RACE AND EQUAL PROTECTION – PART 1 | GOVT 422

RACE AND EQUAL PROTECTION – PART 1

I. Toward Strict Scrutiny

It has been called the “most famous footnote in Constitutional Law” and certainly it is the most famous one

in Equal Protection doctrine. The case in which it occurred, United States v. Carolene Products Company,

304 U.S. 144 (1938), did not involve the Equal Protection Clause or racial classifications. Instead, at issue

was a federal statute regulating the shipment of “filled milk” (skimmed milk to which nonmilk fat is added

so that it may seem to be like whole milk or even cream). The challenges to the law were based on a lack

of Congressional power under the Commerce Clause and a Due Process Clause of the Fifth Amendment

violation.

In footnote four, Justice Harlan Stone wrote for the Court:

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 enquire whether similar considerations enter into the review of statutes directed at particular

religious, or national, 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.

B. The Japanese Internment Cases

Hirabayashi v. United States

320 U.S. 81 (1943)

Mr. Chief Justice Stone delivered the opinion of the Court

Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act

of Congress of March 21, 1942, 56 Stat. 173, 18 U.S.C. § 97a, which makes it a misdemeanor knowingly

to disregard restrictions made applicable by a military commander to persons in a military area prescribed

by him as such, all as authorized by an Executive Order of the President.

The questions for our decision are whether the particular restriction violated, namely that all persons of

Japanese ancestry residing in such an area be within their place of residence daily between the hours of

8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional

delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated

between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment. *

* * *

{The evidence showed that} appellant was born in Seattle in 1918, of Japanese parents who had come from

Japan to the United States, and who had never afterward returned to Japan; that he was educated in the

Washington public schools and at the time of his arrest was a senior in the University of Washington; that

he had never been in Japan or had any association with Japanese residing there.

The evidence showed that appellant had failed to report to the Civil Control Station on May 11 or May 12,

1942, as directed, to register for evacuation from the military area. He admitted failure to do so, and stated

it had at all times been his belief that he would be waiving his rights as an American citizen by so doing.

The evidence also showed that for like reason he was away from his place of residence after 8:00 p.m. on

May 9, 1942. The jury returned a verdict of guilty on both counts and appellant was sentenced to

imprisonment for a term of three months on each, the sentences to run concurrently.* * * *

The curfew order which appellant violated, and to which the sanction prescribed by the Act of Congress

has been deemed to attach, purported to be issued pursuant to an Executive Order of the President. In

passing upon the authority of the military commander to make and execute the order, it becomes necessary

to consider in some detail the official action which preceded or accompanied the order and from which it

derives its purported authority. * * * *

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{We therefore conclude that} Executive Order No. 9066, promulgated in time of war for the declared

purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and

the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the

power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed

forces, by Articles I and II of the Constitution. * * * *

In the critical days of March, 1942, the danger to our war production by sabotage and espionage in this area

seems obvious. The German invasion of the Western European countries had given ample warning to the

world of the menace of the ‘fifth column.’ Espionage by persons in sympathy with the Japanese

Government had been found to have been particularly effective in the surprise attack on Pearl Harbor. At a

time of threatened Japanese attack upon this country, the nature of our inhabitants’ attachments to the

Japanese enemy was consequently a matter of grave concern. Of the 126,000 persons of Japanese descent

in the United States, citizens and non-citizens, approximately 112,000 resided in California, Oregon and

Washington at the time of the adoption of the military regulations. Of these approximately two-thirds are

citizens because born in the United States. Not only did the great majority of such persons reside within the

Pacific Coast states but they were concentrated in or near three of the large cities, Seattle, Portland and Los

Angeles, all in Military Area No. 1.

There is support for the view that social, economic and political conditions which have prevailed since the

close of the last century, when the Japanese began to come to this country in substantial numbers, have

intensified their solidarity and have in large measure prevented their assimilation as an integral part of the

white population. In addition, large numbers of children of Japanese parentage are sent to Japanese language

schools outside the regular hours of public schools in the locality. Some of these schools are generally

believed to be sources of Japanese nationalistic propaganda, cultivating allegiance to Japan. Considerable

numbers, estimated to be approximately 10,000, of American-born children of Japanese parentage have

been sent to Japan for all or a part of their education.

Congress and the Executive, including the military commander, could have attributed special significance,

in its bearing on the loyalties of persons of Japanese descent, to the maintenance by Japan of its system of

dual citizenship. Children born in the United States of Japanese alien parents, and especially those children

born before December 1, 1924, are under many circumstances deemed, by Japanese law, to be citizens of

Japan. No official census of those whom Japan regards as having thus retained Japanese citizenship is

available, but there is ground for the belief that the number is large.

The large number of resident alien Japanese, approximately one-third of all Japanese inhabitants of the

country, are of mature years and occupy positions of influence in Japanese communities. The association

of influential Japanese residents with Japanese Consulates has been deemed a ready means for the

dissemination of propaganda and for the maintenance of the influence of the Japanese Government with

the Japanese population in this country.

As a result of all these conditions affecting the life of the Japanese, both aliens and citizens, in the Pacific

Coast area, there has been relatively little social intercourse between them and the white population. The

restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of

Japanese extraction residing in the United States, have been sources of irritation and may well have tended

to increase their isolation, and in many instances their attachments to Japan and its institutions.

Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that

these conditions have encouraged the continued attachment of members of this group to Japan and Japanese

institutions. * * * *

But appellant insists that the exercise of the power is inappropriate and unconstitutional because it

discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth

Amendment contains no equal protection clause and it restrains only such discriminatory legislation by

Congress as amounts to a denial of due process. Congress may hit at a particular danger where it is seen,

without providing for others which are not so evident or so urgent.

Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people

whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or

discrimination based on race alone has often been held to be a denial of equal protection. {citations

omitted}. We may assume that these considerations would be controlling here were it not for the fact that

the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military

authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas.

Because racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means

follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking

into account those facts and circumstances which are relevant to measures for our national defense and for

the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different

category from others. * * * *

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Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances

preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis

for the action taken in imposing the curfew. We cannot close our eyes to the fact, demonstrated by

experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater

source of danger than those of a different ancestry. Nor can we deny that Congress, and the military

authorities acting with its authorization, have constitutional power to appraise the danger in the light of

facts of public notoriety. We need not now attempt to define the ultimate boundaries of the war power. We

decide only the issue as we have defined it—we decide only that the curfew order as applied, and at the

time it was applied, was within the boundaries of the war power. In this case it is enough that circumstances

within the knowledge of those charged with the responsibility for maintaining the national defense afforded

a rational basis for the decision which they made. Whether we would have made it is irrelevant. * * * *

The conviction under the second count is without constitutional infirmity. Hence we have no occasion to

review the conviction on the first count since, as already stated, the sentences on the two counts are to run

concurrently and conviction on the second is sufficient to sustain the sentence. For this reason also it is

unnecessary to consider the Government’s argument that compliance with the order to report at the Civilian

Control Station did not necessarily entail confinement in a relocation center.

Affirmed.

Mr. Justice Murphy, concurring

* * * * Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals.

They are at variance with the principles for which we are now waging war. We cannot close our eyes to the

fact that for centuries the Old World has been torn by racial and religious conflicts and has suffered the

worst kind of anguish because of inequality of treatment for different groups. There was one law for one

and a different law for another. Nothing is written more firmly into our law than the compact of the

Plymouth voyagers to have just and equal laws. To say that any group cannot be assimilated is to admit that

the great American experiment has failed, that our way of life has failed when confronted with the normal

attachment of certain groups to the lands of their forefathers. As a nation we embrace many groups, some

of them among the oldest settlements in our midst, which have isolated themselves for religious and cultural

reasons.

Today is the first time, so far as I am aware, that we have sustained a substantial restriction of the personal

liberty of citizens of the United States based upon the accident of race or ancestry. Under the curfew order

here challenged no less than 70,000 American citizens have been placed under a special ban and deprived

of their liberty because of their particular racial inheritance. In this sense it bears a melancholy resemblance

to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. The

result is the creation in this country of two classes of citizens for the purposes of a critical and perilous

hour—to sanction discrimination between groups of United States citizens on the basis of ancestry. In my

opinion this goes to the very brink of constitutional power.

Except under conditions of great emergency a regulation of this kind applicable solely to citizens of a

particular racial extraction would not be regarded as in accord with the requirement of due process of law

contained in the Fifth Amendment. * * * *

Korematsu v. United States

323 U.S. 214 (1944)

Mr. Justice Black delivered the opinion of the Court

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for

remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of

the Commanding General of the Western Command, U.S. Army, which directed that, after May 9, 1942,

all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s

loyalty to the United States. The Circuit Court of Appeals affirmed and the importance of the constitutional

question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial

group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say

that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify

the existence of such restrictions; racial antagonism never can.

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* * * * {In Hirabayashi, it was argued that} to apply the curfew order against none but citizens of

Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To

these questions, we gave the serious consideration which their importance justified. We upheld the curfew

order as an exercise of the power of the government to take steps necessary to prevent espionage and

sabotage in an area threatened by Japanese attack.

In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was

beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West

Coast war area at the time they did. True, exclusion from the area in which one’s home is located is a far

greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of

apprehension by the proper military authorities of the gravest imminent danger to the public safety can

constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and

close relationship to the prevention of espionage and sabotage. The military authorities, charged with the

primary responsibility of defending our shores, concluded that curfew provided inadequate protection and

ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with

Congressional authority to the military to say who should, and who should not, remain in the threatened

areas. * * * *

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely

because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards

the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of

a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the

assembly and relocation centers—and we deem it unjustifiable to call them concentration camps, with all

the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order.

To cast this case into outlines of racial prejudice, without reference to the real military dangers which were

presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of

hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the

properly constituted military authorities feared an invasion of our West Coast and felt constrained to take

proper security measures, because they decided that the military urgency of the situation demanded that all

citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because

Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—

determined that they should have the power to do just this. There was evidence of disloyalty on the part of

some, the military authorities considered that the need for action was great, and time was short. We

cannot—by availing ourselves of the calm perspective of hindsight—now say that, at that time, these actions

were unjustified.

Affirmed.

Mr. Justice Frankfurter, concurring.

* * * * * To find that the Constitution does not forbid the military measures now complained of does

not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

Mr. Justice Roberts, dissenting

I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States, nor a case

of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of

offering him an opportunity to go temporarily out of an area where his presence might cause danger to

himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not

submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his

ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.

* * * *

Mr. Justice Murphy, dissenting

This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area

on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes

over “the very brink of constitutional power,” and falls into the ugly abyss of racism.

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In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and

consideration to the judgments of the military authorities who are on the scene and who have full knowledge

of the military facts. * * * *

It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a

very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area.

The military command was therefore justified in adopting all reasonable means necessary to combat these

dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too

high or too meticulous standards; it is necessary only that the action have some reasonable relation to the

removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or

permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that

relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the

assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and

espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic, or

experience could be marshalled in support of such an assumption.

That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt, rather

than bona fide military necessity is evidenced by the Commanding General’s Final Report on the evacuation

from the Pacific Coast area. In it, he refers to all individuals of Japanese descent as “subversive,” as

belonging to “an enemy race” whose “racial strains are undiluted,” and as constituting “over 112,000

potential enemies . . . at large today” along the Pacific Coast. In support of this blanket condemnation of all

persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were

generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace

to defense installations or war industries, or had otherwise, by their behavior, furnished reasonable ground

for their exclusion as a group.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds

not ordinarily within the realm of expert military judgment, supplemented by certain semi-military

conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry

are condemned because they are said to be “a large, unassimilated, tightly knit racial group, bound to an

enemy nation by strong ties of race, culture, custom and religion.” They are claimed to be given to “emperor

worshipping ceremonies,” and to “dual citizenship.” Japanese language schools and allegedly pro-Japanese

organizations are cited as evidence of possible group disloyalty, together with facts as to certain persons

being educated and residing at length in Japan. It is intimated that many of these individuals deliberately

resided “adjacent to strategic points,” thus enabling them to carry into execution a tremendous program of

sabotage on a mass scale should any considerable number of them have been inclined to do so. * * * *

No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by

holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of

persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is

asserted merely that the loyalties of this group “were unknown and time was of the essence.” Yet nearly

four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months

went by until the last order was issued, and the last of these “subversive” persons was not actually removed

until almost eleven months had elapsed. * * * *

Mr. Justice Jackson, dissenting

* * * * Much is said of the danger to liberty from the Army program for deporting and detaining

these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain

this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order,

however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a

succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show

that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution

sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal

procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready

for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition

imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe

the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand

itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it

is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.

There it has a generative power of its own, and all that it creates will be in its own image. Nothing better

illustrates this danger than does the Court’s opinion in this case.

* * * *

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Check Your Understanding

Notes

1. Be prepared to articulate the standard(s) used by the Court in Hirabayshi and Korematsu? Is it

reasonableness or something more “searching” as Carolene Products footnote four suggests would be

appropriate?

2. The cases cited in the opinions as support for the proposition that the Court has previously held

legislative classification on race alone violative of equal protection include Yick Wo v. Hopkins, which we

will discuss later, and Hill v. Texas (1942), holding the exclusion of “negroes” in grand jury service in

Texas violated the Equal Protection Clause.

3. Both Gordon Hirabayshi and Fred Korematsu were active in civil rights after World War II,

including efforts to obtain reparations and apologies and were honored by Presidential Medals of Freedom.

II. Dismantling Plessy in Education

State of Missouri ex rel. Gaines v. Canada

305 U.S. 337 (1938)

Mr. Chief Justice Hughes delivered the opinion of the Court.

Petitioner Lloyd Gaines, a negro, was refused admission to the School of Law of the State University of

Missouri. Asserting that this refusal constituted a denial by the State of the equal protection of the laws in

violation of the Fourteenth Amendment of the Federal Constitution, petitioner brought this action for

mandamus to compel the curators of the University to admit him. {Note: The Registrar of the law school

was named Cy Woodson Canada, who is the Respondent}. On final hearing, an alternative writ was quashed

and a peremptory writ was denied by the {state} Circuit Court. The Supreme Court of the State affirmed

the judgment. We granted certiorari.

Petitioner is a citizen of Missouri. In August, 1935, he was graduated with the degree of Bachelor of Arts

at the Lincoln University, an institution maintained by the State of Missouri for the higher education of

negroes. That University has no law school. Upon the filing of his application for admission to the law

school of the University of Missouri, the registrar advised him to communicate with the president of Lincoln

University and the latter directed petitioner’s attention to § 9622 of the Revised Statutes of Missouri (1929),

providing as follows:

May arrange for attendance at university of any adjacent state-tuition fees. Pending the full development of

the Lincoln university, the board of curators shall have the authority to arrange for the attendance of negro

residents of the state of Missouri at the university of any adjacent state to take any course or to study any

subjects provided for at the state university of Missouri, and which are not taught at the Lincoln university

and to pay the reasonable tuition fees for such attendance; provided that whenever the board of curators

deem it advisable they shall have the power to open any necessary school or department.

Petitioner was advised to apply to the State Superintendent of Schools for aid under that statute. It was

admitted on the trial that petitioner’s ‘work and credits at the Lincoln University would qualify him for

admission to the School of Law of the University of Missouri if he were found otherwise eligible’. He was

refused admission upon the ground that it was ‘contrary to the constitution, laws and public policy of the

State to admit a negro as a student in the University of Missouri’. It appears that there are schools of law in

connection with the state universities of four adjacent States, Kansas, Nebraska, Iowa and Illinois, where

non-resident negroes are admitted.

The clear and definite conclusions of the state court in construing the pertinent state legislation narrow the

issue. The action of the curators, who are representatives of the State in the management of the state

university must be regarded as state action. The state constitution provides that separate free public schools

shall be established for the education of children of African descent (Art. 11, Sec. 3), and by statute separate

high school facilities are supplied for colored students equal to those provided for white students. While

there is no express constitutional provision requiring that the white and negro races be separated for the

purpose of higher education, the state court on a comprehensive review of the state statutes held that it was

intended to separate the white and negro races for that purpose also. * * * *

In answering petitioner’s contention that this discrimination constituted a denial of his constitutional right,

the state court has fully recognized the obligation of the State to provide negroes with advantages for higher

education substantially equal to the advantages afforded to white students. The State has sought to fulfill

that obligation by furnishing equal facilities in separate schools, a method

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the validity of which has been sustained by our decisions. Plessy v. Ferguson. Respondents’ counsel have

appropriately emphasized the special solicitude of the State for the higher education of negroes as shown

in the establishment of Lincoln University, a state institution well conducted on a plane with the University

of Missouri so far as the offered courses are concerned. It is said that Missouri is a pioneer in that field and

is the only State in the Union which has established a separate university for negroes on the same basis as

the state university for white students. But, commendable as is that action, the fact remains that instruction

in law for negroes is not now afforded by the State, either at Lincoln University or elsewhere within the

State, and that the State excludes negroes from the advantages of the law school it has established at the

University of Missouri.

It is manifest that this discrimination, if not relieved by the provisions we shall presently discuss, would

constitute a denial of equal protection. * * * *

The state court stresses the advantages that are afforded by the law schools of the adjacent States, Kansas,

Nebraska, Iowa and Illinois, which admit non-resident negroes. * * * * We think that these matters are

beside the point. The basic consideration is not as to what sort of opportunities, other States provide, or

whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white

students and denies to negroes solely upon the ground of color. The admissibility of laws separating the

races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges

which the laws give to the separated groups within the State. The question here is not of a duty of the State

to supply legal training, or of the quality of the training which it does supply, but of its duty when it provides

such training to furnish it to the residents of the State upon the basis of an equality of right. By the operation

of the laws of Missouri a privilege has been created for white law students which is denied to negroes by

reason of their race. The white resident is afforded legal education within the State; the negro resident

having the same qualifications is refused it there and must go outside the State to obtain it. That is a denial

of the equality of legal right to the enjoyment of the privilege which the State has set up, and the provision

for the payment of tuition fees in another State does not remove the discrimination.

* * * *Manifestly, the obligation of the State to give the protection of equal laws can be performed

only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right

must be maintained. That obligation is imposed by the Constitution upon the States severally as

governmental entities, each responsible for its own laws establishing the rights and duties of persons within

its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State

can be excused from performance by what another State may do or fail to do. * * * *

Here, petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection

of the laws, and the State was bound to furnish him within its borders facilities for legal education

substantially equal to those which the State there afforded for persons of the white race, whether or not

other negroes sought the same opportunity.

* * * *The judgment of the Supreme Court of Missouri is reversed and the cause is remanded for

further proceedings not inconsistent with this opinion. It is so ordered.

Reversed and remanded.

Separate {dissenting} opinion of Mr. Justice McReynolds {joined by Mr. Justice Butler}.

Considering the disclosures of the record, the Supreme Court of Missouri arrived at a tenable conclusion

and its judgment should be affirmed. That court well understood the grave difficulties of the situation and

rightly refused to upset the settled legislative policy of the State by directing a mandamus. * * * *

Sweatt v. Painter

339 U.S. 629 (1950)

Mr. Chief Justice Vinson delivered the opinion of the {unanimous} Court.

This case {and another} present different aspects of this general question: to what extent does the Equal

Protection Clause of the Fourteenth Amendment limit the power of a state to distinguish between students

of different races in professional and graduate education in a state university? Broader issues have been

urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the

context of the particular case before the Court. * * * *

In the instant case, petitioner filed an application for admission to the University of Texas Law School for

the February, 1946, term. His application was rejected solely because he is a Negro. Petitioner thereupon

brought this suit for mandamus against the

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appropriate school officials, respondents here, to compel his admission. At that time, there was no law

school in Texas which admitted Negroes.

The state trial court recognized that the action of the State in denying petitioner the opportunity to gain a

legal education while granting it to others deprived him of the equal protection of the laws guaranteed by

the Fourteenth Amendment. The court did not grant the relief requested, however, but continued the case

for six months to allow the State to supply substantially equal facilities. At the expiration of the six months,

in December, 1946, the court denied the writ on the showing that the authorized university officials had

adopted an order calling for the opening of a law school for Negroes the following February. While

petitioner’s appeal was pending, such a school was made available, but petitioner refused to register therein.

The Texas Court of Civil Appeals set aside the trial court’s judgment and ordered the cause “remanded

generally to the trial court for further proceedings without prejudice to the rights of any party to this suit.”

On remand, a hearing was held on the issue of the equality of the educational facilities at the newly

established school as compared with the University of Texas Law School. Finding that the new school

offered petitioner “privileges, advantages, and opportunities for the study of law substantially equivalent to

those offered by the State to white students at the University of Texas,” the trial court denied mandamus.

The Court of Civil Appeals affirmed. Petitioner’s application for a writ of error was denied by the Texas

Supreme Court. We granted certiorari, because of the manifest importance of the constitutional issues

involved.

The University of Texas Law School, from which petitioner was excluded, was staffed by a faculty of

sixteen full-time and three part-time professors, some of whom are nationally recognized authorities in their

field. Its student body numbered 850. The library contained over 65,000 volumes. Among the other facilities

available to the students were a law review, moot court facilities, scholarship funds, and Order of the Coif

affiliation. The school’s alumni occupy the most distinguished positions in the private practice of the law

and in the public life of the State. It may properly be considered one of the nation’s ranking law schools.

The law school for Negroes which was to have opened in February, 1947, would have had no independent

faculty or library. The teaching was to be carried on by four members of the University of Texas Law

School faculty, who were to maintain their offices at the University of Texas while teaching at both

institutions. Few of the 10,000 volumes ordered for the library had arrived, nor was there any full-time

librarian. The school lacked accreditation.

Since the trial of this case, respondents report the opening of a law school at the Texas State University for

Negroes. It is apparently on the road to full accreditation. It has a faculty of five full-time professors; a

student body of 23; a library of some 16,500 volumes serviced by a full-time staff; a practice court and

legal aid association, and one alumnus who has become a member of the Texas Bar.

Whether the University of Texas Law School is compared with the original or the new law school for

Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law

students by the State. In terms of number of the faculty, variety of courses and opportunity for

specialization, size of the student body, scope of the library, availability of law review and similar activities,

the University of Texas Law School is superior. What is more important, the University of Texas Law

School possesses to a far greater degree those qualities which are incapable of objective measurement but

which make for greatness in a law school. Such qualities, to name but a few, include reputation of the

faculty, experience of the administration, position and influence of the alumni, standing in the community,

traditions and prestige. It is difficult to believe that one who had a free choice between these law schools

would consider the question close.

Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical

one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation

from the individuals and institutions with which the law interacts. Few students and no one who has

practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the

exchange of views with which the law is concerned. The law school to which Texas is willing to admit

petitioner excludes from its student body members of the racial groups which number 85% of the population

of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom

petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial

and significant segment of society excluded, we cannot conclude that the education offered petitioner is

substantially equal to that which he would receive if admitted to the University of Texas Law School.

It may be argued that excluding petitioner from that school is no different from excluding white students

from the new law school. This contention overlooks realities. It is unlikely that a member of a group so

decisively in the majority, attending a school with rich traditions and prestige which only a history of

consistently maintained excellence could command, would claim that the opportunities afforded him for

legal education were unequal to those held open to petitioner. * * * *

1.4.8 96871

{P}etitioner may claim his full constitutional right: legal education equivalent to that offered by the State

to students of other races. Such education is not available to him in a separate law school as offered by the

State. We cannot, therefore, agree with respondents that the doctrine of Plessy v. Ferguson (1896), requires

affirmance of the judgment below. Nor need we reach petitioner’s contention that Plessy v. Ferguson should

be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth

Amendment and the effects of racial segregation.

We hold that the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be admitted

to the University of Texas Law School. The judgment is reversed, and the cause is remanded for

proceedings not inconsistent with this opinion.

Reversed.

Check Your Understanding

Brown v. Board of Education of Topeka

347 U.S. 483 (1954)

Mr. Chief Justice Warren delivered the opinion of the {unanimous} Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are

premised on different facts and different local conditions, but a common legal question justifies their

consideration together in this consolidated opinion.

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts

in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance,

they had been denied admission to schools attended by white children under laws requiring or permitting

segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection

of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-

judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine

announced by this Court in Plessy v. Fergson. Under that doctrine, equality of treatment is accorded when

the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware

case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to

the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that

hence they are deprived of the equal protection of the laws. Because of the obvious importance of the

question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and reargument was

heard this Term on certain questions propounded by the Court.

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth

Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by

the states, then-existing practices in racial segregation, and the views of proponents and opponents of the

Amendment. This discussion and our own investigation convince us that, although these sources cast some

light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The

most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal

distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly,

were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most

limited effect. What others in Congress and the state legislatures had in mind cannot be determined with

any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history with respect to segregated

schools is the status of public education at that time. In the South, the movement toward free common

schools, supported by general taxation, had not yet taken hold. Education of white children was largely in

the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race

were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast,

many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and

professional world. It is true that public school education at the time of the Amendment had advanced

further in the North, but the effect of the Amendment on Northern States was generally ignored in the

congressional debates. Even in the North, the conditions of public education did not approximate those

existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas;

the school term was but three months a year in many states, and compulsory school attendance was virtually

unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth

Amendment relating to its intended effect on public education.

1.4.9 96871

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the

Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of

separate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson,

involving not education but transportation. American courts have since labored with the doctrine for over

half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the

field of public education. * * * * In none of these cases was it necessary to reexamine the doctrine to grant

relief to the Negro plaintiff. * * * *

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings

below that the Negro and white schools involved have been equalized, or are being equalized, with respect

to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors. Our decision,

therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools

involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted,

or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of

its full development and its present place in American life throughout the Nation. Only in this way can it

be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school

attendance laws and the great expenditures for education both demonstrate our recognition of the

importance of education to our democratic society. It is required in the performance of our most basic public

responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is

a principal instrument in awakening the child to cultural values, in preparing him for later professional

training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any

child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such

an opportunity, where the state has undertaken to provide it, is a right which must be made available to all

on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis

of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children

of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, in finding that a segregated law school for Negroes could not provide them equal

educational opportunities, this Court relied in large part on “those qualities which are incapable of objective

measurement but which make for greatness in a law school.” * * * * Such considerations apply with added

force to children in grade and high schools. To separate them from others of similar age and qualifications

solely because of their race generates a feeling of inferiority as to their status in the community that may

affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their

educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt

compelled to rule against the Negro plaintiffs: “Segregation of white and colored children in public schools

has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law,

for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A

sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore,

has a tendency to [retard] the educational and mental development of negro children and to deprive them

of some of the benefits they would receive in a racial[ly] integrated school system.” Whatever may have

been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply

supported by modern authority {footnote 11; see Notes}. Any language in Plessy v. Ferguson contrary to

this finding is rejected.

We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate

educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly

situated for whom the actions have been brought are, by reason of the segregation complained of, deprived

of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes

unnecessary any discussion whether such segregation also violates the Due Process Clause of the

Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great

variety of local conditions, the formulation of decrees in these cases presents problems of considerable

complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the

primary question—the constitutionality of segregation in public education. We have now announced that

such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance

of the parties in formulating decrees, the cases will be restored to the docket, * * * * for the reargument this

Term The Attorney General of the United States is again invited to participate. The Attorneys General of

the states

1.4.10 96871

requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon

request to do so. * * * *

It is so ordered.

Check Your Understanding

Bolling v. Sharpe

347 U.S. 497 (1954)

Mr. Chief Justice Warren delivered the opinion of the {unanimous} Court.

This case challenges the validity of segregation in the public schools of the District of Columbia. * * * *

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states

from maintaining racially segregated public schools {footnote citation to Brown}. The legal problem in the

District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the

District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment,

which applies only to the states. But the concepts of equal protection and due process, both stemming from

our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more

explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that

the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so

unjustifiable as to be violative of due process.

Classifications based solely upon race must be scrutinized with particular care, since they are contrary to

our traditions, and hence constitutionally suspect. {footnote citation to Korematsu}. * * * *

Although the Court has not assumed to define “liberty” with any great precision, that term is not confined

to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the

individual is free to pursue, and it cannot be restricted except for a proper governmental objective.

Segregation in public education is not reasonably related to any proper governmental objective, and thus it

imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of

their liberty in violation of the Due Process Clause.

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public

schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal

Government. We hold that racial segregation in the public schools of the District of Columbia is a denial

of the due process of law guaranteed by the Fifth Amendment to the Constitution. * * * *

Check Your Understanding

Further Your Understanding

CALI Lesson:Equal Protection and the Federal Government: Reverse Incorporation

CALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your

understanding of an important principle articulated in Bolling v. Sharpe, the applicability of the Equal

Protection Clause to the federal government, a constitutional doctrine often known as “reverse

incorporation.”

Brown v. Board of Education of Topeka (Brown II)

349 U.S. 294 (1955)

Mr. Chief Justice Warren delivered the opinion of the {unanimous} Court.

{The Court’s previous opinions in Brown I} declaring the fundamental principle that racial discrimination

in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state,

or local law requiring or permitting such discrimination must yield to this principle. There remains for

consideration the manner in which relief is to be accorded.* * * *

1.4.11 96871

Full implementation of these constitutional principles may require solution of varied local school problems.

School authorities have the primary responsibility for elucidating, assessing, and solving these problems;

courts will have to consider whether the action of school authorities constitutes good faith implementation

of the governing constitutional principles. Because of their proximity to local conditions and the possible

need for further hearings, the courts which originally heard these cases can best perform this judicial

appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally,

equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting

and reconciling public and private needs. These cases call for the exercise of these traditional attributes of

equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as

practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of

obstacles in making the transition to school systems operated in accordance with the constitutional

principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the

public interest in the elimination of such obstacles in a systematic and effective manner. But it should go

without saying that the vitality of these constitutional principles cannot be allowed to yield simply because

of disagreement with them.

While giving weight to these public and private considerations, the courts will require that the defendants

make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a

start has been made, the courts may find that additional time is necessary to carry out the ruling in an

effective manner. The burden rests upon the defendants to establish that such time is necessary in the public

interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts

may consider problems related to administration, arising from the physical condition of the school plant,

the school transportation system, personnel, revision of school districts and attendance areas into compact

units to achieve a system of determining admission to the public schools on a nonracial basis, and revision

of local laws and regulations which may be necessary in solving the foregoing problems. They will also

consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a

transition to a racially nondiscriminatory school system. During this period of transition, the courts will

retain jurisdiction of these cases.

* * * *The cases are remanded to the District Courts to take such proceedings and enter such orders

and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially

nondiscriminatory basis with all deliberate speed the parties to these cases. * * * *

It is so ordered.

Notes

1. Be prepared to articulate the holding of Bolling v. Sharpe with regard to the Fifth Amendment and

the Fourteenth Amendment’s Equal Protection Clause. This is sometimes called “reverse incorporation.”

2. Footnote 11 in Brown I stating that the lower court’s finding was “amply supported by modern

authority” provided:

K.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Mid-century White House

Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI;

Deutscher and Chein, The Psychological Effects of Enforced Segregation A Survey of Social Science

Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under

Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs,

in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United

States (1949), 674-681. And see generallyMyrdal, An American Dilemma (1944).

The first reference is to the famous “doll studies” by Kenneth and Mamie Clark, as explained here:

In the 1940s, psychologists Kenneth and Mamie Clark designed and conducted a series of experiments

known colloquially as “the doll tests” to study the psychological effects of segregation on African-

American children. {The methodology began as part of Mamie Clark’s masters’ thesis in psychology.}

In the famous “doll studies,” Drs. Clark used four dolls, identical except for color, to test children’s racial

perceptions. Their subjects, children between the ages of three to seven, were asked to identify both the

race of the dolls and which color doll they prefer. A majority of the children preferred the white doll and

assigned positive characteristics to it. The Clarks concluded that “prejudice, discrimination, and

segregation” created a feeling of inferiority among African-American children and damaged their self-

esteem.

The doll test was only one part of Dr. Clark’s testimony in Brown – it did not constitute the largest portion

of his analysis and expert report. His conclusions during his testimony were based on a comprehensive

analysis of the most cutting-edge psychology

1.4.12 96871

scholarship of the period.

NAACP-LDF, Doctors Kenneth and Mamie Clark and “The Doll Test,”http://www.naacpldf.org/brown-at-

60-the-doll-test. The doll study become a “symbol and lightning rod” for Brown; one of the dolls is now

displayed in the National Historic Site for Brown v. Board of Education,

https://www.nps.gov/brvb/learn/historyculture/clarkdoll.htm Kenneth Clark was a Professor at CUNY

(City College) for a number of years and was the first African-American President of the American

Psychological Ass’n.

Cooper v. Aaron

358 U.S. 1 (1958)

Opinion of the Court by The Chief Justice, Mr. Justice Black, Mr. Justice Frankfurter, Mr. Justice Douglas,

Mr. Justice Burton, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, and Mr. Justice Whittaker.

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system

of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no

duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the

United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas

upon the premise that they are not bound by our holding in Brown v. Board of Education. That holding was

that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial

grounds from attending schools where there is state participation through any arrangement, management,

funds or property. We are urged to uphold a suspension of the Little Rock School Board’s plan to do away

with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in

Brown v. Board of Education have been further challenged and tested in the courts. We reject these

contentions. * * * *

{The school district was preparing to a plan for desegregation even as Arkansas state officials} were

actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this

Court had held violated the Fourteenth Amendment. First came, in November 1956, an amendment to the

State Constitution flatly commanding the Arkansas General Assembly to oppose ‘in every Constitutional

manner the Unconstitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United

States Supreme Court,’ Ark. Const. Amend. 44, and, through the initiative, a pupil assignment law, Ark.

Stats. §§ 80-1519 to 80-1524. Pursuant to this state constitutional command, a law relieving school children

from compulsory attendance at racially mixed schools, Ark. Stats. § 80-1525, and a law establishing a State

Sovereignty Commission, Ark. Stats. §§ 6-801 to 6-824, were enacted by the General Assembly in February

1957. * * * *

We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board

and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their

program for desegregation. Their position, in essence, was that, because of extreme public hostility, which

they stated had been engendered largely by the official attitudes and actions of the Governor and the

Legislature, the maintenance of a sound educational program at Central High School, with the Negro

students in attendance, would be impossible. The Board therefore proposed that the Negro students already

admitted to the school be withdrawn and sent to segregated schools, and that all further steps to carry out

the Board’s desegregation program be postponed for a period later suggested by the Board to be two and

one-half years.

After a hearing, the District Court granted the relief requested by the Board. * * * * {While the proceedings

are complex; the Eighth Circuit reversed, but stayed its mandate. The United States Supreme Court granted

the petition for certiorari.} “Recognizing the vital importance of a decision of the issues in time to permit

arrangements to be made for the 1958-1959 school year, we convened in Special Term on August 28, 1958,

and heard oral argument on the respondents’ motions, and also argument of the Solicitor General who, by

invitation, appeared for the United States as amicus curiae, and asserted that the Court of Appeals’ judgment

was clearly correct. {The Court unanimously affirmed the Eighth Circuit on September 12, 1958, issued a

brief per curiam opinion, and this opinion followed on September 29}.

{The Court held that the School Board and Superintendent were state actions bound by the Fourteenth

Amendment to comply with Brown}.

What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should

answer the premise of the actions of the Governor and Legislature that they are not bound by our holding

in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled

doctrine. Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803,

Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the

1.4.13 96871

fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison that “It

is emphatically the province and duty of the judicial department to say what the law is.” This decision

declared the basic principle that the federal judiciary is supreme in the exposition of the law of the

Constitution, and that principle has ever since been respected by this Court and the Country as a permanent

and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth

Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the

Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly

committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.” * * * * No state legislator

or executive or judicial officer can war against the Constitution without violating his undertaking to support

it. * * * *

It is, of course, quite true that the responsibility for public education is primarily the concern of the States,

but it is equally true that such responsibilities, like all other state activity, must be exercised consistently

with federal constitutional requirements as they apply to state action. The Constitution created a government

dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal.

State support of segregated schools through any arrangement, management, funds, or property cannot be

squared with the Amendment’s command that no State shall deny to any person within its jurisdiction the

equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so

maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law.

Bolling v. Sharpe. The basic decision in Brown was unanimously reached by this Court only after the case

had been briefed and twice argued and the issues had been given the most serious consideration. Since the

first Brown opinion, three new Justices have come to the Court. They are at one with the Justices still on

the Court who participated in that basic decision as to its correctness, and that decision is now unanimously

reaffirmed. The principles announced in that decision and the obedience of the States to them, according to

the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our

fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living

truth.

{Concurring opinion of Justice Frankfurter, who also joined the main opinion, omitted}.

Check Your Understanding

Note: Limiting Brown

In Brown II, the Court famously stated that the lower courts would oversee desegregation working with “all

deliberate speed.” Plaintiffs represented by various civil rights law firms (including the NAACP Inc. Fund)

as well as the Department of Justice brought desegregation lawsuits against school districts in federal court;

often there was a “special master” appointed by the federal court as an expert to develop a plan and there

were many “consent decrees.” Some school districts were undeniably hostile. For example, Prince Edward

County, Virginia closed its public schools rather than comply with Brown: the Court found this violated

the Equal Protection Clause in Griffin v. County School Board, 377 U.S. 218 (1964). Some school districts

were cooperative; many were a mix and fluctuated.

In the litigation, decisions, and public discourse, rifts were not only between pro-Brown and anti-Brown

but became more nuanced. One such divide concerned the ultimate goal: was it racial desegregation or was

it racial integration? Another controversy centered on the role of the federal courts and their constitutional

power to order remedies. Additionally, the relevance of time changed from accomplishing desegregation in

public schools with “all deliberate speed” to tracing responsibility for present segregated conditions (“de

facto” segregation) back to mandatory legal (“de jure”) segregation.

A number of cases reached the United States Supreme Court, but the following three are pivotal.

In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), involving schools in the city

of Charlotte, North Carolina, and surrounding Mecklenburg County in a district of 550 square miles, a

unanimous Supreme Court upheld court-ordered busing of students and transfer of teachers to achieve

desegregation. Writing for the Court, Chief Justice Burger stated:

Absent a constitutional violation, there would be no basis for judicially ordering assignment of students on

a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign

pupils to schools nearest their homes. But all

1.4.14 96871

things are not equal in a system that has been deliberately constructed and maintained to enforce racial

segregation.

Nevertheless:

[T]he existence of some small number of one-race, or virtually one-race, schools within a district is not, in

and of itself, the mark of a system that still practices segregation by law. The district judge or school

authorities should make every effort to achieve the greatest possible degree of actual desegregation, and

will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately

embrace all the difficulties of reconciling the competing interests involved; but, in a system with a history

of segregation, the need for remedial criteria of sufficient specificity to assure a school authority’s

compliance with its constitutional duty warrants a presumption against schools that are substantially

disproportionate in their racial composition. Where the school authority’s proposed plan for conversion

from a dual to a unitary system contemplates the continued existence of some schools that are all or

predominately of one race, they have the burden of showing that such school assignments are genuinely

nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities

will be to satisfy the court that their racial composition is not the result of present or past discriminatory

action on their part.

In Milliken v. Bradley, 418 U.S. 717 (1974), involving Detroit and surrounding areas in Michigan, the

district judge had ordered “busing” between the school district of Detroit, which had been subject of a 1970

state law resisting racial desegregation, and 85 other “outlying” school districts in three other counties

which had not been subject to any local or state laws regarding racial segregation in schools. The Court, in

a majority five Justice opinion by Chief Justice Burger, reversed the remedial busing order across districts:

The controlling principle consistently expounded in our holdings is that the scope of the remedy is

determined by the nature and extent of the constitutional violation. Swann. Before the boundaries of

separate and autonomous school districts may be set aside by consolidating the separate units for remedial

purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional

violation within one district that produces a significant segregative effect in another district. Specifically, it

must be shown that racially discriminatory acts of the state or local school districts, or of a single school

district have been a substantial cause of inter-district segregation. Thus, an inter-district remedy might be

in order where the racially discriminatory acts of one or more school districts caused racial segregation in

an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such

circumstances, an inter-district remedy would be appropriate to eliminate the inter-district segregation

directly caused by the constitutional violation. Conversely, without an inter-district violation and inter-

district effect, there is no constitutional wrong calling for an inter-district remedy.

In other words, there must be a direct nexus of between the constitutional “wrong” and the remedy. In

Milliken, the problematical connection is primarily one of “place.” When the case returned to the Court,

Milliken II (1977), the Court upheld the district judge’s subsequent remedies that focused on reform only

of the Detroit schools.

In Freeman v. Pitts, 498 U.S. 1081 (1992), the Court considered developments arising from a 1969 consent

decree seeking to remedy racial segregation in the DeKalb County School System, in suburban Atlanta,

Georgia. The question before the Court was whether the DeKalb County system had achieved “unitary”

status and could thus be released from court supervision, despite the fact that the schools were not racially

integrated.

Writing for the Court majority, Justice Kennedy stated:

That there was racial imbalance in student attendance zones was not tantamount to a showing that the school

district was in noncompliance with the decree or with its duties under the law. Racial balance is not to be

achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional

violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is

under no duty to remedy imbalance that is caused by demographic factors. Swann. * * * *

If the unlawful de jure policy of a school system has been the cause of the racial imbalance in student

attendance, that condition must be remedied. The school district bears the burden of showing that any

current imbalance is not traceable, in a proximate way, to the prior violation. * * * *

Where resegregation is a product not of state action, but of private choices, it does not have constitutional

implications. It is beyond the authority and beyond the practical ability of the federal courts to try to

counteract these kinds of continuous and massive demographic shifts. To attempt such results would require

ongoing and never-ending supervision by the courts of school districts simply because they were once de

jure segregated. Residential housing choices, and their attendant effects on the racial composition of

schools, present an ever-changing pattern, one difficult to address through judicial remedies. * * * *

As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes

less likely that a current racial imbalance in a school district is a vestige of the prior de jure system. The

causal link between current conditions and

1.4.15 96871

the prior violation is even more attenuated if the school district has demonstrated its good faith. In light of

its finding that the demographic changes in DeKalb County are unrelated to the prior violation, the District

Court was correct to entertain the suggestion that DCSS had no duty to achieve system wide racial balance

in the student population.

Some of these principles and cases will resurface in Affirmative Action doctrine later in this chapter.

III. Evaluating Racial Classifications

Note: Strict Scrutiny

Racial classifications receive strict scrutiny, meaning the government interest must be compelling and the

means chosen must be narrowly tailored to achieve that interest.

In contrast to strict scrutiny, rational basis scrutiny requires only that the government interest be legitimate

and the means chosen to serve that interest be rationally related to it.

The United States Supreme Court does not always use this precise terminology, but it has clearly articulated

it in a more than a few cases and it is evinced in many others. This is the terminology used by almost all

other courts and lawyers.

Loving v. Virginia

388 U.S. 1 (1967)

Mr. Chief Justice Warren delivered the opinion of the {Unanimous} Court.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme

adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial

classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For

reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that

these statutes cannot stand consistently with the Fourteenth Amendment.

In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man,

were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings

returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of

the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating

Virginia’s ban on interracial marriages. On January 6, 199, the Lovings pleaded guilty to the charge, and

were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years

on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated

in an opinion that:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate

continents. And, but for the interference with his arrangement, there would be no cause for such marriage.

The fact that he separated the races shows that he did not intend for the races to mix.

After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963,

they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground

that the statutes which they had violated were repugnant to the Fourteenth Amendment * * * * we noted

probable jurisdiction* * * *.

The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory

scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating

§ 258 of the Virginia Code:

Leaving State to evade law.—If any white person and colored person shall go out of this State, for the

purpose of being married, and with the intention of returning, and be married out of it, and afterwards return

to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the

marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their

cohabitation here as man and wife shall be evidence of their marriage.

Section 259, which defines the penalty for miscegenation, provides:

Punishment for marriage.—If any white person intermarry with a colored person, or any colored person

intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the

penitentiary for not less than one nor more than five years.

Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all

marriages between “a white person and a colored person” without any judicial proceeding, and §§ 20-54

and 1-14 which, respectively, define “white persons” and “colored persons and Indians” for purposes of the

statutory prohibitions. {footnote 4: see Notes} The Lovings have never

1.4.16 96871

disputed in the course of this litigation that Mrs. Loving is a “colored person” or that Mr. Loving is a “white

person” within the meanings given those terms by the Virginia statutes.

Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.

Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the

colonial period. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924,

passed during the period of extreme nativism which followed the end of the First World War. The central

features of this Act, and current Virginia law, are the absolute prohibition of a “white person” marrying

other than another “white person,” a prohibition against issuing marriage licenses until the issuing official

is satisfied that the applicants’ statements as to their race are correct, certificates of “racial composition” to

be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial

intermarriage.

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals

of Virginia referred to its 1965 decision in Naim v. Naim, as stating the reasons supporting the validity of

these laws. In Naim, the state court concluded that the State’s legitimate purposes were “to preserve the

racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and

“the obliteration of racial pride,” obviously an endorsement of the doctrine of White Supremacy. The court

also reasoned that marriage has traditionally been subject to state regulation without federal intervention,

and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth

Amendment.

While the state court is no doubt correct in asserting that marriage is a social relation subject to the State’s

police power, Maynard v. Hill (1888), the State does not contend in its argument before this Court that its

powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.

Nor could it do so in light of Meyer v. Nebraska (1923), and Skinner v. Oklahoma (1942). Instead, the State

argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is

only that state penal laws containing an interracial element as part of the definition of the offense must

apply equally to whites and Negroes in the sense that members of each race are punished to the same degree.

Thus, the State contends that, because its miscegenation statutes punish equally both the white and the

Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications,

do not constitute an invidious discrimination based upon race. The second argument advanced by the State

assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause

does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of

constitutionality would thus become whether there was any rational basis for a State to treat interracial

marriages differently from other marriages. On this question, the State argues, the scientific evidence is

substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in

adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere “equal application” of a statute containing racial classifications

is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious

racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there

is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application

does not mean that our analysis of these statutes should follow the approach we have taken in cases

involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute

discriminating between the kinds of advertising which may be displayed on trucks in New York City,

Railway Express Agency, Inc. v. New York (1949) * * * *

{other cases omitted}. In these cases, involving distinctions not drawn according to race, the Court has

merely asked whether there is any rational foundation for the discriminations, and has deferred to the

wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial

classifications, and the fact of equal application does not immunize the statute from the very heavy burden

of justification which the Fourteenth Amendment has traditionally required of state statutes drawn

according to race.

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth

Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state

miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s

Bureau Bill, which President {Andrew} Johnson vetoed, and the Civil Rights Act of 1866, enacted over his

veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth

Amendment, it must be understood that they pertained to the passage of specific statutes, and not to the

broader, organic purpose of a constitutional amendment. As for the various statements directly concerning

the Fourteenth Amendment, we have said in connection with a related problem that, although these

historical sources “cast some light” they are not sufficient to resolve the problem;

1.4.17 96871

[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly

intended them to remove all legal distinctions among “all persons born or naturalized in the United States.”

Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments,

and wished them to have the most limited effect.

Brown v. Board of Education (1954). See also Strauder v. West Virginia (1880). We have rejected the

proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the

Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection

of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and

Negro participants in the offense were similarly punished.

The State finds support for its “equal application” theory in the decision of the Court in Pace v. Alabama

(1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or

fornication between a white person and a Negro which imposed a greater penalty than that of a statute

proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be

said to discriminate against Negroes because the punishment for each participant in the offense was the

same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated “Pace

represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent

decisions of this Court.” McLaughlin v. Florida. As we there demonstrated, the Equal Protection Clause

requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and

invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all

official state sources of invidious racial discrimination in the States. Slaughter-House Cases (1873);

Strauder v. West Virginia (1880); Ex parte Virginia (1880); Shelley v. Kraemer (1948); Burton v.

Wilmington Parking Authority (1961).

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn

according to race. The statutes proscribe generally accepted conduct if engaged in by members of different

races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because

of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of

equality.” Hirabayashi v. United States (1943). At the very least, the Equal Protection Clause demands that

racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,”

Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary

to the accomplishment of some permissible state objective, independent of the racial discrimination which

it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have

already stated that they cannot conceive of a valid legislative purpose . . . which makes the color of a

person’s skin the test of whether his conduct is a criminal offense. McLaughlin v. Florida, (Stewart, J.,

joined by Douglas, J., concurring).

There is patently no legitimate overriding purpose independent of invidious racial discrimination which

justifies this classification. The fact that Virginia prohibits only interracial marriages involving white

persons demonstrates that the racial classifications must stand on their own justification, as measures

designed to maintain White Supremacy. We have consistently denied the constitutionality of measures

which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom

to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process

Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital

personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner

v. Oklahoma (1942). See also Maynard v. Hill (1888). To deny this fundamental freedom on so

unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly

subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all

the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the

freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution,

the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be

infringed by the State.

These convictions must be reversed.

It is so ordered.

Mr. Justice Stewart, concurring.

1.4.18 96871

I have previously expressed the belief that “it is simply not possible for a state law to be valid under our

Constitution which makes the criminality of an act depend upon the race of the actor.” McLaughlin v.

Florida (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.

Check Your Understanding

Notes

1. Be prepared to discuss all of the arguments of the parties as well as the Court’s conclusion using

the strict scrutiny standard in Loving.

2. Be prepared to discuss the relevance of Footnote 4 of the Court’s opinion in Loving which reads:

Section 20-54 of the Virginia Code provides:

Intermarriage prohibited; meaning of term “white persons.”—It shall hereafter be unlawful for any white

person in this State to marry any save a white person, or a person with no other admixture of blood than

white and American Indian. For the purpose of this chapter, the term “white person” shall apply only to

such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth

or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be

white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and

colored persons shall apply to marriages prohibited by this chapter.

Va.Code Ann. § 20-54 (1960 Repl. Vol.).

The exception for persons with less than one-sixteenth “of the blood of the American Indian” is apparently

accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by “the

desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe

and Pocathontas. . . .” Plecker, The New Family and Race Improvement, 17 Va.Health Bull., Extra No. 12,

at 25-26 (New Family Series No. 5, 1925)* * * *.

Section 1-14 of the Virginia Code provides:

Colored persons and Indians defined.—Every person in whom there is ascertainable any Negro blood shall

be deemed and taken to be a colored person, and every person not a colored person having one fourth or

more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes

existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of

Negro blood shall be deemed tribal Indians.

Va.Code Ann. § 1-14 (1960 Repl. Vol.).

3. Section II of the Court’s opinion, which is brief and reproduced in full in the text, will resurface in

Due Process Clause doctrine in later chapters.

IV. Neutral Classifications?

Yick Wo v. Hopkins

118 U.S. 356 (1886)

{The 1880 San Francisco Ordinance under which Yick Wo was convicted and imprisoned provided

It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain,

or carry on a laundry within the corporate limits of the city and county of San Francisco without having

first obtained the consent of the board of supervisors, except the same be located in a building constructed

either of brick or stone.

According to the allegations, there were about 320 laundries in the San Francisco, of which about 240 were

owned and conducted by subjects of China, and of the whole number, viz., 320, about 310 were constructed

of wood, the same material that constitutes nine-tenths of the houses in San Francisco. The case is

consolidated with another similar case.}

Mr. Justice Matthews delivered the opinion of the {unanimous} Court.

In the case of the petitioner, brought here by writ of error to the Supreme Court of California, our

jurisdiction is limited to the question whether the plaintiff in error has been denied a right in violation of

the Constitution, laws, or treaties of the United States. The question whether his imprisonment is illegal

under the constitution and laws of the State is not open to us. * * * *

1.4.19 96871

That, however, does not preclude this court from putting upon the ordinances of the supervisors of the

county and city of San Francisco an independent construction, for the determination of the question whether

the proceedings under these ordinances and in enforcement of them are in conflict with the Constitution

and laws of the United States necessarily involves the meaning of the ordinance, which, for that purpose,

we are required to ascertain and adjudge.

We are consequently constrained, at the outset, to differ from the Supreme Court of California upon the

real meaning of the ordinances in question. That court considered these ordinances as vesting in the board

of supervisors a not unusual discretion in granting or withholding their assent to the use of wooden buildings

as laundries, to be exercised in reference to the circumstances of each case with a view to the protection of

the public against the dangers of fire. We are not able to concur in that interpretation of the power conferred

upon the supervisors. * * * *

This erroneous view of the ordinances in question led the Supreme Court of California into the further error

of holding that they were justified by the decisions of this court in the cases of Barbier v. Connolly (1885)

and Soon Hing v. Crowley (1885). In both of these cases, the ordinance involved was simply a prohibition

to carry on the washing and ironing of clothes in public laundries and washhouses within certain prescribed

limits of the city and county of San Francisco from ten o’clock at night until six o’clock in the morning of

the following day. This provision was held to be purely a police regulation within the competency of any

municipality possessed of the ordinary powers belonging to such bodies, a necessary measure of precaution

in a city composed largely of wooden buildings like San Francisco, in the application of which there was

no invidious discrimination against anyone within the prescribed limits, all persons engaged in the same

business being treated alike, and subject to the same restrictions and entitled to the same privileges under

similar conditions.

For these reasons, that ordinance was adjudged not to be within the prohibitions of the Fourteenth

Amendment to the Constitution of the United States * * * *

The ordinance drawn in question in the present case is of a very different character. It does not prescribe a

rule and conditions for the regulation of the use of property for laundry purposes to which all similarly

situated may conform. It allows without restriction the use for such purposes of buildings of brick or stone,

but, as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupiers

into two classes, not having respect to their personal character and qualifications for the business, nor the

situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side

of which are those who are permitted to pursue their industry by the mere will and consent of the

supervisors, and on the other those from whom that consent is withheld at their mere will and pleasure. And

both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of

living. The ordinance, therefore, also differs from the not unusual case where discretion is lodged by law

in public officers or bodies to grant or withhold licenses to keep taverns, or places for the sale of spirituous

liquors, and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of

the privilege, because, in such cases, the fact of fitness is submitted to the judgment of the officer, and calls

for the exercise of a discretion of a judicial nature.

The rights of the petitioners, as affected by the proceedings of which they complain, are not less because

they are aliens and subjects of the Emperor of China. {Treaty discussion omitted}. The Fourteenth

Amendment to the Constitution is not confined to the protection of citizens. It says: “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.”

These provisions are universal in their application to all persons within the territorial jurisdiction, without

regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge

of the protection of equal laws. * * * *

The questions we have to consider and decide in these cases, therefore, are to be treated as invoking the

rights of every citizen of the United States equally with those of the strangers and aliens who now invoke

the jurisdiction of the court.

It is contended on the part of the petitioners that the ordinances for violations of which they are severally

sentenced to imprisonment are void on their face as being within the prohibitions of the Fourteenth

Amendment, and, in the alternative, if not so, that they are void by reason of their administration, operating

unequally so as to punish in the present petitioners what is permitted to others as lawful, without any

distinction of circumstances—an unjust and illegal discrimination, it is claimed, which, though not made

expressly by the ordinances, is made possible by them.

When we consider the nature and the theory of our institutions of government, the principles upon which

they are supposed to rest, and review the history of their development, we are constrained to conclude that

they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty

itself is, of course, not subject to law, for it is the author and source of law; but, in our system, while

sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people,

by whom and for whom all government exists and acts. And the law is the definition and limitation of

power. It is, indeed,

1.4.20 96871

quite true that there must always be lodged somewhere, and in some person or body, the authority of final

decision, and in many cases of mere administration, the responsibility is purely political, no appeal lying

except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by

means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered

as individual possessions, are secured by those maxims of constitutional law which are the monuments

showing the victorious progress of the race in securing to men the blessings of civilization under the reign

of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government

of the commonwealth “may be a government of laws, and not of men.” For the very idea that one man may

be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life

at the mere will of another seems to be intolerable in any country where freedom prevails, as being the

essence of slavery itself.

There are many illustrations that might be given of this truth, which would make manifest that it was self-

evident in the light of our system of jurisprudence. The case of the political franchise of voting is one.

Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to

its will under certain conditions, nevertheless it is regarded as a fundamental political right, because

preservative of all rights.

****

In the present cases, we are not obliged to reason from the probable to the actual, and pass upon the validity

of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal

and unjust discrimination in their administration. For the cases present the ordinances in actual operation,

and the facts shown establish an administration directed so exclusively against a particular class of persons

as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as

adopted, they are applied by the public authorities charged with their administration, and thus representing

the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that

equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and

benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law

itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority

with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between

persons in similar circumstances, material to their rights, the denial of equal justice is still within the

prohibition of the Constitution. * * * *

The present cases, as shown by the facts disclosed in the record, are within this class. It appears that both

petitioners have complied with every requisite deemed by the law or by the public officers charged with its

administration necessary for the protection of neighboring property from fire or as a precaution against

injury to the public health. No reason whatever, except the will of the supervisors, is assigned why they

should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on

which they depend for a livelihood. And while this consent of the supervisors is withheld from them and

from two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty

others, not Chinese subjects, are permitted to carry on the same business under similar conditions. The fact

of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no

reason for it exists except hostility to the race and nationality to which the petitioners belong, and which,

in the eye of the law, is not justified. The discrimination is, therefore, illegal, and the public administration

which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment

of the Constitution. The imprisonment of the petitioners is, therefore, illegal, and they must be discharged.

Check Your Understanding

Washington v. Davis

426 U.S. 229 (1976)

White, J., delivered the opinion of the Court, in which Burger, C.J., and Blackmun, Powell, Rehnquist, and

Stevens, JJ., joined, and in Parts I and II of which Stewart, J., joined. Stevens, J., filed a concurring opinion.

Brennan, J., filed a dissenting opinion, in which Marshall, J., joined.

Mr. Justice White delivered the opinion of the Court.

1.4.21 96871

This case involves the validity of a qualifying test administered to applicants for positions as police officers

in the District of Columbia Metropolitan Police Department. The test was sustained by the District Court

but invalidated by the Court of Appeals. We are in agreement with the District Court and hence reverse the

judgment of the Court of Appeals.

{The issue involved an assertion} that their applications to become officers in the Department had been

rejected, and that the Department’s recruiting procedures discriminated on the basis of race against black

applicants by a series of practices including, but not limited to, a written personnel test which excluded a

disproportionately high number of Negro applicants. These practices were asserted to violate respondents’

rights “under the due process clause of the Fifth Amendment to the United States Constitution

* * * *. Defendants answered, and discovery and various other proceedings followed. Respondents

then filed a motion for partial summary judgment with respect to the recruiting phase of the case, seeking

a declaration that the test administered to those applying to become police officers is “unlawfully

discriminatory and thereby in violation of the due process clause of the Fifth Amendment . . . .” No issue

under any statute or regulation was raised by the motion. The District of Columbia defendants, petitioners

here, and the federal parties also filed motions for summary judgment with respect to the recruiting aspects

of the case, asserting that respondents were entitled to relief on neither constitutional nor statutory grounds.

The District Court granted petitioners’ and denied respondents’ motions.

According to the findings and conclusions of the District Court, to be accepted by the Department and to

enter an intensive 17-week training program, the police recruit was required to satisfy certain physical and

character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out

of 80 on “Test 21,” which is “an examination that is used generally throughout the federal service,” which

“was developed by the Civil Service Commission, not the Police Department,” and which was “designed

to test verbal ability, vocabulary, reading and comprehension.”

The validity of Test 21 was the sole issue before the court on the motions for summary judgment. The

District Court noted that there was no claim of “an intentional discrimination or purposeful discriminatory

acts” but only a claim that Test 21 bore no relationship to job performance and “has a highly discriminatory

impact in screening out black candidates.” Respondents’ evidence, the District Court said, warranted three

conclusions: “(a) The number of black police officers, while substantial, is not proportionate to the

population mix of the city. (b) A higher percentage of blacks fail the Test than whites. (c) The Test has not

been validated to establish its reliability for measuring subsequent job performance.” This showing was

deemed sufficient to shift the burden of proof to the defendants in the action, petitioners here; but the court

nevertheless concluded that on the undisputed facts respondents were not entitled to relief. The District

Court relied on several factors. Since August 1969, 44% of new police force recruits had been black; that

figure also represented the proportion of blacks on the total force and was roughly equivalent to 20- to 29-

year-old blacks in the 50-mile radius in which the recruiting efforts of the Police Department had been

concentrated. It was undisputed that the Department had systematically and affirmatively sought to enroll

black officers many of whom passed the test but failed to report for duty. The District Court rejected the

assertion that Test 21 was culturally slanted to favor whites and was “satisfied that the undisputable facts

prove the test to be reasonably and directly related to the requirements of the police recruit training program

and that it is neither so designed nor operates [sic] to discriminate against otherwise qualified blacks.” It

was thus not necessary to show that Test 21 was not only a useful indicator of training school performance

but had also been validated in terms of job performance – “The lack of job performance validation does not

defeat the Test, given its direct relationship to recruiting and the valid part it plays in this process.” The

District Court ultimately concluded that “[t]he proof is wholly lacking that a police officer qualifies on the

color of his skin rather than ability” and that the Department “should not be required on this showing to

lower standards or to abandon efforts to achieve excellence.”

Having lost on both constitutional and statutory issues in the District Court, respondents brought the case

to the Court of Appeals claiming that their summary judgment motion, which rested on purely constitutional

grounds, should have been granted. The tendered constitutional issue was whether the use of Test 21

invidiously discriminated against Negroes and hence denied them due process of law contrary to the

commands of the Fifth Amendment. The Court of Appeals, addressing that issue, announced that it would

be guided by Griggs v. Duke Power Co. (1971), a case involving the interpretation and application of Title

VII of the Civil Rights Act of 1964, and held that the statutory standards elucidated in that case were to

govern the due process question tendered in this one. The court went on to declare that lack of

discriminatory intent in designing and administering Test 21 was irrelevant; the critical fact was rather that

a far greater proportion of blacks – four times as many – failed the test than did whites. This disproportionate

impact, standing alone and without regard to whether it indicated a discriminatory purpose, was held

sufficient to establish a constitutional violation, absent proof by petitioners that the test was an adequate

measure of job performance in addition

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to being an indicator of probable success in the training program, a burden which the court ruled petitioners

had failed to discharge. That the Department had made substantial efforts to recruit blacks was held beside

the point and the fact that the racial distribution of recent hirings and of the Department itself might be

roughly equivalent to the racial makeup of the surrounding community, broadly conceived, was put aside

as a “comparison [not] material to this appeal.” The Court of Appeals, over a dissent, accordingly reversed

the judgment of the District Court and directed that respondents’ motion for partial summary judgment be

granted. We granted the petition for certiorari. * * * *

Because the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in

resolving the constitutional issue before it, we reverse its judgment in respondents’ favor. * * * *

As the Court of Appeals understood Title VII, employees or applicants proceeding under it need not concern

themselves with the employer’s possibly discriminatory purpose but instead may focus solely on the racially

differential impact of the challenged hiring or promotion practices. This is not the constitutional rule. We

have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is

identical to the standards applicable under Title VII, and we decline to do so today.

The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of

official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth

Amendment contains an equal protection component prohibiting the United States from invidiously

discriminating between individuals or groups. Bolling v. Sharpe (1954). But our cases have not embraced

the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory

purpose, is unconstitutional solely because it has a racially disproportionate impact.

Almost 100 years ago, Strauder v. West Virginia (1880), established that the exclusion of Negroes from

grand and petit juries in criminal proceedings violated the Equal Protection Clause, but the fact that a

particular jury or a series of juries does not statistically reflect the racial composition of the community

does not in itself make out an invidious discrimination forbidden by the Clause. “A purpose to discriminate

must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or

by unequal application of the law to such an extent as to show intentional discrimination.” Akins v. Texas

(1945). ****

The school desegregation cases have also adhered to the basic equal protection principle that the invidious

quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory

purpose. * * * *

This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of

the statute, or that a law’s disproportionate impact is irrelevant in cases involving Constitution-based claims

of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to

discriminate on the basis of race. Yick Wo v. Hopkins (1886). It is also clear from the cases dealing with

racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an

“unequal application of the law . . . as to show intentional discrimination.” Akins v. Texas * * * *

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant

facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not

infrequently true that the discriminatory impact – in the jury cases for example, the total or seriously

disproportionate exclusion of Negroes from jury venires – may for all practical purposes demonstrate

unconstitutionality because in various circumstances the discrimination is very difficult to explain on

nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise

within the power of government to pursue, is invalid under the Equal Protection Clause simply because it

may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it

is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing

alone, it does not trigger the rule, McLaughlin v. Florida (1964), that racial classifications are to be

subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.

There are some indications to the contrary in our cases. In Palmer v. Thompson (1971), the city of Jackson,

Miss., following a court decree to this effect, desegregated all of its public facilities save five swimming

pools which had been operated by the city and which, following the decree, were closed by ordinance

pursuant to a determination by the city council that closure was necessary to preserve peace and order and

that integrated pools could not be economically operated. Accepting the finding that the pools were closed

to avoid violence and economic loss, this Court rejected the argument that the abandonment of this service

was inconsistent with the outstanding desegregation decree and that the otherwise seemingly permissible

ends served by the ordinance could be impeached by demonstrating that racially invidious motivations had

prompted the city council’s action. The holding was that the

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city was not overtly or covertly operating segregated pools and was extending identical treatment to both

whites and Negroes. The opinion warned against grounding decision on legislative purpose or motivation,

thereby lending support for the proposition that the operative effect of the law rather than its purpose is the

paramount factor. But the holding of the case was that the legitimate purposes of the ordinance – to preserve

peace and avoid deficits – were not open to impeachment by evidence that the council-men were actually

motivated by racial considerations. Whatever dicta the opinion may contain, the decision did not involve,

much less invalidate, a statute or ordinance having neutral purposes but disproportionate racial

consequences.

Wright v. Council of City of Emporia (1972) also indicates that in proper circumstances, the racial impact

of a law, rather than its discriminatory purpose, is the critical factor. That case involved the division of a

school district. The issue was whether the division was consistent with an outstanding order of a federal

court to desegregate the dual school system found to have existed in the area. The constitutional predicate

for the District Court’s invalidation of the divided district was “the enforcement until 1969 of racial

segregation in a public school system of which Emporia had always been a part.” There was thus no need

to find “an independent constitutional violation.” Citing Palmer v. Thompson, we agreed with the District

Court that the division of the district had the effect of interfering with the federal decree and should be set

aside.

That neither Palmer nor Wright was understood to have changed the prevailing rule is apparent from Keyes

v. School Dist. No. 1, where the principal issue in litigation was whether and to what extent there had been

purposeful discrimination resulting in a partially or wholly segregated school system. * * * *

Both before and after Palmer v. Thompson, however, various Courts of Appeals have held in several

contexts, including public employment, that the substantially disproportionate racial impact of a statute or

official practice standing alone and without regard to discriminatory purpose, suffices to prove racial

discrimination violating the Equal Protection Clause absent some justification going substantially beyond

what would be necessary to validate most other legislative classifications. The cases impressively

demonstrate that there is another side to the issue; but, with all due respect, to the extent that those cases

rested on or expressed the view that proof of discriminatory racial purpose is unnecessary in making out an

equal protection violation, we are in disagreement.

As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification

for employment is nevertheless racially discriminatory and denies “any person . . . equal protection of the

laws” simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic

groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an

action claiming that the test denied each of them equal protection of the laws as compared with those who

had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge

would have been sustained. Test 21, which is administered generally to prospective Government

employees, concededly seeks to ascertain whether those who take it have acquired a particular level of

verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to

upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of

competence, particularly where the job requires special ability to communicate orally and in writing.

Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than

could white applicants who also failed. The conclusion would not be different in the face of proof that more

Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would,

alone, not demonstrate that respondents individually were being denied equal protection of the laws by the

application of an otherwise valid qualifying test being administered to prospective police recruits.

Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion

that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional

rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and

rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. Even

agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we

think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to

recruit black officers, the changing racial composition of the recruit classes and of the force in general, and

the relationship of the test to the training program negated any inference that the Department discriminated

on the basis of race or that “a police officer qualifies on the color of his skin rather than ability.”

Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially

disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it

is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary,

in addition, that they be “validated” in terms of job performance in any one of several ways, perhaps by

ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining

whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question.

However this process proceeds, it involves a more probing judicial review of, and less deference to, the

seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where

special racial impact, without discriminatory

purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes of applying

the Fifth and the Fourteenth Amendments in cases such as this.

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification,

if in practice it benefits or burdens one race more than another would be far reaching and would raise serious

questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and

licensing statutes that may be more burdensome to the poor and to the average black than to the more

affluent white.

Given that rule, such consequences would perhaps be likely to follow. However, in our view, extension of

the rule beyond those areas where it is already applicable by reason of statute, such as in the field of public

employment, should await legislative prescription.

As we have indicated, it was error to direct summary judgment for respondents based on the Fifth

Amendment.

Conclusion

There is support for the view that social, economic and political conditions which have prevailed since the

close of the last century, when the Japanese began to come to this country in substantial numbers, have

intensified their solidarity and have in large measure prevented their assimilation as an integral part of the

white population. In addition, large numbers of children of Japanese parentage are sent to Japanese language

schools outside the regular hours of public schools in the locality. Some of these schools are generally

believed to be sources of Japanese nationalistic propaganda, cultivating allegiance to Japan. Considerable

numbers, estimated to be approximately 10,000, of American-born children of Japanese parentage have

been sent to Japan for all or a part of their education.

References

• Carter, Benjamin. Foundations of Judicial Law. 1st ed., Legal Foundations Press, 2019.

• Nguyen, Lisa. "Comparative Analysis of Judicial Systems: Common Law vs. Civil Law."

International Journal of Judicial Research, vol. 29, no. 4, 2021, pp. 205-230.

• Williams, Rachel, editor. Judicial Ethics and Accountability. Justice Publishing House, 2022.

• Rodriguez, Javier. "Judicial Law and Social Change: Historical Perspectives." Presented at the

Global Conference on Judicial Law, World Legal Association, 2020.

• Patel, Raj. "The Role of Technology in Judicial Processes." Digital Judicial Law Journal, 5 March

2023, www.digitaljudicialjournal.org/articles/2023/technology-in-judicial-processes.

• European Court of Justice. Review of Judicial Decisions and Their Implications. European Judicial

Press, 2021.

RACE AND EQUAL PROTECTION – PART 1

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