Category Archives: Fourteenth Amendment

DeShaney v. Winnebago County Department of Social Services

DeShaney v. Winnebago County Department of Social Services

 Does a state’s failure to protect someone against private violence constitute as an infringement of the Due Process Clause of the Fourteenth Amendment?

Argued: 11/2/1988

Decision Date: 02/22/1989

Decision Record: 6-3; no

Justices in Favor: William Rehnquist, Byron White, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy

Justices Dissenting: William Brennan, Thurgood Marshall, Harry Blackmun

Effect of the Decision

This case ruled that a social service’s failure to protect an individual from one’s parent is not a violation of the Fourteenth Amendment.

In Favor

In the favoring side of this case, on the side of the DeShaney, attorney Donald James Sullivan argued, “We do suggest that there is one and only one exquisitely narrow circumstance where there is an affirmative duty.

I would suggest that there are two primary elements to the one and only one circumstance for which we argue.

The first is the existence of a child/parent relationship.

The other is what I term enmeshment, intricate intimacy, enmeshment of the agents of the state in a particular circumstance which would have three characteristics: the first, an extreme danger to a particular individual child; the second, abundant actual knowledge on the part of the agents of the state; and the third, an actual undertaking by the state to protect the child.”

Against

In the opposition, on the side of Winnebago County Department of Social Services, attorney Mark J. Mingo, “We believe this case involves an attempt by the Petitioners to transform the private wrongdoing of a natural father into state action for purposes of invoking the Fourteenth Amendment.

The primary issue presented is whether a county’s failure to prevent the infliction of harm by a third party upon a person at liberty constitutes a due process violation of the Fourteenth Amendment.

We believe that there was no state deprivation of a constitutionally protected right for three main reasons.

First, the Fourteenth Amendment’s concept of liberty does not include a right to basic protective services from the state.

Secondly, there is no state action in a constitutional sense which caused a deprivation in this case.

Third, we believe that the actions of the social worker did not evince the state of mind necessary to invoke the Fourteenth Amendment.

In addition, we believe that there are two independent reasons for urging affirmance of the Seventh Circuit’s decision.

First, with respect to the municipal Respondents, there was no policy or custom which led to a deprivation and with respect to the individual Respondents, we believe they are clearly entitled to the defense of qualified immunity.”

Justices:

On the majority side, also the affirming side, Justice Rehnquist wrote the opinion. He wrote, “Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them, it must also be said that, had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court’s expansion of the Due Process Clause of the Fourteenth Amendment.”

In the side of the opposition, Justice Brennan wrote the opinion. He wrote, “My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today’s opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.”

My Opinion:

In this case, I agree with the majority. Many people would dissent from sympathy of this certain situation. However, looking at the Fourteenth Amendment, which guarantees equal protection, does not have much to do with this case. The social service not taking the father from the son can not be considered a violation of the Fourteenth Amendment. The Constitution does not require the service to take an abusive father away from a son. The abuse was inflicted by the parent, not the service or the state of Wisconsin itself. States could create their own law regarding a predicament such as this one, but as of now, no violation of the Constitution has occurred.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Grutter v. Bollinger: Race Consideration in College Admissions (05/23/2003)

Grutter v. Bollinger

Does the University of Michigan Law School’s use of racial preferences in student admissions infringe upon the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?

Argued: 04/01/2003

Decision Date: 05/23/2003

Decision Record: 5-4; no

Justices in Favor: John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg. Stephen Breyer

Justices Dissenting: William Rehnquist, Antonin Scalia, Anthony Kennedy, Clarence Thomas

Effect of the Decision

This case ruled that the use of a student’s race is permitted when deciding the admission of college students.

In Favor

In the favoring side of this case, on the side of Grutter, attorney Kirk O. Kolbo argued, “Barbara Grutter applied for admission to the University of Michigan Law School with a personal right guaranteed by the Constitution that she would not have her race counted against her.

That race… that the application would be considered for free from the taint of racial discrimination.

The law school intentionally disregarded that right by discriminating against her on the basis of race as it does each year in the case of thousands of individuals who apply for admission.

The law school defends its practice of race discrimination as necessary to achieve a diverse student body.

With the loss… with the diversity that the law school is committed to ensuring and meaningful numbers or critical mass, is of a narrow kind defined exclusively by race and ethnicity.

The constitutional promise of equality would not be necessary in a society composed of a single homogenous mass.

It is precisely because we are a nation teeming with different races and ethnicities… one that is increasingly interracial, multiracial, that it is so crucial for our Government to honor its solemn obligation to treat all members of our society equally without preferring some individuals over others.”

Against

In the opposition, on the side of Earls, attorney Theodore B. Olson argued, “The Michigan law school admissions program fails every test this Court has articulated for evaluating governmental racial preferences.

We respect the opinions of those individuals, but the position of the United States is that we do not accept the proposition that black soldiers will only fight for… black officers or the reverse that race neutral means should be used in the academies as well as other places.”

Justices:

On the side of the majority, Justice Sandra Day O’Connor wrote the opinion for the court. She wrote, “In summary, 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. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI … proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.”

In opposition, Justice William Rehnquist wrote, “Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions. We have emphasized that we will consider “the planned duration of the remedy” in determining whether a race-conscious program is constitutional.Fullilove, 448 U.S., at 510 (Powell, J. concurring); see also United States v. Paradise480 U.S. 149, 171 (1987) (“In determining whether race-conscious remedies are appropriate, we look to several factors, including the … duration of the relief ”). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

    The Court suggests a possible 25-year limitation on the Law School’s current program. See ante, at 30. Respondents, on the other hand, remain more ambiguous, explaining that “the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School’s resolve to cease considering race when genuine race-neutral alternatives become available.” Brief for Respondents Bollinger et al. 32. These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School’s use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny–that a program be limited in time–is casually subverted.

    The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.”

Also disagreeing with the majority, Justice Anthony Kennedy wrote, “It is regrettable the Court’s important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.”
In a separate opinion, Justice Antonin Scalia wrote, “Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today’s GrutterGratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant “as an individual,” ante, at 24, and sufficiently avoids “separate admissions tracks” ante, at 22, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a “ ‘good faith effort’ ” and has so zealously pursued its “critical mass” as to make it an unconstitutional de facto quota system, rather than merely “ ‘a permissible goal.’ ” Ante, at 23 (quoting Sheet Metal Workers v. EEOC, 478 U. S 421, 495 (1986) (O’Connor, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords “a degree of deference to a university’s academic decisions,” ante, at 16, “deference does not imply abandonment or abdication of judicial review,” Miller-El v. Cockrell537 U.S. 322, 340 (2003).) Still other suits may challenge the bona fides of the institution’s expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses–through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution’s racial preferences have gone below or above the mystical Grutter-approved “critical mass.” Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution’s composition of its generic minority “critical mass.” I do not look forward to any of these cases.”
Also writing his own opinion, Justice Clarence Thomas wrote, “Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant’s LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker’s behavior is responsive to the Law School’s admissions policies.16 Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot’s prophecy about black underperformance–just as it confirms the conspiracy theorist’s belief that “institutional racism” is at fault for every racial disparity in our society.

    I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School’s educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to “ ‘eliminat[e] the [perceived] need for any racial or ethnic’ ” discrimination because the academic credentials gap will still be there. Ante, at 30 (quoting Nathanson & Bartnika, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May—June 1977)). The Court defines this time limit in terms of narrow tailoring, see ante, at 30, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court.”

My Opinion:

In this case, I agree with the minority very strongly. Even after writing an opinion about two other cases very similar to this one, I still fail to come to terms with how taking a person’s race into consideration when deciding their admission is not a violation of the Fourteenth Amendment, even if it’s just a little bit. If a person deserves to get into a specific college because they have worked hard for it and have good grades, they should very well get in, but if it’s something as simple as their race holding them back; something they literally have no control over, that’s fair well a complete violation of the Fourteenth Amendment, which guarantees “equal protection under the law.” “Diversity” is not an advantage. A person is more likely to choose to attend a college because they have a long record of successful alumnis or good professors teaching a major that specific person is interested, than simply because they have diversity. There is practically zero benefit of having a diverse environment other than the students there get to experience different cultures, etc, which could be easily done in such a diverse country such as the United States. I fail to see why race should be taken into account for admissions now, and I will continue to be bewildered by this far in the future. Like Antonin Scalia wrote, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Board of Ed. of Independence District No. 92 of Pottawatomie County v. Earls: Extracurricular-Required Urinal Drug Test (05/27/2002)

Board of Ed. of Independence District No. 92 of Pottawatomie County v. Earls

Is the Student Activities Drug Testing Policy, which requires all students who participate in competitive extracurricular activities to participate in a drug testing, consistent with the Fourth Amendment?

Argued: 03/19/2002

Decision Date: 05/27/2002

Decision Record: 5-4; yes

Justices in Favor: William Rehnquist, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Stephen Breyer

Justices Dissenting: John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg

Effect of the Decision

This case ruled that the requirement for students wanting to participate in this particular school is not a violation of the Fourth Amendment.

In Favor

In the favoring side of this case, on the side of the Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty., attorney Linda M. Meoli argued, “This case involves the constitutionality of the Tecumseh School Board’s decision to implement a suspicionless drug testing pro- policy for students in competitive activities as a reasonable response to student drug use.

Tecumseh’s policy represents a natural, logical, and rational application of this Court’s decision in Vernonia V Acton.

Vernonia’s policy applied to students who chose to participate in interscholastic athletics.

Tecumseh’s policy applies as well to athletics, but also to all the other competitive activities that are offered by the district.

Respondents do not challenge the policy as applied to the athletics, conceding that this Court approved that practice in Vernonia.”

Against

In the opposition, on the side of Earls, attorney Graham A. Boyd argued, “Opposing counsel said we have to draw the line somewhere, and the way the way to draw the line in this case is to keep in mind the core principle that individualized reasonable suspicion is the standard for school searches set forth in TLO.”

Justices:

On the side of the majority, Justice Clarence Thomas wrote the opinion for the court. He wrote, “Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District’s legitimate concerns in preventing, deterring, and detecting drug use. While in Vernonia there might have been a closer fit between the testing of athletes and the trial court’s finding that the drug problem was “fueled by the ‘role model’ effect of athletes’ drug use,” such a finding was not essential to the holding. 515 U.S., at 663; cf. id., at 684—685 (O’Connor, J., dissenting) (questioning the extent of the drug problem, especially as applied to athletes). Vernonia did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public school’s custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the School District’s interest in protecting the safety and health of its students.

    Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh’s Policy is a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren. Accordingly, we reverse the judgment of the Court of Appeals.”

In opposition, Justice Sandra Day O’Connor wrote, “I dissented in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), and continue to believe that case was wrongly decided. Because Vernonia is now this Court’s precedent, and because I agree that petitioners’ program fails even under the balancing approach adopted in that case, I join Justice Ginsburg’s dissent.”
Also disagreeing with the majority, Justice Ruther Bader Ginsburg wrote, “It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting “the schools’ custodial and tutelary responsibility for children.” Vernonia, 515 U.S., at 656. In regulating an athletic program or endeavoring to combat an exploding drug epidemic, a school’s custodial obligations may permit searches that would otherwise unacceptably abridge students’ rights. When custodial duties are not ascendant, however, schools’ tutelary obligations to their students require them to “teach by example” by avoiding symbolic measures that diminish constitutional protections. “That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 637 (1943).”

My Opinion:

In this case, I agree with the majority. Most schools already do spontaneous drug checks commonly without needing reasonable suspicion. This shouldn’t be that much different. I personally do not believe an administrator needs any sort of “reasonable suspicion” to perform a drug test on a group of kids. There always reason to believe that a person may or may not be doing drugs, especially in a school-environment where one is surrounded around tons of influencers. Not only that, I wouldn’t consider a urinal drug test much of an “invasion of privacy.” There’s not much to hide in one’s urine; and if it’s for the better of the students and school, then so be it.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Obergefell v. Hodges: Licensing Same Sex Marriage (05/26/2015)

Obergefell v. Hodges

Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

Argued: 04/28/2015

Decision Date: 05/26/2015

Decision Record: 5-4; yes

Justices in Favor: Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan

Justices Dissenting: John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito

Effect of the Decision

This case ruled that states must accept and license same sex marriages.

In Favor

In the favoring side of this case, on the side of Obergefell, attorney Mary L. Bonauto argued, “The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society.

If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity. Indeed, the abiding purpose of the Fourteenth Amendment is to preclude relegating classes of persons to second-tier status.”

Against

In the opposition, on the side of Hodges, attorney Donald B. Verrilli, Jr. argued, “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.

It demeans their children, and it denies the — both the couples and their children the stabilizing structure that marriage affords. Now, the Respondents’ principal argument, and what we’ve been discussing this morning so far, is whether this issue of — whether this discrimination should persist, is something that should be left to the political process or whether it should be something decided by the Court.

And I’d like to make three points about that, if I could. First, the — I think it’s important to understand that if this Court concludes that this issue should be left to the political process, what the Court will be saying is that the demeaning, second-class status that gay and lesbian couples now inhabit in — in States that do not provide for marriage is consistent with the equal protection of the laws.

That is not a wait-and-see.

That is a validation. And second, to the extent that the thought is that this can be left to the political process because this issue will take care of itself over time, because attitudes are changing, what I respectfully submit to the Court is that although no one can see the future perfectly, of course, that it seems much more likely to me that the outcome that we’re going to end up with is something that will approximate the nation as a house divided that we had with de jure racial segregation.”

Justices:

On the side of the majority, Justice Anthony Kennedy wrote the opinion for the court. He wrote, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Then in dissent, Justice John Roberts wrote, “In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.”

My Opinion:

In this case, I disagree with the majority and agree with the minority. Requiring licensing of the same sex marriage might be equal, but it has nothing to do with the”equal protection of the law” clause of the Fourteenth Amendment. The Constitution states nothing having to do with marriage of the same sex. The Supreme Court’s job is the interpret the Constitution. Therefore, it is not the Supreme Court’s job to decide whether or not same sex marriage is legal. That should be determined by the state like it previously was. The majority side of the Supreme Court judges interpreted the Constitution too vaguely and crossed the boundaries. Like Chief Justice John Roberts wrote in his opinion, “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Brown v. Board of Education: Segregation of Public Education (05/17/1954)

Brown v. Board of Education

Does the segregation of public education based only on race violate the Equal Protection Clause of the Fourteenth Amendment?

Argued: 12/8-10/1952; 12/6-8/1953

Decision Date: 05/17/1954

Decision Record: 9-0; yes

Justices in Favor: Earl Warren, Hugo Black, Stanley Reed, Felix Frankfurter, William Douglas, Robert Jackson, Harold Burton, Tom Clark, Sherman Minton

Justices Dissenting: None

Effect of the Decision

This case ruled segregation in public schools is a violation of the Fourteenth Amendment.

In Favor

In the favoring side, attorneys Robert L. Carter, Thurgood Marshall, and Spottswood Robinson III argued on the side of Brown.

Against

In the opposition, on the side of the the Board of Education, attorney Paul E.Wilson, John W. Davis, T. Justin Moore, and J. Lindsay Almond, Jr. argued.

Justices:

 

The decision in this case was unanimous on the side of Brown. Justice Earl Warren delivered the opinion of the court. He wrote, “We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.[n12]

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question — the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term[n13] The Attorney General[p496] of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.”

My Opinion:

In this case, I agree with the court’s decision. Segregation was not only morally incorrect but it was not equal; not in the least bit. The Fourteenth Amendment’s famous clause “equal protection under the law” was completely violated under the “separate but equal” phrase that was implemented in the Plessy v. Ferguson case. Blacks and whites were more like “separate but unequal.” They were taught differently and were both treated differently by society. They had different park benches, restrooms, fountains, etc. The Plessy v. Ferguson case was what really gave the whites permission to treat the blacks horribly and keep them from coming in contact with other white people. The whites received things that were 100x more luxurious than that of the blacks. This is the pure meaning of inequality and that word definitely does not belong with and violates the Fourteenth Amendment.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Startup Stock Photos

Grutter v. Bollinger: Racial Student Admissions (06/23/2003)

Grutter v. Bollinger

Does the University of Michigan Law School’s use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?

Argued: 04/1/2003

Decision Date: 06/23/2003

Decision Record: 5-4; no

Justices in Favor: John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg (L*), Stephen Breyer (LC)

Justices Dissenting: William Rehnquist, Antonin Scalia (RC), Anthony Kennedy (LC), Clarence Thomas (R)

Effect of the Decision

This case clarifies that University of Michigan Law School’s use of racial preferences in student admission does not violate the Fourteenth Amendment and is encouraged.

In Favor

In representation of Barbara Grutter, attorney Kirk O. Kolbo argued, “Barbara Grutter applied for admission to the University of Michigan Law School with a personal right guaranteed by the Constitution that she would not have her race counted against her.

That race… that the application would be considered for free from the taint of racial discrimination.

The law school intentionally disregarded that right by discriminating against her on the basis of race as it does each year in the case of thousands of individuals who apply for admission.

The law school defends its practice of race discrimination as necessary to achieve a diverse student body.

With the loss… with the diversity that the law school is committed to ensuring and meaningful numbers or critical mass, is of a narrow kind defined exclusively by race and ethnicity.

The constitutional promise of equality would not be necessary in a society composed of a single homogeneous mass.

It is precisely because we are a nation teeming with different races and ethnicities… one that is increasingly interracial, multiracial, that it is so crucial for our Government to honor its solemn obligation to treat all members of our society equally without preferring some individuals over others.”

Against

Then in opposition, representing Lee Bollinger, attorney Maureen E. Mahoney claims, “The Solicitor General acknowledges the diversity may be a compelling interest but contends that the University of Michigan Law School can achieve a diverse student body through facially race neutral means.

His argument ignores the record in this case.

The brief says that it is one of the paramount interests of government to have diversity in higher education.

And it has certainly been the consistent position of the Department of Education for the past 25 years that Bakke is the governing standard, that schools are encouraged to use programs to achieve diversity, because of the important interests it serves for students of all color.”

Justices:

The majority opinion slip was written by Justice Sandra Day O’Connor. She wrote, “In summary, 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. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI … proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.”

In respectful dissent, Justice William Rehnquist said in his opinion, “I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.” Ante, at 17.

Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions. We have emphasized that we will consider “the planned duration of the remedy” in determining whether a race-conscious program is constitutional.Fullilove, 448 U.S., at 510 (Powell, J. concurring); see also United States v. Paradise, 480 U.S. 149, 171 (1987) (“In determining whether race-conscious remedies are appropriate, we look to several factors, including the … duration of the relief ”). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

    The Court suggests a possible 25-year limitation on the Law School’s current program. See ante, at 30. Respondents, on the other hand, remain more ambiguous, explaining that “the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School’s resolve to cease considering race when genuine race-neutral alternatives become available.” Brief for Respondents Bollinger et al. 32. These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School’s use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny–that a program be limited in time–is casually subverted.

    The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.”

Also writing a dissenting opinion slip, Justice Anthony Kennedy wrote, “To be constitutional, a university’s compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny.

    The Court’s refusal to apply meaningful strict scrutiny will lead to serious consequences. By deferring to the law schools’ choice of minority admissions programs, the courts will lose the talents and resources of the faculties and administrators in devising new and fairer ways to ensure individual consideration. Constant and rigorous judicial review forces the law school faculties to undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution. Dean Allan Stillwagon, who directed the Law School’s Office of Admissions from 1979 to 1990, explained the difficulties he encountered in defining racial groups entitled to benefit under the School’s affirmative action policy. He testified that faculty members were “breathtakingly cynical” in deciding who would qualify as a member of underrepresented minorities. An example he offered was faculty debate as to whether Cubans should be counted as Hispanics: One professor objected on the grounds that Cubans were Republicans. Many academics at other law schools who are “affirmative action’s more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds.” Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U. Pa. J. Const. L. 573, 577—578 (2000); Rubenfeld, Affirmative Action, 107 Yale L. J. 427, 471 (1997)). This is not to suggest the faculty at Michigan or other law schools do not pursue aspirations they consider laudable and consistent with our constitutional traditions. It is but further evidence of the necessity for scrutiny that is real, not feigned, where the corrosive category of race is a factor in decisionmaking. Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation.

    It is difficult to assess the Court’s pronouncement that race-conscious admissions programs will be unnecessary 25 years from now. Ante, at 30—31. If it is intended to mitigate the damage the Court does to the concept of strict scrutiny, neither petitioners nor other rejected law school applicants will find solace in knowing the basic protection put in place by Justice Powell will be suspended for a full quarter of a century. Deference is antithetical to strict scrutiny, not consistent with it.

    As to the interpretation that the opinion contains its own self-destruct mechanism, the majority’s abandonment of strict scrutiny undermines this objective. Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School’s profession of its own good faith. The majority admits as much: “We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.” Ante, at 30 (quoting Brief for Respondent Bollinger et al. 34).

    If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.

    It is regrettable the Court’s important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.”

My Opinion:

In this case, I agree with the dissenting side. Considering a person’s race in student admissions is not constitutional at all and goes against the Fourteenth Amendment’s Equal Protection Clause. In a previous opinion, Fisher v. University of Texas at Austin, I stated, “The majority claims that taking race into consideration is lawful under the Equal Protection Clause. However, I fail to see allowing race to be a factor in a decision for acceptance is anywhere near ‘equal.'”

A person’s race should not determine their future, especially because they can’t help it. Everyone should be treated equally and receive the same treatment when under consideration for admission into college. Race should play an extremely small, if not none, role in a person’s education. It would be completely unfair if a person who didn’t try very hard was admitted over another person who worked much harder to get into college merely because the school wanted more “diversity.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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Regents of the University of California v. Bakke: Racial College Admissions (06/26/1978)

Regents of the University of California v. Bakke

Did the University of California violate the Fourteenth Amendment’s equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke’s application for admission to its medical school?

Argued: 10/12/1977

Decision Date: 06/26/1978

Decision Record: 5-3; yes and no

Justices Plurality: Warren Burger, William Brennan, Potter Stewart, Thurgood Marshall, Harry Blackmun, Lewis Powell, William Rehnquist, John Paul Stevens

Justices Dissenting: Byron White

Effect of the Decision

This case upholds that colleges cannot decide admissions solely on the basis of race.

In Favor

In representation of the University of California, attorney Archibald Cox argued, “Whether the State — whether a state university which is forced by limited resources to select a relatively smaller number of students from a much larger number of well-qualified applicants is free voluntarily to take into account the fact that a qualified applicant is black, Chicano, or Asian, or Native American in order to increase the number of qualified members of those minority groups trained for the educated professions and participating individual, professions from which minorities were long excluded because of generations of pervasive racial discrimination.

The answer which the court gives was determined perhaps for decades whether members of those minorities are to have the kind of meaningful access to higher education in the profession which the universities have accorded them in recent years ought are to be reduced to the trivial numbers which they were prior to the adoption of minority admissions programs.

The three facts realities which dominated the situation that the Medical School of Davis had before it and which I think this control the decision of this Court.

The first is that the number of qualified applicants for the nation’s professional schools is vastly greater than the number of places available.

That is a fact and an inescapable fact.

In 1975, 1976, for example, there were roughly 30,000 qualified applicants for admission to medical school, a much greater number of actual applicants and there were only about 14,000 places.

At Davis, there were 25 applicants have received in 1973.

In 1974, the ratio was risen to 37 to 1.

So the problem is one of selection among qualified applicants, not of ability to gain from a professional education.

The second fact which is no need for me to elaborate but it is a fact for generation’s racial discrimination in the United States, much of it stimulated by unconstitutional state action.

Isolated certain minorities condemn them to unfairer education and shut them out of the most important and satisfying aspects of American life including higher education and the profession.

And the greatest problem is the Carnegie on Higher Education noted more than 10 years ago.

The greatest problem in achieving racial justice was to draw those minorities into the professions that place on important part in our national life.

And then there’s one third factor.

There is no racially blind method of selection which will enroll today more than a trickle of minority students in the nation’s colleges and professions.

These are the realities which the University of California, Davis Medical School faced in 1968.

In which I say I think the Court must face when it comes to its decision.

Until 1969, the applicants of Davis as it most of the medical schools were chosen on the basis of scores on the medical aptitude test, their college grades, and other personal experiences and qualifications as revealed in the application.

The process excluded virtually almost all members of minority groups.

Even when they were fully qualified for places because there scores by enlarge were lower on the cognitive test and in college grade point averages.

Alright, there were no black students and no Chicanos in the class entering Davis in 1968.

If one puts to one side the predominately black medical schools, Howard and Meharry lasted off 1%, eight-tenths of 1% of all medical students in the United States were black in the year 1968, 1969.

In 1969, the faculty at Davis concluded the drawing in the medical college, qualified members of minorities, minorities long victimized by racial discrimination would yield important educational professional and social benefits.

It then chose one variant of the only possible method of increasing number.

It established what came to be known as the Task Force Program following the name of then program established by the Association of American Medical Colleges, which would select there were only 50 in the entering class at that time, which would select eight educationally but fully qualified — select eight educationally or economically disadvantaged but fully qualified minority students for inclusion among the 52 in the entering class.”

Against

Then in opposition, representing Bakke, attorney Wade H. McCree claims, “The interest of the United States of America is amicus curiae stands from the fact that the Congress and the executive branch have adopted many minority sensitive programs.

They take race or minority status into account in order to achieve the goal of equal opportunity.

The United States is also concluded that voluntary programs to increase the participation of minorities in activities throughout our society.

Activities previously close to them should be encouraged and supported.

Accordingly, it asks this Court to reject the holding of the Supreme Court of California if race or other minority status may not constitutionally be employed in affirmative action and special admissions programs properly designed and tailored to eliminate discrimination against racial and ethnic minorities as such discrimination exist today or to help overcome the effects of past years of discriminations.

This Court does not require a recital of the extent in duration of racial discrimination in America from the time it was enshrined in our very Constitution in the three-fifths comprise, in the fugitive slave provision and in the provision preventing the importation of such persons prior to1808.

And it continues until the present day as the over burden dockets of the lower federal courts and indeed of this Court will indicate where there’s been non-compliance with the decisions of this Court that it rediscovered and are still rediscovering the true genius of the Fourteenth Amendment.

Indeed, many children born in 1954, when Brown was decided are today 23 years later the very persons knocking on the doors of professional schools seeking admission about the country that they are persons who in many instances have been denied the fulfillment of the promise of that decision because of resistance to this Court’s decision that was such a landmark when it was handed down.

And this discrimination has not been limited just to persons of African ancestry.

We all know too well the Asian Exclusion Acts that have discriminated against Asian-American citizens.

The sad history of our native American-Indian population and the treatment of our Hispanic population sometimes called Chicano.

This is what prompts the interest of the United States in seeing that this Court shall overturn the ruling of the California Supreme Court, the race or minority status may not be taken into consideration in formulating remedial programs.

A Professor Zimmer at the University of Illinois has written, if the ultimate social reality is the irrelevancy of race, the present reality is that race is very relevant.

Accordingly, it would be appear that to be blind to race today is to be blind to reality.

Now as we’ve argued in our brief, a school district may take race into account in formulating voluntary plans of integration.

We’ve argued and this Court has held that it need not to await litigation and it may take into account not only its own discrimination but also the consequences of discrimination elsewhere in our society because the impact of discrimination is not limited by source or locality.”

Justices:

The plurality opinion slip was written by Justice Lewis Powell, for each justice has different thoughts on the case. He wrote, “In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class.

The fatal flaw in petitioner’s preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. at 22. Such rights are not absolute. But when a State’s distribution of benefits or imposition of burdens hinges on ancestry or the color of a person’s skin, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the California court’s judgment holding petitioner’s special admissions program invalid under the Fourteenth Amendment must be affirmed.”

In a separate opinion, Justice William Brennan wrote, “Finally, Davis’ special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants, rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudication, there is no difference between the two approaches. In any admissions program which accords special consideration to disadvantaged racial minorities, a determination of the degree of preference to be given is unavoidable, and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis. Furthermore, the extent of the preference inevitably depends on how many minority applicants the particular school is seeking to admit in any particular year, so long as the number of qualified minority applicants exceeds that number. There is no sensible, and certainly no constitutional, distinction between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission of an approximately determined number of qualified minority applicants and setting a fixed number of places for such applicants, as was done here.

The ‘Harvard’ program, as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students. That the Harvard approach does not also make public the extent of the preference and the precise workings of the system, while the Davis program employs a specific, openly stated number, does not condemn the latter plan for purposes of Fourteenth Amendment adjudication. It may be that the Harvard plan is more acceptable to the public than is the Davis ‘quota.’ If it is, any State, including California, is free to adopt it in preference to a less acceptable alternative, just as it is generally free, as far as the Constitution is concerned, to abjure granting any racial preferences in its admissions program. But there is no basis for preferring a particular preference program simply because, in achieving the same goals that the Davis Medical School is pursuing, it proceeds in a manner that is not immediately apparent to the public.

Accordingly, we would reverse the judgment of the Supreme Court of California holding the Medical School’s special admissions program unconstitutional and directing respondent’s admission, as well as that portion of the judgment enjoining the Medical School from according any consideration to race in the admissions process.”

Finally Justice John Paul Stevens also wrote his own separate opinion. (Will be added in later when found. N/A at the moment.)

My Opinion:

In this case, I partially agree with the plurality opinion. Not only is it completely unfair, it is unconstitutional for one to base college admissions solely off of race, or even consider race as a factor in their decision at all. The Fourteenth Amendment clearly states “equal protection under the law.” Using race as a factor completely violates a person’s Fourteenth Amendment right, let alone basing college admissions solely off race.

For example, if a Caucasian were to work all day and night on their academics and received straight As in order to get into their dream college and then another person who’s a minority, were to merely receive straight Cs without trying very hard, the minority will get chosen for diversity reasons. Now I ask you, what is so beneficial about diveristy? In what way will it benefit the students’ education and how they learn? In no way. The Caucasion clearly deserved that spot and their constitutional rights were infringed upon. I believe that every college should be colorblind and admit students based on their substance and not the color of their skin.

It is absolutely absurd that any college would decide admissions only based on race. A person has to meet the race requirements or else they have no chances of being admitted. In no way is that constitutional. Anyone who deserves the spot at that college should get it, no exceptions. The color of their skin should not even cross the admitter’s mind.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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Plessy v. Ferguson: Railroad Segregation “Separate But Equal” (04/13/1896)

Plessy v. Ferguson

Is Louisiana’s law mandating racial segregation on its trains an unconstitutional infringement on both the privileges and immunities and the equal protection clauses of the Fourteenth Amendment?

Argued: 03/18/1896

Decision Date: 04/13/1896

Decision Record: 7-1; no

Justices Majority: Melville Fuller, Stephen Field, Horace Gray, Henry Brown, George Shiras, Edward White, Rufus Peckham

Justices Dissenting: John Harlan

Effect of the Decision

This case held that racial segregation between the whites and the black were considered constitutional as long as they were “separate but equal.”

In Favor

Plessy was represented by attorneys, A. W. Tourgee and Samuel Field Phillips.

Against

Then in opposition, Ferguson was represented by attorney Alexander Porter Morse.

Justices

On the majority side, the opinion was written by Chief Justice Marshall. In his opinion, he wrote, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher: this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chaver, 5 Jones [N.C.] 1, p. 11); others that it depends upon the preponderance of blood (Gray v. State, 4 Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three-fourths. (People v. Dean, 4 Michigan 406; Jones v. Commonwealth, 80 Virginia 538). But these are questions to be determined under the laws of each State, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.”

Then in dissent, Justice Harlan wrote, “I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.”

My Opinion:

In this case, I think the “separate but equal” clause could work both ways, depending on how it is used. Under the Fourteenth Amendment, it says that everyone has “equal protection under the law.” So for example, if segregation were to be used properly, like it states in this case, then maybe it’d be considered constitutional. In situations like schooling, if two different races were segregated to attend different schools, but the schools taught the exact same things and provided the same treatment for everyone, then under the Fourteenth Amendment, that would still be “equal protection under the law.” However, when segregation was implemented, that was not how things worked out. The blacks and whites were obviously not treated equally, which completely violates the “separate but equal clase.” But in other cases such as the train one that resulted segregation on trains, would be unconstitutional, for Plessy, who was seven-eighths white, was not allowed to sit on the white side of the train. There are just some cases where you cannot be “separate but equal” if you tried. Overall, the idea of segregation and “separate but equal” may be constitutional, but because in the real world, racism would be inevitable no matter what situation you consider, the result would be unconstitutional.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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Swann v. Charlotte-Mecklenburg Board of Education: Federal Courts Remedying Segregation (04/20/1971)

Swann v. Charlotte-Mecklenburg Board of Education

Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation?

Argued: 10/12/1970

Decision Date: 04/20/1971

Decision Record: 9-0; yes

Justices in Favor: Warren Burger, Hugo Black, William Douglas, John Harlan, William Brennen, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun

Justices Dissenting: None

 

Effect of the Decision

This case clarifies that federal courts are constitutionally authorized to amend state-imposed segregation.

 

In Favor

In representation of Swann, attorney Julius Levonne Chambers argued, “The Fourth Circuit adopted a new reasonableness test, approved the plan of the District Court for the junior and senior high schools, and vacated the decision and directed further consideration of a plan for the elementary schools requiring that the District Court apply a reasonableness test.

The plaintiff’s petitioned this Court for certiorari, this Court granted certiorari in Number 281 on June 30, reinstated the District Court’s plan of desegregation and authorized further hearing by the District Court as had been directed by the Fourth Circuit.

The District Court conducted further hearings during July 1970.

And on August 3, 1970, applying the Fourth Circuit’s new test of reasonableness found a plan and had directed in February 1970 to be reasonable and reinstated its February 5th order.

The school board appealed to the Fourth Circuit and petitioned this Court for certiorari prior to the decision by the Fourth Circuit.

This Court granted that petition on October 6th, along with the petition of the school board to review the plan of the court with respect to the junior and senior high schools which the Fourth Circuit had approved as reasonable.

The court therefore has before it, the complete plan of the District Court which had been directed in February 1970, and re-approved by the District Court on August 3rd, 1970.

We think that the decision of the District Court can be sustained under the equitable discretion of that court as authorized by Brown.

We submit however, that the constitutional principles by which the District Court was guided particularly the requirement for the elimination of all Black and racially identifiable Black schools.

On this record and under the circumstances of this case, we’re clearly correct and should be sustained by this Court.”

Against

Then in opposition, representing the Charlotte Mecklenburg Board of Education, attorney Erwin N. Griswold claims, “It has been a long road, we’ve made substantial progress and this is evidenced by the fact that few today question the central rightness of the decision which was reached by this Court in Brown against the Board of Education 16 years ago.

It’s true that 16 years have passed, but in this connection that may be observed that the Brown case itself was twice argued in this Court, and before the initial decision, that it was pending here for two-and-a-half years before it was decided.

It was also here in additional year or a total of three-and-a-half years when the case was set down for further argument with respect to remedy.

For many years, there was a serious problem simply in getting the decision accepted.

I need not recall Little Rock and Oxford in the confrontation at the University of Alabama.

All of that is in the past now, and fortunately and wisely so.

Because of this situation, the court has only recently had occasioned to consider the many problems of detail, which arise in the application of the Brown decision.

On the basis of a careful survey, I find that there are 25 school cases which have been decided on the merits by this Court in the 16 years since Brown was decided.

Many of these are per curiam decisions.

One was Cooper and Aaron which arose out of the Little Rock situation.

Other cases involved various aspects of so-called massive resistance and interposition, such as Bush against the Orleans Parish School Board.

Then only six years ago, in Griffin against Prince Edward County, the court held the schools could not be closed while public money was meant to support private White only schools.

During these years, many hundreds of cases were decided in lower federal courts and great determination and courage was shown there.

Not until recently, however, has this Court had occasioned to focus on detailed aspects of the problem.

At first in the Brown case, there was only the start question, whether legally enforced segregation was consistent with the constitution.

This Court rightly held that it was not.

The problem was inappropriately remitted to the school boards and the local courts to work out the details.

As might be expected, it has been found to be a vastly complex problem.

One can look at it first with a glass, and then with the microscope, and the complexities and the infinite variations soon appear.

Actually, it has been only in the past few years that this Court has had occasion to deal with any of these matters of application in detail.

For many years, school boards and the courts too, to a considerable extent had felt that compliance was reached under freedom of choice plans.

It was only two years ago last May that the court held that freedom of choice plans alone were not adequate when they did not achieve a unitary school system.

As for one reason or another, they almost never do.

And it was only a year ago last June in the Montgomery County Board of education case that the court held for the first time, that a District Court could properly require allocation of White and Black faculty members in equal proportions to all schools.

And there is nothing which more clearly marks a school as Black as that it has a wholly Black faculty.

Now, we have another problem, in the application of the Brown decision, an extremely important and difficult problem.

I think I can put the issue this way without too much over simplification.

What is the standard to be applied, or the objective to be sought by a school board or by a court in reviewing what the school board has done is the standard or objective to achieve racial balance?

Or on the other hand, is the standard or objective to disestablish a dual school system and to achieve a truly unitary system.

Our position is that the latter is the correct formulation of the objective.

We cannot find more in the constitutional command of Equal Protection of the laws or of Due Process of law which as far as I know, are the only constitutional provisions and likewise the most specific constitutional provisions involved in this case.

Before going further, I would like to make it as plain as I can that this not a retreat.

There must not be a retreat in this area, where so much has already been done to redeem the promise of America.

I recognized too that determining what is truly a unitary school system may in actual cases present practical problems of very great difficulty.

My central position is that there is not any basis for saying that this can only be achieved through racial balance.

At this point, I would like to observe that counsel for the petitioners disclaim the phrase racial balance, both in their briefs and in the argument today, but I find a passage in a brief which was filed late last week.

Actually it’s in number 436, the Mobile case which will be argued tomorrow, this is a supplemental brief for the petitioners in Mobile on page three, where at the bottom of the page, the same counsel say, petitioners submit that Mobile’s experience under the Fifth Circuit plan underscores and this is — it seems to me, their statement of their contention.”

Justices:

The majority in this case was unanimous in the side of Swann. In the opinion slip, written by Chief Justice Warren Burger wrote, “The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term “reasonableness.” In Green, supra, this Court used the term “feasible,” and, by implication, “workable,” “effective,” and “realistic” in the mandate to develop “a plan that promises realistically to work, and . . . to work now.” On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity.

At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. The systems would then be “unitary” in the sense required by our decisions in Green and Alexander.

It does not follow that the communities served by such systems will remain demographically stable, for, in a growing, mobile society, few will do so. Neither [p32] school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but, in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.

For the reasons herein set forth, the judgment of the Court of Appeals is affirmed as to those parts in which it affirmed the judgment of the District Court. The order of the District Court, dated August 7, 1970, is also affirmed.”

My Opinion:

In this case, I agree with the majority. The lower courts should be allowed to attempt to solve for state-imposed segregation. They have the authority to make those type of decisions. The state-imposed segregation should not have been “imposed” in the first place. The Fourteenth amendment specifically states that all citizens have equal protection of the law. Segregation would be a violation of that. Therefore, federal courts should be constitutionally authorized to rectify state-imposed segregation.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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Loving v. Virginia: Interracial Marriage (06/12/1967)

Loving v. Virginia

Did Virginia‘s antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment?

See Fourteenth Amendment for more.  

Argued: 04/10/1967

Decision Date: 06/12/1967

Decision Record: 9-0; yes

Justices in Favor: John Harlan, Hugo Black, William Douglas, Potter Stewart, William Brennan, Byron White, Earl Warren, Tom Clark, Abe Fortas

Justices Dissenting: None

 

Effect of the Decision

This case abolished Virginia’s antimiscegenation law, which prohibited inter-racial marriage, because it violated the Fourteenth Amendment.

 

In Favor

In the side of the affirmation, representing the Lovings, attorney Philip J. Hirschkop argued, “You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law.

We referred to the law itself — oh at first, I’d like to bring the Court’s attention, there are some discrepancy in the briefs between us and the common law especially as to which laws are in essence.

They have particularly said that Section 20-58 and 20-59 of the Virginia Code are the only things for consideration by this Court, and those two Sections, of course, are the criminal section, making a criminal penalty for Negro and white to intermarry in the State of Virginia.

20-58 is the evasion section under which this case particularly arose which makes it a criminal act to people who go outside the State to avoid the laws of Virginia to get married.

We contend, however, Your Honors that there is much more in essence here.

That there’s actually one simple issue, and the issue is, may a State proscribe a marriage between two adult consenting individuals because of their race and this would take in much more in the Virginia statutes.

Sections 20-54 and 20-57 void such marriages and if they void such marriages, you would only decide on 20-58 and 20-59, these people, whether they go back to Virginia and they are in Virginia now, will be subject to immediate arrest under the fornest — fornication statute, and the lewd and lascivious cohabitation statute and more than that, there are many, many other problems with this.

Their children would be declared bastards under many Virginia decisions.

They themselves would lose their rights for insurance, social security and numerous other things to which they’re entitled.

So we strongly urge the Court considering this to consider this basic question, may the state proscribe a marriage between such individuals because of their race and their race alone.”

Against

In the opposition, represented by attorney Bernard S. Cohen, he claimed, “While there is no doubt in our minds that these statutes are unconstitutional and have run afoul of the Equal Protection Clause of the Fourteenth Amendment, we urge with equal strength that the statutes also run afoul of the Due Process Clause of the Fourteenth Amendment.

Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko versus Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Myer versus Nebraska and Skinner versus Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment.”

Justices:

The majority decision for Loving was unanimous. Justice Earl Warren wrote the opinion slip. He wrote, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

My Opinion:

In this case, I agree with the majority opinion. The Fourteenth Amendment clearly expresses that each individual has equal rights, no matter their race. Everyone has the right to marriage. Interracial marriage is just two people of different races exercising their individual rights. The Equal Protection Clause holds that “no states shall deny to any person within its jurisdiction ‘the equal protection of the laws.'” The antimiscegenation law completely contravenes the Equal Protection Clause, because it forbids marriage of different races, when the Clause states that everyone has their own rights, despite their skin color.

Virginia’s antimiscegenation law strongly violates the constitutional right to the Fourteenth Amendment, and so therefore, I affirm the majority opinion.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right