Broussard, Patricia A

English

Florida Agricultural & Mechanical University College of Law

Florida A&M University College of LawScholarly Commons @ FAMU LawJournal Publications Faculty WorksFall 2011Reaction to: Wealth, Poverty, and the EqualProtection ClausePatricia A. BroussardFlorida A & M University College of Law, patricia.broussard@famu.eduFollow this and additional works at: http://commons.law.famu.edu/faculty-researchPart of the African American Studies Commons, Constitutional Law Commons, FourteenthAmendment Commons, Law and Race Commons, and the Law and Society CommonsThis Response or Comment is brought to you for free and open access by the Faculty Works at Scholarly Commons @ FAMU Law. It has beenaccepted for inclusion in Journal Publications by an authorized administrator of Scholarly Commons @ FAMU Law. For more information, pleasecontact linda.barrette@famu.edu.Recommended CitationPatricia A. Broussard, Reaction to: Wealth, Poverty, and the Equal Protection Clause, 3 Geo. J. L. & Mod. Critical Race Persp. 199(2011)Reaction to: Wealth, Poverty, and the EqualProtection ClausePATRICIA A. BROUSSARD*In his Article titled, The Fourteenth Amendment Isn't "Broke 7- Why Wealth ShouldBe a Suspect Classification under the Equal Protection Clause, Shayan H. Modarresstrikes at the heart of the myth of a so-called "post-racial"' America by effectivelyarguing that poverty has become a proxy for race; thereby creating a de facto eco-nomic racism that enjoys none of the protections of the Fourteenth Amendment,which have been traditionally bestowed upon recognized suspect classifications. Heconcludes that the country is neither "post-racial" nor adequately addressing the dualsociety that has emerged as a result of the Court's failure to recognize the conver-gence of race and poverty. Rather, America has devolved into a caste system of sortsbased on wealth with African Americans, once again, at the bottom of society.He further asserts that although America has made attempts to remedy its darkhistory of racial immorality and inequality, there continues to be a major failure torecognize and remedy the wrongs that have resulted from the fact that economicstatus has supplanted the racial scheme which existed for centuries. This is especiallysignificant if one accepts the idea that both poverty and wealth are intergenerationaland a permanent underclass has been created which offers few opportunities forupward mobility.2Moreover, Modarres effectively articulates the historical context of suspect classifi-cations and the factors formulated by the Court to determine the level of judicialreview. Clearly, the poor are and have been a discrete and insular class of the kindJustice Stone spoke of in Carolene Products.3 Surely the poor have met the "require-ments"4 of being devoid of political power,5 and historically discriminatedagainst.'Therefore, these two factors cannot be utilized by the Court as the rationalefor denying a higher level of scrutiny.Rather, it appears that with respect to poverty, the Court has placed much morereliance upon the immutability factor than the other factors mentioned above. The* Professor Patricia A. Broussard is an Associate Professor at Florida A & M University College of Law inOrlando, Florida. She teaches Constitutional Law, The First Amendment, Women and the Law, and Appel-late Advocacy. She writes in the area of Equal Justice for Women. © 2012, Patricia A. Broussard.1. Michael Selmi, Understanding Discrimination in a "Post-Racial" World, 32 CARDozO L. REV. 833 n. 1(2010-2011).2. Richard Delgado, TheMyth of Upward Mobility, 68 U. Pitt L. REV. 879,879-80 (2006-2007).3. United States v. Carolene Products, 304 U.S. 144, 153 (1938).4. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1972) (describing common traits of thosewho could be considered a discrete and insular class). Those traits are what the author has deemed "require-ments."5. Id. (noting that notwithstanding the election of the first African American president, courts haveregularly acknowledged that African Americans have been disenfranchised from the political system thus,fulfilling one of the traits exhibited by a group which will allow strict scrutiny).6. Id. (noting the other trait/requirement articulated in Rodriquez for determining when strict scrutinyshall be applied).GEO. J. L. & MOD. CRIT. RACE PERSP.Court reasons that those classes of persons who have a trait that they cannot changeare given the highest level of judicial protection, and because one can change hiseconomic status, there is no suspect classification and, therefore, no heightenedscrutiny. No doubt, society's reliance on the belief that one can rise above hereconomic circumstances influences the Court's reluctance to entertain the idea thatpoverty is indeed a suspect classification; there is, of course, Oprah.7 However, thisblind eye to the immutability of poverty flies in the face of every government statisticproduced by government agencies. 8Moreover, the failure of the Court to recognize that one of the manifestations ofracial equality is economic equality results in so-called race-neutral legislation that isboth discriminatory in its impact and intent, but without any Constitutional protec-tion. One only need examine recently enacted voting requirement laws that have aneconomic component'and disproportionately impact African Americans to under-stand what happens when the Court fails to act to protect those who have beenrelegated to the bottom of the racial and economic heap.Poverty has become synonymous with race, and it has been demonized in recentyears. The idea that you are poor because you either caused it or deserved it has takena foothold in mainstream America. Likewise, poverty, coupled with a history of racialdiscrimination, has created a class of Americans who continue to be disenfranchisedand disadvantaged based upon both of those "traits."' 0 Consequently, because of theconvergence of race and poverty, the end result is that African Americans have alsobeen demonized as a race. Clearly, this is suspect.The issues raised in this article are both provocative and debatable, but Modarreshas opened up a space in the discourse to think beyond the currently acceptedstandards for strict scrutiny and suspect classifications. What is really at issue isdetermining what kind of society America wants to be with respect to racial equality.In making that determination, both Congress and the Court have to decide that raceand poverty have intersected, and the paradigm that has served the judiciary in thepast must be rethought and reformulated if true racial and economic equality are everto be realized.7. Oprah Winfrey is an extremely wealthy African American woman who is often used as the exampleof how in America one can go from rag to riches. However, she is really an "Outlier," a term coined byMalcolm Gladwell to describe those who are exceptions to the rule and outside of the norm.8. Robin J. Anderson, Dynamics of Economic Well-Being: Poverty, 2004-2006, U.S. Census Bureau(Mar. 2011), http://www.census.gov/hhes/www/poverty/publications/dynamics0 4 /P70-123.pdf.9. ACLU, 2011:Voting Rights Under Attack in State Legislatures, http://www.aclu.org/maps/201 1-voting-rights-under-attack-state-legislatures (last visited Nov. 2, 2011).10. It is the author's opinion that because of the intergenerational nature of poverty, it should be consid-ered a "trait" by the Court.[Vol. 3:199200

Reaction to: Wealth, Poverty, and the Equal Protection Clause

bepress Legal Repository

https://commons.law.famu.edu/cgi/viewcontent.cgi?article=1158&amp;context=faculty-research

Reaction to: Wealth, Poverty, and the Equal Protection Clause

Abstract

Similar works

Full text

Available Versions

Florida Agricultural & Mechanical University College of Law

bepress Legal Repository