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Race and the Law

Lewis v. Governor of Alabama

Eleventh Circuit Reverses Dismissal of Discrimination Claim Relying on Historical and Statistical Evidence.

In 1901, Alabama adopted a state constitution — still in effect today — the express purpose of which was the reification of white supremacy.1×1. At Alabama’s 1901 Constitutional Convention, John B. Knox, the President of the Convention, said in his opening speech to the delegates: “[T]he people of Alabama have been called upon to face no more important situation than now confronts us . . . . And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.” 1 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901, to September 3rd, 1901, at 7–8 (1940). To achieve this end, the state constitution disenfranchised Alabama’s Black population and restricted democratic self-governance at the local level.2×2. See Wayne Flynt, Alabama’s Shame: The Historical Origins of the 1901 Constitution, 53 Ala. L. Rev. 67, 75–76 (2001); Will Parker, Commentary, Still Afraid of “Negro Domination?”: Why County Home Rule Limitations in the Alabama Constitution of 1901 Are Unconstitutional, 57 Ala. L. Rev. 545, 558–60 (2005). Sixty-two years later, civil rights leaders organized the Birmingham Campaign, a massive operation of nonviolent civil disobedience aimed at resisting and toppling Birmingham’s segregation regime.3×3. See David Benjamin Oppenheimer, Kennedy, King, Shuttlesworth and Walker: The Events Leading to the Introduction of the Civil Rights Act of 1964, 29 U.S.F. L. Rev. 645, 646 (1995). In response to the Birmingham Campaign, Black communities in Birmingham endured bombings in their homes and churches, police-sanctioned mob violence, and outright attacks by police.4×4. Id. at 653, 659, 667. The Birmingham campaign cemented the city’s status as a site of Black resistance to white supremacy and corresponding violent white backlash.

In 2015, the Birmingham City Council passed an ordinance gradually raising the minimum wage to $10.10 per hour.5×5. Amended Complaint at 30, Lewis v. Bentley, No. 16-cv-00690 (N.D. Ala. Feb. 1, 2017). Shortly thereafter, the Alabama state government enacted legislation preempting all municipal minimum wage regulation.6×6. See Alabama Uniform Minimum Wage and Right-to-Work Act, Act No. 2016-18, 2016 Ala. Laws 36. Recently, in Lewis v. Governor of Alabama,7×7. 896 F.3d 1282 (11th Cir. 2018). the Eleventh Circuit held that plaintiffs challenging the state statute pled facts sufficient to state a claim of intentional racial discrimination under the Fourteenth Amendment.8×8. Id. at 1287. Unlike the modern Supreme Court, the Lewis court embraced an explicitly race-conscious framework. Even as the Supreme Court’s race discrimination jurisprudence continues to ignore the lived experiences of Black Americans, Lewis validated their understandings of reality and helped bolster perceptions of the courts as legitimate and fair forums.

In August 2015, the city of Birmingham, which has the state’s highest proportion of Black citizens and of people living in poverty,9×9. QuickFacts, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/montgomerycityalabama,mobilecityalabama,huntsvillecityalabama,tuscaloosacityalabama,birminghamcityalabama/PST045217 [https://perma.cc/A232-PVN9]. passed an ordinance raising the minimum wage from $7.25 to $10.10 per hour over the course of two years.10×10. Plaintiffs-Appellants’ Opening Brief at 5–6, Lewis, 896 F.3d 1282 (No. 17–11009). In response to Birmingham’s efforts, the majority-white state legislature — in a span of only sixteen days — introduced and enacted the Alabama Uniform Minimum Wage and Right-to-Work Act11×11. Act No. 2016-18, 2016 Ala. Laws 36. (the Minimum Wage Act), which preempted any municipal legislation regulating employee-employer relations, including the establishment of a local minimum wage.12×12. See id. at 38; see also Plaintiffs-Appellants’ Opening Brief, supra note 10, at 7–8. The Governor signed the bill into law on February 25, 2016, so that Birmingham minimum-wage workers received a raise for only one day.13×13. Plaintiffs-Appellants’ Opening Brief, supra note 10, at 7. On February 24, 2016, the Birmingham City Council had enacted a resolution making the $10.10 per hour minimum wage effective immediately, which was nullified the next day by the Minimum Wage Act. Id. at 5, 7–8.

In April 2016, the Alabama NAACP, Greater Birmingham Ministries, and Marnika Lewis and Antoin Adams, two Black Birmingham residents who made less than $10.10 per hour, sued the Alabama Governor and Attorney General in their official capacities.14×14. Complaint for Declaratory and Injunctive Relief at 4–7, Lewis v. Bentley, No. 16-cv-00690 (N.D. Ala. Feb. 1, 2017). In an amended complaint, the plaintiffs alleged violations of the Voting Rights Act15×15. 52 U.S.C. § 10301 (Supp. III 2015). (VRA), the Thirteenth and Fifteenth Amendments, and the Fourteenth Amendment’s Equal Protection Clause — including a claim of intentional discrimination and a political process doctrine claim.16×16. Amended Complaint, supra note 5, at 2–3, 47–48. The political process doctrine establishes an Equal Protection Clause violation when states restructure the political process to make it disproportionately difficult for minority groups to enact legislation to their benefit or protection. The doctrine was first articulated in Hunter v. Erickson, 393 U.S. 385 (1969), in which the Court struck down an ordinance that required approval by referendum for antidiscrimination housing ordinances but not for any other type of property-related ordinance. Id. at 389–91, 393; see also Thomas D. Kimball, Casenote, Schuette v. BAMN: The Short-Lived Return of the Ghost of Federalism Past, 61 Loy. L. Rev. 365, 373–75 (2015).

The defendants moved to dismiss, and the district court granted the motion.17×17. Lewis v. Bentley, No. 16-cv-00690, 2017 WL 432464, at *1, *13–14 (N.D. Ala. Feb. 1, 2017), aff’d in part, rev’d in part, and remanded sub nom. Lewis, 896 F.3d 1282. That court first held that the plaintiffs did not have standing to challenge the Minimum Wage Act.18×18. Id. at *3–6. The court held that, even if the plaintiffs had standing as to the Fifteenth Amendment and VRA claims, the law was not applicable to the plaintiffs’ alleged injuries and that, regardless, Congress did not abrogate state sovereign immunity through Section 2 of the VRA, so Alabama was immune from suit.19×19. Id. at *7–10. The court further found that the political process doctrine claim was inapplicable given that the statute lacked racial classifications and was facially neutral.20×20. Id. at *13. Finally, the district court dismissed the plaintiffs’ intentional discrimination claim under the Equal Protection Clause because the plaintiffs had not provided “the clearest proof” of invidious motive.21×21. Id. (quoting Smith v. Doe, 538 U.S. 84, 92 (2003)); see also id. at *12–13.

The Eleventh Circuit affirmed in part and reversed in part.22×22. Lewis, 896 F.3d at 1287. Writing for the panel, Judge Wilson23×23. Judge Wilson was joined by Eleventh Circuit Judge Jordan and District Judge Conway. agreed with the dismissal of the claims under the political process doctrine, Fifteenth Amendment, and VRA, but held that the plaintiffs had stated a valid claim of intentional racial discrimination under the Equal Protection Clause.24×24. Lewis, 896 F.3d at 1287. Before turning to the merits, the court addressed several jurisdictional issues. First, the panel concluded that both the organizations and the individual plaintiffs had standing, as they suffered concrete injury directly traceable to the law enforcement authority of the Alabama Attorney General.25×25. Id. at 1290–91. Second, the panel determined that Congress, pursuant to its power under the Fifteenth Amendment, did abrogate state sovereign immunity with Section 2 of the VRA.26×26. Id. at 1292–94.

The court affirmed the dismissal of the political process doctrine, Fifteenth Amendment, and VRA claims. The panel noted that the Supreme Court had seriously limited the political process doctrine,27×27. Id. at 1297 (citing Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291 (2014)). a subset of equal protection law, and that the facially neutral statute at issue here did not “explicitly address[] racial harms such as segregation,” as required by precedent.28×28. Id. at 1298 (citing Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 474 (1982)). As for the plaintiffs’ VRA and Fifteenth Amendment claims, the court stated that they “f[ell] short for the simple reason that their allegations have nothing to do with voting.”29×29. Id. Because the plaintiffs’ claims were unrelated to elections or the processes and procedures for voting, the court found the claims to be unrelated to the “essence” of the VRA.30×30. Id. (quoting Thornburg v. Gingles, 478 U.S. 30, 47 (1986)).

The court’s central holding, that the plaintiffs had stated a claim of intentional racial discrimination, was the result of a “sensitive inquiry” into the legislature’s motives under Village of Arlington Heights v. Metropolitan Housing Development Corp.31×31. 429 U.S. 252 (1977); see Lewis, 896 F.3d at 1294 (quoting Arlington Heights, 429 U.S. at 266). The Supreme Court’s decision in Arlington Heights provided a framework for evaluating allegations of intentional discrimination under the Equal Protection Clause, which included examples of the types of circumstantial evidence lower courts could consider in assessing these claims. This evidence included (1) the impact of the challenged action, (2) “[t]he specific sequence of events leading up to the challenged decision,” and (3) “the historical background.”32×32. Arlington Heights, 429 U.S. at 267; see also id. at 266–68; Lewis, 896 F.3d at 1294.

The Lewis court closely tracked the Arlington Heights framework. First, the court examined the impact of the Minimum Wage Act and found that the harm it caused by depriving Birmingham’s low-wage earners of a higher wage was borne disproportionately by Black workers.33×33. Lewis, 896 F.3d at 1294–95. The disproportionate effects on Black workers in Birmingham were particularly salient given the racial wage disparities in the city (where white wage workers earned $1.41 per hour more than Black wage workers) and the Minimum Wage Act’s enactment as a specific response to the Birmingham minimum wage increase.34×34. Id.

Second, the court relied on the “rushed, reactionary, and racially polarized nature of the legislative process” to find discriminatory intent.35×35. Id. at 1295. While the “Birmingham City Council, which represents more black citizens (and more black citizens living in poverty) than any other city in Alabama” is majority Black, the state legislators who voted in favor of the Minimum Wage Act were all white.36×36. Id. Moreover, the state legislator who introduced the Minimum Wage Act hails from a suburban district the court called “Alabama’s least diverse area.” Id. Not a single Black lawmaker voted in favor of the bill, which sailed through the legislature without a chance for public comment,37×37. The panel’s discussion of the speed at which the legislature enacted the bill also speaks to another factor identified in Arlington Heights as indicative of discriminatory intent — departure from decisionmaking norms. See Arlington Heights, 429 U.S. at 267. despite the fact that prior to Birmingham’s minimum wage ordinance, the state legislature had never expressed interest in regulating the minimum wage.38×38. Lewis, 896 F.3d at 1295. Alabama has no state minimum wage, so Alabama workers are entitled only to the federal minimum wage, currently $7.25 per hour. Consolidated Minimum Wage Table, U.S. Dep’t of Labor, https://www.dol.gov/whd/minwage/mw-consolidated.htm [https://perma.cc/3JD8-NLRG].

Third, the court found it plausible that the Minimum Wage Act was a modern iteration of “Alabama’s historical use of state power to deny local black majorities authority over economic decision-making.”39×39. Lewis, 896 F.3d at 1295. Noting the racist origins of the state’s constitution, the panel emphasized historical patterns of racial discrimination that “ha[ve] consistently impeded the efforts of [Alabama’s] black citizens to achieve social and economic equality.”40×40. Id.; see also Brief of Amici Curiae Historians Susan Ashmore et al. in Support of Appellants Seeking Reversal at 6, 20–22, Lewis, 896 F.3d 1282 (No. 17-11009). The court reiterated the relevance of this history to the equal protection inquiry and held that, with the events surrounding the decision and the disproportionate impact on Black Americans, the plaintiffs had stated a claim of intentional discrimination.41×41. Lewis, 896 F.3d at 1296–97.

Concluding its discussion of the intentional discrimination claim, the panel admonished the district court for requiring the “clearest proof” of intentional discrimination.42×42. Id. at 1296. The “clearest proof” standard had no basis in and was directly contrary to the Supreme Court’s equal protection doctrine.43×43. Id. The court opined that such a standard “turns a blind eye to the realities of modern discrimination,” where “racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends.”44×44. Id. at 1296–97 (footnotes omitted).

The Eleventh Circuit’s decision embraces reasoning that the Supreme Court has disfavored in modern race discrimination cases. While the Lewis court was able to infer an invidious motive from historical and statistical evidence, the Supreme Court has dismissed the probative value of such evidence. The Supreme Court’s and the Lewis court’s divergence in analyzing race discrimination claims stems from opposing understandings of contemporary American society — one post-racial, the other race-conscious. The Lewis court’s race-conscious approach is more consistent with and validates most Black Americans’ own understandings of race discrimination. This type of validation may bolster Black Americans’ perceptions of the courts as legitimate and fair forums, particularly when compared to the Supreme Court’s race discrimination jurisprudence, which continues to ignore their lived experiences.

The Lewis opinion’s reliance on historical and statistical evidence stands in stark contrast to the modern Supreme Court’s treatment of intentional race discrimination claims. The Lewis court closely tracked the framework established in Arlington Heights for evaluating circumstantial evidence of intentional discrimination. Though Arlington Heights has been thought of as a path for plaintiffs to demonstrate discriminatory intent without a “smoking gun,”45×45. See Veasey v. Abbott, 830 F.3d 216, 231 n.13 (5th Cir. 2016) (explaining that Arlington Heights does not require a “smoking gun” for a finding of intentional discrimination); see also Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). the Supreme Court has refused to draw the inferences necessary to find actual intentional discrimination from circumstantial evidence.46×46. Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 335 (1997); see also City of Memphis v. Greene, 451 U.S. 100, 128 (1981); City of Mobile v. Bolden, 446 U.S. 55, 74 (1980) (plurality opinion). While Arlington Heights technically remains good law, recent cases call into question whether an Arlington Heights argument will ever convince the Court of intentional discrimination.47×47. See Abbott v. Perez, 138 S. Ct. 2305, 2327 (2018); id. at 2346 (Sotomayor, J., dissenting) (criticizing the majority for ignoring the district court’s thorough Arlington Heights analysis); see also Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Abbott v. Perez, Race, and the Immodesty of the Roberts Court, Harv. L. Rev. Blog (July 31, 2018), https://blog.harvardlawreview.org/abbott-v-perez-race-and-the-immodesty-of-the-roberts-court/ [https://perma.cc/6QG6-QKWX]. The Court has similarly rejected race discrimination claims not specifically invoking Arlington Heights that rely on historical or statistical evidence. In McCleskey v. Kemp,48×48. 481 U.S. 279 (1987). the Court rejected the use of a statistical analysis that demonstrated racial bias in capital sentencing as evidence of impermissible discrimination.49×49. Id. at 293–97.

The Supreme Court’s treatment of race, including its refusal to recognize instances of anti-Black discrimination, reflects a colorblind or post-racial framework.50×50. See Sumi Cho, Post-Racialism, 94 Iowa L. Rev. 1589, 1616–21, 1645 (2009). This framework is characterized by a belief that pervasive racism is simply no longer characteristic of American society.51×51. See Sara Mayeux, Debating the Past’s Authority in Alabama, 70 Stan. L. Rev. 1645, 1649–50 (2018). Because the Court assumes that the United States has largely progressed beyond racism, it has had difficulty believing that racial animus still motivates individual and institutional decisionmaking. For example, in Shelby County v. Holder,52×52. 570 U.S. 529 (2013). the Court struck down the provision of the VRA that determined which states or localities would, under Section 5, need “to obtain federal permission before enacting any law related to voting.”53×53. Id. at 535 (citing Voting Rights Act of 1965, Pub. L. No. 89-110, § 4, 79 Stat. 437, 438–39). The Shelby County Court held that the VRA’s “substantial federalism costs”54×54. Id. at 540 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202 (2009)). were impermissible given that in the fifty years since the VRA’s passage “things ha[d] changed dramatically.”55×55. Id. at 547. Because literacy tests and “[b]latantly discriminatory” voting regulations were no longer widespread, the race discrimination that originally justified federal supervision of historically discriminatory areas was no longer present.56×56. Id. Thus, the infringement on state sovereignty was no longer constitutionally permitted.

Conversely, the Lewis court’s treatment of the discrimination claim reflects a race-conscious framework, which acknowledges the continued salience of race, particularly in imbalances of political and economic power. Compare the language in Shelby County with the evocative language on contemporary racism in Lewis: “Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends.”57×57. Lewis, 896 F.3d at 1296–97 (footnotes omitted). While explicitly acknowledging that “things” have indeed changed, the Lewis court recognized that racism remains pervasive, even if camouflaged. This particular understanding enabled the court to draw the inferences necessary to find a claim of intentional discrimination where the Supreme Court likely would not.

The Lewis court’s race-conscious approach better reflects the lived experiences of Black Americans. While white Americans “tend to believe that equal opportunity exists . . . regardless of race,”58×58. Darren Lenard Hutchinson, Preventing Balkanization or Facilitating Racial Domination: A Critique of the New Equal Protection, 22 Va. J. Soc. Pol’y & L. 1, 45–46 (2015). most Black Americans experience race-based disadvantage as a “substantial obstacle to their advancement.”59×59. Darren Lenard Hutchinson, Undignified: The Supreme Court, Racial Justice, and Dignity Claims, 69 Fla. L. Rev. 1, 46 (2017). This latter perception is supported not only by evidence of systemic racism and inequality,60×60. See, e.g., Lori Latrice Martin, Low-Wage Workers and the Myth of Post-Racialism, 16 Loy. J. Pub. Int. L. 405, 410–11, 418 (2015) (discussing the overrepresentation of Black workers among low-wage workers in connection with histories of racism and subordination); Vickie M. Mays et al., Race, Race-Based Discrimination, and Health Outcomes Among African Americans, 58 Ann. Rev. Psychol. 201, 204–05 (2007); Lincoln Quillian et al., Hiring Discrimination Against Black Americans Hasn’t Declined in 25 Years, Harv. Bus. Rev. (Oct. 11, 2017), https://hbr.org/2017/10/hiring-discrimination-against-black-americans-hasnt-declined-in-25-years [https://perma.cc/35P6-CMDC]. which the Supreme Court refuses to recognize as constitutionally relevant,61×61. See Olatunde C.A. Johnson, Disparity Rules, 107 Colum. L. Rev. 374, 375–76 (2007). but also by instances in which policymakers’ explicit bigotry is revealed.62×62. See, e.g., Civil Rights Div., U.S. Dep’t of Justice, Investigation of the Ferguson Police Department 70–75 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [https://perma.cc/8J3V-8L9Z] (reporting on racist emails within the Ferguson Police Department and finding that the city’s “law enforcement practices are directly shaped and perpetuated by racial bias,” id. at 70). By contrast, the Supreme Court’s post-racial approach allows these modern manifestations of racial subordination to go on unfettered by ignoring the ways that racism has evolved.63×63. See Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 Stan. L. Rev. 1, 43–46 (1991) (arguing that ignoring that racism is “complex and systemic . . . helps maintain white privilege by limiting discussion or consideration of racial subordination,” id. at 46); see also Selmi, supra note 46, at 284–85. As the Supreme Court ignores the continued salience of race, Lewis diverges, affirming what many Americans already know — racial animus persists in state institutions and continues to inhibit social and economic equality for Black Americans.64×64. See Hutchinson, supra note 58, at 46; see also Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1377–79 (1988).

Because the race-conscious approach better reflects most Black Americans’ understandings of reality, it may play a part in bolstering judicial legitimacy — defined here as community perception of the courts as fair and judicial decisions as worthy of consent.65×65. This definition reflects concepts of moral and sociological judicial legitimacy as described in Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1828–36 (2005). Professor Dan Kahan and others draw a connection between the law’s tendency to “take ordinary citizens’ understandings of reality into account”66×66. Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837, 883 (2009). and legitimacy, which includes the law’s “power to command voluntary compliance” and the degree to which the law is “morally worthy of assent.”67×67. Id. at 884 (emphasis omitted). Courts’ ability to reflect community understandings of reality may support perceptions of procedural fairness and legitimacy not just among litigants themselves but also among the wider community.68×68. See Rebecca Hollander-Blumoff, The Psychology of Procedural Justice in the Federal Courts, 63 Hastings L.J. 127, 143–45 (2011). The Lewis court’s reflection of Black Americans’ lived experiences may contribute, then, to bolstering the legitimacy of the courts among Black Americans, particularly as their realities are ignored or rejected by the Supreme Court’s post-racial jurisprudence.69×69. Legitimacy’s normative value may appear obvious for several reasons: perceptions of legal institutions as fair may encourage people to abide by the law, see President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 9–10 (2015), and legitimacy is likely essential to the success of the judiciary as an institution, see Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 Ann. Rev. Psychol. 375, 377–78 (2006). However, judicial legitimacy may be an undesirable goal if it protects an immoral status quo. Cf. Peter Gabel & Duncan Kennedy, Roll Over Beethoven, 36 Stan. L. Rev. 1, 26 (1984) (arguing that the notion of rights is a “passivizing illusion”). From that perspective, sporadic decisions, like Lewis, affirming the experiences of Black citizens might distract from a more fundamental restructuring of the legal system. Cf. Crenshaw, supra note 64, at 1349 (arguing that the “limited gains” of the 1960s civil rights reforms may have “hamper[ed] efforts of African-Americans to name their reality and to remain capable of engaging in collective action in the future”). This tension is one that judges, litigants, and advocates must consider in their decisionmaking on individual cases.

Lewis’s candid discussion of racism’s contemporary manifestations highlights the growing gap between the Court’s post-racial approach and Black Americans’ lived experiences. Admittedly, Lewis is only one case. Its legitimizing effects and rhetorical power can have only a correspondingly narrow impact. However, if lower courts are concerned about the Supreme Court’s failure to reflect Black Americans’ understandings of reality, they can and should look to Lewis for instruction.