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

Constitutional Law II Outline
Pether: Fall 2010



Liberty and Equality as competing goals

Provides structure for exercise of gov. power, and limits on power

Essentials: rule of law, guaranteed rights, sep of powers, popular sovereignty, equality/inequality, liberty/rights, judicial review, federalism and nationalism, social contract, republicanism, libertarianism, popular sovereignty, rep. democracy

Const. interpretation:
Written = consequences
Start with text, but must go farther
Consider context and norms
Specificity or ambiguity, predictability or obsolescence?
Legislature or SCOTUS?
Does text or interpretation govern?
What is role of history/context?

Post-Civil War Developments

1: 13th Amend freed slaves, Freedman’s Bureau

2: Civil Rights Act (sue, own property, enforce contracts)

3: 1st Reconstruction Act, forced 14th Amend ratification

4: 14th Amend, created Const. authority for CRA (prob. no social/civil rights)

5: 15th Amend, forbid racial discrimination in voting, 2nd CRA

6: More CRA (jury rights, public accommodations, common carriers)

7: Litigation over 14th: Slaughter House (only national rights protected, narrow P&I interpretation), women still cannot vote (Bradwell) or own franchises (Happerstatt), but non-white discrimination on jury (Strauder, P&I) and discrimination on basis of Chinese ancestry (Yick Wo, EPC) struck down

8: Retreat, Black Codes and rise of Jim Crow

9: CR Cases: 14th applies to state action and protects national, not civil rights, 13th only badges and incidents of slavery

Plessy v. Ferguson (1896)

What is equal protection, what rights comprise equality?
P argued property right in his whiteness (dismissed) AND EP of laws

Holding (Brown): 14th only extends to political rights, not social rights, no real unequal treatment occurring because SBE OK to discourage race mixing, state law is “reasonable”, any discrimination is trivial or imagined

Dissent (Harlan): all citizens equal before law and state preventing race-mixing infringes on personal liberty, strong pluralism argument, blacks deserved equal treatment for common carrier because it is a political right, rationality principle and anti-subordination principle implicated

Moynihan Report (1965): sociological report focused on roots of black poverty, ID tension between liberty and equality during time of 2nd Reconstruction (CRA of 1964, Voting Rights Act 1965, Brown, MLK, riots)

Road to Brown

Early 1900s, Jim Crow and black codes dominate

Cumming: GA County closed only black HS, no 14th violation

Gong Lum: Chinese student denied admittance to white HS upheld based on
Harlan dissent in Plessy (anti-Chinese) and state’s rights argument

WEB Dubois à Niagara Movement à NAACP
Early success with voting rights and residential segregation
First challenged school SBE based on unequal facilities
Thurgood Marshall takes over NAACP, focus on unconst. Of SBE

WW2 and end of apartheid in CA increased social unease with segregation (Warren)

Sweatt v. Painter: SBE law school facilities in TX unlawful, per se unequal

McLaurin v. OK Regents: unequal treatment in grad school per se unequal, DOJ had asked Court not to follow Plessy in amicus briefs
Fed government asked courts to overturn Plessy (lead to violence in South?)

Brought up for cert with Brown:
Briggs v. Elliot: SC county schools found grossly unequal, but segregation upheld despite challenge, injunction to equalize ignored
Davis v. School Board of PE County: doll studies and psychological evidence used to show harms of inequality, equalization order by lower court but no timetable

Brown I (1954):

Holding: When state undertakes to provide education, must do so for all on equal terms, SBE in education inherently unequal, precedent has invalidated SBE in other contexts (NAACP had strategically brought higher education cases before public education because easier to win and would create this precedent, also less people in higher education meant less backlash in South, plus justices could understand inherent inequalities in law schools, etc.)

Overturning Plessy was necessary despite possible upheaval in South
Rule unworkable, precedent would create doctrinal anachronism, facts changed and holding irrelevant/unjustifiable (Casey)

Brown II (1955): dismantling of SBE school “with all deliberate speed”, controversial because seemed to allow resistance, integration proceeded slowly

Congressional mindset re: public education
1868: when EPC passed unknown
Now: essential and foundation of good citizenship

Brown Criticisms
Right result, bad reasoning
Short and thin to make easy for public to understand
Court meddling in state’s business
Problems with original intent (14th does not demand “intermingling”)
Failed to articulate why Sweatt/McLaurin should apply to public schools
Relies heavily on doll studies and expert opinion (not very strong)
Failed to make strong citizenship or pluralism arguments
Based on legislative

liance on local democratic process and intervention only in extreme circumstances

Milliken v. Bradley (1974): over strong dissent, used Rodriguez to limit remedies in school district desegregation cases (bussing between districts only when actions of local districts have been substantial cause of inter-district segregation), importance of local control

Pasadena BOE v. Spangler (1976): struck down periodic readjustment of school boundaries in response to white flight

Milliken II (1977): put resources into reform of inner-city schools in order to remedy specific constitutional violations

BOE v. Dowell (1991): principle of local control requires dissolution of desegregation order after districts have operated in good faith for reasonable time

Freeman v. Pitts (1992): schools should be returned to local control as soon as practicable, in order to show accountability, can be done incrementally
Ongoing control would be inconsistent with federalism
Private decisions, i.e., housing, are connected to public policy

The Meaning and Future of Brown

Pros: increased participation by black schoolchildren, decrease in achievement gap, economic progress by blacks, workplace integration, public normalization of integrated schools

Cons: did not do enough to advance blacks, social backlash, tension between the races and white flight

Brown Today: continuing pullback in jurisprudence, return to de facto segregation esp. among Latin students, internal segregation within schools (minority children tracked into lower-performing classes), lack of role models for minority students, achievement gap widening, white flight as a result of court orders, not school system decisions

Justice Thomas: state should be able to operate educational institutions that serve diverse populations with race-neutral admission policies but that may appeal more to one race or another (HBSCs), segregation was unlawful because it classified based on race, but as long as state is neutral, single-race public schools are okay (United States v. Fordice).