Racial Equality

Rule: A law that is not explicitly based on race nonetheless violates the Equal Protection Clause of the Fourteenth Amendment if it is enforced on the basis of race.

Facts: The City of San Francisco (defendant) passed an ordinance requiring every man in county jail to have his hair cut to a length of one inch. Ho Ah Kow (plaintiff), a Chinese man and a prisoner in county jail, brought suit, claiming that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment. It was religious custom for Chinese men to shave the front of their scalp and wear the rest of their hair in a long braid called a queue. Ho Ah Kow presented evidence that the ordinance, while generally applicable by its terms, was enforced against only Chinese men. The city’s avowed purpose of the ordinance was to induce Chinese men into paying their fines to avoid being put in jail. In fact, the ordinance was colloquially known as the “Queue Ordinance.”

Reasoning: A law that is not explicitly based on race nonetheless violates the Equal Protection Clause of the Fourteenth Amendment if it is enforced on the basis of race. The clause guarantees citizens the equal protection of the laws. The judiciary cannot ignore a law that is facially applicable to all, but in fact is disproportionately applied. In this case, the San Francisco ordinance violates the Equal Protection Clause of the Fourteenth Amendment. The intent of the ordinance was not related to any city interest other than a disproportionate enforcement against Chinese men. Indeed, the ordinance was enforced against only Chinese men. While the ordinance is not explicitly based on race, it nonetheless violates the Equal Protection Clause of the Fourteenth Amendment because it is enforced on the basis of race. The ordinance is unconstitutional.

Holding: The Fourteenth Amendment prohibits states from enacting laws that deny any of its citizens equal protection under the law.

Facts: West Virginia (plaintiff) enacted a statute limiting jury service to white males over the age of 21 who are state citizens. An all-white jury convicted Strauder (defendant), a black man, of murder. Strauder argues that his conviction by a jury selected under the West Virginia statute violated the Fourteenth Amendment.

Reasoning: A state statute limiting jury service to white persons only is unconstitutional under the Fourteenth Amendment. The Fourteenth Amendment was adopted to protect a race of people, recently freed from slavery, from adverse action by the states, and to prevent the states from denying them their civil rights. It further authorized Congress to enforce these provisions by appropriate legislation. The Fourteenth Amendment is a declaration that all persons, regardless of race or color, must be held equal under the laws of the states. No state may discriminate by law against a person because of his race. West Virginia’s statute clearly represents a prohibited discrimination, singling out an entire race of people and denying them the right to participate as jurors, thus branding them as inferior, furthering racial prejudice, and impeding their access to equal justice under the law. This court does not hold that states are prohibited under the Fourteenth Amendment from designating other qualifications for jurors, such as limiting jury selection to males, citizens, landowners, or persons of a certain age or with a certain level of education. The purpose of the Fourteenth Amendment is to prohibit discrimination based on race or color.

Prohibited all immigration of Chinese laborers. Building on the 1875 Page Act, which banned Chinese women from immigrating to the United States, the Chinese Exclusion Act was the first law implemented to prevent all members of a specific ethnic or national group from immigrating.

Rule: Under the Equal Protection Clause of the Fourteenth Amendment, Congress may only prohibit discrimination by state actors, not private individuals.

Facts: Congress passed the Civil Rights Act in 1875. Part of the first sections of the Act prohibit discrimination against individuals in establishments including restaurants, hotels, and stores on the basis of race. This case is a consolidation of five different cases from various lower courts heard by the United States Supreme Court. In each case, plaintiffs alleged defendants violated some aspect of the Civil Rights Act.

Reasoning: The Equal Protection Clause of the Fourteenth Amendment functions as a restraint on abuses by state actors of the rights and freedoms of United States citizens. The Fourteenth Amendment also gives Congress the power to pass whatever legislation is necessary to enforce those restrictions on state actors. Thus, had the businesses implicated in the present cases been state or local governments, Congress would have acted constitutionally. However, because all defendants in the cases are private individuals accused of discriminating against African American patrons in privately-owned businesses, Congress acted outside the scope of its Fourteenth Amendment powers. The Civil Rights Act is therefore unconstitutional.

Dissent (Harlan): The majority focuses too much on the distinction between state actors and private individuals. In doing so, this decision ignores the spirit of the Civil Rights Act itself and the intent of Congress in passing a statute that seeks to prevent discrimination against African Americans. More weight should have been given to Congressional intent before striking down the Act as unconstitutional.

Rule: A facially neutral law that is applied in a discriminatory manner on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment.

Facts: In 1880, San Francisco passed an ordinance that required operators of laundries in buildings not made of brick or stone to apply for a permit to continue operation. At the time, 320 of the laundries in San Francisco were constructed of wood. Yick is a laundry owner of Chinese descent. He and 200 other laundry owners of Chinese descent (plaintiffs) sought permits to continue their operations. All of their petitions were denied. However, 80 of 81 petitions by similarly situated laundry operators who were not of Chinese descent were granted permits. The plaintiffs were fined and imprisoned after they continued to operate their laundries without permits. Yick Wo petitioned for habeas corpus in state court.

Reasoning: The Fourteenth Amendment guarantees the equal protection of the laws to all people within the United States. Equal protection is denied when a facially neutral law is applied unequally among similarly situated people. Here, the San Francisco ordinance appears to be neutral and fair on its face. However, the ordinance has been applied unequally to similarly situated people. Notwithstanding the fact that the plaintiffs have complied with all requirements of the ordinance, the administrators denied all 200 of their petitions, while granting permits to 80 of 81 applicants who were not of Chinese descent. These facts demonstrate that the plaintiffs were denied permits for no reason other than hostility against their race. Thus, the application of this ordinance has denied the plaintiffs the equal protection of the laws in violation of the Fourteenth Amendment. Consequently, the plaintiffs’ imprisonment is illegal, and they must be discharged from custody.

Rule: Public accommodations that are segregated according to racial classifications do not violate the Equal Protection Clause of the Fourteenth Amendment as long as such accommodations are “separate but equal.”

Facts: In 1890, the State of Louisiana passed a law that provided for separate railway cars for Caucasian and African American persons. Plessy (defendant) was seven-eighths Caucasian and one-eighth African American, but was considered African American under Louisiana law. He challenged the law by taking a seat in a Caucasian railway car and was asked to move to the African American car by the conductor. When he refused, he was forcibly ejected and imprisoned. The Committee of Citizens originally brought suit on behalf of Plessy in Louisiana state court challenging his arrest and conviction. The presiding judge, Ferguson (plaintiff), held that Louisiana had a right to enact such legislation to regulate railway companies as long as those companies operated within the state’s borders. Plessy then sought a writ of prohibition against Ferguson. The Committee of Citizens appealed on Plessy’s behalf to the Louisiana Supreme Court, which upheld Judge Ferguson’s ruling. The United States Supreme Court granted certiorari.

Reasoning: While the object of the Fourteenth Amendment is to promote the equality of all races before the law, it cannot have been intended to abolish all distinctions based on color, or to enforce social (as opposed to political) equality when African Americans and Caucasians do not actually want to be commingled. Laws permitting or requiring the separation of the two races are supported by precedent and do not necessarily imply the inferiority of either race to the other. If the African American race feels inferior because of the laws, that inferiority construction is placed upon the race by itself. Legislative judgments forcing commingling cannot be used to improve race relations, and if the two races are to meet upon terms of social equality, it has to be the result of an organic process. The Louisiana law is upheld on the grounds that if the civil and political rights of both races are separate but still equal, one cannot be considered inferior to the other either socially or politically. The distinction does not imply racial inferiority or violate the Equal Protection Clause of the Fourteenth Amendment because the railway cars of the two races in the present case are separate but equal.

Rule: The federal judiciary has no authority over local conspiracies to systematically disenfranchise black individuals by preventing them from exercising their right to vote.

Facts: Jackson Giles (plaintiff) was president of the Colored Men’s Suffrage Association. Giles voted in Alabama from 1871 to 1901. Giles, however, brought suit in federal court against the State of Alabama (defendant), alleging that the state systematically denied black individuals the right to vote through a variety of means, including failing to allow them to register, in violation of the Fifteenth Amendment. Giles sought an injunction, enjoining the claimed disenfranchisement.

Reasoning: The federal judiciary has no authority over local conspiracies to systematically disenfranchise black individuals by preventing them from exercising their right to vote. The Court is powerless to enforce laws. Rather, matters such as the enforcement of law and how such laws are enforced are left to the individual states or Congress. In this case, assuming Giles’s claims are true, the Court has no authority to rectify the claimed wrongs. The best that the Court could do would be to order the State of Alabama to register black individuals to vote. However, if Alabama intends to disenfranchise black individuals as Giles claims, this mandated registration would not be sufficient to address the situation. The relief that Giles seeks must come from the State of Alabama itself or Congress. Giles’s request for an injunction is denied.

Although the Court will now get out of the Lochner Era business and no longer focus on legislative outputs. It will closely look at the inputs (if people aren’t being allowed to vote, discrimination against discrete and insular racial, national or religious minorities, free political expression, and where the Bill of Rights is concerned---hinting at incorporation revolution that will happen over the next 25 years).

Text of Footnote 4:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth....

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation....

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious... or nations... or racial minorities...: whether 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 which may call for a correspondingly more searching judicial inquiry....

Rule: State laws restricting the rights of persons based on race are subject to strict scrutiny and will only be upheld if they further a “pressing public necessity.”

Facts: On May 9, 1942 under Civilian Restrictive Order No. 1, based on Executive Order 9066, Japanese-Americans were ordered to move to relocation camps in light of the United States’ involvement in World War II. Civilian Exclusion Order No. 34 specifically excluded Japanese Americans from remaining in San Leandro, California, a region designated as a “Military Area.” Korematsu (defendant) was an American citizen of Japanese descent who was convicted by the United States Government (plaintiff), in federal district court for violating Civilian Exclusion Order No. 34. No questions were raised as to Korematsu’s loyalty to the United States. The Ninth Circuit Court of Appeals affirmed the conviction, and the United States Supreme Court granted certiorari.

Reasoning (Hugo Black): Although all legal restrictions which restrict the civil rights of a single racial group are automatically suspect, it does not follow that all such restrictions are automatically unconstitutional. Such restrictions are subject to rigid scrutiny by the courts, and will only be upheld in instances of a “pressing public necessity.” A comparison is made of the present case to a prior decision in Hirabayashi v. United States, 320 U.S. 81 (1943), that upheld a conviction for the violation of a curfew order by a Japanese American during World War II. It was determined in Hirabayashi that the order was designed as a “protection against espionage and against sabotage.” Applying Hirabayashi to the present case, it is within the power of Congress and the executive branch to exclude Japanese Americans from the West Coast war area during World War II when the United States is in conflict with Japan. Like the curfew order, the same concerns over preventing espionage and sabotage constitute a sufficient “pressing public necessity” to justify excluding Japanese Americans from their homes in particular areas during the war effort. It does not matter that many Japanese Americans remain loyal to the United States because the military has determined that many others retain loyalties to the Japanese government. The United States Government does not have the resources to make individualized determinations of loyalty during the war effort, therefore exclusion of Korematsu from the West Coast, regardless of his personal loyalties, is justified because of the existence of a “pressing public necessity.”

Dissent (Robert Jackson): The authority of the military to enact provisions like the Civilian Exclusion Order is not unlimited. Whenever the military decides to act in this way to protect its security interests in a war area, the need for protection based on the situation on the ground is likely very grave. However, even in light of these pressing circumstances, the military’s actions are constrained by the Constitution. The judiciary is ill-equipped to evaluate the reasonableness of military decisions, however, it should not acquiesce to the decisions of military superiors when these decisions are clearly unconstitutional.

Quoting Jackson's dissent:

""Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. [...] [H]is crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it."

Rule: Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment.

Facts: The present case represented a consolidation of cases from Kansas, South Carolina, Virginia, and Delaware. In each state, African American minors sought the aid of their state courts in gaining admission to public schools on a non-segregated basis. In all instances, Brown and other minor African American children (plaintiffs) had been denied admission to public schools attended by white children under laws requiring or permitting segregation according to race. They alleged that this segregation deprived them of Equal Protection of the laws under the Fourteenth Amendment. In 1951, Brown first filed suit against the Board of Education for Topeka, Kansas (defendant) in federal district court. The district court ruled in favor of the Board of Education, citing Plessy v. Ferguson, 163 U.S. 507 (1896), as guidance. The United States Supreme Court granted certiorari.

Reasoning: In deciding the issue it is not possible to rely on the original intent surrounding adoption of the Fourteenth Amendment because prior cases and the legislative history involved in its enactment are inconclusive as to the true extent of its meaning. Additionally, it is not helpful to look at the status of public education at the time the Fourteenth Amendment was adopted, as most Caucasian children were then educated by private schools, and most African American children were not educated at all. Very few public schools existed at the time, which adds to the difficulty in determining the historical intentions surrounding the Fourteenth Amendment’s effect on public education. An examination of the text of the Fourteenth Amendment itself is utilized to determine the intent behind the Amendment’s application to public education. The basic language of the Amendment suggests that it was passed to prohibit all forms of discriminatory legislation against African Americans. In the present case, all basic attributes of the Caucasian and African American schools are essentially the same. To determine whether the segregated schools violate the Fourteenth Amendment as interpreted, it is necessary to examine the actual effect of this segregation on the institution of public education as a whole. Public education has, over the years, become one of the most valued and important public services performed by state and local governments. Children can hardly be expected to succeed in life if they are not educated. Thus, when an opportunity for education exists and the state has undertaken to provide it, that opportunity must then be made available to all students on equal terms. In the present case, the opportunity for education is not equally provided to minority students, as the existence of segregation has a profound and detrimental effect on their hearts and minds. Modern studies confirm that the children experiencing segregation feel inferior, become less motivated, and perform at a lower standard than children that do not experience segregation. To the extent to which Plessy held to the contrary regarding the psychological effects of segregation, it is hereby overturned. The African American students are deprived of equal protection of the laws under the Fourteenth Amendment because of the segregation in their public education.

Rule: Racial segregation of public schools in the District of Columbia violates the Due Process Clause of the Fifth Amendment.

Facts: Bolling (plaintiff) was one of a group of African-Americans who filed suit in the federal court for the District of Columbia to challenge the constitutionality of racial segregation in the district’s public schools. The district court dismissed the complaint and Bolling appealed. The United States Supreme Court granted certiorari prior to an appellate court decision.

Reasoning: Racial segregation of public schools in the District of Columbia violates the Due Process Clause of the Fifth Amendment. We have held that the states are prohibited from racial discrimination in public schools by the Equal Protection Clause of the Fourteenth Amendment. The difficulty in this case arises from the fact that the Fourteenth Amendment applies only to the states and not to the District of Columbia. The Fifth Amendment does apply to the District of Columbia, but it does not contain an equal protection clause like the Fourteenth Amendment. Nonetheless, the concepts of equal protection and due process are closely related. Equal protection affords a somewhat higher level of protection against impermissible discrimination than due process guarantees, but invidious discrimination may rise to the level of a due process violation. The term “liberty” encompasses more than mere restrictions against bodily freedoms and applies to every endeavor that an individual is free to pursue. Liberty may not be restricted except to serve a legitimate government interest. Public school segregation serves no legitimate government interest. Differential treatment of African-American children deprives them of liberty in violation of the Due Process Clause. Having already concluded that the Constitution prohibits the states from discriminating in public education, we cannot rationally exempt the federal government from the same prohibition.

Rule: Adequate compliance with the Court’s previous holding that racial discrimination in public education is unconstitutional requires public schools to desegregate “with all deliberate speed.”

Facts: In its original decision in Brown v. Board of Education (I), 347 U.S. 483 (1954), the United States Supreme Court held that racial discrimination in public education was unconstitutional. The Court upheld a challenge by Brown (plaintiff) to discriminatory racial policies in public schools operated by various boards of education (defendant) in several different states. However, in deciding the original case, the Court left open the question of the appropriate remedy for plaintiffs based on its holding. In the present case, the Court heard arguments from public schools requesting relief concerning the task of desegregation. The Court sought to further explain the specific requirements imposed on public schools in its previous holding that all schools must desegregate.

Reasoning: Since the original decision in Brown v. Board of Education, 347 U.S. 483 (1954) one year ago, public schools have taken substantial steps towards fully desegregating. Individual school officials are responsible for implementing constitutional principles in good faith, but the various district courts that originally heard the cases against all schools involved in Brown are best equipped to determine whether a good faith effort is being made. The case is remanded to those courts. In rendering decisions on the cases, each respective district court is guided by principles of equity. The courts are responsible for furthering the interest of plaintiffs in gaining admission to public schools as soon as possible on a nondiscriminatory basis. The ultimate date of compliance by schools with this interest is up to the discretion of individual courts, which should require schools to desegregate “with all deliberate speed.” Ultimately, the continuing responsibility of monitoring compliance with the Court’s 1954 ruling is left to the district courts.

Rule: A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Facts: In June 1958, Mildred Jeter, an African American woman, and Richard Loving, a Caucasian man (defendants), were married in the District of Columbia pursuant to its laws. They later moved to Virginia (plaintiff) and resided in Caroline County. The laws of Virginia, however, banned interracial marriages within the state. In October 1958, the Lovings were indicted for violating the Virginia law. They plead guilty and were sentenced to one year in jail, but the trial court suspended the sentence for twenty-five years on the condition that the Lovings would leave Virginia and not return to the state together for twenty-five years. The Lovings then moved to the District of Columbia, but filed suit in state trial court to vacate the judgment against them on the grounds that it violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Supreme Court of Appeals affirmed the constitutionality of the Virginia statutes and upheld the convictions. The Lovings appealed to the United States Supreme Court.

Reasoning: State bans on interracial marriages were passed as a reaction to slavery and have been present since the colonial period. Such bans were affirmed by the Racial Integrity Act of 1924, passed during a period of extreme nativism following World War I. However, in the fifteen years preceding the Lovings’ case, fourteen states had repealed their own similar bans on interracial marriage. In the present case, the Commonwealth of Virginia seeks to uphold its interracial marriage ban on the grounds that it furthers a legitimate state purpose of preserving racial integrity and preserving racial pride. Virginia also argues that the regulation of marriage has traditionally been left to the states under the Tenth Amendment. Finally, Virginia argues that the meaning of the Equal Protection Clause suggested that it is only obligated to apply its laws equally among different groups of people. Thus, it argues that it is complying with its obligation by preventing interracial marriage for all people, not just Caucasians. The argument that the mere equal application of a law is enough to overcome the Fourteenth Amendment’s prohibition on invidious racial discrimination is rejected. Virginia’s statute is motivated solely to restrict marriage based on race, and by precedent, such laws have been found to be a threat to equality. At the very least such race-based classifications are subject to strict scrutiny and cannot be upheld unless they are shown to accomplish a permissible state objective independent of the racial discrimination. In the present case, there is no legitimate overriding purpose independent of invidious racial discrimination that justifies Virginia’s classification. The Virginia statutes violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Rule: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits neutral employment policies and practices that, regardless of intent, result in discrimination on the basis of a protected trait.

Facts: Prior to the enactment of the Civil Rights Act of 1964 (the Civil Rights Act), 42 U.S.C. § 2000e et seq., Duke Power Co. (Duke) (defendant) maintained a policy of open discrimination against black employees. Black employees were categorically excluded from all but one of Duke’s departments—the labor department, in which the highest paid employee earned less than the lowest paid employee in any other department. In 1955, Duke began requiring a high school degree for placement in any department other than labor and for transfer to any of the more desirable departments. Beginning on July 2, 1965, the date on which the Civil Rights Act went in to effect, Duke added additional requirements. To be placed in any department other than labor or to be transferred to any inside department, Duke required passage of two aptitude tests in addition to the high school degree requirement. The tests purportedly measured general intelligence but had no relation to job-performance ability. A number of black employees (plaintiffs) challenged the policy under Title VII of the Civil Rights Act. Both the district court and court of appeals held that Duke’s policies reflected no discriminatory purpose and had been applied equally to black and white employees. The court of appeals rejected the claim that because, in practice, the tests excluded a substantially disproportionate number of black employees, it violated Title VII.

Reasoning: Title VII of the Civil Rights Act was intended to bar not only open discrimination but also employer policies that, although neutral in form, in practice discriminate on the basis of race or some other protected trait. There is an exception if the employer can show that the policy is supported by business necessity. Here, Duke failed to show any relationship between the aptitude tests and actual job-performance ability. Generally speaking, the presence of good intent, or the absence of discriminatory intent, does not justify policies or practices that discriminate in operation. Title VII addresses the results of employment practices, not merely their motivations. Section 703(h) of the Act permits job-related ability tests that measure skills required by a particular job, but this does not sanction general intelligence tests that bear no relation to specific job requirements. Title VII does not require employers to hire less qualified employees simply because of their minority status. It requires that race, religion, sex, and national origin be irrelevant in the hiring or promotion processes. Because Duke failed to show that its testing and degree requirements bore any relation to employees’ ability to perform a job or were justified by some business necessity, the policies are not permitted under Title VII.

Rule: As part of a state-wide plan to desegregate schools, state boards of education are required to consider the use of racial quotas, rearrangement of school districts, and busing as practical ways to facilitate desegregation.

Facts: After the Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), the state of North Carolina applied the decision by ending segregation through a school assignment plan based on neighborhoods approved by the Court. However, when Charlotte-Mecklenburg Board of Education (defendant) consolidated school districts from the city itself and within its surrounding areas, the practical effect was that the majority of African American children still attended segregated schools because of the geographic location of their residences. The National Association for the Advancement of Colored People (NAACP) brought suit in federal district court on behalf of Swann (plaintiff), an African American school-age child, challenging continued segregation by the Board and seeking a judgment from the court that busing of students to different school districts was required for desegregation. The district court agreed with Swann, but the court of appeals reversed. The United States Supreme Court granted certiorari.

Reasoning: The ultimate goal is to eliminate segregation in public schools as quickly as possible by issuing equitable judicial remedies designed to address past wrongs in school districts. The following four issues should be addressed in making a determination as to what extent judicial remedies are appropriate for this purpose: (1) to what extent racial balance or racial quotas can be used to remedy past segregation; (2) whether every all-African American or all-Caucasian school must be eliminated to necessarily promote desegregation; (3) to what extent limits exist on the rearrangement of school districts and attendance zones as a remedial measure; and (4) to what extent limits exist on the use of transportation facilities to correct state-enforced racial school segregation. In considering the issue of racial balances and quotas, there is agreement with the district court’s use of mathematical ratios designed to equalize racial proportions in schools as long as such use is very limited. On the issue of the existence of one-race schools, although these school systems are subject to strict scrutiny, their existence alone does not necessarily constitute a barrier to desegregation. The burden falls on school authorities to prove that their racial composition of schools is not the result of present or past discriminatory actions. On the issue of rearranging school districts and attendance zones as a remedial measure, as long as such gerrymandering is used as an interim corrective measure, it cannot be said to be beyond the broad remedial powers of the Court. However, the ultimate purpose required of such plans is that they dismantle racial segregation. Finally, in terms of the scope of the use of transportation facilities to correct racial segregation, there is agreement with the district court’s decree that buses may be used to pick up elementary school children and transfer them to the desegregated schools the children would attend. Desegregation largely depends on the ability of children to be transported to schools outside racially-divided geographic boundaries. As long as the time or distance of bus travel is not so great as to either risk the health of the school children or significantly impinge on the educational process, busing can be used as a necessary part of a school’s desegregation plan. The decision of the court of appeals is reversed.

Rule: A state-sponsored racial classification violates the equal protection provisions in the Fifth Amendment’s Due Process Clause only if it is shown to have both a disproportionate impact on a particular race and is motivated by invidious racial discrimination.

Facts: Davis (plaintiff) was an African American man who, along with another African American man, applied for admission to the Washington, D.C. police department. Both men were turned down and brought suit in federal district court against Washington (defendant), the mayor of Washington, D.C., alleging that the police department used racially discriminatory hiring practices by administering a verbal skills test (Test 21) disproportionately failed by African Americans. The district court held for Washington, but the court of appeals reversed on the grounds that Test 21 was unconstitutional because of its disproportionate impact on African Americans, regardless of whether the police department’s motive was to use the test to discriminate against a particular race. The United States Supreme Court granted certiorari.

Reasoning: The purpose of the Equal Protection Clause is to prevent official conduct that discriminates on the basis of race. However, the Court has never adopted a rule which invalidates official conduct that merely has a disproportionate impact on a particular racial group without evidence of a discriminatory purpose. A discriminatory purpose can be inferred from the totality of the facts, including the fact that a law burdens one race more heavily than another. However, the mere instance of a disproportionate impact does not, without more, trigger strict scrutiny by the courts. Applying these principles to the present case, the administration of Test 21 by the Washington, D.C. police department does not, by itself, indicate a discriminatory purpose. The test itself is neutral on its face and was administered to all applicants to ascertain whether they had reached a particular level of verbal skill necessary for becoming a successful police officer. African Americans that failed the test cannot assert a violation of their right to equal protection of the laws any more than Caucasian applicants that also failed the test. Under Title VII, when challenging hiring and promotion practices that disqualify substantially disproportionate numbers of blacks, a discriminatory purpose need not be proved. Under Title VII, government actors are required to demonstrate that their hiring practices are not discriminatory based on a strict scrutiny standard of review. However, this heightened standard of review is not necessary in applying the Fifth and Fourteenth Amendments to the present case as there is no indication that the Washington, D.C. police department acted with a discriminatory purpose in administering Test 21. Thus Washington, D.C. did not act unconstitutionally in its hiring practices. The judgment of the court of appeals is reversed.

Dissent (Brennan): At a minimum, Washington should be required to prove that Test 21 bears a direct relationship to measuring job-related skills or predicting job performance. Not requiring this proof risks the possibility that applicants with generally good verbal skills will pass the test more often than others, regardless of whether they actually possess sufficient job-related skills. A higher level of scrutiny should have been applied to Washington’s hiring practices in this case.

Rule: A state-sponsored racial classification will not be held to violate the Equal Protection Clause of the Fourteenth Amendment unless a plaintiff shows that the law is motivated by a discriminatory purpose and has a discriminatory impact.

Facts: The Metropolitan Housing Development Corp. (MHDC) (plaintiff) applied for a permit from the Village of Arlington Heights (Village) (defendant) to rezone a fifteen-acre parcel of land from its zoning classification as a single-family use to a multiple-family use classification. MHDC planned to build a racially-integrated complex featuring nearly two hundred townhouse units marketed to low and moderate income tenants. The Village denied the permit request, and MHDC brought suit in federal district court alleging the denial of the permit was racially discriminatory and violated the Fourteenth Amendment and Fair Housing Act of 1968. The district court upheld the permit denial, but the court of appeals reversed.

Reasoning: For its constitutional challenge to be upheld, MHDC must demonstrate both that the law is motivated by a discriminatory purpose and has a discriminatory impact. In determining the existence of a discriminatory purpose, several factors must be considered: (1) the historical background predating the decision; (2) the specific sequence of events leading up to the challenged classification; (3) departures by the state actor from normal procedures; (4) substantive departures, particularly if the factors usually considered important by the decisionmaker strongly point to a decision contrary to the one reached; and (5) the legislative or administrative history surrounding the adoption of the legislative classification. Nothing in the factual record indicates that the sequence of events leading up to the denial of the permit sparks suspicion. The property in question has been zoned exclusively for single-family use for decades. The vast majority of the Village is committed to single-family homes as its dominant residential land use. Additionally, the rezoning request was treated according to usual procedures, with the Village scheduling two additional hearings beyond what was common to reconsider the permit denial. Based on these facts, MHDC did not meet its required burden to show that the denial of its permit was motivated by a discriminatory purpose. The decision of the court of appeals is reversed as the permit denial is constitutional.

Rule: Under the Equal Protection Clause of the Fourteenth Amendment, a public university may not discriminate on the basis of race in its admissions policies even when doing so benefits members of minority races, and all such discriminatory racial classifications are subject to strict scrutiny.

Facts: The University of California, Davis Medical School practiced a policy whereby it reserved sixteen out of one hundred places in its entering class for members of racial minority groups. A special committee was appointed to administer this admissions policy. Allan Bakke (plaintiff) brought suit against the Regents of the University of California (defendant) on the ground that this policy was unconstitutional. Bakke challenged the policy in California state court after his application for admission was rejected even though applicants were admitted under this special policy with grade point averages, MCAT scores, and benchmark scores that were significantly lower than Bakke’s averages and scores. The Supreme Court of California held the admissions policy was unconstitutional and directed Bakke to be admitted to the medical school.

Reasoning: The medical school’s admissions policy which gives preference to minorities is unconstitutional. Under the Equal Protection Clause of the Fourteenth Amendment, a public university may not discriminate on the basis of race in its admissions policies, even when doing so benefits members of minority races. All racial and ethnic classifications are inherently suspect and must be viewed with strict scrutiny. That is, they are only constitutional when narrowly tailored to further a compelling state interest. The framers did not intend the Fourteenth Amendment’s guarantee of equal protection to apply only to racial minorities. The argument that the white “majority” is “preferred” in society and thus less susceptible to the evils of racial classifications is unpersuasive. There is no principled basis for viewing racial classifications that benefit minorities at the expense of the white “majority” as benign. Additionally, any such preferences serve to reinforce negative stereotypes against minorities by suggesting that they can only succeed societally and professionally with the assistance of special preferential programs. Thus, the medical school’s program can only be sustained if it is narrowly tailored to further a compelling state interest. The University Regents argued that the program is necessary to “reduce the historic deficit of traditionally disfavored minorities in medical schools and the medical profession,” to counter the effects of societal discrimination, to increase the number of physicians who will practice in underserved communities, and to obtain the educational benefits associated with an ethnically diverse student body. The first goal is not a compelling purpose because the Constitution expressly forbids preferring members of any one group for no reason other than race or ethnic origin. The second goal is invalid because the Court has never approved a classification of racial groups that benefits people perceived as “victims” in society at the expense of other perfectly innocent people. The third goal is unsupported by evidence that admitted more minority students will actually result in a greater amount of physicians practicing in underserved areas. The fourth goal of increasing diversity is a permissible purpose, but the particular medical school problem falls short because it fails to consider any aspect of “diversity” other than race in its admissions policies. The medical school may consider race as a “plus” in its overall evaluation of an applicant, but may not make admissions decisions solely based on race. The admissions policy is unconstitutional.

Rule: Without evidence of past particular race-based discrimination, a city may not enact a plan to provide a race-based set-aside to exclusively promote minority business enterprises, as this does not constitute narrowly-tailored means geared towards accomplishing a compelling state purpose.

Facts: In 1983, the City of Richmond, Virginia (defendant) adopted the Minority Business Utilization Plan (MBUP) that required primary contractors to whom the City awarded construction contracts to subcontract at least thirty percent of the dollar value of the contract to one or more Minority Business Enterprises (MBEs). The thirty percent set-aside did not apply to primary contractors that were not themselves controlled by minority groups. The City adopted the plan after studies suggested that very few contracts were awarded to MBEs despite the city’s large minority population. No direct evidence existed, however, of any discrimination against MBEs by the City or its prime contractors. The J.A. Croson Co. (plaintiff), a primary contractor, lost its contract with the city after failing to designate thirty percent of the value of its contract to MBEs. Croson sued the City of Richmond in federal district court, which upheld the constitutionality of the MBUP. The court of appeals affirmed, but the United States Supreme Court remanded the case for consideration under a strict scrutiny standard of review. On remand, the court of appeals held the MBUP did not pass strict scrutiny, and Richmond appealed to the United States Supreme Court.

Reasoning: A state or local subdivision of government has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction, as long as it identifies such discrimination with sufficient particularity so as not to run afoul of the Fourteenth Amendment. Here, strict scrutiny is the appropriate standard of review to judge the constitutionality of the City’s actions in attempting to remedy past discrimination. To pass strict scrutiny, the City must demonstrate that it used narrowly-tailored means to accomplish a compelling state interest. The City provides no evidence to identify with particularity instances of past discrimination, but rather justifies its actions based on a general assertion that discrimination in business contracts has historically targeted African Americans. However, the City does not assert that particular MBEs that might benefit from the MBUP were once targets of discrimination. Thus, the MBUP’s stated objectives do not constitute a compelling state interest. Next, the City does not use narrowly-tailored means to accomplish its stated objectives. The MBUP is designed to promote business for many different minority groups. No evidence exists of particularized discrimination against African Americans or other minority groups. Additionally, the City does not consider other race-neutral alternatives by which it might accomplish the same purposes. The MBUP does not pass strict scrutiny and is unconstitutional under the Fourteenth Amendment’s Equal Protection Clause. However, if the city has more concrete evidence of discrimination, its actions in the MBUP might be justified. The judgment of the court of appeals is affirmed.

Dissent (Marshall):
The Court acted improperly in second-guessing Richmond’s judgment about the need for the set-aside on the grounds that it is not supported by sufficient evidence. Richmond, the former capital of the Confederacy, has a strong and highly chronicled history of discrimination against racial minorities. Additionally, applying strict scrutiny to remedial measures targeted at racial discrimination is a sharp step backward from the Court’s prior affirmative action jurisprudence.

Rule: A university’s admissions policy that automatically gives preference to minority students on the basis of race, without additional individualized consideration, violates the Equal Protection Clause of the Fourteenth Amendment.

Facts: Gratz and Hamacher (plaintiffs), both Caucasians, applied for admission to the University of Michigan’s undergraduate program. Both were denied admission and filed suit in federal district court against Bollinger (defendant), a University of Michigan administrator, seeking to challenge the University’s admissions policy on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment. The challenged policy ranked applicants on a 150 point scale that accorded different point values to factors such as grade point average, test results, and personal achievements. However, an applicant automatically received twenty bonus points if he or she was a member of an underrepresented minority group, attended a predominantly minority or disadvantaged high school, or was recruited for athletics. Some applicants were flagged for additional personal consideration, but most were admitted solely based on the point system. The district court found that Bollinger violated Gratz and Hamacher’s right to nondiscriminatory treatment and issued an injunction prohibiting continued use of the admissions policy. The court of appeals reversed, and the United States Supreme Court granted certiorari.

Reasoning: The University’s use of race as a justification for automatically assigning twenty points to each minority applicant is not narrowly-tailored to achieve its purpose of promoting student body diversity. Under this system, applicants are not afforded individualized review and the extra twenty points virtually guarantee admission to any minimally-qualified minority applicants. Thus, race is elevated as the decisive factor in admissions decisions. Other factors such as “extraordinary artistic talent” might be worth only five points on the scale; a very small amount compared to the twenty points given minorities simply due to their status as such. Bollinger argues that the admissions policy is useful for managing the sheer volume of applications received. The fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. The University’s use of race in its admissions policy is not narrowly tailored to achieve the University’s asserted compelling interest in diversity. Hence the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment, along with Title VI and 42 U.S.C. § 1981. The summary judgment portion of the district court’s decision is reversed and remanded for further consideration.

Rule: Consideration of race as a factor in admissions by a state law school does not violate the Fourteenth Amendment because supporting student body diversity is a compelling state interest; however, the school must demonstrate it previously made a serious, good faith consideration of workable, race-neutral alternatives to achieve the sought-after racial diversity.

Facts: The University of Michigan Law School followed an unofficial policy that sought to achieve student body diversity by giving substantial weight to the race of each applicant in making admissions decisions, in addition to its consideration of other academic and non-academic variables. Barbara Grutter (plaintiff) was a Caucasian Michigan resident who applied to the Law School with a 3.8 grade point average and 161 LSAT score. The Law School rejected her application, and she filed suit in federal district court against Bollinger, the university president, and other university officials (defendants) alleging her denial of admission was a violation of the Equal Protection Clause of the Fourteenth Amendment. The district court held that the Law School’s use of race in its admissions policy was unlawful, but the court of appeals reversed.

Reasoning: The Court previously addressed the use of race as a consideration in higher education admissions in its decision in University Regents v. Bakke, 438 U.S. 235 (1978). In Bakke, the Court was unable to reach a majority on the question of whether it was unconstitutional to consider race as an important factor in admissions for the purpose of remedying past discrimination against minorities. Student body diversity is a compelling state interest that justifies the use of race in university admissions. The proper standard for reviewing this issue is strict scrutiny. In determining that the Law School’s policy passed strict scrutiny, a certain amount of deference is given to the Law School’s admissions department in their determination that diversity is essential to its educational mission. The Law School cites significant benefits as reasons for its policy, including the promotion of cross-racial understanding, the breaking down of racial stereotypes, and the enabling of students to better understand persons of different races. Any one of these benefits constitutes a compelling state interest for strict scrutiny. Additionally, the Law School uses narrowly-tailored means to accomplish its purpose because it does not employ a quota system as outlawed in Bakke to achieve diversity. The Law School provides an individual, holistic review of each of its applicants and reasons that alternative methods of achieving the Law School’s purpose risk sacrificing both academic excellence and other types of diversity in the school. However, the Law School should cease racial consideration in its admissions policies after instances of past discrimination have been sufficiently remedied. The admissions policy does not violate the Fourteenth Amendment, and the decision of the court of appeals is affirmed.

Rule: Public schools may not assign students to schools solely on the basis of race for the purpose of achieving racial integration, although the use of narrowly-tailored, race-conscious objectives to achieve general diversity in schools is permissible.

Facts: Seattle School District No. 1 and Jefferson County School District (defendants) voluntarily adopted student assignment plans that relied on race to determine which public schools certain children could attend. In each case, the schools used this system to ensure that the racial balance in any given public school fell within a predetermined range based on the racial composition of the school district as a whole. Parents Involved in Community Schools (PICS) (plaintiff) were parents of students denied assignment to particular schools under these plans solely because of their race. PICS brought suit in district court, claiming that the school districts’ actions violated the Fourteenth Amendment’s guarantee of equal protection of the laws. The district court dismissed the case and upheld the constitutionality of the racial assignment policy, and the court of appeals affirmed.

Reasoning: School assignments relying on racial classifications are subject to strict scrutiny. The school districts’ use of racial classifications must be narrowly tailored to achieve a compelling government interest. There are two government interests that qualify as compelling: the interest of remedying the effects of past discrimination; and the interest of promoting student body diversity in the context of higher education upheld in Grutter v. Bollinger, 539 U.S. 306 (2003). The racial assignment programs at issue are not related to either of these previously recognized interests. Firstly, the programs are not used to remedy the effects of past racial discrimination because such discrimination has never before occurred in PICS districts. Additionally in Grutter, the diversity interest was not focused on promoting racial diversity alone, but rather encompassed all factors contributing to the diversity of the student body. The main factor that distinguishes Grutter from the present case is that the admissions staff in Grutter analyzed each applicant as an individual, not simply as a member of a racial group. Here, race is upheld as the sole factor in making admissions decision. The school districts cite studies showing that students tend to gain intangible benefits from being educated in a racially diverse environment. This argument is rejected. The school districts provide no evidence that the amount of racial diversity necessary to achieve these intangible benefits coincides with the amount of racial diversity achieved by their racial assignment policies. Without clear evidence that the school districts implemented their policies for the purpose of working toward a specific diversity goal that would benefit their students, the race-based policies are unconstitutional. The certain costs of permitting the school districts to continue their race-based assignment policies far outweighs the potential benefits. Limiting where students may or may not attend school based on race alone makes the school districts’ actions no different than those prohibited by the Court in Brown v. Board of Education, 347 U.S. 483 (1954).

Rule: Under Title VII of the Civil Rights Act of 1964, employers must have a strong basis in evidence that race-conscious hiring practices will have an unconstitutionally disparate impact before deciding whether or not to implement such practices.

Facts: Firefighters in New Haven, Connecticut (the city) had to take a written exam before they could be promoted to lieutenant or captain. The pass rate for white candidates on the captain exam was 64 percent; for black and Hispanic candidates, it was 37.5 percent. The pass rate on the lieutenant exam for white candidates was 58.1 percent; for black and Hispanic candidates it was 31.6 percent and 20 percent, respectively. Based on the exam results, only white and Hispanic firefighters, and no African Americans, would be promoted. The city was faced between two lawsuits. If the city used the test scores, it would be sued by those denied promotions. Alternately, if the city did not use the test scores, it would be sued by those who would have been promoted if it had. The city decided not to use the test to make promotion decisions. White and Hispanic firefighters sued the city, arguing that they had been denied promotions in violation of Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause.

Reasoning: Under Title VII of the Civil Rights Act of 1964, employers must have a strong basis in evidence that race-conscious hiring practices will have an unconstitutionally disparate impact before deciding whether or not to implement such practices. Employers can be held liable for practices resulting in disparate treatment, as well as practices resulting in disparate impact, even if there is no evidence of discriminatory intent. In this case, the written firefighter exams had a “significant racial adverse impact” on minorities, because no African Americans passed, which presents a prima facie case of disparate impact liability. The city was required to take a hard look at the test to determine whether making promotions based on the results would make the city liable under Title VII for disparate impact discrimination. However, establishing a prima facie case is not the same as showing there’s a strong basis in evidence. The fact that no African Americans passed the exam was not a strong enough basis in evidence for the city to conclude it would be liable for disparate impact discrimination if it based promotion decisions on the exam results. The city would only be liable if the test was not job related or a necessary business practice or if a less discriminatory alternative existed. There is no strong basis in evidence that the firefighter exam was not job related or a necessary business practice, or that a less discriminatory alternative existed. The firefighter exam does not violate Title VII.

Rule: A public college may consider race as a factor in admissions only if the admissions program is narrowly tailored to further a compelling governmental interest.

Facts: The University of Texas at Austin (the University) (defendant) is a prestigious institution of higher learning. Prior to 1996, the University maintained an admissions program that considered an applicant’s race as one of two factors in determining admission. This was held to be unconstitutional in 1996 by the United States Court of Appeals for the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (1996). Subsequently, the University ceased considering race as a factor in admissions. The Texas state legislature adopted a new statute, referred to as the Top 10 Percent Law, which granted automatic admission to all public colleges in Texas to all students in the top 10 percent of their classes at Texas high schools. In 2004, the University revised the admissions program again, because the University determined that there was no critical mass of minority students enrolled in the University. Under this program, the University considers the applicant’s academic index, which is calculated from the applicant’s test scores and high school academics, and personal-achievement index, which is based on an applicant’s potential contribution to the University. Race was considered as a component of the personal-achievement index. Race was not assigned a numerical value but was considered a meaningful factor. In 2008, Fisher (plaintiff) applied for admission to the University. Fisher was Caucasian and was denied admission. Approximately 29,500 students applied for admission that year, and only 12,843 were admitted. Fisher sued the University, claiming that the admissions program violated the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the University, and Fisher appealed. The United States Court of Appeals for the Fifth Circuit affirmed the district court, and Fisher petitioned the United States Supreme Court for review.

Reasoning: A public college may consider race as a factor in admissions only if the admissions program is narrowly tailored to further a compelling governmental interest. The United States Supreme Court has previously held that the interest in the educational benefits flowing from a diverse student body qualifies as a compelling governmental interest. Regents of University of California v. Bakke, 438 U.S. 265 (1978). A public university’s educational judgment that diversity is essential to the educational mission of the university is entitled to deference. However, the application process must be narrowly tailored to achieve this purpose. A university is not entitled to deference on this issue. The application process must be proven to be narrowly tailored, and the courts must determine that the program ensures that applicants are evaluated as individuals. Race cannot be the defining feature of an applicant’s application. Grutter v. Bollinger, 539 U.S. 306 (2003). Here, the district court and the United States Court of Appeals for the Fifth Circuit deferred to the University’s decision that the University’s application process was narrowly tailored to achieve a critical mass of minority-student enrollment. This deference is not consistent with the strict-scrutiny standard established by Grutter. The University must prove that no workable race-neutral alternative would produce the educational benefits of diversity. Therefore, the case must be remanded back to the court of appeals to determine whether the application process satisfies the strict-scrutiny standard.