The equal protection clause is the underpinning of some of the most momentous and controversial Supreme Court decisions in American political history, as it is the metric against which school segregation and affirmative action programs have been measured.
In Plessy v. Ferguson (1896) the Supreme Court ruled that state laws segregating the races in public facilities did not violate the equal protection clause so long as those facilities were equal, even if they were separate. This “separate but equal” doctrine protected so-called “Jim Crow” laws throughout the South for over half a century. In 1954, however, the Supreme Court famously ruled that separate facilities were inherently unequal, and hence a violation of the equal protection clause. This started an avalanche in which countless segregationist laws were struck down or repealed, but also raised new dilemmas for state and local governments.
In many areas, not only did state laws or local rules segregate children into white and black schools, business practices also effectively segregated the races residentially. As a result, even if rules creating separate schools for each race were eliminated, the schools would still be effectively segregated because the neighborhoods surrounding them and feeding into them were segregated.
In order to integrate the races into their schools, school districts have tried many different approaches. One strategy was to bus students who lived in one area to a school in a different area. This generally meant taking black or Hispanic students from their largely minority neighborhoods and busing them to largely white schools in largely white neighborhoods.
Another strategy was to create magnet schools in minority neighborhoods. These magnet schools would offer special programs to attract white students to the largely minority neighborhoods. Yet another strategy was to abandon the concept of neighborhood schools and instead assign families to schools based on the racial makeup of that school.
Equally controversial for state and local governments has been the issue of affirmative action. One of the key unresolved issues in constitutional law—and hence in state and local diversity efforts—has been whether laws or ordinances intended to correct discrimination against one group can violate the equal protection clause by discriminating in turn against another group. How far can public colleges and universities go in trying to admit more African American and Hispanic students (or fewer white and Asian students)? What can local governments due to try to steer or reserve contracts for minority-owned businesses without discriminating against white-owned businesses?
In the end, the equal protection clause has proven to be a powerful tool not in promoting equality, which is neither the clause’s intent nor function, but in reducing discriminatory acts by government. Coupled with the power of the due process clause, the equal protection clause has undoubtedly expanded the protections individuals have from capricious or arbitrary government actions.