Equal Protection Cases Based on Race

Congress ratified the Fourteenth Amendment in 1868, three years after the end of the American Civil War. Although the language of the amendment is fairly broad, at the time it was primarily intended to ban state discrimination against Black Americans. In addition to granting citizenship to "all persons born or naturalized in the United States," it entitles all citizens "equal protection of the laws." 

What the Fourteenth Amendment Says

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

When government legislates or acts either on the basis of a suspect classification or with regard to a fundamental interest, the traditional standard of equal protection review is abandoned, and the Court exercises strict scrutiny. Under this standard government must demonstrate a high degree of need, and usually little or no presumption favoring the classification is to be expected. After much initial controversy within the Court, it has now created a third category, finding several classifications to be worthy of a degree of intermediate scrutiny requiring a showing of important governmental purposes and a close fit between the classification and the purposes.

Paradigmatic of suspect categories is classification by race. First in the line of cases dealing with this issue is Korematsu v. United States,¹ concerning the wartime evacuation of Japanese-Americans from the West Coast, in which the Court said that because only a single ethnic-racial group was involved the measure was immediately suspect and subject to rigid scrutiny.

Learn More: One of the Supreme Court's Biggest Mistakes - Korematsu v. United States

The school segregation cases² purported to enunciate no per se rule, however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking down state laws prohibiting interracial marriage or cohabitation the Court declared that racial classifications bear a far heavier burden of justification than other classifications and were invalid because no overriding statutory purpose³ was shown and they were not necessary to some legitimate overriding purpose.⁴

A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.⁵ Remedial racial classifications, that is, the development of affirmative action or similar programs that classify on the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional review scrutiny, but whether the highest or some intermediate standard is the applicable test is uncertain.⁶ A measure that does not draw a distinction explicitly on race but that does draw a line between those who seek to use the law to do away with or modify racial discrimination and those who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect.⁷

Racial Segregation and Education

Cases decided soon after ratification of the Fourteenth Amendment may be read as precluding any state-imposed distinction based on race,⁸ but the Court in Plessy v. Ferguson⁹ adopted a principle first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts.¹⁰ Plessy concerned not schools but a state law requiring equal but separate facilities for rail transportation and requiring the separation of "white and colored" passengers. "The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in exercise of their police power."¹¹ The Court observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was noted, even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.¹²

Subsequent cases following Plessy that actually concerned school segregation did not expressly question the doctrine and the Court's decisions assumed its validity. It held, for example, that a Chinese student was not denied equal protection by being classified with African Americans and sent to school with them rather than with white students,¹³ and it upheld the refusal of an injunction to require a school board to close a white high school until it opened a high school for African Americans.¹⁴ And no violation of the Equal Protection Clause was found when a state law prohibited a private college from teaching white and black students together.¹⁵

In 1938, the Court began to move away from separate but equal. It held that a state that operated a law school open to white students only violated a black applicant's right to equal protection, even though the state offered to pay his tuition at an out-of-state law school. The requirement of the clause was for equal facilities within the state.¹⁶ When Texas established a law school for African Americans after the plaintiff had applied and been denied admission to the school maintained for whites, the Court held the action to be inadequate, finding that the nature of law schools and the associations possible in the white school necessarily meant that the separate school was unequal.¹⁷ Equally objectionable was the fact that when Oklahoma admitted an African American law student to its only law school it required him to remain physically separate from the other students.¹⁸

Separate but equal was formally abandoned in Brown v. Board of Education,¹⁹ which involved challenges to segregation per se in the schools of four states in which the lower courts had found that the schools provided were equalized or were in the process of being equalized. Though the Court had asked for argument on the intent of the framers, extensive research had proved inconclusive, and the Court asserted that it could not "turn the clock back to 1867. . . or even to 1896," but must rather consider the issue in the context of the vital importance of education in 1954.

The Court reasoned that denial of opportunity for an adequate education would often be a denial of the opportunity to succeed in life, that separation of the races in the schools solely on the basis of race must necessarily generate feelings of inferiority in the disfavored race adversely affecting education as well as other matters, and therefore that the Equal Protection Clause was violated by such separation:

"We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."²⁰

Learn More: Understanding Brown v. Board of Education

After hearing arguments on what remedial order should issue, the Court remanded the cases to the lower courts to adjust the effectuation of its mandate to the particularities of each school district. "At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis." The lower courts were directed to "require that the defendants make a prompt and reasonable start toward full compliance," although "[o]nce such a start has been made," some additional time would be needed because of problems arising in the course of compliance and the lower courts were to allow it if on inquiry delay were found to be "in the public interest and [to be] consistent with good faith compliance . . . to effectuate a transition to a racially nondiscriminatory school system." In any event, however, the lower courts were to require compliance "with all deliberate speed."²¹

Segregation in Other Contexts

Housing

Buchanan v. Warley²² invalidated an ordinance that prohibited people of color from occupying houses in blocks where the greater number of houses were occupied by any "white person" and that prohibited "white people" from living on blocks where the greater number of houses were occupied by "colored people." Although racially restrictive covenants do not themselves violate the Equal Protection Clause, the judicial enforcement of them, either by injunctive relief or through entertaining damage actions, does.²³ Referendum passage of a constitutional amendment repealing a fair housing law and prohibiting further state or local action in that direction was held unconstitutional in Reitman v. Mulkey,²⁴ though on somewhat ambiguous grounds, whereas a state constitutional requirement that decisions of local authorities to build low-rent housing projects in an area must first be submitted to referendum, although other similar decisions were not so limited, was found not to violate the Equal Protection Clause.²⁵ Private racial discrimination in the sale or rental of housing is subject to two federal laws prohibiting most such discrimination.²⁶ Provision of publicly assisted housing, of course, must be on a nondiscriminatory basis.²⁷

Transportation

The "separate but equal" doctrine won Supreme Court endorsement in the transportation context,²⁸ and its passing in the education field did not long predate its demise in transportation as well.²⁹ During the interval, the Court held invalid a state statute that permitted carriers to provide sleeping and dining cars for white persons only,³⁰ held that a carrier's provision of unequal, or nonexistent, first-class accommodations to African Americans violated the Interstate Commerce Act,³¹ and voided both state-required and privately imposed segregation of the races on interstate carriers as burdens on commerce.³² Boynton v. Virginia³³ voided a trespass conviction of an interstate African American bus passenger who had refused to leave a restaurant that the Court viewed as an integral part of the facilities devoted to interstate commerce and therefore subject to the Interstate Commerce Act.

Public Facilities

In the aftermath of Brown v. Board of Education, the Court, in a lengthy series of per curiam opinions, established the invalidity of segregation in publicly provided or supported facilities and of required segregation in any facility or function.³⁴ A municipality could not operate a racially segregated park pursuant to a will that left the property for that purpose and that specified that only white people could use the park,³⁵ but it was permissible for the state courts to hold that the trust had failed and to imply reverter to the decedent's heirs^.36 A municipality under court order to desegregate its publicly owned swimming pools was held to be entitled to close the pools instead, so long as it entirely ceased operation of them.³⁷

More on Equal Protection

• Understanding Plessy v. Ferguson: History and Significance
• Equal Protection Cases Based on Gender
• Affirmative Action

Footnotes

1. 323 U.S. 214, 216 (1944). In applying rigid scrutiny, however, the Court was deferential to the judgment of military authorities, and to congressional judgment in exercising its war powers.
2. Brown v. Board of Education, 347 U.S. 483 (1954).
3. McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964).
4. Loving v. Virginia, 388 U.S. 1, 11 (1967). In Lee v. Washington, 390 U.S. 333 (1968), it was indicated that preservation of discipline and order in a jail might justify racial segregation there if shown to be necessary.
5. Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979), quoted in Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982).
6. Regents of the Univ. of California v. Bakke, 438 U.S. 265, 287–20 (1978) (Justice Powell announcing the judgment of Court) (suspect), and id. at 355–79 (Justices Brennan, White, Marshall, and Blackmun concurring in part and dissenting in part) (intermediate scrutiny); Fullilove v. Klutznick, 448 U.S. 448, 491–92 (1980) (Chief Justice Burger announcing the judgment of Court) (a most searching examination but not choosing a particular analysis), and id. at 495 (Justice Powell concurring), 523 (Justice Stewart dissenting) (suspect), 548 (Justice Stevens dissenting) (searching scrutiny).
7. Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School Dist., 458 U.S. 457 (1982).
8. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67–72 (1873); Strauder v. West Virginia, 100 U.S. 303, 307–08 (1880); Virginia v. Rives, 100 U.S. 313, 318 (1880); Ex parte Virginia, 100 U.S. 339, 344–45 (1879).
9. 163 U.S. 537 (1896).
10. Roberts v. City of Boston, 59 Mass. 198, 206 (1849).
11. Plessy v. Ferguson, 163 U.S. 537, 543–44 (1896). We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. Id. at 552, 559.
12. 163 U.S. at 544–45. The act of Congress in providing for separate schools in the District of Columbia was specifically noted. Justice Harlan's well-known dissent contended that the purpose and effect of the law in question was discriminatory and stamped black students with a badge of inferiority. [I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. Id. at 552, 559.
13. Gong Lum v. Rice, 275 U.S. 78 (1927).
14. Cumming v. Richmond County Bd. of Educ., 175 U.S. 528 (1899).
15. Berea College v. Kentucky, 211 U.S. 45 (1908).
16. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). See also Sipuel v. Board of Regents, 332 U.S. 631 (1948).
17. Sweatt v. Painter, 339 U.S. 629 (1950).
18. McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
19. 347 U.S. 483 (1954). Segregation in the schools of the District of Columbia was held to violate the due process clause of the Fifth Amendment in Bolling v. Sharpe, 347 U.S. 497 (1954).
20. Brown v. Board of Education, 347 U.S. 483, 489–90, 492–95 (1954).
21. Brown v. Board of Education, 349 U.S. 294, 300–01 (1955).
22. 245 U.S. 60 (1917). See also Harmon v. Tyler, 273 U.S. 668 (1927); Richmond v. Deans, 281 U.S. 704 (1930).
23. Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948); Barrows v. Jackson, 346 U.S. 249 (1953). Cf. Corrigan v. Buckley, 271 U.S. 323 (1926).
24. 387 U.S. 369 (1967).
25. James v. Valtierra, 402 U.S. 137 (1971). The Court did not perceive that either on its face or as applied the provision was other than racially neutral. Justices Marshall, Brennan, and Blackmun dissented. Id. at 143.
26. Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 1982, see Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), and Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), 82 Stat. 73, 42 U.S.C. §§ 3601 et seq.
27. See Hills v. Gautreaux, 425 U.S. 284 (1976).
28. Plessy v. Ferguson, 163 U.S. 537 (1896).
29. Gayle v. Browder, 352 U.S. 903 (1956), aff'g 142 F. Supp. 707 (M.D. Ala.) (statute requiring segregation on buses is unconstitutional). We have settled beyond question that no State may require racial segregation of interstate transportation facilities. . . . This question is no longer open; it is foreclosed as a litigable issue. Bailey v. Patterson, 369 U.S. 31, 33 (1962).
30. McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914).
31. Mitchell v. United States, 313 U.S. 80 (1941).
32. Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339 U.S. 816 (1950).
33. 364 U.S. 454 (1960).
34. E.g., Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf courses); Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971 (1954) (city lease of park facilities); New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958) (public parks and golf courses); State Athletic Comm'n v. Dorsey, 359 U.S. 533 (1959) (statute requiring segregated athletic contests); Turner v. City of Memphis, 369 U.S. 350 (1962) (administrative regulation requiring segregation in airport restaurant); Schiro v. Bynum, 375 U.S. 395 (1964) (ordinance requiring segregation in municipal auditorium).
35. Evans v. Newton, 382 U.S. 296 (1966). State courts had removed the city as trustee but the Court thought the city was still inextricably bound up in the operation and maintenance of the park. Justices Black, Harlan, and Stewart dissented because they thought the removal of the city as trustee removed the element of state action. Id. at 312, 315.
36. Evans v. Abney, 396 U.S. 435 (1970). The Court thought that in effectuating the testator's intent in the fashion best permitted by the Fourteenth Amendment, the state courts engaged in no action violating the Equal Protection Clause. Justices Douglas and Brennan dissented. Id. at 448, 450.
37. Palmer v. Thompson, 403 U.S. 217 (1971). The Court found that there was no official encouragement of discrimination through the act of closing the pools and that inasmuch as both white and black citizens were deprived of the use of the pools there was no unlawful discrimination. Justices White, Brennan, and Marshall dissented, arguing that state action taken solely in opposition to desegregation was impermissible, both in defiance of the lower court order and because it penalized black citizens for asserting their rights. Id. at 240. Justice Douglas also dissented. Id. at 231.