Eyer on Ideological Draft and the Forgotten History of Intent

Katie R. Eyer, Rutgers Law School, is publishing Ideological Drift and the Forgotten History of Intent in volume 51 of the Harvard Civil Rights-Civil Liberties Law Review (2016). Here is the abstract.

It would no doubt surprise many readers of contemporary Equal Protection scholarship to hear intent doctrine described as one of the major racial justice victories of the Brown v. Board of Education era. Instead, under the account familiar to most contemporary readers, the institutionalization of intent was a conservative development, marking a turn away from racial justice concerns in the mid- to late 1970s. Drawing on archival and other historical source materials, this Article contends that the former account in fact represents the true genesis of intent doctrine in Equal Protection jurisprudence. During the Plessy v. Ferguson era, restrictive doctrines barred racial justice advocates from challenging laws based on their invidious intent. Intent doctrine arose in the aftermath of Brown as a response by progressive actors to the ways that these Plessy era doctrines allowed rampant Southern evasion of Brown’s desegregation mandate. Understanding this progressive history of intent doctrine has important implications. There are strong reasons to believe that these early progressive struggles to establish intent-based invalidation helped facilitate the 1970s-era conservative turn in intent doctrine that progressive scholars today decry. Thus, although the normative valence of intent doctrine shifted from progressive to conservative in the early to mid-1970s, progressive and moderate Justices on the Court were slow to realign their own doctrinal preferences. As a result, the Court’s progressive wing rarely resisted — and at times aided — the conservative doctrinal developments of the mid- to late 1970s. The long history of intent therefore may help us to better understand the genesis of a phenomenon that scholars have long observed: the realignment of Equal Protection doctrine away from racial justice aims. And the long history of intent suggests that it is not only politics, but also doctrine, that plays a key role. Thus, while changes in popular sentiment serve as the backdrop to shifts in the Court’s normative orientation, it is the cooptation of progressive doctrine that renders such shifts familiar and unobjectionable to the Court.

Download the article from SSRN at the link.

The Overlooked Diversity and Inclusion Argument In "Plessy v. Ferguson"

Sheldon Novick, Vermont Law School, is publishing Homer Plessy's Forgotten Plea for Inclusion: Seeing Color, Erasing Color-Lines in volume 118 of the West Virginia Law Review. Here is the abstract.

Despite the attention given to the Supreme Court’s opinions in *Plessy v. Fergusson* and frequent quotation of Justice Harlan’s dissenting opinion asking the Court to be color-blind, Homer Plessy’s actual claim and his plea are largely forgotten. This forgetfulness is unfortunate, because Homer Plessy speaks to our time with surprising urgency. Plessy did not ask for blindness to the reality of color, he asked the Supreme Court to accept the reality of race and to insist on the inclusion in civil society of every citizen, taking the reality of race and race-prejudice into account. In the 1890s, when Plessy’s suit was in preparation, the backlash against the first Reconstruction was thirty years old, and on the crest of success. Today, we are thirty years into the backlash against the Civil Rights jurisprudence of the Warren Court. The backlash of Homer Plessy’s day created the Jim Crow regime, drawing a color-line around the formerly enslaved with a pretense of equal treatment. Today, the New Jim Crow is accomplished through mass incarceration and mass deportation; the color-line is a wall, and the imprisoned are invisible. We say “Black lives matter” to bring that reality into view, and ask again to erase the line of exclusion. Homer Plessy argued not for equality merely, but for inclusion. “Diversity and inclusion” is a motto for today’s civil rights movement, and only changes in thought and language make it difficult for us to see that it could have been the motto of Homer Plessy’s movement as well. He insisted on an inclusive citizenship for persons of all races; diversity and inclusion. Constitutional law should not be blind to individual circumstances, but it should reject arbitrary color-lines that separate and exclude under a pretense of equal treatment.

Download the article from SSRN at the link.