Achieving justice for racial discrimination has long been fraught with obstacles. During the civil rights era, it was southern governors and school boards who blatantly obstructed court orders to desegregate schools. In more recent years, the burdens have been erected not by southern politicians, but by the courts themselves. The Supreme Court has made it virtually impossible to prove racial discrimination short of compelling evidence that specific individuals were intentionally targeted because of their race. Proof that government policies or practices have widespread discriminatory effects on African-Americans is not enough.
On that rationale, the Supreme Court in 1984 upheld Georgia’s execution of a black man for killing a white victim, despite evidence that in Georgia, even after controlling for thirty-nine other possible variables that might explain the difference, defendants who killed whites were 4.3 times more likely to get the death penalty than those who killed blacks. And by striking down a core part of the Voting Rights Act last term, the Supreme Court has decided that states and localities that had discriminatory voting practices in the past no longer need to have changes to their voting laws vetted to ensure that they don’t continue to discriminate.
Now, a decision by the US Court of Appeals for the Second Circuit suggests that there is no limit to the obstacles courts can raise to claims of racial discrimination. Not only did the Court of Appeals temporarily stay any remedies arising from a landmark lower court decision finding that the New York City Police Department had engaged in intentional discrimination in its “stop-and-frisk” program; it also took the extraordinary step of removing the lower court judge from the case.
The Second Circuit decision came in connection with a preliminary motion in an appeal of Floyd v. City of New York, a class-action lawsuit challenging the New York Police Department’s “stop-and-frisk” policy. (Full disclosure: the case was litigated by the Center for Constitutional Rights, where I began my legal career three decades ago and have been a board member.) In August, US District Court Judge Shira Scheindlin issued a 198-page decision in the case, finding that the NYPD intentionally stopped and frisked blacks and Latinos at much higher rates than whites, and had stopped and frisked thousands of city residents without the constitutionally required basis for doing so—“reasonable suspicion” that they were engaged in some criminal conduct. In 2011 alone, the NYPD stopped more than 680,000 people, 84 percent of whom were black or Latino, and only 9 percent of whom were white. From 2004 through 2012, police found drugs or guns in less than 2 percent of all stops.
The city appealed, and sought a stay of any remedial measures pending the outcome of the appeal. On October 29, the court of appeals heard arguments on that motion, and on October 31 granted it. This in itself is not a wholly …