The Building Blocks



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


  • rejected the notion of separate but equal for education for public elementary education

  • Court bases decision on:

  1. Actual effects of this system of education – determines that whatever the formal equality is, in practice not so. Turns to nascent social science work on dolls. Problem is that the same result occurred in states that did not have segregation. Should constitutional doctrine ever be based on social science? Note that originalism has also been wrong but interpretations relying on it are still good law. Relying on social science and empirical evidence.

  2. It is impossible to determine original intent because state of public education is dramatically different today. Argument from within originalism, that they want to use it but it provides no answer. 14th Am. history is irrelevant

  • Court reasoned that even where there is equality of “tangible” factors, intangible factors prevented children who were restricted to all-black school from receiving equal educational opportunities (generates feeling of inferiority)

  • Kushnet argues that framers meant to eliminate racial discrimination in right to contract

  • Freedom of contract was crucial to public life in that period but not public education. Could conclude that framers wanted to eliminate racial discrimination in central areas of public life, something into which education has moved. Is inquiry into to what things occupy the same status in society, a good one? Would this make discrimination in public pools OK?




  • Brown’s substantive understanding of equal protection can be understood in three ways:

Segregation can be seen as unconstitutional for any of the following:

  1. Formal reading: Any kind of state endorsement of racial classification violates equal protection. Equality means colorblindness

  2. In the context of the statutes involved, the policies were understood to reflect views of racial hierarchy

  3. Anti-caste / anti subordination principle. 14th Am. should be understood to eliminate an existing caste and legislation that furthers this caste is in violation. Can go hand-in-hand with social meaning view




  • Alternative Rationale and Explanations for Brown: (p. 528)

Weschler: Constitutional issue of state-enforced segregation may not be one of

discrimination but of denial of freedom of association



  • claim that when choosing between denying association to those wish it and imposing on those who would avoid, basis in neutral principles for holding that claims for association should prevail

 Bell: Desegregation in interest of white majority trying to lend credibility to struggle with

Communism, win hearts of 3rd world people

- But then why did it need to be judicially enforced?
Bolling v. Sharpe (1954)


  • Same conduct by federal government not permissible

  • Criticisms:

  1. No equal protection clause in 5th Am. 5th came before 14th

  2. If Reconstruction Congress meant to include federal government, would have said so expressly as it did in 15th Am.

  3. Congress trusted federal government, was concerned about states



Brown v. Board of Education of Topeka II (1955) Warren


  • Implementation decision

  • Court did several significant things:

  1. Gave federal district courts primary responsibility for supervising desegregation because of their “proximity to local conditions” and the “possible need for further hearings”

  2. No precise guidelines for carrying out desegregation. “General equitable principles”

  3. “All deliberate speed”- Did this language legitimate resistance? A  whose constitutional rights have been violated by state action would normally be entitled to immediate relief. Court feared chaos and violence, take into account the public interest in eliminating desegregation “in a systematic and effective manner”




  • Desegregation did not really begin until Congress tied funds to it in 1965

  • Denied funds to schools that did not desegregate

  • Financial leverage of government effective implementation of Brown

  • Where there is resistance, the power of law has to be coerced and financial incentives seem more effective at shaping conduct. This can be seen positively as a check on the disturbing power of judicial review – if Court fails to rally larger political system to its decisions, they will have less effect – or negatively as weakness of the institution.




  1. Modern Equal Protection

What equal protection stands for: A general guarantee against defective or corrupt

political processes



  • Michelman: Politics is where questions are worked out, inappropriate for courts to look into questions debated by politics

  • Equal protection does not stand for individualized protection, government has to use classification and generalizations to achieve efficient policy




  1. Rational Basis Review

  • where neither a suspect class nor a fundamental right is implicated, the Court will review a classification with extreme deference and heavy presumption of constitutionality

  • most general economic and social welfare legislation falls in this category

  • “mere rationality”: conceivable that there is some rational relation between means selected by legislature and legitimate legislative objective (as long as not “purely arbitrary”)

  • broad, deferential reading on “legitimate public objective”

  • Rational review may be understood as guarantor of political process that is public-regarding and not merely the product of self-serving activity

  • On this view, differential treatment violates equality principle when it advances interests of politically powerful (special interest, partial enactment Field in Slaughter House)

  • BUT differential treatment may be violate equality principle when serves public welfare

Railway Express Agency v. New York (1949) Douglas

  • NY traffic regulation bans placing ads on vehicles, except that owner of vehicle is allowed to advertise his own products

  • Purpose: To reduce traffic hazards

  • Challenged on theory that these vehicles are no less distracting

  • Ordinance upheld:

 legislature could have concluded that there is some reason- No record or legislative

history required



 as long as vehicles contribute to problem to some extent, it is okay to legislate one

step at a time

  • BUT equal protection is a comparative right, going 1 step at a time seems to undersut any claim of right

  • Court does not take these cases seriously

  • Court is not allowing legislative losers to fight again in court

  • Jackson Concurrence: Majority’s rationale is an invitation to arbitrary action

  • Under-inclusive act, “regulation of the few” would allow legislators to choose a few to whom they apply legislation and escape political retribution that may result if large numbers were affected

  • Statute should be upheld because there is a real difference between doing in self-interest and doing for hire

  • 1 thing to tolerate action from those who act on their own


Williamson v. Lee Optical (1955) Douglas

  • Optometrists or opthamologists are permitted to fit lenses, ready-to-wear sellers are not

  • Legislature says they are trying to protect consumers and  says this is arbitrary special interest legislation

  • Court barely looks at this and will not look into whether classification was reasonable. No demand of evidence, empirical inquiry, brushed aside

  • Court’s cavalier approach seems to be endorsement of Jackson’s view that legislation can prefer one set of interests over another

  • If it didn’t endorse, it would have investigated such things as whether consumers really protected


Minnesota v. Clover Leaf Creamery Co. (1981) Brennan

  • Plastic milk cartons prohibited and permitted cardboard cartons

  •  says that facts do not fit legislatures claim that cardboard better than plastic

  • State seems to be trying to protect pulpwood industry

  •  claims Commerce Clause and Equal Protection violations

  • Says there is no good reason for classification other than protectionism

  • Court: As long as there is room for debate, as long as some evidence, we will not aggressively second guess or review legislative classifications that involve economic interests




  • Sunstein view(p.576): Function of rationality test, though highly deferential, is to ensure that classification rests on something more than naked preferences

  • Legislature has to come forward and state public purpose

  • It is a public policy preference, not a naked preference

  • But if courts do not examine this preference at all, no record, no facts needed, may well be naked preferences, court does not seem committed to avoiding this

  • Saying we just prefer one economic interest to another is unconstitutional

  • No partial enactment, special interest legislation permitted (Field dissent in Slaughter)

  • At odds with Jackson concurrence in Railway Express, saying this mere rationality allows naked preferences


New York City Transit Authority v. Beazer (1979) Stevens

  • Refusal to employ methadone users- Public safety

  • H: Although rule may be broader than necessary and even if unwise to use general rule and not individualized consideration, matters of personnel policy that do not implicate principles safeguarded by Equal Protection Clause

  • Not against an individual or category of persons, represents a policy choice

  • Because it does not circumscribe a class of persons characterized by some unpopular trait or affiliation, does not create or reflect any special likelihood of bias

  • Court will not interfere with policy decision

  • Passes rational basis review, even if less rational in terms of some part of classification than others

  • Equal protection does not require the most efficient policy, as long as there is some tendency to serve goal of safety

  • White Dissent: This group maps onto another classification-poverty

  • This classification should trigger heightened scrutiny


City of Cleburne v. Cleburne (1985) White

  • Denial of special use permit for operation of group home for mentally retarded

  • Court refused to treat mental retardation an explicitly “quasi-suspect” group

  • 4 reasons why is it not appropriate to accord heightened scrutiny:

  1. Judiciary should be making substantive judgements about legislative handling of the retarded. Judiciary ill-equipped for this, not its job to second guess

  2. Array of legislative responses to plight of mentally retarded show there is no “continuing apathy or prejudice” on the part of the lawmakers

  3. The fact that these legislative responses have occurred negates the claim that mentally retarded are politically powerless, can’t attract lawmakers’ attention

  4. Would have to extend heightened scrutiny to other groups as well. No principled way to deny quasi-suspect status.

  • While purporting to apply “mere rationality” standard, the Court clearly gave a more rigorous review than it had to purely economic regulations

  • Rationality review with a bite

  • Motivated by historical and current prejudices against group, although this was not enough for quasi-suspect class

  • Rejected argument that it was unsafe-no reason to justify discriminating between nursing home

  • Court not allowing “one step at a time” reform as it did in Railway Express Agency

  • Stevens Concurrence: There is a problem with strict categories of review

  • Better to have equal protection doctrine that works through a spectrum

  • May consider kinds of groups affected and kinds of interests

  • Criticism of doctrine is that is varies case by case, not much predicitive content

  • Marshall Concurrence: This is heightened scrutiny masquerading as rational basis, let’s just admit it


U.S. Railroad Retirement Board v. Fritz (1980) Rehnquist

  • Benefits for railroad workers

  • As long as there is a “plausible” reason for Congress to have made classification scheme, lowest-level review was satisfied

  • Didn’t matter whether this reason actually did underlie the legislative decision, “constitutionally irrelevant”

  • Court has never insisted that a legislative body articulate its reasons for enactment

  • Stevens Concurrence: Purpose should be considered only if it was actual OR a legislative purpose that we may reasonably presume to have motivated an impartial legislature

  • Brennan/Marshall Dissent: Challenged classification may be sustained only if it is rationally related to achievement of an actual legitimate governmental purpose

  • Post-hoc justifications should be viewed skeptically


U.S. Department of Agriculture v. Moreno (1973) Brennan

  • Court refused to treat Congress’ possible desire to exclude “hippie communes” from federal food stamp program as a legitimate objective

  • Slightly higher level of scrutiny involved by refusing to treat proferred legislative purpose as legitimate




  • ACTUAL PURPOSE REVIEW p. 591

  • Nordlinger v. Hahn: Recent discussion suggesting that Court may be receptive to measuring statute against actual purpose in some circumstances

  • But there is a lot of talk of accepting any reasonable state of facts and “could have been”

  • Epistemological problem in discovering actual purpose




  1. Heightened Scrutiny and the Problem of Race

  • Requirements To Trigger Strict Scrutiny:

  1. Purposeful Discrimination

  1. law discriminates on its face

  2. law, although neutral on its face, is administered in a discriminatory way

  3. law, although neutral on face and applied in accordance with its terms, enacted with a purpose of discriminating




  1. Of an especially invidious or prejudicial sort (race)

Stone footnote 4 in Carolene Products: “Prejudice against discrete and insular minorities may be a special condition…which may call for a correspondingly more searching judicial inquiry”

Other possible requirements:

 Immutability of characteristic

 Prevalence of stereotypes about a group




  • Ely, Democracy and Distrust, enhanced judicial review is motivated by the harms of prejudice

  • Prejudice against discrete and insular minorities justifies judicial intervention

  • Does this analysis adequately distinguish between groups that are unfairly treated in the political process and groups that are simply outvoted?

  • Would limit judicial intervention to cases where a group suffers political losses because of generalizations about its members thatare more inaccurate than legislature realizes

  • Strauss: Strict scrutiny of racial classifications is not designed to eliminate inaccurate generalizations because if it was a showing of factual accuracy could defend these classifications

  • Maybe it is to prevent these facts from continuing to be true

  • BUT why should we assume courts are more sensitive than legislatures to unconscious racism Ackerman



  • Strict scrutiny is nearly always fatal (but see Korematsu)

  • Under strict scrutiny, statute will be upheld only if

  1. It is found to be necessary (not merely appropriate) to the attainment of some

  2. Compelling (not merely desirable) governmental objective



  1. Race-Specific Classifications That Expressly Disadvantage Racial Minorities

Strauder v. West Virginia (1879) Strong

  • only white males over 21 are eligible for jury duty, explicitly excluded blacks

  • H: On its face discriminates against blacks, violation of Equal Protection Clause

 Where law is found to discriminate on its face, Court will not require that it had actual discriminatory impact. Mere risk of this impact is sufficient, given facial discrimination


Yick Wo v. Hopkins (1886)

  • Ordinance bars operation of hand laundries in wood buildings, except with special consent

  • Consent given to nearly all non-Chinese applicants, denied to nearly all Chinese

  • H: Discrimination in administration violation of Equal Protection Clause



Korematsu v. United States (1944) Black

  • Post-Pearl Harbor military order excluding all persons of Japanese ancestry from certain West Coast areas

  • Established framework for strict scrutiny:

  1. Ends (policy objectives offered for classification) must be justified by most pressing public necessity

  2. Statute has to bear close and substantial relationship to pressing public necessity

  • Statute upheld, survived strict scrutiny (last case where racial or ethnic classification survived)

  • H: Compelling need to prevent espionage and sabotage, and no practical and sufficiently rapid way for military to distinguish loyal from the disloyal

  • Extreme emergency, military necessity

  • Murphy Dissent: View relied on assumption about people of Japanese ancestry

  • Individualized hearings, at least for U.S. citizens could have been held

  • Jackson Dissent: (Hyper realist about political power and the law)

  • No attempt to exclude German or Italian aliens (suggestion of racial prejudice)

  • Mistake to justify the statute by saying it conforms to conventional tests of constitutionality

  • These questions should not be brought to civil courts as constitutional issues

  • If you put courts in this position, this will obviously be the result, but there are dangerous consequences, legality and constitutionality gets distorted

  • Ought to dismiss these cases, go to military tribunal, don’t want to make precedence that affects broad areas of law




  1. Non-Race-Specific Classifications That Disadvantage Racial Minorities

Washington v. Davis (1976) White

  • Verbal and reading comprehension tests for policemen

  • Blacks failed four times as frequently as whites

  • s, unsuccessful black applicants, claimed that differential impact made hiring process violative of equal protection

  • H: Need discriminatory purpose for racial discrimination to be violative of equal protection

  • Showing of disproportionate racial impact is a factor in ascertaining intent, BUT it is not sufficient by itself to prove discriminatory intent

  • No intent standard for Title VII cases but not when source of discrimination claim is Equal Protection Clause

  • Absent of intent requirement might invalidate a whole range of tax, welfare, public service….




  1. What are alternatives?

  • : When there are disproportionate effects along racial lines, shift burden to state to meet standards of heightened scrutiny

  • BUT (Ely) in depth review on race needed every time government makes policy

  • might refrain from policy choices that could not be defended to court

  • promotes hyper race consciousness, exactly opposite of what Equal Protection Clause should do




  1. What are justifications court makes for result?

 Substantive Justification: Anti-Davis would impose affirmative obligation on

government actors to avoid disproportionate effects

 Institutional Justification: Leave this to legislature


  • Constitutionalizing redistributes institutional authority

To have legislature defend so much of legislative product in court is a troubling doctrine


  1. What constitutes a discriminatory purpose?

  • Discriminatory purpose does not need to be the sole purpose


Arlington Heights v. Metropolitan Housing Development Corp. (1977) Powell

  • Enough that discriminatory purpose is a motivating factor in legislature’s decion to enact statute

  • Presence of second, non-discriminatory motive will not immunize statute from strict scrutiny


Hunter v. Underwood (1985)

  • voting law enacted to disenfranchise poor whites and blacks

  • fact that disenfranchisement of blacks was “but-for” motivation for law was enough to make it a violation of Fourteenth Amendment


Personnel Administrator of Mass. v. Feeney (1979)

  • Veteran preference statute, overwhelmingly exclusionary effect on women

  • Legislation must have known this would be the effect discriminatory purpose

  • H: Not intentionally gendered, too many men also affected

  • Awareness of consequences not sufficient to prove discriminatory purpose

  • Only if legislature chose this course because of and not merely in spite of, adverse effect on women could it be said to have been intentional discrimination

Davis means more than foreseeability, has to have chosen BECAUSE OF


Different Views of Discriminatory Purpose:

 Selective Indifference: Reflects idea that equal protection requires impartiality on

part of legislature

 Affirmative Animus (Feeney)

 Foreseeability and Failure to Act

 Foreseeability and Availability of Neutral Alternative




  1. Should this be treated same as Dormant Commerce Clause with purpose and effect?

  • Court seems to be applying protectionist interest inquiry (See Exxon)

  • Should courts look at effects? Do a balancing process?

  • Pure effects are not enough




  1. Race-Specific Classifications That Benefit Racial Minorities

AFFIRMATIVE ACTION POLICIES:

  1. What is the appropriate standard of review

  2. What kinds of justifications are offered

 remedial justifications

 prospective justifications



  1. What is Court’s perception of appropriate political institution for resolving issues

  2. Problem of victim specificity-Who can benefit from programs constitutionally

  3. Narrow tailoring of means used

  • Is it necessary

  • Are there race neutral means available that could accomplish the objective

2 Polar Positions:

 Equal Protection Clause requires colorblindness strict scrutiny applied to all

racial classifications

 Race consciousness in these programs is radically different from race

consciousness of policies that brought up strict scrutiny. Policies advance equal

protection, don’t raise concerns about violation no strict scrutiny


  • Court has never embraced either position as a whole

  • There is a lot at stake with standard of review

  • If standards mean the same thing as in earlier cases, fight over review is at fundamental level of legitimacy of affirmative action

  • If standards are to be elaborated, not necessarily applied the same way, debate is deferred to the next stage

  • O’Connor stresses that strict scrutiny does not mean struck down


Regents of the University of California v. Bakke (1978)

  • Medical school admissions had quotas for minorities

  • No majority opinion; 6 opinions

  • Brennan, White, Marshall, Blackmun believed plan was completely constitutional

  • Would have upheld program and would have used intermediate scrutiny because of risk racial classifications pose

  • 4 tests program would have to meet to avoid strict scrutiny:

  1. Must not involve a fundamental right

  2. Disadvantage class must not have traditional indicia of suspectness (political powerlessness, history of purposeful unequal treatment)

  3. Racial considerations must not be completely irrelevant

  4. Racial classifications must not stigmatize-not be drawn on presumtion of inferiority

  • Purpose of remedying prior discrimination was legitimate and sufficiently important to satisfy intermediate test

  • Use of race was reasonable in light of program’s objectives

  • No valid distinction between Harvard plan and quota system

  • Believed Title VI applied a constitutional standard, only intended to prohibit racial criteria that would violate 14th Am. if employed by a state (Powell agreed)

  • Stevens, Burger, Stewart, Rehnquist did not reach constitutional issue, believed program was unlawful on statutory grounds, violation of Title VI

  • Believed Title VI to mean race cannot be basis of exclusion

  • Powell: Agreed with first group that Title VI used constitutional standard, majority opinion for proposition that Title VI was violated only if Constitution was violated, had to address constitutional issue

  • Agreed with first group that a university should be able to take into account race as part of admissions process

  • BUT argued that racial classifications are suspect and should be subject to strict scrutiny

  • Applied strict scrutiny:

  1. permissible and substantial objective:

Considered 4 objectives:

 only permissible one would be educational benefits of ethnically diverse

student body

 Need to reduce historic shortage of minority doctors

 Need to increase number of doctors to serve underserved communities


  • this prospective justification is impermissible absent evidence that this actually happens

 State had legitimate and substantial interest in remedying prior discrimination,

interest did not justify program because there was no prior judicial,



administrative, or legislative finding of prior discrimination


  1. Necessary to accomplish objective: Did not find quota scheme necessary not permissible

  • Refused to enjoin all use of race- “plus” factor system proposed (Harvard plan)

  • Stressed that this plan weighed all factors, treats each applicant as an individual


Fullilove v. Klutznick (1980) Burger

  • Affirmative action program at federal level for public contracting

  • No majority opinion

  • Upheld but reaching outer limits of congressional authority

  • Emphasized narrowness of holding- limited duration of program

  • Racial classifications, even in remedial context, calls for close examination

  • Stewart Dissent: “Under our Constitution, government may never act to the detriment of a person solely because of that person’s race”



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