Con Law II: Race and Sex Discrimination

CHARLES BLACK, THE LAWFULNESS OF THE SEGREGATION DECISIONS (1960)

Argues that the realities of segregation in the South delegitimize the Supreme Court decisions upholding it. -> saying that Jim Crow is friendly to AAs and that they want it is a falsehood -> everyone knows that segregation is meant to perpetuate white supremacy

J. Thomas Concurrence (Jenkins)

"existence of one-race schools is not by itself an indication that the state is practicing segregation" "The courts found that racial imbalances constituted an ongoing constitutional violation that continued to inflict harm on black students. This position appears to rest upon the idea that any schools that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites." "The point of the EP clause is not to enforce strict race-mixing, but to ensure that blacks and whites are treated equally by the State without regard to their skin color." "This misconception has drawn the courts away from the important goal in desegregation. The point of the Equal Protection Clause is not to enforce strict race- mixing, but to ensure that blacks and whites are treated equally by the State without regard to their skin color. The lower courts should not be swayed by the easy answers of social science, nor should they accept the findings, and the assumptions, of sociology and psychology at the price of constitutional principle."

Califano v. Westcott (1979)

"part of the baggage of sexual stereotypes that presumes the father has the primary responsibilty to provide a home and its essentials, while the mother is the center of the home and family life." -Court struck down a SS policy granting aid to families and dependent children benefits to the children of unemployed fathers but not unemployed mothers

Mississippi University for Women v. Hogan (1982)

(text doesn't say) Burger, Blackmun, Powell -> wrote separate dissents - MUW only allows women into its nursing program (and all of its programs) - Hogan is a man who wants to go to a nursing school that is convenient for him-- the coeducational program is too far away - MUW's argument: remedial affirmative action to assist women get ahead in nursing profession: -- but it's awkward b/c like 98% of nurses in US are women -- more likely to reinforce the idea that women should be nurses (and men doctors) -- why this argument? conservatives want less scrutiny for sex-based discrimination, liberals are more sympathetic to remedial actions - A better argument would have been that single-sex education has benefits for women, and the π had a reasonable alternative -> he could go to the coeducational, state-supported nursing school. "Rather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman's job. By assuring that Mississippi allots more openings in its state-supported nursing schools to women than it does to men, MUW's admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy."

REVA SIEGEL, REASONING FROM THE BODY: A HISTORICAL PERSPECTIVE ON ABORTION REGULATION AND QUESTIONS OF EQUAL PROTECTION

- *restrictions on abortions is rooted in a view of traditional women's roles* - costs to women: -- compulsory parenthood ---but adoption: Segal says societal pressures to raise a biological child ---forces women into a dependent relationship, often on father, channels you into traditional relationship -> more likely to bear a disproportionate amount of child-raising -- if there is a threat to life of mother, presumes selflessness of woman -- will affect employment opportunities for women if they have to have a kid every time they get pregnant -- sex and parenthood are more intimately connected for women = shape behavior and way that you organize your life

Cooper v. Aaron (1958)

- Court ordered Little Rock, AR to proceed with school desegregation in the face of state-inspired violence, opposition, and disorder - One of the very few desegregation cases that made it to the Supreme Court between Brown and the CRA of 1964.

Milliken II (1977)

- District courts given more remedial authority than just assigning students to schools; - could also try to address material inequality that came with desegregation; - could require improving educational outcomes for black schools by spending $$ - could do more than create unitary schools - approved of magnet schools

General Elec. Co. v. Gilbert (1976)

- EEOC interpretation of Title VII - pregnancy discrimination = sex discrimination (under Title VII) - Court rejects this interpretation of Title VII and uses Geduldig reasoning - at the time of Geduldig, the Equal Employment Opportunity Commission interpreted the prohibition of sex discrimination under Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination; it directed that employment benefits "shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities." - Court rejects this interpretation - In response to Gilbert and Geduldig, Congress passed the Pregnancy Discrimination Act (PDA) and which added discrimination on the basis of pregnancy into the definition of "on the basis of sex"

Mark Tushnet, "Public Law Litigation and the Ambiguities of Brown"

- The Supreme Court's decision in Brown II to not grant immediate relief to the plaintiffs, and instead require district courts/local school districts to act with "all deliberate speed," ironically gave rise to "public law litigation." - Because Brown/Brown II did not grant specific relief, lower courts were given a lot more latitude in the years after Brown to fashion desegregation plans.

Derrick Bell, "Race, Racism, and American Law"

- The Supreme Court's decision in Brown to break with earlier precedent is at least partially due to the interest among white elites to end segregation at that time: a. It had been difficult in the struggle against Communist countries to win the hearts of emerging Third World peoples when there were segregated schools in the US. b. Businesspeople recognized that the South could not be successful unless it became industrialized, and it could not make the transition from a rural society to the "sunbelt" if it was still divided by state-sponsored segregation. c. Whites feared that blacks could revolt/resist if the precepts of equality and freedom that were heralded during WWII weren't given meaning back at home in the US.

Civil Rights Act of 1964

- Titles IV/IX - authorized Attorney General to initiate and intervene in school desegregation suits - Title VI - prohibited racial discrimination in programs (including state and local education programs) receiving federal financial assistance - First comprehensive civil rights act since Reconstruction

United States v. Clary (8th Cir.) (1994)

- crack cocaine is punished 100 times as harshly as regular cocaine in the federal sentencing guidelines - Shows how hard it is to find discriminatory intent - interests of the AA community are not binary - the district court applied the Arlington Heights factors and found that there was discriminatory intent is this racially discriminatory? Arlington Heights factors -Congress did have reasons for thinking crack is worse? more addictive, cheaper, easier to consume -- weakest part of opinion is when dist court says that crack and cocaine are the same and should be punished the same - Procedural irregularities: decision made quickly - media depictions of crack epidemic - there is a history of racialized penalization of drugs the disparate impact theory only works if the entire community wants one thing (i.e. increased punishment for crack use would decrease crime in AA community, law abiding AAs want this) - Court doesn't want to say that US Congress acted with discriminatory intent

Civil Rights Act of 1866

--All people have the same rights of economic personhood (make and enforce contracts, buy/sell/inherit property). --All people have the same rights to sue, be parties, and give evidence in court. --All citizens should be subject to same penalties for lawbreaking. The Act, however, rejected the proposed Civil Rights Formula (no discrimination in civil rights/immunities on account of race) as too broad - there was no global prohibition on race discrimination in this Act.

Hopwood v. State of Texas (1996) (5C)

--Barred UT Law from using race in its admissions decisions. --Read Adarand as holding that only compelling justification SC recognized for affirmative action was remedying past discrimination - nonremedial interests could never justify racial classifications.

The Constitution of the US: Is It Pro-Slavery or Anti-Slavery? (speech - Frederick Douglass) (1860)

--Constitution does not guarantee the right to hold property in man. --Mere text, and only the text was adopted as the Constitution -- we should not get into looking at history, intentions of framers etc. in interpreting in the Constitution, but just look at the plain text.

Judicial Supremacy and Dred Scott: The Lincoln-Douglas Debates (1858)

--Douglas: hierarchical model of Constitutional interpretation. SC interprets Constitution and everyone else should fall in line. SC has ruled that Congress can't limit slavery - we need to obey it. --Lincoln: horizontal, coordinate model of Const. interp. Every political actor should interpret Constitution for himself. Would vote to stop the spread of slavery.

Census cases (such as Morales v. Daley) (SDTX 2000)

--Plaintiffs objected to U.S. census asking about their racial and ethnic identities and said their right to equal protection under due process clause of 5th Amendment was violated. --They argued that collecting data about racial identity could easily be abused. --Government wanted this data for research purposes and to enforce provisions under the Civil Rights Act. --The district court held that self-classifications by race/ethnicity did not violate due process provisions of the 5th Amendment.

Orr v. Orr (1979)

-Court invalidated an Alabama statute requiring husbands to pay alimony upon divorce but not wives "effectively announcing the State's preference for an allocation of family responsibilities under which the wife plays a dependent role, and as seeking for their objective the reinforcement of that model..."

Wengler v. Druggists Mutual Insurance Co. (1980)

-Court struck down a Missouri law automatically entitling widows of men who died in work-related accidents to death benefits, while requiring widowers of women who perished in such accidents to prove they were incapacitated or actually dependent on the wife's earnings.

Kirchberg v. Feenstra (1981)

-Court unanimously invalidated a LA statute granting a husband, as "head and master" of the family, the unilateral right to dispose of property jointly owned with his wife without her consent

Top Ten Percent Plan enacted by TX Legislature

-Post-Hopwood -Purpose was to achieve diversity -Q: would it be Constitutional under Washington v. Davis? Law was adopted "because of" race: --Analysis: Treat it as racial classification >compelling interest in achieving diversity > narrowly tailored because it's minimizing the role of race to the point that it disappears UT uses top 10% plan for 75% of its admissions, now it's about top 7-8% automatically admitted

Southern Manifesto (1956)

-dissent from Brown by states -originalism -reliance concerns: Southern states have always relied on Plessy, and built up institutions on it, so it cannot just be thrown out without strong constitutional support

Hoyt v. Florida (1961)

-upheld statute that included women on jury list only when they requested to be included -Woman convicted of killing abusive husband in 25 minute deliberation of all male jury -Sustained law even though produced virtually all male juries "a woman is still regarded as the center of home and family life"

Arlington Heights Discriminatory Intent Factors

1) type of impact (unexplainable on grounds other than race) 2) how decision was made (background of decision) 3) departures from ordinary procedure 4) departure from usual substantive considerations 5) leg or exec history behind decision 6) sequence of events

Veasey v. Abbott (2016)

5C -TX voter ID law struck down after a finding of intentional discrimination -cites Feeney -Absence of any genuine explanation other than suppressing minority voters -Remaining defense for TX: if discrimination, it is partisan discrimination, not minority discrimination

Remarks of Thurgood Marshall at the Annual Seminar of the San Francisco Patent and Trademark Law Association (1987)

Views the constitution as a lamentable compromise with evil, doesn't understand why we're celebrating a document that took a civil war and several amendments to make it "moral" - would have celebrated 200 years after reconstruction.

Hively v. Ivy Tech Community College of Indiana (7C)(2017)

Wood; Posner, concurring Ruling that Title VII (prohibiting employment discrimination) prohibits discrimination on the basis of sexual orientation A policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex. The discriminatory behavior does not exist without taking the victim's biological sex (either as observed at birth or as modified, in the case of transsexuals) into account. Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964, if it affects employment in one of the specified ways.

Charles Lawrence's Commentary on Discriminatory Intent Standard

focus less on psyche of decision-maker but focus on how decision will be understood by the public -like the Establishment Clause jurisprudence -- particular action viewed as endorsement of religion to violate Est Clause - wall between historically black and white neighborhoods in Memphis example

14th Amendment (1968)

§1 - 4 protections: birthright citizenship, privileges and immunities, due process, equal protection. §2 - A State loses representation in Congress to the extent that adult men are disenfranchised in that State. §3 - Any federal/state officer who violated his oath to the Constitution by rebelling against the federal government during the Civil War cannot serve in government anymore, unless Congress permits their service by a 2/3 vote of each house. §4 - No compensation from federal/state governments for cost of emancipated slaves, or for debts incurred in aid of insurrection/rebellion against the United States. §5 - Enforcement power. --The 14th Amendment gave Congress the authority (retroactively) to enforce the 1866 Civil Rights Act. The 13th Amendment wasn't enough to justify the Civil Rights Act, because denial of economic and/or political rights was not the same thing as slavery. --The 14th Amendment was also a reaction to a fear of the re-emergence of the power of former slaveholding states, because African Americans were now citizens and counted fully when representatives in the House of Representatives were allotted. --Because the 14th Am. doesn't specifically mention race, it later opened the way to protection a whole range of interests and groups, in addition to African Americans. --The Due Process Clause was used later by the courts to apply the Bill of Rights to state governments.

Swann v. Charlotte-Mecklenburg (1971)

CJ Berger - Following Green decision, district court had ordered new integration plan that redrew school districts to improve the racial balance. Busing was part of this plan. - SCOTUS upheld this plan - said in the face of past deliberate segregation and failure of school authorities to dismantle segregation, courts had broad and flexible powers to remedy segregation and its effects. Court noted that: - a plan for a unitary system could still retain some one-race schools. - busing was an acceptable judicial remedy for desegregation - after setting up a plan, schools/courts weren't required to make year-by-year adjustments as demographics changed - but federal courts did still have the power to deal with future problems.

Reed v. Reed (1971)

CJ Burger - Held that Idaho law that preferred men over women as estate administrators (when both otherwise equally entitled to appointment) was unconstitutional on 14th Amendment grounds. - First time that the SCOTUS used the Equal Protection Clause of the 14th Amendment to invalidate a statute on the grounds that it discriminated against women. - Decision reflected years of advocacy by newly mobilizing women's movement - Case was purportedly decided using rational basis review, but this type of review would have upheld the Idaho law. - Short opinion that criticized arbitrary distinctions between men and women, illustrated by this law. Sharp shift in Court's interpretation of 14th Amendment - past decisions would have characterized the sex-based distinction in this law as reasonable. Challenged statute violated 14th Amendment by providing "dissimilar treatment for men and women who are . . . similarly situated." (Quoted in Frontiero case. p. 1383) - This law made "the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment" (p. 1376)

Fullilove v. Klutznick (1980)

CJ Burger --Court upheld "minority business enterprise" provision of Public Works Employment Act of 1977, which required that 10% of federal funds granted for local public works projects be used to procure services or supplies from businesses owned by minority group members. --Congress included this program in the Act because difficulties confronting these businesses were often the result of past discrimination. --Burger did not articulate the standard of judicial review, but appears to be intermediate scrutiny. --Seemed to be acceptable here to remedy effects of prior discrimination (unlike SC opinions in some of the higher education cases involving affirmative action). --Burger also said sharing of burden for this remedy by innocent was not impermissible - if remedy was limited and properly tailored.

Griggs v. Duke Power (1971)

CJ Burger --Duke Power required job applicants to have a HS diploma and take a general intelligence test. --The court determined that Title VII of the Civil Rights Act of 1964 prohibited Duke Power from enforcing these requirements because they disadvantaged black applicants and the criteria had not been demonstrated to predict job performance. --Employment practices neutral on their face, and even in intent, can't be maintained under Title VII if they freeze the status quo of prior discriminatory employment practices. --SC was infusing Title VII with a broader anti-subordination purpose here. --Disparate impact of hiring practices on a particular racial group didn't create liability for Duke Power - but it did shift the burden to Duke Power to establish business necessity for hiring practices ('BFOQ' - Bona fide occupational qualification). --Anything that arbitrarily perpetuates racial castes needs a strong justification from employers.

United States v. Armstrong (1996)

CJ Rehnquist - almost all minority drug offenders are charged in federal courts and the white offenders are shuttled to the easier CA state system - lower court gives discovery on this claim, SCOTUS reverses and sets a high bar for giving discovery in racial discrimination claim - problem with prosecutorial discretion in deciding who to prosecute for federal drug crimes - much more inequality in the administration of laws, not in the laws themselves "To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted."

Board of Ed. of Oklahoma City v. Dowell (1991)

CJ Rehnquist -OK school district; under desegregation decree for 10 years; continued segregation -Holding: appropriate to release district from continued federal oversight (even if though it didn't achieve unitary status, intervening private choices frustrate effort to integrate) -Supreme Court collapse of support for constitutionally-mandated unitary schools -doubting that racial identifiability of schools caused by past discrimination/segregation "From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discriminations . . . regulatory control does not extend beyond the time required to remedy the effects of past intentional discrimination . . ."

Gratz v. Bollinger (2003)

CJ Rehnquist; J Ginsburg dissenting - University of MI undergrad's admissions system has a point system. Most "extra" points given for being an URM, athlete, or going to a disadvantaged high school. - why is this different than Grutter? no ind consideration, holistic review; automatic points; race an important consideration - MI undergrad gets more applications than law school and is just trying to systemize its method for achieving diversity - Why is this excessive use of race? --JS: too much magnitude -> race too important race too significant factor in undergrad admissions, more than how it imagines race is being used in law school admissions - Souter dissent: would give MI undergrad a point for candor, and would allow for public debate about how important race would be in admissions decisions -Ginsburg dissent: when majority disadvantages itself to remedy past discrimination, we should be less suspicious --anti-subordination approach lowers SOR, expands CI, and allows for more flexible NT

Missouri v. Jenkins (1995)

CJ Rehnquist; J Thomas, concurrence; J Souter, dissent -District judge creates plan to make Kansas inner-city schools stronger (magnet schools) and attract white students back in; -Supreme Ct. held that goal of attracting white students from outside the district was not permissible within an intradistrict remedy (Milliken II). -upholding power of district court to order a local government body to raise taxes to finance a magnet school program, but reversing for abuse of discretion on the facts of the case -Souter dissent: white flight created by state segregation, state should be responsible for remedy (same thing Marshall said in Milliken) "In effect, the District Court has devised a remedy to accomplish indirectly what it admittedly lacks the remedial authority to mandate directly: the interdistrict transfer of students . . ."

Gong Lum v. Rice (1927)

CJ Taft -Excluded girl of Chinese descent from attending a school in her district solely on the basis of race; -Chinese race considered part of colored people; she has to go to the colored school provided (states are required to have conveniently located colored schools) -Supreme Ct. affirmed that she was not allowed to attend white school Quotes Cumming

Dred Scott v. Sandford (1857)

CJ Taney - Constitutional Slavery - AAs could never be citizens Dred Scott was a slave whose "owner" had taken him to IL, a free territory, for 2 years, then back to Missouri, a slave territory. Scott argued that because of his time in IL, he was no longer a slave. Held that: 1) AAs could never be citizens of the US, 2) Congress could not regulate slavery in the territories and 3) taking away slaves violates 5am DP.

Sweatt v. Painter (1950)

CJ Vinson TX argues they can provide a separate law school without being unreasonable and without annoying and oppressing Decided unconstitutional; intangibles: --reputation, alumni {not as de-stabilizing to segregation in secondary schools} --denial of access to people who will be most powerful people to community {more de-stabilizing: notion that equality requires interaction with most powerful in community}

US v. Cruikshank (1875)

CJ Waite - KKK case - private discrimination - Colfax Massacre, AA wins an election and whites attack blacks around courthouse, 105 AAs die and 3 whites - Enforcement Act of 1870: criminalized private people getting together to interfere with rights, which violated: assembly, speech, right to bear arms 2 important holdings: - Congress can't use it's section 5 power to regulate private actors - most robust portions of Constitution do not reach private actors

Minor v. Happersett (1874)

CJ Waite -Minor the denial of her right to vote based on U.S. citizenship; interpretation of 14th amendment: did not give women the right to vote Arguments for 14th amendment not granting women right to vote: 1. 15th amendment would be superfluous: must be some difference between civil equality and political equality if it was necessary to add 15th amendment 2. Section 2 of 14th amendment: States are allowed to disenfranchise [even adult men] but the consequence from doing so is loss of representation (§ 2) - might be read as states being allowed to give different treatment to citizens regarding voting rights; not punished for disenfranchising all women in their jurisdiction 3. History and Practice: It would be odd for the 14th amendment to say that introduction of P&I clause obliterates requirements for suffrage indirectly; women were rallying against the ratification of 14th amendment and then turn around and say it actually guarantees them the right to vote

McCabe v. Atchison, Topeka & Santa Fe Railway Company (1914)

CJ Waite OK statute, separate railway cars, have to operate white-only cars with upgraded cars (chair car, dining car, sleeping car) but don't have to operate black cars with upgrades Supreme Court upholds the challenge, says its a Constitutional violation; First case that "equality" part of separate but equal is a Constitutional requirement -argument that there was no demand for the upgraded cars for AAs mirrors later argument that no demand for college for AAs

Brown II (1955)

CJ Warren - Brown I asked for reargument on the remedial question - SCOTUS chooses to leave it to local authorities to come up with solutions, "with all deliberate speed" Court chose not to provide ∏s with an immediate remedy (i.e. admission to the school) and instead provided an "equitable" remedy allowing local authorities to implement desegregation - nothing changes over the next 10 years ". . .require that defendants make a prompt and reasonable start toward full compliance with our May 17, 1954 ruling." ". . . the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel . ." "The . . . cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed. . ." - Chose not to provide an immediate remedy b/c court was concerned nothing would happen, South Carolina AG admitted in oral argument that they would not make an honest attempt to comply with the order. - implicitly acknowledges that black schools are inferior and it would be improper to send white students to those schools without bringing them up to standards - the separate schools were never equal, everyone knows equality didn't exist - "all deliberate speed" = slow and fast - meant to appeal to everyone, one side can claim too slow and the other can claim just being deliberate.

Bolling v. Sharpe (1954)

CJ Warren - Federal gov't obligations vs. state obligations to desegregate - Overturned school segregation in Washington, DC, which is controlled by the federal gov't (can't use 14am) on the ground that the 5am DP clause prohibited it - handed down on the same day as Brown - made the argument that segregation was so unjustifiable that it violated the 5am DP clause - made it so that federal gov't is held to the same standards as states - handed down on the same day as Brown - even though the framers of the Bill of Rights could not have possibly thought that the 5am DP was not consistent with segregation (they thought it could be squared with slavery!), SCOTUS found that 5am DP still guaranteed liberty and equality from federal gov't - doctrinal arguments -> used Korematsu and Hirabiyashi to get strict scrutiny for racial classifications - it would be (politically) unthinkable to hold federal government to a lower standard than states on equality issues (since Brown was handed down the same day ruling that state gov'ts couldn't segregate schools)

Brown v. Board of Education (Brown I) (1954)

CJ Warren -4 AA students in 4 different public school districts sued to gain admission to white schools -"Separate but equal" facilities in public education for whites and AAs are inherently unequal. - made segregated schools unconstitutional - But, the opinion did not provide a remedy (mandate) for schools to desegregate - after this case, court decided all other segregation cases by simply saying segregation is unconstitutional "See Brown" - Relied on the effects that segregation had on schoolchildren. - Relied on social science studies as evidence that segregation was bad for children (which had never really been done before) -Importance of education/History cannot be relied upon: public school is much more important now than it was when the 14th Amendment was adopted, so court cannot look to history/framers and drafters

Loving v. Virginia

CJ Warren; J Stewart, concurring Looking at Virginia's law against miscegenation - declared it unconstitutional Court rejects deference to the legislature, says that anti-miscegenation laws don't even pass rational basis standard -Court is disbelieving of any permissible state goal/overriding purpose. -Interprets the 14th A! to say no invidious discrimination. -Depriving a person of fundamental freedom (marriage) on the basis of racial classification deprives them of liberty without due process of law Anti-miscegenation laws are essential to the preservation of the social hierarchy. Allowing the races to mix means that race is no longer an immutable characteristic, and destabilizes the entire institution of slavery/institutional racism

Lincoln's Emancipation Proclamation (1863)

Emancipation justified as a war measure, against those places hostile to the Union - Lincoln did not want to distance the slave holding states who remained loyal to the Union. Justice Curtis who dissented in Dred Scott did not think that emancipation was constitutional - it punished slave holders who were loyal to the Union and happened to reside in rebelling states, violated their property rights

13th Amendment (1865)

Extends and makes permanent the abolition of slavery. First time Congress has the power to regulate slavery and involuntary servitude

42 U.S.C. §1996(b) - "Interethnic Adoption"

Federal government prohibits states from having a preference for placing children for adoption/foster care with parents of the same race.

Palmer v. Thompson (1971)

J Black -closed pools instead of desegregating; city says its concern about safety and health -Court says it won't decide whether discriminatory purpose because it's impossible to figure out what purpose of multi-member city council -Difficulty of intent as the standard: --judicial competence: Hard to say every member decided with racial animus

Korematsu v. US (1944)

J Black; J Frankfurter, concurring; J Jackson, dissenting; J Murphy, dissenting; J Roberts, dissenting - Curfew -> Removal -> Detention -> Indefinite Confinement of Japanese and Japanese Americans over 11-month period after Pearl Harbor - convicted for violating the removal order and the detention order - distinctions made on race are immediately suspect - Odiousness of racial distinctions from Hirabayashi - Reasonable military judgment is the real standard -> not strict scrutiny for race SCOTUS upheld the constitutionality of the evacuation of Japanese Americans during WWII due to serious national security risk at that time and inability to screen to identify which individuals were truly dangerous. - strict scrutiny for race-based distinctions. - two bodies of law at play: race-based distinctions and reasonable military judgment - major disagreement between the justices: 1) is this racist? 2) should there be individual assessments? 3) should the court, looking back on military judgment defer to judgment when it was made or use benefit of hindsight to decide if the threat was clear? -Frankfurter concurrence (short): military judgment at time of decision -> Murphy dissent: Murphy says this is racism/need individualized assessment, what makes it racist is our refusal to treat these on a case by case basis (like we did with the German and Italian Americans), evidence of racism in General's Report b/c this was framed in a racist way by the military -> Jackson dissent: as more info accumulates, court might declare something unconstitutional that was a reasonable decision when it was made --> dangerous for the future court to ratify bad decisions, even if they may have been reasonable when they were made - Court looks at the military judgment at the time (could military have reasonably believed that the order was necessary) -> every justice agrees on this, but they just come to different conclusions

The Civil Rights Cases (1883)

J Bradley; J Harlan dissent Civil Rights Act of 1875 prohibited racial discrimination in places of public accommodation. Majority 1) "running the slavery argument into the ground" 2) "why should the blacks be special favorite of the law?" Dissent 1) "Badges and incidents of slavery" 2) "Primary and direct in its character" (in reference to 13th amend.)

United States v. Paradise (1987)

J Brennan --In an action challenging the Alabama Department of Public Safety's practice of excluding blacks from employment, the district court ordered promotion of one black trooper for every white trooper elevated in rank, as long as qualified black candidates were available, until the state trooper force was 25 percent black and the department implemented an acceptable promotion procedure. --On certiorari, the SC affirmed and held that the remedy fashioned by the district court served a compelling government interest and was narrowly tailored, and was flexible, waivable, and temporary. The one-for-one requirement did not impose an unacceptable burden on innocent third parties, balanced individual and collective interests at stake, and did not bar advancement of white officers. --Strict scrutiny test met to remedy specific continuing effects of past/present discrimination on Alabama DPS's hiring practices.

Califano v. Goldfarb (1977)

J Brennan -Court struck down a SS provision under which a widow was entitled to survivor's benefits based on deceased husband's coverage regardless of dependency, but only a widower who received at least half of his support from his deceased wife was entitled to benefits "only justification . . . is the assumption. . .based simply on "archaic and overbroad" generalizations, that it would save the Government time, money, and effort simply to pay benefits to all widows, rather than to require proof of dependency of both sexes."

Craig v. Boren (1976)

J Brennan -OK statute: women between 18-21 can drink "near-beer" but disallows men; -Based on empirical and bioligical assumptions/evidence: -Empirical: As a class, men exhibit more dangerous behavior than women do: Men have higher rate of alcohol-related misconduct between ages of 18-21 than women -Biological: Even though men and women as individuals differ in maturity, as a group, women display greater maturity and less impulsiveness than men do from 18-21 -State interest: better public safety and maximizing freedom Established intermediate scrutiny in sex classification cases: -Intermediate scrutiny: use of sex classification has a substantial relationship to achieve important governmental objectives Recognized 3 harms of sex classification: (1) "perpetuates cognitive error" (2) "express pejorative judgments" (3) "impose confining role prescriptions"

Green v. New Kent County School Board (1968)

J Brennan The parents maintained that the board had not taken appropriate steps to desegregate the school because no white child had chosen to go the traditionally all black school and only 15 percent of the black children attended the traditionally all white school. The parents asserted that better options were available that would affirmatively cause integration. The court reversed the decision and held that the board's freedom-of-choice plan could not be accepted as a sufficient step to effectuate a transition to a unitary system. In the three years that the plan had been in place during the appeals, virtually no integration had occurred. Rather than affirmatively dismantling the old dual system, the plan placed the burden of integration on the parents. The court ordered the board to adopt steps to convert promptly to a system without a segregated school. It was incumbent on the board to establish that any proposed plan promised meaningful and immediate progress toward disestablishing state-imposed segregation. "Brown II was a call for the dismantling of well-entrenched dual systems . . ." "School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch . . ." " . . . fashion steps which promise realistically to convert promptly to a system without a 'white' school and a 'Negro' school, but just schools . . ." unitary schools could be the goal of a remedy for 5 years b/c of this decision -> until Milliken

Metro Broadcasting v. FCC (1990)

J Brennan; J O'Connor dissenting; J Kennedy dissenting --Upheld 2 of the FCC's minority preference policies: 1 policy providing that minority-owned businesses would be given a plus in evaluations for new station licenses, and another allowing broadcasters whose licenses were subject to renewal or revocation hearings to transfer them to minority-owned businesses. --Brennan said race-conscious classifications adopted by Congress to address racial/ethnic discrimination were subject to a different standard than classifications adopted by state/local governments. --Important interest - broadcast diversity, which FCC policies were substantially related to. Justice O'Connor's dissent argued that at most Fullilove held that Congress's §5 powers allowed it to pass special kinds of remedial legislation, not applicable in this case. Justice Kennedy's dissent compared the majority's opinion to the Court's use of a reasonableness standard in Plessy v. Ferguson. He argued that the Court failed to consider the interests of whites and other non-preferred groups

Frontiero v. Richardson (1973)

J Brennan; J Powell, concurring; J Rehnquist, dissenting - 5th Amendment due process challenge to scheme of fringe benefits for members of military with dependents. Women were required to prove that husbands were dependent on them for over 50% of support to get dependent benefits, while men were not required to prove the same for their wives. Difference justified as matter of efficiency since most men were assumed to have wives dependent on them for support. - SC ruled that these statutes violated the Due Process Clause of the 5th Amendment (which forbid discrimination so unjustifiable so as to be violative of due process). - Court says sex is a suspect classification and applies strict scrutiny to these statutes. The court would never again apply strict scrutiny to sex-based classifications. - Classifications based on sex, like those based on race, alienage, or national origin are inherently suspect and subject to strict scrutiny. - The USA has had a long history of sex discrimination and "romantic paternalism" towards women. - Sex is an immutable characteristic determined solely by birth which often bears no relation to individual ability to perform/contribute to society. Therefore statutory distinctions between men/women often have effect of relegating entire class of women to inferior status without regard to actual capabilities of individual women. - Congress has manifested increasing sensitivity to sex-based classifications over past decade. - Congress has offered no evidence that differential treatment saves the government money. - Statutory scheme that draws line between the sexes solely to achieve administrative convenience commands dissimilar treatment for men and women similarly situated (like Reed v. Reed) and involves the very kind of arbitrary legislative choice forbidden by Constitution. This statute discriminated against women in 2 ways: 1. Procedural - women had to file affidavit to demonstrate dependency of spouse; men didn't. 2. Substantive - Men with non-dependent spouse got benefits for spouses, while similarly situated women did not. Powell concurrence - Agreed statutes were unconstitutional, but did not want to hold all classifications based on sex should be subject to strict scrutiny. States were deciding that issue by voting on Equal Rights Amendment.

Keyes v. School District No.1 (Denver) (1973)

J Brennan; Rehnquist dissent; Powell concurring in part, dissenting in part - Denver school system was highly segregated, although not by the mandate of any law. - District ct had found that school board had engaged in manipulation of attendance zones/selection of school sites to segregate in an outlying community, although not in the inner city. Yet the district ct ordered district-wide desegregation in order to assure equal educational opportunity to the inner-city schools. - SCOTUS upheld this plan - said there had been de jure segregation in the district because of the intent to segregate - and plaintiffs didn't have to prove an intent to segregate throughout the entire system. Finding of intentionally segregative school board actions in a meaningful portion of the school system was enough to establish a prima facie case of unlawful segregative design on the part of school authorities. Rehnquist's dissent - he saw no constitutional justification for forcing school boards to affirmatively undertake to achieve racial mixing in schools where segregation wasn't once mandated by law, and where mixing isn't achieved by neutrally drawn boundary lines. Powell's concurrence/dissent - - He felt the court should eliminate the de jure/de facto segregation distinction. - He would simplify the current court practice by holding where segregated schools exist within a system to a substantial degree, there is a prima facie case the school board is responsible and the court should impose burden to demonstrate they are operating integrated system. - He felt that the EP Clause didn't require that schools undertake widespread busing programs to integrate.

Muller v. Oregon (1908)

J Brewer -Oregon statute said women could work no more than 10 hours in a day in factories and laundries -Brandeis brief showing link between long hours and women's health -Background: Lochner Era: freedom of contract -Court unanimously upheld the Oregon statute, making a distinction between NY law struck down 3 years prior in Lochner - case fondly looked upon for protecting workers rights, but has a lot of horrible language about the delicacy of women

Berea College v. Kentucky (1908)

J Brewer KY statute prohibits a private entity (college) from integrating education; Supreme Ct. rejected challenge: upheld the statute

Plessy v. Ferguson (1896)

J Brown, J Harlan dissent Louisiana statute created criminal penalties for sitting in the wrong railway car, though it mandated "separate but equal" accommodations; also imposed legal obligation on RR officers to assign passengers, civilly and criminally liable. RR officer was exempted form civil liability if accused of wrongfully placing someone in a car. Questions the system of racial classifications, and what equal protection of the laws means. Majority reasoning: -13th doesn't apply - no perpetuating slavery by creating a legal distinction - 14th only requires equal treatment, as long as both classes of people getting treated equally under the law there's no harm. Further, 14th's prohibition on unfriendly legislation from Strauder met with a "reasonability" standard - state's police power constrained by the reasonability of the action - 14th not meant to establish social equality Harlan's Dissent: "Our Constitution is colorblind, and neither knows nor tolerates classes among citizens." p.432 "the common government of all shall not permit the seed of race hate to be planted under the sanction of the law." p. 433 "that, as all will admit, is the real meaning of such legislation as was enacted in Louisiana." p. 433 "The white race continues to be the dominant race in this country...so, I doubt not, it will continue to be for all time...But in the view of the Constitution, there is in this country no superior, dominant, ruling class of citizens." p. 432

Milliken v. Bradley (1974)

J Burger; J White, J Marshall dissent - District ct had found de jure segregation within city of Detroit school system (predominately Black). It entered a decree including 53 surrounding suburban (mostly White) districts, even though there was no substantial evidence of race-dependent action designed to separate city's blacks from suburbs' whites. - Supreme Court reversed. Inter-district remedy was not in order if no inter-district violation. Remedy must be confined to the Detroit city schools. - Dissent (White) - an interdistrict remedy is well within the powers of the State, which is responsible for desegregating its schools. Configuration of local governmental units isn't immune from alteration when necessary to redress constitutional violations. - Dissent (Marshall) - the State's action might have contributed to the disparity in racial makeup between Detroit and its suburbs. The rippling effects on residential patterns caused by this segregation don't stop at the school district boundaries. "Allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action." (Marshall dissent) Significance: Signaled the end of an era of strong Supreme Ct support for extensive desegregation remedies and that the SC was not going to support remedies that moved across school district lines.

Buchanan v. Warley (1917)

J Day Statute says that whites can't live/occupy residence on a block where blacks are the majority and vice versa; blacks cannot occupy a residence on a block where whites are the majority Decided to be unconstitutional; More focused on real property rights than equality

Pace v. Alabama (1883)

J Field (& J Harlan signed on) Alabama had statute forbidding adultery / fornification with max penalty of 6 months, while miscegenation provision had minimum sentence of 2 years, max of 6 (so stricter penalties for interracial sexual relations outside of marriage than sexual relations within one race outside of marriage). Also, Alabama had a statute forbidding interracial marriage. Court found that the law was applied equally to both races, so there was no violation of EP

Ho Ah Kow v. Nunan (1879)

J Field (sitting on circuit in CA dist court) --San Francisco ordinance required that all males in county jail had to have hair clipped to one inch from scalp. --Many Chinese men were in jail due to tenement statutes (Chinese that lived in tenements had to pay fine or go to jail. Many chose jail). --J Field said - this law wasn't meant for disciplinary or sanitary purposes - meant to target Chinese men and force them to pay their fines, because they would rather pay fine than have their long queue (braid) cut off. --This law, therefore, violated the Equal Protection Clause - it was special legislation against a class of persons who were entitled to the equal protection of the laws. A law that didn't single out a specific ethnic group by name still could be impermissible class legislation (and a violation of the EP Clause) if evidence and the surrounding context showed that the law had an inappropriate purpose.

Gomillion v. Lightfoot (1960)

J Frankfurter --AL legislature changed boundaries of the city of Tuskegee from a square to a 28 sided figure. --Effect was to remove not one white voter, but all but a handful of black voters from the city limits --The SC struck down the law as a violation of 14EP - legislature had segregated whites and blacks by fencing blacks out of town. --This law could only be understood as having both the intent and effect of disenfranchising blacks (violation of the 15th Amendment) "tantamount for all practical purposes to a mathematical demonstration that the legislature is solely concerned with segregating white and colored voters by fencing Negro citizens out of town." --Another law not formally discriminating on the basis of race, but whose effect was to disenfranchise blacks (like the ancestry requirement in Guinn - 15Am violation) (like the disc intent of laundromat regulation in Yick Wo - 14Am violation)

Goesaert v. Cleary (1961)

J Frankfurter -Sustained Michigan law forbidding women to work as bartenders unless they were in company of husband/father - applied minimum RBR standard - quick deliberation, seemed obvious to the court "the fourteenth amendment did not tear history up by its roots" "Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men claimed . . . does not preclude the state from drawing a sharp line between the sexes, certainly in such matters as the regulation of liquor traffic."

U.S. v. Virginia (VMI) (1996)

J Ginsburg; J Rehnquist, concurring; J Scalia, dissenting - VMI has all male education program with purpose to produce "civilian soldiers" / excellence - Court says unconstitutional and their suggested remedy inadequate on grounds similar to Sweatt's intangibles - Conflict with Ginsburg and Rehnquist regarding whether EP is a group based right or individual based right - Puts "exceedingly persuasive justification" gloss on intermediate scrutiny standard VMI Justified by saying: (1) diverse educational opportunity --> court says that's not true, not part of a diverse plan, rejects on factual grounds (doesn't say diversity not an important interest) (2) their particular educatoinal environment will be harmed by allowing women --> court says no empirical evidence that it will be significantly harmed, and purpose is to build citizen soldiers, which can still be accomplished

Cumming v. Richmond County Board of Education (1899)

J Harlan AA community challenges that municipal only has white high school, not providing for AAs; court rejects challenge Asking for wrong remedy; (like asking for injunction in Giles); injunction sought wouldn't give any opportunity to AAs; Court's sense of impotency Standard of Review to interfere in schools: "clear and unmistakable disregard for rights secured by the supreme law of the land"

Giles v. Harris (1903)

J Holmes Argument is that Alabama has vast conspiracy to deny AAs right to vote; restrictions and tests with avowed purpose of excluding AAs from voting Epitomizes court's sense of impotency that it CANNOT address the problem; lacks political force if a state is intent on disenfranchising AA's; court's perception that—even if it wanted to—its ability to change what's going on the ground

U.S. v. Shipp (1906)

J Holmes Chattanooga lynching: sheriffs tell Ed Johnson not to appeal and accept execution; less horrific than lynching and they couldn't stop lynching if he appealed; AA lawyer decides to rep. Ed Johnson; Harlan grants writ; Supreme Ct. will hear; Mob gets a hold of Ed Johnson, hangs him, shoots 50 times, pins note "come get your n*, Justice Harlan" First and only time criminal trial held in Supreme Ct.: private citizens charged with contempt of court; depriving Supreme Ct. of jurisdiction

Missouri ex rel. Gaines v. Canada (1938)

J Hughes Higher education: whites only; state will pay for AAs to go out of state to university = Decided unconstitutional Violates personal rights of AAs to be denied equivalent opportunity within their jurisdiction

Freeman v. Pitts (1992)

J Kennedy -district court had found that dual school system was dissolved in 1981; -continued segregation caused by white flight and not by actions of local government authorities -limited nature of federal relief when no finding of ongoing constitutional violation by the state "Where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts."

Fisher v. University of Texas Austin (2016)

J Kennedy; J Alito dissenting -First time it went to SCOTUS, court makes clear that deference to academic official only extends to whether diversity will enhance the educational environment and NO deference to whether a plan is narrowly tailored; sends it back for 5th circuit to determine whether it was narrowly tailored -5th circuit finds that UT's plan of 75% top 10% admission and 25% academic index & personal index (which included race as a consideration) was narrowly tailored because of UT's research, focus on lack of diversity at classroom level, not satisfied with results top 10% plan -SCOTUS affirmed. -Shift in argument from anti-classification (Moral imperative to avoid race-based decision-making) to anti-balkanization (that the evil of affirmative action is that it perpetuates racial politics and resentment) -The less visible the affirmative action program, the more likely it will be accepted -O'Connor's argument in Grutter dictates the argument in Fisher: okay to want to attain elite status and consider race at the margins -J. Kennedy: applauds states that give an honest, good faith effort to explore alternatives, and use race as a factor minimally: use it as a factor of a factor of a factor .

Tuan Anh Nguyen v. INS (2001)

J Kennedy; J Scalia, concurring; J O'Connor dissenting --US law automatically granted American citizenship upon birth to a child born out of wedlock in a foreign country if born to an American citizen mother/noncitizen father, but required a paternity decree to be entered before the child turned 18 if the child was born to an American citizen father/noncitizen mother. --Nguyen was born in Vietnam to a Vietnamese mother/American father and was raised by his father, coming to the US at age 6. --At age 22 he pleaded guilty to sexual assault on a minor and the INS prepared to deport him. --He then challenged the relevant immigration law was a violation of equal protection because different rules applied for children of American citizen women than for American citizen men. --The SC upheld this law and said EP did not forbid Congress for addressing this issue in a gender-specific way. --Congress' decisions regarding this law were based on significant difference between mothers'/fathers' relationship to child at birth and was justified by 2 important governmental objectives: 1. Importance of assuring a biological parent/child relationship exists. 2. To ensure that the child and citizen parent have an opportunity to develop a relationship with real ties between the parent/child and the US. --For mothers - knowledge of child and fact of parenthood are established in a different way because she carries/gives birth to the child. Dissent (O'Connor): --Sex-based statutes deny individuals opportunity. --Physical differences between men and women don't justify discrimination in this statute. --This law is based on stereotypes of women having responsibility for children and men not having responsibility. --Congress could easily advance goal of parents/children having a relationship by using sex-neutral classification.

Yick Wo v. Hopkins (1886)

J Mathews --San Francisco Board of Supervisors granted permits to operate laundries to 79 of 80 Caucasian applicants, but 0 of 200 Chinese applicants. --Court reversed petitioners' convictions for operating laundries without permits. --Law appeared fair on its face, but administration of the law was done unequally - unjust and illegal discrimination between persons of similar circumstances. --When this type of discrimination occurs, treated just as if the law denied Chinese equal justice. Laws that don't overtly classify on the basis of race may still violate the 14th Amendment, if they are administered in a race-dependent manner. "The face of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified."

Bradwell v. Illinois (1873)

J Miller; J Bradley concurrence -Bradwell denied right to practice law solely because she was a woman; -Bradwell argues that the 14th amendment created the protection from states denying its own citizens the rights given in P&I clause; because of the P&I right to pursue one's own profession, she should be able to practice law -Decided same day of SlaughterHouse which severely limited P&I clause in 14th amendment -Bradley Concurrence based on natural law (law of Creator) that personal fundamental liberty including choosing vocation does not apply to women because they are by nature meant to be wives and mothers -interpretation of 14th amendment P&I -Federal government not allowed to regulate the granting of licenses to practice laws in states -14th amendment wasn't about law licenses--was about racial discrimination -women's citizen in the U.S. does not = right for women to get law licenses or protect them against States denying them law licenses

Slaughter House Cases (1873)

J Miller; J Bradley dissent -broad definition of P&I was argued to include right to choose one's vocation -> this interpretation was rejected

Shaw v. Reno (1993)

J O'Connor --The Court found that if a redistricting map is "so bizarre on its face that it is 'unexplainable on grounds other than race'," that a claim for relief under the Fourteenth Amendment to the United States Constitution is available to plaintiffs. --Such redistricting will be held unconstitutional if it is found to be intended to segregate voters by race and this segregation cannot be justified under a standard of strict scrutiny. --Actions subject to this standard must satisfy three conditions: a compelling government interest, narrowly tailored to achieve that goal, and the least restrictive means for achieving that interest. Redistricting designed to increase the electoral representation of blacks was subject to strict scrutiny under the Equal Protection Clause

Grutter v. Bollinger (2003)

J O'Connor; J Ginsburg concurring; CJ Rehnquist, J Kennedy, J Scalia, J Thomas dissenting --Upheld the University of Michigan Law School's use of race as one factor in evaluating applicants. No specific quota used, but Admissions Director was hoping to ensure that a "critical mass" of underrepresented minority students would be reached. --Confirmed that diversity was a permissible compelling interest in higher education affirmative action plans. Allowed for affirmative action plans to be reintroduced in the 5th Circuit (and at UT) "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." --Endorsed Justice Powell's view in Bakke that student body diversity is a compelling state interest that can justify use of race in university admissions. --Strict scrutiny used to evaluate program. Also reiterated that quota system would be unacceptable. --Program was also narrowly tailored because school had considered race-neutral alternatives - but they would require a dramatic sacrifice of diversity. --Mentioned that hopefully program would not be needed in 25 years. Rehnquist dissent - program is an effort to achieve racial balancing, which is unconstitutional. Kennedy dissent - race was predominant factor, need to look at students individually. Scalia dissent - this Grutter/Gratz split seems perversely designed to prolong controversy and litigation. Gov't proscribes gov't discrimination on basis of race. Thomas dissent - blacks can achieve in every avenue of American life without meddling of university administrators. School isn't considering race-neutral alternatives because their real interest is to be an elite law school.

City of Richmond v. J.A. Croson Co. (1989)

J O'Connor; J Scalia concurring; J Marshall dissent --Richmond City Council had Minority Business Utilization Plan (based on federal plan upheld in Fullilove v. Klutznick) that required prime contractors on city construction projects to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises (MBEs). --SC held that city of Richmond failed to identify need for remedial action in awarding of public construction contracts, so this plan violated the Equal Protection Clause. "The 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. It rests upon the 'completely unrealistic' assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population." --Federal government has wider authority than local/state governments to address these types of issues. --Strict scrutiny is the standard. --History of private/public discrimination can't justify rigid racial quota in awarding of public contracts. --Richmond program is not linked to identified specific discrimination - therefore impermissible. Scalia (concurrence) - SC should never allow states to use racial classifications to undo effects of past discrimination, unless it is necessary to eliminate its own system of unlawful racial classification, or give relief to a specific victim. Marshall (dissent) - Richmond has provided plenty of evidence regarding justification for this program. Disagrees with strict scrutiny standard here and says this is deliberate and giant step backward in SC's affirmative action jurisprudence.

Johnson v. California (2005)

J O'Connor; J Scalia, dissenting; J Thomas, dissenting Cert. granted to address whether the CA prison's policy of housing inmates by race for first 60-90 days should be reviewed under strict scrutiny or whether deference should be given to the prison - court holds that SS applies Distinction between anti-subordination and anti-classification brought out; there is likely only a harm in this case if the theory is anti-classification, b/c it would be hard to show that someone is being privileged/disadvantaged to prove subordination "The need for strict scrutiny is no less important here, where prison official cite racial violence as the reason for their policy." "racial segregation of inmate 'may exacerbate the very patterns of [violence that it is] said to counteract'"

Adarand Constructors v. Pena (1995)

J O'Connor; Scalia, Thomas concurring; J Stevens dissenting --Section 8(a) of Small Business Act awarded compensation to prime contractors working with federal gov't if they hired subcontractors controlled by socially/economically disadvantaged individuals. --Specifically held that all racial classifications must be analyzed by a reviewing court under strict scrutiny: -- Metro Broadcasting overruled to extent it was inconsistent with this, and Fullilove was no longer controlling regarding a less rigorous standard for reviewing federal racial classifications. --3 general principles with respect to governmental racial classifications: 1. Skepticism - strict scrutiny 2. Consistency - standard of review not dependent on race of those affected. 3. Congruence - EP analysis in 5th Amendment is the same as that under the 14th Amendment. Scalia concurrence - gov't can never have a compelling interest in discriminating on the basis of race to make up for past racial discrimination. Only individual relief permitted. Thomas concurrence - even paternalistic racial preferences are unconstitutional - under the Constitution, gov't can not make distinctions on basis of race. Stevens dissent - disagrees with using same standard for racial preference designed to help and harmful racial preferences, and using same standard for federal/state regulations.

Wygant v. Jackson Board of Education (1986)

J Powell - Lay off policy at a high school gave preference to minority teachers - role model theory is not CI, would go on forever - solution not narrowly tailored - being fired is a worse harm than not being hired "alleviating the effects of societal discrimination" and providing "minority faculty role models" not compelling public employer must have "convincing evidence that remeidal action is warranted, sufficietn evidence to satsify the conclusion that there has been prior discrimination."

Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977)

J Powell -challenged city's refusal to rezone to change parcel from single-family to mutli-family; -Held that disparate impact can be significant evidence of discriminatory purpose, but focus remains on whether there is discriminatory purpose by gov't actor RULE: If a law does not make a racial distinction on its face, you have to show that adverse decision was made for a particular group BECAUSE of not IN SPITE OF an adverse impact

San Antonio Independent School Dist. v. Rodriguez (1973)

J Powell -no federal constitutional right to equal education opportunity -foreclosed just asking for funds; -reason why Jenkins had to frame "magnet school" as a way to attract whites and contribute to the racial-integration -allows for white abandonment of inner city schools

Regents of UC v. Bakke (1978)

J Powell; Brennan conc/diss; Marshall, Blackmun, Stevens dissenting - Affirmative Action plan at UC Davis medical school with 16/100 seats reserved for minorities - Diversity in higher education is (the only) compelling interest, but remedying societal discrimination/achieving racial balance/serving underserved communities are not. Stevens: we should not allow aff act b/c of the classification problems Marshall: there is a different experience for AAs (no matter how affluent) -> this has made it unfair for AA students to jump through same hoops as everyone else "'majority' and 'minority' necessarily reflect temporary arrangements and political judgements. . ." "Those whose societal injury is thought to exceed some aribitrary level of tolerance then would be entitled to preferential classifications at the expense of individuals belonging to other groups" "We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in absence of . . . findings of constitutional or statutory violations." "the attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education."

McClesky v. Kemp (1987)

J Powell; J Brennan, dissenting - death penalty case - Baldus study showing factors that contributed to a ∆ getting the death penalty by studying over 2000 death penalty cases in GA in the 70s: race of the victim is the most important factor -- when there is a white victim, a defendant is 4.3 more likely to get a death sentence - ∆ was AA and his victim was a white police officer (most likely death penalty combo) - court does not deny that Baldus study is correct, but even if there is racial bias in the administration of the death penalty, that is not the standard for a ∆ to succeed on an EP claim -> must show that an actor had discriminatory intent toward him (impossible to show) Majority: constitutional violation framework: - facial discrimination? no - discriminatory intent? -- if you accept that Baldus study is accurate (and it does), race is an extremely important in administration of death penalty -- but this is not a disparate impact case -- but McClesky did not show that any government actor discriminated against him -> EP doesn't focus on system, focuses on particular claimant -- Also, you can't interrogate the jury after the fact, or the prosecutor after the fact -> we know that race is playing a role, but because you can't point to exactly where it is happening, no relief for anyone Dissent, argument that McClesky's sentence is unconstitutional: - historically racist death penalty, not just a statistical study - could say that you don't need the death penalty (kind of like reverse business necessity) - but the odd remedy would have been forcing the state to seek the death penalty to protect black victims and not just white ones

Michael M v. Superior Ct of Sonoma County (1983)

J Rehnquist --A male challenged the constitutionality of CA's statutory rape law, which made only males liable (defined statutory rape as an act of intercourse accomplished with a female not the wife of the perpetrator, where female is under 18). He said it was a violation of the EP Clause. --SCOTUS said that this law was constitutional because the law was sufficiently related to the important state objective of preventing teenage pregnancies. --Teenage pregnancies have significant consequences for teenage mothers, their children, and the state. --Young men and women are not similarly situated with respect to the problems and risks of sex - because only women may become pregnant, and women suffer the consequences disproportionately. --Statute protects women from sex at an age when those consequences are particularly severe.

Rostker v. Goldberg (1981)

J Rehnquist; J Marshall dissenting; J White dissenting --Military Selective Service Act authorized President to require registration for possible military service for males, but not for females. This was challenged as a violation of 5th Amendment due process. --SC ruled that the MSSA's registration provisions did not violate the 5th Amendment - Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women. --Congress is subject to the DP clause, but the SC also accords great weight to the decisions of Congress, especially in military affairs. --Congress carefully considered whether to register both sexes for a potential military draft. --Congress then determined that any future draft would be characterized by a need for combat troops, and women are excluded from combat by statute and military policy. --Men and women are thus not similarly situated for purposes of a draft or registration for a draft - Congress' decision to authorize the registration of only men thus does not violate the DP clause. White dissent - administrative convenience has not been sufficient justification for this kind of outright gender-based discrimination in registering and conscripting men, but no women. Number of women who could still be used in military is not insubstantial. Marshall dissent - No reason for concluding that excluding women from registration is substantially related to the important governmental objective of maintaining an effective defense. Government has not shown gender-neutral statute would be less effective. We can't push back the limits of the Constitution to accommodate challenged legislation.

Edwards v. Aguillard (1987)

J Scalia dissenting -impossible to determine a legislator's intent (in context of Est Clause) - "The number of possible motivations, to begin with, is not binary, in indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor . . . to look for the sole purpose of even a single legislator is probably to look for something that doesn't exist."

Geduldig v. Aiello (1974)

J Stewart - California disability benefit plan excluded pregnancy - pregnancy is not a sex classification - Demonstrates that discrimination based on pregnancy is not a sex classification - Classifications based on pregnancy is practically never unconstitutional sex discrimination (b/c not a sex classification and state doesn't have discriminatory intent toward women) - state excludes pregnancy from disability coverage because it is very expensive to cover pregnancy, and non-childbearing men and women are affected by this expense - pregnancy is facially neutral because: -- nonpregnant men and women will benefit from not having this extra expense -- not all women/all men fall on either side of the line

Personnel Administrator of Massachusetts v. Feeney (1979)

J Stewart; J Stevens, concurring; J Marshall dissenting -Massachusetts policy that gave absolute, lifetime preference for veterans in civil service job hiring -Veterans always get preference to non-veterans, even if being a veteran has no bearing on job skill required; veteran status = 3 months in the military with 1 of those days being during wartime -Facially neutral policy challenged as perpetuating sex inequality -leading case on disparate impact for race and sex -if it is not considered a sex classification, will need to find discriminatory intent (statute passed with motivation to harm women -> Arlington Heights factors) -awareness of the harm is not sufficient to satisfy proof of discriminatory motive: have to had adopt policy "because of not in spite of" harm to women -Extremely rare to be able to prove discriminatory intent because most statutes have a real policy behind them (McClesky problem) -Post-Feeney: no cases where Supreme Ct. has found a facially neutral policy to be a sex-discriminatory motive -preference meant to (1) assist adjustment to civilian life, (2) encourage enlistment into the military, (3) reward people who have served the country -not intentional discriminatory intent J. Stevens concurrence: 1.9 million men are not veterans; 3 million women are not veterans: even though it's true that veterans are 98% men, the people who are disadvantaged on not as overwhelmingly women - J Marshall dissent: no need for lifetime preference; degree, inevitability, and foreseeability of impact on women; would want the statute to be more narrowly tailored to avoid harming women, i.e. point system that gives vets a preference, but not so sex-skewed civil service ranking system

Strauder v. West Virginia (1880)

J Strong --WV statute limited jury service to white males over age 21. --Strauder convicted of murder before all-white jury - challenged conviction as violating 14th Am. --SCOTUS held that this statute was unconstitutional because it violated the 14th amendment. Interesting that SCOTUS granted a political right to African Americans here, although 14th Amendment was generally considered to be about civil rights. Interesting also that 14th Am. wasn't enough then to give AAs the right to vote. --Denying people of color, US citizens, right to serve on juries because of their color is a brand upon them of their inferiority, stimulant to race prejudice which is an impediment to equal justice for them. --the quote about law can't target African Americans with "unfriendly legislation" is clearly not the rule after this case.

Adkins v. Children's Hospital (1923)

J Sutherland court ruled that minimum wage law for women violated liberty of contract -Pointed to changes in women's status from the 19th amendment to distinguish from Muller -19th embodied a norm of equal citizenship that had implications outside of voting

McLaurin v. Oklahoma State Regents (1950)

J Vinson AAs have to sit in separate areas of the classroom, lunchroom: absolute material equality (more than Sweatt) Same professors, same education, but still violating separate but equal: --Prevents full exchange of ideas --creates impoverished education --denial of access & interaction is foundation of what's wrong Sweatt and McLaurin together severely undercut segregation in higher education

Washington v. Davis (1976)

J White --Challenge of Test 21 (required to get a job in DC police force; tested for communication skills) because it disproportionately excluded AAs --Court of Appeals: invalidated test because not proven that it related to job performance (essentially incorporated the Title VII test into the 5th and 14th amendments) --Supreme Court: in order to prevail, must show purpose to discriminate against AAs, disparate impact is not the constitutional standard Constitutional Standard: in order to prevail for an EP claim, must show purpose to discriminate against AAs --Intent: not awareness of disparate impact; has to want the disparate impact as motivation for passing the law --Intent is the only other alternative even though it is not the best (hard to determine an entire legislature's intent when passing a law)

Guinn v. U.S. (1915)

J White --OK constitution required literacy tests for voting, but exempted anyone descended from a person entitled to vote on 1/1/1866, or from a person who resided in a foreign nation at that time. --The SC held that the law violated the 15th Amendment - there was no plausible reason for the exemption other than to disenfranchise blacks. --Law did not formally discriminate on the basis of race, but was obviously meant to disenfranchise blacks. "Certainly it cannot be said that there was any particular necromancy in the time named which engendered attributes affecting the qualification to vote which would not exist at another and different period unless the 15th Amendment was in view."

Taylor v. Louisiana (1975)

J White Overruled Hoyt v. Florida - held that criminal dependent was deprived of 6th Amendment right to jury composed of a cross-section of the community by practice of automatically exempting women from jury service unless they had filed a declaration of their desire to serve.

McLaughlin v. Florida (1964)

J White; J Stewart concurring Repudiated Pace, invalidated a statute that punished interracial cohabitation more severely than cohabitation of persons of the same race Court rejects rational basis review; expands view of EP clause "But we deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications 'constitutionally suspect' . . .and subject to the 'most rigid scrutiny' . . ." Stewart: "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend on the race of the actor."

U.S. v. Fordice (1992)

J White; J Thomas, concurring -3 white flagship schools in MS; policies designed to limit minority entry into those schools -Holding: state has not satisfied burden of proving that it has dismantled its prior dual system Standard: policies and practices w/ segregative effects w/o sound educational justification AND can be practicably eliminated = failure to satisfy affirmative duty to dismantle prior system Reasoning: 1. Number of schools: didn't need 8 universities based on population 2. Mission statements that distinguished between research, urban, and regional schools; designed in part to facilitate racial discrimination; 3. Admissions requirements (ACT score): intended to exclude minority enrollment 4. Program duplication facilitated dual system "if the state perpetuates policies and practices traceable to its prior system that continue to have segregative effects--whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system -- and such policies are without sounds educational justification and can be practicably eliminated, the State has not satisfied its burden of proving that is has dismantled its prior system." J. THOMAS CONCURRENCE: "we do not foreclose the possibility that there exists "sounds educational justification" for maintaining historically black colleges as such."

US v. Harris (1873)

J Woods - SCOTUS says 14am doesn't extend to criminal provisions, does not allow federal government to prosecute for local crimes - KKK Act is unconstitutional - possibly could be constitutional under Equal Protection, except language of the CRA 1871 doesn't talk about equal treatment of races

Sipuel v. Board of Regents University of Oklahoma (1948)

OK Whites only law school; denied admission because AA -> Decided Unconstitutional State has to provide for AAs as it does for other groups

Equal Rights Amendment

Passed by Congress in 1971, pushed by NOW, immediately ratified by 35 states, clear it wouldn't be ratified by enough states by 1979, Nevada just ratified it-> idea for ERA introduced in 20s

Equal Pay Act of 1963

Required employers to provide male and female employees equal pay for equal work. - Affected only a small number of women, due to extreme sex segregation in labor force at that time. - Did not address sex discrimination in hiring/promotion - biggest barriers to equal opportunity in employment. - But hearings leading to passage of Act did give visibility to inequalities women faced in labor force, and created foundations for more far-reaching antidiscrimination laws in 1964 (Civil Rights Act)

Naim v. Naim (1956)

SCOTUS per curiam told Virginia SC to reconsider decision upholding miscegenation conviction; Virginia reinstates opinion and SC declines to rehear for lack of a federal question

Linda Krieger's Commentary on Discriminatory Intent Standard

Stereotyping is a matter of cognition, it's how we understand the world -> making quick judgments with little information - we can't will these preconceived ideas out of ourselves - sometimes there are some who want to harm others, but it is universal that we react to people differently based on their characteristics --> Solution is to have a constitutional standard where a plaintiff just has to show that his/her race made a difference in the decision-maker's decision (JS thinks this is an unworkable standard)

Corwin Amendment (1861)

Supported by Lincoln and sent to the states for ratification, would have become the 13th amendment No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State. Permanent protection for slavery against Congressional interference