Race

Question 1

1) Plessy:

Answer 1

separate but equal accommodations con’l
a) gradualist litigation strategy to chip away Plessy: challenge certain accommodations as unequal (grad schools), not “separate but equal” faciallyBrown: climax; did not try to challenge Plessy particularly to public schools, but challenged entire doctrine

Question 2

2) Brown I:

Answer 2

separate but equal uncon’l (overturned Plessy); separate facilities = inherently unequal (regardless of tangible equality)

a) Scope: all public facilities (golf courses, swimming pools, etc)
b) Social science as the basis of decision
i) Court relied heavily on empirical research showing that blacks feel inferior for being separated and therefore do not get as good as an education as white
ii) Problem: what if the empirics change, or what if the empirics are different in different contexts (golf); Legal decisions based on empirical data are fragile
(1) FT: Court should have had same ruling on basis that race separation is inherently uncon’l (PERIOD).

Question 3

3) Brown II:

Answer 3

school authorities responsible for desegregation remedies with all deliberate speed in accordance with equitable principles

i) “equitable principles”: very broad/flexible concept of equity; not much direction; easily abused
ii) “all deliberate speed”: SC too accommodating to opposition?–>con’l rights should be enforced now

Question 4

Brown II Stages of Non-Compliance

Answer 4

i) Massive Resistance: absolute refusal/disregard for Brown/desegregation
(1) Cooper v Aarron: AR said states didn’t have to accept ruling–>Brown cannot be nullified by st, either expressly or evasively
(a) 2 forms on AR non-acceptance
(i) departmentalist: AR not a party to Brown, AR not required to desegregate (can enforce Con as it interprets it)
(ii) district ct ordered AR to desegregate, but AR said that fed ct did not have authority to mandate st
(b) Eisenhower, who disagreed with Brown I, sent troops to Little Rock to enforce Brown

Question 5

ii) Resistance w/o explicit refusal

Answer 5

(1) Griffin: If purpose of facially con’l legislation is segregationuncon’l (INTENT MATTERS)
(a) F: VA County closed public schools (con’l to close schools); gave tax credits/tuition subsidies to whites for private schoolsdenied blacks EP

(2) Green: Court will look to practical outcomes to enforce Brown
(a) F: “freedom of choice” plan; in reality white were choosing previously all-white school and blacks were choosing previously all-black schools (via extrajudicial intimidation)uncon’l
(b) Burden is on county to show by RESULTS that previously segregated schools are integrated based off what racial make-up of schools would have been w/o segregation

(3) Swann: whatever lower ct decides is the best remedy to carry out equitable outcome, A-Court will affirm
(a) F: lower ct mandates bussingeven though bussing not necessary everywhere, since judge thinks that it is the best remedy for integration for that school system, aff’d

Question 6

iii) Big Idea:

Answer 6

De Jure vs de facto segregation: all mandated remedies only apply to schools that were de jure (by law) segregatedif all/mostly of one race naturally (de facto segregation), then remedies not required

(1) Morgan: Boston school committee engaged in intentional segregation by race (overcrowded white schools/undercrowded black schools); officials tried to keep de facto segregation by not sending whites to black schoolsjudge did not allow this

(2) Debate: Can Con. remedy de fact segregation/ social imbalances
(a) predominant view: No, for Con. to extend to EP claim, segregation must have been proximately de jure
(i) counter: FT: de facto segregation is rooted in de jure segregation (slavery, bad education)

Question 7

4) Standard of review

Answer 7

a) Rational Basis review = basic line-drawing (Lee Optical, Railway Express, Dykes)
b) Strict Scrutiny = line-drawing based off race
(1) SS Inquiry:
(a) Compelling st interest?
(b) If yes, least restrictive alt.?

Question 8

ii) Explicitly discriminatory statute

Answer 8

(1) Korematsu: racial classifications are suspect (subject to most rigid scrutiny)
(a) F: upheld laws discriminating against Japanese Americans
(b) nat’l sec. sufficient justification, but gave high deference to military determinations = not SS (Q: Is strict SoR dif in times of war? FT: No)
(c) dissent: SS requires least restrictive altcould have done preliminary hearing to check loyalty

(2) Sidoti: rational justification (even empirical support) =/= compelling interest, and therefore uncon’l
(a) F: denied custody to white mother because new husband was blackuncon’l even assuming good faith justification that child would be subject to undue discrimination

(3) Loving: even if law applies equally to both sides (equal application), still can be uncon’l
(a) F: denying interracial marriageuncon’l; don’t have to prove one race is treated worse

Question 9

iii) Neutral statute + …

Answer 9

(1) …discriminatory application = SS
(a) Yick Wo: application of laws (not just laws themselves) can violate EP Clause
(i) F: st applied laundry law only against Chineseuncon’l
(2) ….discriminatory impact w/o discriminatory intention = NO SS = INTENT MATTERS

(a) WA v Davis: blacks failed employment test 4x more than whites (no intent to discriminate)not SS
(i) counter: de facto seg (impact) rooted in de jure segregationshould be SS
1. Court counter: floodgates argument: every law could be subject to challenge

(b) Feeney: foreseeable discriminatory impact absent discriminatory intent = no SS
(i) F: veteran preference for public employment (most veterans men)con’l