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<ul><li> 1. American Academy of Political and Social Science Legal Foundations of Civil Rights and Pluralism in America Author(s): Charles M. Lamb Source: Annals of the American Academy of Political and Social Science, Vol. 454, America as a Multicultural Society (Mar., 1981), pp. 13-25 Published by: Sage Publications, Inc. in association with the American Academy of Political and Social Science Stable URL: Accessed: 12/11/2010 10:03 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact Sage Publications, Inc. and American Academy of Political and Social Science are collaborating with JSTOR to digitize, preserve and extend access to Annals of the American Academy of Political and Social Science. </li> <li> 2. ANNALS, AAPSS, 454, March 1981 Legal Foundations of Civil Rights and Pluralism in America By CHARLESM. LAMB ABSTRACT: Central to the dynamics of American pluralism are legal protections provided for minorities. To a large degree these rights revolve around the concept of equal protection of the laws. Whether reflected in the Fourteenth Amendment or statutes, the principal question is, Under what conditions is it just or reasonable to afford different treatment to persons because of their race? Here this question is addressed in the context of the transformation of the concept of equal protec- tion since Plessy v. Ferguson (1896). Certainly the legal meta- morphosis from the "separate but equal" doctrine to the cur- rent status of minority rights is truly profound. Particularly important in recent years is the issue of affirmative action. After a brief survey of the legal transition from Plessy into the 1970s and of the various levels of scrutiny that the United States Supreme Court has given to equal protection prob- lems, the progression of the equal protection principle is traced herein with emphasis placed on the three most recent affirmative action decisions announced by the Court: Univer- sity of California Regents v. Bakke (1978), United Steel- workers of America v. Weber (1979), and Fullilove v. Klutz- nick (1980). Charles M. Lamb is an assistant professor of political science, State University of New Yorkat Buffalo. The author of several articles on civil rights andjudicial philosophy, he formerly served on the staffs of the United States Commission on Civil Rights and George Washington University. 13 </li> <li> 3. THE ANNALS OF THE AMERICAN ACADEMY ALTHOUGH progress has often been too slow, the political, economic, and social status of most American minorities has improved dramatically since the turn of the twentieth century. The same gener- alization applies to the legal rights of minorities. The legislative and executive branches of the federal government have played a substan- tial role in this legal transforma- tion. For example, Congress must be applauded for passing the Civil Rights acts of 19601 and 1964,2 the Voting Rights Act of 1965,3 and the Fair Housing Act of 1968.4 Similarly, President Kennedy must be com- mended for issuing Executive Order 11063,5 the first major federal re- quirement for equal opportunity in housing, and President Johnson must be given credit for his Executive Order 11246,6 which prohibits em- ployment discrimination by govern- ment contractors. Yet the United States Supreme Court has been at the cutting edge of much civil rights progress, particularly prior to the 1960s. It is therefore appropriate for this article to stress the role of the Court in ensuring equal pro- tection through both its constitu- tional and statutory constructions of the law. THE EVOLUTION OF EQUAL PROTECTION SINCE PLESSY: AN OVERVIEW Any account of legal develop- ments under the concept of equal 1. Public Law (P.L.) No. 86-449, 74 Stat. 86. 2. P.L. No. 88-352, 78 Stat.241. 3. P.L. No. 89-110, 79 Stat.437. 4. P.L. No. 90-284, 82 Stat.81. 5. 3 Code of Federal Regulations 652 (1959-1963 Compilation). 6. 3 Code of Federal Regulations 339 (1964-1965 Compilation). protection must begin at least as far back as the 1896 decision in Plessy v. Ferguson.7 There the Court held that a Louisiana statute requiring "separate but equal" railroad ac- commodations for Blacks and Whites was not a violation of either the Thir- teenth or Fourteenth amendments of the Constitution. Justice Brown, speaking for the Court, stressed that the Thirteenth Amendment ap- plied strictly to slavery and that separate but equal accommodations did not "constitute badges of slavery or servitude," as was contended by the first Justice Harlan's stirring and historic dissent. Moreover, according to the ma- jority, the Fourteenth Amendment required only political-not social -equality. Thus states had the right under their police power to separate Blacks and Whites if the traditions and customs of the states suggested that such a law was not unreason- able. Justice Harlan, on the other hand, took the famous position that "in view of the constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. . . . Our constitution is col- or-blind." State laws that separate races, he explained, would naturally contribute to interracial distrust and would force Blacks into a position of inferiority. Of course, under the "separate but equal" principle, it was rare that separation was ever accompanied by actual equality. But some three dec- ades after Plessy a more liberal Supreme Court gradually began to underscore the fact that the equality component was indeed required by the Equal Protection Clause of the Fourteenth Amendment. In Missouri ex rel. Gaines v. Canada,8 the Court 7. 163 U.S. 537 (1896). 8. 305 U.S. 337 (1938). 14 </li> <li> 4. LEGAL FOUNDATIONS invalidated a Missouri statute that prohibited Blacks from attending the University of Missouri Law School, even though the statute provided tuition payments for Blacks to study law in neighboring states where segregation was not enforced. Equal facilities for Blacks' legal education was required by the Court; Missouri could not abdicate its responsibility for providing equal educational op- portunity through another state. Like- wise, a decade later in Sipuel v. Board of Regents of the University of Oklahoma,9 a black woman was held to have been denied equal pro- tection when refused admission to the Law School of the University of Oklahoma. Two 1950 decisions further under- scored the "equal" component of Plessy, thereby delivering noteworthy blows to its continued existence. McLaurin v. Oklahoma State Re- gents'? ruled that black graduate stu- dents could not be subjected to var- ious segregative practices in class- rooms, libraries, and cafeterias. And Sweatt v. Painter"1 announced that it was difficult, if not impossible, for a state to meet the "separate but equal" requirement where there were disparities in vital intangible factors, such as the reputation and prestige of white as opposed to black law schools. The stage was thus set for a final assault on Plessy via Brown v. Board of Education.12 In a short, unani- mous opinion, the Brown Court overruled the "separate but equal" standard as it was applied in public schools, although physical facilities and other tangible factors might in fact be equal. Basing its decision on 9. 332 U.S. 631 (1948). 10. 339 U.S. 637 (1950). 11. 339 U.S. 629 (1950). 12. 247 U.S. 483 (1954). both constitutional principles and social science findings, the Warren Court noted that "to separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone." Since feelings of inferiority retard a child's drive to learn, and since education is vital for success in later life, the Court announced that "in the field of pub- lic education the doctrine of 'sepa- rate but equal' has no place. Sepa- rate educational facilities are in- herently unequal." By so ruling, the Court reversed Plessy as it related to public edu- cation, vindicated Justice Harlan's "color-blind" dissent, and implicitly suggested that "separate but equal" would not meet constitutional stand- ards in other areas of segregation as well. The most apparent reasons for this change in legal policy were the directions taken by the cases leading up to the Brown decision, the fact that the Court's members were gen- erally more liberal than they had been in prior decades, and perhaps most crucially, the brilliant leader- ship of Chief Justice Warren, which ably and assertively forged una- nimity in Brown. Nevertheless, from the initiation of the Brown litigation, all the justices of the Warren Court-whether lib- eral or conservative-were fully cognizant of the problems that would be inevitably associated with imple- menting school desegregation. The Court therefore directed the plain- tiffs to come before it again during the 1955 term to argue how imple- mentation should take place. Then, in Brown II,13 the justices relied 13. 349 U.S. 294 (1955). 15 </li> <li> 5. THE ANNALS OF THE AMERICAN ACADEMY on ad hoc gradual relief by calling for "good faith compliance atthe earli- est practicable date" and for school desegregation to proceed "with all deliberate speed."'4 Since the midfifties, the Supreme Court has largely continued to en- sure that the guarantee of equal pro- tection be afforded to this nation's minorities. Especially crucial was the period from 1967 through 1973. For example, in Loving v. Virginia,15 the Court outlawed a state criminal statute proscribing marriage between persons of different races. In Jones v. Alfred H. Mayer Company,16 the Court prohibited racial discrimina- tion in the rental and sale of virtually all private and public property. In Green v. County School Board,'7 the Court ruled that "freedom of choice" plans were inadequate for comply- ing with Brown. In Alexander v. Holmtes County Board of Educa- tion,18 the Court held that every school district in the country had to take immediate steps to eliminate sep- arate schools for Blacks and Whites. In Swann v. Clharlotte-Mecklenberg Board of Education,19 the Court announced that busing was one legitimate tool that could be used to desegregate schools. And in Keyes v. School District No. 1, Denver, Colo- rado,20the Court extended its school desegregation principles to northern states by declaring that segregation not required by law but resulting from the placement of schools and 14. For the implementation problems en- countered in the field of education, see the sources cited in Stephen L. Wasby, The Im- pact of the United States Supreme Court (Homewood, II: Dorsev, 1970), pp. 288-89. 15. 388 U.S. 1 (1967). 16. 392 U.S. 409 (1968). 17. 391 U.S. 430 (1968). 18. 396 U.S. 19 (1969). 19. 402 U.S. 1 (1971). 20. 413 U.S. 189 (1973). the manipulation of school zones was nevertheless dejure discrimina- tion and therefore unconstitutional. Although this list could be con- tinued to the present, including the three affirmative action cases re- ceiving detailed attention in the fol- lowing pages, it is also important to note that in recent years the Court has not been as consistently sym- pathetic toward some of the claims of minorities as it was from Brown through Keyes.21 Nor has it been unanimous as regularly in its civil rights decisions since 1973 as it was in the preceding years. THREE-TIERED SCRUTINY In cases such as those discussed in the preceding paragraphs, the Court has essentially adopted three different approaches over time for determining whether a law comports with the requirements of equal pro- tection. Traditionally, governmental regulatory classification had only to meet the low-level "minimum ra- tionality" or "rational basis" test. As the Court stated in F.S. Royster Guano Company v. Virginia: "The classification must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the ob- ject of the legislation, so that all persons similarly circumstanced shall be treated alike."22 In order to pass constitutional muster, then, a state classification need only reasonably relate to legis- lative purpose. There is not much 21. See, for example, Village of Arlington Heights v. Metropolitan Housing Develop- 17mentCorporation, 429 U.S. 252 (1977); City of Eastlake v. Forest City Enterprises, In- corporated, 426 U.S. 668 (1976); Washington v. Davis, 426 U.S. 229 (1976); and Milliken v. Bradley, 418 U.S. 717 (1974). 22. 253 U.S. 412 (1920). 16 </li> <li> 6. LEGALFOUNDATIONS emphasis on evaluating the legiti- macy of the purposes, either. The focus is on the means, and that focus is rather cursory. The fit be- tween the means and the ends need not be a very tight one. In Railway Express Agency v. New York, Justice Jackson summarized the minimum rationality test by writing that the command of equal protection was only that government must not im- pose differences in treatment "ex- cept upon some reasonable differen- tiation fairly related to the object of regulation."23 Such a loose test, used primarily in matters of economic regulation, is tantamount to sustain- ing the classification. A much higher level of scrutiny has been applied to certain types of classifications, however. This "strict scrutiny" test has its genesis in Justice Stone's famous footnote 4 in United States v. Carolene Products Company.24 Stone wrote that "preju- dice against discrete and insular minorities may...</li></ul>