Brown v. Board of Education RoL
RoL Separate but equal in the sphere of public education is a violation of the Equal Protection Clause.
Ct doesn't look to tangible factors (building, curricula) and instead notes psychological effects from social science. Didn't overturn Plessy because not dealing with railroad cars.
Education is a right which must be made available to all on equal terms (sounds like a Priv. or Imm. from Slaughterhouse)
Bolling v. Sharpe (1954) RoL
RoL Reverse-incorporation of the EPC clause to be applicable to the Federal government through the Vth amendments DP clause. Principles in Brown now applicable to the Federal government
Doctrinal stretch. Decision borne from moral compulsion vs. text. "Unthinkable same Constitution would impose lesser duty on Federal Gov't." Results in racial desegregation of DC public schools.
Loving v. Virginia (1967) RoL
RoL Separate but equal in the sphere of interracial marriage is a violation of the EPC clause of the 14th
Facts: formally facially neutral law that applies to both races. Motive for the law was white supremacy.
Two Principles from Brown apply:
1. anticlassification: any attempts at racial classification are suspect and classification is presumed hateful/wicked
2. anti-subordination: racial subjugation, government action is sustaining/reinforcing social subordination.
Modern origin of strict scrutiny.
Browder v. Gayle (1956)
District court disregards Plessy and strike down an Alabama statute that permitted segregation of public buses. PLESSY NOT OVERRULED, just ignored
Constitutional role of lower courts. Disobeyed precedent of Plessy and predicting what Supreme Court would now hold after Brown.
Palmore v. Sidoti (1984)
RoL Private biases and the possibility of injury that they may inflict ARE NOT permissible considerations for removal of an infant child from the custody of its mother.
Facts Supreme Court reverses trial courts grant of custody to father b/c mother had remarried a black man and the trial court was concerned that as a result of the marriage the child would suffer social stigma.
Korematsu v. United States (1944) Importance, Dissent
Importance FIRST TIME strict scrutiny was applied to race and one of the only times the govt. prevailed over strict scrutiny.
Court refers to commensurability - the power to protect must be commensurate with threatened danger (narrowly tailored).
Jackson dissent. Judiciary should not be called on to rule on constitutionality of military orders/actions because of their limited/temporary nature. Don't want these rulings to become part of constitutional law.
Murphy dissent: holding hearings would be least restrictive means.
EPC Framework Step 1
1. (a) Identify what classification the government is making. - Is it race? Age? sex? etc.
(b) Then identify where the classification appears
(i) Is it on the face of the law? In it's very text? - Sufficient to trigger EPC analysis
(ii) Is it in the motivation of the legislature in passing the law? Is there discriminatory animus? - Sufficient to trigger EPC
(iii) Is it in the laws effect? Does it have a discriminatory impact? - Without more, impact alone is not enough
EPC Framework Step 2
Which level of scrutiny applies?
The scrutiny level will differ depending on the classification being made.
1. Strict scrutiny,
2. Intermediate Scrutiny,
3. Rational basis scrutiny
EPC Framework Step 3
What are the governments interests in enforcing the law? And what means is it using to achieve those interests? - What is the relationship of the classification drawn by the law to the governments legitimate interest in enforcing the law? What manner has it chosen to achieve them? - Different tests for the governments interest and means depending on the nature of the classification and the level of scrutiny.
Traditional Rational Basis Scrutiny
The law will be upheld IF it is RATIONALLY RELATED to a LEGITIMATE government interest
- The government goal must be conceivably purposeful,
- Courts are generally deferential to the government. The government usually wins under rational basis scrutiny,
- CHALLENGER HAS THE BURDEN OF PROOF, and must show that there is no conceivable legitimate purpose or that the law is not rationally related to it if there is.
Classifications: age, disability, wealth, class, sexual orientation, or anything else not in strict or intermediate
Traditional Intermediate Scrutiny
The law will be upheld IF it is SUBSTANTIALLY RELATED to an IMPORTANT government interest.
- Government interest must be more than just something they are permitted to do,
- Courts look at the governments actual purpose,
- the means must be SUBSTANTIALLY related to achieving the interest. It must be a very good way of achieving it; BUT, it doesn't have to be the best way.
- GOVERNMENT HAS THE BURDEN OF PROOF, must show that it is substantially related to an important government interest.
Classification: gender & illegitimacy
Traditional Strict Scrutiny
Law will be upheld only if it is NECESSARY for achieving a COMPELLING interest and the MEANS chosen are NARROWLY TAILORED to achieving that interest. - Gov. interest must be compelling/vital/crucial, - Means must be narrowly tailored, meaning the least restrictive means. No less restrictive means would alternatively achieve the interest, STRICT IN THEORY FATAL IN FACT.
Classifications: race, ethnicity, religion, nationality, alienage (foreign status) and voting
Johnson v. California RoL
RoL Strict scrutiny applies to a state policy of segregating prisoner by race in order to decrease racial gang violence.
Ct holds that segregating would breed more racial violence. Thomas dissents and says limited use in those circumstances would save lives.
Yick Wo v. Hopkins (1886) RoL Evil Eye Unequal Hand
RoL A law neutral on its face, may nevertheless violate the EPC if there is evidence that it is being administered WITH AND EVIL EYE and AN UNEQUAL HAND.
Evil Eye: A purpose to discriminate that can be found in the law or its history.
Unequal Hand: Administration of the law shows that the law is being applied unfairly so as to suggest that its purpose is to discriminate.
Gomillion v. Lightfoot (1966) RoL Facts
Rol Overwhelming evidence of discriminatory impact is sometimes sufficient to infer discriminatory purpose. Facts: Alabama restricting law that changed the boundaries of a square shaped city into an irregular 28-sided shape, and which excluded 400 black voters from the city, without excluding and white voters.
A district was gerrymandered so that all but 4-5 black voters were removed from a voting district. Standard for overwhelming evidence.
Inferring purpose from impact
(1) Overwhelming evidence of a racially discriminatory impact. (2) Overwhelming evidence that the law is being applied or administered unequally so as to disadvantage a particular group, or (3) "Context sensitive inquiry" that may provide clear evidence of a "clear pattern, unexplainable on grounds other than race."
State X passes a law that is facially neutral AND IS NOT MOTIVATED by any discriminatory animus; nevertheless, a particular racial group is negatively affected. Is this enough to trigger the EPC
NO IT IS NOT. Impact alone, WITHOUT discriminatory motive or the Yick Wo factors in not enough.
Washington v. Davis (1976) RoL
RoL A disparate impact, WITHOUT MORE, IS INSUFFICIENT to trigger an EPC analysis. "The EPC is not designed to regulate all imbalancing effects that a facially neutral law may have on a particular group."
Under EPC reverse incorporated through Bolling v. Sharpe. Test for police officers in DC results in different outcomes for blacks. Disparate impact was not unconstitutional because the evidence was insufficient to make jump from impact to purpose. Court looked at the totality of the facts (which would require something like long history of municipality enforcing segregation). IMPACT WITHOUT PURPOSE
Palmer v. Thompson (1971) RoL Facts
RoL Purpose without impact is non-cognizable Facts Rather than integrate the cities swimming pools, the City of Jackson chose to close them all down. Motivation was clearly discriminatory; however, the law was not discriminatory under EPC because now all races were denied access to the pools. NO DISCRIMINATORY IMPACT, NO EPC
Village of Arlington Heights (1977) "Context Sensitive Inquiry" Mixed Motives Analysis
Chicago suburb refusing to rezone and only evidence of disparate impact.
Context sensitive inquiry Inquire into the history of government action, if there is a clear pattern of discrimination, unexplainable on grounds OTHER than race, this is sufficient to trigger the EPC.
Mixed Motives If there is evidence that discriminatory motive ins one AND ONLY ONE, among several factors motivating a law, THIS ALONE DOES NOT MEAN that the law is automatically struck down, why?
The government may have also acted for important non-discriminatory reasons.
> If there is evidence of mixed motives, the burden of proof shifts to the state to show THAT IT WOULD HAVE TAKEN THE SAME ACTION for non-discriminatory reasons. Additional set of protections for State.
Brown v. Bd of Ed II (1955)
Remedy for decision from Brown I. "All deliberate speed" cements white resistance. Real change happened in Civil RIghts Act of 1964 where federal monies were going to be withheld.
Brown v. Bd of Ed. (1954)
1. anti-classification: race never a basis to make laws
2. anti-subordination: race is an impermissible basis for making law when it has soc/psy effect of subordinating a particular group.
3. white supremacy: segregation laws are impermissibly tainted products of white supremacy
4. integration: education as pillar of society and integrated schools lead to better students and better citizens in turn
Why are Race-Based Classifications subject to Strict Scrutiny?
1. basic purpose of the 14th Am was to protect black people (Slaughterhouse Cases)
2. political powerlessness of black justifies heightened protection from the Court
3. immutability of race (also applicable to national origin)
EPC Race-Based Classifications
Race is inherently suspect and receives strict scrutiny whether helpful or not to racial minorities.
The gov't must show that it has a compelling interest in the discrimination and is achieving that interest in the most narrowly tailored way, i.e. the interest can't be achieved through any less racially discriminatory alternative.
Strict in theory; fatal in fact.