William M. Carter, Jr
Abstracted from: William M. Carter, Jr., The Thirteenth Amendment, Interest Convergence, and the Badges and Incidents of Slavery, 71 Maryland Law Review 21, 23-35, 39 (2011) (89 Footnotes Omitted).
Interest convergence theory reflects the legal realist perspective animating much of Critical Race Theory. Stated succinctly, interest convergence theory posits that substantive legal gains for racial minorities seldom occur unless they converge or are perceived as converging with the interests of white elites. Professor Derrick Bell's formulation represents interest convergence theory in its strongest form:
The interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites. However, the fourteenth amendment, standing alone, will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle and upper class whites.
Interest convergence theory therefore rejects the notions of classical legal theory that idealism, abstract legal doctrine, or the deployment of novel legal strategies will bring about significant advances in civil rights. While all of these may play a role, interest convergence theory holds that it is the actual or perceived alignment of the interests of the elite with those of the subordinated that is outcome determinative in achieving substantive justice.
Interest convergence theory has been controversial. What has made it particularly controversial is the claim made by Professor Bell, and furthered by Professor Mary Dudziak, that Brown v. Board of Education provides an example of interest convergence in action. The traditional narrative of Brown explains that equality and fairness finally triumphed in both law and public opinion over the forces of intolerance, leading to the Court's holding that “separate but equal” was inherently unconstitutional. Both Bell and Dudziak argued, however, that global and national political considerations provide a more compelling explanation for the decision in Brown. After all, as Professor Richard Delgado noted in advancing the interest convergence thesis, “‘[t]he NAACP had been litigating school desegregation cases for decades, losing each time, or winning, at best, very narrow victories. Then, in 1954, the skies opened. The Supreme Court of the United States held, for the first time in a school desegregation case, that separate is never equal.”’ Bell contended that the Brown decision came about because dismantling de jure segregation at that time was consistent with the interest of white elites. He asserted that the ideological struggle against communism and the potential for unrest among black servicemen returning from war counseled in favor of eliminating the glaring message of racial inequality sent by de jure segregation. Dudziak expanded this thesis by uncovering historical documents showing that the United States government's intervention on the side of the plaintiffs in Brown was largely driven by geopolitical concerns:
[T]he international focus on U.S. racial problems [in the years following World War II] meant that the image of American democracy was tarnished. The apparent contradictions between American political ideology and practice led to particular foreign policy difficulties with countries in Asia, Africa and Latin America. U.S. government officials realized that their ability to sell democracy to the Third World was seriously hampered by continuing racial injustice at home.
Under this view, American apartheid ended only when it no longer served the material interests of white elites.
Because interest convergence theory is controversial, important nuances are often overlooked. Accordingly, three points will help to clarify interest convergence theory. First, interest convergence theory does not contend that individual whites perform a conscious calculus of whether certain advances in racial justice will work in their material self-interest. Rather, interest convergence theory suggests that whites are likely to react adversely to civil rights measures that they perceive as solely benefiting racial minorities. Second, as to judges, interest convergence theory is not merely a variation on the theme that “all law is politics.” Rather, given the narrow segment of the mostly white elite from which federal judges (and especially Supreme Court Justices) are drawn, interest convergence theory suggests their worldview and life experience will generally be such that remedies perceived as benefiting only people of color are unlikely to find their favor. Third, interest convergence theory acknowledges that altruism can motivate some persons who have nothing directly at stake in a given controversy to nonetheless demand justice on behalf of others. As Professor Bell recognized, “there were whites for whom recognition of the racial equality principle was sufficient motivation [to work toward both school desegregation and the abolition of slavery]. But [in both situations], the number who would act on morality alone was insufficient to bring about the desired racial reform.”
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Thirteenth Amendment jurisprudence can be analyzed through the prism of interest convergence. Doing so requires unpacking the various strains of Thirteenth Amendment doctrine because the appli cability of interest convergence theory may be more or less persuasive depending on the context.
The most successful aspect of modern Thirteenth Amendment jurisprudence has been its extension to contemporary instances of coercion, such as human trafficking, involuntary confinement, and forced labor. The operation of interest convergence theory in such cases is fairly straightforward. Prohibiting such practices aligns with the interests of white elites because any person of any race, given sufficient coercion, can (at least conceptually) be compelled to labor or confined against her will.
The Thirteenth Amendment's history demonstrates that, in addition to abolishing chattel slavery and compelled labor, the Reconstruction Amendments' framers intended to eliminate the lingering vestiges of the slave system. However, there have been very few cases where courts have accepted the badges and incidents of slavery theory of the Thirteenth Amendment. The few cases that have done so can be viewed as instances of interest convergence.
The United States Court of Appeals for the Second Circuit's opinion in United States v. Nelson provides a recent illustration of interest convergence with regard to the badges and incidents of slavery. Nelson arose out of the Crown Heights riots in New York City. According to the trial testimony, a car driven by a Jewish person struck two African-American children, one of whom died from his injuries. After the accident, an angry crowd soon formed. One of the defendants made a speech urging the crowd to, among other things, “get the Jews.” Members of the crowd subsequently spotted and targeted Yankel Rosenbaum, a Jewish man wearing orthodox Jewish clothing, and some shouted “get the Jew, kill the Jew.” Defendant Nelson stabbed Rosenbaum, who eventually died of his injuries.
The two defendants were convicted for violating 18 U.S.C. § 245(b)(2)(B), which makes it a federal crime to interfere with a person's enjoyment of public facilities on account of his race, color, religion, or national origin. On appeal, the defendants argued that the statute exceeded Congress's power to enforce the Thirteenth Amendment insofar as it prohibited religious, rather than racial, hate crimes.
The Nelson court noted that the Thirteenth Amendment's prohibition of slavery and involuntary servitude is race-neutral and has been so interpreted by the Supreme Court. As the court acknowledged, however, Jews are not thought to be a racial group in contemporary society. Accordingly, even if the Thirteenth Amendment protects all racial groups, the court had to determine whether the Thirteenth Amendment protects non-racial classes.
The court reasoned that “race” is a “term of art” that is not necessarily limited to its contemporary meaning. Thus, the court held the fact that Jews are not currently considered to be a distinct race “does not rule out Jews from the shelter of the Thirteenth Amendment.” Indeed, as the Nelson court recognized, Supreme Court cases analyzing 42 U.S.C. §§ 1981 and 1982, statutes which are based on the Thirteenth Amendment, clearly hold that these statutes apply to Jewish persons. Second, the court stated that Jews were in fact considered to be a distinct race at the time of the Amendment's ratification. Ac cordingly, the court believed that the attack could be considered to have been motivated by the victim's “race” as that term would have been understood at the time the Amendment was adopted. Finally, the Nelson court held that such hate crimes were badges and incidents of slavery, reasoning that “acts of violence or force committed against members of a hated class of people with the intent to exact retribution for and create dissuasion against their use of public facilities have a long and intimate historical association with slavery and its cognate institutions.”
Nelson can be seen as a case of interest convergence. The Nelson court itself alluded to this issue, noting with some apparent discomfort that it was “employ[ing] a constitutional provision enacted with the emancipation of black slaves in mind to uphold a criminal law as applied against black men who, the jury found, acted with racial motivations, but in circumstances in which they were, at least partly, responding to perceived discrimination against them.” To be clear, I believe that Nelson was correctly decided and the attack at issue indeed imposed a badge or incident of slavery within the scope of Congress's enforcement power. I therefore do not, by suggesting that interest convergence theory may help explain Nelson, intend to imply that the result in Nelson was wrong. However, it seems plausible that the successful use of Thirteenth Amendment reasoning in Nelson was influenced by the fact that the court and Congress saw an instance where the Thirteenth Amendment would be as applicable to whites as to African-Americans in protecting them from racial violence.
Jones v. Alfred H. Mayer Co. can also be analyzed through the prism of interest convergence. In Jones, an interracial couple alleged that the defendant's refusal to sell property to them because the husband was African-American violated 42 U.S.C. § 1982, which prohibits racial discrimination in the sale or rental of property. After concluding that Section 1982 applies to discrimination by private individuals, the Supreme Court further held that the Thirteenth Amendment provided Congress with the constitutional power to enact such a statute. The Amendment, the Court held, grants Congress the authority “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”
To be sure, the Jones Court's reasoning was grounded in the unique harms segregation imposed on African-Americans. As the Court stated:
Just as the Black Codes, enacted after the Civil War to restrict the free exercise of [the freedmen's] rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.
Jones nonetheless also had a strong interest convergence component. By the time Jones was decided in 1968, widespread housing discrimination worked against both the national economic interest and the social interest of individual whites in public order and stability. As to the national economic interest, racial discrimination against qualified black buyers had the effect of artificially limiting the demand for housing stock. The housing sector, of course, was and is an important component of the national economy, with many subsidiary businesses dependent upon it. Moreover, by the time of Jones, widespread racial segregation was arguably no longer in the interest of white elites due to the civil unrest it caused. As one of the briefs in Jones argued:
The riots and civil disturbances which plague our urban areas; the growing number of militant separatist movements; and the increasing alienation from the main stream of American life of many Negro Americans--all these have resulted in large part from segregated housing.
Jones, therefore, had a substantial interest convergence component. Unlike other circumstances where only the civil rights of a subordinated group are at issue (for example, the consequences of mass incarceration of the mostly black and brown poor), widespread housing discrimination perceptibly posed substantial threats to the economic and material conditions of the country and individual whites.
By contrast, such strong interest convergence was lacking in cases where the badges and incidents of slavery theory has been unsuccessful. Consider two older cases, Palmer v. Thompson and Memphis v. Greene. In Palmer, the plaintiffs sued the city of Jackson, Mississippi, for maintaining segregated public facilities. After a ruling that such facilities violated the Equal Protection Clause, the city desegregated its public parks, auditoriums, zoo, and golf courses. The city refused, however, to desegregate its public swimming pools, choosing instead to close them all rather than integrate them.
Plaintiffs alleged that the city's action violated, inter alia, the Thirteenth Amendment as a badge or incident of slavery because it amounted to an official expression of the message that blacks were “so inferior that they [were] unfit to share with whites this particular type of public facility.” The Supreme Court rejected the plaintiffs' Thirteenth Amendment argument, stating that accepting their claim would require the Court to “severely stretch [the Amendment's] short simple words and do violence to its history.”
The Court also rejected a Thirteenth Amendment claim in Greene. In Greene, the city of Memphis, at the request of residents of a predominantly white neighborhood, closed a street running through their neighborhood. The street closing separated the white area from the African-American area bordering it. Residents of the African-American neighborhood sued, alleging, inter alia, that the city's actions imposed a badge or incident of slavery upon residents of the black neighborhood. The plaintiffs' Thirteenth Amendment claim was grounded in the fact that the separation of the neighborhoods conveyed a stigmatizing message of blacks as “undesirable” persons whose presence would disrupt and devalue the “tranquil []” white neighborhood. The plaintiffs also submitted expert testimony regarding the negative psychological effects that the resultant segregation had on black residents, who would likely see the street closing as a “monument to racial hostility.” The Court, while accepting that the Thirteenth Amendment reaches the badges and incidents of slavery, dismissed the Thirteenth Amendment argument in Greene in a single sentence: “To regard [the street closing] as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom.”
In neither Palmer nor Greene is interest convergence readily apparent. Palmer concerned the city's operation of a discretionary public entertainment facility with limited fiscal impact and benefits. Jones, by contrast, involved private discrimination that distorted a large and important sector of the national economy. Moreover, at an individual level, the harm of closing the pools in Palmer would be felt most strongly not by white elites, but by lower income (disproportionately minority) individuals who could not afford private swimming clubs or personal pools. Similarly, in Greene, the de facto segregation caused by the street closing worked in the interests of white elites, who would receive the financial and psychological benefits of living in an area designed and maintained “as an exclusive residential neighborhood for white citizens.” Furthermore, the countervailing social forces providing interest convergence in cases like Brown or Jones were not nearly as strong in Greene or Palmer. By the 1970s and 1980s, the specter of the substantial urban unrest present at the time of Jones had receded. And while Cold War concerns of projecting an image of racial egalitarianism abroad were still present at that time, the passions of the moment were very different at the time of Brown in the early Cold War era during the open hostilities abroad and the Red Scare at home, than during the détente period of the 1970s and 1980s.
Similarly, interest convergence is lacking in many of the lower court cases rejecting badges and incidents of slavery claims. In Rog ers v. American Airlines, for example, an African-American woman sued her employer, challenging a grooming policy that prohibited the wearing of braided hairstyles. She claimed that the policy imposed a badge or incident of slavery in violation of the Thirteenth Amendment. She argued that prohibiting a black woman from wearing an Afrocentric hairstyle reflected “a [slave] master mandate that one wear hair [in a manner] divorced from one['s] historical and cultural perspective [but that is instead] consistent with the ‘white master’ dominated society and [beauty] preference thereof.” The court dismissed her claim, holding that the Thirteenth Amendment “prohibits [only] practices that constitute a badge of slavery and, unless a plaintiff alleges she does not have the option of leaving her job, does not support claims of racial discrimination in employment.”
It is difficult to locate any convergence of plaintiff Rogers's interests with those of white elites. Her claim, by definition, was unique to black women (or at least women of color) who are excluded from economic opportunities due to their unwillingness to conform to white beauty standards. Rogers involved what Kenji Yoshino calls a refusal to “cover”: that is, Ms. Rogers refused to accede to demands to “modulate her conduct to make [it] easy for those around her to disattend her known stigmatized trait.” A demand to cover, of course, is only imposed on those possessing the stigmatized trait. Thus, eliminating the grooming policy's demand to cover in Rogers would presumably be of little benefit to those not possessing that trait. Accordingly, the interests of black women in a case like Rogers would be unlikely to converge to any significant degree with those of white women, white men, or even most black men, since “beauty” standards operate very differently for women than men.
To be sure, the explanatory power of interest convergence theory has limits, and cannot fully account for developments in civil rights law. In particular, the schism in the Thirteenth Amendment case law regarding whether the badges and incidents of slavery are ever judicially cognizable under Section 1, or whether eliminating the vestiges of slavery is solely a congressional power under Section 2, provides an alternative doctrinal explanation for the differences in the cases discussed in this Part. Jones and Nelson involved statutes where Congress had proscribed the conduct at issue under its Section 2 power, as did the earlier Supreme Court cases upon which the Nelson court relied. By contrast, Palmer, Greene, and Rogers (and many of the other lower court cases rejecting badges and incidents of slavery claims) involved plaintiffs asserting badges and incidents of slavery claims directly under the Thirteenth Amendment itself, not a statute enacted pursuant thereto.
Moreover, case law provides counterexamples where interest convergence was arguably present yet the plaintiffs' claims nonetheless failed. For example, Warth v. Seldin is arguably contrary to interest convergence theory with regard to housing segregation. Warth, like Jones, involved attempts to integrate a segregated community. In Warth, the community was segregated by class, rather than race. The town of Penfield (a suburb of Rochester, New York), had a zoning law that prohibited the construction of low-income or multi-family dwellings. Given the correlation between race and income, the beneficiaries of a change to the zoning policy would likely have disproportionately been racial minorities. The plaintiffs in Warth consisted of three groups: individuals who wanted to live in Penfield, but claimed they could not due to the lack of affordable housing; Rochester property owners who claimed that Penfield's exclusionary practices increased their tax rates since Rochester had to accommodate those in need of affordable housing; and home builders who wanted to construct such housing in Penfield. Thus, the interest convergence in Warth was apparent in the coalition that brought the lawsuit. Moreover, many of the same factors that interest convergence theory would suggest were important in Jones (for example, the magnitude of the housing sector as a portion of the American economy) would seem to be equally applicable in Warth. But the Warth Court dismissed their claims for lack of standing, holding that plaintiffs could not prove that the ordinance caused their alleged injuries.
While this Article recognizes the limits of interest convergence theory, * * * attention to interest convergence provides at least a partial explanation for the different results in the cases discussed above.
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