Lesson 22

13th amendment (1865)- abolished slavery

14th amendment (1868)- citizenship rights, due process, equal protection, apportionment, civil war debt

15th amendment (1869)- right to vote may not be denied on account of race, color, or previous condition of servitude

promise for equal rights and citizenship

creating a new south that AA would prosper in

there was an issue of getting elector votes → electoral crisis

in exchange for the election Hayes promised to withdraw troops from the South, fully aware the demo ex-Confederates would seize power

no state shall

• abridge the privileges and immunities of citizens

• deprive any person of life, liberty, or property w/out due process

  • individual rights listed in the Bill of Rights

  • procedural protections

  • unenumerated fundamental rights

• deny any person w/in its jurisdiction the equal protection of the laws

congress shall have the power to enforce the provisions in this article

they believed it only applied to the rights associated with federal citizenship not state citizenship

Louisiana created a monopoly to prevent certain butchers from working

• the butchers claims this law violated the 14th amendment’s privileges and immunities clause

• the monopoly abridged their right to exercise free trade

challenge denied

• the clause does not protect butchers from monopolistic laws

• clause requires states to protect fundamental rights guaranteed by the Bill of Rights

  • only protects rights of federal citizenship, like the right to run for office

  • does not protect rights of state citizenship

makes the 14th amendment “vain and idle enactment“ which accomplished nothing and most unnecessarily excited Congress and the pp on its passage

limited the protection of the 14th amendment

business owners challenged the Civil Rights Act of 1875 which provided that all persons shall be entitled to the full and equal enjoyment of accommodations, inns, theaters

congress lack authority under the 13th to require inns/movie theaters to admit AA and white patrons bc discrimination was not a badge or incident of slavery

the 14th amendment only permitted Congress to outlaw discrimination by a state’s action not a private business

• said congress had exceeded its authority under sec 5 of 14th amendment, which gives “power to enforce by appropriate legislation“

discrimination was a “badge of slavery“

discrimination was a “state actions“ bc the businesses were common carriers (services open to the general public)

he argued for overturning the Slaughter House cases and incorporating the 2nd amendment under the Privileges and Immunities clause rather than the due process clause

• publicly invited the SC to reconsider the interpretation of privileges and immunities clause

Louisiana law required AA to ride in separate railcars

creates the harmful doctrine of separate but equal

• later used as the justification for Jim Crow laws

our constitution is color-blind, neither know nor tolerates classes among citizens

equal protection clause

no state shall deny to any person w/in its jurisdiction the equal protection of the laws

bf states were on their own when it came to protecting the rights of their citizens

• otherwise slavery would have been unconstitutional under the original constitution

the decision that as long as facilities were provided to each race it was equal treatment

it found that separate facilities were not equal in law however it was a long movement bc they still allowed for certain acts of discrimination as long it was actually equal

• ex they didn’t have to let AA in but they needed to pay their out of state tuition fees

• you can’t open a AA school that is obviously inferior

there would have been 4 dissenters for the overturn, it had been in law for 60 yrs

• wide divergence of views and opinions that would have resulted in the allowance of segregation of students

  • every system in the country and state were segregated without a united court the case could have no impact or real change

civil rights activist

• one of the lawyers in Brown v Board bf being a justice

• went across the south to find civil right cases to fight in court

brown involved education

plessy involved public transportation

rules that segregation in school is unconstitutional, therefor it overruled Plessy but they are still about different topics so its not a clear cut overrule

Jackson: pro race conscious reading

thomas: Frederick Douglas “what a black man wants“ quotes, leave AA alone to figure it out w/out interference

would they say the same thing today

harlan dissent in plessy: colorblind constitution

5 cases that challenged racial segregation in public schools

segregation in the deep south was deeply rooted in regions laws and customs

NAACP could easily document the enormous disparities between Clarendon County’s black and white schools

He wanted to acknowledge the courage of black parents who stood up for their children

to highlight the damage of stigma of inferiority segregation inflicted on AA children

• it was found the children had sever self-rejection

the documented and glaring disparities in Clarendon County schools

• he also attempted to deflect plessy questioning (although he agreed it should be overturned)

• he wanted the court to be w/out dissent when reversing Plessy

  • Reed, Vinson, Clark, and Jackson were not ready to overturn Plessy

summer of 1953

Chief Vinson dies of a heart attack

• Warren replaces him

Chiefs: John Marshall, Charles Hughes, Stone

Associate: Kagan

1. did the framers of the 14th amendment intend to outlaw school segregation

2. if they did not, does the SC have the power to outlaw segregation

1000 pgs

Frankfurther is still fighting for unequivocal ruling

• jackson thinks the constitution does not require the Court to end segregation

• Reed thinks constitution only requires equal facilities

it is more difficult to change one’s opinion once they announced they reached conclusion

the psychological impacts of segregation of AA children

• feeling of inferiority as to their status in the community that may affect their hearts and mind in a way unlikely to ever be undone

separate educational facilities are inherently unequal

Segregation violated Equal Protection

• education is important to our democratic society

• children in segregated schools can not absorb democratic values and become good citizens, enforced segregation is psychological damaging

“all deliberate speed to end racial segregation“

massive resistance

• court orders but the states are not listening requires the pres to step in to get them to enforce the ruling

lawful segregation

social norm segregation

info has econ impacts, can cause dire results, those with unauthorized information might prosper and uninformed make be bankrupted

they were keeping up w/ the national mood one case after another

federal contractors must “take affirmative action to ensure that applicants are employed and that employees are treated during employment w/out regard to their race, creed, color, national origin“

allows courts to take “affirmative action“ to make whole victims of discrimination and prohibits schools that discriminate from receiving federal fundings

usual rule: court reviews racial classifications w/ “strict scrutiny“ and will strike them down unless they are narrowly tailored to achieve a compelling gov interest

• Korematsu (1944) “immediately suspect“

2 compelling gov interest

1. schools have “affirmative duty“ to eliminate the remnants of state-imposed racial segregation in public schools

2. Universities may consider race as one factor among many to achieve a diverse student body

16/100 spots set aside for minority applicants

• Bakke a white man denied admission, challenged set aside program on theory it violated Equal protection clause

universities may make decisions based on race only if race is one factor among many considered in promoting a diverse student body

• UC Davis was narrowly tailored so Bakke won

4 (liberal): would have upheld set aside program, the use of race did not violate equal protection clause or civil rights act

4 (conservative): struck down program on ground it violated Civil Rights Act

Swing Powell: the set aside program violates the Equal Protection Clause

the Univ of Michigan undergrad admission rated applicants on selection index

• applicants in underrepresented racial or ethnic minority group received 20/150

  • virtually admitted all minority qualified applicant

Does the use of race in the undergrad admissions program violate the Equal Protection Clause and the Civil Rights Act?

unconstitutional use of race

The program is not narrowly tailored. There is no individual consideration of the applicants. (6/3)

The University of Michigan’s law school considered race a “plus” among many other factors in admissions.

Does the law school’s use of race in admissions violate the Equal Protection Clause and the Civil Rights Act?

No. The law school’s use of race as one factor in admissions was “narrowly tailored to further a compelling state interest” in “assembling a diverse student body (5/4)

quotes Douglass again: leave us alone to fall or succeed

it demeans us all to get the aid

they argue that the government may not make decisions based on race

Does the Equal Protection Clause permit a high school to deny a student admission because of race in an effort to achieve a desired racial balance?

No. The school may not use race in the admissions process. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (Roberts 5-4)

there is nothing wrong w/ school procedures

• true equality needs aid to help achieve it

1. Should the Court overrule Grutter and hold that institutions of higher education cannot use race as a factor in admissions?

2. Title VI of the Civil Rights Act bans race -based admissions that, if done by a public university, would violate the Equal Protection Clause.

• Is Harvard violating Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race- neutral alternatives?

Jackson is on the board, so she recused herself from the case

• the SC spilt the cases so Jackson could still hear the UNC case

UNC: better performance @ work and school

Harvard: sterotypes are broken down, prejudice is reduced, critial thinking and problem solving are improved

they rank below whites, hispanics, AA

• while their scores out rank all other groups

1. Does the original meaning of the Fourteenth Amendment allow universities to consider race in making admissions decisions?

• Does it promote equality in a way that allows race consciousness?

• Does it promote equality in a way that prohibits race consciousness?

2. Is “diversity” based on race (without more) constitutionally protected?

• Is diversity promoted by rejecting Korematsu’s grandson and accepting LaBron James’ son?

3. Are the racial categories created by the government so arbitrary that they violate the Equal Protection Clause?

• What race neutral alternatives exist

• Should Harvard be required to limit the legacy and squash students admitted before they may consider race?

4. Bakke said race consciousness would end in 25 years; Grutter said race consciousness would end 25 years after that. Should it end?