The concept of the topic of debunking the myth of a post-racial society began in Fall 2009 as part of a discussion among members of the Civil Rights Committee of the Section of Individual Rights and Responsibilities, of which I am a co-chair. What inspired the conversation was the pronouncement by the media and political commentators that the election of President Barack Obama was evidence of a post-racial society. This premise is contradicted by evidence that people of color continue to be at the bottom of the socioeconomic ladder and by the prevalence of racial issues in the headlines. Consequently, the committee decided to organize a panel discussion during their Annual Meeting where panelists would discuss current civil rights issues in criminal justice, education, and employment.
Right on cue, last summer on the eve of what became one of several debunking the myth of the post-racial society panels, the Obama administration forced Shirley Sherrod, an African-American woman, to resign as the Georgia State Director of Rural Development for the U.S. Department of Agriculture because of a misleading tape of a speech she had given before an NAACP chapter. While this incident was widely covered by numerous news agencies, there were other stories during the same summer that went unnoticed about people of color who lost their livelihoods, their homes, and, in some instances, their freedom as a result of institutional discriminatory practices. Since the Annual Meeting, there have been repeated reminders that we do not live in a post-racial society, which have served as the basis for panel discussions in Memphis, Tennessee, and Atlanta, Georgia.
Just as I was beginning to write this article, I had another stark reminder of the way institutionalized discriminatory practices can change the course of an African-American’s life and how justice is denied. Recently, I was at the U.S. Supreme Court to hear the argument in a case. The courtroom was packed with attorneys, journalists, interested parties, and tourists. As is its practice, members of the Court read aloud the majority opinions in cases rendered that particular day. Justice Clarence Thomas, known for his reticence on the Court, in a booming voice read the second of two opinions rendered that day. The case Connick v. Thompson was a section 1983 case involving a man who had been imprisoned for eighteen years, fourteen of which were on death row, for a crime he did not commit. The Court in a 5–4 majority opinion held that Thompson had failed to meet the “deliberate indifference” standard to establish his claim that the white Orleans Parish prosecutor Harry Connick had violated his Fourteenth Amendment right to due process when Connick failed to train prosecutors in his office on the requirements of Brady v. Maryland, directing prosecutors to produce exculpatory information to the defense. Justice Thomas made few references to the underlying facts, and at no point did he mention Thompson’s race, which I strongly suspected was African American, but he made special note more than once that there was no evidence of a pattern of failure to train. The end result was that, by a 5–4 majority, the highest court in the land had snatched away a $14 million jury verdict in favor of Thompson, affirmed by the Fifth Circuit Court of Appeals.
Only during Justice Ginsburg’s dissent did those of us in the courtroom get a real sense of the full story of what had happened to Thompson that led him to pursue a section 1983 claim. Justice Ginsburg explained that after Thompson was in prison for fourteen years for robbery and murder convictions, an investigator in a desperate attempt to stop Thompson’s execution discovered exculpatory blood evidence related to the robbery that the prosecutor on the case had failed to produce, as required by Brady v. Maryland. She also revealed that in a police report, an eyewitness had described the person who had committed the murder of which Thompson had been wrongly convicted was 6 feet tall with close-cut hair; Thompson was 5 feet, 8 inches tall with an Afro. She further described how the prosecutor’s office withheld both the exculpatory blood evidence and the police report that would have proven that Thompson was not guilty of robbery or murder.
As I listened, I recognized that Justices Ginsburg and Thomas told very different versions of the facts in their opinions. However, in both opinions, the fact that Thompson is African American was either not mentioned or mentioned only through a reference to his hairstyle. However, there had been no doubt in my mind that Thompson was African American before Justice Ginsburg read her dissent because he was incarcerated in the South and on death row.
My presumption was based on well-established facts. It is well documented that a disproportionate number of those housed in correctional facilities are people of color. As the NAACP recently reported, although African Americans and Latinos are one-third of the population, 58 percent of all prisoners are members of these two groups. Moreover, the disproportionate number of people of color in the prison system is not a coincidence. Instead, as others have shown, it is the direct result of a carefully orchestrated “War on Drugs” that has resulted in a criminal justice system that incarcerates black and brown people for drug offenses that whites often are permitted to address through drug treatment and rehabilitation efforts.
The U.S. Supreme Court’s omission of Thompson’s race seems to reflect a discomfort with including the fact that Thompson, an African American, was denied his freedom for eighteen years while the white prosecutor, who undisputedly withheld exculpatory evidence, got off scot free. Thompson is yet another example of the fact that we do not live in a post-racial society and how our society has decided that the best way to deal with thorny issues, such as the mass incarceration of people of color, is to simply not mention their race when discussing issues related to inmates in prisons across the country.
Unfortunately, the mass incarceration of people of color imprisoned in state and federal prisons is not the only way American society has denied racial and ethnic minorities’ rights based on the idea of a post-racial society where race is not an issue, and color blindness is the norm. Despite the election of Barack Obama, people of color continue to lag behind whites in education, housing, and employment. Recent census data reflect that over 25 percent of African Americans and Hispanics live in poverty while 9.4 percent of non-Hispanic whites live in poverty. Whites also earn a median income of $51,861 while African Americans and Hispanics earn a median income of $32,584 and $38,039, respectively. In addition, the high school dropout rates for African Americans and Hispanics are higher than the rate for whites.
Not surprisingly, the unemployment rate of 15.5 percent for African Americans is almost two times the rate for whites. For those who are able to find work, employment discrimination can be a problem. However, as a plaintiff’s employment attorney, I have watched as the number of attorneys willing to represent clients with race claims drop significantly because of the perception that judges and juries will not find race discrimination in a legal climate where many courts require more and more evidence to support a finding of discrimination. The most egregious example of this is the Eleventh Circuit Court of Appeals decision in Ash v. Tyson Food, which held in two separate instances that use of the term “boy” to refer to grown African-American men was not sufficient evidence to support a jury award of over $1 million for race discrimination, despite the well-documented history of the use of the term to demean and humiliate. The Eleventh Circuit ruled the same way a second time, despite the U.S. Supreme Court’s specific holding that in some instances the use of the term “boy” may be sufficient to establish discriminatory animus in a Title VII case. The case is now pending before the Eleventh Circuit while the court determines whether to grant an en banc hearing.
These statistics and legal outcomes paint a picture of a society in which race and ethnicity still matter, despite the fact that an African-American president sits in the White House. They also illustrate attitudes of denial and “so-called” color blindness that lead to the false conclusion that it is mere coincidence that people of color continue disproportionately to be excluded from many of the rights and privileges of society that whites often take for granted.
At the same time, it is important to recognize that there have been gains for people of color in the last five decades. People of color now vote in greater numbers as a result of voting rights gains. There are people of color, including the president of the United States, who now fill political, economic, and legal positions of power. However, these gains cannot overshadow the fact that much still needs to be done to improve large segments of communities of color in the country. For this reason, it is important that efforts to continue the gains made are persistent, organized, and focused to ensure that in this current decade those who have been locked out and ignored may enjoy the rights and privileges of a free, just, and fair society.