Con Law II Beck – Spring 2015
Equal Protection
I. Historical Background
a. Three amendments after Civil War
i. 13th – Abolished slavery
1. Nevertheless, people continued to be racist
2. Black people were not allowed to have land, vote, go to school, etc.
ii. 14th – goal was to empower Congress to protect rights of newly freed slaves
iii. 15th – gave black men the right to vote
b. Strauder v. West Virginia
i. Ct. holds that law excluding black people from juries is unconstitutional
c. EPC of 14th Amendment was enacted to protect blacks, but the “any person” language has been read to apply to people of any race
d. Plessy v. Ferguson
i. LA law provided for separate train cars for blacks and whites
ii. Plessy was 7/8 white and challenged the law
iii. Ct. held the law did not violate EPC
1. EPC does not require all groups be treated the same or that any distinction on color be abolished
iv. Distinguished from Strauder – a separate train car does not brand blacks as inferior
II. Framework for analysis
a. Is there state action?
b. Is there a suspect classification?
i. Two ways
1. Facial classification
2. Facially neutral but discriminatory impact or effect
a. Impact alone is insufficient
b. Must be proof of a discriminatory purpose
ii. Can have a class of one
c. If there is a classification, is it facial or neutral?
i. If facial à strict scrutiny
ii. If neutral à need discriminatory impact and intent
d. Is there a fundamental right?
e. What level of scrutiny?
III. Levels of Scrutiny
a. Strict scrutiny
i. Ct. looks to whether the regulation serves a compelling government interest and whether the regulation is essential to that interest (least restrictive means)
ii. Applied to racially discriminatory laws
b. Intermediate scrutiny
i. The regulation must serve important governmental objectives and be substantially related to the achievement of those ends
ii. Stuff like gender
c. Rationality review
i. Requires a rational relationship to legitimate ends
IV. EPC and Racial Discrimination
a. Public education
i. Law was “separate but equal” after Plessy
1. So the strategy of groups like NAACP was to show that institutions were not equal
ii. Missouri ex rel. Gaines v. Canada
1. Missouri refused to admit a black student to Missouri Law School
2. Ct. says that a state has to provide equal facilities within the state
iii. Sweatt v. Painter
1. TX had a separate law school for black students
2. Ct. holds black law school is not equal – inferior library, faculty, alumni relations, variety of courses, reputation, etc.
iv. McLaurin v. Oklahoma State Regents
1. Oklahoma let black student go to the white school, but made him sit in a different area of classroom, different library section, etc.
2. Ct. says this is not equal – impairs ability to study, engage, and discuss with other students
v. Brown v. Board of Education (Brown I)
1. The end of “separate but equal”
2. Ct. holds that “separate but equal” has no place in field of public education
3. Separation of facilities creates an inferiority in black students
4. Segregation has harmful consequences on minority students
vi. Bolling v. Sharpe
1. Ct. holds racial segregation at DC Public Schools violated 5th Amendment DPC
b. Implementing Brown
i. Implementation of Brown is left to district courts to decide appropriate remedies for their areas
1. They have wide latitude in making decisions
ii. Brown v. Board II
1. Ct. remands case to lower courts to decide appropriate remedies for specific schools in their area to comply with Brown
2. Ct. says integration should happen with “all deliberate speed”
iii. Green v. County School Board
1. School district had given students option to go to white schools, but after 3 years there was not much integration
2. Ct. holds this was not an adequate remedy
iv. Swann v. Charlotte-Mecklenburg Bd. of Ed.
1. Ct. says district courts have wide equitable power
v. Keyes v. School District
1. Ct. finds de facto segregation, even though the district did not have a history of written segregation laws
2. Π has to show that school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities
vi. Milliken v. Bradley
1. Detroit used an “inter-district” remedy and was busing students from other districts to achieve integration
2. Ct. holds that the other districts were not violating the constitution and therefore could not be required to participate
3. Π must show that there has been constitutional violation within one district that produces a significant segregate effect in another district before you can redraw district lines or impose a cross-district remedy
vii. Missouri v. Jenkins
1. Ct. holds district court did not have the power to raise taxes to implement the integration program
2. This is a job for the legislature
viii. Missouri v. Jenkins II
1. District court cannot order salary increases
2. Wide latitude is not unlimited
ix. Bd. of Ed. of OKC v. Dowell
1. Rule: district court’s power over integration is temporary and goes away once the school system becomes unitary
2. Does not extend beyond time to remedy the past
no evidence of invidious discrimination
vi. Arlington Heights v. Metro Housing Corp.
1. Chicago suburb refused to grant a request to re-zone a certain property from single to multiple family classification
2. There was no overt racist purpose, but arguably the effect was to keep minorities out of white neighborhoods
3. Ct. gives ways to look for racist purpose:
a. Evidence of intent, direct and circumstantial
b. Impact of the action as a starting point
c. Historical background
d. Specific sequence of events leading up to the decision
e. Departures from the normal procedural sequence
vii. Rogers v. Lodge
1. Burke County at-large election system is alleged to dilute black vote
2. There was evidence of racial bloc voting – even though blacks made up a majority of the population and often ran for office, they were almost always outvoted by white voters
3. Ct. holds this system diluted the black vote
viii. Hunter v. Underwood
1. AL Constitution disenfranchised all persons convicted of crimes involving moral turpitude
2. Challengers note that when the part of the Constitution was passed, the legislature did so to disenfranchise blacks because they were more likely to be convicted of those crimes
3. Ct. applies strict scrutiny – the law disenfranchises about 10 times as many blacks as whites
4. The provision would not have been enacted in the absence of a discriminatory motive
ix. If there is a impermissible racial motivation and a racially discriminatory impact, Arlington Heights controls
f. Affirmative Action
i. Regents of Univ. of Cal. v. Bakke
1. UC Davis Med. School reserved 16 out of 100 spots for members of minority groups
2. Bakke was a white applicant who was rejected despite scores higher than some of the minority applicants admitted
3. Ct. holds program unlawful
a. But reversed finding that race can never be a factor in admission
4. Ct. says all racial and ethnic minorities are subject to strict scrutiny, even when the person discriminated against is a white male
5. Rule: schools cannot prefer one applicant for no reason other than race
a. But race can be a factor
b. Harvard example
i. Race is a factor and is only one of the ways diversity can be furthered
6. There are other, more effective means of achieving diversity
7. Brennan dissent
a. Wants to apply intermediate scrutiny
b. Purpose was to remove disparate impact caused by broad societal discrimination
