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Constitutional Law II
Villanova University School of Law
Pether, Penelope J.

Constitutional Law


Fall 2010

I. Theories of Interpretation

II. Equal protection in general

A. In general

1. The slaughter house cases established that the Privileges and immunities clause only protects narrow national privileges, such as the right to use navigable water ways and not the right to work at ones trade.

2. Strauder 1879 struck down a law excluding non-whites from jury service (based on equal protection and P & I).

3. Civil rights cases 1883 established that the 14th amendment only applies to state actors.

B. In deciding equal protection cases the court must answer three questions.

1. Court must first determine what is the ‘classification’ that is being denied equal protection.

2. The court then determines what level of scrutiny (or review) should be applied; depending on the classification.

3. The court then determines whether the law meets the appropriate level of scrutiny.

C. Classification

1. There are two basic ways of establishing a classification.

2. A law can classify on its face.

Example: A law that bars women from becoming firefighters classifies on the basis of sex on its face.

3. A law can be facially neutral but have a discriminatory impact or discriminatory effect from its administration on a particular group.

Example: A law that bars people under 5’10” from becoming firefighters is facially neutral but there is a discriminatory impact against women since only a small percentage of women will meet this requirement whereas a large percentage of men will meet this requirement.

III. Equal protection and race

A. The Court has expressly declared that all racial classifications – whether disadvantaging or helping minorities – must meet strict scrutiny.

B. Reasons for strict scrutiny

1. The purpose of the Fourteenth amendment was to protect recently freed slaves.

2. There is a long history of racism makes it likely that racial classification will be based on stereotypes and prejudices.

3. Racial minorities have relatively little political power.

4. “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” Carolene Products footnote.

C. Race-specific classification that disadvantages racial minorities.

1. Almost always is struck down as unconstitutional.

2. There is only one situation in which the court expressly upheld racial classification burdening a minority; evacuation of Japanese-Americans during WWII.

D. Laws that burden Whites and Minorities.

1. just as unconstitutional as laws burdening just minorities

2. Anti-miscegenation laws are unconstitutional Loving v Virginia

E. Separate but equal

1. Plessy v. Ferguson established that separate but equal facilities were allowable under the fourteenth amendment.

a. Plaintiff in plessy was denied access to the white part of the train in Louisiana

b. Court stated that the idea that the separate facilities were some how inferior or were degrading to minorities was all in their minds.

c. The main issue in Plessy is what type of rights were protected under the 14th; civil; political; social.

d. Court says only political rights were protected.

e. Court says that rights of access to common carriers, public accommodations (e.g. theaters, restaurants) and to public education are social rights.

f. Plessy establishes reasonableness as the standard for review in EP cases.

2. Road to Brown.

a. Cummings 1899 court upheld a school board closing the only school for black students.

b. Goung Lum 1927 court upheld the exclusion of a citizen of Chinese decent from entering a white school.

c. Missouri ex rel. Gaines v. Canada (1938) the Court held that refusing a student admission to a state law school on a promise to fund his legal education out of state was unconstitutional: Missouri set up a separate law school for blacks.

d. The effects of World War II and the Holocaust made many thoughtful Americans embarrassed by the similarities.

e. Sweatt v. Painter (1950), a case involving segregated legal education. The DOJ broke from its earlier stance on segregated public education, supporting the NAACP Education and Defense Fund in its successful challenge to the University of Texas Law School’s denial of admission to Sweatt, and establishment of a state law school for black students.

f. Sweatt did not expressly overrule brown but stated that there are certain intangibles that are denied a black student who is forced to attend a different law school.

g. Sweatt established that segregation produced inequality.

h. McLaurin v. Oklahoma State Regents, (1950) the Court struck down segregated facilities provided for a doctoral student in education within a flagship state university, who was admitted to the University in response to his successful lawsuit, but “required to sit apart at a designated desk in an anteroom ad

“after the local authorities have operated in [good faith] compliance with it for a reasonable period of time.” (Here segregation finding in 1961; remedial order in 1972; order dissolved in 1985).

Freeman v. Pitt (1992) –

F. Facially neutral laws

1. There must be discriminatory impact and proof of discriminatory purpose in order for such a law to be treated racial or national origin classification.

2. Laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose.

Washington v. Davis 1976 – applicant for the police force in DC were required to take a test before being accepted. Statistics revealed that a higher number of blacks failed the tests than whites. The court upheld the law because it did not have a discriminatory purpose.

3. Three basic ways of proving discriminatory purpose behind the law.

a. The impact of a law may be so clearly discriminatory as to allow no other explanation than that it was adopted for impermissible purposes.

Yick Wo 1886 – a city’s ordinances required that laundries be located in brick or stone buildings unless a waiver was obtained from the board of supervisors. All of the petitions by those of Chinese ancestry had been denied (200 of them) but only one of the petitions filed by a non-Chinese petitioner was denied. The supreme court struck down the conviction of the plaintiff for violating the ordinance.

Gomillion v. Lightfoot – The government redrew the boundaries of a city in a way that made the city, which had previously been both mixed, all white. The city was originally in the shape of a square but after was in the shape of an irregular 28 sided shape. The court held that there was discriminatory purpose to the law.

b. The history surrounding the government action may show a discriminatory purpose.

c. The legislative or administrative history of the law may show a discriminatory purpose.