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Excerpted from: Jamie L. Crook, From Hernandez V. Texas to the Present: Doctrinal Shifts in the Supreme Court's Latina/o Jurisprudence, 11 Harvard Latino Law Review 19 (Spring 2008) (342 Footnotes) (Full Document)


JamieLCrookIn one of the Supreme Court's earliest discussions of the Reconstruction Amendments, Justice Miller wrote that--along with the Thirteenth and Fifteenth Amendments--the Fourteenth Amendment “was addressed to the grievances of [the black] race, and designed to remedy them.” Yet the guarantee of equal protection of the laws extended more broadly:

We do not say that no one else but the negro can share in this protection . . . . Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent.

It was not until 1954, however, in the case Hernandez v. Texas, that the Court actually applied “the protection of these articles” to a Mexican-American class, unanimously reversing the Mexican-American petitioner's murder conviction on grounds that the systematic exclusion of Hispanics from his jury violated his right to equal protection of the laws. The holding in Hernandez v. Texas is fact-specific and turned on the particular social position of Mexican Americans in Jackson County, Texas. Whereas the Court had historically understood (and accepted without question) the protected status of African Americans in terms of race, in Hernandez the Court relied on the dynamics of variable “community prejudices” to hold that under certain circumstances, a class defined on grounds other than “race and color” might be established.

Notwithstanding the precedential value of the decision's recognition of--and willingness to redress--Latina/o subordination, Hernandez v. Texas thus left open whether discrimination on the basis of one or more of the myriad traits that might comprise Latina/o identity triggers heightened scrutiny in every instance. An examination of the Supreme Court's treatment of Latina/o claims under the Equal Protection Clause in the half-century since Hernandez v. Texas reveals an inconsistent acknowledgment of Latina/os' continued subordination within a dominant white culture, as well as continuing difficulty in understanding the nature of a Latina/o classification. Fast-forwarding four decades from Hernandez v. Texas, Hernandez v. New York, another juror exclusion case, suggests a doctrinal shift in the Court's approach to equal protection for Latinas/os. Rejecting Hernandez v. Texas's fact-specific inquiry, in Hernandez v. New York the Court reasoned that because the prosecutor had offered a “neutral” explanation for striking every Hispanic from the venire and had not professed an intent to eliminate Latina/o prospective jurors because they were Latina/o, the disparate impact of his practice of striking fluent Spanish speakers could not have “violate[d] the principle of race neutrality.”

The Court's ability in Hernandez v. Texas to recognize that “community prejudices . . . [based on] differences from the community norm [other than color] may define . . . groups which need [constitutional] protection,” and its refusal to engage in a similar inquiry in Hernandez v. New York, suggest a doctrinal shift in its understanding of both Hispanic subordination and of the equal protection guarantee more generally. The Court has moved away from a Civil Rights Era sensibility that understood racial subordination as a primary force in the ordering of U.S. society, toward a formalistic understanding of racial identity as biology, devoid of historical or social meaning. The Court has largely discarded the insight of Hernandez v. Texas: that racism does not operate within a simple hierarchy of white and black but rather perpetuates whites' position of power in relation to other non-white groups as well. Instead, “formal-race” increasingly informs the Court's approach to racial discrimination, through the lens of a formal black-white paradigm that relegates discrimination not expressly based on immutable superficial markers to the periphery of its racial gaze.

This Article explores the operation of black-white paradigms in the Court's varied treatment of Latina/o struggles for equality and judicial recognition since Hernandez v. Texas.

In Part I, I explore the relationship between the traditional black-white paradigm and the contemporary doctrine of colorblindness. I suggest that the Court's current race jurisprudence combines these two doctrines to create a formal black-white paradigm, as a modern-day permutation of the traditional black-white paradigm, wherein the judicial gaze blinds itself to group subordination that does not explicitly operate on the basis of skin color.

As Hernandez v. Texas shows, however, at times the Court has more flexibly employed the black-white paradigm in order to recognize the subordination of other non-white groups. Such a perspective informed the series of cases I discuss in Part II, in which the Supreme Court referenced racism against African Americans in applying the equal protection guarantee to Latina/os.

Part III traces a separate line of cases that show the influence of the intent requirement announced in Washington v. Davis and of conservative ethnicity theory, which emerged in the late 1960s and early 1970s as an alternative explanation for social stratification. This line of cases rendered non-actionable many of the types of equal protection challenges likely to be brought by Latina/os, including suits alleging discrimination based on language, national origin, or hostility toward immigrants.

Despite the pernicious effects of its current applications, the traditional black-white paradigm, developing as it did out of the history of U.S. slavery, told a crucial story about the formation of racial identity and racial subordination in the United States. In Part IV, I consider how the use of a racial-subordination paradigm could add to the powerful centrality of this history. I argue that a racial-subordination paradigm could shed light on contemporary racial injustices by acknowledging the coterminous salience of the unique historical positions of Latinas/os and other subordinated groups throughout this country's evolution in relation to--rather than in conflict with--African Americans' continued struggles for substantive equality. In this respect, a racial-subordination paradigm offers a more efficacious approach to equal protection than either the traditional or formal black-white paradigms. Whereas the latter two serve the purposes of colorblindness by maintaining the current racial status quo, a racial-subordination paradigm would encompass the social, historical, and material meanings of group classifications including, but also in addition to, black and white, and would create space for narratives about racial subordination that layer the foundational narrative of black slavery. The racial-subordination paradigm provides a necessary corrective to the Court's current colorblind approach to group oppression by re-centering substantive racial justice as the goal of equal protection.

I have thus far, and without comment, used Hispanic and Latina/o, and likewise Asian, black, and white, as racial terms. Whether or not “Hispanic” or “Latina/o” constitutes a racial, ethnic, linguistic, or cultural grouping has generated its own universe of insightful and nuanced scholarship, with which I will only loosely engage. Because my focus is on the circumstances under which the Supreme Court has acknowledged the operation of white supremacy in relation to Latina/o claims for equal protection, my analysis will necessarily tend to discuss these classifications in terms of race. Without advocating for Latinas/os to embrace a racial self-understanding--though many do suggest that critiquing the Court's Latina/o jurisprudence through a racial lens renders more readily apparent the doctrinal tensions that underlie the Court's erratic recognition of group-based discrimination against Latinas/os. Inherent in colorblindness' evisceration of race as a legally relevant category is the paradoxical requirement that the law first recognize race. Thus, as a racial ideology, albeit one that discredits the explanatory power of the very categorization it purports to explain, colorblindness must assume that racial meanings exist before it can refuse to acknowledge their existence. A racial Hispanic identity, if nothing else, engages with colorblindness on its own level and triggers an equal protection framework that, while severely enervated, has at times in U.S. history actually lived up to its name.

Whether to employ the label “Latina/o” or “Hispanic” likewise generates an ongoing dialogue within Latino communities. Because my purposes in this Article lie beyond weighing in on either side of this debate, and in hopes of offending neither camp, I will follow in the footsteps of Juan Gonzalez, who has written that neither “Hispanic” nor “Latino” are “totally accurate[,] but both are acceptable,” by using the two terms interchangeably.

. . .

In Leslie Espinoza's exchange with Angela Harris, the two professors discover through their conversation that:

As women of color, race has been the powerful prism that fractures the invisible white light of dominant society. . . . As legal academics, our discussions of race always seem to circle back to law. . . . When we discuss injustice and suffering, our examples seem to cluster around the highly edited factual stories of appellate judges. . . . It is astounding how much our perception of race is law-oriented.

I have focused here on Supreme Court jurisprudence because of the truth in Espinoza's assertion that “[l]egislators and judges reflect society's dominant understanding of race,” as much as they shape it.

The Supreme Court has only inconsistently acknowledged “Latina/o” as a suspect classification. Its current preference for formal-race as the reductive explanation of racial identity and racial difference will only lead it further from its ability in Hernandez v. Texas, Keyes, UJO, Castaneda, and to a very limited extent, Plyler and Grutter, to analogize between discrimination against Hispanics and discrimination against African Americans so as to perceive and redress the group-subordinating nature of conduct that disadvantages the former, no less than the latter, as a class. Formal-race deflects judicial focus away from the reality of racial subordination imposed by whites on multiple racialized groups. It instead acknowledges only formal-race prejudice, typically against blacks, frequently to the exclusion of other groups' struggles, and deemphasizes whites' role in creating racial hierarchies. Aided by conservative ethnicity theory and the fragmentation of whites into innumerable ethnic minority groups, formal-race promotes a colorblind agenda that denies the continued salience of race and group subordination in a legal context that no longer authorizes the racial assignment of legal status. It posits that racism--understood solely as discrimination on the basis of skin color--lingers on only in the hearts of a few bad actors that lack the savvy not to keep their assumptions of racial supremacy to themselves.

The traditional black-white paradigm developed out of a fundamental understanding that whites' subjugation and exploitation of African Americans through slavery constituted a constitutional and moral evil. As this survey of the Supreme Court's Latina/o cases seeks to show, the contemporary doctrines of colorblindness and formal-race have manipulated and reshaped that understanding into a tool for preserving whites' relative advantage to non-whites, under the guise of race neutrality. As the modern-day version of the early black-white paradigm that supplied the Strauder Court with a framework for striking down a statute barring blacks from jury service, the formal black-white paradigm compelled a holding in Hernandez v. New York that discrimination based on a core component of many Latinas/os' identity did not create a constitutional violation, and in immigration cases, that the volitional nature of group membership entailed no right to group-based protection.

The Court appears to have all but forgotten a racial-subordination paradigm, as a more pliant, more protective approach to analyzing group-subordinating conduct. The burden is now on advocates and activists self-consciously and insistently to deploy a racial-subordination paradigm by adding to the story of slavery and black subordination new narratives of exploitation and shared struggle against whites' structural, legal and social power. The appearance of these voices in the nation's judicial chambers might ultimately rekindle an ember in the Supreme Court's own memory of its prior ability to recognize that “community prejudices . . . may define . . . groups which need protection.”

Joint Fellow, Altshuler Berzon LLP and Natural Resources Defense Council. J.D., University of California at Berkeley (Boalt Hall); A.B., Brown University.