Academic journal article Harvard Law Review

Equal Protection - Race Discrimination - Eleventh Circuit Reverses Dismissal of Discrimination Claim Relying on Historical and Statistical Evidence

Academic journal article Harvard Law Review

Equal Protection - Race Discrimination - Eleventh Circuit Reverses Dismissal of Discrimination Claim Relying on Historical and Statistical Evidence

Article excerpt


In 1901, Alabama adopted a state constitution--still in effect today --the express purpose of which was the reification of white supremacy. (1) To achieve this end, the state constitution disenfranchised Alabama's Black population and restricted democratic self-governance at the local level. (2) 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) 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) 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) Shortly thereafter, the Alabama state government enacted legislation preempting all municipal minimum wage regulation. (6) Recently, in Lewis v. Governor of Alabama, (7) 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) 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) passed an ordinance raising the minimum wage from $7.25 to $10.10 per hour over the course of two years. (10) 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 Act (11) (the Minimum Wage Act), which preempted any municipal legislation regulating employee-employer relations, including the establishment of a local minimum wage. (12) 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)

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) In an amended complaint, the plaintiffs alleged violations of the Voting Rights Act (15) (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)

The defendants moved to dismiss, and the district court granted the motion. (17) That court first held that the plaintiffs did not have standing to challenge the Minimum Wage Act. (18) 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) The court further found that the political process doctrine claim was inapplicable given that the statute lacked racial classifications and was facially neutral. (20) 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. …

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