of Education, 347 U.S. 483 (1954), 
also is based on the principle that any 
official sanctioning of race-based lines 
promotes racism throughout society. The 
Court in Brown struck down segregated 
education for black and white school 
children even though the educational 
opportunities provided to each race were 
purportedly equal. The Court concluded 
that segregation gave an official imprima­
tur to the notion that race distinctions 
are relevant. " '[T]he policy of separat­
ing the races is usually interpreted as



denoting the inferiority of the negro 
group."’ 347 U.S. at 494 (1954) (quoting 
lower court).

This principle has been recently 
reaffirmed. In University of California 
Regents v. Bakke, the Court recognized 
that "any statute must be stricken that 
stigmatizes any group." 438 U.S. at 361 
(opinion of Brennan, White, Marshall & 
Blackmun, JJ.)

The official policy of race and 
national origin discrimination at issue in 
this case victimizes all black citizens 
and particularly those citizens whose 
national origin is Haitian. The discrimi­
natory policy of detaining Haitians was 
formulated by federal officials in the 
territorial United States, was carried out 
in federal buildings and on federal 
property and is supported by the tax 
dollars of United States citizens. The



- 12

fact that the United States government has 
chosen to jail Haitians because of their 
skin color and national origin represents 
an official statement that skin color and 
national origin are relevant to the 
purposes of detention. This official 
support for racial and ethnic discrimina­
tion reinforces racial and ethnic preju­
dices within our society. Public percep­
tion that skin color and national origin 
are relevant to whether an individual 
should be jailed inevitably leads to the 
perception that skin color and national 
origin are relevant for other public and 
private purposes. Thus the policy at 
issue undermines our constitutional and 
statutory commitment to the eradication of 
invidious discrimination.

The race and ethnic discrimination in 
this case distinguishes it from the 
situation in Shaughnessy v. Mezei, 345



13

U . S . 206 ( 1953). In that case the Court 
held that an excludable alien is not 
entitled to a hearing to determine whether 
he should be detained. There was no claim 
that the refusal to hold a hearing was 
based on the alien's race, skin color or 
national origin. Rather, the government 
asserted that the alien posed a national 
security risk.

In Mezei, whether to grant a hearing 
affected only the interests of the exclud­
able alien, who was held not to be 
entitled to the due process protections 
afforded citizens. In the instant case, 
the denial of parole on the basis of race 
and ethnic origin infringes on the 
constitutional rights of United States 
citizens by creating the public perception 
that racial and ethnic prejudice is 
acceptable.



14

CONCLUSION

For the reasons stated, the decision 

of the United States Court of Appeals for 

the Eleventh Circuit, sitting en banc, 
should be reversed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON* 
PENDA D. HAIR

99 Hudson Street
New York, New York 10013
(212) 219-1900

Attorneys for the 
NAACP Legal Defense and
Educational Fund, Inc.

*Counsel of Record
Dated: January 17, 1985



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