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BookstudyVol.II- VII Equal Protection
Swann v. Charlotte-Mecklenburg (1971)
http://www.oyez.org/cases/1970-1979/1970/1970_281
Washington v. Davis (1976)
http://www.oyez.org/cases/1970-1979/1975/1975_74_1492
United States v. Fordice (1992)
http://www.oyez.org/cases/1990-1999/1991/1991_90_1205
Hoyt v. Florida (1961)
http://www.oyez.org/cases/1960-1969/1961/1961_31
Reed v. Reed (1971)
http://www.oyez.org/cases/1970-1979/1971/1971_70_4
Frontiero v. Richardson (1973)
http://www.oyez.org/cases/1970-1979/1972/1972_71_1694
Craig v. Boren (1976)
http://www.oyez.org/cases/1970-1979/1976/1976_75_628
Rostker v. Goldberg (1981)
http://www.oyez.org/cases/1980-1989/1980/1980_80_251
Michael M. v. Superior Court of Sonoma County (1981)
http://www.oyez.org/cases/1980-1989/1980/1980_79_1344
Mississippi University for Women et al. v. Hogan (1982)
http://www.oyez.org/cases/1980-1989/1981/1981_81_406
United States v. Virginia (1996)
http://www.oyez.org/cases/1990-1999/1995/1995_94_1941
Regents of the University of California v. Bakke (1978)
https://www.oyez.org/cases/1979/76-811
City of Richmond v. J.A. Croson (1989)
http://www.oyez.org/cases/1980-1989/1988/1988_87_998
Metro Broadcasting, Inc. v. Federal Communications Commission (1990)
http://www.oyez.org/cases/1980-1989/1989/1989_89_453
Adarand Constructors v. Pena (1995)
http://www.oyez.org/cases/1990-1999/1994/1994_93_1841
Grutter v. Bollinger (2003)
http://www.oyez.org/cases/2000-2009/2002/2002_02_241
Parents Involved in Community Schools v. Seattle School District No. 1 et al. (2007)
http://www.oyez.org/cases/2000-2009/2006/2006_05_908
Ambach v. Norwick (1979)
http://www.oyez.org/cases/1970-1979/1978/1978_76_808
Plyler v. Doe (1982)
http://www.oyez.org/cases/1980-1989/1981/1981_80_1538
City of Cleburne v. Cleburne Living Center (1985)
http://www.oyez.org/cases/1980-1989/1984/1984_84_468
Bowers v. Hardwick (1986)
http://www.oyez.org/cases/1980-1989/1985/1985_85_140
Romer v. Evans (1996)
http://www.oyez.org/cases/1990-1999/1995/1995_94_1039
Lawrence v. Texas (2003)
http://www.oyez.org/cases/2000-2009/2002/2002_02_102
San Antonio Independent School v. Rodriguez (1973)
http://www.oyez.org/cases/1970-1979/1972/1972_71_1332
Swann v. Charlotte-Mecklenburg (1971)
Facts of the case
After the Supreme Court's decision in 1954 in Brown v. Board of Education, little progress had been made in desegregating public schools. One example was the Charlotte-Mecklenburg, North Carolina, system in which approximately 14,000 black students attended schools that were either totally black or more than 99 percent black. Lower courts had experimented with a number of possible solutions when the case reached the Supreme Court.
Question
Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation?
Conclusion
In a unanimous decision, the Court held that once violations of previous mandates directed at desegregating schools had occurred, the scope of district courts' equitable powers to remedy past wrongs were broad and flexible. The Court ruled that 1) remedial plans were to be judged by their effectiveness, and the use of mathematical ratios or quotas were legitimate "starting points" for solutions; 2) predominantly or exclusively black schools required close scrutiny by courts; 3) non-contiguous attendance zones, as interim corrective measures, were within the courts' remedial powers; and 4) no rigid guidelines could be established concerning busing of students to particular schools.
Washington v. Davis (1976)
Facts of the case
After the applications of two blacks were rejected by the District of Columbia Police Department, the two men filed suit against Mayor Walter E. Washington. The men alleged that the Department's recruiting procedures, including a written personnel test, discriminated against racial minorities. They claimed that the test was unrelated to job performance and excluded a disproportionate number of black applicants.
Question
Did the recruiting procedures violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion
In a 7-to-2 decision, the Court held that the procedures and written personnel test did not constitute racial discrimination under the Equal Protection Clause. The Court found that the Clause was designed to prevent official discrimination on the basis of race; laws or other official acts that had racially disproportionate impacts did not automatically become constitutional violations. The Court reasoned that the D.C. Police Department's procedures did not have discriminatory intent and were racially neutral measures of employment qualification.
Washington v. Davis Opinion Announcement - June 07, 1976 Byron R. White
The third case, I have is 74-1492 Washington, Mayor of Washington, D.C. against Davis.
The principal issue in this case is whether the standard test administered to prospective civil service employees of the United States is racially discriminatory and violative of the Due Process Clause of the United States constitution, when it is administered to applicants for the positions on the Metropolitan Police Force for the district of Columbia.
The District Court held that it was not and sustained the test.
The Court of Appeals for the district of Columbia Circuit reversed holding that the test had a discriminatory impact and was therefore unconstitutional whether or not a discriminatory purpose had been demonstrated.
We disagree with the Court of Appeals.
We hold that the proved and unconstitutional racial discrimination under the equal protection or Due Process Clauses, it is essential that a racially discriminatory purpose be shown in some manner.
We also hold that the District Court was correct in sustaining the test under the applicable statutory standards.
We consequently reverse the judgment of the Court of Appeals.
Mr. Justice Stewart joins parts 1 and 2 of the opinion, but not the remainder.
Mr. Justice Stevens has filed a concurring opinion.
Mr. Justice Brennan has filed a dissenting opinion and he is joined by Mr. Justice Marshall.
United States v. Fordice (1992)
Facts of the case
After 17 years of litigation, Mississippi's public university system remained racially divided. The state had operated legally segregated universities, but had since adopted race-neutral policies to dismantle its de jure segregated system. All students could choose which school to attend, though the choices produced nearly all white and all black institutions of higher learning. This case was decided together with that of Ayers v. Fordice.
Question
Has Mississippi met its affirmative duty under the Fourteenth Amendment's Equal Protection Clause to dismantle its prior dual university system?
Conclusion
No. A state's duty is not discharged "until it eradicates policies and practices traceable to its prior de jure dual system that continues to foster segregation." Race-neutral admissions are not a sufficient corrective to constitutional violations of a dual system. Different admissions criteria, and different missions for university system components, may have racially discriminatory effects perpetuating the old system. The Court did not declare the present system unconstitutional, only that Mississippi had not done enough to eliminate segregation. The Justices turned the matter back to state officials -- and to the courts -- to determine what must be done to fulfill its duty under the Constitution.
United States v. Fordice Opinion Announcement - June 26, 1992 Byron R. White
I have two opinions to announce.
The first one actually deals with two cases 90-1205, United States against Fordice, and 90-6588, Ayers against Fordice.
For reasons stated in an opinion on file with the Clerk, the judgment of the Court of Appeals for the Fifth Circuit is vacated and remanded for further proceedings.
Justices O'Connor and Thomas have filed concurring opinions; Justice Scalia has filed an opinion concurring in the judgment in part and dissenting in part.
Hoyt v. Florida (1961)
Facts of the case
A Florida statute automatically exempted women from jury duty and did not place women on jury lists. Women could, however, volunteer and register for jury duty. After an all-male jury convicted Mrs. Hoyt for murdering her husband, she appealed the decision to the Florida Supreme Court. The Florida Court upheld the conviction.
Question
Did the Florida statute violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion
In a unanimous decision, the Court held that the statute was based on a reasonable classification and was therefore constitutional. Noting that women were "still regarded as the center of home and family life," the Court found that the states could relieve them from the civic responsibility of jury duty unless they themselves determined that such service was consistent with their own "special responsibilities." The Court held that the case was distinct from other cases involving racial discrimination in jury selection, and that male-female disproportions on jury lists carried no constitutional significance.
Reed v. Reed (1971)
Facts of the case
The Idaho Probate Code specified that "males must be preferred to females" in appointing administrators of estates. After the death of their adopted son, both Sally and Cecil Reed sought to be named the administrator of their son's estate (the Reeds were separated). According to the Probate Code, Cecil was appointed administrator and Sally challenged the law in court.
Question
Did the Idaho Probate Code violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion
In a unanimous decision, the Court held that the law's dissimilar treatment of men and women was unconstitutional. The Court argued that "[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment. . .[T]he choice in this context may not lawfully be mandated solely on the basis of sex."
Frontiero v. Richardson (1973)
Facts of the case
Sharron Frontiero, a lieutenant in the United States Air Force, sought a dependent's allowance for her husband. Federal law provided that the wives of members of the military automatically became dependents; husbands of female members of the military, however, were not accepted as dependents unless they were dependent on their wives for over one-half of their support. Frontiero's request for dependent status for her husband was turned down.
Question
Did a federal law, requiring different qualification criteria for male and female military spousal dependency, unconstitutionally discriminate against women thereby violating the Fifth Amendment's Due Process Clause?
Conclusion
Yes. The Court held that the statute in question clearly commanded "dissimilar treatment for men and women who are similarly situated," violating the Due Process Clause and the equal protection requirements that clause implied. A majority could not agree on the standard of review, however. The plurality opinion written by Justice William J. Brennan, Jr., applying a strict standard of review to the sex-based classification as it would to racial classification, found that the government's interest in administrative convenience could not justify discriminatory practices. But a concurring opinion by Justice Lewis F. Powell and joined by Chief Justice Warren E. Burger and Justice Harry A. Blackmun would not go so far as to hold sex discrimination to the same standard as race, choosing instead to argue that statutes drawing lines between the sexes alone necessarily involved the "very kind of arbitrary legislative choice forbidden by the Constitution," an approach employed in the Court's prior decision in Reed v. Reed. Justice Potter Stewart concurred separately that the statutes created invidious discrimination in violation of the Constitution. Justice William H. Rehnquist dissented affirming the reasoning of the lower court opinion.
Craig v. Boren (1976)
Facts of the case
An Oklahoma law prohibited the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18. Curtis Craig, a male then between the ages of 18 and 21, and Carolyn Whitener, a licensed vendor challenged the law as discriminatory.
Question
Did an Oklahoma statute violate the Fourteenth Amendment's Equal Protection Clause by establishing different drinking ages for men and women?
Conclusion
Yes. In a 7-to-2 decision, the Court held that the statute made unconstitutional gender classifications. The Court held that the statistics relied on by the state of Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety. Generalities about the drinking habits of aggregate groups did not suffice. The Court also found that the Twenty-first Amendment did not alter the application of the Equal Protection Clause in the case.
In striking down the Oklahoma law, the Court established a new standard for review in gender discrimination cases. More demanding than the lowest standard for review -- rational basis -- but less demanding than the highest standard -- strict scrutiny, the majority articulated an in-between standard -- intermediate scrutiny.
Craig v. Boren Opinion Announcement - December 20, 1976 Warren E. Burger
Thank you Mr. Justice Rehnquist.
The judgment and the opinion of the Court in No. 75-628, Craig against Boren will be announced by Mr. Justice Brennan.
William J. Brennan, Jr.
An Oklahoma statute, prohibits the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and the females under the age of 18.
A three judge District Court for the Western District of Oklahoma held that this did not constitute a gender-based discrimination that denied the male 18 to 20 years of age the equal protection of the law.
We reverse.
We hold that Oklahoma's gender-based differential does constitute an invidious discrimination against males 18 to 20 years of age in violation of the Equal Protection Clause.
Mr. Justice Powell and Mr. Justice Stevens while joining the Court's opinion have filed concurring opinions; Mr. Justice Blackmun joining over Part II-D of the Court's opinion has filed a separate concurrence statement; Mr. Justice Stewart has filed an opinion concurring in the judgment; the Chief Justice and Mr. Justice Rehnquist dissent and they have filed separate dissenting opinions.
Warren E. Burger
Thank you Mr. Justice Brennan.
Rostker v. Goldberg (1981)
Facts of the case
After the Soviet Union invaded Afghanistan in early 1980, President Jimmy Carter reactivated the draft registration process. Congress agreed with Carter's decision, but did not enact his recommendation that the Military Selective Service Act (MSSA) be amended to include the registration of females. A number of men challenged the constitutionality of the MSSA, and the challenge was sustained by a district court.
Question
Did the MSSA's gender distinctions violate the Due Process Clause of the Fifth Amendment?
Conclusion
In a 6-to-3 decision, the Court held that Congress's decision to exempt women from registration "was not the 'accidental by-product of a traditional way of thinking about females'" and did not violate the Due Process Clause. The Court found that men and women, because of combat restrictions on women, were not "similarly situated" for the purposes of draft registration. The Court also upheld Congress's judgment that the administrative and military problems that would be created by drafting women for noncombat roles were sufficient to justify the Military Selective Service Act.
Michael M. v. Superior Court of Sonoma County (1981)
Facts of the case
Michael M., a 17 and 1/2 year-old male, was found guilty of violating California's "statutory rape" law. The law 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 statute thus made men alone criminally liable for such conduct. Michael M. challenged the constitutionality of the law.
Question
Did California's statutory rape law unconstitutionally discriminate on the basis of gender?
Conclusion
No. In a plurality decision, the Court held that the law did not violate the Equal Protection Clause of the Fourteenth Amendment, noting that "young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse." The Court found that the state had a strong interest in preventing "illegitimate pregnancy." The Court noted that "[i]t is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males."
Michael M. v. Superior Court of Sonoma County Opinion Announcement - March 23, 1981 Warren E. Burger
The judgment of the Court in Number 79-1344, Michael M. against the Superior Court will be announced by Mr. Justice Rehnquist.
William H. Rehnquist
The opinion I announce is only that of a plurality of the Court but the judgment is that of a majority.
Petitioner was charged with violating California's statutory rape law.
That law makes it a crime for a man to have sexual intercourse with a woman who is not his wife and is under the age of 18 years.
Petitioner argued that the statute which punishes only men for the act of sexual intercourse violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it's unlawfully discriminated on the basis of sex.
The California Supreme Court upheld the constitutionality of the statute by a divided vote.
It reasoned that the statute was a permissible attempt due to teenage pregnancy.
We agree and affirm the decision of the California Supreme Court.
Not all laws which draw distinctions on the basis of sex are unconstitutional.
The California statutory rape law is designed to protect young women from the harmful effects of consequences of teenage pregnancy by prohibiting males from having sexual intercourse with young females.
We reject petitioner's contention that the constitution requires a State to make young woman as criminally liable as young men for the same conduct.
Women suffered disproportionally the consequences of teenage pregnancy and the State may constitutionally punish only males because they suffer few of the consequences of the -- of their acts.
Accordingly, the decision of the California Supreme Court is affirmed.
Justice Stewart, while joining this plurality opinion, he has filed a separate concurring opinion.
Justice Blackmun has filed an opinion in which he concurs in the judgment reached by the Court.
Justice Brennan has filed a dissenting in which Justices White and Marshall have joined.
Justice Stevens has also filed a dissenting opinion.
Warren E. Burger
Thank you, Mr. Justice Rehnquist.
Mississippi University for Women et al. v. Hogan (1982)
Facts of the case
Joe Hogan, a registered nurse and qualified applicant, was denied admission to the Mississippi University for Women School of Nursing's baccalaureate program on the basis of sex. Created by a state statute in 1884, MUW was the oldest state-supported all-female college in the United States.
Question
Did the state statute which prevented men from enrolling in MUW violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion
Yes. The Court held that the state did not provide an "exceedingly persuasive justification" for the gender-based distinction. The state's primary argument, that the policy constituted educational affirmative action for women, was "unpersuasive" to the Court since women traditionally have not lacked opportunities to enter nursing. If anything, argued Justice O'Connor, the statute "tends to perpetuate the stereotyped view of nursing as an exclusively women's job."
United States v. Virginia (1996)
Facts of the case
The Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's only exclusively male public undergraduate higher learning institution. The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated the Fourteenth Amendment's equal protection clause. On appeal from a District Court ruling favoring VMI, the Fourth Circuit reversed. It found VMI's admissions policy to be unconstitutional. Virginia, in response to the Fourth Circuit's reversal, proposed to create the Virginia Women's Institute for Leadership (VWIL) as a parallel program for women. On appeal from the District Court's affirmation of the plan, the Fourth Circuit ruled that despite the difference in prestige between the VMI and VWIL, the two programs would offer "substantively comparable" educational benefits. The United States appealed to the Supreme Court.
Question
Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal Protection Clause?
Conclusion
No. In a 7-to-1 decision, the Court held that VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause. Virginia failed to support its claim that single-sex education contributes to educational diversity because it did not show that VMI's male-only admissions policy was created or maintained in order to further educational diversity. Furthermore, Virginia's VWIL could not offer women the same benefits as VMI offered men. The VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets. Finally, the Fourth Circuit's "substantive comparability" between VMI and VWIL was misplaced. The Court held that the Fourth Circuit's "substantive comparability" standard was a displacement of the Court's more exacting standard, requiring that "all gender-based classifications today" be evaluated with "heightened scrutiny." When evaluated with such "heightened scrutiny," Virginia's plan to create the VWIL would not provide women with the same opportunities as VMI provides its men and so it failed to meet requirements of the equal protection clause. [NOTE: Justice Ginsburg's announcement of the Court's opinion may be considered an address to the American public. It is a plain-spoken and forceful summary of the majority position.]
United States v. Virginia Opinion Announcement - June 26, 1996 William H. Rehnquist
The opinion of the Court in two cases No. 94-1941 United States against Virginia and No. 94-2107 Virginia against United States will be announced by Justice Ginsburg.
Ruth Bader Ginsburg
This case concerns an incomparable military college, the Virginia Military Institute (VMI), the sole single sex school among Virginia’s Public Institutions of Higher Learning.
Since its founding in 1839, VMI has produced civilian and military leaders for the commonwealth and the nation.
The School’s unique program and unparalleled record as the leadership training ground has led someone in to seek admission.
The United States on behalf of women capable of all the activities required of VMI cadet instituted this lawsuit in 1990 maintaining that under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution Virginia may not reserve exclusively to men the educational opportunities that VMI affords.
The case has had a long history in court.
In the first round, the District Court ruled against the United States reasoning that the all male VMI served the State Policy according a diverse array of educational program.
The Fourth Circuit vacated that judgment concluding that a diversity policy serving to favor one gender did not constitute equal protection.
In the second round, the lower Courts considered a found satisfactorily to remedy Virginia proposed, a program for women called the Virginia Women’s Institute for leadership or the VWIL at a private women’s college Mary Baldwin College.
A VWIL degree, at the Fourth Circuit said, would not carry the historical benefits and prestige of a VMI degree and the two programs deferred markedly in methodology, VMI is vigorously adversative,VWIL’s would be cooperative.
But overall, the Lower courts concluded these schools were sufficiently comparable to meet the demand of equal protection.
We reverse that determination.
Our reasoning centers on the essence of the complaint of the United States and on facts that are undisputed.
Some women at least can meet the physical standards, VMI imposes on men, are capable of all the activities required of VMI cadets prefer VMI's methodology over VWIL could be educated using VMI’s methodology and would want to attend VMI if they had the chance.
With recruitment the District Court recognize VMI could achieve at least 10% female enrolment a number the District Court said sufficient to provide female cadets with a positive educational experience.
If most women would not choose VMI’s adversative method, many men too would not want to be educated in VMI’s environment.
The question before us however is not whether women or men should be forced to attend VMI rather the question is whether Virginia can constitutionally deny to women who have the will and capacity the training and attendant opportunity VMI uniquely affords; training and opportunity of the VWIL program does not supply.
To answer that question, we must have a measuring rod what lawyers call a standard of review.
In a nutshell this is the standard our precedent establishes.
Defenders of sex-based government action must demonstrate an exceedingly persuasive justification for that action to make that demonstration.
The defender of a gender line must show at least that the talents classification served important governmental objective and that any discriminatory mean employed is substantively related to the achievement of those objectives.
The heightened review standard applicable to sex-based classification does not make a proscribed classification but it does mark as presumptively invalid incompatible with equal protection a law or official policy that denies to women simply because they are women equal opportunity to aspire, achieve, participate in, and contribute to society based upon what they can do.
Under this exacting standard reliance on overbroad generalization typically male or typically female tendency estimates about the way most women or most men are will not suffice to deny opportunity to women whose talent and capacity place them outside the average description.
As this Court said in Mississippi University for women against Hogan some 14 years ago state actors may not close entrance gates based on fixed notions concerning their roles and abilities of males and females.
A remedial decree must two of the constitutional violations in this case, the violation is the categorical exclusion of women from an extraordinary educational leadership development opportunity afforded men.
To cure that violation and to afford genuinely equal protection, women seeking and set forth a VMI quality education cannot be offered anything less.
We therefore reversed the Fourth Circuit’s judgment and the remand the case for proceedings consistent with this opinion.
The Chief Justice has filed an opinion concurring in the judgment; Justice Scalia had filed a dissenting opinion.
Justice Thomas took no part in the consideration or decision of the case.
Regents of the University of California v. Bakke (1978)
Facts of the case
Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. The school reserved sixteen places in each entering class of one hundred for "qualified" minorities, as part of the university's affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications (college GPA and test scores) exceeded those of any of the minority students admitted in the two years Bakke's applications were rejected. Bakke contended, first in the California courts, then in the Supreme Court, that he was excluded from admission solely on the basis of race.
Question
Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school?
Conclusion
No and yes. There was no single majority opinion. Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the Equal Protection Clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action.
Regents of the University of California v. Bakke Opinion Announcement - June 26, 1978 Warren E. Burger
The judgment and opinion of the Court in 76-811, Regents of the University of California against Bakke, will be disposed of in this way.
Mr. Justice Powell will announce the judgment of the Court.
There is no opinion of the Court supported by a majority and accordingly other justices will state their dissenting and concurring opinions in due course, following that.
Lewis F. Powell, Jr.
As the Chief Justice has stated, I am authorized to announce only the Judgment of the Court.
The facts in this case are too well known to be re-stated this morning.
Perhaps no case in modern memory has received as much media coverage and scholarly commentary.
More than 60 briefs were filed with the Court.
We also have received the advice through the media and the commentaries of countless extra judicial advocates.
The case was argued some eight months ago and as we speak today with a notable lack of unanimity, it maybe fair to say that we needed all of this advice.
In any event, it will be evident from the several opinions that the case intrinsically difficult, has received our most thoughtful attention over many months.
So much for the introduction; as there are six separate opinions, I will state first the Court's judgment.
Insofar, as the California Supreme Court held at Bakke must be admitted to the Davis Medical School, we affirm.
Insofar, as the California court prohibited Davis from considering race as a factor in admissions, we reverse.
I will now try to explain how we divided on these issues.
This may not be self evident from a hard examination of our various opinions.
The decision of the California Court presented us with two central questions; the first and the one widely perceived as the only ultimate question is whether the special admissions program discriminated unlawfully against Bakke either under the Constitution or under Title VI of the Civil Rights Act of 1964.
I will refer to this as Bakke admissions question.
The second and broader question is whether it is ever permissible to consider race as a factor relevant to the admission of applicants to a State University.
I will refer to this question generally as whether race maybe considered.
As will be perceived at this point, if the answer to the second question were negative, that is that race may never validly considered, this answer disposes of both issues.
Bakke would be admitted and the University could not in the future, give any consideration to race in its admissions program.
If however, the second question were answered affirmatively, that is that race maybe considered, then it becomes necessarily to address the first question separately that is whether the “special admissions program” at Davis is compatible with Title VI and with the Constitution.
I have mentioned both Title VI, often referred to as a statutory issue and the Constitution under which is presented the Equal Protection issue arising under the Fourteenth Amendment.
The case is further complicated because if it were disposed of under Title VI, there would be no occasions to reach the constitutional issues.
I will now state more specifically how the questions are decided.
The Chief Justice and justices Stewart, Rehnquist and Stevens in an opinion authorized by Mr. Justice Stevens have concluded that the only question before us is whether Bakke was unlawfully excluded from the Medical School because of his race.
In their view, Congress has answered that question in Title VI.
They would affirm the judgment of the California Court without addressing the question whether race maybe ever be considered as a factor in an admissions program.
Justices Brennan, White, Marshall, Blackmun and I have a different view as to Title VI.
We believe despite smaller and detailed provisions that it goes no further in prohibiting the use of race than the Equal Protection Clause.
The five of us therefore, reach both of the constitutional questions.
On a constitutional analysis, founded on the Equal protection Clause, justices Brennan, White, Marshall and Blackmun, in that joint opinion, hold, not only that race properly maybe considered but also that the special admissions program of the Davis Medical School is valid in every respect.
When I have concluded, Mr. Justice Brennan will state this position more fully.
Mr. Justice Marshall and Mr. Justice Blackmun also will make statements.
As I agree that Title VI does not dispose of this case, I also address the constitutional question.
On the first of these, whether the special admissions program is invalid, I agree with the result reached by Mr. Justice Stevens' opinion, but I do so on constitutional grounds rather than on under Title VI.
Thus there are five votes to affirm the judgment, invalidating the “special” program.
Under this judgment, Bakke will be admitted to the medical school.
As to the second constitutional issue, whether race may be considered as a factor in an admissions program, I agree with the result reached by the joint opinion of Mr. Justice Brennan and my brothers who have joined him.
Thus, there are five justices who join in a judgment of reversal on this issue, but the process of constitutional analysis by which I reach this result differs significantly from that of the four justices who have filed a joint opinion.
As my reasoning is set forth fully in my written opinion, and as other justices will speak, I will merely make a brief conclusory summary.
The Davis “special admissions” program with sixteen of 100 seats reserved exclusively for three categories of minorities, is a classification based on race.
Our cases establish beyond question that a racial classification by a state agency is inherently suspect and must be subjected to the most exacting judicial scrutiny.
Although adopted primarily to protect persons of the Negro race, the guarantee of the Equal Protection Clause by its terms protects all persons.
It provides explicitly that no person shall be denied equal protection of the law.
Despite this absolute language, our cases have held at some distinction are justified if necessary to further a compelling state interest.
Davis relies on several interests thought to be compelling.
One is the desire to readdress racial imbalance said to result from general societal discrimination against the minority groups selected for preferential treatment.
But there is a complete absence on this record of any finding that this imbalance is traceable to discriminatory practices.
Discrimination by society at large, with no determined effects, is not sufficient to justify petitioner's racial classification.
In my view, the only state interest that fairly may be viewed as compelling on this record is the interest of a university in a diverse student body.
This interest, encompassed within the concept of academic freedom, is a special concern of the First Amendment, but there has been no showing in this case that the Davis “special” program is necessary to achieve educational diversity.
The Davis program totally excludes all applicants who are not Negro, Asian or Chicano from 16 of the 100 seats in an entering class.
No matter how strong their qualifications, qualitative and quantitative, including their own potential for contributing to educational diversity, they are not afforded the opportunity to compete with the applicants from the preferred groups for those sixteen seats.
At the same time, the preferred applicants have the opportunity to compete for every seat in the class.
A university's interest in a a diverse student body is not limited to ethnic diversity.
Rather it's compelling interest in this respect encompasses a far broader array of qualifications and characteristics of which race is only one.
I refer in my opinion to the Harvard Admissions Program as one example of how race properly, in my opinion, maybe taken into account.
I will quote briefly from the description of the Harvard program, a copy of which is in the Appendix to my opinion and here I quote in substance, “The Admission Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year.
Awareness of the need for a diversity means only that in choosing among thousands of academically qualified applicants, the Committee, with a number of criteria in mind, pays some attention to distribution that should be made among many types and categories of students.
"Thus race is considered in a flexible program designed to achieve diversity, but it is only one factor weighed competitively against a number of other factors being relevant.
Under such a system, each applicant is treated as an individual, regardless of race and is considered in competition for each seat in the class.
As the briefs in this case, and the literature in this area, abundantly illustrate many of our finest universities and colleges peruse a flexible, competitive admissions program in which race maybe considered as a relevant factor.
This experience demonstrates that the Davis type program, one that arbitrarily forecloses all competition solely on the basis of race or ethnic origin, is not necessary to attain reasonable educational diversity.
In my view, it therefore violates the Equal Protection Clause in the most fundamental sense.
Yet, the way is open to Davis to adopt the type of admissions program, proved to be successful in so many of the universities and colleges of our country.
John Paul Stevens
The University of California through its special admissions policy excluded Allan Bakke from participation in it's program of medical education because of his race.
The Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist and I are of the opinion that, that action violated Title VI of the Civil Rights Act of 1964.
Section 601 of that Act prohibits the exclusion of any person on the ground of race from any program receiving federal financial assistance.
The Davis Medical School is such a program.
The language of the statue is exceptionally plain.
It provides, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The legislative history of the statute makes it clear that Congress meant exactly what it said.
During the lengthy debates, opponents of the legislation expressed their concern that the Act would be read as mandating racial quotas in "racially balanced" colleges and universities.
In response, those supporting the legislation gave repeated assurances that the Act would be colorblind in it's application.
One supporter of the Act expressed this position in these words, “The basic fairness of Title VI is so clear that I find it difficult to understand why it should create any opposition.
Private prejudices, to be sure, cannot be eliminated overnight.
However, there is one area where no room at all exists for private prejudices, that is the area of governmental conduct.
As the first Mr. Justice Harlan said in his prophetic dissenting opinion in Plessy against Ferguson, “Our Constitution is color-blind, so I say to Senators, must be our Government.
Title VI closes the gap between our purposes as a democracy and our prejudices as individuals.
The cuts of prejudice need healing.
The costs of prejudice need understanding.
We cannot have hostility between two great parts of our people without tragic loss in our human values.”
In words that would be paraphrased and repeated throughout the congressional debates, Senator Pastore, the floor manager of the Bill, clearly stated the intent of Congress.
Title VI will guarantee that the money collected by colorblind tax collectors will be distributed by Federal and State administrators who are equally colorblind.
We cannot ignore the plain language in the legislative history and in the statute itself.
The simple rule set forth in the statute is not qualified by any words that say in substance that the prohibition against racial discrimination shall apply only if the racial discrimination is also unconstitutional.
In order to interpret this unusually clear colorblind statute, there is no need to decide whether the Constitution is also colorblind.
In other provisions of the Civil Rights Act of 1964, the Court has held that the statute has a meaning of its own that is not necessarily congruent with any constitutional standard.
Thus for example, in Washington against Davis, an employment discrimination case arising under Title VII, the Court stated, “We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII and we decline to do so today.”
And in other Title VII cases, the Court has also squarely held that the statute prohibits racial discrimination against white petitioners upon the same standards as would be applicable where they Negroes.
Quoting from our earlier decision in Griggs against Duke Power, the Court reaffirmed the principle that the statute prohibits discriminatory preference for any racial group, minority or majority.
But the university argues that regardless of the principle of none-discrimination established by Title VI, an individual who was injured by a violation of Title VI, has no standing litigate his claim in court.
This contention was not raised until oral argument before us and has been repeatedly and consistently rejected in cases both in this Court and others where individuals have raised claims similar to Bakke's.
In the context of this case, we find no merit in the argument that Bakke has no standing to a assert his statutory claim.
Two questions remain, first; even though the statutory ground to decision in this case is dispositive is it appropriate to discuss any constitutional issues presented by the case?
The Court has repeatedly given the same answer to this question.
To quote only one such answer in Spector Motor Co. against McLaughlin, “If there is one doctrine, more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality unless such adjudication is unavoidable."
The more important the issue, the more force there is to this doctrine.
In our view, we have a clear duty to avoid unnecessary discussion of constitutional questions.
Finally, should the Court volunteer its views about university admissions programs other than the one which resulted in the rejection of Bakke's application.
Again, the answer is plain.
It is well settle that this Court reviews judgments not statements and opinions.
This lawsuit is between two specific litigants; Allan Bakke and the Regents of the University of California.
The judgment now before us, as we explain in our opinion, declares that the university's special admissions program was unlawful and orders that Bakke be admitted to the medical school.
The specific holding of the California Supreme Court that is under review in this case is limited to the conclusion that the “special admissions” program employed by that university was unlawful.
No other issue remains in the case.
Just as we have a duty to decide that issue, so too we have a duty, equally strong and equally ingrained in the constitutional structure of our government, to avoid discussion of important issues not presented by the controversy before us.
75 years ago, in one of his classic dissenting opinions, Mr. Justice Holmes observed that in great cases, the interest at stake generates a kind of hydraulic pressure which makes what previously was clear seem doubtful and before which even well settled principle of law were abandoned.
Not withstanding the pressures that tempt us to speak about other issues, well settled principles dictate a course of judicial restrain.
For these reasons, the Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist and I have concluded that the Court should simply affirm the judgment of the California Supreme Court.
To the extent that the Court today purports to do anything else, we believe, it exceeds it's proper judicial role.
William J. Brennan, Jr.
As my brother Powell has already said, Mr. Justice White, Mr. Justice Marshall, Mr. Justice Blackmun, and I have filed a jointly signed opinion supporting our views that the judgment of the California Supreme Court should be reserved in all respects.
Not only insofar as it prohibits the university from establishing “race conscious programs in the future,” but also insofar as the judgment orders that respondent Bakke be admitted to the Davis Medical School.
As is apparent from the statements of both my brother Powell and my brother Stevens, all nine members of the Court addressed the threshold question of statutory construction and a majority, consisting of Mr. Justice Powell and the four of us, construe the statute as going no further in prohibiting the use of race then the Equal Protection Clause itself.
Now that then is a law of statutory construction for the purposes of this case.
Although it may strike some as unusual, that the dissenters in that construction rests their affirmance of the California Supreme Court on their construction of Title VI, that is not the law, having being rejected by a majority of the Court.
The dissenters have chosen not to address the constitutional question required by the majority's controlling construction namely whether the Davis program violates the Equal Protection Clause.
Our brother Powell, as he said, also affirms the California Supreme Court insofar, it directed Bakke's admission but on the ground, even though I know I am repeating I think it's important that it be emphasized, reaching the constitution, Davis's special admission program was unnecessary in his view to the achievement of the compelling goal of achieving a diverse student body.
So in consequence, only five members of the Court addressed the constitutional question of uniquely paramount importance that this case presents, what race conscious programs are permissible under the Equal Protection Clause.
Although it's no secret that the Court took this case as the vehicle for confronting that issue after avoiding it on mootness grounds in the DeFunis case.
But the fact that only five of us addressed the constitutional question must not obscure the signal importance of today's decision on the constitutional question.
Five of us, a Court majority, reversed the judgment of the California Supreme Court insofar as it prohibits Davis from establishing race conscious admissions programs in the future.
Thus the central meaning of today's opinions is this.
Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative or administrative bodies with competence to act in this area.
Now the opinion of the four of us, is some 55 printed pages and of course, I shall only briefly touch up it's highlights.
The first half addresses the threshold question of the construction of Title VI.
Although the dissenters have that there is a private right of action under Title VI, three of the four of us agree with our brother Powell that this case doesn't require us to decide that question.
Our brother White however, believes we should address it and accordingly he has filed a separate opinion stating his view that there is no private right of action under Title VI.
The rest of our statutory construction discussion canvases in great detail the legislative history that contrary to the view just expressed by my brother Stevens in our view establishes beyond question that Title VI was not indented to bar State affirmative action programs not bared by the Equal Protection Clause itself.
In other words, the legislative history contrary to the dissenters reading, provides no support for the proposition that Congress intended to impose statutory limitations upon constitutionally permissible racial preferences designed to extend the benefits of federally financed programs to racial minorities that historically have been excluded from the full benefits of American life as a result of racial discrimination.
In sum, in our brother Powell's words and his opinion and I quote them, “ In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.”
Our discussion of the constitutional question, takes up the second half of our opinion.
It opens with a history of our national betrayal of our founding principle that all men are created equal, for candor requires acknowledgment that the Framers of our Constitution, to forge the 13 Colonies into one Nation, openly compromised this principle of equality with its antithesis slavery.
The consequences of this compromise are well known.
They have have aptly been called our 'American Dilemma'.
Thus we think it well to recount how brief the time has been if it has yet come, when the promise of our principles has flowered into the actuality of equal opportunity for all regardless of race or color.
The Fourteenth Amendment, the embodiment in the Constitution of our abiding belief in human equality, has been the law of our land for only slightly more than half of our 200 years as a nation.
And for half of that half, the Equal Protection Clause of the Amendment was largely moribund.
Worst the clause was only turned against those whom it was intended to set free, condemning them to a "separate but equal" status before the law, a status always separate, but seldom equal.
Not until 1954, only 24 years ago, was this odious doctrine interred by our decision in Brown v. Board of Education.
Brown I, and its progeny which proclaimed that separate schools and public facilities of all sorts were inherently unequal and forbidden under our Constitution.
Even then, inequality was not eliminated with "all deliberate speed."
In 1968 and again in 1971 we were forced to remind school boards of their obligation to eliminate racial discrimination root and branch.
And a glance at our docket and those of lower courts even today will show that officially sanctioned discrimination is not a thing of the past.
Against this background, claims that law must be "colorblind" or that the datum of race is no longer relevant to public policy must be seen as aspiration, rather than as descriptive of reality.
This is not to denigrate aspiration, but for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities.
Yet we cannot and as our opinion attempts to demonstrate need not, under our Constitution, let color blindness become myopia which masks the reality that many "created equal" have been treated within our lifetimes as inferior both by the law and by their fellow citizens.
The association of human equality is closely associated with a proposition that differences in color or creed, birth or status, are neither significant nor relevant to the way in which persons should be treated.
Nonetheless, the position that such factors must be constitutionally in relevance, summed up by the short hand phrase or if Constitution is colorblind has never been adopted by this Court as the proper meaning of the Equal Protection Clause.
Our opinions cites numerous decisions of this Court.
School desegregation cases, gender discrimination cases, decisions sustaining affirmative action programs of the Congress and Federal agencies supporting the conclusion that nothing whatever in the history of the Fourteenth Amendment or the Civil Rights Acts, even remotely suggests that the states are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and these Acts are addressed.
Our opinion next turns to the problem of what the judicial role should be in reviewing state action that expressly classifies by race for remedial purposes as does the Davis program.
Respondent Bakke argues that racial classifications are always suspect and consequently, that this Court should weigh the importance of the objective served by Davis's affirmative admission program to see if they are compelling.
In addition, he asserts this Court must inquire whether in it's judgment there are alternatives other than racial classifications which would suit Davis' purposes.
The university on the other hand, states that our proper role is simply to accept its determination that the racial classifications used by its program are reasonably related to what it tells us are its benign purposes.
Our opinion adopts a standard somewhere in between.
Because of the significant risk that racial classifications established for ostensibly benign purposes can be misused, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classification.
Rather to justify such a classification, an important and articulated purpose for its use must be shown.
In addition, any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program.
Thus, our review under the Fourteenth Amendment should be strict, not "strict' in theory and fatal in fact" because it is stigma that causes fatality, but strict and searching nonetheless.
The opinion next analyses the Davis problem by that standard and concludes that it passes constitutional muster as a permissible program to remove the disparate racial impact it's admissions program might otherwise have and was adopted on the basis of the reasonable belief that the disparate discrete impact is itself a product of past discrimination whether the universities or that of society at large.
It's not claimed that the Davis program operates to stigmatize or single out any discrete and insular, or even any identifiable, non-minority group.
Bakke was not in any sense stamped as inferior by the Medical School's rejection of him.
Indeed, it is conceded by all that he satisfied those criteria regarded by the school as generally relevant to academic performance better than most of the minority members who were admitted.
In addition there is simply no evidence that the Davis program discriminates intentionally or unintentionally against any minority group which it purports to benefit.
The program does not establish a quota in the invidious sense of a ceiling on the number of minority applicants to be admitted nor can the program reasonably be regarded as stigmatizing the program's beneficiaries or their race as inferior.
It's uncontested that Davis admits only those minority applicants in the special program who are fully qualified to study medicine.
Once admitted, these students must satisfy the same degree requirements as regularly admitted students.
They are taught by the same faculty in the same classes and their performance is evaluated by the same standards by which regularly admitted students are judged.
Under these circumstances, their performance and degrees must be regarded equally with the regularly admitted students with whom they compete or standing.
Our opinion finally comes to our reasons for disagreeing that the set aside those 16 places under the Davis program requires the conclusion that Bakke was unconstitutionally denied admission.
Davis's special admissions program cannot in our view, be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants, rather than, as thus the Harvard Program approved by our brother Powell, using race as positive factor to be considered in evaluating the applications of disadvantaged minority applicants.
We think that for purposes of constitutional adjudication, there is simply, no difference between the two approaches.
It's inescapable that in any admissions program which extends the preference to disadvantaged racial minorities, a decision must be made as to how much of a preferences is to be given and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis.
Furthermore, the extent of the preference inevitably depends on how many minority applicants the particular school is seeking to admit in any particular year.
There is no sensible, and certainly no constitutional distinction as we see, between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission of an approximately determined number of qualified minority applicants and setting a fixed number of places for such qualified applicants, as was done here.
A "Harvard" program as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students.
That the Harvard approach does not also make public the extent of the preference and the precise workings of the system, while the Davis program employs a specific, openly stated number, does not, in our view, condemn the latter plan for purposes of Fourteenth Amendment.
It may be that the Harvard plan is more acceptable to the public generally than is the Davis "quota."
If it is, any State, including California, is free to adopt it in preference to a less acceptable alternative, just as it is generally free, as far as the Constitution is concerned, to abjure granting any racial preferences in its admissions programs.
But there is no basis for preferring a particular preference program simply because in achieving the same goals that the Davis Medical School is pursuing, it proceeds in a manner that is not immediately apparent to the public.
Harry A. Blackmun
Mr. Justice Powell has stated that this case is intrinsically difficult; perhaps so, perhaps not. I suspect that for those four members of the Court who find the Title VI issue controlling, the case really is not very difficult.
But for the five of us who feel that Title VI does not provide the answer, the case has much deeper and more profound ramifications.
This case like the death penalty issues that had been before the Court in years last past, like the abortion cases, like the schools' desegregation cases has caught the popular interest and the peoples' deep concern.
Like each of those it finds the people as well as justices divided in their in their eight reactions; strands of heritage and strands of emotion and strands of presumption all are plucked (ph).
For me, this case is distinctly a constitutional, not a statutory case and because it is, I have joined my brother Brennan and White and Marshall in the opinion Mr. Justice Brennan has just described.
What I have written separately, I believe and I hope is complementary to what is said in the opinion for the four of us.
I emphasis, however, a number of very general factors.
First, until just a few years ago, in the early 1970s, a very small number, less than 2%, of all the physicians and all the attorneys and all the students in medical and law schools in this country, were members of what we refer to as minority groups.
And in addition to this factor, almost three quarters of our Negro physicians where trained at only two medical schools; Harvard here in Washington and Meharry in Nashville Tennessee.
If ways are not found to remedy that kind of situation, the country will never achieve it's professed goal of a society that is not race-conscious.
Second, I am optimistic that remedy will be forthcoming and I am optimistic that we shall see a time when race consciousness is a far less significant factor in our national life than it is today.
When that time will come, I do not know, but when it comes, affirmative action, so called a reverse discrimination will be a thing of the past.
Third; in this case we are considering not a demarcation between the qualified on the one hand and the unqualified on the other, but we are considering a process of selection among those who are qualified to go to medical school.
It follows when all those qualified cannot be admitted as is sadly the case today, that there is a denial to the deserving.
This inescapable fact is brought into sharp focus here because Allan Bakke is not himself charged with discrimination and yet he is one who is disadvantaged, and because the Medical School at Davis itself was not charged with historical discrimination.
Next; for me there is particular or very real significance in the 84-16 division at Davis.
The same legal and constitutional considerations necessarily apply if the Davis Special Administration Program had focused on any lesser number, that is, on 12 or 8 or 4 or indeed, on only one place.
It is somewhat ironic to have us so deeply disturbed by this case which concerns a program where race is an element of consciousness, and yet for all of us to be aware of the fact, and to know that our institutions of higher learning long have given and still do give conceded preference up to a point to accomplished or promising athletes, to the children of alumni, to the affluent and to those who have connections with celebrities, and the famous, and the powerful.
Next; it seems to me that the programs of admission are basically a responsibility for academicians.
The judiciary is ill-equipped and poorly trained for this task.
Management of a university or of a professional school is within the special competence of educators.
Interference by the judiciary, therefore, must be the rare exception, and not the rule.
Next; I agree with Mr. Justice Powell that today's philosophical conception of the Fourteenth Amendment as he has set forth in his opinion, embraces a so called “broader principle” than the Amendment did when it was adopted in 1868, 110 years ago.
But for me that enlargement does not mean, not the Fourteenth Amendment has broken away from its moorings and from its original intended purpose, those original aims still persist and that, in a distinct sense, is what "affirmative action," is all about.
If this conflicts with idealistic equality or with pure equal protection, any such tension of that kind is original Fourteenth Amendment tension, and it is constitutionally conceived and constitutionally proposed.
I am not convinced as Mr. Justice Powell is that the difference between the Davis Program and those employed by the Amici here Harvard and Stanford and Pennsylvania and Columbia, is constitutionally significant.
Certainly, the line between the two is a thin is one.
And I say this because in each program subjective application is at work.
I do agree that the Harvard type program where race or ethnic background is only one of many factors, is a program probably better formulated than two-track system at Davis and yet the cynical may say that under the Harvard program, one may accomplish covertly what Davis says it does openly.
I think it is worth noting that governmental preference is not a stranger to our legal life.
We certainly see it in veterans' preference legislation, we certainly see it in the aid-to-the-handicapped programs.
We see it in the progressive income tax, we see it in the Indian programs.
We accept some of these on the the ground that they have special constitutional protection or as with Indians, that they are wards of the Government.
Nevertheless, the preferences exist, and we have accepted them.
I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and to have it successful, that almost demands the impossible.
In order to get beyond racism, we must first take account of race.
And in order to treat some persons equally, we must treat them differently.
We cannot and I think we dare not let the Equal Protection Clause of all the provisions in the Constitution perpetuate racial supremacy.
And so for me the ultimate question, as it was at the very beginning, it is this; among the qualified, how does one choose?
And putting that one in the framework of constitutional considerations and requirements, it seems to me that we get back to basics.
At the risk of being repetitious, I think it brings back what a very Great Chief Justice, known as the Great Chief Justice, said a long time ago, or he pointed the way.
“In considering this question, then, we must never forget, that it is a Constitution, we are expounding."
And later in McCulloch against Maryland, he went on, in words that I think are particularly appropriate for this case, "Let the end be legitimate, let it be within the scope of the Constitution, and all means, all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."
More recently, one destined to become a Justice of this Court said this, “The great generalities of the Constitution have a content and a significance that vary from age to age."
Well, those are precepts of breadth and flexibility and ever-present modernity so far as our Constitution is concerned.
They are precepts basic to our constitutional law and today again, for the four of us anyway, or five of us I think, we expound a Constitution and the same principles that governed McCulloch's case in 1819, govern Bakke's case in 1977 and 78.
For me there can be no other answer and there is no alternative.
Thurgood Marshall
And some of what I have to say will be repetitious but I feel obliged to say it.
I agree with the judgment of the Court,, this Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions.
I do not agree that petitioner's admissions program violates the Constitution.
For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro.
Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.
Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery and the system of slavery brutalized and dehumanized both master and slave.
An implicit protection of slavery was embodied in the Declaration of Independence and was made explicit in the Constitution.
The individual States likewise established the machinery to protect the system of slavery through the promulgation of the Slave Codes, which were designed primarily to defend the property interest of the owner and his slave.
The position of the Negro slave as mere property was then confirmed by this Court in Dred Scott against Sandford.
The status of the Negro as property was officially erased by his emancipation at the end of the Civil War.
But the long-awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way.
Despite the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, the Negro was systematically denied the rights that those Amendments were supposed to secure.
The combined actions and inactions of the State and Federal Governments maintained Negroes in a position of legal inferiority for another century after the Civil War.
The Southern States took the first steps and immediately following the end of the Civil War, many of the provisional legislatures passed Black Codes, similar to the Slave Codes, which, among other things, limited the rights of a Negro to own or rent property and permitted imprisonment for breach of employment contracts.
Congress responded to these legal disabilities by enacting the Reconstruction Acts and the Civil Rights Acts.
Thus for a time back there, it seemed as if the Negro might be protected from the continued denial of his civil rights and might be relieved of the disability that prevented him from taking his rightful place as a free and equal citizen.
That time, however, was short-lived. Reconstruction came to a close, and, with the assistance of this Court, the Negro was rapidly stripped of his new civil rights.
The Court began by interpreting the Civil War Amendments in a manner that sharply curtailed their substantive protections.
Then in the notorious Civil Rights cases, the Court strangled Congress' efforts to use its power to promote racial equality.
The Court's ultimate blow to the Civil War Amendments and to the equality of Negroes was of course, Plessy against Ferguson.
In upholding that Louisiana law, they said that, “equal but separate" accommodations for whites and Negroes.
The Court held that the Fourteenth Amendment was not intended "to abolish distinctions upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either."
Ignoring totally the realities of the positions of the two races, Mr. Justice Harlan's dissenting opinion recognized the bankruptcy of the Court's reasoning.
He expressed his fear that if like laws were enacted in other States, “the effect would be in the highest degree mischievous."
The fears of Mr. Justice Harlan were soon to be realized.
In the wake of Plessy, many States began expand their Jim Crow laws, which had up until that time been limited primarily to passenger trains and schools.
The segregation of the races was extended to residential areas, parks, hospitals, theaters, waiting rooms, and bathrooms, you name it, The enforced segregation of the races continued into the middle of the 20th century.
In both World Wars, Negroes were for the most part confined to separate military units.
It was not until 1948 that an end to segregation in the military was ordered by President Truman and the history of the exclusion of Negro children from white public schools is too well known and recent to require repeating here.
That Negroes were deliberately excluded from public graduate and professional schools and thereby denied the opportunity to become doctors, lawyers, engineers, and the like is too well established.
The position of the Negro today in America is a tragic, but inevitable consequence of centuries of unequal treatment measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.
A Negro child today has a life expectancy which is shorter by more than five years than of a white child, that's today.
The median income of the Negro family is only 60% of the median of a white family, and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites.
Today, when the Negro child reaches working age, he finds that America offers him significantly less than it offers his white counterpart.
For Negro adults, the unemployment rate is twice that of whites, at least whites and the unemployment rate for Negro teenagers is three to four times that of white teenagers, I am talking about today.
The relationship between those figures and the history of unequal treatment afforded to the Negro cannot be denied and I haven't heard it denied.
At every point from birth to death, the impact of the past is reelected to the still disfavored position of the Negro.
In light of the sorry history of discrimination and the devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order.
To fail to do so is to ensure that America will remain a divided society.
I do not believe that the Fourteenth Amendment requires us to accept that fate.
Neither its history nor our past cases lend support to the conclusion that a university may not remedy the cumulative effects of society's discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors in this country.
The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups.
It's not merely the history of slavery alone, but also that a whole people were marked as inferior by the law and that mark has endured.
The dream of America as great melting pot has not been realized for the Negro because of his skin color, he never even made it into the pot.
These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.
In the Civil Rights Cases, this Court wrote that the Negro, emerging from slavery must cease "to be the special favorite of the laws."
We cannot in light of the history of the last century yield to that view.
Had this Court been willing in 1896, in Plessy and Ferguson to hold that the Equal Protection Clause forbids difference in treatment based on race, we would not be faced with this dilemma in 1978.
We must remember, however, that the principle that the "Constitution is color-blind" appeared only in the dissenting opinion.
The majority of the Court rejected the principle of color blindness, and for the next 60 years, from Plessy to Board of Education, ours was a Nation where, by law, an individual could be given "special" treatment based on the color of his skin.
It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race to making decisions about who will hold the positions of influence, prestige and influence in America.
Far too long, the doors to those positions have been shut to Negroes.
If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him, we must be willing to take steps to open those doors.
I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible.
It has been said that this case involves only the individual, Bakke and nobody else and on the other hand it says it only involves Davis University.
I doubt, however, that there is a computer capable of determining the number of persons and institutions that may be affected by the decision in this case today.
For example, we are told by the Attorney General of the United States that at least 27 federal agencies have adopted regulations, requiring recipients of federal funds to take "affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin."
I cannot even guess the number of state and local governments that have set up similar affirmative-action programs, which may be affected by today's decision.
I for one, fear that we have come full circle.
After the Civil War our Government started several "affirmative action" programs.
This Court in the Civil Rights Cases and Plessy against Ferguson destroyed the movement toward complete equality through affirmative actions and then for almost a century, no action was taken and this non-action was with the tacit approval of the courts.
Then we had Brown versus Eduction and the Congressional Civil Rights Act followed by numerous affirmative-action programs.
But now today, we have this Court again stepping in this time to stop affirmative-action program of the type used by the university of California in doing so I cannot go along.
Warren E. Burger
Thank you, gentlemen.
City of Richmond v. J.A. Croson (1989)
Facts of the case
In 1983, the City Council of Richmond, Virginia adopted regulations that required companies awarded city construction contracts to subcontract 30 percent of their business to minority business enterprises. The J.A. Croson Company, which lost its contract because of the 30 percent set-aside, brought suit against the city.
Question
Did the Richmond law violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion
In a 6-to-3 decision, the Court held that "generalized assertions" of past racial discrimination could not justify "rigid" racial quotas for the awarding of public contracts. Justice O'Connor's opinion noted that the 30 percent quota could not be tied to "any injury suffered by anyone," and was an impermissible employment of a suspect classification. O'Connor further held that allowing claims of past discrimination to serve as the basis for racial quotas would actually subvert constitutional values: "The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs."
Metro Broadcasting, Inc. v. Federal Communications Commission (1990)
Facts of the case
This case challenged the constitutionality of two minority preference policies of the Federal Communications Commission. Under the first policy challenged by Metro Broadcasting, Inc., minority applicants for broadcast licenses were given preference if all other relevant factors were roughly equal. The second policy, known as the "distress sale," was challenged by Shurberg Broadcasting of Hartford Inc. This policy allowed broadcasters in danger of losing their licenses to sell their stations to minority buyers before the FCC formally ruled on the viability of the troubled stations. This case was decided together with Astroline Communications Co. v. Shurberg Broadcasting, in which Faith Center Inc. made a "distress sale" of its television license to a minority outfit owned by Astroline. Shurberg, a non-minority applicant for a similar license, challenged the FCC's approval of Faith Center's sale to Astroline.
Question
Did the FCC's minority preference policies violate the equal protection component of the Fifth Amendment?
Conclusion
No. The Court, in a 5-to-4 decision, held that the FCC's minority preference policies were constitutional because they provided appropriate remedies for discrimination victims and were aimed at the advancement of legitimate congressional objectives for program diversity. The FCC's minority preference policies were closely related to, and substantially advanced, Congress's legitimate interest in affording the public a diverse array of programming options. The availability of program diversity serves the entire viewing and listening public, not just minorities, and is therefore consistent with First Amendment values. Finally, the Court noted that the FCC's minority preference policy did not unduly burden nonminorities. The FCC did not predetermine the number of distress sales, and could only invoke them in a small number of cases, when no competing bids were filed and the licensee elected to sell at a lower price rather than risk an FCC investigation (see also Adarand Constructors v. Pena).
Adarand Constructors v. Pena (1995)
Facts of the case
Adarand, a contractor specializing in highway guardrail work, submitted the lowest bid as a subcontractor for part of a project funded by the United States Department of Transportation. Under the terms of the federal contract, the prime contractor would receive additional compensation if it hired small businesses controlled by "socially and economically disadvantaged individuals." [The clause declared that "the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities...." Federal law requires such a subcontracting clause in most federal agency contracts]. Another subcontractor, Gonzales Construction Company, was awarded the work. It was certified as a minority business; Adarand was not. The prime contractor would have accepted Adarand's bid had it not been for the additional payment for hiring Gonzales.
Question
Is the presumption of disadvantage based on race alone, and consequent allocation of favored treatment, a discriminatory practice that violates the equal protection principle embodied in the Due Process Clause of the Fifth Amendment?
Conclusion
Yes. Overruling Metro Broadcasting (497 US 547), the Court held that all racial classifications, whether imposed by federal, state, or local authorities, must pass strict scrutiny review. In other words, they "must serve a compelling government interest, and must be narrowly tailored to further that interest." The Court added that compensation programs which are truly based on disadvantage, rather than race, would be evaluated under lower equal protection standards. However, since race is not a sufficient condition for a presumption of disadvantage and the award of favored treatment, all race-based classifications must be judged under the strict scrutiny standard. Moreover, even proof of past injury does not in itself establish the suffering of present or future injury. The Court remanded for a determination of whether the Transportation Department's program satisfied strict scrutiny.
Adarand Constructors, Inc. v. Peña Opinion Announcement - June 12, 1995 Sandra Day O'Connor
The second case, I have to announce comes to us from the United States Court of Appeals for the Tenth Circuit.
The petitioner is Adarand Constructors.
It challenges federal statues and regulations that give firms control by members of certain racial group an advantage in bidding on government contracts.
Adarand claims that the race based presumptions contained in the statutes and regulations violate the guarantee of equal protection contained in Fifth Amendment’s Due Process Clause.
The Districts Court rules in favor of the government.
The United States Court of Appeals for Tenth Circuit affirmed.
In so doing, the Court of Appeals applied a lenient intermediate standard of review to the racial classifications of that issue, relying on our decisions in Fullilove v. Klutznick and Metro Broadcasting, Inc. v. FCC.We granted the petition of Adarand Constructors for certiorari, and we now vacate the Court of Appeals’ judgment and remand the case for further proceedings.
We have long recognized that equal protection of the laws is a personal right, guaranteed by the constitution to every individual.
We have also recognized that laws classifying citizens by race pose an especially grave threat to that right, because in most cases there is no good reason for government, federal or state, to distinguish between citizens on the basis of race.
As we explain in today’s opinion that basic principle of equal protection as a personal right is the basis for a long line for our cases, establishing that all racial classifications are suspect and to be carefully reviewed by courts.
That the standard of review of racial classifications does not change, depending on the race of the effected persons and that equal protection analysis is the same for federal and state governments.
After a 1989 decision in Richmond v. J. A. Croson Co, which held that all state imposed racial classifications must be reviewed under strict scrutiny.
One might have expected that federal racial classifications would be subject to the same strict standard.
In 1990, however, in the case of Metro Broadcasting, Inc. v. FCC, this court held that certain racial classifications enacted by the Federal government were subject only to intermediate scrutiny.
In so doing, the case reopened matters that our precious cases seem to have settled, and we can be underlying principle that equal protection is a personal right applicable to all persons of all races.
We hold today that Metro Broadcasting’s departure from that principle was a mistake of sufficient magnitude that the doctrine of stare decisis does not require adherence to it, and we therefore, overruled Metro Broadcasting.
In so far as it held certain racial classifications to an intermediate standard of review.
Henceforth, the single standard of the strict scrutiny applies to all racial classifications imposed by whatever federal state or local government actor.
We make clear however that the strict scrutiny is not strict in theory, but they hold in fact.
We recognize the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country, and nothing we say today disqualifies government from acting in response to it.
The purpose of strict scrutiny is to afford all racial classifications, a careful and searching review, in order to distinguish legitimate from illegitimate use of race in governmental decision making.
When that careful review shows that a racial classification serves a compelling state interest and is narrowly tailored to further that interest, the classification as constitutional.
Moving then this case for the lower courts to decide in the first instance, whether the program challenged here can be at standard.
The opinion is for the court accepting so far as that might be in consistent with the views expressed in Justice Scalia’s concurring statement, and except for part 3C, which is joined by only two members of the court.
Justice Scalia and Justice Thomas have each filed opinions concurring in part and concurring in the judgment.
Justice Stevens has filed a dissenting opinion in which Justice Ginsburg joins.
Justice Souter has filed a dissenting opinion in which Justices Ginsburg and Breyer join.
Justice Ginsburg has filed a dissenting opinion in which Justice Breyer joins.
Grutter v. Bollinger (2003)
http://www.oyez.org/cases/2000-2009/2002/2002_02_241
Parents Involved in Community Schools v. Seattle School District No. 1 et al. (2007)
http://www.oyez.org/cases/2000-2009/2006/2006_05_908
Ambach v. Norwick (1979)
Facts of the case
Susan Norwick and Tarja Dachinger were both foreign nationals who had resided in the United States for many years and were married to United States citizens. Both were eligible for citizenship, but had refused to apply. Both had applied for certification as public school teachers in New York State. New York law prohibited the certification of non-citizen teachers who had not sought citizenship. Both applications were denied certification solely on that ground. Norwick filed suit in federal district court, which Dachinger later joined. The three-judge district court ruled in their favor, arguing that the statute as "overbroad."
Question
Did the New York statute violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion
No. In a 5-4 opinion, the Court reversed the District Court and held that states could be justified in barring aliens from certain positions in government. Justice Lewis F. Powell's majority opinion asserted the state's interest in charging teachers with "an obligation to promote civic virtues and understanding in their classes, regardless of the subject taught." The statute furthered this interest, in that it affected only non-citizens who did not want to seek citizenship. This interest satisfied the "rational relationship" required by _Foley v. Connelie
Ambach v. Norwick Opinion Announcement - April 17, 1979 Warren E. Burger
Mr. Justice Powell has two opinions which he will announce.
Lewis F. Powell, Jr.
The first is in 76-808, Ambach against Norwick.
This case presents the question whether New York may impose a citizenship requirement upon its public school teachers.
A three-judge District Court in the Southern District of New York held that this requirement excluding the resident aliens violated the Equal Protection Clause of the Fourteenth Amendment.
Although the exclusion of aliens from fields of private employment generally serves no legitimate state interest.
The constitution and our decisions have made clear that states properly may limit participation of aliens in at least certain governmental functions.
Only last term we upheld New York's citizenship requirement with respect to police officers because of the important role of the police function in the exercise of governmental authority.
For essentially the same reasons we think teaching in the public schools also constitutes a governmental function that may be confined to citizens.
Teachers, both through the instruction they give and the example they set shape the basic attitudes of children toward our democratic form of government, the political processes of this country and the obligations of American citizenship.
We think a state rationally may decide that only those persons who have made an unequivocal legal commitment to our form of government through the tie of citizenship should be entrusted with this important responsibility.
Accordingly, we reverse the decision of the court below.
We also note that the resident aliens who brought this suit could have qualified to teach under the New York law by applying for United States citizenship.
They were eligible and free to do this but preferred to retain their citizenship allegiance to other countries.
Mr. Justice Blackmun has filed a dissenting opinion in which Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Stevens have joined.
Plyler v. Doe (1982)
Facts of the case
A revision to the Texas education laws in 1975 allowed the state to withhold from local school districts state funds for educating children of illegal aliens. This case was decided together with Texas v. Certain Named and Unnamed Alien Child.
Question
Did the law violate the Equal Protection Clause of the Fourteenth Amendment?
Conclusion
Yes. The Court reasoned that illegal aliens and their children, though not citizens of the United States or Texas, are people "in any ordinary sense of the term" and, therefore, are afforded Fourteenth Amendment protections. Since the state law severely disadvantaged the children of illegal aliens, by denying them the right to an education, and because Texas could not prove that the regulation was needed to serve a "compelling state interest," the Court struck down the law.
City of Cleburne v. Cleburne Living Center (1985)
Facts of the case
In 1980, Cleburne Living Center, Inc. submitted a permit application to operate a home for the mentally retarded. The city council of Cleburne voted to deny the special use permit, acting pursuant to a municipal zoning ordinance.
Question
Did the denial of the permit violate the Equal Protection rights of Cleburne Living Center, Inc. and its potential residents?
Conclusion
In a unanimous judgment, the Court held that the denial of the special use permit to Cleburne Living Centers, Inc. was premised on an irrational prejudice against the mentally retarded, and hence unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. While the Court declined to grant the mentally retarded the status of a "quasi-suspect class," it nevertheless found that the "rational relation" test for legislative action provided sufficient protection against invidious discrimination.
Bowers v. Hardwick (1986)
Facts of the case
Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari.
Question
Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?
Conclusion
No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.
The Court subsequently overruled this decision in Lawrence v. Texas, 539 U.S. 558 (2003).
Romer v. Evans (1996)
Facts of the case
Colorado voters adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment 2's enforcement. The Colorado Supreme Court affirmed on appeal.
Question
Does Amendment 2 of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the Fourteenth Amendment's Equal Protection Clause?
Conclusion
Yes. In a 6-to-3 decision, the Court held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."
Romer v. Evans Opinion Announcement - May 20, 1996 William H. Rehnquist
The opinion of the Court in No. 94-1039, Romer against Evans will be announced by Justice Kennedy.
Anthony M. Kennedy
I have the opinion for the Court in Romer versus Evans.
The central issue here is an amendment to the Constitution of the State of Colorado.
It is known as Amendment 2 and it was adapted after a State wide referendum in 1992.
The impetus of the Amendment came largely from ordinances that had been past in the Cities of Aspen, Boulder, and Denver banning discrimination in many areas, including housing, employment, public accommodations, and health and welfare services.
The ordinances had barred discrimination on various grounds including sexual orientation.
A limit to repeal the ordinances and forbids their reenactment to the extent that they prohibit discrimination on the basis of and this is a quotation from Amendment 2, “homosexuals, lesbian, or bisexual orientation, conduct, practices or relationships.”
The Amendment also prohibits any other legislative executive or judicial action at the state or local level to give specific legal protection of any sort the homosexuals or bisexual.
After a series of State Court proceedings, the Supreme Court of Colorado found that Amendment 2 violates the United States Constitution.
We granted certiorari.
We now affirm the judgment but on a rationale different from that adapted by the State Supreme Court.
The State's main argument in defense of Amendment 2 is that it put gays and lesbians in the same position as everyone else that is the Amendment only denies homosexuals’ especial rights.
We find this reading of the Amendment implausible in view with interpretation by the State Supreme Court.
Most States now choose to countered discrimination by enacting statutes that identifies certain institutions and business and then specify grounds, they may not use as basis for discrimination, but also did cover the institutions or business for discriminating on the basis of traits including age, military status, marital status, pregnancy, parenthood, custody of the minor child, political affiliation, physical and mental disability and in recent times sexual orientation.
Amendment 2 bars homosexuals from securing protection against the injury that these public accommodation laws address.
It also nullifies specific protection for gays in housing and insurance, health and welfare services, private education and employment, and forbids all laws or policies providing specific protection for gays or lesbians from discrimination by any level of Colorado's Government.
We cannot accept the view that Amendment 2 only deprives homosexuals' special rights.
No matter how local or discreet the harm they may suffer, no matter how public or widespread the injury, they can obtain protection from the laws only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to past helpful laws of general applicability.
The protections that Amendment 2 denies to homosexuals have taken for granted by most people either because they already have them or do no need them.
They have protections against exclusion from an almost limitless number of transactions that constitute ordinary civic life in a free society.
We have held that if a law neither burdens the fundamental right, nor targets a suspect class.
We will uphold the legislative classification so long as it bears a rational relationship to some legitimate end.
Amendment 2 however, fails and indeed defies this conventional inquiry.
First, it is not within our constitutional traditional to enact laws of this sort.
Counter both to the idea or the rule of law into our own constitution's guarantee of equal protection is the principal that government and each of its parts remains open on impartial terms to all who seek its assistance.
A law declaring that in general it should be more difficult for one group of citizens than from all others to seek aid from the government is a denial of equal protection of the laws in the most literal sense.
Second, in addition to the far reaching deficiencies of the Amendment 2 just noted the principles it offends in another sense are conventional and venerable.
A law must bear rational relationship to an illegitimate governmental purpose and Amendment 2 does not.
The primary rationale that State offers for Amendment 2 is Respect for other citizens freedom of association and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality.
Colorado also cites its interest in conserving resources to fight discrimination against other groups.
The breadth of the Amendment is so far removed from these justifications Colorado offers for it that we find it impossible to credit them.
We can not say that Amendment 2 is directed to any identifiable legitimate purpose or discreet objective.
It is a status based enactment divorced from any factual context from which we can discern a relationship to legitimate State interest.
It is a classification of persons undertaken for its own sake something that Equal Protection Clause does not permit.
We must conclude that Amendment 2 classifies homosexual not to further a proper legislative end but to make them unequal to everyone else.
This Colorado cannot do.
A State cannot so deem a class of persons a stranger to its laws.
Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.
Antonin Scalia
I dissent from the judgment of the Court in this case.
Justice Kennedy’s description of the Court’s opinion said that the court found it implausible that the Colorado constitutional provision in question prohibits only special preference.
The opinion does indeed say that it finds it implausible but goes on to say that it accepts for purposes of the court’s decision that that is all that the constitutional provision prohibits special treatment for homosexuals.
I think that is in fact the reality of the matter but whether is it or not the court’s opinion accepts it to be true and my remarks take into account that acceptance.
The only denial of equal treatment, the court contend homosexuals has suffered is this: They may not obtain preferential treatment without amending the State Constitution.
That is to say the principle underlying the court’s opinion is that one who is accorded equal treatment under the laws but cannot as readily as others obtain preferential treatment under the laws has been denied equal protection of the laws.
If merely stating this alleged equal protection violation does not suffice to receive it, our constitutional jurisprudence have achieved terminal silliness.
The central thesis of the court’s reasoning is that any group is denied equal protection when in order to obtain advantage or presumably to avoid or eliminate disadvantage it must have recourse to a more general and hence more difficult level of political decision making than other citizens.
The world has never heard of such a principle and it seems to me most unlikely that any multilevel democracy can possibly function under such a principle.
For whenever a disadvantage is imposed or conferral of the benefit is prohibited, at one of the higher levels of democratic decision making, i.e. by the state legislature rather than local government or by the people at large in the State Constitution rather than by the state legislature, the affected group has under this theory automatically been denied equal protection.
The Court gives the back of its hand to the usual test for compliance with the Equal Protection Clause whether the legislation had a rational basis.
It is unsurprising that the Court avoids discussion of this question since the answer is so obviously yes.
The case most relevant to the issue before us today is not even mentioned in the Court’s opinion.
In Bowers versus Hardwick, decided ten years ago, we held that Constitution does not prohibit what virtually all States had done from the founding of the republic until very recent years namely making homosexual conduct a crime.
That holding is a given in the present case.
Respondents did not urge the overruling of Bowers but obviously if it is constitutionally permissible for a state to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct, and a fortiori it is constitutionally permissible for a State to adapt the provision not even disfavoring homosexual conduct but merely cohabiting all levels of state government from bestowing special protection upon homosexual conduct.
The Court’s opinion contains grim disapproving hints that Coloradans have been guilty of animus or “animosity” toward homosexuality as though that has been established as on America.
Of course it is our moral heritage that one should not hate any human being or class of human beings but I have thought that one could consider certain conduct reprehensible, murder for example or polygamy or even cruelty to animals and could even exhibit animus towards such conduct.
Surely that is the only sort of animus at issue here, moral disapproval of homosexual conduct the same sort of moral disapproval that produce the century’s old laws that we held constitutional in Bowers.
But though Coloradans are as I say entitled to be hostile towards homosexual conduct.
The fact is that the degree of hostility reflected by Amendment 2 is the smallest degree conceivable.
The Court’s portrayal of Coloradans as a society fallen victim to pointless hate-filled gay-bashing is entirely false.
Colorado not only is one of the 25 states that have repealed their antisodomy laws but it was among the first to do so.
But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful.
Often evolution simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens.
Nonetheless, by the time Coloradans who are asked to vote on Amendment 2, three Colorado cities, Aspen, Boulder, and Denver had enacted ordinances that listed sexual orientation as an impermissible ground for discrimination equating the moral disapproval of homosexual conduct with racial or religious bigotry.
The phenomenon had even appeared State wide.
The Governor of Colorado had signed an Executive Order directing all state agency heads to "ensure nondiscrimination in hiring and promotion based on among other things sexual orientation."
I do not mean to be critical of this legislative successes, homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as is the rest of society, but they are subject to be encountered by lawful democratic countermeasures as well and that is where Amendment 2 came in.
It sought to counter both the geographic concentration and the disproportionate single issue voting power of homosexuals by (1) resolving the controversy at the State wide level and (2) making the election a single issue contest for both sides.
It put directly to all the citizens of the State the question should homosexuality be given special protection.
They answered no.
The Court today asserts that this most democratic of procedure is unconstitutional.
Lacking any cases to establish that proposition, the Court simply asserts that is must be unconstitutional because it has never happened before.
It is not the Court says within our constitutional traditional to enact the laws as of this sort.
As I have noted, this is proved false every time a state law prohibiting or disfavoring certain conducts is passed because such a law prevents the adversely affected group whether drug addict or smokers or gun owners or motorcyclists from changing the policy thus established in each of the sub units of the State.
But there is no much closer analogy one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality State wide against the efforts of a geographically concentrated and politically powerful minority to undermine it.
The Constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah, to this date contain provisions stating that polygamy is “forever prohibited.”
Polygamists and those who have a polygamous orientation have been singled out by these provisions for much more severe treatment than merely denial of favored status which is what at issue here, and that treatment can only be changed by achieving amendment of the State Constitution.
The Court’s disposition today suggest that these provisions are unconstitutional and that polygamy must be permitted in these States on a State legislated or perhaps even local option basis unless of course polygamists for some reason have fewer constitutional rights than homosexuals.
The United States Congress by the way required the inclusion of this anti-polygamy provision in the constitutions of Arizona, Idaho, New Mexico, Oklahoma, and Utah, as a condition of their admission to the Union.
The Court’s stern disapproval of animosity towards homosexuality might be compared with what an earlier court said in one of the cases involving those anti-polygamy laws, Murphy versus Ramsey, rejecting a constitutional challenge to United States Statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation.
The court wrote, "Certainly no legislation can be supposed more wholesome and necessary in the founding of a free self governing commonwealth fit to take rank as one of the coordinate states of the Union, than that whcih seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization, the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement."
I would not myself engage in such official praise for heterosexual monogamy because it think it no business of the courts as suppose to the political branches to take sides in this culture war.
But the Court today has done so not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces but even by verbally disparaging as bigotry adherence to traditional latitude.
I vigorously dissent.
My dissent is joined by the Chief Justice and Justice Thomas.
Lawrence v. Texas (2003)
Facts of the case
Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling.
Question
Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?
Conclusion
No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents.
Lawrence v. Texas Opinion Announcement - June 26, 2003 William H. Rehnquist
The opinion of the Court in No. 02-102, Lawrence against Texas will be announced by Justice Kennedy.
Anthony M. Kennedy
The question before the court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.
In Houston, Texas, police officers were dispatched to a private residence in response to a reported weapons disturbance.
The right of the police to enter does not seem to have been questioned at any stage in the case.
Now, the police entered the apartment where one of the petitioners, Joseph Geddes Lawrence resided.
The officers observed Lawrence and other man, Tyron Garner engaging in a sexual act.
Garner is also one of the petitioners here.
Lawrence and Garner were arrested, held in custody overnight, and charged under the Texas Criminal Statute.
The statute punishes certain sexual conduct when committed by persons of the same sex.
The petitioners were convicted and they challenged their convictions under the due process and Equal Protection Clauses of the Constitution.
The Court of Appeals for the Texas Fourteenth District affirmed the conviction.
They had an en banc hearing and it was a divided court.
The majority in the State Court considered Bowers versus Hardwick, the decision issued by our Court in 1986 to control the federal due process aspect of this dispute.
We granted certiorari to consider the constitutional claims presented including the question whether Bowers versus Hardwick should be overruled.
We conclude this case shoed be resolved by determining whether the petitioners were free as adults to engage in this private conduct in the exercise of their liberty under the due process clause of the Fourteenth Amendment, and for this inquiry, we deem it necessary to revisit this Court’s holding in Bowers.
Bowers versus Hardwick had some factual similarities to this case.
There too, a police officer observed the petitioner in his own bedroom engaging in intimate sexual conduct with another man, as in the instant case, the defendants in Bowers were adults at the time of the alleged offense and their conduct was consensual.
The Bowers court rejected the petitioner’s claims under the Due Process Clause.
The Bowers court began its discussion as follows: It said, the issue presented is whether the federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence, invalidates the laws of the many states that still make such conduct illegal and have done so for a very long time.
That statement in our view discloses Bowers failure to appreciate the extent of the liberty at stake.
To say the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim put forward, just as it would demean a married couple or to be said that marriage is simply about the right to have sexual intercourse.
The laws involved in Bowers and here are to be sure statutes that do prohibit a particular sexual act.
Their penalties and purposes though have more far-reaching consequences touching upon the most private human conducts, sexual behavior and in the most private of places, the home.
The statutes seek to control a personal relationship that is within the liberty of persons to choose without being punished as criminals.
Now, In academic writings, some of which are referred to in the opinions and in many of the amicus briefs filed in this case, there are criticisms of the historical premises that were relied upon by the majority and in other concurring opinions in Bowers.
We need not enter this debate to reach a definitive historical judgment.
It should be noted, however, that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter.
Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.
A substantial number of prosecutions for which there are records were for predatory acts against those who could not or did not consent as in the case of a minor.
The history relied upon in Bowers is more complex than the majority and concurring opinions in that case indicate.
The historical premises are not without doubt.
At the very least, they are overstated.
Now, It must be acknowledged that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral.
The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.
To many persons, these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.
These considerations do not answer the question before us however.
The issue is whether the majority may use the power of the state to enforce those views on the whole society.
Our obligation is to define the liberty of all, not to mandate our own moral code.
In all events, we think that our laws and traditions in the past half century are of most relevance here.
These show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.
We discuss in the opinion as part of that emerging awareness, the legislative determinations in some of the states to repeal laws prohibiting private consensual conduct between adults, and we cite the same policy and provisions of the model penal code promulgated by the American Law Institute.
Many of these changes already had taken place when Bowers was decided.
Then Chief Justice Burger was one of the five Justices in the Bowers majority.
He filed a separate opinion and there he made sweeping references to the history of western civilization and to Christian moral and ethical standards.
That, however, did not take account of authorities pointing in an opposite direction including the decision of the European Court of Human Rights in a case called Dudgeon versus Unite Kingdom.
That decision with facts like Bowers and the instnat case held that laws prescribing this sort of conduct are invalid under the European Convention on Human Rights.
In today’s opinion, we discuss some of the cases decided before Bowers.
These precedents including Griswold versus Connecticut, Eisenstadt versus Baird, Roe versus Wade, and Carey versus Population Services all limited the government’s authority to enter the most private aspect of the lives of individuals.
The holding of Bowers is inconsistent with the teaching of these cases.
Two principal cases decided after Bowers cast this holding into even further doubt.
These are Planned Parenthood versus Casey and Romer versus Evans.
Romer versus Evans was a case decided under the Equal Protection Clause.
There may be a tenable argument of the guarantee of equal protection renders that Texas Statute unconstitutional, but it is our view that the instant case requires us to address whether Bowers itself has continuing validity.
We conclude the rational of Bowers does not withstand careful analysis.
Bowers was not correct when it was decided and it is not correct today.
It ought not to remain binding precedent.
Bowers versus Hardwick should be and now, is overruled.
The present case does not involve minors.
It does not involve persons who might be injured or coerced or who were situated in relationships where consent might not easily be refused; it does not involve public conduct or prostitution; it does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
The case does involve two adults who with full and mutual consent from each other engaged in sexual practices common to a homosexual lifestyle.
The petitioners are entitled to respect for their private lives.
The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.
Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter.
Had those who drew and ratified the Due Processes Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific.
They did not presume to have this insight.
They knew times can blind us to certain truths and later generations can see that laws once thought necessary improper in fact, serve only to oppress.
As the Constitution endures, persons in every generation can invoke its principles and their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed.
Justice O’Connor has filed an opinion concurring in the judgment; Justice Scalia has filed a dissenting opinion in which the Chief Justice and Justice Thomas joined; Justice Thomas has also filed a separate dissenting opinion.
Antonin Scalia
My dissenting opinion responds to the particular legal points made by the Court.
I would like to summarize here just a few general considerations.
The Texas Statute at issue here, undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are, as the court says, “immoral and unacceptable”.
That is the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.
Bowers held that this was a legitimate state interest preventing sexual behavior that the society believed immoral and unacceptable.
The Court today reaches the opposite conclusion.
It embraces instead Justice Stevens’ declaration in his Bowers dissent that “the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”.
This effectively decrees the end of all morals legislation.
One of the most revealing statements in today’s opinion is the Court’s warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres”.
It is clear from this that the Court has taken sides in the culture war and in particular, in that battle of the culture war that concerns whether there should be any moral opprobrium attached to homosexual conduct.
For many Americans do not want persons who openly engage in homosexual conduct to be partners in their business, scoutmasters for their children, teachers in their children’s schools, or boarders in their home.
They view this as protecting themselves and their families against a lifestyle they believe to be immoral and destructive.
The Court, however, views it as discrimination which it is the function of our judgments to deter.
So imbued is the Court with the law profession’s anti-anti-homosexual culture that it is seemingly unaware that the attitudes of that culture are not obviously mainstream, that in most states what the Court calls discrimination against those who engage in homosexual acts is perfectly legal, that proposals to ban such discrimination under Title VII have repeatedly been rejected by Congress, that in some cases such discrimination is mandated by federal statue such as the federal statute mandating discharge from the Armed Forces of any service member who engages or intends to engage in homosexual acts, and that in some cases such discrimination is a constitutional right as we have held with regard to the Boy Scouts of America.
Let me be clear that I have nothing against homosexuals or any other group promoting their agenda through normal democratic means.
Social perceptions of sexual and other morality change over time and every group has the right to persuade its fellow citizens that its view of such matters is best, that homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining states that criminalized consensual homosexual acts, but persuading ones fellow citizens is one thing, and imposing ones views in absence of democratic majority will is something else.
What Texas has chosen to do is well within the range of traditional democratic action and its hands should not be stayed through the invention of a brand new constitutional right by a court that is impatient of democratic change.
It is indeed true as the Court’s opinion says that “later generations can see that laws once thought necessary and proper in fact serve only to oppress”, and when that happens, later generations can repeal those laws, but it is the premise of our system that those judgments are to be made by the people and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges need not carry things to their logical conclusion.
The people may feel for example that their disapproval of homosexual conduct is strong enough to disallow homosexual marriage but not strong enough to criminalize private homosexual acts and they can legislate accordingly.
The Court today pretends that it possesses a similar freedom of action so that we need not fear judicial imposition of homosexual marriage as has recently occurred in Canada.
At the end of its opinion, the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons may seek to enter”.
Do not believe it.
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.
If moral disapprobation of homosexual conduct is as the Court says “no legitimate state interest”, and if as the Court says casting aside all pretense at neutrality “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”.
What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising what the court in today’s opinion calls “the liberty protected by the constitution.”
One can believe that this case does not involve the issue of homosexual marriage only if one thinks that principle and logic have nothing to do with the decisions of this Court.
Many will hope that as the Court comfortingly assures us, that is so.
San Antonio Independent School v. Rodriguez (1973)
Facts of the case
In addition to being funded through a state-funded program designed to establish a minimum educational threshold in every school, Texas public elementary and secondary schools rely on local property taxes for supplemental revenue. Rodriguez, acting on behalf of students whose families reside in poor districts, challenged this funding scheme by arguing that it underprivileged such students because their schools lacked the vast property tax base that other districts utilized. The reliance on assessable property, the school districts claimed, caused severe inter-district disparities in per-pupil expenditures.
Question
Did Texas' public education finance system violate the Fourteenth Amendment's Equal Protection Clause by failing to distribute funding equally among its school districts?
Conclusion
No. The Court refused to examine the system with strict scrutiny since there is no fundamental right to education in the Constitution and since the system did not systematically discriminate against all poor people in Texas. Given the similarities between Texas' system and those in other states, it was clear to the Court that the funding scheme was not "so irrational as to be invidiously discriminatory." Justice Powell argued that on the question of wealth and education, "the Equal Protection Clause does not require absolute equality or precisely equal advantages."
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