Constitutional Law Iii Outline

EQUAL PROTECTION

Race

• Pre-Fourteenth Amendment cases

  • The New Jersey legislature can only abolish slavery by a definite provision to that effect. State v. Post (1845)

  • Black people can never be citizens because the Framers did not understand them to be citizens; the Missouri Compromise violates due process procedurally (by permitting deprivation of one’s property as soon as a slave crosses state lines) and substantively (by abridging the fundamental right to own a slave). Dred Scott v. Sandford (1857).

• Early Fourteenth Amendment cases

  • State could not prohibit blacks from serving on a jury. Strauder v. West Virginia (1880).

  • State-ordered segregation does not violate the Equal Protection Clause. Plessy v. Ferguson (1896)

• Korematsu and strict scrutiny

  • Strict scrutiny: policy must be justified by a compelling governmental interest, must be narrowly tailored to achieve that interest, and must use the least restrictive means for achieving that interest.

    • Origins in the “discrete and insular minority” dicta of Carolene Products Co. v. United States (1938), footnote 4.

  • Military could intern those of Japanese heritage within specified zones, but all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. Korematsu v. United States (1944).

    • Justice Jackson’s dissent suggests that courts should refrain from rulings on the merits in military-related wartime cases so as to avoid setting racist precedents.

  • State could not prohibit those of different races from marrying each other. Loving v. Virginia (1967).

    • Seems to take a “no invidious discrimination” view of racial classifications. After the affirmative action cases, the Court might be moving in more of a “no classifications” direction.

  • State could not exclude aliens from civil service employment. Sugarman v. Dougall (1973).

    • Nationality is treated like race, apparently.

    • In considering whether to extend strict or heightened scrutiny on the basis of a classification, courts consider the history of discrimination, the “immutability/easily discernibility” of the class’s defining characteristic, that characteristic’s relationship to someone’s ability to contribute to society, and the group’s political powerlessness.

• Brown and remedies to past institutional discrimination

  • “Separate is inherently unequal”; equal protection extends to social rights (integrated living with whites) as well as civil (e.g. own property, sue in court) and political (suffrage). Brown v. Board of Education (1954), overruling Plessy. Segregated states should move with “all deliberate speed” to desegregate. Brown II (1955).

  • A freedom-of-school-choice plan that resulted in white families only picking white schools and black families only picking black schools did not satisfy Brown’s mandate. Green v. County School Board (1968). The Court seems to be picking out racial motivations in establishment of the school-choice plan here.

  • Busing is a constitutional remedy to school segregation. Swann v. Charlotte–Mecklenburg Board of Education (1971).

  • School districts which were never de jure segregated used race as a determining factor for assigning students to given schools, for purposes of enhancing diversity; this fails strict scrutiny. Parents Involved in Community Schools v. Seattle School District No. 1 (2007).

  • Affirmative action is subject to strict-scrutiny review. Adarand Constructors, Inc. v. Pena (1995), reaffirming Justice Powell’s controlling concurrence in Regents of the University of California v. Bakke (1978).

    • Before Adarand, the Court applied strict scrutiny to state and local governments’ racial classifications, City of Richmond v. J.A. Croson Co. (1989), but not the federal government’s. Metro Broadcasting, Inc. v. FCC (1990).

    • There is some evidence that the original drafters of the Fourteenth Amendment embraced certain forms of affirmative action; the same Congress that proposed the Fourteenth Amendment created the Freedmen’s Bureau. So this is not an originalist position, necessarily.

    • Strict scrutiny has not generally been fatal to affirmative action policies, as long as the policies do not use explicit racial quotas. Compare Gratz v. Bollinger (2003) (University of Michigan undergrad used quotas; unconstitutional) with Grutter v. Bollinger (2003) (its law school considered race as part of a holistic evaluation of applications; constitutional).

  • Racially gerrymandered state legislative and federal congressional districts are subject to strict-scrutiny review. Shaw v. Reno (1993).

• Washington and evidence of discrimination

  • Racially disparate impact alone doesn’t create an equal protection violation; thus, a neutral police academy entrance exam which black applicants disproportionately failed is not necessarily discriminatory. Washington v. Davis (1976).

    • When confronted with a classification that disadvantages a racial minority, courts will ask whether the classification either explicitly draws racial lines or was motivated by a racial purpose. If so, probably strike it down under strict scrutiny; if not, probably uphold it under rational-basis review.

  • Can’t infer discriminatory purpose merely from the knowledge that a disparate impact will follow; thus, state could give hiring preference to veterans even though it knew that would result in hiring more men. Massachusetts v. Feeney (1979).

  • When looking for discriminatory purpose, consider legislative history and historical background. Even if the plaintiff can show that the law was enacted (or remained on the books) with a discriminatory purpose, we don’t apply strict scrutiny if the government can show that it would have enacted the same law in the absence of discriminatory intent. Village of Arlington Heights v. Metropolitan Housing Corp. (1977).

    • The burden-shifting back to defendants does not apply in racial gerrymandering cases; in those cases, the existence of a discriminatory purpose is enough to apply strict scrutiny.

  • Empirical...

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