Annie Kuo Becker (AKB): Welcome back to Discovery, the show where we dive deep into the people and ideas shaping the future of law and justice. I'm your host, Annie Kuo Becker, and today we're honored to be joined by David B. Owens, assistant professor of law right here at the University of Â鶹ÉçÇř of Law.
Professor Owens is not only a passionate legal thinker, he's also a dedicated practitioner. He directs the Civil Rights and Justice Clinic, which represents plaintiffs across the country in civil rights lawsuits in federal courts. David is also a partner at Loevy & Loevy, a national civil rights firm originally based in Chicago. David's work spans civil rights litigation, police accountability, wrongful convictions and broader criminal justice reform.
Our conversation today centers around David's powerful new essay in the New York University Review of Law and Social Change, “The Equal Protection-Fourth Amendment Shell Game: An Essay on the Limited Reach of the 2023 Affirmative Action Cases, the Fourth Amendment and Race Beyond Skin Color. Among other assertions, in his essay, David suggests that the affirmative action cases, while highly publicized, may actually have very little practical impact on everyday race based government actions. In other words, the court's claimed concerns about race discrimination ring hollow.
David, thank you very much for joining us.
David B. Owens (DBO): Hey, thanks. I'm happy to be here.
AKB: So, besides the obvious that your job is to bring lawsuits against police officers alleging constitutional rights violations, why did you decide to write this essay right now?
DBO: My own, sort of, you know, repulsion with the analysis in the affirmative action cases and the Supreme Court talking about we have this colorblind constitution, and we have all of this stuff, but the lived experience of people of color, of my own lived experience as a black person in suburban Washington State, south of Seattle shows this to be otherwise.
I think the biggest lesson I've learned in adulthood is that no matter how hard you can try to be white, no matter how hard you can try to be a highly educated lawyer, you can get all the degrees, you can get all of these things, none of that matters, actually, when you're on the side of the road and a police officer has pulled you over. None of that matters when you're in an encounter where you could die. None of that matters when you're walking out of a bar, and somebody sees you and they attack you because of your race.
So, there's a lived experience that I think when I was reading this, I was like, this is nonsense. It's absurd. It's unreal. And I wrote a couple years ago — the process of publication has took some time — but we've seen this now. The Supreme Court recently, again, blessed racial profiling by ICE in detaining people. And again and again and again, brown people are stopped. Are you here unlawfully? The same cases that I pointed out in the paper supporting their ability to racially profile people in this country are being used and meted out right now. And so the Supreme Court really, again, just did this a few weeks ago. And so it is prevalent, and it is the basis that allows ICE and other government officials to detain people on the basis of their race.
AKB: I remember when you first came to Â鶹ÉçÇř Law and we worked together on your profile. You told a story about biking away from the Stanford library.
DBO: Yeah.
AKB: And being pulled over and the police didn't know that you were actually a member of the Stanford Supreme Court — there's a legal clinic — and working on the review.
DBO: You know, it's a story I tell often because one of the reasons I became a lawyer — one of the reasons I am who I am today — is because of how race has impacted my life despite my efforts otherwise. I mean, that's really the critical thing is, like, I have tried to do so many things in my life to make race irrelevant to my existence. That's what I did to try to fit in in a rural area in Washington state where I grew up, was to try to just be as white as you can. Be the smartest kid in the classroom. You know, I listened to heavy metal and didn't grow up listening to, you know, like black music. I didn't do any of those things. And I I would eschew those black cultural things when I was growing up because I didn't want to be associated with blackness, right? You were sort of taught to deny it because if you act white enough, if you present enough, if you're compliant enough, your race won't matter. But it turns out race matters whether I want it to or not.
It turns out the cop was going to stop me on an $80 bicycle leaving Stanford Law School Library five minutes after the library closed, and it turns out that people are going to attack me using the N word — doesn't matter where I'm at. You know, this happened to me. Every fight that I've been in in my life was preceded by the N word and somebody attacking me.
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So, you can't avoid that. And that's our lived experience on the ground. And that doesn't jive with this idea of what the Supreme Court is saying, like, oh, you can't consider race in admissions. You can't consider this. I have other criticisms about that, but at the end of the day, we know who we are as people, and race matters. It cannot be erased. And because of that, it's really important that we understand the law to account for that. So I say it's a shell game in the paper because I think it's a form of hypocrisy. I could talk a little bit more about that, but that is really what this amounts to — there's a legal fiction that is absolute hypocrisy.
AKB: Can we talk about this shell game between the Fourth Amendment and equal protection? What does the “shell game” mean? And then, how does it hinder race-based legal challenges in policing?
DBO: Absolutely. So, I borrowed this concept of the “shell game” as pitting different constitutional amendments against one another, from my mentor at Stanford Law, Pam Karlan, who wrote a different paper about shell games and remedies in terms of constitutional civil rights litigation. And the essential idea is this, is that the Supreme Court says, “Don't worry that you don't have a constitutional right or remedy for what happened to you over here, because you can look somewhere else for that remedy.” And then it turns out, when you walk that somewhere else, and they get there, they shut the door, and they say, “No, no, no, you have a remedy back where you started.” And then you go back where you started, and the door’s closed. “No, no, you have to go back over there.”
So, this is what's happening between the Fourth Amendment and the Equal Protection Clause. Just to explain the Fourth Amendment, it protects us against unreasonable searches and seizures, right? And the equal protection clause is what motivates prohibiting race-conscious admissions — what prohibits racial profiling. It's the equal protection under the law — is what prohibits racism and when it comes to government action. And so what's happening in these cases is in the Fourth Amendment side, when we're talking about unreasonable searches and seizures, the Supreme Court says, “Whoa, whoa, whoa, whoa, the Fourth Amendment is concerned with objective reasonableness. It's not about subjective anything, right? It's not about what was in officers’ heads. It was about whether it was reasonable to stop somebody on the side of the road for X, Y and Z, and even if you could prove that race motivated the police officer's action to pull over the car or to stop them or seize them, that doesn't matter under the Fourth Amendment. If you want to bring a claim about the race playing a role in the police stop, go over to the Equal Protection Clause. Do that. That's the proper venue for litigating that.” And so you go over to the equal protection clause, and they say, “Doesn't matter. Actually, you have to be able to show that there was not other people who are Black, who are stopped in a car like this, and you have to point to this, and you have to point to that.” All of this subjective intent. Even if you can prove that race motivated the stop, and so you have nothing.
And what I pointed out with the equal protection cases and the affirmative action cases is there's a particular hypocrisy that the Supreme Court is resting on as it relates between these two areas, because it says the Constitution is supposed to be colorblind. We have to get beyond the vestiges of slavery by not allowing race to play a part in any government decision-making ever. And you're like, sick, awesome. That sounds good enough at some level. But it turns out that when the police stop you, they can consider your race. It turns out when you get shot, turns out if ICE is coming for you, they can say, “Well, yeah, you know what, you looked Mexican,” even if you weren't. And oh yeah, there's a lot of legal Mexicans in this country. It is absurd.
There's a further way in which it is absurd to say that race doesn't matter and we have this colorblind constitution. One of the things that really irks me about this decision, about this dichotomy, about “forget race,” about “be colorblind,” is we all know there was slavery. We all know there was Jim Crow. We all know that there was a civil rights movement, and we all know that racism and segregation endured for decades and decades and decades. But what redress was ever done for that? What redress was ever done to make up for that? None. And the little bit that exists, the Supreme Court has winnowed away. So, you get the civil rights movement in the 60s, you get the Civil Rights Act. The Supreme Court has dismantled the effectiveness of those statutes.
And so this is actually probably my favorite part of the article. Let's imagine you and I are running a race, okay? The Race of Life. And it turns out that you got, like, a 200-year head start in which you had every advantage, and I was physically shackled, right? And then you're like, “Well, we took the shackles off, fair race.” And you're like, “Wait, that can't be true. That absolutely cannot be true.” And so the only way for us to make this a fair race is to pretend that shackling — you being physically held back for hundreds of years — didn't happen. And now you're a Black person, you're a white person. Doesn't matter. It's absurd. And now in the course of those 200 years, you pass benefits on to your children. And your children, you're right, they weren't the thieves, they weren't the ones who initially did it, but they are the beneficiaries. They are the beneficiaries of unjust goods. They are the beneficiaries of racism. And so if you wanted to right the scale, if you wanted to make a fair race in life, you don't cancel out the idea that this discrimination happened. What you do is you come up with a remedy that allows you to understand that a class of people and a group of people were systematically discriminated against. And there's no way to do that by being like, “Oh, I can't even tell that one group was Black and the other ones were white — or whatever. That's the part that is absurd.
AKB: So, do you think that this shell game is deliberate? A deliberate judicial strategy in these times to avoid reckoning with systemic racism and policing, or is it just confusion, this blindness around colorblindness?
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DBO: Well, it depends on what you mean by “deliberate.” I don't want to ascribe to any motives. I don't know what's in Brett Kavanaugh’s head. I don't know what is in Justice Roberts’s head. And I don't know what is in Justice Thomas's head. You know, when he writes about all of this stuff that is harmful to people who look like him, to people who like me, have been targeted for violence on account of the color of my skin? Yeah, I can't get into their heads. But what I can say is that it's intentional in the sense that this is the United States Supreme Court, a court in which other courts all around the world look to. It's a deliberative body. The decisions that they make are intentional. They had the opportunity to consider these arguments. So, there's a dissent in the case. There are other briefs in the case. So, I can say that it's a deliberate decision to not be concerned about this duality. Whether or not they may think of it as hypocrisy or have some other justification in their head, I can't speak to that, but what I can say is the result, that the result is that people are less safe from government intrusion, is that we're seeing this now play out with ICE raiding. And when given the opportunity to intervene, very recently, when a district court in Los Angeles said, you know, ICE you can't just stop people because they look Mexican in Southern California, that's absurd. They're like, “Nah, it's fine.” What?
Those arguments, those problems, have been pointed out to the Supreme Court, and yet they persist on this way, in this duality. And the equal protection clause is part of the 14th Amendment. And this is a really critical thing — I think, personally — is that the 14th Amendment, along with the 13th Amendment barring slavery and the 15th Amendment guaranteeing a right to vote, were passed as a result of the Civil War. This is how the southern states had to come in, back to the union. The whole point of those amendments to our constitution was to end slavery, one, and, two, give Congress the power to stem out the vestiges and the consequences of slavery and the aftermath of Jim Crow, formal segregation, right? And so this persists, and then now those same laws are being used as a basis to permit segregation, to permit racialized policing, and all of that. So, this is a duality that I see. And you know, there's an old saying — when I say it's a saying, I mean, it's like one of the original canonical Supreme Court decisions, Marbury v. Madison, what we learn about as lawyers in the first year course is, like, this is what law is. You know, it's a decision that justified judicial review. But there's also a passage where the court says this, “There is no right without a remedy.” We can have all of these constitutional rights. You can have a right to equal protection of the law. But if that doesn't stop the police from coming and blasting down my door or apprehending me on the street on account of my race, it means nothing.
AKB: What is the remedy?
So, going back to Professor Karlan's article where the shell game topic is brought up, is Professor Karlan pointing this out between criminal context and civil context. So, in the criminal context, say I get arrested and the police seized me unlawfully, right? The remedy in that context is usually the suppression of the evidence if they get any evidence, right? So, say it's a drug bust. They got the drugs unlawfully. And, so, they're like, you can't use the drugs because you got them unlawfully. It's the fruit of the poisonous tree. Language like that exists, right? And so when the Supreme Court has been, like, not so much, we're going to make some exceptions to the suppression rule for whatever reasons. But look, you can go sue them under Section 1983 right? And so you walk over to the civil case, and you're like, okay, we're going to sue you under Section 1983, that's our remedy, is that damages lawsuit. That's my job. That's what I do, I bring these lawsuits. And they say, “Well, actually, you don't really have a remedy here under Section 1983 because of this exception or that exception, or there's actually, we made up this thing called qualified immunity. And so under qualified immunity, even if your rights were violated, you can still get nothing.” And you're like, “Wait, what? You just sent me from the criminal side and said I was I'm supposed to go over here and sue, and then when I got over here to sue, you're like, actually, you have nothing.
And, so, I explore this concept in some of earlier papers that I wrote — one in law school in 2009 and then one a couple years ago about police violence more specifically, and how we think about the absence of an actual remedy. What does it mean to have a constitutional right if you cannot stop ICE from blasting you, apprehending you on the basis of the color of your skin. You can't bring that lawsuit now, or you can, and it's unlikely to succeed in many circumstances. And you know, I don't want to say that you can't bring these lawsuits. I bring them all the time, and we are very successful. But there are many challenges that the Supreme Court has erected that are not part of the text of section 1983 that I think contradict the text of section 1983 and that are certainly not consistent with the idea that we as a free society have constitutional rights.
AKB: So, this is a perfect segue to the next question on the limits of skin color as a legal concept of race. Why is the law's narrow definition of race as skin color problematic?
DBO: So, my perspective is that I understand some of the concern that Justice Thomas is talking about, and even Justice Roberts. They're like, “Look, you can't just treat people as a group, as a monolith because of their skin color, right? Not all Asian people have the same views, not all Black people have the same views, right?” That's what's a critical thing that, I think — and I said I wouldn't do this earlier — but I think that's a really big thing motivating Justice Thomas. I'm a black person. I don't fit into that realm. I don't fit into that ideology of what you think Black culture means. And you know what, Justice Thomas? I'm the same way. I already said this earlier. I'm a surfer. I listen to metal. I grew up in a 90% white town and have all white friends. I feel you Justice Thomas, I totally get it.
There's an intuition that is, one, that's not bad, I think, which is that you know you don't want people to be seen as a group, as monolithic, right? Like all of your personal views are the same. And the problem is that they are taking that perspective and saying that you can never understand the consequences that may play out on a certain broader group of people and demographically, right? So, we know that certain things impact different communities on a broader scale, and that's not tokenism. That's not saying you're all acting the same way. This thing that you are rejecting. This thing that I am personally rejecting is that we're all the same, all Black people, all Black men are dangerous. All Black men with dreadlocks are dangerous. I reject that too, absolutely.
But the error they're making is saying that, well, we can't ever acknowledge race. We can't ever acknowledge that there was Jim Crow or segregation in the civil rights movement or redlining that followed all of that. That's the problem, is that by acknowledging a harm that happened to a particular class of people, you're not tokenizing them or diminishing their experience. You're actually fulfilling that experience. You're actually giving it value. So, for example, if we wanted to have a government program that was to redress a group of people who were interned, you know, in World War Two, that would focus on Japanese Americans. Because, you know why? Who was interned during World War Two?
AKB: Japanese Americans and in South America too.
DBO: Yes, you know, it's crazy. So, you can remedy systematic exclusion and acts of racism by considering race without treating people as if they're all the same. And that's the one of the errors that, I think, is happening when it comes to this colorblind constitution, or race beyond skin. And the thing that, I think, I was getting at also in this paper at the end, the thing where we started earlier, which is, I've done so many things in my life to minimize my skin color from being a difference. But I'll tell you what, when I was on a motorcycle trip in Montana, you know, with my best friend, who's a white guy, it didn't matter that we were doing everything that was quote, unquote white when we walked into that bar. We were not welcome there. It didn't matter when I lived in Huntington Beach, and I'm a surfer and I like punk rock, and all of my friends are there for this white drunk guy to come up and attack me on the basis of my race. It didn't matter.
And, so, the thing that is so dangerous about colorblindness is it wants to deny those very experiences as being real. They are real experiences, and I didn't choose those things either. And so the thing that Justice Thomas is missing is that those moments impacted his life, even if he didn't want them to. You know, I tell this story when I was at Stanford — the Palo Alto Chief of Police later got fired for this — but they had as an explicit racial profiling policy, right? And I would be the designated driver driving home from the bar. I had a whole routine. I'd be like, I see the cop. I'd be like, “Hey guys, we're about to get pulled over,” you know? And I had a routine, you pull over, you take the keys out of the ignition and you put them on the dash so that way they don't think you're going to run away. I had a habit of handing the cops my Stanford Law ID before I handed them my driver's license. I'd pretend to be looking for my driver's license. I'd handed the insurance and my Stanford ID to the cop and then give them my driver's license — this whole thing. And it didn't matter that I was in a Toyota Matrix, you know, just a boring car, even with a group of white people doing white people things, if there are white people things — it just doesn't matter. And so those lived experiences are the ones that they're trying to deny by saying that it's just about skin color. It's not just about skin color, it's about the fact that we even have to have this conversation, because race certainly matters.
AKB: It reminds me of a podcast interview we had with State Supreme Court Justice Whitener. She talked about how treatment is different when she's wearing her robe versus when she takes the robe off and goes out onto the street.
DBO: Right.
AKB: You know, race matters. On the disconnection between affirmative action rulings and race and policing, do you think this reflects a broader unwillingness by the court to apply equal protection principles consistently across different domains of law?
DBO: Yes, there is an absolute tension between what they're saying about a colorblind constitution. And this is a thing I noticed a long time ago. They love to use language that's like, “Oh my god, racism is so bad. We agree. Racism is so bad. It's evil. We need to purge the vestiges of racism from our society.” Blah, blah, blah. And they like love all this over the — if you read these decisions, there's all of this stuff in them at the top. And it's not just about affirmative action. It's, like, about in juries and about other areas too. There's all of this stuff. And then you get to the inevitable comma — but. Right? And it's always seemed to me that there's a tension there.
One other reason you asked why I wrote this paper was because my I went to the University of Washington here as an undergrad. My honors thesis in political science was about affirmative action, because in that year, 2004, the Supreme Court issued its prior big, seminal affirmative action cases coming out of the University of Michigan at the law school and the undergrad there. And at the time, my criticism of all of this was like, this is absurd in a different way, because the court is so concerned about whether or not kids getting into college, like whether or not we're considering a race in those environments, but there's no concern about a right to education. There's no concern about a right to housing. There's no concern about a right to food. There's no concern about any kind of equal access to education for elementary students, for prekindergarten students, for high school students. And so you want to say, well, at the most elite level, you can't consider race. And it's like those are just the few people of color or poor people who managed to even get that far. But thousands and thousands and thousands have already been cut out of the process unfairly, not because of this kid chose anything, but because the Supreme Court said, “Well, there is no right to equal access to education as a child. There is no right to equal access to food or health care as a child.” And so why are we taught — why are we so concerned about admission into an elite college? And so that's a little bit of something that I always thoughts this affirmative action debate seems very fake, because of the amount of the people in the population that it actually applies to, as opposed to these other things that impact us in our daily lives and that are arbitrary without choice.
AKB: Thank you so much for joining us today and getting into the very current issues of the equal protection in the 14th Amendment against the Fourth Amendment. It feels like a very current issue, especially given the 2023 affirmative action ruling, so wonderful to have the context. Honestly, I got a lot from reading about your lived experience, and then, of course, your vantage point as a civil rights litigator who directly addresses policing. So, thank you so much for joining us.
DBO: Thanks for having me.
AKB: Professor David B Owens is partner of Loevy & Loevy, and director of the Civil Rights and Justice Clinic at the University of Â鶹ÉçÇř of Law.
