For the past several years, Tybee Island, just down the road from our Savannah office, has been the site of what’s called “Orange Crush.” “Orange Crush” is a word-of-mouth event with no official promoters that is predominantly attended mostly by African-American college students on spring break. As an unofficial event, there are no permits issued by the City of Tybee (so no revenue created there) and much to the City’s dismay, there exists no real way of preventing it from happening.
For the past several years, local Tybee officials have looked for ways to curtail, discourage, and weaken the party after issues of litter and a shooting that occurred a couple of years ago. This year, the Tybee City Council passed a law that bans alcohol consumption on the beach during the two weekends that officials anticipate Orange Crush to take place. Of course, the remaining weekends of the year one can still consume alcohol on the beach (assuming it’s otherwise legal for them to do so).
A law that discriminates based on race violates the Equal Protection Clause of the United States Constitution. Even when the law is “facially neutral” (i.e., the Tybee ban does not specifically state that it is targeting African-Americans), it may be discriminatory if it is administered in a manner that discriminates against minorities or has a disproportionate impact upon them. In order for a law that classifies people based on race to be upheld, the government must demonstrate that the discrimination is for a very important goal AND that this goal cannot be achieved through any less discriminatory means.
A review of the local news coverage on this alcohol ban uniformly shows that everyone involved understands that it’s intent is to dissuade African-American students from attending “Orange Crush” on Tybee Island. Everyone interviewed in these stories is acutely aware of the racial aspect of this law. Even the City officials interviewed seem keenly aware of the fact that this law impacts the two weekends where the majority of the visitors to the beach are black.
Could Tybee officials address concerns over the size of the event, the past issues of litter, the past issue of the shooting in a way more tailored to those concerns? Absolutely. And I don’t think you can find anyone who would say those aren’t legitimate concerns. But banning alcohol on the beach doesn’t seem very tailored or specific to any of those concerns, particularly given that the other 50 weekends of the year, in which beach visitors are predominantly white, there is no such ban. Is this new law unconstitutional? Possibly. And its juxtaposition with the “norm” in Chatham County regarding public consumption of alcohol makes it all the more striking.
Tybee just offered up an unnecessary and ill-advised soft ball. Who will step up to knock this one out of the park?