Lesson 22

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)

1. did the framers of the 14th amendment intend to outlaw school segregation
2. 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


1. schools have “affirmative duty“ to eliminate the remnants of state-imposed racial segregation in public schools
2. 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

1. Should the Court overrule Grutter and hold that institutions of higher education cannot use race as a factor in admissions?
2. 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

1. 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?


2. Is “diversity” based on race (without more) constitutionally protected?

* Is diversity promoted by rejecting Korematsu’s grandson and accepting LaBron James’ son?


3. 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?


4. *Bakke* said race consciousness would end in 25 years; *Grutter* said race consciousness would end 25 years after that. Should it end?