Race-Based Preferential Treatment Programs: Raising the Bar for Establishing Compelling Government Interests

1998 ◽  
Vol 27 (3) ◽  
pp. 349-360 ◽  
Author(s):  
Robert K. Robinson ◽  
Joseph G. P. Paolillo ◽  
Brian J. Reithel
Keyword(s):  
Civil Rights ◽  
Federal Court ◽  
Fourteenth Amendment ◽  
Equal Protection ◽  
National Origin ◽  
Treatment Programs ◽  
Preferential Treatment ◽  
Equal Protection Clause ◽  
Federal Program ◽  
Racial Preferences

In 1995 a series of federal court decisions called into question the efficacy of race-based preferential treatment programs initiated by two leading public universities.1 Both decisions occurred at a time when government-imposed, race-conscious remedial measures are being increasingly challenged on the grounds that they either violate the Civil Rights Act of 1964,2 or breach the guarantee of equal protection under the laws provided by the Fourteenth Amendment. Most recently, a federally mandated race-based preference was successfully challenged on the grounds that it violated an “implied” equal protection clause in the Fifth Amendment.3 As a further indication of this shift away from state supported racial preferences, legislation is pending in Congress4 that, if enacted, would make the consideration of any individual's race, color, national origin or gender in regard to selection or eligibility for any federal program unlawful.

Plessy’s Long Shadow

2004 ◽  
Author(s):  
Derrick Bell
Keyword(s):  
United States ◽  
Civil Rights ◽  
Due Process ◽  
The United States ◽  
Fourteenth Amendment ◽  
Equal Protection ◽  
Political Equality ◽  
Race Riots ◽  
Black And White ◽  
The Law

The supreme court’s 1896 Decision in Plessy v. Ferguson served to bring the law into a dismal harmony with the nation’s view of race in life. The Court decided that segregation in public facilities through “separate but equal” accommodations for black citizens would satisfy the equal protection clause in the Fourteenth Amendment. The years since the sporadically enforced policies of Reconstruction ended in 1876 had been hard for those former slaves and their offspring whose slavery had legally ended with the passage of the Thir­teenth Amendment in 1865. To ensure their rights to due process and the equal protection of the law, the Fourteenth Amendment in 1868 provided that “all persons born or naturalized in the United States, . . . are citizens of the United States and of the State wherein they reside.” Despite legislation intended to provide enforcement of these rights, the laws were poorly enforced and most were subsequently declared unconstitutional. Corrupting law but relying on intimidation and violence, southern governments stripped blacks of political power. Given meaningful if unspoken assurances that the federal government would not protect black civil rights, conservative southerners regained power utilizing racial fear and hatred to break up competing populist groups of poor black and white farmers. In addition to the disenfranchisement of blacks, whites sought to secure their power through intensive anti-Negro propaganda campaigns championing white supremacy. Literary and scientific leaders published tracts and books intended to “prove” the inhumanity of the Negro. In this hostile climate, segregation laws that had made a brief appearance during Reconstruction were revived across the South, accompanied by waves of violence punctuated by an increase in lynchings and race riots. In an effort both to protest the indignity of segregation and challenge its validity, Homer Plessy, acting for a New Orleans civil rights group, attempted to ride in a railroad car reserved for whites. He was arrested and convicted of violating Louisiana’s 1890 segregation law. On appeal, the Supreme Court acknowledged that the Fourteenth Amendment required absolute equality of the two races before the law, adding: “but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.”

Race and Representation in the United States: the Constitutional Validity of Majority–Minority Congressional Districts

1999 ◽  
Vol 33 (3) ◽  
pp. 491-507
Author(s):  
ROBERT J. McKEEVER
Keyword(s):  
United States ◽  
African Americans ◽  
Civil Rights ◽  
Civil Rights Movement ◽  
The United States ◽  
Fourteenth Amendment ◽  
Equal Protection Clause ◽  
Congressional Districts ◽  
Constitutional Principle ◽  
Racial Lines

In an effort to maximize the representation of African Americans and Hispanics in the United States House of Representatives, many state legislatures have consciously sought to create so-called “majority–minority” congressional districts. This involves carving out districts in which African Americans or Hispanics constitute more than 50 per cent of the voting age population. The expectation is that such districts will elect a minority member of the House, which in turn will lead to a Congress that is more sensitive and responsive to the needs and interests of America's two largest ethnic minorities. Indeed, this expectation has become an article of faith for the mainstream civil rights movement and its white sympathizers.However, like other forms of affirmative action, majority–minority districting sits rather uncomfortably alongside the Constitutional principle of race-neutrality. In a series of recent cases, the United States Supreme Court has declared that, by subordinating traditional districting principles to the overriding need to draw boundaries along racial lines, states have violated the Equal Protection clause of the Fourteenth Amendment.

Murray, J., concurring.

2020 ◽  
pp. 202-220
Keyword(s):  
Sexual Orientation ◽  
Fourteenth Amendment ◽  
Equal Protection ◽  
Same Sex ◽  
Equal Protection Clause ◽  
The Right

Today, a majority of the Court strikes down laws banning the performance and recognition of same-sex marriages on the ground that such laws constitute caste or class legislation in violation of the Equal Protection Clause of the Fourteenth Amendment. In so doing, the Court reiterates that the right to marry is a fundamental right and denominates sexual orientation a quasi-suspect classification subject to heightened scrutiny....

REVERSE RACIAL PREFERENCES UNDER THE EQUAL PROTECTION CLAUSE: ROUND II

1981 ◽  
Vol 19 (2) ◽  
pp. 197-214
Author(s):  
Lee Reed ◽  
Art Davison ◽  
Fullilove v. Klutznick
Keyword(s):  
Equal Protection ◽  
Equal Protection Clause ◽  
Racial Preferences

scholarly journals Municipal Reparations: Considerations and Constitutionality

2021 ◽  
pp. 345
Author(s):  
Brooke Simone
Keyword(s):  
Fourteenth Amendment ◽  
City Council ◽  
Equal Protection ◽  
Racial Justice ◽  
Equal Protection Clause ◽  
Marginalized Groups ◽  
Black Residents ◽  
Police Practices ◽  
Constitutional Analysis

Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow political branches to rectify vestiges of past discrimination and ongoing inequities through reparations plans such as the hypothetical Philadelphia City Council resolution. With these suggestions in mind, municipalities must boldly imagine and extend reparations to marginalized groups that have suffered harms. Similarly, the Court must reimagine its constitutional doctrine.

Race and Education

2019 ◽  
pp. 550-580
Author(s):  
Raquel Muñiz ◽  
Erica Frankenberg
Keyword(s):  
Public Schools ◽  
Civil Rights ◽  
Supreme Court ◽  
Fourteenth Amendment ◽  
Federal State ◽  
School Systems ◽  
Legal Doctrine ◽  
Equal Protection Clause ◽  
The Supreme Court ◽  
State And Local

In 1954, the Supreme Court overturned the long-held legal doctrine of “separate but equal” in Brown v. Board of Education of Topeka, holding that separate facilities for black and white students were inherently unequal, in violation of the Equal Protection Clause of the Fourteenth Amendment. Brown marked the beginning of the civil rights era, an era in which the Supreme Court would no longer tolerate dual school systems separated along racial lines. However, the progress toward unitary school systems plateaued and seemed to reverse itself in the 1970s. This chapter reviews the legal and extra-legal developments that have complicated full integration. It suggests pursuing legal and political efforts at federal, state, and local levels—voluntary integration plans and inclusive policies, mediation, and litigation at the federal and state levels—to eradicate segregation and fulfill the promise of Brown in the increasingly diverse society of the twenty-first century in US public schools.

Sign in / Sign up

Export Citation Format

Share Document