Civil Rights in Living Color

2020 Civil Rights in Living Color Vinay Harpalani Follow this and additional works at: https://digitalrepository.unm.edu/law_facultyscholarship Part of the American Studies Commons, Civil Rights and Discrimination Commons, Fourteenth Amendment Commons, Human Rights Law Commons, Law and Race Commons, Law and Society Commons, and the Race, Ethnicity and Post-Colonial Studies Commons CIVIL RIGHTS LAW IN LIVING COLOR VINAY HARPALANI∗ ABSTRACT This Article will examine how American civil rights law has treated “color” discrimination and differentiated it from “race” discrimination. It is a comprehensive analysis of the changing legal meaning of “color” discrimination throughout American his- tory. The Article will cover views of “color” in the antebellum era, Reconstruction laws, early equal protection cases, the U.S. Cen- sus, modern civil rights statutes, and in People v. Bridgeforth—a landmark 2016 ruling by the New York Court of Appeals. First, the Article will lay out the complex relationship between race and color and discuss the phenomenon of colorism—oppression based © 2020 Vinay Harpalani ∗ Associate Professor of Law, University of New Mexico School of Law; J.D. (2009), New York University (NYU) School of Law; Ph.D. (2005), University of Pennsylvania. The title of this Article derives from the Fox sketch comedy television series, In Living Color, which aired from 1990 to 1994 and often dealt with controversial racial issues in a light-hearted manner. Many people helped me with the Article in various ways. Tammy E. Linn, attorney for Joseph Bridgeforth during his appeal to the New York Court of Appeals, was responsible for my involvement in People v Bridgeforth. After reading one of my law review articles, Ms. Linn contacted me for advice on scholarly sources to cite in her brief. I sent her several references, and I called my mentor, Professor Robert Chang, Executive Director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law. Assisted by Akin Gump, LLC, the Korematsu Center filed an amicus brief in support of Joseph Bridgeforth. I was Of Counsel for this amicus brief, and my work on the Bridgeforth case motivated me to write this Article. Attendees at the 2017 Equality Law Scholars Forum and the 2018 Northeast People of Color Legal Scholarship Conference provided valuable feedback on early drafts, particularly Professors Angela Onwuachi-Willig, Trina Jones, and An- thony Farley. I presented later drafts at the 2019 Loyola (Chicago) Constitutional Law Colloquium and the UNLV William S. Boyd School of Law Faculty Enrichment Lecture, receiving valuable feedback from attendees there. Professors Taunya Lovell Banks, Katie Eyer, Stacy Hawkins, Mark Kende, Miguel Schor, Andrew Jurs, Anthony Gaughan, and Joseph Schremmer, along with Judge Mark Bennett, also had insightful suggestions as I revised it. I thank the faculties of Savannah Law School, Drake University Law School, and the University of New Mexico School of Law, along with the Drake Constitutional Law Center, for providing the intellectual space to develop the Arti- cle. Additionally, Tianna Bias and Destinee Andrews provided helpful research support. Sarah Zeigler, Evening Coordinator at Savannah Law School’s library, worked diligently to track down sources for me, as did Heather Campbell, Public Services Associate at the Drake University Law Library. The Editors of the Maryland Law Review, particularly Gina Bohannon and Mary Scott, did a nice job getting this Article ready for publication. Others who helped in various ways include Professors Michael Higginbotham, Kimberly Norwood, and Shakira Pleasant, along with Cherese Handy. Finally, this Article is dedicated to the memory of Savannah Law School’s Associate Dean, Keith Harrison, who passed away in August 2018. Keith was very supportive of my academic career, and he believed firmly in the ideals of social justice espoused in this Article. 881 882 MARYLAND LAW REVIEW [VOL. 79:881 on skin color—as differentiated from racism. It then will analyze “color” in Reconstruction Era anti-discrimination laws, examin- ing how both “race” and “color” came to be included in these laws. It will illustrate that under early equal protection cases, pro- hibitions on “race” and “color” discrimination both aimed to curb racism. “Race” and “color” were equally important, but under the Fourteenth Amendment, “color” discrimination never devel- oped any meaning independent of “race” discrimination. The Ar- ticle will show how “color” began disappearing from equal protection jurisprudence, just as civil rights efforts to address race discrimination became successful. It will then discuss how “color” reemerged in cases involving modern civil rights statutes and how these cases define “color” discrimination differently, fo- cusing on colorism rather than racism. Additionally, color discrimination claims under these statutes have only applied to an in- dividual member of one racial subclass, such as a dark-skinned Black plaintiff. However, in Bridgeforth, the Court of Appeals rec- ognized a multiracial color class, composed of a group of dark- skinned individuals of different races, for equal protection-based Batson challenges to juror exclusion. Bridgeforth was the first case to allow Batson challenges for color discrimination, and the first color discrimination case under any law to recognize a multiracial color class. This Article will consider the potential of multiracial color classes for the future of civil rights law. INTRODUCTION ...................................................................................... 883 I. PROBLEM OF THE “COLOR” LINE ...................................................... 887 A. “Color” as Race .................................................................... 887 B. “Color” as Skin Color ........................................................... 890 C. Racism or Colorism? ............................................................ 897 II. COLOR OF LAW ................................................................................ 898 A. Constructing Color ............................................................... 898 B. Reconstructing Color ............................................................ 900 C. Why Both “Race” and “Color”? ........................................... 906 III. COLOR-CONSCIOUS ........................................................................ 908 A. Nineteenth-Century Jury Service Cases ............................... 909 B. Plessy v. Ferguson (1896) .................................................... 912 C. Early Twentieth-Century Cases ............................................ 914 D. Racing Color ........................................................................ 914 IV. “COLORBLIND” ............................................................................... 916 A. Pre-Brown Cases .................................................................. 917 B. Brown v. Board of Education I ............................................. 918 C. Post-Brown Cases ................................................................. 920 2020] CIVIL RIGHTS LAW IN LIVING COLOR 883 D. Modern Jury Service Cases .................................................. 921 E. “E-racing” Color ................................................................... 922 V. “COLORABLE” CLAIMS .................................................................... 924 A. Defining Modern Color Discrimination ............................... 924 B. Modern Color Discrimination Claims .................................. 926 C. Separate but Not Equal ......................................................... 931 VI. BRIDGING THE COLOR LINE ........................................................... 931 A. New York’s Equal Protection Clause and Civil Rights Law Section 13 ........................................................................... 931 B. Factual Background to People v. Bridgeforth ...................... 932 C. Recognition of a Multiracial Color Class ............................. 933 D. New York Court of Appeals Opinion ................................... 937 VII. GIVING “COLOR” TO CIVIL RIGHTS LAW ..................................... 938 A. America’s Changing Color Line .......................................... 939 B. “Darker than a Latte” ............................................................ 941 C. Measuring the Color Line ..................................................... 943 D. Erasing the Color Line ......................................................... 947 VIII. CONCLUSION................................................................................ 951 INTRODUCTION In December 2016, the New York Court of Appeals issued a landmark civil rights ruling. With its decision in People v. Bridgeforth,1 the Court of Appeals held that skin color discrimination is cognizable for Batson v. Ken- tucky2 challenges to juror exclusion.3 Batson challenges derive from the 1. 69 N.E.3d 611 (N.Y. 2016). 2. 476 U.S. 79 (1986). 3. See id. at 96 (laying out three-step framework to address race discrimination in jury selec- tion). Under Batson, if a peremptory challenge by the government is at issue, defendant must make a prima facie case by: (1) establishing that defendant is a member of a cognizable racial group (or other protected group); (2) showing that the government’s peremptory challenges excluded mem- bers of this cognizable group; and (3) putting forth facts to show that the government’s peremptory challenges were

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