Equal Protection Clause
Encyclopedia
The Equal Protection Clause, part of the Fourteenth Amendment
to the United States Constitution
, provides that "no state shall ... deny to any person within its jurisdiction
the equal protection of the laws". The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal
" by empowering the judiciary to enforce that principle against the states. The Fourteenth Amendment Equal Protection Clause applies only to state governments, but the requirement of equal protection has been read to apply to the federal government as a component of Fifth Amendment due process.
More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights
protected individual rights only from invasion by the federal government
. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgment by state leaders and governments, even including some rights that arguably were not protected from abridgment by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means has been the subject of much debate, and the story of the Equal Protection Clause is the gradual explication of its meaning.
The Fourteenth Amendment was enacted in 1868, shortly after the Union victory in the American Civil War
. After the Thirteenth Amendment
, which was proposed by Congress and ratified by the states in 1865, had abolished
slavery
, many ex-Confederate
states adopted Black Codes
following the war. These laws severely restricted the rights of blacks to hold property
, including chattels and real property and many forms of personal property; to form legally enforceable contracts or enter into agreements involving securities, or other negotiable or commercial paper. These codes also created harsher criminal penalties for blacks than for whites.
Because of the inequality these Black Codes imposed, Congress enacted the Civil Rights Act of 1866
. This Act provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford
), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."
Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham
, Charles Sumner
, and Thaddeus Stevens
. The most important among these, however, was Bingham, a Congressman from Ohio
, who drafted the language of the Equal Protection Clause.
The Southern
states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the … Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump
" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.
By its terms, the clause restrains only state governments. However, the Fifth Amendment
's due process
guarantee, beginning with Bolling v. Sharpe
(1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."
Originally, women were excluded from equal protection under the Bill of Rights. In 1971, in a U.S. Supreme court decision of Reed v. Reed
, the Equal Protection Clause of the Fourteenth Amendment was extended to women.
(1880), soon after the end of Reconstruction. A black man convicted of murder by an all-white jury
challenged a West Virginia
statute
excluding blacks from serving on juries. The Court asserted that the purpose of the Clause was
Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race."
The next important postwar case was the Civil Rights Cases
(1883), in which the constitutionality of the Civil Rights Act of 1875
was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other places of public amusement." In its opinion, the Court promulgated what has since become known as the "state action doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong," provided, of course, that the state's law saw it as a wrong. Justice
John Marshall Harlan
dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism."
Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.
A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins
(1886). He said: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." Thus, the Clause would not be limited to discrimination against African Americans, nor would it be limited to equal enforcement of existing laws.
In its most contentious post-war interpretation of the equal protection clause, Plessy v. Ferguson
(1896), the Supreme Court upheld a Louisiana
Jim Crow law that required the segregation
of blacks and whites on railroads
and mandated separate railway cars for members of the two races. The Court, speaking through Justice Henry B. Brown, ruled that the equal protection clause had been intended to defend equality in civil rights
, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people."
Justice Harlan again dissented. "Every one knows," he wrote,
Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law
established by the Constitution."
Since Brown v. Board of Education
(1954), Justice Harlan's dissent in Plessy has been vindicated as a matter of legal doctrine, and the clause has been interpreted as imposing a general restraint on the government's power to discriminate
against people based on their membership in certain classes, including those based on race and sex (see below).
It was also in the post-Civil-War era that the a ruling by the Supreme Court included summarizing headnotes written by a former president of Newburgh and New York Railway Company, John C. Bancroft. Bancroft, acting as court reporter indicated in the notes that corporations were "persons" while the actual court decision itself purposefully avoided specific statements regarding the equal protection clause as applied to corporations. However, the legal concept of corporate personhood
predates the Fourteenth Amendment. In the late nineteenth and early twentieth centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal
, however, such invalidations have been rare.
The first of these was Missouri ex rel. Gaines v. Canada
(1938). Lloyd Gaines was a black student at Lincoln University of Missouri, one of the historically black colleges in Missouri
. He applied for admission to the law school at the all-white University of Missouri
, since Lincoln did not have a law school, but was denied admission due solely to his race. The Supreme Court, applying the separate-but-equal principle of Plessy, held that a State offering a legal education to whites but not to blacks violated the Equal Protection Clause.
Smith v. Allwright
(1944) and Shelley v. Kraemer
(1948), though not dealing with education, indicated the Court's increased willingness to find racial discrimination illegal. Smith declared that the Democratic
primary
in Texas
, in which voting was restricted to whites alone, was unconstitutional, partly on equal protection grounds. Shelley concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could: after all, the Supreme Court reasoned, courts were part of the state.
More important, however, were the companion cases Sweatt v. Painter
and McLaurin v. Oklahoma State Regents
, both decided in 1950. In McLaurin, the University of Oklahoma
had admitted McLaurin, an African-American, but had restricted his activities there: he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. A unanimous Court, through Chief Justice
Fred M. Vinson
, said that Oklahoma had deprived McLaurin of the equal protection of the laws:
The present situation, Vinson said, was the former.
In Sweatt, the Court considered the constitutionality of Texas's state system of law school
s, which educated blacks and whites at separate institutions. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students.
All of these cases, including Brown, were litigated by the National Association for the Advancement of Colored People
. It was Charles Hamilton Houston
, a Harvard Law School
graduate and a law professor at Howard University
, who in the 1930s first began to challenge racial discrimination in the federal courts. Thurgood Marshall
, a former student of Houston's and the future Solicitor General
and Associate Justice of the Supreme Court, joined him. Both men were extraordinarily skilled appellate
advocates, but part of their shrewdness lay in their careful choice of which cases to litigate—of which situations would be the best legal proving grounds for their cause.
became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican
politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional. In that opinion, Warren wrote:
The Court then set the case for re-argument on the question of what the solution would be. In Brown II, decided the next year, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Thus the court devolved authority to local school boards
and to the trial courts
that had originally heard the cases. (Brown was actually a consolidation of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed".
Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance
" in the South to the desegregation decision, integration
did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964
. The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant act; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools.
In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; but because residential segregation
was widespread, this had little effect, either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education
approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley
(1974), it set aside a lower court order that had required the busing of students between districts
, instead of merely within a district. Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the 1950s and 1960s. American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, to Congressional action or to societal change, the percentage of black students attending school districts a majority of whose students were black decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.
There are, very broadly speaking, two ways to explain America's marked lack of success in school integration in the five decades since Brown. One way, sometimes voiced by political conservatives
, argues that Browns relative failure is due to the inherent limitations of law and the courts, which simply do not have the institutional competence to supervise the desegregation of whole school districts. Moreover, the federal government's, and especially the Supreme Court's, hubris actually provoked the resistance of locals, since education in the United States is traditionally a matter for local control. The other way to explain what has happened since Brown often has political liberals as its proponents; it argues that the Court's decree in Brown II was insufficiently rigorous to force segregated localities into action, and that real success began only after the other two branches of the federal government got involved—the Executive Branch (under Kennedy
and Johnson) by encouraging the Department of Justice
to pursue judicial remedies against resistant school districts, and Congress by passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968
. Liberals also point out that Richard Nixon
's "southern strategy
" was premised on a tacit support of segregation that continued when Nixon came to office, so that after 1968 the Executive was no longer behind the Court's constitutional commitments. Moreover, some, such as Erwin Chemerinsky
, argue that courts may have had sufficient ability to ensure widespread integration but simply were not allowed enough time to perform this role, since Milliken v. Bradley, in 1974—barely a decade since desegregation began in earnest in the South—severely curtained the thoroughgoing methods (e.g. busing) which might have achieved the goal of desegregation, particularly in the South, and even more particularly in the state of Georgia
.
Carolene Products and the various levels of Equal Protection scrutiny
Despite the undoubted importance of Brown, much of modern equal protection jurisprudence stems from footnote four of United States v. Carolene Products Co.
(1938), a Commerce Clause
and substantive due process case. In 1937, the Court (in what was called the "switch in time that saved nine
") had loosened its rules for deciding whether Congress
could regulate certain commercial activities. In discussing the new presumption of constitutionality that the Court would apply to economic legislation
, Justice Harlan Stone wrote:
Thus were born the "more searching" levels of scrutiny—"strict" and "intermediate"—with which the Court would examine legislation directed at racial minorities and women respectively. Although the Court first articulated a "strict scrutiny" standard for laws based on race-based distinctions in Hirabayashi v. United States
(1943) and Korematsu v. United States
(1944), the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia
. Intermediate scrutiny did not command the approbation of a majority of the Court until the 1976 case of Craig v. Boren
.
The Supreme Court has defined these levels of scrutiny in the following way:
Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc.
held that the treatment of developmentally disabled
persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions, many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and instead to balance the community's needs against the needs of the disabled.
There is, arguably, a fourth level of scrutiny for equal protection cases. In United States v. Virginia
Justice Ruth Bader Ginsburg
, writing for the Court, eschewed the traditional language of intermediate scrutiny for sex-based discrimination and instead borrowed from Justice Sandra Day O'Connor
's opinion for the Court in Mississippi University for Women v. Hogan
in demanding that litigants articulate an "exceedingly persuasive" argument to justify this kind of discrimination. Whether this was simply a restatement of the doctrine of intermediate scrutiny or whether it created a new level of scrutiny between the intermediate and strict standards is unclear.
The Supreme Court has answered that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies.
Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment. Title VII's standards for public and private employers are the same.) The Supreme Court ruled in Griggs v. Duke Power Co.
(1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII. In the years since Griggs, courts have defined "business necessity" as requiring the employer to prove that whatever is causing the racial disparity—be it a test, an educational requirement, or another hiring practice—has a demonstrable factual relationship to making the company more profitable.
In situations involving only the equal protection clause, however, the focus of the court is on discriminatory intent. Such intent was manifested in the seminal case of Arlington Heights v. Metropolitan Housing Corp.
(1977). In that case, the plaintiff, a housing developer, sued a city in the suburb of Chicago that had refused to re-zone
a plot of land on which the plaintiff intended to build low-income, racially integrated housing. On the face, there was no clear evidence of racially discriminatory intent on the part of Arlington Heights's
planning commission. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice Lewis Powell, writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an evidentiary
value; absent a "stark" pattern, "impact is not determinative." (See also Washington v. Davis
(1976).)
Defenders of the rule in Arlington Heights and Washington v. Davis argue that the equal protection clause was not designed to guarantee equal outcomes
, but rather equal opportunities
and that therefore one should not be concerned with trying to fix every racially disparate effect. One should worry only about intentional discrimination. Others point out that the courts are merely enforcing the equal protection clause, and that if the legislature wants to correct racially disparate effects, it may do so through further legislation.
Critics contend, on the other hand, that the rule would excuse many instances of racial discrimination, since it is possible for a discriminating party to hide its true intention. To uncover the motives of the parties, the court should also consider whether the measure at issue would have disparate impact, critics argue. This debate, though, is currently entirely academic, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights.
For a prime example of how this rule limits the Court's powers under the Equal Protection Clause see McClesky v. Kemp. In that case a black man was convicted of murdering a white police officer and sentenced to death in the state of Georgia. A law professor, David Baldus, performed a study and found that killers of whites were more likely to be sentenced to death than were killers of blacks. The Court found that the defense had failed to prove that such data demonstrated the requisite discriminatory intent by the Georgia legislature and executive branch. McCleskey's argument could not have been helped by the fact that the Baldus study indicated that white defendants in Georgia were actually more likely than black defendants to receive the death penalty, because of the tendency of white killers to choose white victims.
(1985), the Court refused to make the developmentally disabled
a suspect class. Many commentators have noted, however—and Justice Marshall so notes in his partial concurrence—that the Court does appear to examine the City of Cleburne's denial of a permit to a group home for mentally retarded people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.
In Lawrence v. Texas
(2003), the Court struck down a Texas statute prohibiting homosexual sodomy
on substantive due process grounds. In Justice Sandra Day O'Connor
's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne.
Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation
. Much as in City of Cleburne, though, the Court's decision in Romer v. Evans
(1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado
constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test. While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation
, in which case intermediate scrutiny could apply to gay rights cases.
The court has also refused to view government discrimination based on a citizen's political belief or affiliation to be a suspect class.
is the policy of consciously setting racial, ethnic, religious, or other kinds of diversity
as a goal within an organization. In order to meet this goal, an organization may purposely select people from certain groups that are underrepresented, or have historically been oppressed or denied equal opportunities. In that application of affirmative action, individuals of one or more of these minority backgrounds are preferred—ceteris paribus
—over those who do not have such characteristics; such a preferential scheme is sometimes effected through quotas, though this need not necessarily be so.
Although there were forms of what is now called affirmative action during the Reconstruction (most of which were implemented by the same persons who framed the Fourteenth Amendment) the modern history of affirmative action began with the Kennedy administration and started to flourish during the Johnson administration, with the Civil Rights Act of 1964 and two executive order
s. These policies directed agencies of the federal government to employ a proportionate number of minorities whenever possible.
Several important affirmative action cases to reach the Supreme Court have concerned government contractor
s—for instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co.
(1989). But the most famous cases have dealt with affirmative action as practiced by public universities
: Regents of the University of California v. Bakke
(1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger
and Gratz v. Bollinger
.
In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan Law School
. In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.
In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas
in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one. On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.
(1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr
(1962), where the Court ruled that the districts that sent representatives to the Tennessee
state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. This ruling was extended two years later in Reynolds v. Sims
(1964), in which a "one man, one vote" standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation.
It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment
and the Nineteenth Amendment
redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan
(the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said:
However, Reynolds and Baker do not lack a rationale, if seen from another perspective. The Supreme Court has repeatedly stated that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia
), privacy (Griswold v. Connecticut
(1965)), or interstate travel (Shapiro v. Thompson (1969)). For any abridgment of those rights to be constitutional, the Court has held, the legislation must pass strict scrutiny. Thus, on this account, equal protection jurisprudence may be appropriately applied to voting rights.
A recent use of equal protection doctrine came in Bush v. Gore
(2000). At issue was the controversial recount in Florida
in the aftermath of the 2000 presidential election. There, the Supreme Court decided that the different standards of counting ballots across Florida violated the equal protection clause. It was not this decision that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices Souter
and Breyer
joined the majority of five—but only, it should be emphasized, for the finding that there was an Equal Protection violation. What was controversial was, first, the remedy upon which the majority agreed—that even though there was an equal protection violation, there was not enough time for a recount—and second, the suggestion that the equal protection violation was true only on the facts of Bush v. Gore
; commentators suggested that this meant that the Court did not wish its decision to have any precedent
ial effect, and that this was evidence of its unprincipled decision-making.
voting system through the clause, such as in Mobile v. Bolden
. Gaffney v. Cummings, 412 U.S. 735 (1973) ruled political fairness principles were not a violation of the clause, stating "rough proportional representation...was found to be a legitimate state goal". United Jewish Organizations v. Carey, 430 U. S. 144 (1977) in its opinion determined the system is not a right denied by the constitution.
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, provides that "no state shall ... deny to any person within its jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
the equal protection of the laws". The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal
All men are created equal
The quotation "All men are created equal" has been called an "immortal declaration", and "perhaps" the single phrase of the United States Revolutionary period with the greatest "continuing importance". Thomas Jefferson first used the phrase in the Declaration of Independence as a rebuttal to the...
" by empowering the judiciary to enforce that principle against the states. The Fourteenth Amendment Equal Protection Clause applies only to state governments, but the requirement of equal protection has been read to apply to the federal government as a component of Fifth Amendment due process.
More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
protected individual rights only from invasion by the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgment by state leaders and governments, even including some rights that arguably were not protected from abridgment by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means has been the subject of much debate, and the story of the Equal Protection Clause is the gradual explication of its meaning.
Text of Section 1 of the Fourteenth Amendment to the United States Constitution
Background
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
. After the Thirteenth Amendment
Thirteenth Amendment to the United States Constitution
The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit slavery and involuntary servitude, except as punishment for a crime. It was passed by the Senate on April 8, 1864, passed by the House on January 31, 1865, and adopted on December 6, 1865. On...
, which was proposed by Congress and ratified by the states in 1865, had abolished
Abolitionism
Abolitionism is a movement to end slavery.In western Europe and the Americas abolitionism was a movement to end the slave trade and set slaves free. At the behest of Dominican priest Bartolomé de las Casas who was shocked at the treatment of natives in the New World, Spain enacted the first...
slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, many ex-Confederate
Confederate States of America
The Confederate States of America was a government set up from 1861 to 1865 by 11 Southern slave states of the United States of America that had declared their secession from the U.S...
states adopted Black Codes
Black Codes in the USA
The Black Codes were laws put in place in the United States after the Civil War with the effect of limiting the basic human rights and civil liberties of blacks. Even though the U.S...
following the war. These laws severely restricted the rights of blacks to hold property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, including chattels and real property and many forms of personal property; to form legally enforceable contracts or enter into agreements involving securities, or other negotiable or commercial paper. These codes also created harsher criminal penalties for blacks than for whites.
Civil Rights Act of 1866
The Civil Rights Act of 1866, , enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War...
. This Act provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."
Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham
John Bingham
John Armor Bingham was a Republican congressman from Ohio, America, judge advocate in the trial of the Abraham Lincoln assassination and a prosecutor in the impeachment trials of Andrew Johnson...
, Charles Sumner
Charles Sumner
Charles Sumner was an American politician and senator from Massachusetts. An academic lawyer and a powerful orator, Sumner was the leader of the antislavery forces in Massachusetts and a leader of the Radical Republicans in the United States Senate during the American Civil War and Reconstruction,...
, and Thaddeus Stevens
Thaddeus Stevens
Thaddeus Stevens , of Pennsylvania, was a Republican leader and one of the most powerful members of the United States House of Representatives...
. The most important among these, however, was Bingham, a Congressman from Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
, who drafted the language of the Equal Protection Clause.
The Southern
Southern United States
The Southern United States—commonly referred to as the American South, Dixie, or simply the South—constitutes a large distinctive area in the southeastern and south-central United States...
states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the … Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump
Rump legislature
A Rump legislature is a legislature formed of part, usually a minority, of the legislators originally elected or appointed to office.The word "rump" normally refers to the back end of an animal; its use meaning "remnant" was first recorded in the context of the 17th century Rump Parliament in England...
" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.
By its terms, the clause restrains only state governments. However, the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
's due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
guarantee, beginning with Bolling v. Sharpe
Bolling v. Sharpe
Bolling v. Sharpe, 347 U.S. 497 , is a landmark United States Supreme Court case which deals with civil rights, specifically, segregation in the District of Columbia's public schools. Originally argued on December 10–11, 1952, a year before Brown v. Board of Education, 347 U.S...
(1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."
Originally, women were excluded from equal protection under the Bill of Rights. In 1971, in a U.S. Supreme court decision of Reed v. Reed
Reed v. Reed
Reed v. Reed, , was an Equal Protection case in the United States in which the Supreme Court ruled that the administrators of estates cannot be named in a way that discriminates between sexes. After the death of their adopted son, Sally and Cecil Reed sought to be named the administrator of their...
, the Equal Protection Clause of the Fourteenth Amendment was extended to women.
Reconstruction-era interpretation and the Plessy decision
The first truly landmark equal protection decision by the Supreme Court was Strauder v. West VirginiaStrauder v. West Virginia
Strauder v. West Virginia, , was a United States Supreme Court case about racial discrimination.-Background:At the time, West Virginia excluded African-Americans from juries. Strauder was a Black man who, at trial, had been convicted of murder by an all-white jury...
(1880), soon after the end of Reconstruction. A black man convicted of murder by an all-white jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
challenged a West Virginia
West Virginia
West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...
statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
excluding blacks from serving on juries. The Court asserted that the purpose of the Clause was
Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race."
The next important postwar case was the Civil Rights Cases
Civil Rights Cases
The Civil Rights Cases, 109 U.S. 3 , were a group of five similar cases consolidated into one issue for the United States Supreme Court to review...
(1883), in which the constitutionality of the Civil Rights Act of 1875
Civil Rights Act of 1875
The Civil Rights Act of 1875 was a United States federal law proposed by Senator Charles Sumner and Representative Benjamin F. Butler in 1870...
was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other places of public amusement." In its opinion, the Court promulgated what has since become known as the "state action doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong," provided, of course, that the state's law saw it as a wrong. Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...
dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism."
Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.
A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins
Yick Wo v. Hopkins
Yick Wo v. Hopkins, 118 U.S. 356 , was the first case where the United States Supreme Court ruled that a law that is race-neutral on its face, but is administered in a prejudicial manner, is an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S...
(1886). He said: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." Thus, the Clause would not be limited to discrimination against African Americans, nor would it be limited to equal enforcement of existing laws.
In its most contentious post-war interpretation of the equal protection clause, Plessy v. Ferguson
Plessy v. Ferguson
Plessy v. Ferguson, 163 U.S. 537 , is a landmark United States Supreme Court decision in the jurisprudence of the United States, upholding the constitutionality of state laws requiring racial segregation in private businesses , under the doctrine of "separate but equal".The decision was handed...
(1896), the Supreme Court upheld a Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
Jim Crow law that required the segregation
Racial segregation
Racial segregation is the separation of humans into racial groups in daily life. It may apply to activities such as eating in a restaurant, drinking from a water fountain, using a public toilet, attending school, going to the movies, or in the rental or purchase of a home...
of blacks and whites on railroads
Rail transport
Rail transport is a means of conveyance of passengers and goods by way of wheeled vehicles running on rail tracks. In contrast to road transport, where vehicles merely run on a prepared surface, rail vehicles are also directionally guided by the tracks they run on...
and mandated separate railway cars for members of the two races. The Court, speaking through Justice Henry B. Brown, ruled that the equal protection clause had been intended to defend equality in civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people."
Justice Harlan again dissented. "Every one knows," he wrote,
Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law
Equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
established by the Constitution."
Since Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
(1954), Justice Harlan's dissent in Plessy has been vindicated as a matter of legal doctrine, and the clause has been interpreted as imposing a general restraint on the government's power to discriminate
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
against people based on their membership in certain classes, including those based on race and sex (see below).
It was also in the post-Civil-War era that the a ruling by the Supreme Court included summarizing headnotes written by a former president of Newburgh and New York Railway Company, John C. Bancroft. Bancroft, acting as court reporter indicated in the notes that corporations were "persons" while the actual court decision itself purposefully avoided specific statements regarding the equal protection clause as applied to corporations. However, the legal concept of corporate personhood
Corporate personhood
Corporate personhood is the status conferred upon corporations under the law, which allows corporations to have rights and responsibilities similar to those of a natural person. There is a question about which subset of rights that are afforded to natural persons should also be afforded to...
predates the Fourteenth Amendment. In the late nineteenth and early twentieth centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
, however, such invalidations have been rare.
Between Plessy and Brown
While the Plessy majority's interpretation of the clause stood until Brown, the holding of Brown was prefigured, to some extent, by several earlier cases.The first of these was Missouri ex rel. Gaines v. Canada
Missouri ex rel. Gaines v. Canada
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 , was a United States Supreme Court decision holding that states that provide a school to white students must provide in-state education to blacks as well...
(1938). Lloyd Gaines was a black student at Lincoln University of Missouri, one of the historically black colleges in Missouri
Missouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
. He applied for admission to the law school at the all-white University of Missouri
University of Missouri
The University of Missouri System is a state university system providing centralized administration for four universities, a health care system, an extension program, five research and technology parks, and a publishing press. More than 64,000 students are currently enrolled at its four campuses...
, since Lincoln did not have a law school, but was denied admission due solely to his race. The Supreme Court, applying the separate-but-equal principle of Plessy, held that a State offering a legal education to whites but not to blacks violated the Equal Protection Clause.
Smith v. Allwright
Smith v. Allwright
Smith v. Allwright , 321 U.S. 649 , was a very important decision of the United States Supreme Court with regard to voting rights and, by extension, racial desegregation. It overturned the Democratic Party's use of all-white primaries in Texas, and other states where the party used the...
(1944) and Shelley v. Kraemer
Shelley v. Kraemer
Shelley v. Kraemer, 334 U.S. 1 , is a United States Supreme Court case which held that courts could not enforce racial covenants on real estate.-Facts of the case:...
(1948), though not dealing with education, indicated the Court's increased willingness to find racial discrimination illegal. Smith declared that the Democratic
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
primary
Primary election
A primary election is an election in which party members or voters select candidates for a subsequent election. Primary elections are one means by which a political party nominates candidates for the next general election....
in Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, in which voting was restricted to whites alone, was unconstitutional, partly on equal protection grounds. Shelley concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could: after all, the Supreme Court reasoned, courts were part of the state.
More important, however, were the companion cases Sweatt v. Painter
Sweatt v. Painter
Sweatt v. Painter, , was a U.S. Supreme Court case that successfully proved lack of equality, in favor of a black applicant, the "separate but equal" doctrine of racial segregation established by the 1896 case Plessy v. Ferguson. The case was also influential in the landmark case of Brown v...
and McLaurin v. Oklahoma State Regents
McLaurin v. Oklahoma State Regents
McLaurin v. Oklahoma State Regents, 339 U.S. 637 , was a United States Supreme Court case that reversed a lower court decision upholding the efforts of the state-supported University of Oklahoma to adhere to the state law requiring African-Americans to be provided graduate or professional education...
, both decided in 1950. In McLaurin, the University of Oklahoma
University of Oklahoma
The University of Oklahoma is a coeducational public research university located in Norman, Oklahoma. Founded in 1890, it existed in Oklahoma Territory near Indian Territory for 17 years before the two became the state of Oklahoma. the university had 29,931 students enrolled, most located at its...
had admitted McLaurin, an African-American, but had restricted his activities there: he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. A unanimous Court, through Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Fred M. Vinson
Fred M. Vinson
Frederick Moore Vinson served the United States in all three branches of government and was the most prominent member of the Vinson political family. In the legislative branch, he was an elected member of the United States House of Representatives from Louisa, Kentucky, for twelve years...
, said that Oklahoma had deprived McLaurin of the equal protection of the laws:
The present situation, Vinson said, was the former.
In Sweatt, the Court considered the constitutionality of Texas's state system of law school
Law school
A law school is an institution specializing in legal education.- Law degrees :- Canada :...
s, which educated blacks and whites at separate institutions. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students.
All of these cases, including Brown, were litigated by the National Association for the Advancement of Colored People
National Association for the Advancement of Colored People
The National Association for the Advancement of Colored People, usually abbreviated as NAACP, is an African-American civil rights organization in the United States, formed in 1909. Its mission is "to ensure the political, educational, social, and economic equality of rights of all persons and to...
. It was Charles Hamilton Houston
Charles Hamilton Houston
Charles Hamilton Houston was an African American lawyer, Dean of Howard University Law School and NAACP Litigation Director who played a significant role in dismantling the Jim Crow laws and trained future Supreme Court Justice Thurgood Marshall.Houston was born in Washington, D.C. His father...
, a Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
graduate and a law professor at Howard University
Howard University
Howard University is a federally chartered, non-profit, private, coeducational, nonsectarian, historically black university located in Washington, D.C., United States...
, who in the 1930s first began to challenge racial discrimination in the federal courts. Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
, a former student of Houston's and the future Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
and Associate Justice of the Supreme Court, joined him. Both men were extraordinarily skilled appellate
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
advocates, but part of their shrewdness lay in their careful choice of which cases to litigate—of which situations would be the best legal proving grounds for their cause.
Brown and its consequences
When Earl WarrenEarl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional. In that opinion, Warren wrote:
The Court then set the case for re-argument on the question of what the solution would be. In Brown II, decided the next year, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Thus the court devolved authority to local school boards
Board of education
A board of education or a school board or school committee is the title of the board of directors or board of trustees of a school, local school district or higher administrative level....
and to the trial courts
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
that had originally heard the cases. (Brown was actually a consolidation of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed".
Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance
Massive resistance
Massive resistance was a policy declared by U.S. Senator Harry F. Byrd, Sr. on February 24, 1956, to unite other white politicians and leaders in Virginia in a campaign of new state laws and policies to prevent public school desegregation after the Brown v. Board of Education Supreme Court decision...
" in the South to the desegregation decision, integration
Racial integration
Racial integration, or simply integration includes desegregation . In addition to desegregation, integration includes goals such as leveling barriers to association, creating equal opportunity regardless of race, and the development of a culture that draws on diverse traditions, rather than merely...
did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
. The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant act; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools.
In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; but because residential segregation
Residential Segregation
Residential segregation is the physical separation of cultural groups based on residence and housing, or a form of segregation that "sorts population groups into various neighborhood contexts and shapes the living environment at the neighborhood level."...
was widespread, this had little effect, either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education
Swann v. Charlotte-Mecklenburg Board of Education
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 was an important United States Supreme Court case dealing with the busing of students to promote integration in public schools...
approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley
Milliken v. Bradley
Milliken v. Bradley, 418 U.S. 717 , was a significant United States Supreme Court case dealing with the planned desegregation busing of public school students across district lines among 53 school districts in metropolitan Detroit. It concerned the plans to integrate public schools in the United...
(1974), it set aside a lower court order that had required the busing of students between districts
School district
School districts are a form of special-purpose district which serves to operate the local public primary and secondary schools.-United States:...
, instead of merely within a district. Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the 1950s and 1960s. American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, to Congressional action or to societal change, the percentage of black students attending school districts a majority of whose students were black decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.
There are, very broadly speaking, two ways to explain America's marked lack of success in school integration in the five decades since Brown. One way, sometimes voiced by political conservatives
American conservatism
Conservatism in the United States has played an important role in American politics since the 1950s. Historian Gregory Schneider identifies several constants in American conservatism: respect for tradition, support of republicanism, preservation of "the rule of law and the Christian religion", and...
, argues that Browns relative failure is due to the inherent limitations of law and the courts, which simply do not have the institutional competence to supervise the desegregation of whole school districts. Moreover, the federal government's, and especially the Supreme Court's, hubris actually provoked the resistance of locals, since education in the United States is traditionally a matter for local control. The other way to explain what has happened since Brown often has political liberals as its proponents; it argues that the Court's decree in Brown II was insufficiently rigorous to force segregated localities into action, and that real success began only after the other two branches of the federal government got involved—the Executive Branch (under Kennedy
John F. Kennedy
John Fitzgerald "Jack" Kennedy , often referred to by his initials JFK, was the 35th President of the United States, serving from 1961 until his assassination in 1963....
and Johnson) by encouraging the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
to pursue judicial remedies against resistant school districts, and Congress by passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968
Civil Rights Act of 1968
On April 11, 1968 U.S. President Lyndon B. Johnson signed the Civil Rights Act of 1968, also known as the Indian Civil Rights Act of 1968. Title VIII of the Civil Rights Act of 1968 is commonly known as the Fair Housing Act, or as CRA '68, and was meant as a follow-up to the Civil Rights Act of 1964...
. Liberals also point out that Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
's "southern strategy
Southern strategy
In American politics, the Southern strategy refers to the Republican Party strategy of winning elections in Southern states by exploiting anti-African American racism and fears of lawlessness among Southern white voters and appealing to fears of growing federal power in social and economic matters...
" was premised on a tacit support of segregation that continued when Nixon came to office, so that after 1968 the Executive was no longer behind the Court's constitutional commitments. Moreover, some, such as Erwin Chemerinsky
Erwin Chemerinsky
Erwin Chemerinsky is an American lawyer and law professor. He is a prominent scholar in United States constitutional law and federal civil procedure...
, argue that courts may have had sufficient ability to ensure widespread integration but simply were not allowed enough time to perform this role, since Milliken v. Bradley, in 1974—barely a decade since desegregation began in earnest in the South—severely curtained the thoroughgoing methods (e.g. busing) which might have achieved the goal of desegregation, particularly in the South, and even more particularly in the state of Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
.
Carolene Products and the various levels of Equal Protection scrutiny
United States v. Carolene Products Co.
United States v. Carolene Products Company, 304 U.S. 144 , was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk from being shipped in interstate commerce...
(1938), a Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
and substantive due process case. In 1937, the Court (in what was called the "switch in time that saved nine
The switch in time that saved nine
“The switch in time that saved nine” is the name given to what was perceived as the sudden jurisprudential shift by Associate Justice Owen J. Roberts of the U.S. Supreme Court in West Coast Hotel Co. v. Parrish...
") had loosened its rules for deciding whether Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
could regulate certain commercial activities. In discussing the new presumption of constitutionality that the Court would apply to economic legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
, Justice Harlan Stone wrote:
Thus were born the "more searching" levels of scrutiny—"strict" and "intermediate"—with which the Court would examine legislation directed at racial minorities and women respectively. Although the Court first articulated a "strict scrutiny" standard for laws based on race-based distinctions in Hirabayashi v. United States
Hirabayashi v. United States
Hirabayashi v. United States, 320 U.S. 81 , was a case in which the United States Supreme Court held that the application of curfews against members of a minority group were constitutional when the nation was at war with the country from which that group originated. Yasui v...
(1943) and Korematsu v. United States
Korematsu v. United States
Korematsu v. United States, 323 U.S. 214 , was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II....
(1944), the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia
Loving v. Virginia
Loving v. Virginia, , was a landmark civil rights case in which the United States Supreme Court, in a unanimous decision, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v...
. Intermediate scrutiny did not command the approbation of a majority of the Court until the 1976 case of Craig v. Boren
Craig v. Boren
Craig v. Boren, , was the first case in which a majority of the United States Supreme Court determined that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review...
.
The Supreme Court has defined these levels of scrutiny in the following way:
- Strict scrutinyStrict scrutinyStrict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
(if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest. - Intermediate scrutinyIntermediate scrutinyIntermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review and strict scrutiny ....
(if the law categorizes on the basis of sexSexIn biology, sex is a process of combining and mixing genetic traits, often resulting in the specialization of organisms into a male or female variety . Sexual reproduction involves combining specialized cells to form offspring that inherit traits from both parents...
): the law is unconstitutional unless it is "substantially related" to an "important" government interest. - Rational-basis testRational basis reviewRational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
(if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.
Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc.
City of Cleburne v. Cleburne Living Center, Inc.
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 , was a U.S. Supreme Court case involving discrimination against the mentally retarded....
held that the treatment of developmentally disabled
Developmental disability
Developmental disability is a term used in the United States and Canada to describe lifelong disabilities attributable to mental or physical impairments, manifested prior to age 18. It is not synonymous with "developmental delay" which is often a consequence of a temporary illness or trauma during...
persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions, many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and instead to balance the community's needs against the needs of the disabled.
There is, arguably, a fourth level of scrutiny for equal protection cases. In United States v. Virginia
United States v. Virginia
United States v. Virginia, , is a case in which the Supreme Court of the United States struck down the Virginia Military Institute's long-standing male-only admission policy in a 7-1 decision...
Justice Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, writing for the Court, eschewed the traditional language of intermediate scrutiny for sex-based discrimination and instead borrowed from Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
's opinion for the Court in Mississippi University for Women v. Hogan
Mississippi University for Women v. Hogan
Mississippi University for Women v. Hogan, 458 U.S. 718 was a case decided 5-4 by the Supreme Court of the United States. The court held that the single-sex admissions policy of the Mississippi University for Women violated the Equal Protection Clause of the Fourteenth Amendment to the United...
in demanding that litigants articulate an "exceedingly persuasive" argument to justify this kind of discrimination. Whether this was simply a restatement of the doctrine of intermediate scrutiny or whether it created a new level of scrutiny between the intermediate and strict standards is unclear.
Discriminatory intent and disparate impact?
After Brown, questions still remained about the scope of the equal protection clause. Does the Clause outlaw public policies that cause racial disparities—for example, a public school examination that has not been established for racist reasons, but that more white students than black students pass? Or, on the other hand, does it prohibit only intentional bigotry?The Supreme Court has answered that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies.
Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment. Title VII's standards for public and private employers are the same.) The Supreme Court ruled in Griggs v. Duke Power Co.
Griggs v. Duke Power Co.
Griggs v. Duke Power Co., , was a court case argued before the United States Supreme Court on December 14, 1970. It concerned employment discrimination and the disparate impact theory and was decided on March 8, 1971...
(1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII. In the years since Griggs, courts have defined "business necessity" as requiring the employer to prove that whatever is causing the racial disparity—be it a test, an educational requirement, or another hiring practice—has a demonstrable factual relationship to making the company more profitable.
In situations involving only the equal protection clause, however, the focus of the court is on discriminatory intent. Such intent was manifested in the seminal case of Arlington Heights v. Metropolitan Housing Corp.
Arlington Heights v. Metropolitan Housing Corp.
Village of Arlington Heights v. Metropolitan Housing Development Corp, 429 U.S. 252 , was a case heard by the Supreme Court of the United States dealing with a zoning ordinance that in a practical way barred families of various socio-economic, and ethno-racial backgrounds from residing in a...
(1977). In that case, the plaintiff, a housing developer, sued a city in the suburb of Chicago that had refused to re-zone
Zoning
Zoning is a device of land use planning used by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another...
a plot of land on which the plaintiff intended to build low-income, racially integrated housing. On the face, there was no clear evidence of racially discriminatory intent on the part of Arlington Heights's
Arlington Heights, Illinois
Arlington Heights is a village in Cook and Lake counties in the U.S. state of Illinois. A suburb of Chicago, it lies about 25 miles northwest of the city's downtown. The population was 75,101 at the 2010 census....
planning commission. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice Lewis Powell, writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an evidentiary
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
value; absent a "stark" pattern, "impact is not determinative." (See also Washington v. Davis
Washington v. Davis
Washington v. Davis, , was a United States Supreme Court case regarding the application of the Due Process Clause. Two African Americans had applied for positions in the Washington, DC police department, and sued after being turned down...
(1976).)
Defenders of the rule in Arlington Heights and Washington v. Davis argue that the equal protection clause was not designed to guarantee equal outcomes
Equality of outcome
Equality of outcome, equality of condition, or equality of results is a controversial political concept. Although it is not always clearly defined, it is usually taken to describe a state in which people have approximately the same material wealth or, more generally, in which the general conditions...
, but rather equal opportunities
Equal opportunity
Equal opportunity, or equality of opportunity, is a controversial political concept; and an important informal decision-making standard without a precise definition involving fair choices within the public sphere...
and that therefore one should not be concerned with trying to fix every racially disparate effect. One should worry only about intentional discrimination. Others point out that the courts are merely enforcing the equal protection clause, and that if the legislature wants to correct racially disparate effects, it may do so through further legislation.
Critics contend, on the other hand, that the rule would excuse many instances of racial discrimination, since it is possible for a discriminating party to hide its true intention. To uncover the motives of the parties, the court should also consider whether the measure at issue would have disparate impact, critics argue. This debate, though, is currently entirely academic, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights.
For a prime example of how this rule limits the Court's powers under the Equal Protection Clause see McClesky v. Kemp. In that case a black man was convicted of murdering a white police officer and sentenced to death in the state of Georgia. A law professor, David Baldus, performed a study and found that killers of whites were more likely to be sentenced to death than were killers of blacks. The Court found that the defense had failed to prove that such data demonstrated the requisite discriminatory intent by the Georgia legislature and executive branch. McCleskey's argument could not have been helped by the fact that the Baldus study indicated that white defendants in Georgia were actually more likely than black defendants to receive the death penalty, because of the tendency of white killers to choose white victims.
Suspect classes
The Supreme Court has seemed unwilling to extend full "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than racial minorities and religious groups. In City of Cleburne v. Cleburne Living Center, Inc.City of Cleburne v. Cleburne Living Center, Inc.
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 , was a U.S. Supreme Court case involving discrimination against the mentally retarded....
(1985), the Court refused to make the developmentally disabled
Developmental disability
Developmental disability is a term used in the United States and Canada to describe lifelong disabilities attributable to mental or physical impairments, manifested prior to age 18. It is not synonymous with "developmental delay" which is often a consequence of a temporary illness or trauma during...
a suspect class. Many commentators have noted, however—and Justice Marshall so notes in his partial concurrence—that the Court does appear to examine the City of Cleburne's denial of a permit to a group home for mentally retarded people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.
In Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
(2003), the Court struck down a Texas statute prohibiting homosexual sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
on substantive due process grounds. In Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne.
Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
. Much as in City of Cleburne, though, the Court's decision in Romer v. Evans
Romer v. Evans
Romer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
(1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test. While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
, in which case intermediate scrutiny could apply to gay rights cases.
The court has also refused to view government discrimination based on a citizen's political belief or affiliation to be a suspect class.
Affirmative action
Affirmative actionAffirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
is the policy of consciously setting racial, ethnic, religious, or other kinds of diversity
Multiculturalism
Multiculturalism is the appreciation, acceptance or promotion of multiple cultures, applied to the demographic make-up of a specific place, usually at the organizational level, e.g...
as a goal within an organization. In order to meet this goal, an organization may purposely select people from certain groups that are underrepresented, or have historically been oppressed or denied equal opportunities. In that application of affirmative action, individuals of one or more of these minority backgrounds are preferred—ceteris paribus
Ceteris paribus
or is a Latin phrase, literally translated as "with other things the same," or "all other things being equal or held constant." It is an example of an ablative absolute and is commonly rendered in English as "all other things being equal." A prediction, or a statement about causal or logical...
—over those who do not have such characteristics; such a preferential scheme is sometimes effected through quotas, though this need not necessarily be so.
Although there were forms of what is now called affirmative action during the Reconstruction (most of which were implemented by the same persons who framed the Fourteenth Amendment) the modern history of affirmative action began with the Kennedy administration and started to flourish during the Johnson administration, with the Civil Rights Act of 1964 and two executive order
Executive order
An executive order in the United States is an order issued by the President, the head of the executive branch of the federal government. In other countries, similar edicts may be known as decrees, or orders in council. Executive orders may also be issued at the state level by a state's governor or...
s. These policies directed agencies of the federal government to employ a proportionate number of minorities whenever possible.
Several important affirmative action cases to reach the Supreme Court have concerned government contractor
Independent contractor
An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when...
s—for instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co.
City of Richmond v. J.A. Croson Co.
City of Richmond v. J.A. Croson Co., 488 U.S. 469 was a case in which the United States Supreme Court held that the city of Richmond's minority set-aside program, which gave preference to minority business enterprises in the awarding of municipal contracts, was unconstitutional under the Equal...
(1989). But the most famous cases have dealt with affirmative action as practiced by public universities
Public university
A public university is a university that is predominantly funded by public means through a national or subnational government, as opposed to private universities. A national university may or may not be considered a public university, depending on regions...
: Regents of the University of California v. Bakke
Regents of the University of California v. Bakke
Regents of the University of California v. Bakke, was a landmark decision of the Supreme Court of the United States that ruled unconstitutional the admission process of the Medical School at the University of California at Davis, which set aside 16 of the 100 seats for African American...
(1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger
Grutter v. Bollinger
Grutter v. Bollinger, 539 U.S. 306 , was a case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School...
and Gratz v. Bollinger
Gratz v. Bollinger
Gratz v. Bollinger, 539 U.S. 244 , was a United States Supreme Court case regarding the University of Michigan undergraduate affirmative action admissions policy...
.
In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan Law School
University of Michigan Law School
The University of Michigan Law School is the law school of the University of Michigan, in Ann Arbor. Founded in 1859, the school has an enrollment of about 1,200 students, most of whom are seeking Juris Doctor or Master of Laws degrees, although the school also offers a Doctor of Juridical...
. In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.
In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one. On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.
The Equal Protection Clause and voting
Although the Supreme Court had ruled in Nixon v. HerndonNixon v. Herndon
Nixon v. Herndon, 273 U.S. 536 , was a United States Supreme Court decision in which the Court struck down a Texas law which forbade blacks from voting in the Texas Democratic primary. Because Texas was a one-party state, the Democratic Party primary was the only competitive process and chance to...
(1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr
Baker v. Carr
Baker v. Carr, , was a landmark United States Supreme Court case that retreated from the Court's political question doctrine, deciding that redistricting issues present justiciable questions, thus enabling federal courts to intervene in and to decide reapportionment cases...
(1962), where the Court ruled that the districts that sent representatives to the Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. This ruling was extended two years later in Reynolds v. Sims
Reynolds v. Sims
Reynolds v. Sims, 377 U.S. 533 was a United States Supreme Court case that ruled that state legislature districts had to be roughly equal in population.-Facts:...
(1964), in which a "one man, one vote" standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation.
It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment
Fifteenth Amendment to the United States Constitution
The Fifteenth Amendment to the United States Constitution prohibits each government in the United States from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude"...
and the Nineteenth Amendment
Nineteenth Amendment to the United States Constitution
The Nineteenth Amendment to the United States Constitution prohibits any United States citizen to be denied the right to vote based on sex. It was ratified on August 18, 1920....
redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
(the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said:
However, Reynolds and Baker do not lack a rationale, if seen from another perspective. The Supreme Court has repeatedly stated that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia
Loving v. Virginia
Loving v. Virginia, , was a landmark civil rights case in which the United States Supreme Court, in a unanimous decision, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v...
), privacy (Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
(1965)), or interstate travel (Shapiro v. Thompson (1969)). For any abridgment of those rights to be constitutional, the Court has held, the legislation must pass strict scrutiny. Thus, on this account, equal protection jurisprudence may be appropriately applied to voting rights.
A recent use of equal protection doctrine came in Bush v. Gore
Bush v. Gore
Bush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
(2000). At issue was the controversial recount in Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
in the aftermath of the 2000 presidential election. There, the Supreme Court decided that the different standards of counting ballots across Florida violated the equal protection clause. It was not this decision that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
and Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
joined the majority of five—but only, it should be emphasized, for the finding that there was an Equal Protection violation. What was controversial was, first, the remedy upon which the majority agreed—that even though there was an equal protection violation, there was not enough time for a recount—and second, the suggestion that the equal protection violation was true only on the facts of Bush v. Gore
Bush v. Gore
Bush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
; commentators suggested that this meant that the Court did not wish its decision to have any precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
ial effect, and that this was evidence of its unprincipled decision-making.
Proportional representation
Some dissents have been considered an endorsement of the proportional representationProportional representation
Proportional representation is a concept in voting systems used to elect an assembly or council. PR means that the number of seats won by a party or group of candidates is proportionate to the number of votes received. For example, under a PR voting system if 30% of voters support a particular...
voting system through the clause, such as in Mobile v. Bolden
Mobile v. Bolden
Mobile v. Bolden, 446 U.S. 55 , was a case in which the Supreme Court of the United States held that electoral districts must be drawn without racially discriminatory intent to warrant constitutional protection. In Gomillion v...
. Gaffney v. Cummings, 412 U.S. 735 (1973) ruled political fairness principles were not a violation of the clause, stating "rough proportional representation...was found to be a legitimate state goal". United Jewish Organizations v. Carey, 430 U. S. 144 (1977) in its opinion determined the system is not a right denied by the constitution.
See also
- Animal rightsAnimal rightsAnimal rights, also known as animal liberation, is the idea that the most basic interests of non-human animals should be afforded the same consideration as the similar interests of human beings...
- Equal consideration of interestsEqual consideration of interests"Equal consideration of interests" is the name of a moral principle that states that one should both include all affected interests when calculating the rightness of an action, and weigh those interests equally....
- Gay rights
- Human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
- MajoritarianismMajoritarianismMajoritarianism is a traditional political philosophy or agenda which asserts that a majority of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society...
- Social contractSocial contractThe social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
- South African Bill of Rights