Equal Protection
· Due Process Clause of 14th A
· §1- “no STATE shall deny to any person within its jurisdiction the equal protection of the laws.”
· §5- “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
· Triggering Fact: To raise an EP challenge, you need a situation where persons similarly situated are being treated differently. Applies to
o state govt. thru 14th A EP Clause and to
o fed. govt. thru judicial interpretation of the DP clause of 5th A. – Bolling v. Sharpe(struck down federal segregation of DC public schools)
· Critics prefer a single standard b/c: 1. text of A doesn’t provide for stndrds; 2. may gain consistency; may avoid competition btw diff. groups
· Analytical Method
1. What is the Classification?
§ How does law distinguish among people?
§ On face? In effect?
2. What is the level of scrutiny applied?
§ SS – race, nat’l origin
§ IS – gender, non-marital children
§ RBR – economic, all other classfxns
3. Does Govt axn meet level of scrutiny?
· Three standards of evaluation:
1. Strict scrutiny (least restrictive means/narrowly tailored)
§ Regulation must serve compelling gov. interests AND be essential to those interests
Þ Narrowly tailored requires “serious, good faith consideration of workable race-neutral alternatives.” – Parents involved in Community Schools v. Seattle Sch. Dist.
§ SS doesn’t apply to all distinctions b/c: 1. sep. of powers, undermines democratic process, don’t want ct. to second guess every st. decision; 2. Judicial resources
§ Critics prefer a single standard b/c: 1. text of A doesn’t provide for stndrds; 2. may gain consistency; may avoid competition btw diff. groups
1. Race
·Racial classfxn gets SS b/c:
Þ Histry of 14 A dem. intent 2 protct blacks
Þ U.S. has histry of institutional and private racism
Þ Race is immutable characteristicàunfair to punish for it
Þ Fear that distinctions reflect sterotypes, not reality
Þ Blacks are a discrete and insular minority
Þ Political Process failureàeven though blacks vote, not statistically a big enuf group, so have to consider whether legislation that effects them is valid.
·Racial classfxn not auto. invalid b/c:
Þ gov. mit want to implement prgrms that are advantageous to minorities (aff. Axn)
Þ gov. mit want laws that allow us to detect if there is any segregation occurringàso would want a law that allows race references in order to keep track of racial stats
Þ gov. mit just want to take race into account
Þ disease screening, b/c certain diseases occur in certain races more.
Laws Requiring Separation of Races (Segregation)
· Plessy v. Ferguson – upheld laws that mandated blacks and whites use “sep. but equal facilities.” b/c they were rsnbl.
Brown Maj.
· Interpretation of 14th amendment:
o 14th amendment’s objective was to enforce equality between the two races, but not to abolish distinctions based on color…Laws requiring race separation aren’t necessarily implying that either race is inferior, and also, generally it is a type of law that has been part of state power (e.g., race separation in schools)
o Some have suggested that allowing states to have this type of power will lead to such instances of requiring separate cars for people who have diff. hair colors, or who belong to certain nationalities, etc. BUT, every exercise of the police power must be REASONABLE, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.
o To establish rsnblness: legislature can look to established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.
· Application to Louisiana regulation:
o Thus, the state law is not unreasonable, and is not more obnoxious than the laws requiring separate schools for colored children (where constitutionality has not been questioned).
o If blacks think they are inferior b/c they have been separated, that is there fault, not the laws, separate but equal does not distinguish between inferior and superior, merely separate. It seems that Plessy’s argument is based on the assumption that the enforced separation means that the colored race is inferior. That assumption is not because of the regulation, but because the colored races chooses to put that construction on it.
o Law does not disturb customs, traditions, etc., so its reasonable
Harlan Dissent (Famous Opinion)
· COMPLETELY disagrees with majority – Even though majority argues that the law does not discriminate, everyone knows that the law’s purpose was to exclude white people from colored people cars, and vice versa.
· Thus, the fundamental objection to the law is that it interferes with the personal freedom of citizens.
· Critical Phrase: No caste here, Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.
o The first sentence refers to a direct response to the majority. This is not the most lucid statement. Both sentences could mean the same or different things…
o Might say that cast and color blind is something different.
§ Color-blind Pr
there should be so little in the history of the 14th amendment relating its intended effect on public education.
· We must look to the effect of segregation on public education, in light of its full development and its present place in American life throughout the Nation.
o Education is most imp. function of state and local gov. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
· To separate children of similar age soley b/c of race generates a feeling of inferiority as to their status in the community, can effect their motivation to learn. Segregation thus has a tendency to retard the educational and mental development of negro children, and this is supported by modern authority statistics.
o Thus, segregation DOES deprive the children of equal educational opportunities. The doctrine of separate but equal has NO PLACE. Separate educational facilities are inherently unequal.
· Notes:
Potential justifications for opinion:
o Color-blindness – (recall Harlan’s dissent from Plessy)
o Caste – Warren thought segregation made black children feel inferior (recall Harlan’s dissent from Plessy, “no caste here.”)
o White supremacy – segregation laws voted on by predominantly white voters
o Integration – Warren emphasized the importance of education to our democratic society – does this mean that maybe integrated schools would produce better educational results for black school children?
o Evil is social stigma of black children
Alternative arguments?
o Sep. but equal is fine, but there is no equality here, crt. May have not ruled this way b/c then they would always have to figure out what equality means, and it would set forth a trend.
Reliance on social Science may be flawed:
o studies may have been methodologically unsound
o reliance on them could make this decision vulnerable if future research comes to a diff. conclusion
Brown II– school officials req. to “fashion stepswhich promise realistically to convert promptly to a system w/out a white school and a Negro school, but just schools.
