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Equal Protection of the Law

Equal Protection of the Law

It should be noted at the outset that the provision for the equal protection of the law in the United States, set forth in the Fourteenth Amendment of the U.S. Constitution, applies only to discrimination that results from the actions or policies of governments. Purely private discrimination cannot be prosecuted under the Fourteenth Amendment (although it may be reached in limited circumstances by other means). The Equal Protection Clause of the Fourteenth Amendment (ratified in 1868 as a consequence of the Civil War, which ended in 1865) seemed to offer the prospect of protecting former slaves against discriminatory state laws. In fact, with only a few exceptions, it provided little effective protection against racial discrimination until the period following World War II (1939–1945). The principal obstacle was the Supreme Court's decision in Plessy v. Ferguson (1896), which established the "separate but equal" doctrine, a concept that effectively condoned racial segregation in public schools and supported an environment in which racial segregation could flourish. Under the separate but equal doctrine, the Supreme Court held in 1899 that the County Board of Education of Richmond County, Georgia, could, within its discretion, allocate its resources to provide several alternatives for high school education for white students, while providing only primary education for black students. The proper conclusion at the time was that equal protection of the law had become an empty promise.

reviving the equal protection clause

Indeed, it was not the Supreme Court that spontaneously revived the Equal Protection Clause, but rather a series of cases brought by the National Association for the Advancement of Colored People (NAACP). This group's primary strategy was to show how the "equal" requirement of Plessy had been entirely ignored by bringing lawsuits demanding equal allocations of resources.

The rejection of racial segregation in public education in Brown v. Board of Education in 1954 flowed directly from decisions handed down about segregated graduate and profession education in the 1940s and early 1950s. These decisions were especially important when viewed in combination with the language of the Supreme Court decision in Korematsu v. United States in 1944. Although that decision eventually became notorious for its support of wartime exclusion and internment orders against Japanese Americans during World War II, it did contain the important prescription that laws "which curtail the civil rights of a single racial group are immediately suspect," and federal courts "must subject them to rigid scrutiny."

levels of scrutiny

Probably the key to understanding the Supreme Court's twenty-first-century approach to equal protection is to review the three levels of equal protection scrutiny that the justices have developed over time. The first and highest level of scrutiny applies to all instances of racial or ethnic discrimination, as declared in Korematsu. The result is that the use of any racial or ethnic category in public policy is inherently suspect; indeed, it is presumptively invalid. This has been the case since Brown and its progeny were decided in the 1950s and 1960s. Strict scrutiny has the consequence of shifting the burden of justification to the government that has used a racial category by forcing it to demonstrate that there is a compelling public necessity for the policy, and that no other available means would achieve its purpose. As shall be seen below, this raises questions about the constitutionality of affirmative action programs. These policies are designed to remediate the consequences of years of public discrimination by taking race into account to favor those minorities who formerly were the subjects of discrimination.

The second level of equal protection of scrutiny was developed in cases involving gender discrimination. Specifically, in Craig v. Boren (1976), the Supreme Court through Associate Justice William Brennan restated the "heightened scrutiny" standard. Thus, when a government applies a policy involving a gender distinction, it is required to show that the use of gender involves an important governmental objective and that gender distinction is substantially related to the achievement of that objective. Gender is subjected to heightened scrutiny, rather than strict scrutiny, because the Court recognizes that there are instances in which gender distinctions may be appropriate, as, for example, in policies that protect pregnant workers in employment. However, except for the occasions in which race-based affirmative action programs have been approved by the Court, the use of racial distinctions cannot be justified under the strict scrutiny standard.

The third level of scrutiny is the one under which governments most often prevail. When a categorical distinction that has not been included under strict or heightened scrutiny is contained in a public policy and challenged in court, those who challenge the policy have the burden of demonstrating that the policy has no rational basis. In effect, the plaintiff must prove that the policy is arbitrary , capricious, and unreasonable. That is a difficult standard for a plaintiff to meet. A hypothetical example would be the use of standardized tests, such as the SAT, for college admissions decisions. Sorting applicants by test scores creates categories of those who are admitted and those who are rejected. A lawsuit challenging the use of such test scores as discriminatory would have to demonstrate that the tests provide no rational basis for admissions decisions. At best, that is a difficult and expensive burden to meet. Most plaintiffs will fail. Therefore, in equal protection cases the key decision is which of the three standards shall be applied.

the key decision: brown v. board of education

Brown v. Board of Education of Topeka, Kansas (1954) is by far the most famous equal protection case the Supreme Court has yet decided. The holding that racially segregated public schools were inherently unequal and could not be made equal was a clarion call for the use of the equal protection clause by advocates of racial justice. The follow-up enforcement decision in 1955, however, revealed a faint-hearted court that allowed federal district judges to enforce Brown with "all deliberate speed." In most instances the word "speed" in Brown became much like the word "equal" in Plessy, and it was not until Congress passed major civil rights legislation in 1964 and 1965 that much serious enforcement resulted.

One of the key problems in enforcing school desegregation lay in the distinction between de jure (required by law) and de facto (existing in fact) racial segregation. When segregated public education was required or permitted by law, it was relatively simple to strike down the offending legislation, but that did not necessarily mean that integrated schools would follow. Neighborhood residential patterns often reflected the fact of de jure segregation, but eliminating only the formal laws usually would not change the reality of (de facto) segregated neighborhoods. To be sure, some public schools could be integrated within adjacent neighborhoods, but as distances between homes and schools increased, other methods became necessary to achieve any real integration.

integrating public education

One answer came in the case of Swann v. Charlotte–Mecklenburg (1971). The public schools in Mecklenburg County, North Carolina, had been consolidated in 1960 into one countywide system. The unintended result was that the

consolidation made possible a metropolitan plan for integrating schools when a suit was brought challenging the segregated county system. It was through the Swann opinion that a majority of the Supreme Court embraced an understanding of equality that measured the achievement of an integrated school system by examining the degree to which racial proportions in individual schools matched those of the school district as a whole.

different meanings of equality

In his 1981 book Equalities, Douglas Rae formulated an important structural grammar of equality. Usually, most people argue that equality means that everyone ought to be treated alike. Rae calls this "individual-regarding equality," with its broadest application as an inclusionary standard that describes an egalitarian society as one in which everyone is treated alike without regard to race, creed, color, age, gender, sexual orientation, and so on. Individualism is an important cultural principle in the United States—a principle that most Americans recognize and support without much reflection—but it is important to recognize that individual-regarding equality is only one version of equality. It is a particularly American version.

u.s. supreme court cases addressing equality

Brown v. Board of Education, 347 U.S. 483 (1954), 349 U.S. 294 (1955)

Craig v. Boren, 429 U.S. 190 (1976)

Cummings v. County Board of Education of Richmond County, Georgia, 175 U.S. 628 (1899)

Korematsu v. U.S., 323 U.S. 214 (1944)

Lawrence v. Texas, 539 U.S. 558 (2003)

Milliken v. Bradley, 418 U.S. 717 (1974)

Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Romer v. Evans, 615 U.S. 620 (1996)

Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. 631 (1948)

Swann v. Charlotte–Mecklenburg Board of Education, 402 U.S. 1 (1971)

Sweatt v. Painter, 339 U.S. 629 (1950)

Another version, often favored in other cultures, can be found in "groupregarding equality." Recognizing that in real societies there are all sorts of social categories and divisions, equality can also be achieved when one group, taken as a whole, does as well as another comparable group. With respect to racial and gender equality, for example, an equal society would be achieved when blacks as a group do as well as whites as a group, or when women do as well as men. The approved policy in Swann was much like this. It measured success by comparing the outcomes for each racial group taken as a whole. A strong argument for this solution lies in the fact that racial discrimination is in fact directed at a group's characteristics (e.g., African Americans), not at the characteristics of individuals. Since discrimination has been group-directed, the remedy should also be. Most group-directed programs are remedial . Thus, they are enforced only until the vestiges of prior group discrimination have been removed. The arguments in favor of remedial affirmative action programs are consistent with group-regarding equality, whereas arguments against affirmative action are consistent with individual-regarding equality. Each view has its advocates, which is why affirmative action programs have been so controversial.

For all the promise that Swann seemed to offer, it rested on the voluntary 1960 consolidation of many school districts into a single countywide metropolitan district. That singularity became evident in the 1974 decision Milliken v. Bradley. In this case, a federal judge ordered fifty-three adjacent school districts in metropolitan Detroit to be combined into a single district for which a comprehensive plan of desegregation would be devised. However, this time there was no voluntary consolidation; instead, there was steadfast resistance. To support the consolidation, Chief Justice Warren Burger's opinion in Milliken required a finding of fact that each district which had been brought into the metropolitan Detroit system had contributed to the de jure segregation that the federal courts sought to redress . This, of course, was not practicable. The consequence has been that most metropolitan areas with multiple school districts cannot be effectively integrated.

Since the 1954 decision in Brown v. Board of Education, equal protection cases have fallen into two broad groups. The first group includes all the cases involving affirmative action programs. Some of these are pure equal protection cases, but a greater number rely on federal statutes , such as Title VII (discrimination in employment) of the Civil Rights Act of 1964. The second group includes all the cases that "discover" new forms of categorical discrimination and seek to bring them within a new understanding of equal protection of the law.

affirmative action

Affirmative action cases are too numerous and too complex to cover in much detail here. In general terms, affirmative action programs in employment cases (mostly statutory cases involving hiring, retention, and promotion) have been upheld in the federal courts when it has been shown that an institution or employer has discriminated in the past and that an affirmative action program, which addresses a category such as race or gender, is designed as a form of compensatory relief to repair the damage of historic discrimination. When racial or gender parity is achieved in a particular employment sector, the relevant affirmative action program would no longer be required.

Affirmative action in public higher education admissions cases has most often been upheld when states have included among their admissions objectives the achievement of a racially or ethnically diverse student body, provided that race or ethnicity is only one factor taken into account (not the single or dominant factor) and also that racial or ethnic quotas are not employed in the admissions process.

the evolution of categorical discrimination

As to the evolution of categorical discrimination, in the 1971 case of Reed v. Reed, the Supreme Court found discrimination based on gender to be covered by the equal protection clause, and in 1976 it established the heightened scrutiny standard that would be applied to gender discrimination. Since then, most public policies that have rested on sexual stereotypes, rather than physiological differences between men and women, have been set aside. Other discrimination cases have considered illegitimacy, poverty, age, alien status, state residency requirements, mental retardation, and other forms of disability as possible objects of prohibited categorical discrimination, but with mixed results. Race remains the best example of a classification viewed suspiciously by the Supreme Court, and gender has been its only consistent rival in the enforcement of equal protection.

The most interesting aspect of equal protection law in the late twentieth and early twenty-first century has been the open-ended character of its application. This is best illustrated by cases involving sexual orientation. Thus, in 1996 in Romer v. Evans, the Supreme Court struck down Colorado's constitutional amendment that prohibited state and local governments from enforcing policies that would afford legal protection to gays and lesbians. In 2003 in Lawrence v. Texas, the Court overturned a Texas law criminalizing sodomy between consenting adults that, in fact, had only been enforced against homosexual couples. At the time of its decision in Lawrence, only thirteen states still had laws against sodomy, and the laws of only four of those applied solely to homosexual conduct. Those states that still had general laws against sodomy normally enforced them only against homosexuals. Lawrence can be read chiefly as a privacy case that allows homosexual adults the right to engage in sexual conduct in the privacy of their homes, but the opinion of Associate Justice Anthony Kennedy goes beyond that, recognizing their dignity as free persons and holding that no legitimate state interest can justify intrusion into their personal and private lives.

In November 2003 the Massachusetts Supreme Judicial Court held that its state laws limiting marriage to heterosexuals represented a violation of the Massachusetts Constitution that requires "equality before the law." The Supreme Court has yet to go this far, but the issue is at the cutting edge of the law. It seems possible that sexual orientation will eventually be accorded at least the same heightened scrutiny that has been applied in cases involving gender discrimination. But that will take time and will likely also involve intense litigation .

See also: Civil Rights Movement in the United States; Equality Before the Law; Gender Discrimination; Racism.


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

Jackson, Donald W. Even the Children of Strangers: Equality under the U.S. Constitution. Lawrence: University Press of Kansas, 1992.

Kluger, Richard. Simple Justice. New York: Vintage Books, 1975.

Rae, Douglas. Equalities. Cambridge, MA: Harvard University Press, 1981.

Woodward, C. Vann. The Strange Career of Jim Crow. New York: Oxford University Press, 1968.

Donald W. Jackson

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