Equal protection

1
Equal protection

• Heightened scrutiny for
• Discrimination against a suspect class
• Disparate treatment
• Facially discriminatory statute (Moreno,
  Cleburne, Romer, Strauder, Korematsu)
• Separate but equal statutes (Plessy, Brown)
• Disparate impact
• Facially neutral statute with differential impact
  and intent to have that impact
• Facially neutral statute passed without intent to
  have disparate impact but administered in a
  biased manner (Yick Wo)
• Infringement of a fundamental right

2
Black Codes

• They were forbidden to appear in the towns in
  any other character than menial servants. They
  were required to reside on and cultivate the soil
  without the right to purchase or own it. They
  were excluded from many occupations of gain, and
  were not permitted to give testimony in the
  courts of any case where a white man was a party.
  It was said that their lives were at the mercy
  of bad men, either because the laws for their
  protection were insufficient or were not
  enforced.

3
14th Amendment, Section 1

• All persons born or naturalized in the United
  States . . . are citizens of the United States
  and of the State wherein they reside (overrides
  Dred Scott).
• No State shall make or enforce any law which
  shall abridge the privileges or immunities of
  citizens of the United States
• Due process and equal protections clauses too

4
14th Amendment, Section 5

• The Congress shall have power to enforce, by
  appropriate legislation, the provisions of this
  article.

5
Separate but equal

• States would require separate facilities for
  whites and blacks
• Louisiana required segregated railroad cars
  (Plessy)
• Kentucky required segregated colleges (Berea
  College)
• Kansas required segregated K-12 schools (Brown)
• Note that states did not simply permit
  segregation, they required it

6
Separate but equal

• Should separate but equal be allowed?
• Might we argue that both sides are treated in the
  same way, so there is neither disparate treatment
  nor disparate impact?
• How might we argue from Strauder (jury exclusion
  case) that segregation is unconstitutional?
• The Strauder Court was worried about the
  stigmatizing effect of a law that prevented
  blacks from serving on juries

7
Plessy

• What were the facts (page 456)?
• Louisiana required equal but separate railroad
  accommodations for blacks and whites. Blacks
  using cars for whites were subject to criminal
  prosecution as were whites using cars for blacks.
• In upholding the statute, how did the Court
  explain its holding (page 456)?
• The Court argued that the 14th Amendment was
  designed to enforce political equality, not
  social equality, that the law cannot force
  commingling of the races if that is not the will
  of the people.
• What was wrong about the Court saying the states
  cannot force commingling?
• The statute prohibited commingling

8
Plessy

• The Court cited to the segregation of schools in
  DC (page 457). What kinds of argument was it
  making?
• Tradition
• Original intent
• The Court concluded that if the two races are
  to meet upon terms of social equality, if must be
  the result of natural affinities . . . and a
  voluntary consent of individuals (page 457).
  What was wrong about this argument?
• The state prohibited voluntary sharing of
  railroad cars by black and white passengers

9
Plessy

• The Court justified its decision on the ground
  that the legislature is entitled to act with
  reference to the established usages, customs,
  and traditions of the people, and with a view to
  the promotion of their comfort (page 457).
  Which decisions that we considered under rational
  basis review rejected this argument?
• Cleburne, Romer
• Justice Harlan invoked an important argument
  against racial discrimination (page 458)
• There is no caste here. Our constitution . . .
  neither knows nor tolerates classes among
  citizens.

10
Separate but equal

• Plessy eventually was overruled, but it took a
  good deal of time before Brown completed the
  process of reversing Plessy
• Initially, the Court required substanial
  equality of separate facilities (McCabe, page
  460)
• Later the Court desegregated universities, first
  on the ground that the black programs were
  inferior (Gaines, page 462, Sweatt, page 463),
  then on the ground that separation itself made
  for an unequal education (McLaurin, pages 463-464)

11
Brown

• What were the facts (page 465)?
• Black children were denied admission to public
  schools attended by white children
• The Court looked to original intent first. What
  conclusions did it draw?
• Many people viewed the 14th Amendment as having a
  broad reach, while others viewed it more
  narrowly. We dont know what members of Congress
  or state legislatures thought
• Public education played a much less important
  role in American society at the time of the 14th
  Amendment, so there is little in the legislative
  history regarding the effect of the amendment on
  public education

12
Brown

• The Court gave a third reason not to be guided by
  original intent based on the nature of
  constitutions (page 466)
• They are evolving documents and must be
  interpreted in light of changing circumstances
• Education had come to play a fundamental role in
  American society in terms of preparing children
  for a successful life and inculcating cultural
  values
• This argument addresses the concern mentioned on
  page 468 that whatever the intent of the framers
  of the 14th Amendment, Congress is governed by
  the intent of the framers of the 5th Amendment,
  people who tolerated slavery

13
Brown

• What, then, made separate but equal schools
  unconstitutional (page 466)?
• Separating children because of their race
  generates a feeling of inferiority as to their
  status in the community that may affect their
  hearts and minds in a way unlikely ever to be
  undone
• Segregation with the sanction of law, therefore,
  has a tendency to retard the educational and
  mental development of Negro children

14
Separate but equal

• The Brown Court emphasized the importance of
  education in a childs development. Does that
  mean that segregation is okay for less important
  activities?
• No. The Court subsequently struck down segregated
  buses, golf courses, beaches (page 468)
• Instead of asking whether separate but equal can
  really be equal, how might we describe a separate
  but equal public school law as the combination of
  two disparate treatment laws?
• Some schools are open to whites but not blacks
• Other schools are open to blacks but not whites

15
Brown

• As the notes indicate, a key question is what
  exactly Brown required when it prohibited
  segregated schools
• Elimination of white-only or black-only schools?
• Elimination of facially neutral policies that had
  the effect of preserving segregated schools? What
  do Washington v. Davis and Yick Wo tell us about
  these facially neutral policies?
• They are unconstitutional if adopted with intent
  to discriminate or if applied in a discriminatory
  fashion
• Adoption of policies to promote integrated
  schools (i.e., does Brown just prohibit
  segregation or does it also require integration)?
• Only in districts where governmental policies
  caused the segregation of students by race?

16
Brown II

• Brown II addressed the issue of remedy.
• The plaintiffs were entitled to admission to
  public schools as soon as practicable on a
  nondiscriminatory basis (page 472)
• Defendants must make a prompt and reasonable
  start toward full compliance with Brown
• However, additional time may be necessary to
  achieve full compliance, given considerations of
• Physical condition of the school plant
• School transportation system
• Personnel
• Revision of school districts and attendance areas
• Revision of local laws and regulations
• The lower courts must implement Brown with all
  deliberate speed.

17
Brown

• As the notes indicate, there is considerable
  disagreement about the Courts decision not to
  require immediate implementation of Brown
• Did the Court recognize political realities, or
  did it encourage resistance?
• There also is considerable disagreement about
  Browns short-term impact
• Did Brown encourage the civil rights movement, or
  was Brown ineffective until the civil rights
  movement provided real public support for
  desegregation?
• After about a decade of quiescence, the Supreme
  Court invalidated policies that maintained the
  segregation of schools
• Freedom of choice
• One-way transfers (from minority to majority
  schools)

18
School integration

• During the 1960s and 1970s, judicial and
  executive branch enforcement resulted in the
  integration of public schools
• However, over time, it became difficult to
  maintain school integration in urban school
  districts
• Black children represented a strong majority
  while white children represented a strong
  majority in suburban districts.
• The Supreme Court rejected inter-district
  remedies to integrate the urban schools (pages
  482-484)
• By the 1990s, most black children in many major
  cities attended schools that were highly
  segregated (more than 90 percent minority) (page
  486)

19
Loving

• What were the facts (page 518)?
• Whites were forbidden from marrying blacks, and
  blacks were forbidden from marrying whites
• Note that we have two disparate treatment
  provisions
• What state interests were invoked by the lower
  court?
• Preserving racial integrity, preventing the
  obliteration of racial pride

20
Loving

• The Court applied strict scrutiny (the most
  rigid scrutiny)
• The statute must be shown necessary to the
  accomplishment of some permissible state
  objective
• Was there a legitimate state interest that might
  justify the statute (page 519)?
• No. Trying to maintain white supremacy is not an
  acceptable state interest

21
The Federal Automobile Safety Act establishes
certain safety and performance standards for all
automobiles manufactured in the United States.
The Act creates a five-member Automobile
Commission to investigate automobile safety, to
make recommendations to Congress for new laws, to
make further rules establishing safety and
performance standards, and to prosecute
violations of the act. The chairman is appointed
by the President, two members are selected by the
President pro tempore of the Senate, and two
members are selected by the Speaker of the House
of Representatives.   Minicar, Inc., a minor
United States car manufacturer, seeks to enjoin
enforcement of the Commissions rules.
22
The best argument that Minicar can make is
that   (A) legislative power may not be delegated
by Congress to an agency in the absence of clear
guidelines. (B) the commerce power does not
extend to the manufacture of automobiles not used
in interstate commerce. (C) Minicar is denied
due process of law because it is not represented
on the Commission. (D) the Commission lacks
authority to enforce its standards because not
all of its members were appointed by the
President.
23
The appropriate decision for the court is
to   (A) allow the Commission to continue
investigating automobile safety and making
recommendations to Congress. (B) allow the
Commission to prosecute violations of the act but
not allow it to issue rules. (C) forbid the
Commission to take any action under the act. (D)
order that all members of the Commission be
appointed by the President by and with the advice
and consent of the Senate.
24
Argus Corporation is privately owned and
incorporated in the state of Kiowa. It
contracted with the United States to construct a
dam across the Big Sandy River in the state of
Arapaho. The state of Arapaho imposed a gross
receipts tax on all business conducted within
the state. Arapaho sued Argus Corporation to
collect that tax on the receipts Argus received
under this federal contract. No federal statutes
or administrative rules are applicable, and the
contract between the United States and Argus
Corporation does not mention state taxation.
25
The court should hold the state tax, as applied
here, to be (A) constitutional, because a state
has exclusive jurisdiction over all commercial
transactions executed wholly within its
borders. (B) constitutional, because private
contractors performing work under a federal
contract are not immune in these circumstances
from nondiscriminatory state taxation. (C)
unconstitutional, because it violates the
supremacy clause. (D) unconstitutional, because
it imposes an undue burden on interstate
commerce.
26
State taxation of interstate commerce

• Must be applied to activity with substantial
  nexus to the taxing state (e.g., Montana cannot
  tax coal mined in Kentucky)
• Must be fairly apportioned to business activities
  within the state (if company does 60 percent of
  business in Montana, Montana can tax only 60
  percent of income)
• Cant discriminate against interstate commerce
  (no higher taxes for out-of-state companies)
• Must fairly relate to services provided by the
  state (type of tax must reasonably relate to the
  activities of the taxpayer in the state e.g.,
  income tax applied to earnings in-state or mining
  tax applied to value of coal extracted)

27
Three states, East Winnetka, Midland, and West
Hampton, are located next to one another in that
order. The states of East Winnetka and West
Hampton permit the hunting and trapping of snipe,
but the state of Midland strictly forbids these
activities in order to protect snipe, a rare
species of animal, from extinction. The state of
Midland has a state statute that provides,
Possession of snipe traps is prohibited. Any
game warden finding a snipe trap within the state
shall seize and destroy it. Snipe traps cost
about 15 each. Prentis is a resident of West
Hampton and an ardent snipe trapper. She drove
her car to East Winnetka to purchase a new
improved snipe trap from a manufacturer there. In
the course of her trip back across Midland with
the trap in her car, Prentis stopped in a Midland
state park to camp for a few nights. While she
was in that park, a Midland game warden saw the
trap, which was visible on the front seat of her
car. The warden seized the trap and destroyed it
in accordance with the Midland statute after
Prentis admitted that the seized item was a
prohibited snipe trap. No federal statutes or
federal administrative regulations apply.
28
Assume that Prentis demonstrates that common
carriers are permitted to transport snipe traps
as cargo across Midland for delivery to another
state and that in practice the Midland statute is
enforced only against private individuals
transporting those traps in private vehicles. If
Prentis challenges the application of the Midland
statute to her on the basis only of a denial of
equal protection, the application of the statute
will probably be found (A) constitutional,
because the traps constitute contraband in which
Prentis could have no protected property
interest. (B) constitutional, because there is a
rational basis for differentiating between the
possession of snipe traps as interstate cargo by
common carriers and the possession of snipe
traps by private individuals. (C)
unconstitutional, because the state cannot
demonstrate a compelling public purpose for
making this differentiation between common
carriers and such private individuals. (D)
unconstitutional, because interstate travel is a
fundamental right that may not be burdened by
state law.
29
Assume that a valid federal administrative rule,
adopted under a federal consumer product safety
act, regulates the design of snipe traps. The
rule was issued to prevent traps from causing
injury to human beings, e.g., by pinching fingers
while persons were setting the traps. No other
federal law applies. Which of the following best
states the effect of the federal rule on the
Midland state statute? (A) The federal rule
preempts the Midland state statute, because the
federal rule regulates the same subject matter
snipe traps. (B) The federal rule preempts the
Midland state statute, because the federal rule
does not contain affirmative authorization for
continued state regulation. (C) The federal rule
does not preempt the Midland state statute,
because the Midland state statute regulates wild
animals, a field of exclusive state power. (D)
The federal rule does not preempt the Midland
state statute, because the purposes of the
federal rule and the Midland state statute are
different