Chapter 7
Equal Protection and the
Antidiscrimination Principle
CHAPTER OUTLINE
I. INTRODUCTION
A. The “Equal Protection Component” of the Fifth Amendment
II. LEVELS OF JUDICIAL SCRUTINY IN EQUAL PROTECTION CASES
A. Minimal Scrutiny: The Rational Basis Test
B. The Suspect Classification Doctrine
2. The Japanese Relocation Case
3. Strict Scrutiny
C. Intermediate or Heightened Scrutiny
III. THE STRUGGLE FOR RACIAL EQUALITY
A. Early Interpretations of the Equal Protection Clause
1. The Civil Rights Cases
B. The Separate but Equal Doctrine
C. The Decline of deJure Racial Segregation
D. The Landmark Decision in Brown v. Board of Education
2. Violent Resistance to Brown
4. The Court Repudiates “All Deliberate Speed”
E. The Busing Controversy
2. A Key Roberts Court Decision
IV. THE AFFIRMATIVE ACTION CONTROVERSY
A. Competing Models of Justice
1. The Bakke and Fullilove Cases
B. The Rehnquist Court Limits Affirmative Action Programs
2. Proposition 209
4. The Michigan Cases
5. Fisher v. University of Texas at Austin
V. GENDER-BASED DISCRIMINATION
A. Congressional Responses to Demands for Gender Equality
B. The Equal Rights Amendment
C. Judicial Scrutiny of Gender-Based Discrimination
1. The VMI Case
E. Gender Equity in Collegiate Athletics
VI. DISCRIMINATION BASED ON SEXUAL ORIENTATION
A. Gay Men and Lesbians in the Military
B. Romer v. Evans: A Turning Point
C. Same-Sex Marriage
VII. DISCRIMINATION AGAINST THE POOR
A. Inequality in Public School Funding
B. Restriction of Abortion Funding for Indigent Women
C. Possible Interpretations of Economic Equal Protection
VIII. OTHER FORMS OF DISCRIMINATION
A. Age Discrimination
IX. THE ONGOING PROBLEM OF PRIVATE DISCRIMINATION
A. Restrictive Covenants
B. State Powers to Prohibit Private Discrimination
X. CONCLUSION
CRITICAL THINKING QUESTIONS
1. Can the Supreme Court’s decision in Brown v. Board of Education be squared with an
interpretivist approach to constitutional interpretation?
2. Can separate athletic programs for men and women in state colleges and universities be
justified under the Equal Protection Clause?
3. How can one justify progressive, or regressive, taxation in light of the Equal Protection
Clause?
6. As a result of the increasingly pervasive role of government in American society, some
observers have advocated that the Supreme Court abandon its longstanding distinction
between “state” and “private” action. Do you agree with this proposal?
7. Since the Fourteenth Amendment Equal Protection Clause applies only to the states, how
does the Supreme Court justify its invalidation of equal protection violations by the
federal government?
8. In most situations equal protection classifications based on wealth are subject to analysis
under a “rational basis” standard of review. Under what circumstances would a
classification based on wealth be subject to review under a higher standard?
9. Summarize the justifications for and against race-based differentiation of admission
standards for (a) undergraduate students; (b) law students.
10. What factors have contributed most significantly to the gradual disengagement of federal
courts from the nation-wide effort to desegregate the public schools?
11. Can the Supreme Court’s holding in Parents Involved in Community Schools v. Seattle
School District No. 1 (2007) be reconciled with Grutter v. Bolinger (2003)? Are the cases
distinguishable?
15. Critics on both sides of the affirmative action controversy have accused the Supreme
Court of failing to settle the issue by providing narrow rulings and opinions that may
appear as contradictory. Do you believe this to be the case? Is there a way the Court
could settle the issue permanently? What constitutional justification would be needed to
do so?
LECTURE LAUNCHERS
How to Introduce the Concept of Equal Protection through Brown v. Board of Education
Almost every student will have at some point heard the term equal protection or the phrase equal
protection of the law. However, the ability to articulate or define the concept of equal protection
may be more difficult when this textbook is the first in-depth exposure to the constitutional
process, but also serves as a reminder to students of the great social importance the Court has
often held in American history. One way to demonstrate the many layers in Brown is to show
HYPOTHETICAL PROBLEM (FOR CLASSROOM
DISCUSSION OR ESSAY EXAMINATION)
Suppose that Congress, expressing concern over the growing number of non-English-speaking
persons residing (legally or illegally) within the United States, passed and the President signed in
2010 the Basic English Reading and Comprehension Act (BERCA). BERCA provided that after
July 1, 2012, no person residing in the United States would be permitted to drive a vehicle across
state lines unless she or he had passed a standardized written and oral examination designed to
assess proficiency in the English language. This examination was to be prepared by reading and
speech communications specialists and administered by state-licensed driver education teachers
“employed on a contract basis” by the U.S. Department of Education. Egbert Farquar, a third–
KEY TERMS
Equal Protection Clause Clause in Section 1 of the Fourteenth Amendment that prohibits
states from denying equal protection of the laws to persons
within their jurisdictions.
New Equal Protection A modern interpretation of the Equal Protection Clause of the
Fourteenth Amendment under which policies that impinge on
fundamental rights or discriminate on the basis of suspect
classifications are presumed invalid by the courts.
fundamental rights Those rights, whether or not explicitly stated in the Constitution,
deemed to be basic and essential to a person’s liberty and
dignity.
suspect classification doctrine The doctrine that laws classifying people according to race,
ethnicity, and religion are inherently suspect and should be
subjected to strict judicial scrutiny.
strict judicial scrutiny Judicial review of government action or policy in which the
ordinary presumption of constitutionality is reversed.
presumption of The doctrine of constitutional law holding that laws are
constitutionality presumed to be constitutional with the burden of proof resting
on the plaintiff to demonstrate otherwise.
Civil Rights Act of 1866 Federal civil rights law passed after the Civil War, aimed at
eliminating the discriminatory Black Codes enacted by southern
states.
Black Codes Statutes enacted in southern states after the Civil War denying
African-Americans a number of basic rights.
disparate impact Differential, often discriminatory effect of a facially neutral law
or policy on members of different races or genders.
Civil Rights Act of 1875 Federal civil rights law aimed at ending racial discrimination by
places of public accommodation. Declared unconstitutional in
1883.
places of public Businesses that open their doors to the general public.
accommodation
state action doctrine The doctrine that limits constitutional prohibitions to official
government or government-sponsored action, as opposed to
their area, under court orders to alleviate racial segregation.
de jure discrimination Discrimination that results from law, whether on its face or as
applied.
affirmative action A program under which women and/or persons of particular
minority groups are granted special consideration in
gender-based classifications Laws that discriminate on the basis of gender.
sexual harassment Offensive interaction of a sexual nature in the workplace.
Equal Rights Amendment Failed attempt to amend the Constitution to guarantee equal
rights for women.
gender-neutral Term for a law or practice that applies equally to males and
Americans with Disabilities The 1990 federal statute forbidding discrimination on grounds of
Act (ADA) disability and guaranteeing access for the handicapped to public
buildings.
de facto segregation Racial segregation that exists in fact, even though it is not
required by law.
restrictive covenant An agreement among property holders restricting the use of
property or prohibiting the rental or sale of it to certain parties.
human rights statutes State laws protecting people from discrimination in a variety of
forms.
INSTRUCTOR RESOURCES
Baer, Judith. Equality under the Constitution: Reclaiming the Fourteenth Amendment. Ithaca,
NY: Cornell University Press, 1983.
The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision. NY: New
York University Press, 2001.
Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment.
Cambridge, MA: Harvard University Press, 1977.
Finch, Minnie. The NAACP: Its Fight for Justice. Metuchen, NJ: Scarecrow Press, 1981.
1980.
Gerstmann, Evan. The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-
Based Equal Protection. Chicago: University of Chicago Press, 1999.
1980.
Peltason, Jack W. Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation.
Urbana: University of Illinois Press, 1961.
1954–1978. NY: Oxford University Press, 1981.
Wolters, Raymond. The Burden of Brown: Thirty Years of School Desegregation. Knoxville:
University of Tennessee Press, 1984.
Woodward, C. Vann. The Strange Career of Jim Crow. NY: Oxford University Press, 1968.
NOTES ON EXCERPTED CASES
PLESSY v. FERGUSON (1896).
In this case the Supreme Court upheld racial segregation in the field of public transportation. At
issue was an 1890 Louisiana law requiring passenger trains operating within the state to provide
“equal but separate” accommodations for the “white and colored races.” Homer Plessy, who was
political, equality, or a commingling of the two races upon terms unsatisfactory to either.” Justice
Harlan (the elder) dissented, arguing that the “arbitrary separation of citizens on the basis of race”
was tantamount to imposing a “badge of servitude” on the Negro race. Harlan asserted that “our
Constitution is color blind, and neither knows nor tolerates classes among citizens.” The impact
of the case was enormous, providing legal justification for separate but equal laws that would
define the “Jim Crow” south for decades in its aftermath.
SWEATT v. PAINTER (1950).
Heman Marion Sweatt “filed an application for admission to the University of Texas Law School
for the February 1946 term.” However, his application was rejected solely on the basis of race. As
a result, Sweatt filed a suit for mandamus against the appropriate school officials to compel his
admission. At the time Sweatt filed his action, there was no law school in Texas that admitted
Negroes. However, the law school for Negroes opened in February 1947, but had no independent
BROWN v. BOARD OF EDUCATION I (1954).
In the early late 1940s, the NAACP mounted a major challenge to segregate public schools,
instituting lawsuits in Kansas, South Carolina, Delaware, and Virginia. These cases were first
argued before the Supreme Court in 1952, but because of the political magnitude of the issue
BROWN v. BOARD OF EDUCATION II (1955).
The Brown decision of 1954 left open the question of how and when desegregation would have to
be achieved. Immediately enforcement questions began to arise in areas resistant to integration of
public schools. In a follow-up decision in 1955 the Court adopted a formula calling for
implementation of desegregation with “all deliberate speed.” Recognizing that compliance would
LOVING v. VIRGINIA (1967).
In Plessy v. Ferguson (1896), the Supreme Court said that “[l]aws forbidding intermarriage of the
two races may be said in a technical sense to interfere with the freedom of contract, and yet have
been universally recognized as within the police power of the state.” Seventy-one years later, in
Loving v. Virginia, the Supreme Court struck down a Virginia statute making interracial marriage
freedom to marry solely because of racial classification violates the central meaning of the Equal
Protection Clause.” Thus, the law was declared to be in violation of the Fourteenth Amendment
and declared void.
SWANN v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION (1971).
The Charlotte-Mecklenburg, N.C., Board of Education devised a desegregation plan to comply
with the Supreme Court’s mandate in Brown v. Board of Education (1954; 1955). A federal
district court rejected the plan, however, as not producing sufficient racial integration at the
elementary level. In its place the court adopted a plan prepared by an outside expert that called
for, among other things, racial quotas, altering attendance zones, and busing of students within
PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL
DISTRICT NO. 1 (2007).
Here, the Supreme Court addressed plans of public school districts in Seattle, Washington, and
Louisville, Kentucky to create a degree of racial balance between whites and nonwhites in their
public high schools. Specifically, each school district “relie[d] upon an individual student’s race
in assigning that student to a particular school, so that the racial balance at the school falls within
a predetermined range based on the racial composition of the school district as a whole.” Parents
GRUTTER v. BOLLINGER (2003).
Here the Court upheld an affirmative action policy affecting admissions to the University of
Michigan Law School. The policy was designed to attain the educational benefits of having a
diverse student body by enrolling a “critical mass” of students drawn from underrepresented
minority groups, including African Americans, Hispanics, and Native Americans. As described in
Justice O’Connor’s opinion for the 5–4 majority, the law school’s admissions policy sought “to
achieve that diversity which has the potential to enrich everyone’s education and thus make a law
enough to ensure that each applicant is evaluated as an individual and not in a way that makes an
applicant’s race or ethnicity the defining feature of his or her application.” O’Connor concluded
that “the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of
race in admissions decisions to further a compelling interest in obtaining the educational benefits
that flow from a diverse student body.” In dissent Justice Rehnquist argued that the law school’s
admission policy was precisely the type of “racial balancing” prohibited by the constitution.
FRONTIERO v. RICHARDSON (1973).
The Supreme Court divided 8–1 (Justice Rehnquist dissenting) in upholding Lt. Sharron
Frontiero’s claim that the Air Force violated the equal protection component of the Fifth
Amendment in requiring women, but not men, to demonstrate that their spouses were in fact
“dependents” for the purpose of receiving medical and dental benefits. While the Court was
receptive to the equal protection claim, it was unable to achieve majority support for the
proposition that sex is a suspect classification. Expressing the views of four members of the
UNITED STATES v. VIRGINIA (1996).
In this case the Supreme Court struck down the male-only admissions policy of the Virginia
Military Academy (VMI). In so doing, the Court closed the book on a case that had been in
litigation for nearly six years. The suit had been brought by the Justice Department, after a
complaint was filed by a female high school student who wanted to go to VMI but was barred
from doing so by the Institute’s absolute prohibition against admitting women. In a 7–1 decision
(Justice Thomas did not participate), the Supreme Court, speaking through Justice Ginsburg,
ruled that the state of Virginia had “fallen far short of establishing the ‘exceedingly persuasive
justification,’ that must be the solid base for any gender–defined classification….” Although the
Court rejected the argument advanced by the Clinton Administration that sex discrimination
should be subjected to the same “strict scrutiny” the courts apply to race discrimination, Justice
ROMER v. EVANS (1996).
In this case the Supreme Court struck down Colorado’s controversial Amendment 2, which
banned state and local government from providing various legal protections for gays and lesbians.
Writing for a majority of six, Justice Kennedy concluded that “Amendment 2 … in making a
general announcement that gays and lesbians shall not have any particular protections from the
law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate
justifications that may be claimed for it.” Kennedy asserted that Amendment 2 was
unconstitutional because “it identifies persons by a single trait and then denies them equal
protection across the board.” In dissent, Justice Scalia argued that Amendment 2 “is not the
manifestation of a ‘bare … desire to harm’ homosexuals, but is rather a modest attempt by
UNITED STATES v. WINDSOR (2013).
In this case the Supreme Court, dividing 5 to 4, struck down the federal Defense of Marriage Act
as violative of the Fifth Amendment’s due process provision. The Act defined the act of marriage
as only a union of heterosexual individuals. The Act, specifically Article III, had been declared
unconstitutional by the U.S. Second Circuit Court of Appeals. This ruling was appealed to the
Supreme Court by the Justice Department and certiorari was granted in late 2012. After oral
arguments, the Court’s opinion was authored by Justice Anthony Kennedy. In declaring the Act
void, Kennedy cited concerns related to Federalism, due process of law, and equal protection. Of
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ (1973).
Here the Supreme Court considered a challenge to the Texas system of financing public schools
primarily through local property taxes. The Texas system, which is similar to that employed in
most states, resulted in dramatically different amounts of money being spent among the state’s
school districts. In reviewing the Texas system of school funding, a sharply divided Court