Equality

Chapter 6
EQUALITY
INTRODUCTION

CONSTITUTIONAL EQUALITY

RACE AND EQUAL PROTECTION
The Civil War Amendments
State Action Doctrine
Separate but Equal
Jim Crow in the Constitution
Legal Formalism
Colorblindness
The Margold Strategy
The “Pure” Concept

REMEDIES TO RACIAL INEQUALITIES
Implementing Colorblindness
Colorblind Principles
Race-Conscious Remedies
Beyond Separate and Unequal
The Paradox of Affirmative Action
Understanding Bakke
Shifting Burdens

CLASSIFICATION AND EQUALITY
The Logic of Equal Protection
Suspect Classifications
Affected Interests
Levels of Scrutiny

GENDER EQUALITY
Standards of Review and Forms of Discrimination
Arbitrary Preferences
Heightened Scrutiny
Benign Classifications
Gender Discrimination and Statutory Provisions

CLASS AND CONSTITUTIONAL EQUALITY
Legal Process
Education
Health

THE SOCIAL IMPACT OF EQUAL PROTECTION JURISPRUDENCE

Chapter 6
EQUALITY

Introduction

The Constitution requires that "no state shall deny...to any person...the equal protection of the laws." Conflicts over how to interpret this provision are as ugly as any in constitutional law. Yet, these disputes over equality hold out the promise of social justice. Interracial marriage, busing for school desegregation and male-only draft registration are but some of the contentious issues governed by equal protection under the Constitution. Pitched battles have also developed over what appear to be mundane matters, such as enforcing height requirements for jobs on the police force or categorizing newspaper want ads by gender. These issues seem mundane until we hear from the people seeking employment, the people who are turned down because they do not meet height standards set by police departments or because they do not fit gender requirements for certain advertised jobs. When ordinary social practices are questioned under the rubric of constitutional equality, not only are the way things done challenged, but as you will see, questions are raised about the meaning of equality itself.

The right to equal protection under the law was introduced into the Constitution during the Civil War. The subjects that are handled under this right reflect the concerns and puzzles of the period after the war; they are products of historical forces which we will discuss in this chapter.

At the same time, interpretations of constitutional equality have themselves influenced the political agenda and set important standards for how people should be treated. In this chapter we look at the scope and meaning of equality as it has formed over time, and we pay particular attention to the political impacts of constitutional equality. How do constitutional interpretations of equal protection set into motion political movements, such as movements for civil rights and women's rights? What kinds of political opportunities arise from legal understandings of equality? Why do certain concepts of equality but not others have a negative effect on social movements? What effect, for example, have changing meanings of constitutional equality had on the near century-long movement to secure an Equal Rights Amendment?

We begin with a discussion of what constitutional equality is, and then proceed to examine anti-discrimination law and the meaning of racial equality under the Constitution. By carefully examining the formation of constitutional equality in race discrimination we hope to set forth a basis for you to understand the political theory of constitutional equality at work in other areas of anti-discrimination law, such as gender and wealth discrimination. You will read the "separate but equal" doctrine in Plessy v. Ferguson (1896), exploring how the perverse logic of that formulation influenced the holding in Brown v. Board of Education (1954), which overturned separate but equal. One aspect of the Supreme Court's holding in Plessy, and a focus throughout this chapter, is the meaning and consequence of the claim that the Constitution is "colorblind." Although the concept of colorblindness emerges from challenges to racial discrimination, it reaches into other policy areas and affects other social movements, such as the women's movement. Like "colorblindness," "gender neutrality" is a "pure concept" of equality which sets the political tone, determines the parameters of constitutional equality, and structures subsequent possibilities for social justice. Comparing the development of anti-discrimination jurisprudence over time and across classifications, such as race, gender, and class, is essential to understanding how constitutional equality influences and, at the same time, produces political struggles against discrimination.

CONSTITUTIONAL EQUALITY

It is important to understand that the concept of equality in the Constitution is different from conventional meanings of what it is to be equal. Certainly Supreme Court justices and lawyers who craft arguments about constitutional equality draw on ordinary ideas when they expound on the meaning of equality in the Fourteenth Amendment, but legal theories have their own distinct limitations. In law, racial classification are "suspect" and must be "strictly scrutinized" while gross inequalities between rich and poor, for example, are not similarly suspect-- they are beyond "constitutional" reproach. What is and is not protected under the Constitution forms a boundary between legal understandings of equality and conventional notions of what it is to be equal. This boundary, as we will see, is hotly contested at times when conventional ideas of what it means to be equal collide with social practices that have been constitutionally sanctioned.

The very idea of equality requires that we make comparisons and in so doing we create boundaries. In order to say that one thing is equal to another there must be a basis for comparison. One cannot equate different kinds of things, such as segregated schools and integrated schools, without a basis for comparison. But the basis for comparison in constitutional law, as in other areas of political, economic, and social life, is selective. Schools can be evaluated in terms of the quality of education, amount of money spent per student, or any number of other considerations.

The political and legal development of constitutional equality is a story about American values towards different ideas of equality-- political, social, and material equality. These three bases, or criteria for determining equality, emphasize different ways of defining equality. Material equality covers such things as the quality of our shelter, transportation, or food. In the most elemental or basic sense, how warm the shelter keeps us or how fast our transportation gets us where we want to go may determine the quality of our existence. Schools might be considered materially equal if they were the same distance from every child's house or if they all had essentially the same physical structure or number of books in their libraries. Each of these aspects of a school would, of course, have consequences that went beyond the material.
Social equality has to do with how we are treated by others and what status we confer on others; it is evident in the value we place on different kinds of shelter or transportation. Social equality does not directly refer to such things as the seats upon which we travel but rather to the difference in status between cloth and leather, or between the front and the back of the bus. This sphere, like the material, has significance for each of the other spheres.

Political equality refers to equality in the area of citizenship, such as the right to vote or hold public office. Because judges operate in a political sphere they are more comfortable articulating standards of political equality. Thus, many constitutional decisions are limited to equality in the political sphere. Political equality is not the highest form of equality, but it is the most rarefied because of its distance from the basic facts of life. It can seem separate while at the same time it is highly influenced by material and social considerations.

Highlighting these aspects of equality allows judicial positions to be mapped more clearly. As the basis for comparison, material, social, and political considerations may be incorporated at any point in an assessment of equality. The point of the assessment will also have an impact. There is a difference, for instance, between equality of treatment and equality of result. Equal treatment generally applies the requirement of equality to an ongoing process. It requires that things be equal from the start. Equality of result looks to the finish and is not satisfied unless there is equality at that point. In the case of voting, for instance, equality of treatment from a political perspective might require the same registration requirement, whether for a test or a poll tax. Thus, a poll tax that required a fee for voting would not violate the principle of equal treatment; but a poll tax that prevented people from voting because they could not afford the tax would have an unequal result. Often equality of result requires that social or material barriers be taken into account. For instance, absentee ballots are provided for the disabled in order to guarantee that they will be able to vote--they are treated differently so that equality of result can be achieved. These examples illustrate how equality of treatment can conflict with equality of result.

The difference between result and treatment is often the point at which a comparison or determination of equality is made. This choice is a matter of political persuasion and it reflects political attitudes and interests. But again the bases of comparison will be relevant. Those who favor limiting the promise of equality to treatment have tended to confine its application to the political sphere where variables like social and material conditions are more easily disregarded. But this is not always true. Sometimes, as in cases coming under the "separate but equal doctrine," the existence of political and material equality were the standards used to justify the denial of social equality. We move now from this conceptual background to a discussion of the historical basis for this constitutional right.

RACE AND EQUAL PROTECTION

The promise of equality was not part of the original Constitution. It was not even a dominant principle of the American Revolution (as it would be for the French Revolution only a few years later). Although a kind of equality was mentioned prominently in the Declaration of Independence, equality was not considered an "inalienable right." Later, in drafting the Constitution, compromises were made that offend contemporary notions of human equality, like the decision to count slaves when determining a state's representation in Congress, but not count slaves as citizens. The decision not to include equality as a founding principle was partly due to the unresolved status of the black population. The concept of equality continued to be associated with the status of black Americans through the nineteenth and into the twentieth century; thus, it served as an important tool in the struggle for racial justice. But the limits on the constitutional meaning of the concept have much wider social significance, and these limits ultimately help us to understand a range of persistent inequalities.

The Civil War Amendments

Equality in the Constitution dates from the Civil War, which may be viewed as the American struggle for equality. The first result of this conflict that had a bearing on equality was the emancipation of the slaves--President Lincoln's Emancipation Proclamation in 1863 declared all slaves in states rebelling against the Union to be free. This was part of the war effort and was meant as an inducement for slaves to leave their masters and join the Union army. It was also politically expedient to imbue the North's cause with moral authority to boost flagging morale in 1862-63, and, as such, had an impact on expectations of how the former slaves would be treated under the Constitution. Emancipation was followed by a series of constitutional amendments: The Thirteenth, Fourteenth, and Fifteenth Amendments, which attempted to institutionalize the new status of the former slaves. The Thirteenth Amendment abolished slavery; the Fifteenth Amendment guaranteed voting rights ; and the Fourteenth Amendment, the cornerstone of constitutional equality and nationalization of the Constitution, provided that no state shall "...deny to any person within its jurisdiction the equal protection of the laws."

The amendments demonstrated a commitment to building a new society in the South. There were other efforts indicative of the period, such as the founding of Howard University in Washington, D.C., the election of blacks to Congress from the South, and widespread support of what we would call affirmative action today. In 1873, in the Slaughterhouse Cases, the Supreme Court affirmed that the purpose of the new amendments was to protect the rights of the newly freed slaves, but it limited the protection of "privileges and immunities" to those provided by the states. This left the determination of protection and equality to state governments, which, in the South, were hostile to the former slaves. The Slaughterhouse decision marked the end of a brief period after the Civil War during which "equal protection" was understood as a promise of justice for former slaves. The change was dramatic. Black voter registration in South Carolina, for instance, decreased from 182,000 in 1876 to 91,000 in 1884. There were similar drops throughout the South. This change, and what followed, has blotted the positive aspects of Reconstruction from the national consciousness. Yet, the record indicates that equality made its debut in the honor roll of rights as a response to a specific historical circumstance that demanded attention.

Inclusion of the idea of equality in the Constitution gave new significance to judicial opinion on the meaning of equality, and on the efforts to eradicate the vestiges of slavery. Initially, decisions in this area are best understood in terms of judicial sensitivity to commercial interests, particularly state legislation of any kind that interfered with the establishment of "multi-state business structures" (Tribe, 1978:338), including such things as transportation systems and trading arrangements that went across state lines. Under this rubric, the justices upheld an award to a black woman who had been removed from a car reserved for "white ladies" (Washington A & GR Co. v. Brown, 1873). In Hall v. DeCuir (1878), the commerce clause in the Constitution was interpreted as prohibiting Louisiana from applying a civil rights anti-discrimination statute to steamboats in interstate commerce. Justice Nathan Clifford offered his views on the advantages of separating the races in his concurring opinion; but free enterprise and the protection of a national market were the basis for the decision. Such an approach was actually portended in Justice Field's dissent in the Slaughterhouse Cases, mentioned above--he and three others agreed that "free labor [is] one of the most sacred and imprescriptible rights of man." Finally, in the Civil Rights Cases (1883), the Supreme Court ruled that two sections of the Civil Rights Act of 1875 were unconstitutional. The decision can be viewed in terms of judicial sensitivity to commercial interests, but it also established the "state action doctrine." To best understand this concept, we next explain the Court's interpretation of the Fourteenth Amendment, and then go on to explain the specific doctrinal evolution that has produced the contemporary meaning of constitutional equality, covering in turn the concepts of separate but equal, and colorblindness.

State Action Doctrine

The Civil Rights Act of 1875 was passed by Congress in an attempt to provide free black men and women in the South with equal access to public accommodations. This act made it illegal for private individuals to interfere with blacks who wanted access to food or lodging. However, when the act was reviewed by the Supreme Court in the Civil Rights Cases of 1883, the Court overturned it on the grounds that the Fourteenth Amendment did not protect citizens against private discrimination. Consequently, the Court interpreted the Fourteenth Amendment to mean that Congress could only regulate discrimination by governments. Lawrence Tribe points out that this reading of the Fourteenth Amendment was "plainly wrong" because the Civil War Amendments themselves were the kind of legislation that the Court was holding unconstitutional (Tribe, 1978:1153). These amendments guaranteed not only common law rights of citizenship, but freedom from servitude as well. Nevertheless, both limitations endured for nearly 100 years.

The state action doctrine narrowed the scope of constitutional equality by interpreting it as a right directed only against some from of government action. There are no constitutional remedies for the many forms of discrimination engaged in by one's putative neighbors-- from a social invitation to the more general preferences that influence human choices in those parts of our lives where the government isn't directly involved. But the exact extent to which, under the Constitution, the government is considered "involved" is much less clear. We present a number of cases here because it is in the constitutional promise of equality that the state action doctrine has its most far-reaching implications.

The most obvious avenue of involvement on the part of the state comes when government, at some level or another, actually becomes implicated in the management of public accommodation. This was true in Burton v. Wilmington Parking Authority (1961). In that case, a parking facility owned and operated by a state agency leased some of its space to a restaurant that refused to serve blacks. The Court considered public ownership of the building to be sufficient state involvement to satisfy the constitutional requirement, and so the justices held that the restaurant must serve blacks. This sort of entanglement is even more obvious where the discriminatory agency is a subsidiary of the state government, such as a state university or a local public school. These subsidiaries are counted as if they were the state itself for the purpose of the Fourteenth Amendment's state action requirement.

In the most far-reaching and common kind of situation, the state's functions as sovereign implicate a wide variety of activities that might otherwise be treated as private. In Shelley v. Kraemer (1948), a black couple (the Shelleys) sought to move into a predominantly white neighborhood; the Kraemers and other white couples in the neighborhood sought to have the Court force them to move based on an agreement called a restrictive covenant--a legal contract, signed in this case by 30 property owners in 1911, that binds each party to it (as well as those who later move into their homes) to prohibit their properties from being occupied by non-Caucasians. Such agreements were not uncommon in this period, which is why the National Association for the Advancement of Colored People (NAACP) made their elimination a primary goal. But these covenants, while obviously discriminatory, appeared to lie within the realm of private action. But the Court ruled that as agents of the state, courts could not enforce such contracts because they were discriminatory--as such, these covenants themselves were not illegal, but were rendered unenforceable. This point would surface quite prominently in 1986, when then-Associate Justice William H. Rehnquist was about to be elevated to the position of Chief Justice. He had owned two pieces of property that had deeds containing restrictive covenants and was questioned about them during his confirmation to become Chief Justice. He argued that he was not aware of the covenants.

Another case in which "state action" proved crucial was Griffin v. Maryland (1964), in which an amusement park that denied admission to blacks was held accountable for its discrimination because it had in its employ an off-duty sheriff who used the authority of his public office in guarding the park, the mantle of state authority defines any number of otherwise private situations as public. These cases remind us of the extent to which the government, either explicitly by a uniform or a robe, or implicitly in the authority it gives to law, constitutes our social world.

Finally, there are cases in which the government goes beyond its legitimate exercise of authority and this action is considered by the Court under the state action provision. In these cases, the state is more directly involved, but the action itself is illegal or outside the very authority which governs the situation. For example, in Screws v. United States (1945), a black prisoner was beaten to death by sheriffs in Baker County, Georgia. The response from the state, in support of its "law enforcement officers," was that the offending officer had exceeded his authority and thus did not bring the state into the situation. The majority on the Supreme Court rejected that contention, but the issue of state responsibility for irresponsible action on the part of those it employs continues to come up. Another version of questionable actions involves inaction. Such a case came to the Court in 1971 and involved the City of Jackson, Mississippi (Palmer v. Thompson). The city had closed its swimming pools rather than follow orders to integrate them. The justices were split 5-4 over the issue. Although the outcome allowed the pools to be closed (due to the lack of an affirmative constitutional duty to operate swimming pools), the case is an instance where, even by not doing something, a government can be subject to constitutional limitations under the state action doctrine according to at least some Supreme Court justices.

Judicial limitations on the capacity of Congress to implement Fourteenth Amendment protections against discrimination lasted until the expansive jurisprudence of the Warren Court and even Burger Court decisions on the scope of equal protection. Between 1954 and 1974 the Supreme Court upheld a broad range of congressional legislation dealing with anti-discrimination. In Katzenbach v. Morgan (1966), for example, the Supreme Court upheld congressional legislation nullifying New York State's test for English literacy. The Court did this on the basis that the legislation came under congressional authority to "secure the guarantees of the Fourteenth Amendment."

In the 1960s and 1970s, Congress and the executive branch of government were the major sources of enforcement against discrimination. Even in the early 1980s, for example, the Internal Revenue Service denied tax-exempt status to Bob Jones University and other religious schools because their religiously based admissions policies were racially discriminatory (Bob Jones University v. U.S., 1983). Cases arising from these decisions and those cases we discuss in Chapter (INSERT religion chapter) on religious tolerance affirm the reach of administrative authority over racial discrimination.

Separate but Equal

The aspiration for equality put into the Constitution by the Civil War Amendments was undercut by concepts like the state action doctrine and limited by the emerging practice of "Jim Crow"-- the name given to the segregationist social policy legislated in the South. It was against these institutions that equal protection challenges were brought. The Court took up the first of the laws requiring separation of the races in Louisville, New Orleans and Texas Railway Co. v. Mississippi (1890), not long after it had decided the Civil Rights Cases of 1883. Business interests challenged the law of the state of Mississippi, which segregated the races in public transportation, as an unconstitutional interference with interstate commerce. The justices allowed the statute to stand because they did not view segregation as producing a "burden" on interstate commerce. Thus, by the 1890s, business interests, successful up to that time in resisting regulation for purposes of segregation or the promotion of social equality, had lost out to those who were reestablishing domination by whites over blacks in the South. It is in this context that the Supreme Court's opinion in Plessy v. Ferguson (1896) legitimizes Jim Crow legislation as constitutional and limits the conceptual parameters of the debate on equality.

Jim Crow in the Constitution. Plessy v. Ferguson (1896) was planned as a challenge to the racist institutions built in the South after 1877. The case was brought by a diverse coalition of black and business interests who approached the issue form very different perspectives. These advocates realized the need to use the Thirteenth and Fourteenth Amendments in their appeal and to build on the tradition the Supreme Court had developed to interpret these amendments-- that of economic rights and laissez faire. Albion W. Tourgee, the lawyer for Homer Plessy, believed that a successful constitutional challenge was most likely to come from an assault on the administration of segregation by representing a "colored" defendant whose skin appeared to be white (Plessy was chosen because he fit this description). The argument in Plessy would be that there was protection in the due process clause for those who could "pass for white." This, the lawyers thought, might appeal to a conservative Supreme Court. The victory, although it would be limited, would make Jim Crow difficult to administer. This type of challenge appealed to the railroads because segregation legislation was an economic burden for them. The New Orleans Crusader, a local newspaper, and civil rights organizations behind the suit received considerable flack from some members of the black community who considered Homer Plessy's suit an affront to them.

For all its obvious callousness, the Supreme Court opinion in Plessy establishes a new basis for evaluating the legal status of segregated institutions. Where previously the standard had been whether or not laws requiring racial segregation interfered with commerce (the commerce clause), as in Hall v. DeCuir (1878), the new standard became whether or not such laws conflicted with the constitutional guarantee of equal protection (the Fourteenth Amendment Equal Protection Clause). Building on the ambiguity in the Fourteenth Amendment, the justices gave a reading of constitutional equality in Plessy that stands as a clever accommodation to conventional practices. A close look at the majority opinion reveals that the Court legitimated the racist Jim Crow system through a legalistic maneuver designed to separate material and political equality from social equality. Those justices who supported this distinction argued that there was nothing fundamentally "unequal" about separation, and further proposed that the values which might make separation offensive were social and beyond the reach of the law.
The paradox of this interpretation is that it supports equality in the conditions under which one was transported-- material equality-- but denies that the Constitution protects citizens from social discrimination, which in fact is central to an apartheid or segregated system. The concession from the majority in Plessy to those challenging this ruling was the guarantee of material or physical equality. For whites, the exclusion from railroad cars was a separation, but because the Constitution required that the cars be "equal," the separation was not considered discriminatory. Equal, in this sense, would have to mean materially the same. In addition, the Supreme Court even acknowledged part of Plessy's property and reputation argument. The justices agreed that the reputation of belonging to the dominant race is a property interest, but not one that Homer Plessy could legitimately claim (Plessy, 1896:549). Although material equality was never fulfilled in the South, the promise formed the basis upon which civil rights organizations attacked the doctrine of separate but equal, the very doctrine which sets forth material equality as part of the constitutional meaning of equality.

The majority opinion in Plessy also acknowledged the importance of protecting political equality, but it distinguished between laws interfering with one's equal rights to participate in the polity and those laws requiring separation of the races in schools, theaters, and other public places, which Court viewed as "social." The majority opinion was written by Justice Henry Brown, the son of an industrialist, who had just been appointed to the Court from Michigan, a center of laissez faire constitutionalism. He held that legislation mandating social separation had been generally accepted while laws that applied to separation in the political arena had not. He cited Strauder v. West Virginia (1880), a case which overturned a state law limiting jury service to whites on the grounds that it violated the conditions of political equality, and thus was unconstitutional. This would have to be avoided, as the Constitution does not condone inequality of citizenship.

Legal Formalism. The Court's holding in Plessy reflects the legal thought of the late-nineteenth and early-twentieth century, which is referred to as "legal formalism." It is a style of legality and judicial posturing that was derived from the common law, with its emphasis on judicial neutrality, universality and objectivity. Yet, it is important to note that legal formalism does not necessarily produce politically conservative results. A version of legal formalism has its roots in the anti-slavery jurisprudence of the pre-Civil War South (Tushnet, 1981). The view that law was at least formally pure and removed from the vagaries of social forces allowed judges who were troubled by the institution of slavery to rationalize their role in a political system that permitted slavery. Justice Brown's opinion for the majority affirms the view that law does not protect citizens against social forms of discrimination, but only those that formally make blacks unequal, such as differential material conditions or restrictions on political participation because of race. He wrote:

...the [Fourteenth] Amendment...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 (Plessy, 1896:544).

In the nineteenth century, spokesmen for the state generally denied that law had a capacity to promote social equality, at least in the redistributive sense of the modern welfare state. Equality before the law or political equality was considered to be different from social equality. Justice Brown's opinion rings with the view, not his own invention, that separation "...doesn't necessarily imply inferiority and has generally been within the competency of the states through the police power." The source was Massachusetts Chief Justice Lemuel Shaw's opinion in Roberts v. Boston (1849), a case on school segregation that anticipated the focus in the major struggles over constitutional equality. In this Massachusetts case, it was held that legal equality does not mean being treated "the same," but only that the "rights of all" are equally entitled to the paternal consideration and protection of the law.

There were some standards for monitoring this "ideological ploy." Law had to be "reasonable" and enacted not for the "...annoyance or oppression of a particular class." Thus, in Yick Wo v. Hopkins (1886), the Court held that San Francisco couldn't exclude Chinese laundries from the city. But it was part of the Anglo-American legal tradition for the justices to argue, as they did in Plessy, that the law was impotent when faced with "private" social prejudice. In Plessy, the justices claimed that the plaintiff's argument might have seemed more "reasonable" if they had been convinced that "...the enforced separation of the two races stamps the colored race with a badge of inferiority."

Both Roberts and Plessy required equality of all persons "before the law," but they refused to take into account the social meaning, social status of distinctions based on race. A distinction, without that social meaning, could satisfy the requirements of constitutional equality. Thus limited, the justices rested more assured that the law had not promised too much and that its promise would be within the competence of the courts to deliver. The distinction between political and social spheres has a long tradition and, in a democracy, serves to limit the reach of judicial power to protect citizens from forms of discrimination categorized as "social." This aspect of Shaw's approach, evident in the Roberts decision, is a good example of formalism.
"Separate but equal," which seems to make so little sense today, was at one time not simply an option but the most likely position for appellate justices to take. The justices who chose this course were more closely associated with the entrepreneurial tradition and commercial interests in the North and the "liberal" jurisprudence that supported it than they were with the South and its emerging segregationist society. In fact, one of only two southerners on the Court, John Marshall Harlan, dissented from the majority opinion in Plessy, written by a northern Republican. Justice Brown's majority opinion was joined by corporate lawyers Melville Fuller, George Shiras, and Rufus Peckham, and one of the most skillful legal craftsmen working in the service of laissez faire capitalism, Stephen J. Field, from California. Field, a Lincoln appointee, and his colleagues in the majority, represented the industrial North. Because of the familiarity of this refusal to understand law in terms of its social consequences, the majority's position in Plessy stuck for 60 years. It was supported by a particular view of legal authority-- the view that law is only effective in regulating material and political inequalities imposed on citizens by the state and that it cannot be expected to reach into a separate sphere called social life.

The one dissenter in Plessy was a dramatic exception, not only in this case, but throughout his long tenure on the Supreme Court. John Marshall Harlan, named after Chief Justice John Marshall (but unrelated), was born in Kentucky. His family had been slaveholders, but when the Civil War came he sided with the Union, helping to keep Kentucky out of the Confederacy. By the end of the war, he had set his slaves free voluntarily. Appointed by President Hayes, Harlan served on the Court for 34 years and established a reputation for civil libertarian perspicacity that, given where the majority usually stood, won him the title the "great dissenter." In Plessy, his most important dissent, Harlan challenged the majority's reading of the limits of the law. He understood that the law was part of the social sphere by holding that segregation laws were a remnant of slavery and a slave society. According to Harlan, equality would not necessarily preclude separation, but in the context of the post-war South, he believed that separation was the cornerstone of a racist society. Interestingly, this former slaveholder treated the promise of political and material equality as a transparent dodge. He naively believed that no one would be fooled by the majority's formulation.

Harlan's position sought to reunite law and society. He viewed their separation in the majority opinion as an attempt to reinstate a version of slavery. And it was this, the social meaning of segregation that he attacked. While Harlan mentioned that the Thirteenth Amendment does not permit the imposition "...of any burdens or disabilities that constitute badges of slavery or servitude," he concentrated on the equal protection promise of the Civil War Amendments. His position was sensitive to the law in context and, as a result, he was concerned that statutes not reflect social prejudice. To this end, he employed a concept from Albion Tourgee's brief in Plessy. "Our Constitution is color-blind," he said, "...and neither knows nor tolerates classes among citizens." To Harlan, colorblindness meant that the Constitution could not countenance a distinction based on a practice of racial discrimination. He knew that the white race was dominant and, in his view, this prejudiced an otherwise neutral distinction (Plessy, 1896:559). His position was that the "Jim Crow" legislation was ill conceived and improper. His calculus would have provided for social as well as political and material equality. He failed to acknowledge the ideological authority of the majority position, but he introduced the notion of colorblindness, the concept that would eventually transform constitutional equality.

Colorblindness

The legal politics of equal protection at the constitutional level began to ferment 30 years after the Plessy decision. It was then that the Supreme Court first showed concern for the civil rights of black Americans. The stimulus for this attention was the maturation of President Roosevelt's appointees to the Court, a group that came to the Court during the New Deal with hopes for a more egalitarian society. Added to this foundation, two decades later, would be an egalitarian, anti-racist consciousness spawned by World War II, especially in Europe, and a new Chief Justice-- Earl Warren. But initially, the most important factor was social movement mobilization of law as a vehicle for social change.

The Margold Strategy. The litigation leading up to Brown v. Board of Education (1954) reflects 20 years of struggle, intense suffering for the litigants, and the creation of a legal machine that became the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund Inc. The successful effort to eliminate legally mandated inequality and the movement for civil rights that followed were the prototype for modern rights movements in America. The NAACP Legal Defense Fund, officially formed in 1938, proposed a new reading of constitutional equality that would wipe out the doctrine of separate but equal. The struggle involved both individual courage and group support of a financial, psychological, and even physical nature (see Tushnet, 1987 and Greenberg, 1994).

W.E.B. DuBois, a black man from the western hills of Massachusetts, founded the (NAACP) in 1909 on the then radical platform of equal rights for Negroes. In 1931, the NAACP searched for a strategy to combat segregation in the South. In this effort, the promise of material equality was again employed, this time to make it so costly to maintain segregation that the South would give it up. The plan was known as the "Margold Strategy" after its proponent, Nathan Margold, a lawyer for the NAACP. Margold suggested that the way to overcome segregation was to attack the practice from the perspective of equality. The courts were not particularly progressive at the time, but the Supreme Court was on record as legitimizing segregation by means of the promise of material equality. That was the promise the strategy would try to bring to fruition. The first success attributable to this claim came seven years later, in 1938. Not surprisingly, the justices were more sensitive to the claim of inequality when it arose in law schools. In Missouri ex rel. Gains v. Canada (1938), Missouri was ordered to admit a black law student to its law school or to create a new law school. It would not do, according to the Court, to simply pay Lloyd Gaines's tuition at another state's law school, since this would not provide him with an equal education in Missouri.

The attacks on segregation continued to rely on the promise of equality in Plessy, even after World War II. Like the concern for toleration that emerged after World War I, the rhetoric of democracy in World War II had convinced many Americans, black and white, that there was something wrong with a democracy where people were separated by the color of their skin and social equality did not exist for more than 10 percent of the nation's population. Yet for a short period the hopes and the success of NAACP litigation were based on the failure of institutions in the South to live up to the promise of equality in Plessy, rather than on the evil of separation per se. Another legal victory after the war came in Sweatt v. Painter (1950), when the Supreme Court ordered Texas to admit a black student to its law school. The Court found that no comparable segregated legal education could be provided for blacks in Texas. The ground was still the failure of the state to fulfill its constitutional obligations to provide an equal education, rather than any reassessment of those obligations. The findings in this case, however, gave a sense of the inherent limitations of the "separate but equal" mandate, especially in the area of education. Recognition of those limitations would be the basis for Brown v. Board of Education (1954), and by recognizing social equality in Brown the courts would turn away from the hollow promise of material equality.

The Brown opinion is short but monumental. It rules segregation unconstitutional in a collection of five cases drawn from Border States, where the commitment to segregation was generally weaker than in the Deep South. The case was argued twice, in part because of the personnel change that brought Earl Warren to the Court as Chief Justice and because of an effort to ground the decision in a historical reading of the Fourteenth Amendment. Chief Justice Warren based his attack on separation on new social science findings about psychological harm. By using the modern tools of the clinical psychologist, Chief Justice Warren's opinion accounted for what Justice Harlan had suggested in his Plessy dissent over 50 years before. These tools were provided by Professor Kenneth Clark, whose experiments with dolls showed that black children attending segregated schools had a diminished sense of self-esteem. Separate facilities were inherently unequal in that they harmed black students.
The "Pure" Concept. The Brown decision eliminated segregation from constitutional protection, and its legacy was a new reading of equality, a new meaning for constitutional equality. After the decision, attention shifted from the refusal to see segregation as a violation at all to a view of separation as the violation of constitutional equality. The conceptual apparatus for this shift is rooted in the idea of colorblindness and expressed in the constitutional requirement of nondiscrimination. This constitutional right becomes "pure" over the course of the late twentieth century in the sense that the courts begin to use "colorblindness" as a standard that stands apart from the social conditions under which it was formed, the social movement struggles that gave it such a powerful political, social, and legal meaning in the face of challenges to separate but equal. By ignoring how the concept of colorblindness was brought into being, the history of struggling against slavery and its aftermath are left behind as are the implications of those struggles for future policy. Because colorblindness becomes the conceptual basis for determining constitutional quality, it is useful to look at its roots in the Brown v. Board of Education litigation and the opinion by Chief Justice Warren.

Although it struck down segregation, Warren's opinion for the unanimous Court was a response to the earlier doctrine. The focus of Brown decision was on desegregation, the direct opposite of the 1896 holding in Plessy, which had provided the rationale for segregation. Whereas in 1896, segregation had been justified, Warren's opinion in Brown attacked the legal practice of requiring that people be segregated by races. The tradition of legal formalism and distance from social reality that had allowed segregation to exist could not shield that practice from the social reality of segregation in 1954. Recognition that the treatment of blacks by whites in the South was oppressive led to the end of constitutionally sanctioned segregation. The consequence was a view of constitutional equality that disposed of material considerations as part of the false promise that had propped up segregation; this new view put in its place a principle of constitutional equality focused on "desegregation" or non-discrimination.
Having withdrawn protection for racism in the law, we witness another doctrinal response, established by 1974 by Milliken v. Bradley but beginning to form in Brown, which ignores the context of colorblindness as used by Justice Harlan in his Plessy dissent and thereby ends up promoting a formal conception of colorblindness-- any race classification, whether it seeks to redress discrimination against blacks or imposes burdens on whites is suspect of violating constitutional equality. The impact of a formal conception of colorblindness is to enshrine Justice Harlan's rhetoric in his Plessy dissent without attention to the social context in which inequalities exist. In Brown, Chief Justice Warren's majority opinion does not speak about equality in education in terms of measures used to compare white schools with black schools. It does not establish a right to education of the same value or social importance for everyone. Rather, the injunction against denial of equal protection is like "...the historically familiar assertion that all men must stand equal before the law, that justice must be blind to wealth or color, to rank or privilege" (Tussman and tenBroek, 1949:342). In this doctrine, a new formality, although it came from attention to social phenomena, makes it difficult to keep the roots of anti-discrimination theory alive in later adjudication. The justices in Brown left a legacy of colorblindness even though they never used the term. They gave birth to a principle that has increasingly become dissociated from the oppression of blacks that brought it into being.

Pure concepts, such as colorblindness, are part of a judicial propensity to generalize. There are many similar kinds of concepts that have been identified as the basis for judicial choice. From Herbert Wechsler (1959) came the concept of neutral principles, and the key descriptive phrase of "line drawing for all." Wechsler uses the First Amendment "clear and present danger" test (See Ch. 2 FREEDOM) as an example of such a principle. However, he argues that the Brown decision fell short of this ideal. Neutral principles are supposed to resolve cases by inclining toward narrowness and leaving political considerations to other branches of government. The concept of universal principles, used by Richard Flathman (1976), is similar in that it holds that what is right for one person must be right for every relevantly similar person. This kind of principle seeks sameness across contextual differences. Paul Freund (1964) offers yet another angle. Critical of concepts like colorblindness, he calls them absolutes because they ignored practical realities. He argues that law cannot stand apart from or ignore the social context (e.g., racism) and the political realities (i.e., exclusion from decision-making processes) that give meaning to concepts or principles. Finally, Herbert Marcuse (1968) criticizes those legal concepts that purported to be pure. He points to the American Civil Liberties Union's position on the First Amendment and its claim to tolerate all forms of expression and suggests that in these concepts there was "no admixture of interests," and thus that to discriminate on the basis of race would be wrong. Missing in the purity of the concept is a sensitivity to discrimination against blacks that produced the concept in the first place.

Thus, the legacy of equality in Brown was a "pure" concept. The decision came down to the public as standing for colorblindness, and it has had a remarkable impact on the popular conception of equality. In that period, school children were taught not to "see" race, and liberal parents encouraged their children to be colorblind. This view of the ruling was heightened by the Court's own decision to separation the constitutional issue raised in Brown I from a plan on how to implement the consequences of its decision. In Brown II (1955), however, the Supreme Court held that desegregation should proceed, "with all deliberate speed." Thus began a struggle that is not over yet. Faced with widespread resistance to the judicial order, the response was a kind of color consciousness on the part of the judges charged with implementation. Separation became even more entrenched as the issue in this area. Consequently, it was not restrictions on choice or unequal education, but distinctions themselves that were the focus of equal protection battles. This is the concern we turn to next.

REMEDIES TO RACIAL INEQUALITIES

The Supreme Court's holding that segregation of the races in public schools could not be "squared" with the constitutional promise of equal protection sparked two decades of political activity. Only six months after the decision in Brown, Rosa Parks boarded a bus in Montgomery, Alabama, and refused to sit in the back where blacks had been expected to sit. Instead she sat in the front of the bus. The idea in Brown and the action in Montgomery are the vision and the practice that made this the initial struggle in what would turn into the civil rights movement, a decade of struggle to realize the ideals the justices had announced in 1954. All along, however, the idea was somewhat out of synch with the process by which it was implemented. The result would be a number of challenges to efforts taken on behalf of minorities. These challenges would rely on colorblindness.

Implementing Colorblindness

The ruling in Brown is not just a precedent for courts and lawyers; it is, in the words of Martin Luther King, Jr., a dream. The key to the dream is colorblindness. The notion that equality is colorblind has been at the heart of the inconsistencies we see between an elegant promise and the trench warfare over implementing policy. The details of desegregation policy are largely the work of federal district courts whose duty it is to enforce the constitutional standard. Interventions by the Supreme Court set the parameters for enforcement and adjust the methods of implementation to new circumstances.

Colorblind Principles. The promise of constitutional equality is evident in the struggle of many racial minorities right up to the 1954 decision in Brown. After the Civil War, the Irish in 1880 (Strauder v. West Virginia), the Chinese in 1886 (Yick Wo v. Hopkins), aliens in 1915 (Truax v. Raich), Japanese-American citizens in World War II (Korematsu v. U.S., 1944), and Chicanos in 1954 (Hernandez v. Texas) brought litigation in hopes of fulfilling this promise. The visions and the hopes are that law will police inequalities so that discrimination will ultimately be eliminated. Even the white majority could hope to benefit since it is composed of ethnic groups, many of whom have experiences with discrimination. The promise of universal equality under the law is, of course, central to the liberal creed aptly characterized by Justice Lewis Powell as the inability "to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority" (Regents of the University of California v. Bakke, 1978). The formal conception of colorblindness, like "pure tolerance," promises something for everybody.
However, the concept of "racial discrimination" takes on a different meaning depending on whether we define discrimination from the victim or the perpetrator perspective. According to law professor Alan Freeman (1978), when the Court adopts the victim's perspective, racial discrimination focuses on the conditions of existence for members of an underclass, including lack of money, lack of jobs, lack of housing. But if the Court is concerned only with identifying those who perpetrate racial discrimination, it will tend to define discrimination as intentional violations, by groups or individuals, of the constitutional mandate of equal protection.

Anti-discrimination law has, at its core, the prohibition of violations-- race conscious actions that disadvantage members of minority groups. Freeman's thesis is that anti-discrimination law tends to comprehend race discrimination in terms of intentional act of discrimination carried out by perpetrators. From this standpoint, the law's role is to identify actions that violate the principle, outlaw them, and neutralize their effects. This perspective presupposes a world composed of atomistic individuals whose actions are not embedded in a social fabric that discriminates, instead presupposing that, but for the violation, the system would work. The social conditions that enable, if not determine, racial discrimination only get taken into account when the Court addresses the issue of remedying racial discrimination.

According to Freedman's analysis, the period of anti-discrimination law from 1954 to 1965 is characterized by a “jurisprudence of violation.” This is an era focusing on violations of a particular sort. The problem of remedies is relegated to the "equity" category and assigned, by the second Brown decision (Brown II), to the lower federal courts. The major task of the era was to identify perpetrators against whom anti-discrimination law might be directed. This involved discovering new forms of violation, such as restrictive covenants, municipal corporations, and private "conspiracies" (Guest v. U.S., 1966). When the Court was unable to elaborate on this kind of anti-discrimination principle, as in Swain v. Alabama (1965), when a black man accused of rape challenged his nearly all white jury, the Supreme Court denied the claim because it fails to find "purposeful discrimination." The most dramatic example is the focus on intentional discrimination, and a rare instance of armed support for a constitutional principle came in 1957 when President Dwight Eisenhower sent troops to Little Rock, Arkansas, to enforce the Supreme Court's school desegregation ruling. The president's action was challenged and upheld by the Supreme Court in Cooper v. Aaron (1958), affirming the Court's commitment to the principle of Brown.

In this period, a distinction between de jure and de facto discrimination arose. De jure discrimination is defined as intentional discrimination by means of state law, such as the state laws requiring racial segregation which were ruled unconstitutional in Brown. De facto discrimination refers to the "fact" that there is a pattern of discrimination, but it is not evident who the intentional actors are, if any at all. The Court limited the scope of what constitutes discrimination under the Constitution to de jure discrimination in the period from 1954 to 1965. With regard to the definition of a violation, the story did not differ much in the South from in the North; in both regions the Court focused on intentional separation of the races. The eventual need to face the issue of how to remedy past offenses would lead to a legal policy which was very different from the popular mythology of colorblindness. Judges operating under the Constitution became "race conscious," in that they justified policies to remedy discrimination on findings of past constitutional violations, or acts of discrimination. In 1964 (Bell v. Gary, Indiana), however, the Court judged de facto segregation not to be unconstitutional.

President John F. Kennedy, for all his commitment to racial justice, was able to do little in this area. It was only after he was assassinated in Dallas that his successor, Lyndon Johnson, pushed through the Civil Rights Act of 1964. Southerners, in an unsuccessful attempt to kill the legislation, inserted "sex" as one of the protected categories. Ten years later, this was to be a key statutory tool in the women's movement. Section 2 of the Civil Rights Act of 1964 protects people against discrimination in public accommodations, and it was ruled constitutional in Heart of Atlanta Motel v. United States (1964). The achievements of this period reached their culmination in 1967, when Thurgood Marshall, a former chief counsel to the NAACP who argued for Linda Brown before the Supreme Court in 1954, became the first black to be appointed to the Supreme Court.

Race-Conscious Remedies. The period from 1965 until 1974 stands out as one in which the Supreme Court focused on ways to implement the constitutional norm. The law remained within the perpetrator perspective, but the provision of remedies began to create expectations associated with the “victim perspective.” The Court found plans offering students a choice of schools inadequate in 1968 (Green v. New Kent County School Board) and ruled that a dual race-based educational system had to be merged at once into a unified system in 1969 (Alexander v. Holmes County Board of Education). Two years later, in confronting the hostile Charlotte, North Carolina School Board, the federal district court appointed an educational consultant who prepared a desegregation plan calling for busing to achieve racial balance. In this case, Swann v. Charlotte-Mecklenburg Board of Education (1971), the justices said that, all things being equal, children should be assigned to schools near their homes. But since all things were not equal in a system "...deliberately constructed and maintained to enforce racial segregation...the task is to correct the condition that offends the constitution." Since the state had a history of de jure segregation, the school boards could prescribe measures for desegregation. Thus, the justices were not "colorblind" to obvious violations. Judicial power to supervise where teachers would be assigned and where schools would be built was acknowledged.

Following Swann, a number of cases emerged treating the issue of responsibility for a remedy in the South. In Wright v. Emporia (1972), the trial court had prevented the newly formed city of Emporia from withdrawing its children from the county school system. By a 5-4 majority, Justice Potter Stewart emphasized that a desegregation plan with some disparity in racial balance does not make the plan unacceptable, but he insisted that a town could not withdraw from a district to avoid desegregation. The decision was unanimous in U.S. v. Scotland Neck Board of Education (1972), where the creation of a new district, substantially motivated by a desire to create a predominantly white system, was deemed unconstitutional.

Some Northern states tried by their own initiative to eliminate segregation in public schools. The model, however, was again taken from Brown, with its emphasis on racial mixing as a key to equality. Massachusetts, for instance, required district wide action whenever a school had more than 50 percent nonwhite students. The leading case for desegregation in the North was Keyes v. School District No. 1 (1973). In this case, dealing with Denver, Justice William Brennan's majority opinion did not question the de facto-de jure distinction, but it held that housing patterns were not an excuse where school district policies served to isolate blacks. He set forth criteria to facilitate a finding of de jure discrimination where the traditional state-mandated segregation was not obvious. The creation of segregated schools in any part of a district "infected" the whole district with racial bias. Not just statutes, but administrative actions, could also constitute a violation of the Constitution in this period. Swann, Wright, and Keyes had created an expectation of change akin to the victim perspective in that it looked beyond surface formulations and required race-conscious remedies.

Beyond Separate and Unequal. The story comes full circle by the end of the 1970s. By 1970, three-quarters of all blacks lived in metropolitan areas that were somewhat different from the Southern segregation that spawned the classic constitutional formula. Blacks and whites did not live in relative proximity separated by Jim Crow laws. They lived in communities that were considered separate because of their boundaries. This posed a problem for realizing equality of treatment under the Brown formula for non-discrimination. In many cases the magnitude of the separation was staggering. In Chicago, the south side of the city, for instance, contained about 2.5 million people, nearly all black. These sections were surrounded by white suburbs. In Detroit, the central city, with almost 1 million people, was largely black. One plan, initially conceived to remedy these situations, which was consistent with the aspiration to equality of treatment, was to bus children from the suburbs to the central cities to equalize the racial composition of the schools.

The plan was put forth in the early 1970s by a federal district judge in Detroit, Stephen J. Roth, who was an influential jurist of considerable vision. His order, in response to a history of state-supported civil rights violations, was on such a dramatic scale that it was described as making "all previous busing programs look like class excursions" (Wilkinson, 1979). In a metropolitan school district of 780,000 pupils, nearly half would be bused for desegregation. By including the suburbs, the judge sought to accomplish an integration of class as well as race, for it was in these suburbs that the more affluent middle classes lived. The judge's idea was to bring those who had fled the city back into the school system. In addition, metropolitan busing actually required fewer buses because the distances were in many cases less, and busing involved less travel time for the students than some inner-city remedies. Judge Roth held that the acts of the Detroit Board of Education, as a subordinate entity of the state, were attributable to the state of Michigan, and that the state had a liability to remedy the situation. Roth found that the only way to meet this responsibility was to bus suburban children to the city. The judge's remedy reached the Supreme Court in Milliken v. Bradley (1974).

For the Supreme Court, Chief Justice Warren Burger responded that the task is to correct the condition that offends the Constitution, but that the constitutional right of the black respondents residing in Detroit is attendance at a unitary school system in that district. He did not find that the suburbs were implicated. According to Burger, a multi-district remedy to de jure segregation required findings that those included in the remedy have failed to operate a unitary school system, that boundaries were established for the purpose of discriminating, that included districts had committed acts that affected segregation within the districts, and that everyone involved had a chance to be heard on the propriety of the remedy or the question of constitutional violation. As Justice Potter Stewart emphasized in his concurrence, the issue was the appropriate exercise of federal equity jurisdiction. The problem, however, was that the constitutional mandate still focused simply on desegregation. Justice William Douglas penned a paradoxical lament.

When we rule against a metropolitan area remedy we take a step that will likely put the problem of the Blacks and our society back to the period that antedated the separate but equal regime of Plessy v. Ferguson. Today's decision, given [San Antonio School District v.] Rodriguez, means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only "separate" but "inferior."[Milliken, 1974:761]

Due to the logic of Brown, the country was left without a remedy.

Burger's opinion in Milliken is, according to Freeman (1978), a perverse denial of the reality of segregation, where the Court for the first time applied anti-discrimination law to rationalize a segregated result in a case where a constitutional violation had been found. The decision was consistent with the traditional formalism of the constitutional law in this area, however, and the refusal of the Court to step in must be seen in light of the more active forms of social and economic discrimination that created the situations in the first place. The white parents who had fled the older urban areas were participating in the discriminatory social and economic setting that had been left untouched by judicial attention to de jure discrimination.

It is possible, however, to read the second Milliken case (1977) as transcending the traditional categories. In the first case, the Supreme Court had reigned in the lower court judge. The violation was not inter-district, so the remedy could not be either. In the second case, decided in 1977, the Court faced the situation of a constitutional violation where there was no authority for meaningful remedial action in the traditional form. As part of its equity power, the district court in Detroit had responded to the first case with a "draft on the public purse." Judge Roth had required expansion of various educational programs, such as reading and career guidance, in pursuit of providing a more equal education for the inner-city children. The Court turned from the practice of integration to the provision of equal, or at least more equal, education for the first time since the Margold Strategy leading up to the Brown decision. In 1977, by an 8-0 vote, the Supreme Court held that such action by the district court was appropriate. The constitutional principle is one that transcends the limited categories of the desegregation jurisprudence of the period from 1954 to 1974.

The Paradox of Affirmative Action

By the late 1970s, the legal principle of colorblindness and the policy of affirmative action were on a collision course. Each had its own tradition and its own proponents. Colorblindness was the more abstract vision against which legal conduct was measured. Affirmative action was a policy response and a realization that substantial steps had to be taken. The color consciousness that is characteristic of affirmative action is most closely associated with programs of "implementation," that is, strategies for "getting somewhere." Initially, this place might be colorblind paradise, but increasingly even that goal took account of race or ethnicity as attractive aspects of a cultural heritage or tradition. That a clash was festering in society and pressing on the Supreme Court is evident in the cases brought to the Court in the mid-1970s. In 1974, the justices heard oral arguments on affirmative action, but they were able to avoid the issue because the law school whose admission procedure was challenged admitted the challenger pending the outcome of the litigation. By the time the case got to the Supreme Court, the petitioner was about to graduate, making the case "moot" (Defunis v. Odegaard, 1974). Thirteen cases were petitioned to the Court in the next two years. Each was denied review by the Court.

Understanding Bakke. The clash between colorblindness and affirmative action surfaced in the 1978 case of the Regents of the University of California v. Allan Bakke. Although there is important law in later cases such as Fullilove v. Klutznick (1980), Bakke sprang the question and caught the interest of the public; it seemed to be a test case for the viability of affirmative action remedies more broadly. Like a student applying to medical school, we are conventionally concerned with results. Bakke's application to medical school was looked at in the context of affirmative action, and his appeal was influenced by the operative concept of constitutional equality. Consequently, the most interesting thing is that there was a case at all, that a white man could claim that he had been discriminated against, relying on anti-discrimination litigation beginning with Brown v. Board of Education and continuing throughout efforts by the NAACP to end discrimination against African Americans.

Due to past failures to address the issue, groups on both sides were poised as Bakke's case made its way to the Supreme Court. The proximate cause of the suit was a white male who had generally high ratings in the medical school process, but who was denied admission to the medical school at the University of California, Davis. The University had a program that gave special consideration to disadvantaged groups in an effort to increase their numbers in the school and the medical profession. The University conceded that given his scores, it could not prove that Bakke would not have been admitted if there had not been a special admissions program. The brief for the University, by law professor Paul Mishkin, argued that Brown should be seen as "...impetus for the effort to end barriers to real equality of opportunity for racial and ethnic minorities" and that it "expressed the goal of educational opportunity unimpaired by the effects of racial discrimination." There is an assumption in the brief that Bakke's claim made sense, but that there were extenuating circumstances explaining why the University took his race into account. They attempted to hold that the discrimination standard applies only to minorities who had traditionally been disadvantaged.

Civil rights groups, who were generally willing to have the constitutionality of affirmative action tested, were unsure of the wisdom of supporting this case. Concern that the decision of California's Supreme Court to overturn the admission process would become national law derived from two problematic elements of this situation. First, the system involved a quota, a nasty word too many like the Anti-Defamation League of B'nai B'rith who could have been counted on, traditionally, to support the civil rights position. To gain the support of such groups, those who favored affirmative action would have preferred a less rigid system. Second, since the school had been open for only 10 years it might be hard to establish the traditional basis for affirmative action as a remedy here. Nevertheless, the University pressed, and the Supreme Court went forward with the case.

In the fall of 1977, this case became the focus of widespread political action. Few cases in this half-century have generated as much public debate. This was most clearly a situation where there was a need to have the paradoxical existence of affirmative action under a colorblind Constitution resolved. The press loved the issue, or appeared to, by the large amount of attention it gave to the case. They featured background stories on Bakke, the medical school to which he was applying, and even the trauma of the admissions process. Radical groups used the case as a forum to focus attention on civil rights issues that had waned since the 1960s. Bakke's claim was a vivid symbol of what some felt had happened and others feared would soon happen to the dream of a nonracist society. Consequently, the Supreme Court and the debating forums on college campuses were deluged with those concerned about the case. Part of the political struggle came to the Supreme Court, as it often does, in the form of amicus curiae, or "friend of the court," briefs. The Justice Department, under the administration of President Jimmy Carter, submitted that the justices distinguish between quotas and less rigid forms of affirmative action and counseled them to narrow the scope of their ruling. This was one of 58 briefs filed in the case, establishing, some suspected, a record for briefs filed and certainly serving as a sign of the attention generated by the case. There was the perception, perhaps, that in such a situation the Court might even be looking to outsiders for help in resolving the paradox. While civil rights and generally liberal political groups joined in support of the university, Bakke had the United States Chamber of Commerce and the Anti-Defamation League of B'nai B'rith on his side. The organized legal lobbyists of the Jewish community had enlisted on the side against quotas.

The medical school at Davis, the former agricultural college of the California system situated in the heart of the Sacramento Valley, opened in 1968 as part of a general expansion of the university system to meet the needs of a rapidly growing state. Its enrollment increased to 100 and stabilized there by 1971. The ordinary admissions process, which Bakke went through twice, involved the collection of the overall grade point average, the average in the sciences, a score on the Medical College Aptitude Test (MCAT), letters of recommendation, and an interview. A special committee considered disadvantaged and minority groups and made recommendations to seats set aside for members of these groups. Bakke applied late in 1973 and was denied admission. He tried again in 1974, and he was again turned down. His suit against the university reached the Supreme Court two years later. There are three opinions from the Court: 1) overturns the affirmative action plan as a violation of the colorblindness doctrine; 2) supports the concept of affirmative action as a constitutional remedy for patterns of racial discrimination; and 3) reaches a compromise position uniting a floating majority, which held that Allan Bakke should be admitted to medical school and race can be one of many factors to be taken into account some of the time.

The first opinion, the colorblind opinion, was written by Justice John Paul Stevens and also included Justices Burger, Rehnquist, and Stewart. They asked whether Bakke had been discriminated against, rather than the broader policy questions about the constitutionality of affirmative action or whether race could be taken into account in admissions processes. This narrowing of the issues is well within the grand tradition of legal formalism and these justices-- who are generally considered to be on the conservative end of the political spectrum-- narrowed the discussion further by refusing to explore a constitutional basis. They found the answer to their question in the 1964 Civil Rights Act, Title VI, Sec. 601, and they held that the meaning of the section is clear: when it says "No person...shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of...any program receiving federal financial assistance," that is what the Congress means, and Bakke was therefore discriminated against. The justices said that the university's claim that there was no racial stigma behind the classification was not relevant because, in the legislative history of the Act, there is no such provision. In that legislative history, they found that opponents of the Civil Rights Act feared that discrimination might mean racial quotas. They were assured that the act meant "colorblind" administration, and at least a few bought the argument that the principle of colorblindness is one where there might be some hope of a common purpose. The politically conservative justices looked to the statute rather than the Constitution for support and cited speeches of the most vocal liberals-- Senators Hubert Horatio Humphrey and John Pastore-- to support their interpretation. Humphrey is quoted as arguing on the floor of the Senate:
The word discrimination has been used in many a court case. What it really means in the bill is a distinction in treatment...If we started to treat Americans as Americans, not as fat ones, tall ones, brown ones...but as Americans...we would not need to worry about discrimination.

His sentiments were echoed by Pastore, who used the word so dear to liberals of that period:

Title VI will guarantee that the money collected by colorblind tax collectors will be distributed by Federal and state administrators who are equally colorblind.

This is a powerful argument, and it demonstrates the impact of constitutional interpretation on federal legislation. The colorblind reading, which originated as a gloss on the equal protection clause of the Fourteenth Amendment, becomes the conventional wisdom.

The Court's political liberals on the Court, Justices Brennan and Marshall, disputed the interpretation given by their more politically conservative colleagues. The opinion they put forth is joined by Justices White and Blackmun and proposes the strongest support yet advanced for the policy of affirmative action. Their argument is that "we cannot let colorblindness become myopia which masks the reality of inferior treatment." Yet, in Bakke they are boxed in by a constitutional tradition based on Brown which reached out to whites, as it were, and provided them with a promise that they too would not simply be placed into a category because of their race. Brennan and Marshall went beyond the Civil Rights Act of 1964 and turned to the Constitution in a move that was a classic response to the legislative history presented by Justice Stevens. In so doing their argument relied less on the words of 1960s liberals who had written whites into the protections of the Fourteenth Amendment. Their interpretation is turned out to be more like Justice John Marshall Harlan's, who, years before in Plessy, had called attention to purposes of discrimination and refused to be bound by a formalist reading of law's reach. They argued that colorblindness had never been part of the Constitution. Although it was a statutory strategy, they pointed out that it was never adopted by a majority of the justices. It was not, they argued forcefully, to be found anywhere in the Brown decision. They were concerned that the authority of the government not be used to support race hate but rather argued that where classifications serve important government purposes and are benign or remedial they should be allowed to stand.

These justices went a step further and argued for the relevance of past societal discrimination as a justification for a racially-conscious admissions program. They held that, although court-ordered remedial action requires a finding of discrimination, voluntary remedial action should not. Such voluntary efforts, they believed, should be allowed because they offset past discrimination. This opinion came remarkably close to acknowledging a "group rights" claim, a kind of right that had generally been absent from the legal setting. The absence of group rights claims has epitomized the limits of policy formation in the judiciary (O'Neill, 1981), as opposed to the legislative sphere. The view that individual rights and not group rights are involved when racial discrimination is challenged distinguishes the tradition of equal protection in the Constitution from a conventional view. Constitutional rights have been tied to individuals, and there has been a reluctance to acknowledge group claims. Implementation strategies, statutory affirmative action, and pluralist ideology are antithetical to this position.

More characteristic as a legal response is the synthesis and compromise presented by Justice Lewis Powell in Allan Bakke's case. Powell's opinion builds on initial concessions the university made based on race. The issue, as Powell framed it, is the level of suspicion we should have when race is taken into account and what considerations are legitimate to override that suspicion. Powell discussed the statutory claim, but he ultimately turns to the constitutional meaning. He did discount, however, the "colorblind" rhetoric of the legislators in 1964 by emphasizing that they were looking at white racism in their call for equal treatment. He suggests that their statements on colorblindness not be taken out of context. The constitutional issue of classification captures most of Powell's attention. He minimizes the quota issue in stating that a line drawn on the basis of race, whether a program like the one at Davis or a more flexible, goal-oriented method, demands exacting judicial scrutiny. He then rejects the benign classification approach (discussed below) and indicates that individuals must not be asked to bear burdens for which they are not directly responsible. Part of his discussion here takes up the troubling reality of past instances where race was taken into account. In every instance he distinguishes between such instances and the situation in Bakke, emphasizing the remedial nature of school desegregation, the sex discrimination cases that were not subject to the same level of scrutiny, and the employment cases where those who are helped suffer. Thus, he approaches the question with the traditional suspicion, but like a lawyer he still approaches it with the hope that a resolution will be found.

In assessing the justifications presented by the University of California and developing some of his own, Powell looks for a permissible interest which would make the use of the classification necessary. The first is the desire to increase the number of minorities in medical school. This he considers circular in its attempt to justify the end by simply restating its premise. The second is societal discrimination. Although this is a worthy goal, the problem of innocent victims who would be required to pay is, in the context of the legal process, too much to consider. Third, there is the proposal to increase the number of physicians for minority communities. Powell seems more interested here, yet a proposal had not been worked out in conjunction with the medical school to carry this through. Finally, and ultimately successful, is the interest in an educational benefit that come from a diverse student body.

Powell argues it is reasonable for an admissions program to take race into account to the extent that this characteristic among others is a relevant consideration if we are interested in having a diverse student body. There are some caveats, however, in Powell's argument. The method by which institutions seek to diversify, Powell maintained, should be the least threatening to the individuals who would bear the burden of any affirmative efforts on behalf of minority groups. In the case of the Davis program, the failure to treat applicants as individuals is deemed the ultimate failure of their program. The synthesis achieved by Justice Powell is more than a political compromise. Although it fails to uphold a group rights claim implicit in the university program, it supports a collective interest in providing diversity in an educational setting. In this context, race may be taken into account for the benefit of society and presumably for the majority, rather than the other way around.

The aftermath of Bakke, like many cases involving constitution interpretation, is many faceted. One can point to Bakke's admission to medical school just a few months after the decision was rendered. There is also the possibility that the decision kept minorities away from Davis medical school. Prior to the decision, the school had enrolled about eight blacks per year. The year Bakke's case was decided, four blacks entered the school. In subsequent years, the number stayed near zero, leading the school to hire a consultant-- paid for by a federal grant-- to attract blacks to an institution. In general, although the decision condones implicit consideration of race, it also provides a basis for resisting affirmative action. A flurry of activity aimed at influencing the way the decision would be read, of course, was part of the aftermath. How Bakke would be interpreted in a variety of contexts became the central issue and one of the most important contexts for affirmative action in the bureaucracy. In government, agencies from Health and Human Services (HHS) to the Civil Rights Commission offered interpretations giving a very optimistic reading of the future of affirmative action programs run by the government. Readings for individual institutions, however, seemed to depend largely on how much pressure they faced locally. Political changes that came with presidential elections, such as the elections of Ronald Reagan and George Bush, eased if not diminished pressure for affirmative action.

Shifting Burdens. Constitutional politics in the area of equal protection turn, in part, on how equal protection is defined. The more universal and formal the definition, characteristic of "colorblindness," the more significant are the barriers for implementing remedies to past patterns of racial discrimination in the field of education. In the field of employment, there is a similar story and a similar set of struggles against discrimination. Whether disputes focus on the constitutionality of personnel tests or on who bears the burden of proof, from the late 1970s to the present, the Supreme Court has by and large been less willing to fashion or uphold remedies to racial inequalities that do not result from intentional acts of discrimination.
In the early 1970s, though, the Court put more stress on the impact of discriminatory action, rather than concentrating on whether or not such unequal results could be traced to "intentional" discrimination. Griggs v. Duke Power Co. (1971) struck down a test given to all job applicants regardless of the type of employment they were seeking--the outcome was that minorities were underrepresented in office jobs. The Court found that while the test was not discriminatory in its intent, it was in its effect and that such disparate impact could not be justified by even a low standard of review. But then in Washington v. Davis (1976) the Court made a distinction between the statutory and the constitutional standard for judicial review of governmental actions alleged to be discriminatory. Justice White argued for the majority that Title VII of the 1964 Civil Rights Acts, which prohibits employment discrimination, requires a more probing review by the courts, one that is less deferential to administrators or executives in cases where no intentional discrimination is found, yet their official acts have a racial impact. Further the Court reasoned that it does not necessarily follow that government action is unconstitutional solely because it may have a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose. In this case, two blacks who applied for jobs in the District of Columbia police department claimed that the personnel test bore no relationship to job performance and it disproportionately excluded a large number of black applicants. The Court recognized that the due process clause of the Fifth Amendment has an equal protection component in that it protects individuals against "invidious" discrimination. However, the majority of the Court was unwilling to include in its interpretation of constitutional equality protections against discrimination which results from, but is not necessarily intended by, the government.

The Supreme Court's review of affirmative actions plans in employment also shifts ground from a concern with remedying the impact of past forms of discrimination to scrutinizing the basis on which remedial actions are taken. In its first review of set-aside plans in Fullilove v. Klutznick (1981), the Court upheld a federal program designed to compensate for past discrimination in the construction industry. The decision, although handed down by a divided court, encouraged state and local governments to develop their own, similar programs. Yet in City of Richmond v. Croson Co. (1989) the majority rejected a Minority Business Utilization Plan adopted by the Richmond City Council that required 30% of city construction contracts to subcontractors be allocated to Minority Business Enterprises. In this case, Justice O'Connor argued that the city failed to identify the need for remedial actions and thus the minority set-aside program imposed racial considerations against whites in violations of the Equal Protection Clause.

Another approach to redressing racial discrimination in public employment, short of a court-ordered plan resulting from litigation, is when plaintiffs agree to drop the suit in return for an agreement between the parties about future hiring practices. This agreement, called a "consent decree," is reached with court supervision and is enforceable under the law. However, despite judicial reforms in the last two decades that have encouraged, if not mandated, alternatives to litigation, in Firefighters Local Union No. 1784 v. Stotts (1984), the Court overturned enforcement of a consent decree that would have protected newly higher black firefighters from lay offs resulting from budget cuts and laid off more senior fighter fighters, all of whom where white.

Between 1986 and 1991 the Supreme Court heard a number of employment cases in which it decided to restrict the scope and remedies of federal anti-discrimination laws. Justices Brennan and Marshall, along with Justice Stevens form the dissenting voice on the Court. Those in opposition to the majority voice on the Court, however, have allies in Congress. In 1991 Congress successfully passed a major anti-employment discrimination bill, the Civil Rights Act of 1991. Previous legislative attempts were vetoed by President Bush. The Act counters the effect of at least nine Supreme Court decisions that made it more difficult to bring and win challenges to employment discrimination. One case the Act directly speaks against is Wards Cove Packing Co. v. Atonio (1989), where the Court shifted the burden of proof from employers to workers in discrimination cases where the company had a history of past employment discrimination. The Civil Rights Act of 1991 reinstated the established judicial requirement that the employer must bear the burden of proof, which had been articulated in 1971 in Griggs.
Although Congress infrequently expresses its political opposition to the Court in collective acts, such as civil rights bills, when it does it usually pays a price. The amount is often determined by the political context. In this instance, the compromise between the Democrat proponents of the bill and the Republicans in Congress and President Bush, was to amend Title VII of the 1964 Civil Rights Act so as to limit monetary damages for victims of employment harassment based on sex, religion, or disability. According to observers at the CQ Almanac (1991), "The deal was reached in the wake of the divisive Senate hearings into Anita F. Hill's sexual harassment allegations against Supreme Court nominee Clarence Thomas and the strong Oct. 19 primary election showing of former Ku Klux Klansman David Duke, a Republican, in the Louisiana governor's race." David Duke lost the election and Clarence Thomas's nomination was confirmed.

These have been interesting times for studying the constitutional politics of equality. During the Clinton Administration, Congress and the President were sometimes, allied against the conservative voting bloc on the Supreme Court, which has held a majority throughout the 1980s and 1990s. The Breyer and Ginsburg appointments to the Supreme Court left the justices divided more evenly. In addition to new institutional realignments within the government with the election of President George W. Bush, the constitutional politics of equality seem to be changing only slightly. But, the Court is not the bastion of hope it was a generation before and civil rights lawyers who had been architects and supporters of the post-war civil right's movement, have critically questioned the political benefits of a rights-based strategy. Professor Derrick Bell (1987), for example, asks us to examine the declining significance of the Equal Protection Clause in a society where racism is so institutionalized that it no longer is as visible as it once was when segregationist practices clearly stated "whites only." [BELL INSERT NEAR HERE]

Should those committed to social justice and racial equality continue to put as much hope and as many resources into litigation as did the civil rights movement for almost a century if the results fail to remedy racial inequalities and the jurisprudence itself becomes "colorblind"? Critical legal race theorists, such as Professors Patricia Williams (1992) and Kimberlé Crenshaw (1993), have urged us not to dismiss the law because it is a powerful political force in American society, but approach it with caution. In her comment on Metro Broadcasting v. FCC (1990), Williams (1991) argues that while Justice Brennan's majority opinion to uphold limited preference programs to increase the number of minority-owned broadcast stations appears as a small victory for the civil rights movements, it tends to perpetuate a dangerous polarization between minority groups and individuals. She suggests that to advance the jurisprudence of equality, we need to break out of an individualistic framework where economic interests are separated from civil rights. She would have the project of constitutional equality incorporate and account for historical experiences of inequality as part of building more democratic social relations. Without this shift constitutional equality may simply provide us with formal rights against discrimination which deny existing differences. This would only contribute to inequality. In Adarand Constructors, Inc. v. Pena (1995), the Court overturned Metro Broadcasting v. FCC, affirming the legal formalism we see elsewhere in its colorblind interpretation of equal protection jurisprudence.

These are some of the difficult questions about the politics of constitutional equality that we hope you will probe as you read the majority and dissenting opinions in this chapter. For those of you interested in predicting or speculating about future directions in constitutional equality, we think that Board of Education of Oklahoma City v. Dowell (1991), though decided some time ago, may contain some useful insights. In this case, Chief Justice Rehnquist upholds a federal district courts decision to terminate a court imposed school desegregation order that had been in effect for 13 years. Supporting the Board of Education of Oklahoma City over the objections of African American students, their parents, and a coalition of civil rights and educational organizations, the five-member majority in the case backs away from a more stringent standard of judicial review for terminating school desegregation orders. Justice Marshall, in his last opinion on school desegregation for the Court, writes a blasting dissent, joined by Justices Blackmun and Stevens. Justice Souter did not participate in the opinion. We have inserted a fuller version of this dissent than we have for other cases because it articulates not only "the other side," as it were, but it also gives you a sense of what civil rights advocates see the Court as doing, in the late-twentieth century, to a century-long legal struggle against "separate but equal."

CLASSIFICATION AND EQUALITY

How has equal protection been expanded beyond race and how has the constitutional logic we have been examining been applied to statutory classifications found in congressional legislation? The logic for evaluating classifications of all kinds stems from interpretations of racial discrimination, so let's first review the constitutional logic in this area. Then we will turn to two enduring, troubling, and fascinating classifications, those based on gender and those based on wealth.

The Logic of Equal Protection
Equal protection is about classification, or distinctions we make between people. Making distinctions is one of the tricks for getting through life, or at least life is predicated on recognition of differences. We distinguish between people who are in our family or who are not, who are at our university or some other, or between those who are faculty and those who are students. Political and social life begins with distinctions. Sometimes we make distinctions that turn out to be questionable, given some change in sensibilities or some deeper understanding of how we want to live. This has been the situation with regard to race in this country. The result has been a logic, the emergence of a mechanism for looking at classifications, and dynamic attention to a variety of classifications. The logic actually lays out how classifications should be assessed. There are three main parts to the logic of equal protection.

Suspect Classifications. The first aspect of the logic of equal protection is that there has to be a classification that is suspicious-- one that is troublesome, that has a history of abuse, like racial classifications, as opposed to one that distinguishes members of a family from those who are outside of it. Classification by family membership certainly can cause problems; it determines who inherits wealth and who does not, for instance. To distinguish simply on the basis of race, however, is ordinarily seen as a very bad idea. The differential suspicion that one classification carries over another is one aspect of the logic equal protection. Those that have been deemed "suspect" are given greater constitutional attention when equal protection rights are raised.
There are a number of classifications other than race, however, that provoke the logic of equal protection. Illegitimacy is one such class. Children born outside of marriage might not seem to some people a likely group to have ready access to the appellate courts, but in fact they have received a quite a bit of attention from the courts. The Supreme Court has not been completely consistent in its level of scrutiny or in its rulings on this matter, although it has most often used heightened or intermediate scrutiny to strike down such classifications. The first such opinion, in Levy v. Louisiana (1968), suggested heightened scrutiny and struck down a law denying illegitimate children damages for the wrongful death of their mothers as “invidious.” But three Court decisions in the 1970s (Labine v. Vincent, 1971, Mathews v. Lucas, 1976, and Lalli v. Lalli 1978) concerning inheritance upheld such a classification with a lower level of scrutiny even while another (Trimble v. Gordon, 1977) found that classification invalid. In the 1980s, the Court struck down laws in two states that limited the time within which paternity suits (for obtaining child support) could be brought by children of unmarried parents while children of married parents had no such limit (Mills v. Habluetzel, 1982, and Pickett v. Brown, 1983). Finally, in 1988 (Clark v. Jeter), a unanimous Court agreed on the appropriateness of the level of intermediate scrutiny for this classification.

Treatment of "resident aliens" has been looked on with suspicion at least since the Nineteenth Century (Yick Wo v. Hopkins, 1886). This derives from the fact that the Fourteenth Amendment stipulates that it is "persons" rather than citizens who are entitled to the protection of the Constitution. On the other hand, aliens who lawfully live in the U.S., pay taxes and contribute to the economy and society in invaluable ways, have always been the focus of nativist political attacks. In Yick Wo it was Chinese laundries that were being regulated in a discriminatory manner. Legislation against aliens intensified in the late 20th Century with the California referendum known as Proposition 187 which sought to deny social welfare benefits such as emergency room care and education to undocumented aliens.

As noncitizens, resident aliens cannot vote or hold political office in most jurisdictions, which may explain why they are vulnerable. In Foley v. Connelie (1978), the Supreme Court upheld a New York statute prohibiting noncitizens from becoming state police officers. Chief Justice Burger, writing for six members of the Court, reasoned that "It would be inappropriate... to require every statutory exclusion of aliens to clear the high hurdle of 'strict scrutiny,' because to do so would 'obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship." With respect to undocumented aliens that some have called “illegal,” the Supreme Court, by a thin majority in 1982, overturned a Texas law allowing local school districts to deny enrollment to undocumented alien children, Plyer v. Doe. Justice Brennan, arguing for the five-member majority, reasoned that Texas failed to show that denying a "discrete group of innocent children the free public education that it offers to other children residing within it borders...furthers some substantial state interest." This was the basis on which California’s Proposition 187 was overturned in federal court. Attacks on aliens intensified to a whole new level since September 11, 2001.

Other classifications that have been regarded with suspicion are those based on age or physical impairment. In this sense, it is obvious that civil rights reflect wider political concerns than race. Those concerns get translated into constitutional discourse and constitutional formulations, and they are evaluated in terms of the logic of equal protection.
Affected Interests. Another aspect of the logic is the understanding that a fundamental interest has to be affected. Thus, in addition to classifications that are historically suspect, justices want to know what someone claiming discrimination stands to lose. Although gender distinctions may be suspect, a claim to use a particular bathroom designated for the opposite sex would not traditionally make constitutional sense. In this instance, the fundamental interest affected by the classification would be lacking. Affected interest means a deep loss, like the right to vote, the right to get married; that is, the loss of something substantial.

Levels of Scrutiny. The third aspect of this logic is the level of scrutiny. If a classification is suspect and something fundamental is at stake, then a strict degree of "scrutiny" is required. This means that the courts require those who make a suspect classification that affects a fundamental interest to give justifications for the classification. Justice Powell, for example, required adequate justification for the racial classification in the Bakke case. There are different levels of scrutiny (some higher than others) that the courts apply to different kinds of interests (some more fundamental than others). In the following section on gender equality, you will see that the Supreme Court does not view gender classification as entirely suspicious. One response to gender classifications has been to apply a "heightened" level of scrutiny-- heightened, that is, from no scrutiny at all-- instead of the more stringent "strict" scrutiny standard applied to racial classification.

In his interpretation of constitutional law, Lawrence Tribe offers a subtle analysis of the strict scrutiny approach to equal protection questions. Most constitutional theorizing about strict scrutiny focuses on the "judicial review aspect" (Tribe, 1978:1001), that is, the question of judicial oversight and judicial competence. This means that most justifications of strict scrutiny are based on reasons for not being deferential to the legislative process or reasons why the traditional deference need not be operative. Tribe suggests that this is the wrong question. He believes that we should instead be asking about the proper approach to equality and discrimination and considering how that approach can be articulated to provide a standard worthy of a fundamental right. The discussion of classifications that follows is informed by these questions.

GENDER EQUALITY
Gender is a complex classification. As with many other classifications, we make distinctions based on gender all of the time. Yet, since the early 1970s there has been a great deal of political controversy surrounding the constitutional basis for distinctions between men and women. The application of equal protection in the Constitution to discrimination against women owes a great deal to earlier struggles of the Abolitionist, Women's Suffrage, and Civil Rights movements. Racial discrimination, as defined by the Constitution, has been the model for getting courts to declare that unequal treatment based on sex is unconstitutional. Challenges to race discrimination focused attention on the social, political, and economic effects of legal classifications. So too has the law's differential treatment of men and women become the target of significant social movement mobilization. The links between race and gender inequalities are a matter of constitutional history, and consequently they share some, but not all, of the history that has formed constitutional equality.

Despite similarity to racial classifications, not all aspects of the struggle for gender equality share the same approach to dismantling discrimination. In the case of gender politics, we see highly charged movement activities preceding constitutional development, rather than coming later as had been the case with the civil rights movement following the NAACP's litigation efforts. The legislative arena has provided "protective measures" for women, such as alimony, as well as restrictions on employment opportunities justified as "protecting" women's health. This is a different legacy from that of the movement against racial inequality. Consequently, there are a wider range of statutory interpretations, some of which are simply the old paternalism, while others pose unresolved public policy puzzles. As a result, we find that less litigation in the area of gender discrimination has focused on the Constitution. This is the case in part, some argue, because during much of the time the Supreme Court was handing down decisions on gender discrimination, the nation was considering a constitutional amendment (the Equal Rights Amendment, or ERA). For all of the democratic significance of debating the ERA, the experience of popular instruction regarding the meaning of the Constitution has not advanced gender equality all that much. While the proposed Amendment was being considered, the justices deferred to the political arena and, given the outcome, that judicial abstention is likely to be judged as one of the more important consequences of the ERA's demise.

Since there are socially recognized grounds for distinctions on the basis of gender, the constitutional classification issue is more concerned with determining which of these classifications are acceptable and which are not. It might be said, at least in constitutional law, that the prohibition against discrimination on the basis of gender is absolute only in the political area and only since the passage of the Nineteenth Amendment to the Constitution that granted women the right to vote in 1920. As far as social and material equality are concerned, legal tolerance for the differential treatment of men and women is more likely. Some allege this is so because the government has legislated fewer gross distinctions between men and women than those against blacks during slavery and under Jim Crow laws or against other racial or ethnic groups.

The two most enduring standards for reviewing gender distinctions in the law require the courts to: 1) apply a "heightened" amount of scrutiny; and 2) demand that legislators demonstrate that they have good reasons for their schemes. You will recall that the Supreme Court applies a "strict scrutiny" standard of review to race classifications. This more stringent standard, if applied to gender classifications, would require that legislators have more than good reasons for distinguishing between men and women-- they must have a "compelling state interest" that can be served or protected in no other way than by imposing a gender-based distinction. Heightened scrutiny, though not well defined in doctrinal discussions nor precise in measure, is usually interpreted to mean that a gender-based classification will not be upheld merely on the basis of serving a "legitimate state interest." Something more is required but how much more is not clear. Heightened scrutiny is, therefore, a mid-level standard of review to assure that a statute serves an "important government objective," somewhere between demonstrating a compelling and a good reason for treating people differently on the basis of gender identities.

Standards of Review and Forms of Discrimination
One of the earliest gender discrimination cases that came before the Supreme Court was in 1948. It involved a challenge to a Michigan law restricting barmaid licenses to wives and daughters of bar owners. This was during a period of deference to legislative judgments, especially in the area of business regulation. The standard used in this case (Goesaert v. Cleary, 1948) was that the legislation should bear a "rational relation" to a legitimate state objective. In this case, those objectives included preserving the family and the morality of women. On this justification, the law was upheld. A little over 20 years later, the constitutional order in the field of equal protection had been transformed. In 1971, the California Supreme Court would invalidate similar bartender restrictions (Sailor Inn v. Kirby) by employing the higher standard requiring the state to show a "compelling interest" and by bringing a different view of family and morality to the case. By 1971, some state courts no longer saw a state interest in preserving the morals of women by keeping them from mixing drinks.

Although the Warren Court has been known for its political liberalism, this inclination did not extend to gender discrimination. The one gender case the justices did consider, Hoyt v. Florida (1961), involved the constitutionality of a state law granting women an absolute exemption from jury duty because they were assumed to be obligated to be at home. The plaintiff, a woman convicted of murdering her husband with a baseball bat, argued that the all-male jury she had faced violated her constitutional right to a jury of her peers. The Court held that "Despite the enlightened emancipation of women from the restrictions and protections of bygone years...woman is still regarded as the center of home and family life." This politically liberal bench deferred to Florida's legislative judgment and allowed women a choice in what, for men, was considered a duty. The Court embraced the values of paternalism in this case by arguing that essentially woman's duty was to her husband and children, not to the polity. Clearly given the charges against Ms. Hoyt, she may have resisted this kind of "duty." By creating a presumption that women have other, perhaps more pressing duties, than to serve on juries the Court presented the distinction in the Florida law as a different kind of discrimination, less forced, than the sort of discrimination created by racial segregation. It was not until 1975 that the Burger Court overturned a similar statute (Taylor v. Louisiana, 1975), removing a gendered view of civic duty from laws regarding participation in juries.

Arbitrary Preferences. The first contemporary Supreme Court case in this area was Reed v. Reed, decided in 1971. Ms. Reed challenged an Idaho statute that gave preference to her former husband when they both applied for control over their son's belongings after he died. The Court did not employ strict scrutiny or even the heightened scrutiny level of review, but instead it used a more minimal standard of review. The Court held that Idaho's preference in favor of males was arbitrary and hence the statute violated the Equal Protection Clause. The Court argued that the gender distinction must bear a rational relationship to a legitimate state objective. Here, the state's objective was to lower the workload of the probate court. The justices ruled that statutory scheme which favored men was unacceptable because, essentially, it was not minimally rational-- there was no rational relationship between serving the state's interest in the efficient administration and favoring men over women to serve as executors of wills. The justices were becoming a bit more critical of the historic propensity for law to accept and to support indefensible gender stereotypes and biases. Over the next decade, nearly 60 percent of the 20 cases challenging legislation for violating equal protection rights would succeed.

The high point of the Burger Court's consideration of gender discrimination came in Frontiero v. Richardson. This 1973 case concerns the right of a female member of the Air Force to claim her spouse as a dependent for the purpose of obtaining increased quarters allowances on an equal footing with male Air Force personnel. According to Air Force policy, a serviceman could claim his wife as a dependent without regard to whether she was in fact dependent upon him. A service woman, on the other hand, could not claim her husband as a dependent unless she could show that he was dependent upon her for over half of his support. The decision, written by Justice William Brennan and agreed to by three other justices, held that the history of gender discrimination made classifications on this basis "suspect." Consequently, the Court required the Air Force to show a compelling interest behind the classification. The Court held that "...any statutory scheme which draws a sharp line between the sexes, solely for...administrative convenience...involves an arbitrary choice" and is thus unconstitutional. This was the strongest holding for the position that gender is a suspect classification like race. It came at a time when the women's movement was mobilizing a full scale litigation strategy against legal inequalities, and in the same year the Supreme Court, in Roe v. Wade (1973), overturned state laws making it a crime to have an abortion.

Heightened Scrutiny. Gender classifications were not viewed as "suspect" by the Court for long. Indeed a year after Frontiero, the justices returned to applying the level of rationality they had more often used to review gender classifications-- the middle range or heightened scrutiny standard. In a case involving California's disability insurance coverage, a challenge was presented to the exclusion of pregnancy and childbirth from coverage. The justices held that this policy did not discriminate against women. Aside from the fact that only women get pregnant, the all-male Supreme Court said, it does not follow that every legislative classification concerning pregnancy is a gender-based classification (Geduldig v. Aiello, 1974). The insurance policy, they argued, divided potential recipients into two groups, pregnant women and non-pregnant persons. The justices argued that while the first group is exclusively female, the second includes members of both sexes. The decision suggested that this type of classification was therefore not "invidious," that is, it was not meant to harm or be unfair since there was no risk from which men were protected and women were not. This sort of tortured, if absurd, logic following a year of surprising victories for the women's movement, was met with a great deal of criticism. Using the same standard for review, the justices did overturn an Oklahoma statute prohibiting the sale of beer with an alcohol content of 3.2 percent to males under the age of 21 and to females under age 18 (Craig v. Boren, 1976). The holding that the statute denied equal protection to men was based on the opinion that it did not "serve important government objectives and was not substantially related to their achievement." This would become the predominant mode of analysis for detecting gender discrimination in the law. Attention to what the justices support as "important government objectives," is the key to understanding how law is gendered, while at the same time the meaning of constitutional equality is formed. In the insurance case, the justices deferred to the financial burden on the state to uphold a gender distinction, while the Oklahoma claim about protection of the public health was rejected to deny a sex-based classification.

The heightened scrutiny standard has proven effective in quite a few cases since the mid-1970s, although it is not as strict as the suspect classification standards applied to race classifications. In June of 1977 in Dothard v. Rawlinson, the Court ruled that height and weight requirements for prison guards discriminated against women because employers had failed to demonstrate that the tests had a real relationship with ability to handle the job. The case involved an Alabama law requiring state guards to be at least five feet two inches tall and to weigh at least 120 pounds. The requirements excluded 41 percent of the female population of the country from such jobs as opposed to less than 1 percent of the male population. The Court majority held this to be a significantly discriminatory pattern "on its face". The state officials, the justices held, had failed to offer any evidence to justify the statutory standards. The justices did, however, believe that women could be excluded from jobs in male prisons per se due to a demonstrable threat to the security of the institution, but that argument was not behind the statute. In Personnel Administrator of Massachusetts v. Feeney (1979), the Court set aside a lower court ruling that had invalidated a veteran’s preference provision in the state civil service law. Women competing for advancement in the state bureaucracy had contended that the Massachusetts statute discriminated against them because few had been able to serve in the armed forces in the past. The justices reminded the lower court that a state law with disproportionate impact was not necessarily unconstitutional for that fact alone. Throughout nearly this whole period, the Court had a running battle with Utah over its having set a different age to establish responsible adulthood for men and women (Stanton v. Stanton, 1974). Utah authorities argued that the "biological facts of life" allowed that women reached maturity before men, but this was not enough to satisfy the Supreme Court's test for rationality.

Benign Classifications. So-called benign gender classifications, in which those who have been traditionally discriminated against stand to gain from the classification, have had more success in withstanding review by the Supreme Court. In Kahn v. Shevin (1974), a widower was unsuccessful in his attack on a Florida law granting only widows a $500 property tax exemption. The justices believed that "...the differing treatment rests on some ground having a fair and substantial relation to the object of the legislation." It was distinguished from Sharron Frontiero's claim (Frontiero v. Richardson, 1973) because of the benign nature of the classification given support by a traditional deference to tax classifications. Justice Douglas wrote for the majority in this case against a dissent by Justices Brennan and Marshall who called for closer judicial scrutiny. Although a benign classification was accepted in Kahn, in subsequent cases the Court would allow this justification only if it were clearly supported by the legislative record (Gunther, 1980). Nonetheless, three-quarters of the constitutional distinctions between men and women during this period are in statutes that "preferred" women over men. In one of the many cases challenging Social Security regulations, women were allowed slightly higher retirement benefits (Califano v. Webster, 1977). The Court approved this classification because it did not penalize women and justified it on the basis of compensation for women who had been discriminated against in the past. Even when men prevail, as in Weinberger v. Wiesenfeld (1975), in which a widower challenged the fact that only widows were granted survivor's benefits, his victory was phrased by the Court as the right of the deceased woman to have her children provided for. Similarly in Califano v. Goldfarb (1977), a widower claimed discrimination based on a standard of identical treatment because he had to prove a dependency on his wife for public benefits-but those benefits could be said to have been earned by his wife posthumously, making her the winner as a result of the litigation.

There are a number of cases, like Bakke, in which those who have traditionally been advantaged by social and legal distinctions, challenge gender classifications as a violation of their equal protection rights. Some of the more significant cases were decided in the 1980s: Rostker v. Goldberg (1981), dealing with registration for the draft, Michael M. v. Superior Court of Sonoma County (1981), challenging statutory rape, and Mississippi University for Women v. Joe Hogan (1982), objecting to all-female nursing programs. All of these cases involved men arguing that they were discriminated against because they were not being treated the same as women. In Rostker, this claim was given a boost when registration for the draft was reinstituted. A district judge in Washington, D.C., declared the all-male registration to be unconstitutional. That summer, Justice Brennan, acting for the Supreme Court while it was in recess, allowed the registration to go on, pending a ruling by the whole Court. The following year, in an opinion by Justice Rehnquist, the Court allowed the statute to stand. Their basis can only be described as an unusually minimal rationality that relied on the undocumented claim that the military would have administrative difficulties dealing with women, who were not allowed to engage in combat . In Michael M., a California statutory rape law was challenged over its inequitable impact. It defined unlawful sexual intercourse as "...an act of sexual intercourse accomplished with a female not the wife of the perpetrator where the female is under the age of 18 years." The male petitioner was only 17 1/2, just a year older than his partner. Although Rehnquist purported to use a scale of "minimum rationality with a sharper focus," his willingness to accept the state's argument that it was trying to cut down on teenage pregnancy again revealed a tolerance for allowing gender-based distinctions to stand based on unsubstantiated claims. In his dissent, however, Justice Stevens wondered whether a law would affect the amount of teenage pregnancy and expressed concern about only holding half the participants culpable. For Stevens, the only acceptable justification for disparate treatment of two participants in an act must be a judgment that one is guiltier than the other. Gender, he felt, is an unwise substitute for a factual determination.

In the nursing school case (Hogan, 1982), Justice Sandra Day O'Connor's wrote her first majority opinion striking down a single-sex admissions policy. A man wished to enter a women's nursing program and upon denial of admission, he sued. Justice O'Connor applied the traditional nondiscrimination standard of review even though the state had other nursing programs admitting male students. She dismissed the argument that a single-sex admissions policy could legitimately compensate for past discrimination. Her opinion expresses concern about perpetuating a stereotypical view of nursing. This led to a standard of review which called for "exceedingly persuasive justification," unmitigated by the fact that the discrimination was against a man. The result was that the nursing school must admit men. In turn, the Hogan precedent was cited in two more recent cases that mandated the admission of women into formerly all-male military colleges in the South-the Citadel (Faulkner v. Jones, 1993) and the Virginia Military Institute (U.S. v. Virginia, 1996).

The similarity between the above cases and Bakke is that in both the Court favors a pure concept of equality, one that ignores how men and women are treated in society and instead seeks to treat them as equal in the eyes of the law. Like "colorblindness," "gender-neutral" jurisprudence formed outside the context of social relations with historical experiences may reproduce inequalities. However, gender is not a classification that society is going to dispose of readily. Not only does it have obvious romantic and procreative dimensions, but it is highly correlated with a number of social phenomena. Women often pay more for retirement systems but less for car insurance. Past treatment of these issues has been largely in the statutory context as Ruth Bader Ginsburg outlines in her essay on "Women as Full Members of the Club," written sixteen years before she was appointed to the Supreme Court by President Clinton. Thus remedies to gender discrimination, like those we discussed for race discrimination, tend to be decided on statutory grounds more so than constitutional standards. But recently, the Court found that the truth of a generalization does not justify different treatment of individuals based on sex. In Manhart v. City of Los Angeles Department of Water and Power (1978), a city pension plan required female employees to make larger contributions than male workers because the women lived longer. The basis for review was Title VII of the 1964 Civil Rights Act, but the rhetoric in the opinion was more sweeping. It described such practices as based on "...traditional assumptions about groups rather than thoughtful scrutiny of individuals." Because of the constitutional standard, with its abhorrence of distinctions, there is increasing pressure to stop such practices. In the case of Arizona v. Norris (1983), the justices split 5-4 against retirement plans that distinguish between men and women. The insurance industry has been fighting back against the challenges to how they have estimated risk, but suspicion of gender classifications has become part of the constitutional tradition.

Gender Discrimination and Statutory Provisions

As we have noted throughout this book, statutory provisions, such as Title VII of the 1964 Civil Rights Act, have a constitutional basis of authority in that the enabling clause of the Fourteenth Amendment delegates to Congress the power to enforce provisions of the Amendment. Thus, it is important to recognize that Congress plays a significant role in shaping the meaning of equality in our society when it passes civil rights legislation. Congress also works to enforce the equal protection provision of the Constitution when it creates administrative agencies, such as the Equal Employment Opportunity Commission (EEOC). The story of how sexual harassment in the workplace became a form of gender discrimination, legally actionable under Title VII, is one illustration of how institutions other than the courts-- legislatures and administrative agencies-- are key actors is the struggle against gender discrimination.

Professor Catharine MacKinnon (1979), a political scientist and lawyer, was among those who first formulated the claim that sexual harassment was a form of employment discrimination. The federal district courts rejected this argument when the first group of cases was brought in the mid-1970s. On appeal, the U.S. Courts of Appeals overturned the lower courts and recognized that sexual harassment at work was an employment related condition imposed on women solely because of their gender. In 1980, the EEOC issued Guidelines specifying that sexual harassment is a form of sex discrimination prohibited by Title VII. Title VII makes it "an unlawful employment practice for an employer... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals' race, color, religion, sex, or national origin." The EEOC Guidelines identify two types of sexual harassment (quid pro quo and abusive work environment) common in the workplace and specify the nature of individual and employer liability. The first case challenging these Guidelines came before the Supreme Court in 1986, Meritor Savings Bank v. Vinson. MacKinnon, along with Patricia Barry, was successful in convincing a unanimous Court that sexual harassment produces a hostile work environment and thus it is a form of employment discrimination prohibited by Title VII. In 1993 (Harris v. Forklift Systems), again a unanimous Court found that when a workplace is permeated with "discriminatory intimidation, ridicule and insult" that is "sufficiently sever or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Title VII is violated. Thus while the conception of harassment is statutory, it has had an impressive impact on the law of gender discrimination and more broadly on popular awareness of employment inequalities women confront. [MACKINNON INSERT NEAR HERE]

A second illustration of the impact of statutory provisions on gender discrimination comes in an important case arising from a complaint initially filled with a state administrative agency-- the California Department of Fair Employment and Housing. Lillian Garland was employed as a receptionist at the California Federal Saving & Loan Association when she took a pregnancy disability leave in 1982 (California Savings and Loan Association v. Guerra, 1987). After her child was born, she returned to work only to find that her job had been filled and there was no similar position available. She then brought an administrative complaint against the bank alleging that it had violated a state statute requiring employers to provide female employees an unpaid pregnancy disability leave of up to four months and upon returning from leave employers could not deny a woman her previous job unless it was no longer available due to business necessity. The Supreme Court was later asked to determine whether the California statute was inconsistent with and pre-empted by Title VII as amended by the Pregnancy Discrimination Act of 1978. This act defines discrimination on the basis of pregnancy as prohibited sex discrimination and provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of fringe benefits, as other persons with similar ability or inability to work." There is no provision in the federal legislation requiring that a woman returning from pregnancy leave will get her job back.

The case opened up a major debate within the women's movement over whether gender equality requires "gender neutral" laws, or whether equality should take into account "differences" between men and women (such as the ability to get pregnant). Lawyers for the National Organization for Women (NOW) and the American Civil Liberties Union (ACLU) split internally over this issue. Some NOW and ACLU lawyers wrote briefs opposing the California statute on the grounds that it created special treatment for women. Other feminists argued that recognizing differences between men and women need not discriminate against women, but in fact the failure to acknowledge the unique circumstances of pregnancy for women can produce an uneven playing field. The Court echoed the debates outside, but a six member majority opinion, written by Justice Marshall, favored the view that the California statute did not compel employers to treat pregnant employees better than other disabled employees; it merely established benefits that employers must, at a minimum, provide to pregnant workers. Justice White, joined in his dissenting opinion by Chief Justice Rehnquist and Justice Powell, argued for the gender neutral conception of equality by calling the California statute "preferential treatment of pregnant workers," which in his view is prohibited by Title VII.

Preferential treatment, like affirmative action, is a phrase that has become highly politicized over the past decade. There has been a political "backlash" to the women's movement which parallels the turn away from remedying the vestiges of de jure racial discrimination. Yet, in the area of gender discrimination, there is a slightly different history which ends up posing perhaps more complex issues regarding "preferential treatment" for women than those we have discussed in the section above on remedies to racial inequalities. For example, some types of protective legislation, such as the pregnancy leave provisions in the California cases, may prevent discrimination against women, while other types, such as those challenged in Automobile Workers v. Johnson Controls (1991), serve to eliminate women from certain jobs because they have the potential of getting pregnant while men, who are also involved in reproduction, are not similarly "protected." Justice Blackmun, writing for a unanimous court in the Johnson Controls case, argued that the company's policy of excluding women who are capable of bearing children from jobs involving lead exposure is not a gender neutral policy because it "does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females." Donald Penney, a male employee who had been denied a request for a leave of absence for the purpose of lowering his lead level because he intended to become a father, joined with female employees in this class action litigation. There are several questions you might think about as you discuss the policy implications of gender classifications for constitutional equality: 1) What kind of protective policies do women benefit from such that their chances of being discriminated against are reduced? 2) How do we distinguished between discriminatory stereotypes that disproportionately have a negative impact of women's employment opportunities and those that don't?

CLASS AND CONSTITUTIONAL EQUALITY

An area of fundamental importance, which the law has treated marginally, is class. As a capitalist society, it is easy to see that America would not function the way it does without distinctions based on wealth. In spite of the prevalence of class distinctions, constitutional decisions on the matter have been relatively rare. Perhaps since material equality dropped out of the constitutional conception of equal protection, we find the law to be a weak area for challenging wealth discrimination. Yet, wealth as a classification has been considered by the Court on a few occasions. The justices have been most sensitive to people who are deprived of basic criminal due process rights because they do not have enough money. The Constitution does not allow a person to be absolutely deprived of a fundamental due process right because they are poor. For instance, the fact that people were deprived of the right to vote on the basis of wealth led to the abolition of the poll tax, first by the Twenty-fourth Amendment to the Constitution at the national level, and then in Harper v. Virginia State Board (1966) in the states.

Legal Process

It has only been since the 1960s that governments throughout the United States began to provide poor people with lawyers. The obvious reason for the provision was the belief that people were being deprived of a fundamental interest in a fair trial simple because they could not afford a lawyer. Since the 1930s, the Court did require that poor people or "indigents" as the law often says, have legal counsel appointed if they could not afford it in capital punishment cases. But it was not until the 1960s that the government provided a lawyer to people in instances where the possible punishment was less severe. This was the situation that for Anthony Lewis (1964) characterized the best of the Court's work during the 1960s.

Another aspect of the criminal process, the appeal, is both more costly and more discretionary than the trial. Consequently, the courts have not been so clear about what sort of appellate rights are to be available for those without the ability to pay. At the very least, appellants have the right to be provided with a transcript from their trial (Griffin v. Illinois, 1956), and after that, what is available depends in part on how compelling their claim is viewed.

Punishment of poor people has always been problematic when the issues of social justice and equality are raised. Indigents are more likely to find themselves in court. And once there, they face a process conditioned by ability to pay. This is true most obviously with fines, but it is also a function of punishment more generally. Penalties are related to the amount of loss, whether in terms of stature or actual material wealth, although the Constitution does set limits. For example, Danny Bearden took the state of Georgia to the Supreme Court in 1983 when they sent him to prison after he had failed to pay a fine. Justice O'Connor's opinion made it clear that a defendant cannot be sent to jail for lack of funds. She wrote that when the trial court automatically revoked Bearden's probation, it did not exercise adequate care and violated Bearden's constitutional rights (Bearden v. Georgia, 1983).

In the area of civil procedure, there have been fewer instances where the Court has been willing to identify a fundamental interest in jeopardy because of ability to pay. In one case, the state of Connecticut up until 1971 required a fairly substantial fee to file for divorce. People without adequate funds contested this infringement on the right to end a marriage (Boddie v. Connecticut, 1971), and the state had to abolish the practice. Moreover, the burden on the poor of a Wisconsin remarriage statute was considered in Zablocki v. Redhail (1978), and the statute was held to be unconstitutional.

Education. One of the most important cases in the area of wealth discrimination, San Antonio School District v. Rodriguez (1973), involves access to education. The issue here is whether children are deprived because public schools rely on the property tax for their funding, which is a reflection of the wealth of a community. Most public education in this country, through high school, is supported this way, at least in part. Although the state of Texas claims it tries to "equalize" the disparities between districts by spreading part of its support according to need, wealthy communities still provide a better education to their children than do poor communities. The claimants in San Antonio, Texas, argued that the barrio they lived in was unable to provide the same level of education as the wealthier Anglo suburbs. Perhaps the most extraordinary thing about this dispute was the fact that after such a long tradition of ignoring wealth disparity in our society, the Supreme Court took the case, indicating a willingness to at least consider the possibility that people are deprived of education because they are poor. While the majority of the Court decided that nobody was being absolutely deprived of an education due to the property tax base for funding schools, the Court did recognize some effect of this policy on the quality of education available to the Chicano claimants. This is consistent with the view that a deprivation must be substantial, as with the inability to conduct a legal defense or bring an appeal without a lawyer, in order for it to be unconstitutional. In Rodriguez, the Court took particular note of the state's efforts to equalize the differential in the quality of education between rich and poor communities. Because the classification based on wealth had been mitigated somewhat by the state, it was considered acceptable.

Over a decade after Rodriguez, there is still little attention by the Supreme Court to wealth discrimination affecting schooling, but most of the cases are fought out in the lower courts. This was the situation in January 1983, when, without comment, the Supreme Court refused to hear a constitutional challenge to New York's system for financing public education. This was true even though lower courts in New York had agreed with the plaintiffs that reliance on the local property tax to finance schools was unconstitutional on the ground that resulting inequities in the abilities of rich and poor districts to pay for education violated the equal protection guarantees of the state and the federal constitutions. The Supreme Court, however, let stand the decision of the New York Court of Appeals, the state's highest court, which had found the prevailing school finance system to be constitutional (Board of Education v. Nyquist, 1983).

An area very close to education and bearing heavily on it is that of housing and residence. As in education, the economic makeup of a community is an important determinant of the level of deprivation. As one moves from the fundamental and relatively precise state-provided guarantees of education to the realm of housing and residency, however, the sensitivity of the Constitution to discrimination on the basis of wealth weakens still further. This was evident in James v. Valtierra (1971), where the Court let stand a provision in the California State Constitution which mandated a referendum to approve the building of law-income housing.
Health. The abortion controversy has raised some compelling challenges to discrimination or deprivation of fundamental interests because of financial status. In our discussion of constitutional privacy we show that the Supreme Court's decision in the abortion cases did more to stimulate controversy than to settle the issues (infra, ). In the 10 years that followed Roe v. Wade (1973), over 100 cases were appealed to the Supreme Court. Almost all involved limitations on the breadth of the decision. In Maher v. Roe (1977), the Court held that a state's decision not to pay for abortions for women on welfare, even though it paid for childbirth, did not violate the Constitution. In Maher, the district court ruled that the presence of a fundamental right to an abortion required strict scrutiny of the distinction between abortion and childbirth and, by implication, a similar level of scrutiny over the distinction between those able to pay and those not able to pay. This scrutiny led them to invalidate the legislation. But Justice Powell, writing for the Supreme Court, held that the lower court had "misconceived the nature and scope of the fundamental right recognized in Roe ...[in that] the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy." Holding that past decisions do not indicate "that financial need alone identifies a suspect class for purposes of equal protection analysis," the Court found that "the state has imposed no restriction on access to abortions that was not already there." This insensitivity to the plight of impoverished pregnant women, pointed out by the dissenters, is striking because it reveals the limitations of constitutional equal protection, given the formal logic of fundamental interests. The decision is then extended in Harris v. McRae (1980), a major abortion decision, where the justices held that the liberty in Roe includes the freedom of a woman to decide whether to terminate a pregnancy but not a public obligation to make that choice a reality.

Much of the rest of the litigation on wealth involves such things as utility overcharges (Memphis Light, Gas and Water Division v. Craft, 1978) and repossession of furniture (Flagg Brothers, Inc. v. Brooks, 1978). In some instances, the wealth discrimination area shows how civil rights reflect wider social biases and conflicts, as in the case of abortion. In other instances, the Constitution in this area seems simply to be serving as an occasional check in the most desperate of situations. In any case, the translation into constitutional discourse means the issue will be looked at in terms of the logic of equal protection which has not done much for redressing class discrimination.

THE SOCIAL IMPACT OF EQUAL PROTECTION JURISPRUDENCE

The pervasive idea emerging from equal protection is a "pure" response directed at an offending classification, whether it is race, sex, or other invidious distinctions. This is a form of "blindness" to the history of an offense. The view of equal protection in the Constitution as simply a protection from classifications is a legacy of Plessy v. Ferguson (1896), where a classification was allowed to stand because the justices refused to take account of the actual social harm it did. Finally, in Brown v. Board of Education (1954), when that harm is confronted, there is a dramatic reversal. As in Plessy, the decision in Brown dealt with separation, and it became the foundation for an integrationist interpretation of the Constitution. A major limitation, of this otherwise progressive shift to a social definition of equality, as the loss of a constitutionally-based promise or right to material equality. Some might also argue that another casualty of Brown is the subsequent propensity of the Court to deal with discrimination through pure concepts, without regard to the historical situation that produced the constitutional standard in the first place. We are not convinced that the aftermath of Brown had to, in some essential way, be a jurisprudence based on formal ideals of equality. Rather it is apparent that the political and ideological character of the Court had a significant hand in writing this jurisprudence.

The social impact of this jurisprudence is profound. In the case of race, pure equality has threatened affirmative action programs and undercut efforts to provide materially equal education to all citizens, whether they live in the inner city or in the country. In the case of gender, some of those same threats in the name of equal protection have begun to eliminate historical bastions of diversity, such as public degree programs for women. Ironically, this reading of the Constitution has failed to become part of the document. A form of pure equality is the foundation for the conceptual frame of the Equal Rights Amendment (ERA), the most significant part of which reads:

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

The tradition of "pure equality," with its emphasis on universal and general principles, backfired against proponents of the ERA and threatened the interests for which feminists have traditionally fought.

In the case of the ERA, the failure is not just due to the level of political resistance. When the defeat came in June of 1982, the post-mortems were intense, but because of the focus on the political arena alone, the analysis was not very searching. Although the organizers of the ratification campaign prepared for the level of resistance we witnessed, there is even more to be learned from the fact that the resistance was grounded in the propensity of the organizers to uncritically accept a gender-neutral concept of constitutional equality. Fears that were politically compelling enough for some state legislators to vote to rescind passage of the ERA and others to out right oppose it, included the fear of unisex bathrooms, homophobic opposition to gay and lesbian marriages, and paternalistic opposition to military women in combat. Had the amendment simply protected women from discrimination, the issues would not have arisen. But, the ERA was worded to protect everyone. Oddly, the fear of male domination was more characteristic of opponents of the amendment than of its supporters. The opponents argued that men would use the provision to eliminate some of the advantages women traditionally had in alimony payments, custody battles, and military service. Thus, constitutional equality seems to have had implications for struggles over discrimination against women that have not been widely recognized.

SUGGESTED READINGS:

Derrick Bell, And We Are Not Saved.

W.E.B. DuBois, Souls of Black Folk

Hochschild, Jennifer L. What’s Fair? American Beliefs About Distributive Justice (Cambridge: Harvard University Press, 1981).

David M. Oshinsky (1996) “Worse Than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice. Boston: The Free Press.

C. Vann Woodward The Strange Career of Jim Crow.