Chapter 7

McCleskey v. Kemp

"'Discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequence. It implies that the decisionmaker, [such as a state legislature], selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group."

The Fugitive Slave Act of Article IV, § 2

"No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

The Equal Protection Clause of the Fourteenth Amendment

"No state shall . . . deny to any person within its jurisdiction the equal protection of the laws."

[T]here are two basic ways of establishing a classification:

(1) Where the classification exists on the face of the law; or (2) laws are facially neutral but there is a discriminatory impact to the law or discriminatory effects from its administration.

Overinclusive

A law is overinclusive if it applies to those who need not be included in order for the government to achieve its purpose. The law unnecessarily applies to a group of people.

Tolerance for Overinclusiveness Under Rational Basis Review

A law is overinclusive if it regulates individuals who are not similarly situated; if it covers more people than it needs to in order to accomplish its purpose. Overinclusive laws are unfair to those who are unnecessarily regulated and they risk "burden[ing] a political powerless group which would have been spared if it had enough clout to compel normal attention to the relevant costs and benefits." The Supreme Court has indicated that even significant overinclusiveness is allowed under rational basis review.

Underinclusive

A law is underinclusive if it does not apply to individuals who are similar to those to whom the law applies.

Griffin v. County School Bd.

The Supreme Court declared it unconstitutional for school systems to close rather than desegregate. The Court ordered these schools reopened and explained that "[w]hatever nonracial grounds might support a state allowing a county to abandoned public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional."

Race and National Origin Classifications on the Face of the Law

Facial race and national origin classifications exist when a law, in its very terms, draws a distinction among people based on those characteristics.

Gong Lum v. Rice

The Supreme Court concluded that Mississippi could exclude a child of Chinese ancestry from attending schools reserved for whites. The court said that the law was settled that racial segregation was permissible and that it did not "think that the question is any different or that any different result can be reached . . . where the issue is as between white pupils and the pupils of the yellow races."

Berman v. Parker

The Supreme Court declared that "Public safety, public health, morality, peace and quiet, law and order—these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it."

Green v. County School Board

The Supreme Court declared unconstitutional a "freedom of choice plan" that was a common approach used to frustrate desegregation." The Court emphatically declared that school boards have "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."

McLaughlin v. Florida

The Supreme Court declared unconstitutional a Florida law that prohibited the habitual occupation of a room at night by unmarried interracial couples. The court emphasized that the state offered no acceptable justification for why a race-neutral law could not adequately serve its purpose of punishing premarital sexual relations.

Strauder v. West Virginia

The Supreme Court declared unconstitutional a West Virginia law that limited jury service to "white male persons who are twenty-one years of age and who are citizens of this State." The Court explained that the Fourteenth Amendment was "designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States." The Court declared the law unconstitutional because it expressly "singled out" and disadvantaged blacks.

Personnel Administrator of Massachusetts v. Feeney

"Discriminatory purpose," . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.

Bolling v. Sharpe

A case concerning the segregation of the District of Columbia public schools, the Court held that equal protection applies to the federal government through the Due Process Clause of the Fifth Amendment. The Court interpreted the Fifth Amendment as including an implicit requirement for equal protection, declaring that "discrimination may be so unjustifiable as to be violative of due process."

Racial Classifications Burdening Both Whites and Minorities

Antimiscegenation laws—statutes that prohibit interracial cohabitation and marriage—apply to both whites and blacks. The Supreme Court initially upheld such laws on the ground that they did not discriminate; the court saw them as treating blacks and whites equally. Subsequently the court recognized that such racial classifications are impermissible under the Equal Protection Clause because they are based on assumptions of the inferiority of blacks to whites.

Strict Scrutiny

Discrimination based on race or national origin is subjected to strict scrutiny. Discrimination against aliens is subjected to strict scrutiny, although there are several exceptions where less than strict scrutiny is used. Under strict scrutiny, a law is upheld if it is proven necessary to achieve a compelling government purpose. The government must have a truly significant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternatives. The government has the burden of proof under strict scrutiny and the law will be upheld only if the government persuades the court that it is necessary to achieve a compelling purpose. Strict scrutiny is usually fatal to the challenged law.

What is the Classification?

How is the government distinguishing among people.

Does the Law Have a Legitimate Purpose?

In assessing whether there is a legitimate purpose for a law, there are two questions: What constitutes a legitimate purpose? How should it be decided whether there is such a purpose present—must it be the actual purpose behind the law, or is it enough that such a purpose is conceivable?

Brown v. Board of Education

In this case it is argued that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. The Court stated that the Fourteenth Amendment contains the rights most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctively as colored—exemption from legal discrimination, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race. The Court emphasized the importance of education stating that: education is perhaps the most important function of state and local governments; it is the very foundation of good citizenship; and that it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. The Court answered the following question: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? The Court answered yes. Stating that to separate children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. e. The Court held that in the field of public education the doctrine of "separate but equal" has no place.

Dred Scott v. Sandford

In this case, the Court answered the following question: Can a negro, whose ancestors were imported into this country, and sold as salves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? The Court stated that one of the rights guaranteed to citizens is the privilege of suing in a court of the United States. The words "people of the United States" and "citizens" both describe the political body who form the sovereignty, who hold the power and conduct the Government through their representatives. The Court stated that these class of people, negros, are not included nor intended to be included under the word "citizen" and cannot claim the rights and privileges secured by citizens. The Court concluded that negros "were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them." The Court states that the black race was "never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection." The Court stated that Dred Scott was not a citizen and not entitled as such to sue in the courts. The Court answered the following question: Whether Congress was authorized to pass this law, the Missouri Compromise, under any of the powers granted to it by the Constitution. The Court held the following: "it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident."

Intermediate Scrutiny

Intermediate scrutiny is used for discrimination based on gender and for discrimination against non-marital children. Under intermediate scrutiny, a law is upheld if it is substantially related to an important government purpose. The court must find that the government's purpose is "important." The means used must have a "substantial relationship" to the end being sought. Under intermediate scrutiny, the government has the burden of proof. The Supreme Court explained that the "burden of justification is demanding and that it rests entirely on the state."

Tolerance for Underinclusiveness Under Rational Basis Review

Laws are underinclusive when they do not regulate all who are similarly situated. Underinclusive laws raise the concern that the government has enacted a law that targets a particular politically powerless group or that exempts those with more political clout. But the Supreme Court has said that when rational basis review is used, even substantial underinclusiveness is allowed, because the government "may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind."

Race-Specific Classifications that Disadvantage Racial Minorities

Laws that expressly impose a burden or disadvantage on people because of their race or national origin.

Article V

Prohibited Article I, § 9 from being altered by constitutional amendments.

Article I, § 9

Prevented Congress from banning the importation of slaves until 1808.

Strict Scrutiny for Discrimination Based on Race and National Origin

Racial classifications will be allowed only if the government can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling government purpose. The government must show an extremely important reason for its action and it must demonstrate that the goal cannot be achieved through any less discriminatory alternative. The court has expressly declared that all racial classifications—whether disadvantaging or helping minorities—must meet strict scrutiny.

Rational Basis Review

Rational basis review is the minimum level of scrutiny that all laws challenged under equal protection must meet. Under rational basis review a law will be upheld if it is rationally related to a legitimate government purpose. The government's objective need not be compelling or important, but just something that the government legitimately may do. The means chosen only need be a rational way to accomplish the end. The challenger has the burden of proof under rational basis review. The rational basis test is enormously differential to the government and only rarely have laws been declared unconstitutional for failing to meet this level of review.

Article I, § 2

Requires apportionment of the House of Representatives based on the "whole number of free Persons" and "three fifths of all other persons."

Critics argue that Milliken v. Bradley and San Antonio Independent School District v. Rodriguez:

Result is separate and unequal schools: wealthy white suburban schools spending a great deal on education surrounding much poorer black city schools that spend much less on education.

The Requirement for Proof of a Discriminatory Purpose

Some laws that are facially race neutral are administered in a manner that discriminates against minorities or has a disproportionate impact against them. The Supreme Court has held that there must be proof of a discriminatory purpose for such laws to be treated as racial or national origin classifications.

Hunter v. Underwood

The Court considered an Alabama law that permanently denied the right to vote to anyone convicted of a crime involving "moral turpitude." The Supreme Court held that it was unconstitutional race discrimination for the state to disenfranchise those convicted of misdemeanors. "Once racial discrimination is shown to have been a 'substantial' or 'motivating' factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor."

Palmore v. Sidoti

The Court considered the question of whether the reality of private biases based on race and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. Mother and father, both Caucasians, had a child and at the time of their divorce, the mother was awarded custody of the child. The father later sought custody of the child due to changed conditions, alleging that the child was not being properly cared for by the mother. The changed condition was the mother's cohabitation, and shortly thereafter marriage, to a negro man. The lower court found that "there is no issue as to either party's devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent" but that "the mother has chosen for herself and for her child, a life-style unacceptable to the father and to society. . . . The child . . . is, or at school age will be, subject to environmental pressures not of choice" in concluding that the best interests of the child would be served by awarding custody to the father. The Court held that private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.

Holmes v. City of Atlanta

The Court declared unconstitutional segregation of municipal golf courses.

Turner v. City of Memphis

The Court declared unconstitutional segregation of public restaurants.

Gayle v. Browder

The Court declared unconstitutional the segregation of a municipal bus system.

Village of Arlington Heights v. Metropolitan Housing Development Corp.

The Court does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified. Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Absent a pattern, impact alone is not determinative, and the Court must look to other evidence. Other evidence includes (1) the historical background; (2) the specific sequence of events leading up to the challenged decision; (3) departure from normal procedural sequence; and (4) the legislative or administrative history.

Roger v. Lodge

The Court found that an at-large election system was unconstitutional because there was sufficient proof of a discriminatory purpose behind the election system. This District Court found that the "at-large system in Burke County was being maintained for the invidious purpose of diluting the voting strength of the black population." The Supreme Court upheld this factual finding, emphasizing that blacks were a substantial majority of the population in the County but a distinct minority of the registered voters. The Court also noted that no black ever had been elected to the county commission. The county pointed to a long history of purposeful discrimination against blacks and voting in the county, including the use of poll taxes, literacy tests, and white primaries. Furthermore, schools within the county were racially segregated until 1969 and still remained largely segregated. The Court additionally observed that blacks had been excluded from participating in the political process, in party affairs, and in primary elections. All of these factors justified the conclusion that there was a discriminatory purpose behind the at-large election system.

Must it be the Actual Purpose, or is a Conceivable Purpose Enough?

The Court has declared that under rational basis review the actual purpose behind a law is irrelevant and the law must be upheld "if any state of facts reasonably may be conceived to justify" its discrimination.

Several Criteria Are Applied in Determining the Level of Scrutiny:

The Court has emphasized that immutable characteristics—like race, national origin, gender, and the marital status of one's parents—warrant heightened scrutiny. The notion is that it is unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change. The Court . . . considers the ability of the group to protect itself through the political process. The history of discrimination against the group also is relevant to the Court in determining the level of scrutiny. A related issue is the Court's judgment concerning the likelihood that the classification reflects prejudice as opposed to a permissible government purpose.

Foster v. Chatman

The Court held that Batson was violated when documents obtained via a public record request showed that the prosecutor had intentionally excluded African American jurors.

Flowers v. Mississippi

The Court held that Batson was violated when the same prosecutor struck 41 of 42 African American jurors over 6 trials involving the same defendant.

San Antonio Independent School District v. Rodriguez

The Court held that disparities in school funding do not violate equal protection.

The Requirement for a "Reasonable Relationship"

The Court must decide "whether the classifications drawn in a statue are reasonable in light of its purpose." The Court has said that under the rational basis test, laws will be upheld unless the government's action is "clearly wrong, a display of arbitrary power, not an exercise of judgment." The Court will allow laws that are both significantly underinclusive an overinclusive.

Brown v. Board of Education II

The Court prescribed that school authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. The courts in doing so may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. The Court held that the cases me remanded to the District Courts to take such proceedings consistent with this opinion as necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.

Johnson v. California

The Court reaffirmed this in the context of prisons. The Supreme Court held that routine racial segregation of prisoners must meet strict scrutiny. The Court noted that "The CDC has admitted that the chances of an inmate being assigned a cellmate of another race are '[p]retty close' to zero percent. The CDC further subsidizes prisoners within each racial group. Japanese-Americans are housed separately from Chinese-Americans, and Northern California Hispanics are separated from Southern California Hispanics. The CDC's asserted rationale for this practice is that it is necessary to prevent violence called by racial gangs." The Court held that the CDC policy had to meet strict scrutiny.

City of Mobile v. Bolden

The Court stated: "We have recognized that legislative apportionments could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. To prove such a purpose it is not enough to show that the group allegedly discriminated against has not elected representatives in proportion to its numbers. A plaintiff must prove that the disputed plan was 'conceived or operated as [a] purposeful [device] to further racial . . . discrimination.'"

Milliken v. Bradley

The Court states that "an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race." In such case "an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation." But "without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy" and such a remedy would create an imposition on the outlying districts who did not commit a constitutional violation.

Cumming v. Richmond County Board of Education

The Court upheld the government's operation of a high school open only for white students while none was available for blacks. The Court emphasized that local authorities were allowed great discretion in allocating funds between blacks and whites and that "any interference on the part of federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land."

Swann v. Charlotte-Mecklenburg Board of Education

The Court's stated objective remains to eliminate from the public schools all vestiges of state-imposed segregation. The Court stated that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults. The Court addressed the following issues of student assignment: (1) Racial balances or racial quotas; (2) One-race schools; (3) Remedial altering of attendance zones; and (4) transportation of students. The Court addressed racial balances and racial quotas, stating that the very limited use made of mathematical quotas was within the equitable remedial discretion of the District Court. The Court stated that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part. The Court states that one of the principal tools employed by school planners and by courts to break up the dual school system has been gerrymandering of school districts and attendance zones. However, no fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. "Racially neutral" assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. The Court stated that they found no basis for holding that the local school authorities may not be required to employ bus transportation as one tools used in order to dismantle the dual system. Desegregation plans cannot be limited to the walk-in school. An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. The Court held that school authorities and others like them should have achieved full compliance with this Court's decision in Brown I. The systems would then be "unitary."

Cooper v. Aaron

The Little Rock school system was ordered desegregated during the 1957-1958 school year, but the governor called out the Arkansas National Guard to keep blacks out. Black students began attending the previously all-white high school only after President Dwight Eisenhower used federal troops to protect them. The Court said, "[Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land. . . . No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it." The Court strongly reaffirmed Brown and said it could not be nullified either "openly and directly by state legislators or state executives or judicial officers" or "indirectly by them through evasive schemes for segregation whether attempted 'ingeniously or ingenuously.'"

Skinner v. Oklahoma ex rel. Williamson

The Oklahoma Habitual Criminal Sterilization Act required surgical sterilization for individuals who had been convicted three or more times for crimes involving "moral turpitude." The Supreme Court declared the law unconstitutional as violating equal protection because it discriminated among people in their ability to exercise a fundamental liberty: the right to procreate. The Court said, "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far reaching and devastating effects." The Court found that the right to procreate was a fundamental right and essentially use strict scrutiny under the Equal Protection Clause to analyze the government's discrimination.

Mayor and City Council of Baltimore City v. Dawson

The Supreme Court affirmed a lower court decision declaring unconstitutional a law requiring segregation in the use of public beaches and bathrooms.

Berea College v. Kentucky

The Supreme Court affirmed the conviction of a private college that had violated a Kentucky law that required the separation of the races in education.

Hernandez v. New York

The court found that there was a sufficient race-neutral explanation when a prosecutor said that he had struck two perspective Latino jurors because they spoke Spanish and therefore might not accept the translator's version of testimony from witnesses who were going to testify in Spanish.

Prigg v. Pennsylvania

The Supreme Court declared unconstitutional a state law that prevented the use of force or violence to remove any person from the state to return the individual to slavery. The Fugitive Slave Act of 1793, adopted by the second Congress, required that judges return escaped slaves. The Supreme Court relied on this statute and the Fugitive Slave Clause to invalidate the Pennsylvania law. [T]he Court held that the Constitution prohibited states from interfering with the return of fugitive slaves. The Court explained that the "object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude." [T]he Court said that the Fugitive Slave Clause "was so vital . . . that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed". Thus, the Court concluded that we have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize in recapture his slave." [T]he Court also held that states could punish those who harbored fugitive slaves.

J.E.B. v. Alabama ex rel. T.B.

The Supreme Court extended Batson to apply to gender-based discrimination in the use of peremptory challenges. The Court stressed the long history of discrimination against women in the legal system and concluded that gender, like race, was an impermissible basis for peremptory challenges.

Sweatt v. Painter

The Supreme Court for the first time ordered that a white University admit a black student. The University of Texas Law School had denied Herman Sweatt admission on the ground that he could attend the recently created Prairie View Law School. Although the court was urged to reconsider Plessy v. Ferguson, it refused and instead found that the schools obviously were not equal. The Court concluded, "[W]e cannot find substantial equality in the educational opportunities offered white and negro law students by the State. . . . It is difficult to believe that one who had a free choice between these law schools would consider the question close."

What is the Appropriate Level of Scrutiny?

The Supreme Court has made it clear that differing levels of scrutiny will be applied depending on the type of discrimination.

Discriminatory Impact Alone:

The Supreme Court has made it clear that discriminatory impact is insufficient to prove a racial or gender classification. If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law.

How is Discriminatory Purpose Proven?

The Supreme Court has made it clear that showing such a purpose requires proof that the government desired to discriminate; it is not enough to prove that the government took an action with knowledge that it would have discriminatory consequences.

Georgia v. McCollum

The Supreme Court held that criminal defendants may not exercise peremptory challenges in a discriminatory manner.

Missouri ex rel. Gaines v. Canada

The Supreme Court held that it was unconstitutional for Missouri to refuse to admit blacks to its law school, but instead to pay for blacks to attend out of state law schools. The court explained that the "basic consideration is not as to what sort of opportunities other states provide, . . . but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color." Missouri did not admit blacks to its law school, but instead created a new law school for blacks.

McLaurin v. Oklahoma State Regents

The Supreme Court held that once Blacks were admitted to a previously all-white school, the University could not force them to sit in segregated areas of classrooms, libraries, and cafeterias. The Court ruled that such segregation hindered the students "ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession."

Swain v. Alabama

The Supreme Court held that racial discrimination by a prosecutor could be proven only by showing a pattern of discriminatory peremptory challenges over a series of cases. A defendant could not allege a denial of equal protection by the prosecution based on how peremptory challenges were exercised in that case; systematic discrimination had to be proven.

The Footnote in Carolene Products:

The Supreme Court indicated that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities" and thus "may call for a correspondingly more searching judicial inquiry."

Goss v. Board of Education

The Supreme Court invalidated a Knoxville, Tennessee, law that allowed students who were assigned to new schools as part of desegregation to transfer from schools where they were a racial minority to ones where they would be in the racial majority. The Supreme Court declared this unconstitutional because "[i]t is readily apparent that the transfer system . . . lends itself to perpetuation of segregation."

State v. Post

The Supreme Court of New Jersey rejected a claim that the state constitution abolished slavery. The Court said that "it has been often adjudged, both by the State and Federal courts, that slavery still exists; that the master's right of property in the slave has not been affected either by the Declaration of Independence, or the constitution of the United States."

A law meets rational basis review if it is rationally related to a "legitimate government purpose":

The court often has said that a law should be upheld if it is possible to conceive any legitimate purpose for the law, even if it was not the government's actual purpose.

Pace v. Alabama

The court upheld an Alabama law that provided for harsher penalties for adultery and fornication if the couple were composed of a white and a black than if the couple were both of the same race.

In evaluating the relationship of the means of the particular law to the end, the Supreme Court often focuses on-

The degree to which a law is underinclusive and/or overinclusive.

Batson v. Kentucky

The Supreme Court overruled Swain v. Alabama and explained that "[a] single invidiously discriminatory governmental act is not immunized by the absence of such discrimination in the making of other comparable decisions." The Court held that the discriminatory use of peremptory challenges by a prosecutor denies equal protection. The Court set forth a three-step process for determining whether there is impermissible discrimination in jury selection: (1)The criminal defendant must set forth a prima facie case of discrimination by the prosecutor. (i) The Supreme Court has not articulated precise standards for determining what is a prima facie case. (ii) The Court said that "the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." (iii) But in practice what is enough for a prima facie case is unclear. (2) Once the defendant has presented a prima facie case of discrimination, the burden shifts to the prosecutor to offer a race-neutral explanation for the peremptory challenges. (i) The Court said that the proponent of a strike "must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." (ii) In Purkett v. Elem (1995), the Supreme Court said that "[t]he second step of this process does not demand an explanation that is persuasive, or even plausible. . . ." (3) The trial court must decide whether the race-neutral explanation is persuasive or whether the "defendant has established purposeful discrimination."

Edmonson v. Leesville Concrete Co.

The Supreme Court ruled that Batson applied in private civil litigation. The Court explained that there is a state action because peremptory challenges are authorized by state law and supervised by courts.

Purkett v. Elem

The Supreme Court said that "a 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection."

U.S. Railroad Retirement Board v. Fritz

The Supreme Court upheld a federal law designed to prevent retired railroad workers from receiving benefits under both the Social Security system and the railroad retirement system. The law allowed those who were already retired and receiving dual benefit's to continue to get them, but those who were still employed could not get dual benefits unless they had worked for the railroads for 25 years. The result was that a person who had worked 10 years for the railroads and was already retired could get dual benefits, but a person who had worked for 24 years and was still employed could not collect dual benefits. [T]he Court said, "Where, as here, there are plausible reasons for Congress's action, our inquiry is at an end. It is, of course, constitutionally irrelevant whether this reasoning in fact underlies the legislative decision because this court has never insisted that a legislative body articulate its reasons for enacting a statute. This is particularly true where the legislator must necessarily engage in a process of line drawing." The Court accepted the government's claim that Congress could have believed that those who had acquired a statutory entitlement to dual benefits while still employed in the railroad industry "had a greater equitable claim to those benefits than [those] who were no longer in railroad employment when they became eligible for dual benefits."

Federal Communications Commission v. Beach Communications, Inc.

The case involved a challenge to a provision of the Federal Cable Communications Policy Act of 1984 that created an exemption to certain regulations for cable television facilities that serve one or more buildings under common ownership or operation. The Court said, "[B]ecause we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenge distinction actually motivated the legislator. . . . [A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." [T]he Court reaffirmed that any conceivable legislative purpose is sufficient and even went so far as to say that "those attacking the rationality of the legislative classification have the burden to negate every conceivable basis which might support it."

Underinclusiveness and overinclusiveness are used by courts in evaluating-

The fit between the governments means and its ends. If strict scrutiny is used, a relatively close fit is required; the government will have to show that the means are necessary—the least restrictive alternative—to achieve the goal. Under intermediate scrutiny, a closer fit will be required and less underinclusiveness or overinclusiveness will be permitted then under the rational basis test.

Pasadena City Board of Education v. Spangler

The following case involved a school system that had been segregated by law. A federal court order succeeded in desegregation: In 1970, no schools within the district were racially imbalanced. By 1974, five of the 32 schools in the district were over half black. The district court ordered that attendance lines be redrawn on an annual basis so that blacks would not be a majority in any school in the district. The Supreme Court deemed this improper. The Court noted that residential shifts were inevitable in cities and that they might alter the racial composition of the schools. The Court said that "having once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court had fully performed its function of providing the appropriate remedy for previous racial discriminatory attendance patterns."

What Constitutes a Legitimate Purpose?

The government has a legitimate purpose if it advances a traditional "police" purpose: protecting safety, public health, or public morals. Public safety, public health, and public morals are legitimate government purposes, but they are not the only ones. Virtually any goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test.

Does the Government Action Meet the Level of Scrutiny?

The level of scrutiny is the rule of law that is applied to the particular government action being challenged as denying equal protection. In evaluating the constitutionality of a law, the Court evaluates both the laws ends and it's means. For strict scrutiny, the end must be deemed compelling for the law to be upheld; for intermediate scrutiny, the end has to be regulated as important; and for the rational basis test, there just has to be a legitimate purpose.

The Ruling in Dred Scott v. Sandford

The ruling became the focal point in the debate over slavery, and by striking down the Missouri Compromise, the decision helped to precipitate the Civil War.

Laws Requiring Separation of the Races

These statutes created a system of apartheid in which the government mandated segregation in public accommodations, transportation, schools, and almost everything else.

Railway Express Agency, Inc. v. New York

This case concerned a New York traffic regulation which stated that no person shall operate a general advertisement vehicle. The regulation draws the line between advertisements of products sold by the owner of the truck and general advertisements, the former classification is not forbidden under the regulation. The Court held that the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. Stating that the fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.

City of Cleburne, Texas v. Cleburne Living Center, Inc.

This case concerned a Texas city which denied a special use permit for the operation of a group home for the mentally retarded. The Standard of Review as Declared by the Court: (1) The mentally retarded have an immutable trait in which the States' interest in dealing with and providing for them is plainly a legitimate one. Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and the Court doubts that the predicate for such judicial oversight is present where the classification deals with mental retardation. (2) The lawmakers have addressed the difficulties of those falling within this classification. The Federal government has outlawed discrimination against the mentally retarded in federally funded programs and has also provided the retarded with the right to receive "appropriate treatment, services, and habilitation" in a setting that is "least restrictive of [their] personal liberty." (3) The legislative response negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. (4) If the mentally retarded were deemed to have heightened level of scrutiny it would be difficult to distinguish a variety of other groups which perhaps have immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large such as the aging, the disabled, the mentally ill, and the infirm. The city does not require special use permits for apartment houses, multiple dwellings, boarding and lodging houses, fraternity of sorority houses, and other specified uses. The Court states that the record does not reveal any rational basis for believing that the group hoe would pose any special threat to the city's legitimate interests. The Court held that requiring the permit in this case appears to rest on an irrational prejudice against the mentally retarded and is therefore a violation of the Equal Protection Clause.

U.S. Department of Agriculture v. Moreno

This case concerned the constitutionality a section of the Food Stamp Act which excluded from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. Which creates two classes of persons for food stamp purposes: one class is composed of those individuals who live in households all of whose members are related to one another, and the other class consists of those individuals who live in households containing one or more members who are unrelated to the rest. The Court held that the challenged classification excludes from participation those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. Stating that the classification is wholly without any rational basis.

Korematsu v. United States

This case concerns a conviction of an American citizen of Japanese descent who was convicted for violation of the "Civilian Exclusion Order" which states that all persons of Japanese ancestry should be excluded from that area." The Court stated that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." The Court states that it was not beyond the war power of Congress and the executive to exclude those of Japanese ancestry as a "protection against espionage and against sabotage." The exclusion from a threatened area has a definite and close relationship to the prevention of espionage and sabotage. The exclusion of the entire group was necessary because of the presence of an unascertained number of disloyal members of the group. The Court declared, "[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."

Loving v. Virginia

This case concerns a miscegenation Virginia statute that made it a crime for a white person to marry outside the Caucasian race. The purpose of the statute was to preserve the racial integrity of its citizens and to prevent corruption of blood, a mongrel breed of citizens, and the obliteration of racial pride. The State argued that because the statute punishes equally both white and the negro participants in an interracial marriage, despite the statute's reliance on racial classifications, the statute does not constitute invidious discrimination based on race. The court rejects the notion that mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discrimination. The Court stated that racial classifications are subject to the most rigid scrutiny. The statute had no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The Court held that there is no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Palmer v. Thompson

This case concerns the city council's decision not to try to operate its public swimming pools on a desegregated basis. The council surrendered its lease to one pool and closed four which were owned by the city. The Court held that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to operate or to continue to operate swimming pools. This is not the case where whites were permitted to use public facilities while blacks were denied.

Plessy v. Ferguson

This case concerns the constitutionality of an act which provides for separate railway cars for the white and colored races. The Court stated: "The object of the Fourteenth Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power."

New York City Transit Authority v. Beazer

This case considers a "no drug" policy, including users of methadone, a drug used which is used as a cure for heroin addiction, adopted by the New York Transit Authority. The Court states that an employment policy that postpones eligibility until the treatment program has been completed is rational. The exclusionary line does not circumscribe a class of persons characterized by some unpopular trait or affiliation. It is of no constitutional significance that the degree of rationality is not as great with respect to certain ill-defined subparts of the classification as it is with respect to the classification as a whole. The Court held that the New York Transit Authority's "no drug" policy is constitutional and therefore, not a violation of the Equal Protection Clause of the Fourteenth Amendment.

Washington v. Davis

This case involves the validity of a qualifying test, including a written personnel test which excluded a disproportionately high number of negros, to applicants for positions as police officers. The Court states that "our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. We have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. The test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue.

Romer v. Evans

This case is about a Colorado voters amendment which prohibits all legislative, executive or judicial action at any level of state or local government designed to protect homosexual persons or gays and lesbians. The Court states: [I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. [A] law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." The Amendment fails . . . even this conventional inquiry under rational basis review: (1) The amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. (2) Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. The Court held that the Colorado Amendment violated the Equal Protection Clause by classifying homosexuals not to further a proper legislative end but to make them unequal to everyone else.

Ex parte Endo

This case was decided the same day as Korematsu, the Supreme Court held that the continued detention of Japanese Americans was unwarranted. The court holding was narrow, simply concluding that the executive orders that provided the authority for the evacuation of Japanese Americans did not expressly authorized the continued detention of loyal Japanese Americans. The Court did observe that "[a] citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind, not of race, creed, or color." Yet the court never declared the evacuation an internment of Japanese Americans unconstitutional.

Equal protection issues can be broken down into three questions:

What is the classification? What level of scrutiny should be applied? Does the particular government action meet the level of scrutiny?

The Classification Where the Law if Facially Neutral:

Where the law has a discriminatory impact and a discriminatory purpose.

The Classification Exists on the Face of the Law:

Where the law in its very terms draws a distinction among people based on a particular characteristic.

If . . . laws, or any government actions, are challenged based on equal protection, the issue is-

Whether the government can identify a sufficiently important objective for its discrimination.

United States v. Windsor and Obergefell v. Hodges

[T]he Court struck down, respectively, a provision of the federal Defense of Marriage Act and laws in four states prohibiting same-sex marriage. In both cases the Court found that the laws violated equal protection because of their discrimination based on sexual orientation. In neither case did the Court indicate the level of scrutiny it was using.

New Orleans v. Dukes

[T]he Supreme Court upheld an ordinance that banned all pushcart food vendors in the French Quarter, except those who had continuously operated there for eight or more years. The Court accepted the city's claim that "street peddlers and hawkers tend to interfere with the charm and beauty of a historic area and disturb tourists and disrupt their enjoyment of that charm and beauty, and that such vendors . . . might thus have a deleterious effect on the economy of the city." The Court said that the distinction among vendors based on their length of work in the French Quarter was legitimate because "[t]he city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation."