Studied by 24 people
civil war amendment
13th amendment (1865)- abolished slavery
14th amendment (1868)- citizenship rights, due process, equal protection, apportionment, civil war debt
15th amendment (1869)- right to vote may not be denied on account of race, color, or previous condition of servitude
reconstruction promises
promise for equal rights and citizenship
creating a new south that AA would prosper in
Hayes election impact on promises
how did reconstruction come to a “bruising halt“ when Rep Hayes was elected rather than Demo Tilden
there was an issue of getting elector votes → electoral crisis
in exchange for the election Hayes promised to withdraw troops from the South, fully aware the demo ex-Confederates would seize power
14th amendment sec 1
no state shall
abridge the privileges and immunities of citizens
deprive any person of life, liberty, or property w/out due process
individual rights listed in the Bill of Rights
procedural protections
unenumerated fundamental rights
deny any person w/in its jurisdiction the equal protection of the laws
14th amendment sec 5
congress shall have the power to enforce the provisions in this article
how did the SC interpret the 14th amendment privilege and immunities clause in the Slaughter House Cases to limit the reach of the 14th amend
they believed it only applied to the rights associated with federal citizenship not state citizenship
Slaughter House (1873)
facts
Louisiana created a monopoly to prevent certain butchers from working
the butchers claims this law violated the 14th amendment’s privileges and immunities clause
the monopoly abridged their right to exercise free trade
Slaughter House (1873)
ruling
challenge denied
the clause does not protect butchers from monopolistic laws
clause requires states to protect fundamental rights guaranteed by the Bill of Rights
only protects rights of federal citizenship, like the right to run for office
does not protect rights of state citizenship
slaughter house (1873)
Bradley’s dissent
makes the 14th amendment “vain and idle enactment“ which accomplished nothing and most unnecessarily excited Congress and the pp on its passage
the slaughter house cases
limited the protection of the 14th amendment
Civil Rights case (1883)
facts
business owners challenged the Civil Rights Act of 1875 which provided that all persons shall be entitled to the full and equal enjoyment of accommodations, inns, theaters
Civil Rights Case (1883)
ruling, why did the SC strike down Civil Rights Act of 1875
congress lack authority under the 13th to require inns/movie theaters to admit AA and white patrons bc discrimination was not a badge or incident of slavery
the 14th amendment only permitted Congress to outlaw discrimination by a state’s action not a private business
said congress had exceeded its authority under sec 5 of 14th amendment, which gives “power to enforce by appropriate legislation“
Civil Rights Case (1883)
Harlan’s dissent
discrimination was a “badge of slavery“
discrimination was a “state actions“ bc the businesses were common carriers (services open to the general public)
McDonald v City of Chicago
Thomas concurrence
he argued for overturning the Slaughter House cases and incorporating the 2nd amendment under the Privileges and Immunities clause rather than the due process clause
publicly invited the SC to reconsider the interpretation of privileges and immunities clause
Plessy v Ferguson (1896)
facts
Louisiana law required AA to ride in separate railcars
Plessy v Ferguson (1896)
holding
creates the harmful doctrine of separate but equal
later used as the justification for Jim Crow laws
Plessy v Ferguson (1896)
Harlan’s dissent
our constitution is color-blind, neither know nor tolerates classes among citizens
what provision of the 14th amendment did the SC consider in Plessy v Ferguson
equal protection clause
equal protection clause
no state shall deny to any person w/in its jurisdiction the equal protection of the laws
how did the 14th amendment alter the Constitution’s federalist structure regarding the protection of individual rights
bf states were on their own when it came to protecting the rights of their citizens
otherwise slavery would have been unconstitutional under the original constitution
how does Rehnquist the SC ruling in Plessy v Ferguson
the decision that as long as facilities were provided to each race it was equal treatment
how did the SC “chip away“ @ the ruling of Plessy during the middle of the 20c
it found that separate facilities were not equal in law however it was a long movement bc they still allowed for certain acts of discrimination as long it was actually equal
ex they didn’t have to let AA in but they needed to pay their out of state tuition fees
you can’t open a AA school that is obviously inferior
Justice Frankfuther why would it be “catastrophic“ to overrule Plessy w/ splinted ruling from the court
there would have been 4 dissenters for the overturn, it had been in law for 60 yrs
wide divergence of views and opinions that would have resulted in the allowance of segregation of students
every system in the country and state were segregated without a united court the case could have no impact or real change
Thurgood Marshall
civil rights activist
one of the lawyers in Brown v Board bf being a justice
went across the south to find civil right cases to fight in court
what is the difference between segregation challenged in Plessy and the segregation challenged in Brown
brown involved education
plessy involved public transportation
does brown overrule Plessy
rules that segregation in school is unconstitutional, therefor it overruled Plessy but they are still about different topics so its not a clear cut overrule
Justice Jackson v Justice Thomas
what does equal protection means
Jackson: pro race conscious reading
thomas: Frederick Douglas “what a black man wants“ quotes, leave AA alone to figure it out w/out interference
harlan and Douglas interpretation
would they say the same thing today
harlan dissent in plessy: colorblind constitution
how many consolidated cases did the Court decide in Brown v Board / what did the cases challenge
5 cases that challenged racial segregation in public schools
why did Thurgood Marshall decide to challenge racial segregation in Clarendon County South Carolina
segregation in the deep south was deeply rooted in regions laws and customs
NAACP could easily document the enormous disparities between Clarendon County’s black and white schools
He wanted to acknowledge the courage of black parents who stood up for their children
what did thurgood marshall expect to prove by the doll experiment that social psychologist Kenneth Clark
to highlight the damage of stigma of inferiority segregation inflicted on AA children
it was found the children had sever self-rejection
during oral argument what factual point did Marshall emphasize over and over again
the documented and glaring disparities in Clarendon County schools
he also attempted to deflect plessy questioning (although he agreed it should be overturned)
first argument Dec 1952
why did Frankfuther want Brown to be reargued next term
he wanted the court to be w/out dissent when reversing Plessy
Reed, Vinson, Clark, and Jackson were not ready to overturn Plessy
what happens between first argument and second in Brown 1
summer of 1953
Chief Vinson dies of a heart attack
Warren replaces him
Warren and what other justices lacked judicial experience when appointed
Chiefs: John Marshall, Charles Hughes, Stone
Associate: Kagan
what 2 issues did the court ask the Brown lawyers to brief and argue for the next term (second argument)
did the framers of the 14th amendment intend to outlaw school segregation
if they did not, does the SC have the power to outlaw segregation
how long were the briefs?
1000 pgs
second argument Dec 1953
Frankfurther is still fighting for unequivocal ruling
jackson thinks the constitution does not require the Court to end segregation
Reed thinks constitution only requires equal facilities
why did the justices not follow typical produces in conference after oral argument, they did not express their views or vote, what was Warren’s rationale for delaying
it is more difficult to change one’s opinion once they announced they reached conclusion
what does the SC use to strike down segregation with educational polices
the psychological impacts of segregation of AA children
feeling of inferiority as to their status in the community that may affect their hearts and mind in a way unlikely to ever be undone
Brown 1
holdings
separate educational facilities are inherently unequal
Segregation violated Equal Protection
education is important to our democratic society
children in segregated schools can not absorb democratic values and become good citizens, enforced segregation is psychological damaging
brown 2 holding
“all deliberate speed to end racial segregation“
responses to Brown
massive resistance
court orders but the states are not listening requires the pres to step in to get them to enforce the ruling
de jure
lawful segregation
de facto
social norm segregation
warren’s main explanation for why secrecy is important bf a decision is announced?
info has econ impacts, can cause dire results, those with unauthorized information might prosper and uninformed make be bankrupted
how does Warren describe SC decisions post reconstruction when the SC started limited AA rights
they were keeping up w/ the national mood one case after another
Affirmative Action in Employment
Kennedy’s Executive Order 10925 (1961)
federal contractors must “take affirmative action to ensure that applicants are employed and that employees are treated during employment w/out regard to their race, creed, color, national origin“
Affirmative Action in Employment
Civil Rights Act of 1964
allows courts to take “affirmative action“ to make whole victims of discrimination and prohibits schools that discriminate from receiving federal fundings
Black letter law: when may to gov consider race in education
usual rule: court reviews racial classifications w/ “strict scrutiny“ and will strike them down unless they are narrowly tailored to achieve a compelling gov interest
Korematsu (1944) “immediately suspect“
2 compelling gov interest
schools have “affirmative duty“ to eliminate the remnants of state-imposed racial segregation in public schools
Universities may consider race as one factor among many to achieve a diverse student body
Regents of Univ of Cali v Bakke (1978)
facts
16/100 spots set aside for minority applicants
Bakke a white man denied admission, challenged set aside program on theory it violated Equal protection clause
Regents of Univ of Cali v Bakke (1978)
holding
universities may make decisions based on race only if race is one factor among many considered in promoting a diverse student body
UC Davis was narrowly tailored so Bakke won
Regents of Univ of Cali v Bakke (1978)
plurality opinion
4 (liberal): would have upheld set aside program, the use of race did not violate equal protection clause or civil rights act
4 (conservative): struck down program on ground it violated Civil Rights Act
Swing Powell: the set aside program violates the Equal Protection Clause
Gratz v Bollinger (2003)
facts
the Univ of Michigan undergrad admission rated applicants on selection index
applicants in underrepresented racial or ethnic minority group received 20/150
virtually admitted all minority qualified applicant
Gratz v Bollinger (2003)
issue
Does the use of race in the undergrad admissions program violate the Equal Protection Clause and the Civil Rights Act?
Gratz v Bollinger (2003)
holding
unconstitutional use of race
The program is not narrowly tailored. There is no individual consideration of the applicants. (6/3)
Grutter v Bollinger (2003)
facts
The University of Michigan’s law school considered race a “plus” among many other factors in admissions.
Grutter v Bollinger (2003)
issue
Does the law school’s use of race in admissions violate the Equal Protection Clause and the Civil Rights Act?
Grutter v Bollinger (2003)
holding
No. The law school’s use of race as one factor in admissions was “narrowly tailored to further a compelling state interest” in “assembling a diverse student body (5/4)
Grutter v Bollinger (2003)
thomas dissent
quotes Douglass again: leave us alone to fall or succeed
it demeans us all to get the aid
what do the legal arguments made by plaintiffs in Gratz and Grutter and higher edu cases this term have in common
they argue that the government may not make decisions based on race
parents involved in community schools v seattle school district (2007)
issue
Does the Equal Protection Clause permit a high school to deny a student admission because of race in an effort to achieve a desired racial balance?
parents involved in community schools v seattle school district (2007)
holding
No. The school may not use race in the admissions process. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (Roberts 5-4)
parents involved in community schools v seattle school district (2007)
dissent breyer
there is nothing wrong w/ school procedures
true equality needs aid to help achieve it
Students for Fair Admission v Harvard
Questions presented
Should the Court overrule Grutter and hold that institutions of higher education cannot use race as a factor in admissions?
Title VI of the Civil Rights Act bans race -based admissions that, if done by a public university, would violate the Equal Protection Clause.
Is Harvard violating Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race- neutral alternatives?
tea with harvard
Jackson is on the board, so she recused herself from the case
the SC spilt the cases so Jackson could still hear the UNC case
what are the education benefits of diversity according to UNC and Harvard
UNC: better performance @ work and school
Harvard: sterotypes are broken down, prejudice is reduced, critial thinking and problem solving are improved
how does SSFA allege that Harvard discriminates against Asian Americans applicants
they rank below whites, hispanics, AA
while their scores out rank all other groups
harvard and UNC issues
Does the original meaning of the Fourteenth Amendment allow universities to consider race in making admissions decisions?
Does it promote equality in a way that allows race consciousness?
Does it promote equality in a way that prohibits race consciousness?
Is “diversity” based on race (without more) constitutionally protected?
Is diversity promoted by rejecting Korematsu’s grandson and accepting LaBron James’ son?
Are the racial categories created by the government so arbitrary that they violate the Equal Protection Clause?
What race neutral alternatives exist
Should Harvard be required to limit the legacy and squash students admitted before they may consider race?
Bakke said race consciousness would end in 25 years; Grutter said race consciousness would end 25 years after that. Should it end?
Note 
Flashcard (50)