Equal Protection

Equal Protection

BIBLIOGRAPHY

Equal protection as a legal concept is the idea that individuals should be treated in the same manner as other individuals in similar circumstances. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution provides that “no state shall... deny to any person within its jurisdiction the equal protection of the laws.” According to the U.S. Supreme Court, the Due Process Clause of the Fifth Amendment also has an “equal protection component,” protecting against arbitrary or unreasonable discrimination by the federal government.

Adopted during the five years following the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments abolished slavery, extended U.S. citizenship to slaves and descendants of former slaves, ensured the right to vote regardless of race, and gave Congress the power to enforce these guarantees through legislation. In that context, the Fourteenth Amendment’s Equal Protection Clause was intended to provide equal rights for blacks, and that was the view taken by the U.S. Supreme Court in the first case in which the clause was invoked. According to the Court in the Slaughterhouse Cases (1873), the purpose of the Equal Protection Clause was to protect “Negroes as a class” from discrimination “on account of their race.”

In subsequent decisions, however, the U.S. Supreme Court limited both the scope and the substance of the Constitution’s equal protection guarantee. In the Civil Rights Cases (1883), the Court ruled that Congress’s authority to enforce the Fourteenth Amendment applied only to government actors, not private individuals. Thus, Congress could not use its enforcement power to prohibit racial discrimination in places such as hotels, restaurants, and theaters. And in Plessy v. Ferguson (1897), the Court held that state laws requiring “equal but separate” facilities for blacks and whites did not violate the Equal Protection Clause, because the Fourteenth Amendment guaranteed political equality but not social equality. According to the Plessy Court, denying blacks the right to serve on juries deprived them of equal protection of the laws, but maintaining dual school systems for black and white students did not. With these decisions, the Supreme Court gave constitutional sanction to racial segregation in education, transportation, public accommodations, employment, and housing.

The Plessy Court cited the maintenance of dual school systems as an example of a policy that was consistent with the separate but equal doctrine. It is noteworthy, then, that it was in a case involving segregated schools that the Court later overturned Plessy v. Ferguson and its approach to equal protection. The Supreme Court’s decision in Brown v. Board of Education (1954) was the culmination of a twenty-year litigation campaign led by the National Association for the Advancement of Colored People to eradicate the separate but equal doctrine in public education. Throughout the 1930s and 1940s the NAACP had brought cases to the Court, seeking to enforce equality between schools for black and white students. By 1954, in the cases that comprised Brown v. Board of Education, the organization was poised to challenge segregated education itself, and the Supreme Court was prepared to agree. In Brown, the Court ruled that “in the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.”

The Brown Court explicitly limited its rejection of segregation to public education, but the decision gave momentum to the nascent civil rights movement that would highlight racial inequality in the United States and motivate political change. One of the early events of the movement was the Montgomery bus boycott of 1955 and 1956. The boycott ended when, in Gayle v. Browder (1956), the U.S. Supreme Court struck down the ordinance requiring segregated seating on city buses as a violation of equal protection of the laws. In other decisions, the Court rejected segregation in public facilities such as courthouses, parks, beaches, and golf courses.

Because the Fifth and Fourteenth Amendments did not prohibit discrimination by private actors, segregation persisted in interstate transportation, public accommodations, employment, and housing. But in Boynton v. Virginia (1960), the Supreme Court ruled that Congress could use its power to regulate interstate commerce to bar discrimination in interstate transportation, and with the Civil Rights Act of 1964, Congress used the commerce power to prohibit discrimination in public accommodations and employment as well. Spurred by the sit-ins of the early 1960s, in which nearly 75,000 demonstrators were involved, the passage of Title II of the Civil Rights Act guaranteed equal access to restaurants, hotels, and places of entertainment that operated in or affected interstate commerce. Title VII, as the Supreme Court interpreted it in Griggs v. Duke Power Company (1971), proscribed “not only overt discrimination” in employment, but also employment policies that were “fair in form but discriminatory in practice.” Four years later, Congress passed Title VIII of the Civil Rights Act of 1968. Known as the Fair Housing Act, the law forbade discrimination in the sale, rental, and financing of housing.

Although the Supreme Court initially ruled that the Equal Protection Clause of the Fourteenth Amendment was intended to guarantee equal rights for blacks, the Court later adopted an expansive interpretation of the “persons” to whom equal protection was guaranteed by the clause, even recognizing corporations as persons. But after 1938, discriminatory treatment by the government based on race would be more difficult to justify than other types of discrimination. Following on Justice Harlan Stone’s famous footnote in United States v. Carolene Products (1938) in which he suggested that “prejudice against discrete and insular minorities” called for “more searching judicial inquiry,” the Supreme Court developed a three-tier approach to equal protection claims. In this approach, government classifications based on race are “suspect” classifications to which “strict scrutiny” must be applied. Strict scrutiny requires government to prove that making distinctions based on race is the least restrictive means available to achieve a compelling interest. Since 1976, sex-based classifications have been identified as “quasi-suspect” and entitled to intermediate or heightened judicial scrutiny. Under “intermediate scrutiny,” a policy that categorizes individuals based on sex must be substantially related to an important government interest. Regarding all other bases for discrimination, the Court requires that the discrimination be reasonably related to a legitimate governmental objective.

SEE ALSO Affirmative Action; Brown v. Board of Education, 1954; Brown v. Board of Education, 1955; Civil Rights; Civil Rights Movement, U.S.; Constitution, U.S.; Desegregation; Reconstruction Era (U.S.); Segregation; Separate-but-Equal; Supreme Court, U.S.

BIBLIOGRAPHY

Abraham, Henry J., and Barbara A. Perry. 2003. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas.

Baer, Judith A. 1983. Equality Under the Constitution: Reclaiming the Fourteenth Amendment. Ithaca, NY: Cornell University Press.

McWhirter, Darien A. 1995. Equal Protection. Phoenix, AZ: Oryx Press.

Malia Reddick