ConLaw II Quotes and Arguments Flashcards Preview

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Flashcards in ConLaw II Quotes and Arguments Deck (158):
1

“The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, [cannot] be pursued by the illegitimate means of racial discrimination . . . .”

Richmond v. Croson (1989)Scalia (concurring):

2

"(1) Was federal reconstruction legislation race-conscious or race-neutral? Congress adopted many social welfare laws after the Civil War that seem to expressly benefits blacks only. e.g., the 1865 Freedmen’s Act created a bank for “persons heretofore held in slavery in the United States, or their descendants.”

Note: Affirmative Action and Original Intention

3

"(2) Did federal reconstruction law even take the 14th Amendment into account?The 14th Amendment applies to the states, not the federal government. Hypothetically, if the P&I clause were substantive (it’s not—Slaughterhouse), then all “citizens” have certain privileges and immunities, and under the 14th Amendment, all persons born in the U.S. are citizens—equally. So, if every citizen of the U.S. has equal rights, then that would forbid classifications by state and federal government. "

Note: Affirmative Action and Original Intention

4

"(3) Did the Framers subscribe to “color-blindness”?Total non-discrimination was actually considered too radical, because that would have provided no basis for keeping blacks out of the voting booth. The Framers instead used open-ended phrases of civil equality, like “privileges and immunities” and “equal protection.” The framers of the 14th Amendment plainly didn’t expect that blacks were to be made socially and politically equal to whites (there were way too many race-conscious laws that cut against that kind of equality). *If the framers intended only for civil equality before the law, then should an “originalist” fight against any classification that promotes social (e.g., education, welfare) or political (e.g., voting, running for office) equality before the law?"

Note: Affirmative Action and Original Intention

5

"[T]he fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system."

Gratz v. Bollinger (2003)

6

"Any argument that the 'tailoring' amounts to a set-aside, then, boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not."

Gratz v. Bollinger (2003)Souter, Ginsburg (dissenting)

7

"Conclusion: Judicial recognition of race-based behavior should instead arise from an inquiry into the behavior's "cultural meaning"—how the behavior is viewed by the culture. Is the action viewed as a symbolic message to which the culture attaches racial significance? Example: a wall constructed between a white and a black community. Even if the intent is to reduce traffic (not just black traffic), the cultural meaning of the wall will have significant racial undertones and thus perpetuate the power structure courts seek to counter. A narrow inquiry into intent would not (and did not, since this was a real case from 1981) recognize race-based behavior. This will have the added benefit of removing the stigma people attach to violators of prohibitions on discriminatory practices. Courts will condemn the effect, not the offender, so there's less cause for hard feelings. "

Commentaries: Lawrence

8

"Courts should employ an “anti-subordination” perspective. “This approach seeks to eliminate the power disparities between men and women, and between whites and non-whites, through the development of laws and policies that directly redress those disparities.” This approach provides a substantive explanation for why we tolerate some classifications (intelligence, age, ability, etc.) and not others (race, sex, etc). “Anti-subordination proponents therefore advocate the use of race- or sex-specific policies, such as affirmative action, when those policies redress the subordination of racial minorities or women.” "

Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection

9

"Critical mass" is just a "naked effort to achieve racial balancing." The University does not apply the plan equally to all races—statistics support that the plan heavily favored AAs. Why is a smaller number of Hispanics relative to AAs the right amount for "critical mass" in a class of 350 students?The University wasn't just paying "some attention" to the racial make-up of the class. The number of admitted students in each race tracked precisely with the number of applicants from that race.

Grutter v. Bollinger (2003)Rehnquist, with Scalia, Kennedy, Thomas (dissenting)

10

"Critical mass" is just a disguise for using race as an automatic factor. Race is likely outcome determinative for the 15–20% of students who don't have high enough numbers to get in on their own. The automatic acceptance was especially prevalent at the end of the admissions period, when the school would quickly admit minorities to meet its targeted goal. During this period, individual consideration went out the window. When the Court gives this much deference to universities, it doesn't challenge the schools to seriously consider race-neutral alternatives.When the Court does this, I am unable to approve of classifications, even if I agree that the classification is based on diversity, which is a compelling interest.

Grutter v. Bollinger (2003)Kennedy (dissenting)

11

"In my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction."

Adarand Constructors v. Pena (1995)Scalia (concurring):

12

"Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."

Grutter v. Bollinger (2003)Thomas (concurring, dissenting)

13

"Our jurisprudence ranks race as a 'suspect' category, 'not because [race] is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality.' But where race is considered 'for the purpose of achieving equality,' no automatic proscription is in order . . . ."

Gratz v. Bollinger (2003)Ginsburg (dissenting)

14

"Reasons for the “suspect classification” doctrine: Preventing “first degree prejudice”—harming and vilifying a group for no reason other than to disadvantage its members. Preventing “second degree prejudice”—harm that results from attempts to promote some legitimate social goal by the use of “a generalization whose incidence of counterexample is significantly higher than the legislative authority appears to have thought it was.” Identifying second degree prejudice is difficult and involves “balancing the increase in fairness that greater individualization will produce against the added costs it will entail.” One sign of too-costly generalizations might be when the generalizations serve the interests of the decision makers, for example by supporting positive myths, like whites are smarter or men are more stable emotionally. "

Ely, Democracy and Distrust

15

"Sexual identity is a crucially relevant category within our culture—arguably even more important than race. We live in a patriarchal society in which it matters enormously whether a person is male or female. But to be female, unlike being black, is to be regarded as different but not necessarily a creature of less worth. Women are both put on a pedestal and deemed not fully developed persons—they are idealized and their admiration is highly sought after. Because sexism is so complicated, it is hard to identify and eradicate—some people would even openly admit to being sexist while no one would openly admit to being a racist. Thus, sexism is deeply imbedded in our culture and institutions. "

Wasserstrom, Racism, Sexism, and Preferential Treatment

16

"Status - race as an indicator of social status (usually stereotypically negative)Formal - skin color alone

What is ‘Race’ for Purposes of the Equal Protection Clause?

17

"Stereotypes about women have been around forever and have cost women dearly, even if they may be rooted in a sort of good humor and protectionism. However, it must also be recognized that women are out in the open (unlike homosexuals) and are technically not even a minority. But despite this, it seems right to claim that women have been operating at an unfair disadvantage in the political process. Although it’s hard to pinpoint why. Have women for a long time chosen that diminished participation, accepting their role as given?The persistence of this disparity is further complicated by the fact that a sufficiently pervasive prejudice can block its own correction by not only keeping its victims in the closet, but also convincing even them of its correctness."

Ely, Democracy and Distrust

18

"The 14th Amendment rejected all reasons for treating blacks differently, no matter how “reasonable” (Plessy). It is laughable to suggest that “equality” can be achieved under segregation—we all know how ridiculous it is to say that it is “better” for blacks to be separated. "

Charles Black, The Lawfulness of the Segregation Decisions

19

"The anti-discrimination principle guards against harmful results. Race-based decisions are based on assumptions of intrinsic worth and selective indifference, which inflicts psychological injury by stigmatizing victims as inferior. See Strauder (14th Amendment protects blacks from “legal discriminations, implying their inferiority in civil society) and Harlan Dissent from Plessy (separation placed a “badge of servitude” on blacks, implying that they are “inferior and degraded”). Since race is immutable, victims of racial generalizations feel they have been unfairly judged without regard to their actual behavior or character. The harmful effects tend to be cumulative—being denied one opportunity deprives a person of other opportunities later on, so the harm multiplies. "

Brest: In Defense of the Antidiscrimination Principle

20

"Viewing discrimination from the lens of social cognition theory:Stereotyping is something everyone does—it is simply a process of categorization. Stereotyping is a cognitive process, rather than motivational. It operates before the moment of decision and affects the unconscious thought process. This, stereotypes "sneak up" on the decision maker, distorting bit by bit each piece of data analyzed in the decision process. Viewed from this lense, it's clear that discrimination is automatic—it does not result from a motive or intent to discriminate. It's an unwelcome byproduct of otherwise adaptive cognitive processes. Even the most "color-blind" decision maker will fall prey to these biases. Conclusion: causality is the better inquiry—not intent. "

Commentaries: Krieger

21

(1) Diversity promotes mutual understanding between students of different races.(2) Diversity better prepares students to enter a diverse workforce.(3) Elite minorities: Law schools supply a disproportionate the nation's leaders, so they need to maintain high admissions standards while promoting diversity. Sweatt; also compare with hiring in the military.(4) Legitimacy for the University: The school has an interest in appearing legitimate before the citizenry, that its paths are “visibly open” to people of every race and background.

Grutter v. Bollinger (2003)

22

(Compelling purpose): Diversity is the only compelling interest offered. “[T]he attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body[, favoring] students who will contribute the most to the ‘robust exchange of ideas’ . . . .”

Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):

23

(Important purpose): The academies were developed in response to a crisis facing young AA boys manifested by high homicide, unemployment, and drop-out rates. This is an important objective. (Not substantially related): Board has not demonstrated that excluding girls from the classes serves the purpose. Female students in Detroit are facing the same obstacles. The schools impermissibly rely on gender as a “proxy” for at-risk individuals. “Ignoring the plight of urban females institutionalizes inequality and perpetuates the myth that females are doing well in the current system.” There is also no evidence that co-ed schools will not serve the interest, i.e. that co-ed schools have failed to protect boys from the risks.

Garrett v. Board of Education … (E.D. Mich. 1991)

24

(No compelling purpose): There is no legitimate purpose independent of invidious racial discrimination and maintaining White Supremacy.

Loving v. Virginia (1967)

25

(No important purpose): Stated purpose: compensating for past discrimination. The State has not carried its burden for this purpose. Has not demonstrated with evidence that women suffered a disparity of opportunity in this field. In fact, history supports this to be a female-dominated field. This law only further perpetuates the stereotype that nursing is a woman’s job. (Not substantially related): The law allows men to audit classes, so this undermines the claim that women are adversely affected by the presence of men.

Mississippi Univ. for Women v. Hogan (1982)

26

(Not narrowly tailored): The quota is too rigid, forbids individualized determination and consideration of other elements of diversity. By contrast, Harvard race is deemed a “plus” but does not insulate individuals from comparison with everyone else. The Harvard plan “consider[s] all pertinent elements of diversity in light of the particular qualifications of each applicant . . . .”

Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):

27

... is based on “an over-broad sex-based generalization.” The Court characterizes the plan as rational ..., but this Court has rejected even rational and empirically-supported “official actions that classify unnecessarily and over broadly by gender when more accurate and impartial functional lines can be drawn.” This law is “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for non-marital children.”

Nguyen v. INS (2001)O’Connor, with Souter, Ginsburg, Breyer (dissenting):

28

4-H and Homemaker Clubs were still de facto segregated (had been de jure until the CRA 1964) in 1980. The Court held that Greene’s affirmative duty didn’t apply to clubs that no one was compelled to join—much like no one is compelled to go to college, much less the college of their choice.

Bazemore v. Friday (1986)

29

A state or local entity can take action to remedy identified discrimination within its jurisdiction—if there was evidence of non-minority contractors systematically excluding minority contractors, “the city could act to dismantle the closed business system by taking appropriate measures against those who discriminate on the basis of race . . . .” Only in an “extreme case” could the City use a race-based group remedy—would need extensive showing of system-wide discrimination.

Richmond v. Croson (1989)

30

Absent being present at birth, “it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock.” “There is nothing irrational or improper in the recognition that at the omen of birth—a critical event in the statutory scheme and in the whole tradition of citizenship law—the mother’s knowledge of the child and the fat of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype.”

Nguyen v. INS (2001)

31

Absent “searching judicial inquiry,” there is no way to distinguish b/w a “benign” classification and an “invidious” one. We agree with Powell’s statement from Bakke that equal protection cannot mean different things to different races.

Richmond v. Croson (1989)(O'Connor makes these same points in Adarand)

32

Agree the law is unconstitutional under 5th Amd. BUT Sex should not be included as a suspect classification. Reed controls this case perfectly and reaches the same outcome. The Court should not jump ahead of the democratic process on sensitive issues like sex discrimination when, as is the case here, the legislature is just a step away from doing so (Equal Rights Amendment). “[D]emocratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.”

Frontiero v. Richardson (1973)Powell (concurring)

33

American schools are heavily segregated, and this puts desegregation plans in jeopardy. “[W]e have not yet realized the promise of Brown. … The plurality’s promise, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”

Parents Involved in Community Schools v. Seattle School Dist. (2007)Breyer (dissenters)

34

An “integrated school system” doesn’t necessarily mean totally non-racially-identifiable. It means that the state in as many ways as it’s involved in the racial makeup of the school is affirmatively seeking to racially integrate. “[I]f, after such detailed and complete public supervision, substantial school segregation still persists, the presumption is strong that the school board, by its acts or omissions, is in some part responsible.” The burden then must fall on the school board. Busing should be approached with caution, as with “any proposal as disruptive of family life and interests”—the focus should be “the best quality education for all pupils.”

Keyes v. School District No. 1, Denver, Colorado (1973)Powell (concurring in part, dissenting in part):

35

Brown II required as an initial step banning the exclusion of black students, but “that immediate goal was only the first step . . . . The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about . . . .” The school didn’t demonstrate that “its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation.” The means (freedom of choice) isn’t in itself unconstitutional, but it is not a permissible end. If it is ineffective, other means must be employed. School boards have “the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”

Green v. New Kent County School Board (1969)

36

But “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another”—especially if “the discrimination is very difficult to explain on nonracial grounds” (e.g. excluding blacks from juries).

Washington v. Davis (1976)

37

Classifications like this hurt minorities.The University "baits" students with the prospect of prestige and success that comes with a UM law degree—but they cannot achieve it because they are not intellectually up to the task. They are paternalistic and engender attitudes of superiority. They even hurt those AAs that get in on their own merit—the question will follow them wherever they go...were they just admitted because they were given a boost, or did they really earn it?

Grutter v. Bollinger (2003)Thomas (concurring, dissenting)

38

Congress did not intend to guarantee everyone a job. “What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”

Griggs v. Duke Power (1971)

39

Congress has special powers under § 5. There was solid evidence of past discrimination, and a group remedy was appropriate since individual remedies weren’t possible. By participating in the status quo, the federal government was essentially perpetuating a discriminatory system.

Fullilove v. Klutznick (1980)Burger (with White, Powell):

40

Defendant cannot rely on studies demonstrating racism in the system overall—he “must prove that the decisionmakers in his case acted with discriminatory purpose.” He would also have to demonstrate that Georgia kept its capital sentencing system in place because of its disparate impact on blacks. The criminal justice system necessarily requires discretionary judgments—we must demand exceptionally clear proof that that discretion was abused here. A nationwide study is insufficient to address what happened in this particular case.

McCleskey v. Kemp (1987)

41

Differential wage laws (disparity in freedom of K) between men and women cannot be justified on “physical differences.” Inequalities between men and women “have now come almost, if not quire, to the vanishing point[,]” so there is less reason for protecting women with laws. The Nineteenth Amendment has emancipated com an “from that old doctrine that she must be given special protection . . . .”

Adkins v. Children’s Hospital (1923)

42

Disparate impact “[s]tanding alone,… does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.” Discriminatory purpose or intent has always been the constitutional starting point. See Keyes (requiring “a current condition of segregation resulting from intentional state action”); Strauder (excluding a black juror was unconstitutional, but there was no requirement that juries proportionally reflect the community).

Washington v. Davis (1976)

43

Distinguished Batson - in those cases, the State has an opportunity to put the decision maker on the stand to offer a non-discriminatory reason for the decision. Here, the State has no practical opportunity to challenge the study, and can’t put the jurors or prosecutors on the stand.

McCleskey v. Kemp (1987)

44

Diversity in classrooms is not a compelling interest. If diversity is meant to help students see each other as individuals, treating them as members of a racial group is “fundamentally at cross-purposes with that end.” Brown requires color-blindness: “Before Brown, school children were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. … The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Parents Involved in Community Schools v. Seattle School Dist. (2007)Roberts (plurality):

45

Diversity is not a compelling interest. The University talks about using diversity to prepare its students for joining a diverse workforce, but being able to mix well with people from different backgrounds is not something the law school can/should/does concern itself with. There are no classes the school uses for this that students can put on their transcript. And there's nothing the law school can teach students that they can't learn on their own—these are life lessons, not lessons in law.

Grutter v. Bollinger (2003)Scalia, with Thomas (concurring, dissenting)

46

Equal protection is a personal right. “Classifications based on race carry a danger of stigmatic harm.”

Richmond v. Croson (1989)

47

Equal protection is about making individuals whole, not an entire race—”[U]nder our Constitution, there can be no such thing as a creditor or a debtor race."

Adarand Constructors v. Pena (1995)Scalia (concurring):

48

Everyone knows this law isn’t about separating the races—it’s about excluding blacks from wherever whites are. The law perpetuates a caste system. No law that does this can be Constitutional. “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

PlessyHarlan (dissenting)

49

Facts: University integrated but forced segregated seating in classrooms, libraries, and the cafeteria.Held: UNCONSTITUTIONAL. Such segregation hinders students’ “ability to study, to engage in discussions, and exchange views with other students, and, in general, to learn [their] profession.”

McLaurin v. Oklahoma (1950)

50

Fails a “but for” test of discrimination. Washington v. Davis and Arlington heights made it clear that evidence of discriminatory intent is necessary to prove a constitutional violation in disparate impact cases. There is a two-part inquiry: (1) Is the law facially neutral? (2) If facially neutral, has the state undertaken the law with a discriminatory purpose? "Discriminatory purpose" implies more than awareness of consequences—it's about intent, “because of” not merely “in spite of.”

Personnel Administrator v. Feeney (1979)

51

Govt’s rationale for the law: reducing admin costs. 99% of uniformed services is male; women are usually the dependents, so it would cost more money to make male servicemen to show need for spousal support as women have to.

Frontiero v. Richardson (1973)Brennan, with Douglas, White, Marshall (plurality):

52

Held: CONSTITUTIONAL. The classification here is between “domestic” disputes and “non-domestic” disputes—not men and women. The plaintiff failed to show that sex was a motivating factor in the decisions.

Hynson v. City of Chester (3d Cir. 1988)

53

Held: The right to vote is not included in the rights of a “citizen” under the 14th Amd. At the time, many states granted citizenship and voting rights in disparate ways. Section 2 of the 14th Amendment specifically refers to the voting rights of males.

Minor v. Happersett

54

Held: UNCONSTITUTIONAL. The redrawing was clearly motivated by discriminatory purposes—no other conclusion was even possible. It was “irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislature is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.”

Gomillion v. Lightfoot (1960)

55

Higher Ed /= primary and secondary schools. Universities can serve specific missions and accept those that meet the mission. BUT the adoption of race-neutral policies alone is insufficient to affirmatively dismantle the state’s prior dual university system. Four policies in particular are traceable to the prior de jure system: (1) Admissions standards - Only 30% of black students get the required score. The flagship schools require a higher score. Focusing on grades more instead would significantly reduce the gap. (2) Program duplication - As with separate-but-equal, the schools seem to have unnecessary duplication with the only difference being racial makeup. (3) Institutional mission assignments - The missions are suspiciously aligned with the racial makeups of the schools. (4) Continued operation of all eight universities - This many schools is “wasteful and irrational” except for the goal of operating separate, equal schools. On remand, the court should determine whether these policies are educationally justifiable, or merely serve to perpetuate racial identifiability.

United States v. Fordice (1992)

56

History not helpful in determining original Framers’ intent for 14th Amd and public school racial segregation. There were racially segregated schools back then, but education was very different, and less important at that time. Separate but equal in education is unconstitutional. Even in light of equal “tangible factors,” it’s inherently unequal in the public education context—stamps black children with a badge of inferiority and deprives them of important opportunities available to whites. “Intangible factors” are impossible to overcome. Sweatt. Separating black students from whites affects black students psychologically and impedes the learning process (supported with social science material that has since been refuted).

Brown v. Board of Education I (1954)

57

I agree with O’Connor that racial classifications must be subjected to the “most rigorous scrutiny.” “The moral imperative of racial neutrality is the driving force of the Equal Protection Clause.”—BUT “a rule of automatic invalidity . . . would be a significant break with our precedents . . . .”

Richmond v. Croson (1989)Kennedy (concurring):

58

Implementation of Brown I requires solution of “varied local school problems.” The local courts can best handle this, guided by principles of equity. The “personal interest of the plaintiffs” to be admitted is at stake. The courts should require the schools to “make a prompt and reasonable start toward full compliance”—“good faith compliance at the earliest practicable date”—“all deliberate speed.”

Brown II (1955)

59

Integration by the courts has not produced the educational benefits once believed. HBC’s in this respect “can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.”

Missouri v. Jenkins (1995)Thomas (concurring):

60

IS applies—state must offer an “exceedingly persuasive” justification for the classification. Inherent differences between men and women are “cause for celebration, but not for . . . artificial constraints on an individual’s opportunity.” “[S]uch classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

United States v. Virginia (1996)

61

IS should apply, not SS. Whites lack the traditional indicia of suspectness: the class is not saddled with disabilities, or subjected to a history of purposeful unequal treatment, or relegated to a position of political powerlessness. Also, SS would most likely be fatal in fact—it would spell the end of affirmative action. IS should apply because there are of course ways in which a “benign” policy is actually invidious.

Regents of the Univ. of California v. Bakke (1978)Brennan, with White, Marshall, Blackmun (dissenting):

62

It is not always clear when a classification is "benign."

Adarand Constructors v. Pena (1995)(O'Connor makes this same point in Croson)

63

Laid out factors for finding discriminatory intent:(1) impact of official action - e.g., Yick Wo(2) historical background - e.g. Guinn; Lane(3) specific sequence of events leading up to he decision(4) departures from the normal procedural sequence(5) substantive departures from the expected decision (6) legislative or administrative history Burden would then shift to state to show that the same decision would have resulted even if the impermissible purpose not been considered. If the state can show that it would have enacted the law for another reason other than discrimination, rational basis review would apply.

Arlington Heights (1977)

64

Like the “role model” theory in Wygant, this goal has no “logical stopping point.”

Richmond v. Croson (1989)

65

McCleskey established a prima facie case that he was the victim of racial discrimination. The study demonstrated how each actor the in process is influenced by race. As such, the burden shifts to the State to show that race was not a motivating factor.

McCleskey v. Kemp (1987)Blackmun, with Marshall, Stevens, and Brennan (dissenting):

66

Meets the requirement in Croson that even a permissible race classification have a termination point. The school has assured that it will end its classification program as soon as practicable. It has been 25 years since Bakke, and we would expect that a program like this will not be necessary 25 years from now.

Grutter v. Bollinger (2003)

67

Most differences between men and women, like differences between blacks and whites, are statistical—they are generally true in the aggregate but not always true regarding certain individuals. Reproductive capacity is one of the very few actual differences between men and women.

Sylvia Law, Rethinking Sex and the Constitution

68

Much of the ERA movement focused on removing sex “classifications” period, excluding all of the ways sex-neutral state policies have subjugated women for centuries. e.g. abortion, rape laws, prostitution, pornography, and battery are all sex equality issues, and have provided vehicles for men to promote their interests over the interests of women. What if we called this “state action” in the sex equality area?

Mackinnon, Unthinking ERA Thinking

69

No evidence that Congress passed the law “because of” its impact on blacks. Feeney. We question the DC’s reliance on “unconscious racism” and the media hype referenced by Congress—this “simply does not address the question whether Congress acted with a discriminatory purpose.” “[T]he evidence of the haste with which Congress acted and the action it took is as easily explained by the seriousness of the perceived problem as by racial animus.”

United States v. Clary (8th Cir. 1994)

70

Once a violation has been found, district judges have broad authority to formulate a remedy. Ratios like this are a good “starting point.” Not every school had to be perfectly integrated to that ration, though. Set guidelines for future desegregation efforts:1) There must be a constitutional violation before remedies would be implemented.2) The scope of the violation limits the scope of the remedy.3) Once a school achieves “unitary status” the court’s job is done.

Swann v. Charlotte-Mecklenburg Board of Education (1971)

71

Once purposeful discrimination is shown to have occurred in one area of a school system, this creates a “presumption” that the whole system has been affected. The burden then shifts to the school board to demonstrate that other segregated schools in the system are no the result of intentional segregation.

Keyes v. School District No. 1, Denver, Colorado (1973)

72

Original intent has to include what the public would have thought was meant by the words at the time. “[The framers] wrote a clause that does not say anything about separation. They wrote a clause that says ‘equal protection of the laws.’ I think it may well be true . . . that they had an assumption . . . that equality could be achieved with separation. Over the years it became clear that that assumption would not be borne out in reality ever. Separation would never produce equality.”

Judge Bork confirmation hearings

73

Party seeking to uphold a statute that classifies individuals on the basis of sex must show an “exceedingly persuasive justification” and that the classification serves “important governmental objectives and that the discriminatory means employed [are] substantially related to the achievement of those objectives.”

Mississippi Univ. for Women v. Hogan (1982)

74

Prohibited discrimination by places of public accommodations such as inns, theaters, and places of public amusement. Declared UNCONSTITUTIONAL in the Civil Rights Cases (1883) (Congress’s § 5 powers under 14th Amendment apply only to actions by the “state”).

CRA 1875

75

Provided criminal penalties and civil liability for any person acting under color of state law who violates the Constitution or laws of the United States or who engages in a conspiracy to violate civil rights. Today: 18 USC §§ 241, 242 (criminal penalties); 42 USC § 1983 (civil liability); 42 USC § 1985 (conspiracy).

KKK Act 1871

76

provided that blacks and whites should have the same right to make and enforce contracts, sue, give evidence, and acquire property. Today: 42 USC §§ 1981, 1982.

CRA 1866

77

Racial classifications cannot be used to “even the score.” Discrimination against blacks cannot be remedied by discriminating against whites—“Where injustice is the game, turnabout is not fair play.”

Richmond v. Croson (1989)Scalia (concurring):

78

Rape laws present a problem for feminists: on the one hand, they protect women and girls; on the other hand, they limit girls’ sexual freedom (under CA’s statutory rape law, a girl can’t have sex until she’s 18) and also rely on outdated, paternalistic stereotypes (men as aggressors, women as passive victims). For men, sex is an accomplishment, for women, sex entails giving something up. Thus, young girls who have sex as either victims or whores.

Frances Olsen, “Statutory Rape: A Feminist Critique of Rights Analysis

79

Reaffirmed Davis. Plaintiffs had to show that intent to discriminate was a "motivating factor." Although disparate impact could be a starting point, it is only one factor among many that can demonstrate a discriminatory intent. Some laws are clearly discriminatory by their effect, e.g. Yick Wo (1886); Gomillion, but these cases are rare—most of the time a showing of discriminatory impact without more is not enough to show a constitutional violation.

Arlington Heights (1977)

80

Remedying past discrimination is a compelling interest for affirmative action. "This insistence on 'consistency,' Adarand, would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law. But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities . . . ."

Gratz v. Bollinger (2003)Ginsburg (dissenting)

81

Segregation is not a choice in freedom of association (freedom to associate away from blacks). Blacks are “citizens” and I can’t imagine that a citizen’s status can be achieved without other people having to associate with them from time to time.

Charles Black, The Lawfulness of the Segregation Decisions

82

Should abandon the de jure / de facto distinction. Green was the keystone case that changed Brown’s “original meaning” and created the doctrine “requiring affirmative state action to segregate school systems. The problem of segregated schools by “segregated residential and migratory patterns” is “a national, not a southern, phenomenon” and “it is largely unrelated to whether a particular State had or did not have segregative school laws.” “I would hold, quite simply, that where segregated public schools exist within a school district to a substantial degree, there is a prima facie case that the duly constituted public authorities [the school board] are sufficiently responsible . . . .”

Keyes v. School District No. 1, Denver, Colorado (1973)Powell (concurring in part, dissenting in part):

83

Slaves are property with no rights conferred upon citizens. Slaves were “subordinate and inferior”; a “perpetual and impassable barrier” was erected between whites and slaves. Since Scott has no citizenship, no diversity jurisdiction. Declared MO Compromise UNCONSTITUTIONAL (despite not having jurisdiction under diversity). Congress could not grant citizenship to slaves—this would deprive slave-owners of their property rights.

Dred Scott v. Sandford

84

Societal discrimination is sufficiently important where there is evidence of “substantial and chronic” minority underrepresentation. This determination should not be only judicial—the university is capable of making such findings.

Regents of the Univ. of California v. Bakke (1978)Brennan, with White, Marshall, Blackmun (dissenting):

85

SS applies. The plan is not narrowly tailored—the school districts failed to show a lack of race-neutral alternatives. (Kennedy): the school districts could use more strategic site selection; draw attendance zones with demographics of the neighborhoods in mind; spread around assets/resources; use targeted recruiting. Also, the effects are so modest that this cuts against the necessity of using race.

Parents Involved in Community Schools v. Seattle School Dist. (2007)Majority (Kennedy with plurality)

86

SS applies. The right to equal protection is an individual right—"it cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." This applies regardless of whether the burdened group is a discrete and insular minority. .

Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):

87

SS applies. “Racial classifications raise special fears that they are motivated by an invidious purpose.” It doesn’t matter that the law is said to apply equally. Racial classifications “threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.”

Johnson v. California (2005)

88

Strict scrutiny applies. History of discrimination against womenSex is an immutable characteristic. “[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate ;the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . .’” Congress has also taken a sex-equality approach with Equal Pay Act and Title VII CRA.

Frontiero v. Richardson (1973)Brennan, with Douglas, White, Marshall (plurality):

89

The "consistency" proposition assumes there is no difference between a benign and an invidious classification—like disregarding the difference between a no trespassing sign and a welcome mat.It's not asking too much that we determine whether a classification is benign or not—it's certainly no harder than, in the disparate impact context, determining whether a law was enacted "because of" or "in spite" of its disparate impact.

Adarand Constructors v. Pena (1995)Stevens, Ginsburg (dissenting):

90

The 14th Amendment as originally understood was not meant to apply to jury service, suffrage, anti miscegenation statutes, or segregation. But it did adopt language that left open that possibility through statutes and enactments under the law. The Congress specifically rejected the more narrow “civil rights formula” that would have gone no further than the Civil Rights Act of 1866 (applied only to right to sue, contract, inherit property, etc.) in favor of broader language capable of broader interpretation later. This was necessary because the more clearly broad language wouldn’t have passed the ratification stage.

Bickel, The Original Understanding and the Segregation Decision

91

The 14th Amendment did apply to segregation, as is clear from several desegregation actions taken by the Congress shortly after. Some of them didn’t make it but others did. The intent of the ratifiers might have felt otherwise, but it is the intent of the framers that matters.

McConnell, Note: Originalism and the Desegregation Decisions

92

The 5th and 14th Amendments protect "persons, not groups."

Adarand Constructors v. Pena (1995)

93

The Act prohibits employment criteria that operates to “freeze” the status quo by imposing impossible burdens, like the stork and fox fable. “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.

Griggs v. Duke Power (1971)

94

The affirmative duty from Green was applied to a school that had “rigidly excluded” black students for years. Whatever the soundness of that decision, “I can see no constitutional justification for it in a situation such as that which the record shows to have obtained in Denver.”

Keyes v. School District No. 1, Denver, Colorado (1973)Rehnquist (dissenting):

95

The answer to sex inequality is to recognize that difference between men and women has created a hierarchy that people are not aware of. As long as laws focus only on removing the differentiation, the hierarchy will still persist. Laws should instead focus on removing actual inequality in the power structure.

Mackinnon, Toward a Feminist Theory of the State

96

The anti-discrimination principle guards against defects in process. Race-dependent decisions are irrational insofar as they reflect the assumption that members of one race are less worthy than other people.

Brest: In Defense of the Antidiscrimination Principle

97

The Court applied the wrong test. The “exceedingly persuasive justification” phrase is closer to SS than a proper application of IS. A more lenient standard, such as RBR that was applied for centuries, would be more in line with the Carolene Products footnote, that reserved heightened scrutiny for “discrete and insular minorities”—which women are not.

United States v. Virginia (1996)Scalia (dissenting):

98

The Court’s decision sweeps aside tradition. VMI is a historical and important institution that should be preserved as it was. This Court has a duty to “preserve our society’s values regarding equal protection.” “[I]t is my view that ‘when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.”

United States v. Virginia (1996)Scalia (dissenting):

99

The Court’s decision “ensures that single-sex public education is functionally dead.” No public official in his right mind would pursue a single-sex school—they are too risky and expensive from a litigation standpoint.

United States v. Virginia (1996)Scalia (dissenting):

100

The degree, inevitability, foreseeability of a racial preference should be how we determine the constitutionality of a race-neutral classification.

Personnel Administrator v. Feeney (1979)Dissent

101

The disparity in meeting these requirements is “directly reachable to race.” Blacks “have long received inferior education in segregated schools.”Neither requirement offered here is demonstrated to “bear a demonstrable relationship to successful performance” of the work. They were adopted “without meaningful study” of their relationship to job performance.

Griggs v. Duke Power (1971)

102

The Greene remedy “has no proper application in the context of higher education . . . and is as likely to subvert as to promote the interests of those citizens on whose behalf the present suit was brought.” The majority’s test “is designed to achieve . . . the elimination of predominantly black institutions”—in seeking to maximize integration, the remedy actually minimizes diversity and limits choices.

United States v. Fordice (1992)Scalia (concurring, dissenting):

103

The harm in Brown was not simply isolation of black students but de jury segregation itself—racial classification itself. “Psychological injury or benefit is irrelevant to the question whether state actors have engaged in intentional discrimination—the critical inquiry for ascertaining violations of the Equal Protection Clause.”

Missouri v. Jenkins (1995)Thomas (concurring):

104

The law is based on public welfare concerns (preventing racial tension), so we can only overturn the law if it’s “unreasonable.” Cannot say the law is unreasonable—this is no more violative of the 14th Amendment than laws requiring separate schools. The law doesn’t place a badge of inferiority on AAs—if they feel that way, they have placed that construction upon the law themselves.

Plessy (majority)

105

The law is not discriminatory along sex lines—rather, it discriminates between pregnant females and non-pregnant persons (which includes both males and females). The state has a legitimate interest in allocating limited resources and maintaining the fiscal integrity of its disability program.

Geduldig v. Aiello (1974)

106

The law is “narrowly targeted at the fault line between work and family—precisely where sex-based overgeneralization has been and remains strongest—and affects only one aspect of the employment relationship.”

Nevada Dept. of Human Resources v. Hibbs (2003)

107

The majority misreads Milliken. In that case, the remedy was clearly “inter-district”—it consolidated 53 districts into one and applied the remedy across the new district, all because of the actions of certain school boards. Nothing in that decision suggested that a “remedy that takes into account conditions outside of the district” isn an inter-district remedy.

Missouri v. Jenkins (1995)Souter, with Stevens, Ginsburg, and Breyer (dissenting):

108

The majority “launches a grapeshot” at any future race-conscious remedies simply because they don’t like the method this one municipality used.

Richmond v. Croson (1989)

109

The plan here is simply considering race in full candor. We have approved of plans with the same goal that were race-neutral on their face (e.g., top 10% plan). “Without recourse to [full candor] plans, institutions of higher education may resort to camouflage." "If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises."

Gratz v. Bollinger (2003)Ginsburg (dissenting)

110

The quota is “outright racial balancing.” “It rests upon the ‘completely unrealistic’ assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population ….”

Richmond v. Croson (1989)

111

The real interest in this case is not educational benefits from diversity—it's that Michigan LS insists on maintaining a "prestige" law school that uses admissions standards to disproportionately exclude minorities.

Grutter v. Bollinger (2003)Scalia, with Thomas (concurring, dissenting)

112

The results of this study are compelling. They demonstrate the persistence of racism as a present problem. “[W]e remain imprisoned by the past as long as we deny its influence in the present.”

McCleskey v. Kemp (1987)Brennan, with Marshall, Blackmun, and Stevens (dissenting):

113

The segregation in this case is the result of state actions that do not “automatically subside at the school district border.” The state must also bear part of the blame for white flight—it kept the races segregated for years and we are now seeing the effects.

Milliken v. Bradley (1974) Marshall (dissenting):

114

The State justifies the pedagogical differences based on “important differences between men and women in learning and developmental needs,” “psychological and sociological differences” that are “real” and “not stereotypes.” But “[G]eneralizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”

United States v. Virginia (1996)

115

The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.”

Griggs v. Duke Power (1971)

116

The United States is a "Nation of minorities" so it is "no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority." We also cannot peg its protections to a disadvantaged "class" because political forces are always changing—there would be no principled way for the Court to determine which group needs protection

Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):

117

The University cannot enact racial classifications to solve its own "self-inflicted wounds" from insisting on admissions standards that disproportionately exclude minorities (like continued reliance on the LSAT). Selective admissions are not constitutionally protected.

Grutter v. Bollinger (2003)Thomas (concurring, dissenting)

118

The University is in a better position to decide which applicants to accept—they already have preferences of all kinds built into the process. Judicial scrutiny of such decisions should be the exception, not the rule.

Regents of the Univ. of California v. Bakke (1978)Blackmun (dissenting):

119

The University is just being "forthright" about its racial preferences. Other permissible plans do the same thing—they just don't say it. "I would be tempted to give Michigan a point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball . . . ."

Gratz v. Bollinger (2003)Souter, Ginsburg (dissenting)

120

The University seriously considered race-neutral alternatives in good faith—alternatives were not reasonably available. Strict scrutiny doesn't require exhaustion of every conceivable race-neutral alternative. Lowering standards was not an adequate alternative, because that would require the school to change its status as an elite law school.

Grutter v. Bollinger (2003)

121

The University's interest is not "compelling" enough to pass SS. There is no "pressing public necessity" for the school to have a diverse student body. We have only allowed racial classifications in extreme circumstances. See Korematsu (nat'l security); Palmore (interests of a child).It's also not a "state" interest—Michigan LS students mostly go beyond Michigan to practice law. The majority gives too much deference to the University's conclusion that diversity will yield educational benefits. It cites social science for this, but ignores much social science to the opposite. Compare with VMI. In that case, the majority recognized that the school wanted to maintain a particular kind of program, but said the school still couldn't use sex classifications to maintain that program.

Grutter v. Bollinger (2003)Thomas (concurring, dissenting)

122

The “degree of the preference . . . should make no constitutional difference. Invidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude. Discriminatory intent is not amenable to calibration. It either is a factor that has influenced the legislative choice or it is not.”

Personnel Administrator v. Feeney (1979)

123

There is a moral equivalence in using race in an invidious way and a benign way. “In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.”

Adarand Constructors v. Pena (1995)Thomas (concurring):

124

There is no "racial paternalism" exception to Equal Protection. The government cannot make us equal; it can only respect and protect us as equal before the law.

Adarand Constructors v. Pena (1995)Thomas (concurring):

125

There is no doubt a “sorry history” of discrimination against black business owners, but this observation alone cannot justify a rigid quota. The quota cannot be tied to any injury suffered by anyone.

Richmond v. Croson (1989)

126

This case announced the "suspect classification doctrine"—treating racial classification as presumptively unconstitutional because of their tendency to treat minority groups as objects of hostility and prejudice.

Strauder

127

This conviction is based solely on ancestry. “I need hardly labor the conclusion that Constitutional rights have been violated.”

Korematsu v. United States (1944)Roberts (dissenting):

128

This country has a “sorry history” of discrimination against AA’s. “I fear that we have come full circle.”—The decision in this case resembles decisions during Reconstruction that stunted the progress of remedying the effects of slavery and systemic discrimination.

Regents of the Univ. of California v. Bakke (1978)Marshall (dissenting):

129

This decision is very different from Greene and others in primary and secondary school, specifically because it does not preclude the operation of HBCs. The institutional diversity of MS’s university system could be educationally justifiable.

United States v. Fordice (1992)Thomas (concurring):

130

This exclusionary order “goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism . . . .”The proper judicial test is whether a deprivation of individual constitutional rights is “reasonable.” Under a plea of military necessity, the question is “whether the deprivation is reasonably related to a public danger that is so ‘immediate, imminent, and impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.” The order has no reasonable relation to such dangers. (1) It is over-inclusive. It does not allow for individual determinations. It relies for its reasonableness upon the assumption that all persons of Japanese ancestry are a threat. The Commanding General’s Final Report gives away the racism—calling all individuals of Japanese descent “subversive” and belonging to an “enemy race.” (2) It is under-inclusive. Individuals of other groups, such as Germans and Italians, have been deemed threats.

Korematsu v. United States (1944)Murphy (dissenting):

131

This inter-district remedy was not justified by an inter-district violation. Milliken. Rejected a disparity in test scores as a basis for continued federal court involvement—“Although the District Court has determined that ‘segregation has caused a system wide reduction in achievement in the schools of KCMSD,’ it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs . . . .” “[N]umerous external factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure in the remedial calculus.”

Missouri v. Jenkins (1995)

132

This law effectively abolishes all-female schools. (SOR) Heightened scrutiny should not have been applied in this case. The state was simply creating an option for those who prefer the single-sex school. The equal protection standard for sex discrimination should not be applied here—the law was designed to maximize opportunity for women, not harm them.

Mississippi Univ. for Women v. Hogan (1982)Powell (dissenting)

133

To require anything less than intent would be a slippery slope—it “would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”

Washington v. Davis (1976)

134

Two questions: (1) Does the constitution guarantee to any class or description of people the right to enslave another class? (2) Is the dissolution of the union between slave and free required, either by fidelity to the slaves or the just demands of conscience?Plain text argument: Intent should only be inferred where plainly apparent in the text. The language of the constitution is clear, in English. The constitutional debates were kept secret for a reason—so that the people could adopt a simple text alone and not the secret motivations of those who drafted it. The constitution does not forbid a colored man from voting.

Frederick Douglass - The Constitution of theUnited States: Pro-Slavery or Anti-Slavery?

135

Under Croson, we have three propositions about our approach to racial classifications: (1) skepticism, (2) consistency (doesn't depend on which race benefits from the law), and (3) congruency (Equal Protection under the 14th and 5th Amendments is the same).

Adarand Constructors v. Pena (1995)

136

We have held that “State actors controlling gates to opportunity . . . may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females.’” This perpetuates the same self-fulfilling prophecies that have excluded women from different spheres in society, including juries and the legal profession. It is true that some single-sex schools seek to “dissipate, rather than perpetuate, traditional gender classifications” but that is not what this school is doing.

United States v. Virginia (1996)

137

We should not be so quick to accept the state’s assertion that the law will affect its purpose. It doesn’t make sense that a class of persons especially vulnerable to the targeted harm should be exempted from the law, rather than subject to it. HYPO: If white employees are more vulnerable to skin cancer from exposure to a certain chemical on the job, it wouldn’t make sense to require black employees only to wear protective clothing and exempt the white employees. It is irrational to exempt 50% of the participants in the risky conduct.

Michael M. v. Superior Ct. (1981)Stevens (dissenting):

138

We will defer to the "law school's educational judgment that . . . diversity is essential to its educational mission" because of the "complex educational judgments in an area that lies primarily within the expertise of the university." Diversity promotes the "robust exchange of ideas" which is uniquely important in higher education. It equips students to go out and join an increasingly diverse workforce.

Grutter v. Bollinger (2003)

139

Whatever the intent of the ordinance was, public authorities charged with implementing the law were operating with an “unequal and oppressive” mind, and their actions were imputed to the state as administrators of the law.

Yick Wo v. Hopkins (1886)

140

Women were at a disadvantage in the struggle for subsistence—they depended on men because of their “physical structure and the performance of maternal functions.” Thus, “legislation designed for her protection may be sustained . . . .”

Muller v. Oregon (1908)

141

“[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect …. [C]ourts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can . . . .”

Korematsu v. United States (1944)

142

“[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability . . . .”

Griggs v. Duke Power (1971)

143

“[I]t is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing”

Washington v. Davis (1976)

144

“[T]he line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.” Subjective discriminatory intent is a “common threat” in our cases. But it is neither necessary nor sufficient for a finding of unconstitutionality—it would be too high a burden to require plaintiffs to uncover the actual subjective intent, and an otherwise constitutional law also should not be struck down simply because one of the decision makers had an improper motive. “A law conscripting clerics should not be invalidated because an atheist voted for it.”

Washington v. Davis (1976)Stevens (concurring):

145

“[T]he validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. . . . [W]ithin their sphere, military authorities are not more outside the bounds of obedience to the Constitution than are judges within theirs . . . .”

Korematsu v. United States (1944)Frankfurter (concurring):

146

“as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process . . . .” “Separation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.”

Bolling v. Sharpe (1954)

147

“Despite the enlightened emancipation of women, . . . woman is still regarded as the center of the home and family life.”

Hoyt v. Florida (1961)

148

“First, the equal protection clause of the fourteenth amendment should be read as saying that the Negro race, as such, is not to be significantly disadvantaged by the laws of the states. Secondly, segregation is a massive intentional disadvantaging of the Negro race, as such, by state law. No subtlety at all.”

Charles Black, The Lawfulness of the Segregation Decisions

149

“I am . . . mystified” that the Court overlooks the State’s role in causing and remedying the infringements in this case. The state is “the governmental entity ultimately responsible for desegregating its schools . . . .” Local entities are an arm of the state. Gomillion.

Milliken v. Bradley (1974) White, with Brennan, Marshall (dissenting):

150

“If Congress in peace-time legislation [rather than the military during war-time] should enact such a criminal law, I should suppose this court would refuse to enforce it.” I cannot subscribe to the reasonableness doctrine in this context. The Court is in no position to determine the “reasonableness” of military commanders—it will have no alternative to taking the military at its word. I cannot say whether these orders were reasonable or not, but even if they were, “I deny that it follows that they are constitutional.” Judicial recognition of a law like this is “a far more subtle blow to liberty than the promulgation of the order itself”—even an unconstitutional military order lasts only as long as the war, but judicial acceptance of the order “rationalizes the Constitution to show that the Constitution sanctions such an order . . . .”

Korematsu v. United States (1944)Jackson (dissenting):

151

“It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.” Such a belief incorrectly believes that black students suffer a psychological harm from being in a racially identifiable school—it rests on bad social science and an assumption of black inferiority. “[I]f separation itself is a harm, and integration therefore is the only way that blacks can receive a proper education, then there must be something inferior about blacks. Under this theory, segregation injures blacks because blacks, when left on their own, cannot achieve.”

Missouri v. Jenkins (1995)Thomas (concurring):

152

“prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities” and thus “may call for a correspondingly more searching judicial inquiry.”

Carolene Products footnote

153

“Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.”

Nevada Dept. of Human Resources v. Hibbs (2003)

154

“The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. That is the law of the creator.”

Bradwell v. Illinois (1873)

155

“the vast changes in the social and legal position of women … [do] not preclude States from drawing a sharp line between the sexes . . . .”

Goesaert v. Cleary (1948)

156

“These are precisely the types of statistical and testimonial evidence which, until today, this Court had credited in cases approving of race-conscious measures designed to remedy past discrimination.” “[T]he majority would require cities seeking to eradicate the effects of past discrimination within their borders to reinvent the evidentiary wheel and engage in unnecessarily duplicative, costly, and time-consuming fact-finding."

Richmond v. Croson (1989)Marshall, with Brennan, Blackmun (dissenting):

157

“Under our Constitution, the government may never act to the detriment of a person solely because of that person’s race . . . . . The rule cannot be any different when the persons injured by a racially biased law are not members of a racial minority.” The law also requires categorizing persons into different races, which is a suspicious mandate—the Third Reich could teach us a thing or two about how to do that.

Fullilove v. Klutznick (1980)Stewart (dissenting, with Rehnquist, Stevens)

158

“‘Distinctions between citizens solely because of their ancestry are odious to a free people whose institutions are founded upon the doctrine of equality.’”

Hyrabayshi