Introduction and American Constitutionalism in Historical Perspective Introduction

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3. The Strict Test: Race as the Paradigm Case of a Suspect Classification

  • Suspect Classification Analysis

Purposeful Discrimination



Racial Classification


equal protection

statute title VII

1. disparate impact on a racial minority

2. no non-racist purpose that could justify impact

1. disproportionate impact

2. not justified by job performance

    • Historical and Comparative Issues

      • History:

        • theory of faction

        • structural v. substantive guarantees (aimed at combating faction)

          • structural guarantees: separation of powers and federalism

          • substantive: free speech, religious liberty, etc.

        • religious liberty as a basic right, only abridged for a compelling reason

        • religion as suspect because not likely to be justified

        • American slavery:

          • abridgement of all basic human rights (speech, religion, intimate life, work)

          • rationalized by racial stereotypes

          • confusion of unjust cultural deprivation with natural facts

  • Express Cases

    • Strauder v. West Virginia (1880) (Strong)

      • law only allowing whites to serve on juries unconstitutional, ethnic categories are over and underinclusive

      • will strike down all laws motivated by invidious race hatred

      • ethnicity also counts

    • Korematsu v. United States (1944) (Black)

      • all racial classifications are suspect, but pressing public necessity may justify them; racial animus can never justify them

      • nonetheless upholds internment, does not really apply strict scrutiny

    • Loving v. Virginia (1967) (Warren)

      • strikes down anti-miscegenation laws as violative of equal protection

      • says the history about the Reconstruction amendments is inconclusive on this point, and that the fact that both are punished does not make it not a violation

    • McLaughlin v. Florida (1964) (White)

      • invalidated statute preventing cohabitation by unmarried interracial couples

    • Palmore v. Sidoti (1984) (Burger)

      • state cannot give effect to private prejudice by denying custody of a child simply because it will be more difficult for child to grow up in mixed-race home (this interest cannot overcome the use of a suspect classification)

    • Anderson v. Martin (1964) (Clark)

      • struck down law requiring racial identification of candidates on the ballot

    • Virginia Board v. Hamm (1964)

      • certain public records cannot be classified on the basis of race

    • Lee v. Washington (1968)

      • struck down Alabama laws requiring racial segregation in prisons

  • Implied Cases

    • Yick Wo v. Hopkins (1886) (Matthews)

      • facially neutral law requiring permit to operate a laundry is in fact purposeful discrimination because there is a disproportionate impact on Chinese and there is no non-racist jusitification

    • Gomillion v. Lightfoot (1960) (Frankfurter)

      • invalidates the drawing of city boundaries to exclude all black voters and no white voters: disproportionate impact, no non-racist explanation

    • Griffin v. County School Board (1964) (Black)

      • invalidated state action closing all public schools in response to desegregation

    • Palmer v. Thompson (1971) (Black)

      • closing swimming pools after segregation was not unconstitutional because it does not have disproportionate impacts on blacks—it affects whites as well

      • race hatred is not a sufficient reason to invalidate according to this case

    • Washington v. Davis (1976) (White)

      • test to become DC police officer eliminates a disproportionate number of blacks

      • White: equal protection applies and here there is a non-racist justification

      • makes it more difficult to show implied purposeful discrimination under equal protection than under Title VII

    • Arlington Heights (1977) (Powell)

      • refusal to rezone to multi-family housing is not implied purposeful discrimination because there are many possible non-racist justifications

    • Rogers v. Lodge (1982) (White)

      • required city to move to district-voting instead of at-large to prevent vote dilution; it seems to suggest that disproportionate impact alone is enough to strike it down

    • Hunter v. Underwood (1985) (Rehnquist)

      • struck down disenfranchisement for crimes of moral turpitude where the legislative record shows evidence of racism

4. Racial Segregation

  • Plessy v. Ferguson (1896) (Brown, Harlan dissent)

    • Historical Background:

      • radical polarization of north and south after Civil War

      • views of radical abolitionists (against segregation and against anti-miscegenation) put at heart of equal protection, but they were ahead of the nation

      • in 1877, the north became fed up and as part of the Hays-Tilden Compromise removed troops from the south

    • originalist history: Reconstruction amendments did not reach segregation

      • distinguishes political rights from social rights

    • precedents: distinguishes Strauder and Yick Wo by saying right is not taken away completely

    • reads racism into Constitution: legislation cannot eradicate “racial instincts”

    • Harlan’s dissent: calls it a caste system and says the Constitution does not tolerate classes among citizens

  • History from Plessy to Brown

    • abolitionists

    • Frederick Douglas/Harriet Jacobs: recognized what slavery did to people in their intimate lives and pointed out the confusion/naturalization of racism

    • Franz Boas: race is culturally constructed

    • DuBois’ new historiography of Reconstruction

    • Harlem Renaissance: writers like Richard Wright, James Baldwin, Zora Neale Thurston, and Toni Morrison find their voice

    • NAACP founded

    • Gunner Murdahl’s book: An American Dilemma

  • Brown v. Board of Education (1954) (Warren)

    • originalist history: relies on connotative meaning--argues that it is equivocal and history does not forbid this result because public education has completely changed

      • implicit history—desegregation of military

    • precedent:

      • Gaines v. Canada: had to provide blacks legal education in the state, not enough to pay for them to go in another state

      • Sweatt v. Painter: compared tangible factors and found that law school for blacks in Texas was not equal

      • McLaurin v. Oklahoma: looked at intangible factors—requiring students to sit separately demeans the educational experience

    • education: focuses on foundational importance of education

    • relies on social science to argue against Plessy that separate education is in fact stigmatizing

      • points to Myrdal, An American Dilemma

        • Myrdal believed Americans had constructed race and that all the same things could be applied to gender

    • opinion is problematic because NAACP approach focused on two things: improving education for African-Americans; getting rid of racism by having people interact with each other

  • Bolling v. Sharpe (1954) (Warren)

    • extended the principle of Brown to the federal government through 5th amendment dues process

    • Ely argued this was wrong because Reconstruction Congress knew how to limit fed. (see 15th amendment) and was focused on constraining power of states

  • Per Curiam opinions applied Brown to beaches, buses, golf courses, and parks

  • Remedial Cases

De jure segregation

De facto segregation

Express or Implied

1) classified 1) disproportionate impact

2) invidious 2) no non-racist reason

all minority schools in fact


metropolitan area

contiguous districts

contiguous districts and busing

    • Brown II (1955) (Warren)

      • allows lower federal courts to monitor compliance and assess whether there has been good faith implementation

      • while taking into account local conditions, must nonetheless implement desegregation “with all deliberate speed”

    • Period of Massive Resistance

      • Cooper v. Aaron (1958)

        • reaffirmed Brown and read Marbury in its most expansive form in response to massive resistance in Little Rock

    • Period of Civil Rights Movement

      • Civil Rights Act of 1964: conditioned receipt of federal funds for education on desegregation; extended Brown to hotels and restaurants based on commerce clause

      • Voting Rights Act of 1965

      • result was massive political shift; court was no longer alone on this issue

    • SC Reintroduces Itself

      • Green v. County School Board (1968) (Brennan)

        • freedom of choice plan is not sufficient for desegregation

        • in rural district, must simply draw contiguous school districts and then you will end up with desegregated schools

      • Swann v. Charlotte-Mecklenburg (1971) (Burger)

        • affirmed order of district court requiring redrawing of districts and busing in a metropolitan area

    • Northern Cases: court found that in north there was implied de jure segregation

      • Keyes v. School District (1973) (Brennan)

        • found implied de jure segregation in north where there were gerrymandered district lines but no explicit segregation and said redrawing lines and busing were appropriate

      • Columbus and Dayton (1979)

        • found implied de jure segregation and required same remedies as above

        • where disparate impact is foreseeable consequence of actions, de jure segregation can be found

    • Limits on Remedies

      • Milliken v. Bradley (1974) (Burger)

        • reversed a lower court order requiring busing across school districts where there was no finding of de jure segregation in thw white suburban school district

      • Hills v. Gautreaux (1976) (Stewart)

        • but court allowed a remedy that involved entire metropolitan area when it was to remedy housing discrimination in a HUD program

      • Missouri v. Jenkins (1990) (White)

        • overturned decision of District Court ordering raising of taxes to pay desegregation costs

        • courts cannot be involved in a democratic decision like when to raise taxes

      • Oklahoma City v. Dowell (1991) (Rehnquist)

        • reversed Court of Appeals decision reopening a segregation case where it had been closed because city had already fully complied as part of the original case

      • Freeman v. Pitts (1992) (Kennedy)

      • U.S. v. Fordice (1992) (White)

        • held that a freedom of choice program was not sufficient at university level and that must get rid of racially identifiable universities

      • Jenkins II (1995) (Rehnquist)

        • held that district court could not order pay increases for teachers and remedial education programs because it was not closely enough connected to the violation itself

  • Hunter v. Erickson (1969) (White)

    • struck down charter amendment that would require that any Fair Housing ordinances be approved by voters: it uses racial classification to make it more difficult to pass one kind of law than another

  • Washington v. Seattle School Dist. (1982) (Blackmun)

    • struck down ballot initiative that said that school boards cannot require busing

    • cannot use the racial nature of a decision to place obstacles in the path of one group over another in obtaining the state action they want

  • Crawford v. Los Angeles (1982) (Powell)

    • upheld California initiative saying that state courts can never order busing in the area of de facto segregation (i.e., without a finding of de jure segregation)

    • if fed. constitution does not require it, states don’t have to

5. Affirmative Action

  • Theory

    • Anti-Affirmative Action

      • Bickel: use of any immutable characteristic should be per se unconstitutional

        • affirmative action plans should be analyzed under strict scrutiny

    • Pro-Affirmative Action

      • the real principle is that legislation cannot be motivated by invidious racial hatred

      • Ely: fair representation view

        • segregation was the result of unfair representation, but affirmative action plans are the majority imposing burdens on itself

      • Dworkin: Constitution protects basic human rights

        • we use immutable characteristics all the time for things like merit scholarships

  • Regents v. Bakke (1978) (Powell)

    • Powell opinion applies Bickel and says strict scrutiny (ask Jes for her chart from November 16)

      • says Title VI applies here but that it tracks the equal protection clause and therefore must give equal protection analysis

      • rejects “stigma” view of equal protection and says must apply strict scrutiny (does not want to analyze motives of legislators; now we’re a nation of minorities)

      • classifications involve injustice to third parties

      • says that some plans might survive strict scrutiny, but notes that there are very few compelling justifications

        • proportional representation is odious

        • social discrimination: only a justification when there is authoritative finding of de jure segregation

        • to improve health care delivery: no evidence for this and why should minorities in particular have to bear this burden

        • diverse student body: he accepts this as legitimate state purpose

      • he would accept the Harvard plan

    • Brennan (4): also gives full equal protection analysis

      • applies intermediate scrutiny: important interest, substantially pursued

        • must be certain that in our concern about race we don’t allow other kinds of racial hatred

    • Stevens (4): issue is resolved by Title VI (forbidden under Title VI)

  • Grutter v. Bollinger (2003) (O’Connor)

    • Law School’s race-conscious admissions program passes strict scrutiny because obtaining a diverse student body is a legitimate interest and they do not engage in outright racial balancing

  • Gratz v. Bollinger (2003) (Rehnquist)

    • University of Michigan policy that adds 20 points to applications of people of certain ethnic backgrounds unconstitutional under Bakke

  • Wygant v. Jackson Board of Education (1986) (Powell)

    • Court held unconstitutional a minority preference in teacher layoffs

    • here you are distributing a harm

Government Set-Aside Cases

  • Fullilove v. Klutznick (1980) (Burger)

    • rejected constitutional challenge to statute requiring that 10% of federal funds on local public works projects but must be used to pay minority-owned businesses

    • legitimate because Congress presented adequate historical record of discrimination

  • Richmond v. Croson (1989) (O’Connor)

    • found 30% minority set-aside for city construction contracts unconstitutional

    • says federal government has more freedom to do these things and that there was not a finding of discrimination as there had been in Fullilove

    • also, no question of fair representation: they are not a minority in Richmond

  • Metro Broadcasting v. FCC (1990) (Brennan)

    • court upheld, under less than strict scrutiny, FCC’s set-aside program giving preference to minorities in access to broadcast licenses and requiring sales of stations to minorities in some cases

  • Adarand Constructors (1995) (O’Connor): majority permanently adopts strict scrutiny

    • overrules Metro but not Fullilove and holds that

    • overturned Court of Appeals finding that federal financial incentives to hire “disadvantaged” subcontractors did not violate 5th amendment because C of A did not apply strict scrutiny

  • Electoral Districting Cases

    • Voting Rights Act: imposes certain federal rules on counties where history of vote suppression or dilution and imposes pre-clearance requirements when they change voting rules

    • United Jewish Organizations v. Carey (1977)

      • applied deferential review to racial preferences in districting

      • allowed NY to split up Hassidim in order to create more representation of other minorities

    • Shaw I (1993) (O’Connor)

      • held that snakelike district drawn by North Carolina to ensure compliance with Voting Rights Act was unconstitutional

      • equal protection clause trumps Voting Rights Act

      • no other traditionally legitimate redistricting motivation could explain the shape of the district, so must assume motivated by race, which is impermissible after Adarand

      • White dissent: compliance with Voting Rights Act is a compelling state interest

      • Souter dissent: Adarand should not be extended to voting rights because no one is losing their right to vote here

    • Miller v. Johnson (1995) (Kennedy)

      • districts illegitimate where race has clearly predominated over traditional redistricting principles like compactness, contiguity, political subdivisions, or actual shared interests

    • Bush v. Vera (1996) (O’Connor)

      • they apply strict scrutiny when other legitimate principles subordinated to race, and this does not survive scrutiny

    • Hunt v. Cromartie (1999) (Breyer)

      • upheld district where there was no evidence that race played a dominant role an decision seems to have had political, not racial, motives

      • Richards says this is recognition of fact that they have allowed ethnicity in the past

6. Gender as a Suspect Classification (pp. 769-810)

Traditional Suspect Classifications


I. prejudice (abridge; stereotypes)

II. irrelevant to any legitimate state purpose

(it is not salient or immutable and you are not necessarily powerless)


1. immutable characteristic

2. salient

3. history of irrational race hatred (abridge rights: conscience, free speech, intimate life, right to work; then dehumanizing rationalization)

4. irrelevant to any legitimate state purpose

5. powerless (a. not permitted to vote, b. small and isolated minority, power of vote undercut)

  • Gender Analogy to Traditional Suspect Classifications

    • it is immutable

    • salient

    • history of irrational prejudice

      • 1) abridgement of rights, 2) rationalized by stereotypes

    • relevance is complicated: in certain contexts not relevant (see Brennan in Frontiero)

    • powerlessness

      • Ely would say if you can vote and are statistical majority, you have power

      • Brennan has less mechanical approach: history of powerlessness and stereotyping can keep group from exercising power despite numerical majority

  • Theory and History

    • Historical Development of Feminism

      • first appearance of feminism is clearly linked to liberalism

      • Mary Wolstonecraft (1790): the new ideas of human rights clearly apply to women too

      • Mill: “The Subjection of Women”

        • takes his arguments from American radical abolitionists and argues that sexism and racism have the same roots in an irrational belief that women are sub-human

        • cannot appeal to women’s nature because that nature has been imposed on them

      • Radical abolitionists (Douglass, Harriet Jacobs, Garrison, Grimke sisters): argued that same subjugation imposed on slaves was imposed on women

      • Reconstruction amendments don’t include women and Bradwell and Happersett find equal protection does not apply to women

      • sociologists in 1970s (McAbee and Jacklin): what differences are statistically significant?

        • procreation

        • test results: verbal/math, spatial/non-spatial, nurture/aggressive

        • physical strength

      • Literary points of view:

        • some Christian women argued that must reconsider misogyny within the religion, Simone de Beauvoir

    • Dominant Western Tradition

      • Aristotle: women had a different nature and to ask them to do what men do would actually harm them

  • Bradwell v. State (Bradley) (1873)

    • Court denies that privileges and immunities clause applies to right of women to practice law

  • Goesaert v. Cleary (1948) (Frankfurter)

    • upheld Michigan law forbidding women from getting bartender’s license unless proprietor is their husband or father

    • applies rational basis and says that state has a legitimate interest in protecting women

Modern Gender Cases: When has court struck down distinction?

women burdened v. men

implied stigma

working women

Reed, Frontiero, Stanton, VMI

Craig, Hogan, Orr

Weinberger, Califano

  • Reed v. Reed (1971) (Burger)

    • invalidated law preferring men to women as administrators of estates under rational basis scrutiny—suggests they are moving toward stricter scrutiny

  • Frontiero v. Richardson (1973) (Brennan)

    • struck down law guaranteeing benefits to wives of male members of the army while female members have to show their husband’s actual dependency

    • Brennan’s plurality advocates treating gender as a suspect classification: he focuses on immutability and irrelevance and he draws an analogy to race

    • focuses also on powerlessness and says that just because women can now vote, etc. does not mean it is possible to overcome stereotypes and discrimination after such a long history

  • Craig v. Boren (1976) (Brennan)

    • struck down OK law prohibiting sale of 3.2% beer to men under 21 and women under 18; applied intermediate scrutiny

    • administrative ease and convenience are not enough to justify gender classifications

    • implied stigma: difference between men and women here largely a result of ethnic stereotyping

  • Mississippi University for Women v. Hogan (1982) (O’Connor)

    • single-sex nursing school does not survive intermediate scrutiny

    • in order for there to be a substantial relationship to a purpose of compensating for discrimination, would have to be evidence of discrimination against women in nursing

  • J.E.B. v. Alabama (1994) (Blackmun)

    • gender-based peremptory challenges to jurors are unconstitutional

  • United States v. Virginia (1996) (Ginsburg)

    • seems to give even higher scrutiny (exceedingly persuasive justification) in finding that VMI must admit women

    • VWIL is not equal in fact to VMI

    • look at history of purpose of VMI

  • Real” Difference Cases

    • Geduldig v. Aiello (1974) (Stewart)

      • exclusion of disability associated with childbirth from state disability insurance system did not constitute gender discrimination

      • (Congress ultimately reversed this by statute)

    • Michael M. v. Superior Court (1981) (Rehnquist)

      • upheld statutory rape law where only man punished

      • there is a legitimate state purpose in preventing teenage pregnancy; women already have the deterrent of pregnancy

    • Rostker v. Goldberg (1981) (Rehnquist)

      • rejected equal protection challenge to selective service registration of men and not women

      • because no one argues that women should be in combat roles, no discrimination in not having them on list used for combat recruitment

  • Caban v. Mohammed (1979) (Powell)

    • invalidated law giving mother of illegitimate child right to block adoption but not father

  • Parham v. Hughes (1979) (Powell)

    • upheld law giving the mother but not the father the right to sue for illegitimate child’s death

  • Nguyen v. I.N.S. (2001) (Kennedy)

    • upheld law that treated illegitimate children of one citizen and one non-citizen parent differently depending on whether the mother or father was the non-citizen

  • Personnel Administrator v. Feeney (1979) (Stewart)

    • upheld law giving absolute lifetime preference to veterans for state civil service even though disproportionately benefits males

    • Richards’ argument: this is perpetuating the gender discrimination in the military; it is circular: we deny them rights and then deny them more rights on the basis of the fact that they don’t have those

7. New Suspect Classifications: Alienage, Illegitimacy, Mental Retardation, Sexual Preference, Poverty

  • Alienage

    • Graham v. Richardson (1971) (Blackmun)

      • held that states cannot deny welfare benefits to aliens

      • Blackmun argues that it is a suspect class, subject to strict scrutiny, and also that there is federal preemption

      • fact that court almost always upholds challenges to the fed. govt. in this area suggests it is really a preemption issue

    • In Re Griffiths (1973)

      • invalidated law excluding aliens from law practice

    • Sugarman v. Dougall (1973) (Powell)

      • invalidated law excluding aliens from permanent positions in competitive classified civil service

      • but allows exception for jobs with significant political function

    • Foley v. Connelie (1978) (Burger): state troopers

      • can bar employment of aliens as state troopers

    • Ambach v. Norwick (1979) (Powell)

      • can bar aliens who are eligible for citizenship but choose not to seek it

    • Bernal v. Fainter (1984) (Marshall): notary public

      • goes back to the Sugarman analysis: cannot prevent aliens from becoming notaries public; their function is ministerial and not discretionary

    • Toll v. Moreno (1982) (Brennan)

      • struck down policy of not granting in-state tuition to resident aliens on federalism grounds

    • Hampton v. Mow Sun Wong (1976) (Stevens)

      • invalidated CSC regulation barring aliens from employment in the federal civil service; it is the only case where they struck down federal law said that they did not have Congressional approval and did not follow their own procedures

      • suggests again that these are preemption cases because there is no Congressional override of equal protection

    • Mathews v. Diaz (1976) (Stevens)

      • Congress can condition eligibility for Medicare on alien status

  • Illegitimacy

    • Suspect Classification Analysis: it is immutable, but not salient; there is irrational prejudice; it is irrelevant but they are not powerless

    • Overall: cases are all over the place, but whether you are cut off entirely, rather than just subordinated, seems to matter

    • Levy v. Louisiana (1968) (Douglas)

      • hinted at heightened scrutiny in finding that law denying unacknowledged illegitimates the right to sue for wrongful death of mother violated equal protection

    • Trimble v. Gordon (1977) (Powell)

      • struck down law barring inheritance by non-marital children

    • Lalli v. Lalli (1978) (Powell)

      • upheld NY law forbidding nonmarital children from inheriting from fathers by intestate secession unless there was finding of paternity during father’s lifetime

    • Paternity Suit SOL: Mills, Pickett, Clark—struck down all laws with differential statute of limitations on when paternity suit can be brought; in Clark, said was applying strict scrutiny

  • Disability

    • court has generally avoided mental illness as a suspect class

    • Cleburne v. Cleburne Living Center (1985) (White)

      • applies rational basis and strikes down refusal to issue a permit for the building of a home for the mentally retarded

      • says it is not a suspect class because it is not irrelevant because they are not powerless and have had a lot of legislation passed in their favor

      • examines proferred reasons and says they are all inadequate

      • concurrences argue it should be heightened scrutiny

  • Age: not a suspect class (Murgia)

  • Wealth

    • despite some hints by the Warren court, not treated as a suspect class or a fundamental rights issue (Valtierra)

    • two possible arguments in favor:

      • it is suspect class

      • there is fundamental right to a minimum (Michelman)

  • Sexual Orientation

    • Richards argues that there is a very close analogy to religion as a suspect class

    • Romer v. Evans (1996) (Kennedy)

      • held that Colorado constitutional amendment stating that no anti-discrimination ordinances protecting gays can be passed violated equal protection

      • State SC had decided on a fundamental rights voting rights analysis

      • he uses Mormons to show that you can distinguish from Bowers: maybe you can ban polygamy but you cannot also make Mormons a lesser class

8. The Strict Test: Fundamental Rights and Beyond (Minimal Welfare Rights)

  • Voting Rights

    Abridgement of Voting Rights

    Denied entirely:

    Weighting Cases

    • poll tax (Harper)

    • property requirement (Kramer)

    • residency requirement

    • enrollment requirements

    • candidate access cases

    • one person/one vote (Reynolds, Baker)

    • gerrymandering cases (racial and political)

    • voting power dilution cases (equal protection, Voting Rights Act)

    • proportional representation

    • Total Denial Cases:

      • Harper v. Virginia State Board of Elections (1966) (Douglas): Poll Tax

        • struck down Virginia poll tax under strict scrutiny: voting rights are fundamental because they underlie all other rights

        • a similar development happened in Western thought with democracy: decided human rights are fundamental and only later that democracy was the best way to secure them

        • Harlan’s dissent: at the founding there were universal property requirements

          • but three amendments since then have enlarged our understanding of voting rights

        • Black’s dissent: this is Lochnerizing because it is a natural law argument

      • Kramer v. Union Free School District (Warren) (1969): Property

        • struck down law requiring property ownership to vote in the school district

        • it is an Ely argument: it is the responsibility of courts to step in here to ensure fair representation because politicians have an incentive to entrench their own power

        • there are originalist dissents once again

      • Court has limited use of limited purpose districts pp. 842-43 (Cipriano, Phoenix, Quinn)

      • Richardson v. Ramirez: can disenfranchise felons

      • Enrollment requirements: mixed results, some allowed (Rosario), some not (Kusper)

    • Weighting Cases:

      • Baker v. Carr (1962)

        • announced that vote weighting cases were justiciable (claim that equal protection was violated by the way Tennessee districts drawn was justiciable)

      • Reynolds v. Sims (1964) (Warren)

        • upheld challenge to the malapportionment of Alabama state legislature and stated the one person/one vote numerical equivalence standard

        • could have just said fair representation; Warren liked both the normative appeal and administrative ease of one person/one vote

        • Stewart dissent: respect for regional differences is not unconstitutional

      • Congressional Districting

        • court has required mathematical exactness with regard to Congressional districting

        • Kirkpatrick, White, Karcher

      • State Districting

        • much more tolerance for deviations from the numerical ideal, p. 853

      • Supermajorities

        • Gordon v. Lance (1971) (Burger)

          • supermajorities do not violate equal protection

      • Political Gerrymandering

        • Davis v. Bandemer (1986) (White)

          • says political gerrymandering is justiciable only if it consistently over time departs from the will of the majority, not just because it departs from proportional representation

        • Vieth v. Jubelirer (2004)

          • five have still said gerrymandering is justiciable

      • Isaacharoff’s procedural solution: have a non-partisan body divide the districts

  • Access to Courts

    • Griffin v. Illinois (1956) (Black)

      • state must provide a trial transcript to indigent criminal defendant for purposes of appeal

      • Harlan: no obligation to equalize; this is Lochnerizing

      • majority has essentially said that indigency only matters when it is in connection with a fundamental right

    • Boddie v. Connecticut

      • on due process grounds at least partially extended Griffin to filing fees for civil divorce cases because there is a strong interest in the right to marry and the state controls access to divorce

    • more cases on pp. 862-70

  • Minimal Welfare Rights

    • court has generally refused to ensure minimal welfare rights

      • important here is Marbury and McCulloch: if it is outside the core of Marbury and deals with the political, social and economic questions identified by McCulloch as not for the judiciary, they will not get involved

    • Dandridge v. Williams (1970) (Stewart)

      • Court refused to invalidate a law putting a maximum amount on welfare regardless of need because it was legislation in the area of social and economic rights

      • court will not play a role in setting an economic minimum

    • Lindsey v. Normet (1972) (White)

      • no right to minimum level of housing

    • San Antonio v. Rodriguez (1973) (Powell)

      • San Antonio finances public schools through property taxes (most US districts do this to increase local control of education)

      • two equal protection issues:

        • property-poor school districts taxed at a higher rate

        • children in those districts receive less funding

      • case focused on the taxing inequity

      • Powell’s opinion: no suspect class; education is a fundamental right, but the right is only to a minimum level of education, not equality (not willing to overrule Dandridge and Normet)

        • expenditures are not the only measure of equality, and the remedies are not judicial in nature

      • Marshall’s dissent: says there is suspectness here similar to the illegitimacy cases

    • Plyler v. Doe (1982) (Brennan)

      • struck down Texas law barring undocumented children from public schools

      • dissent: democracy cannot save us from stupidity

IX. State Action and the Enforcement of Civil Rights

1. State Action

  • Civil Rights Laws

    • Criminal Provisions (p. 887)

      • 18 U.S.C. §241: conspiracy against rights (United States v. Guest)

        • no state action in text

        • injure, oppress, etc. to prevent exercising rights assured by Constitution (or going in disguise on highway, or trespassing for same purpose)

      • 18 U.S.C. §242: deprivation of rights under color of law

        • explicit state action requirement

        • deprivation of rights under color of law

    • Civil Provisions

      • 42 U.S.C. §1981: equal rights under the law (Runyon v. Kerry)

        • same right to make and enforce contracts, to sue, etc. and the same punishments

      • 42 U.S.C. §1982: property rights of citizens (Shelley, Jones)

        • no state action requirement in text

        • same right to inherit, purchase, lease, sell, etc.

      • 42 U.S.C. §1983: civil action for deprivation of rights

        • state action requirement in text

        • Monroe v. Pape (specific intent requirement not needed)

      • 42 U.S.C. §1985(3): conspiracy to interfere with civil rights

        • no state action requirement (Griffin, Bray)

Expanding State Action

Interpreting 14 §5 Broadly

13th Amendment: no state action requirement

Certain Rights

1) Brennan’s argument from Guest

1) Jones v. Mayer

2) Runyon

1) petitioning the national government

2) movement

  • Civil Rights Cases

    • upheld challenge to the Civil Rights Act of 1875: no discrimination in inns, public conveyances, theatres, places of public amusement

    • holds that 14th amendment has state action requirement and 13th amendment is inapplicable because this is not about slavery

    • notes in dicta that he is not saying anything about whether or not you could do this under commerce clause (which Congress eventually did in the Civil Rights Act of 1964 – Heart of Atlanta)

    • Harlan’s dissent: 13th amendment should apply because racism is vestige of slavery

      • he would still require some public function for 13th amendment (cannot extend it to home)—have to balance equality and liberty

      • 14th amendment: should be read broadly to read out state action because of citizenship clause—amendment intended to ensure that they have all rights of any white citizen in the state

        • even with state action, these accommodations serve public function and be reachable

  • United States v. Cruikshank (1875) (Waite)

    • indictment under predecessor to §241

    • charged in lynching with interfering with right to assemble; court held this application unconstitutional, but said you could have had application if the charge had been interfering with right to assemble and petition the national government

  • Public Function

    • Marsh v. Alabama (1946)

      • company town was serving a public function and therefore cannot violate the 1st amendment

    • Parks

    • Evans v. Newton (1966)

      • will had created a segregated park; after Brown transferred it from public to private trustees

      • court held that even in the absence of direct state action, the park was serving a public function; says parks generally are “municipal in nature”

    • Primaries

    • Nixon v. Herndon (1927) and Nixon v. Condon (1932)

      • court struck down exclusion of blacks on face of Texas law and then when power was transferred to party executive committees (committee was agent of the state)

    • Smith v. Allwright (1944)

      • struck down a state convention that decided on white primary; primary is part of election machinery and is state action; violates 15th amendment

    • Terry v. Adams (1953) (Frankfurter)

      • created a private white club to do the nominating prior to the primary; club was part of election machinery and therefore state action

    • Private Utility

      • Jackson, Flagg Bros.: court more likely to find state action where race is involved than where it is due process

  • Nexus Cases (State Involvement)

    • Shelley v. Kraemer (1948) (Vinson)

      • challenge to enforcement of racially restrictive covenants under §1982

      • court had already found racially-restrictive zoning unconstitutional (1917)

      • effect of covenant so close to effect of state action through zoning, and state involvement so great, that this is unconstitutional

    • Wills: Evans v. Abney (1970)

      • could enforce will containing racial restriction by finding that park must revert to heirs of Senator

    • Pennsylvania v. Board of Trusts (1957)

      • Court found that public trustees could not administer school for “white male orphans”

    • Bell v. Maryland (1964)

      • trespass case: court split on the issue of whether Shelley applies

      • Douglas: Shelley applies, but would carve out a sphere of privacy

      • Black’s dissent: Shelley involved willing buyer and willing seller

      • this issues was mooted by Civil Rights Act of 1964

  • Lease and Public Duty Cases

    • Burton v. Wilmington Parking Authority (1961)

      • when the state leases it has a duty to see that the lessee does not discriminate

  • Permission: Wrightman v. Mulke (Restriction Case)

    • repealing of open housing law gave support to racism so it involved state action

2. Beyond State Action: Congressional Enforcement Powers

  • 14 amendment §5 enforcement

    • United States v. Guest (1966) (Stewart)

      • charged with a violation of 18 U.S.C. §241 in relation to murder of black reserve officer

      • Majority: there is an allegation of state action here (filing of false reports), and conspiracy to prevent someone from engaging in interstate travel does not require state action

      • Brennan’s concurrence: he argues that charges of violating the right to equal utilization of state facilities do not require state action

        • Richards says he says that there are enforcement powers where people interfere with the efforts of state officers to enforce civil rights

    • United States v. Price (1966)

      • defendants charged under §241 and §242

        • interpreted “under color of law” to be the same state action requirement as that in 14th amendment and said that that could reach private persons where they conspired with state officials

        • (and §241 applies to 14th amendment rights)

  • 13th Amendment

    • Jones v. Alfred H. Mayer Co. (1968)

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