Feb 26, 2020 — UCLA School of Law School Professor Devon Carbado illustrated how bigotry is embedded throughout the American legal system, as keynote speaker of the Black History Month Lecture at University of Houston Law Center.
In a talk titled, “Constitutionalizing Inequality” Carbado explained the concept of racial accumulation, the ways in which racial advantages and disadvantages accumulate over time through the lens of Fourth and 14th Amendment jurisprudence.
“I always wonder about the month where we get to have our moments, and I have an ambiguous relationship to this particular kind of space,” Carbado said. “But I do think it provides an opportunity for us to think about our history and our history in relationship to law.
“I’m interested in thinking about the different ways constitutional law produces, entrenches and legitimizes inequality,” he said.
Carbado referenced Dr. Martin Luther King Jr.'s, “I Have a Dream” speech, as to how people of color have received a bad check from the U.S. government. He postulated that perhaps the check was not bad, but rather not enough to produce a sum of zero when subtracted from the totality of racial inequality.
“We’ve never been given a check that’s enough to cover the cost of racial inequality in the lives of black people,” he said.
Carbado equated checks with civil rights landmarks, such as the Reconstruction Era, the 13th, 14th and 15th Amendments, Brown v. Board of Education, and the Civil Rights Act.
However, none of these checks completely erased racial inequality, causing the remaining total present after one check is cashed to carry over, creating a perpetual cycle of disadvantageous racial accumulation unable to be completely erased by a singular check.
“The question is when we cash that civil rights check, do we get zero? We obviously don’t,” Carbado said. “When we start our math with Jim Crow, we have to bring over the racial inequality from slavery. That is to say, we minus Reconstruction, we still have some racial inequality, and now we start there. Then we’re going to pile on the Jim Crow stuff.”
According to Carbado, the black community has received no civil rights checks since 1970, and suggested that racial inequality is prevalent in today’s society due to this dynamic and a divided country.
“There’s never been a moment where the nation has come together in interracial harmony to do the right thing,” he said. “Reconstruction required a Civil War, Brown V. Board of Education required the Supreme Court to push back against social norms, the Civil Rights Act - in the context of mass social upheaval.
“The United States has never been ready for any of those civil rights moments. There have never been collective moments where we all said, ‘Let’s do the right thing.’”
Carbado segued into the ramifications of chronic racial inequality and unfulfilling checks as they relate to the Constitution.
The Fourth Amendment protects people from unreasonable search and seizure, requiring a warrant or probable cause be present when conducting one. Yet stop and frisk, considered a miniature search and seizure, is constitutional and only requires police to have reasonable suspicion.
“The reason this is important with respect to our conversation about constitutionalized inequality is because it's a really low evidentiary bar,” he said. “If you are in a high crime area - and what is a high crime area? It’s an area where black and brown people live - and you’re fleeing the police, that’s reasonable suspicion.”
He referenced Regents of the University of California v. Bakke, which rendered affirmative action constitutional on the basis of diversity, but thought admitting students of color for reasons of fighting societal discrimination, increasing the number of doctors in minority communities, and expanding the representation of students of color in medical school were not compelling.
“You didn’t have to apply the most rigorous standard of review for affirmative action,” he said. “But the court took the position that any form of race get rigorously scrutinized, and the law developed in a way that suggests we can’t tell the difference between Jim Crow and affirmative action.”
Carbado said racial accumulation, checks and the Fourth and 14th Amendments ultimately conflate to produce a lens for viewing the Constitution as a tool for enabling inequality among races.
“If we think that discrimination is bigger than the individual intent problem, if we think that the racial math story that I’ve told is a plausible one that includes racial inequality accumulating over time, then the way constitutional law works against the backdrop of that is a story about the constitutionalization of inequality,” he said.
“It’s a story about constructing legal doctrine in ways that either produces, entrenches or legitimizes inequality, and that’s the sense that this frame is far from hyperbolic. It’s a real way to understand the interaction between constitutional law on the one hand, and problems of racial inequality on the other.”