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Civil Rights
University of North Carolina School of Law
Kim, Catherine Yonsoo

Civil Rights Law
Professor Catherine Kim
Spring 2011
Political process rationale 
Anti-Subordination and/or Leveling the Playing Field 
Self-Determinism and/or Anti-Stereotyping  
Pragmatic or economic 
Limits on government 
Chapter 2: The Right to Equal Educational Opportunity
An Historical Overview
Plessy: Abolish distinctions based upon physical differences, and the 
attempt to do so can only result in accentuating the difficulties 
of the present situation.  If the civil and political rights of both 
races be equal, one cannot be inferior to the other civilly or 
politically.  If one race be inferior to the other socially, the 
constitution of the United States cannot put them upon the 
same plane. 
PART I: Constitutional Rights
Note on the NAACP Battle Against Jim Crow
Strategy was to chip away at Plessy fact by fact, to the inevitable conclusion that separate can never be equal.
Missouri ex rel. Gaines v. Canada (1938): Limited demand in Missouri for a Black law school does not excuse discrimination in favor of whites.
State was willing to pay for equivalent out of state school, but travel burden alone violates Equal Protection
The essence of the right is PERSONAL (affirmative action consequences?)
Doesn't overrule Plessy, but affirms- admission must be granted ONLY absent a separate alternative.
Clarence C. Walker Civic League v. Board of Public Instruction (1938): Black school could close during bean harvest season, because 95% of bean pickers were black, and absenteeism rates were high during those periods.
Would black students who were not bean pickers be permitted to attend the white school?
Once again, the right to an education is PERSONAL.
McLaurin v. Oklahoma State Regents (1950): Overturns restrictions placed on black student to segregate him from rest of student population
“There is a vast difference — a Constitutional difference — between restrictions imposed by the state which prohibit the intellectual commingling of students, and the referral of 
individuals to commingle where the state presents no such 
bar….  The removal of the state restrictions will not 
necessarily abate individual and group predilections, 
prejudices and choices.  But at the very least, the state will not be depriving appellant of the opportunity to secure 
acceptance by his fellow students on his own merits.” 
Sweatt v. Painter (1950): Establishment of Black Law School in TX not seen as an adequate equivalent remedy.
“The law school, the proving ground for legal learning and 
practice, cannot be effective in isolation from the individuals and institutions with which the law interacts.  Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.” 
STILL declines to overrule Plessy. but embraces diversity and the need to be integrated into a general student population, as in McLaurin.
Equal Education Opportunity
Brown v. Board of Ed of Topeka (1954): Overturns Plessy, Integrates public schools
Education is perhaps the most important function of state and local governments.
Separation inevitably generates a feeling of inferiority as to status (use of social science data to support)
Giving this inferiority the sanction of law systemically holds back the educational development of Black children
The Federal Context
Bolling v. Sharpe (1954): Companion case to Brown, integrates DC schools, outlawing segregation by the Federal government 
PART II: Constitutional Remedies
The Desegregation Mandate
“With All Deliberate Speed”
Brown II (1955): Remands segregation cases to District Courts, orders to implement measures as are “necessary and proper” to desegregate the parties with “all deliberate speed”
100 or so districts STILL have Brown cases pending as a result
Alternatives coming from SCOTUS would have led to unrest and threatened the legitimacy of the judiciary, easier for them to assess the “good faith” of locally crafted plans
The Scope of Desegregative Relief
“Swann Remedies”
Swann v. Charlotte-Mecklenburg (1971)
School Board Plan
High Schools
9 schools have 17-36% Black students
1 school (Independent) has 2% Black students
Jr. High Schools
20 areas have 0-38% Black students
1 area has 90% Black students
Elem Schools
More than half of Black students attend 9 schools that are 86-100% Black
More than half of all white students attend schools that are 86%-100% white
Finger Plan
High Schools
Same as School Board Plan, except bus 300 Black students to Independent
Junior High Schools
Satellite zones to transport Black students to outlying areas
Elementary Schools
Use zoning, pairing, and grouping techniques
Every elementary school has 9-38% Black students
“Independent of student assignment, where it is

xes, but rationales offered rely on overbroad generalizations.
34 CFR §106.34: Allows for single sex classes and activities, as long as they are based on an important objective, are implemented in an evenhanded manner, enrollment is voluntary, and substantially equal activities for both sexes.
PART III: Statutory Rights
Title VI (Civil Rights Act of 1964)
Sec 601 (42 USC §2000(d)): Individuals sue for damages and injunctive relief, must be intentional discrimination
Sec 602 (42 USC §2000(d)-1): Agencies bring action for intentional action or disparate impact.
Administrative Regulations: Recipient of federal funds may not “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination”
Does Title VI permit a private litigant to sue a recipient of federal funds to challenge a policy that has a disparate impact?  If so, what remedies are available?
Lau v. Nichols (1974): Disparate impact sufficient to prove violation of Title IV 
Guardians v. Civil Service Commission (1983)
Violation of Title IV requires proof of intent (Powell-Burger-Rehnquist, O'Connor, Brennan-Blackmun-Stevens)
Disparate-impact regulations valid (White, Marshall, Brennan-Blackmun-Stevens)
Private individuals may sue to prohibit disparate impact (White and Marshall- through statute, Brennan-Blackmun-Stevens- through regulations)
No compensatory relief absent proof of intent (White-Rehnquist, Powell-Burger, O'Connor)
Bottom Line: Disparate impact sufficient to prove violation of Title VI, but remedies limited to prospective injunctive relief.
Alexander v. Sandoval (2001)
No proof of intentional discrimination, but national origin minorities disparately impacted
Seeking prospective relief from agency, not compensatory
Private individuals may sue under §601 (or Eq. Protection) as established by Cannon v. Chicago, but 601 only prohibits intentional
Can private plaintiffs sue under §602, which may proscribe activities of disparate impact?