Civil Rights and Equal Protection

Civil liberties protect individuals from government. Civil rights protect groups from discrimination. They’re related but distinct.

The Equal Protection Clause

The Fourteenth Amendment:

“No State shall… deny to any person within its jurisdiction the equal protection of the laws.”

This doesn’t require identical treatment. It prohibits arbitrary discrimination. The question is always: what classifications are permissible?

Levels of Scrutiny

Courts use different standards depending on what classification is at issue.

Strict Scrutiny

For race, national origin, and religion (suspect classifications):

• Government must show a compelling interest
• The law must be narrowly tailored to achieve that interest
• Laws rarely survive

Intermediate Scrutiny

For sex/gender (quasi-suspect classification):

• Government must show an important interest
• The law must be substantially related to that interest
• Some laws survive, many don’t

Rational Basis

For everything else (age, wealth, disability, etc.):

• Government needs only a legitimate interest
• The law must be rationally related to that interest
• Laws almost always survive

Race and the Constitution

From Slavery to Segregation

The original Constitution accommodated slavery without naming it. The Three-Fifths Clause, Fugitive Slave Clause, and protection of the slave trade until 1808.

The Thirteenth Amendment (1865) abolished slavery. The Fourteenth (1868) guaranteed equal protection. The Fifteenth (1870) protected voting rights regardless of race.

Then came a century of evasion.

Plessy v. Ferguson (1896)

Louisiana law required separate railroad cars for Black and white passengers. The Court upheld it.

“Separate but equal” became constitutional doctrine. States could segregate as long as facilities were (theoretically) equal. In practice, they never were.

Justice Harlan’s dissent: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

Brown v. Board of Education (1954)

Facts: Black children in Topeka, Kansas were required to attend segregated schools.

Constitutional question: Does segregation in public schools violate the Equal Protection Clause?

Holding: Yes. “Separate educational facilities are inherently unequal.”

Reasoning: Chief Justice Warren’s unanimous opinion rejected the premise of Plessy. Segregation generates feelings of inferiority that affect educational opportunity. Even if facilities were physically equal (they weren’t), separation itself is stigmatizing.

Significance: Overruled Plessy. Launched the civil rights revolution. Demonstrated that constitutional meaning can change.

Implementing Brown

Brown II (1955) ordered desegregation “with all deliberate speed.” Many Southern states responded with “massive resistance.”

It took federal troops (Little Rock, 1957), civil rights legislation, and decades of litigation to dismantle segregated schools.

The Civil Rights Movement

Legal victories meant little without political action.

Letter from Birmingham Jail (1963)

Martin Luther King Jr. defended civil disobedience while imprisoned for protesting segregation:

• Unjust laws are no laws at all
• Nonviolent direct action creates “creative tension” that forces negotiation
• “Wait” almost always means “never”
• White moderates who prefer order to justice are more frustrating than outright opponents

King’s letter articulated the moral and strategic logic of nonviolent protest.

Legislative Victories

Civil Rights Act of 1964:

• Title II: Banned discrimination in public accommodations
• Title VII: Banned employment discrimination based on race, color, religion, sex, national origin

Voting Rights Act of 1965:

• Banned literacy tests
• Required federal approval before changing voting rules in covered jurisdictions (preclearance)
• Enabled dramatic increases in Black voter registration

The VRA’s preclearance requirement was struck down in Shelby County v. Holder (2013).

Sex Discrimination

Women weren’t included in the Fourteenth Amendment’s original understanding.

The Path to Intermediate Scrutiny

The Court long upheld sex-based classifications. Women could be barred from practicing law (1873), denied the vote (until 1920), and excluded from various occupations.

Change came gradually. In Craig v. Boren (1976), the Court established intermediate scrutiny for sex classifications.

Oklahoma allowed women to buy 3.2% beer at 18 but required men to wait until 21. The state claimed men were more dangerous drunk drivers. The Court struck down the law: sex classifications require more than stereotypes.

Current Issues

Sexual harassment: Title VII prohibits harassment creating a hostile work environment.

Pregnancy discrimination: Protected since the Pregnancy Discrimination Act of 1978.

Equal pay: The Equal Pay Act (1963) requires equal pay for equal work. Gaps persist.

Affirmative Action

Can government use race to benefit historically disadvantaged groups?

Regents of UC v. Bakke (1978)

UC Davis medical school reserved 16 of 100 seats for minority applicants. Allan Bakke, a white applicant, was rejected despite higher scores than some admitted minority students.

Holding: Racial quotas are unconstitutional, but race can be one factor in a holistic admissions process to achieve diversity.

Justice Powell’s opinion: diversity is a compelling interest because it enriches education for all students.

Students for Fair Admissions v. Harvard (2023)

Overruled Bakke and decades of affirmative action precedent.

Holding: Race-conscious admissions programs at Harvard and UNC violate the Equal Protection Clause.

Reasoning:

• The diversity interest is not sufficiently “measurable”
• Race-conscious programs must have endpoints; these don’t
• Students should be treated as individuals, not representatives of racial groups

Universities can no longer consider race as a factor in admissions.

Other Equal Protection Issues

Sexual Orientation

Obergefell v. Hodges (2015): Same-sex couples have a constitutional right to marry. The decision combined due process and equal protection reasoning.

The level of scrutiny for sexual orientation remains unsettled.

Voting Rights

Equal protection prohibits voting discrimination, but the Court has upheld voter ID laws, limited the Voting Rights Act, and rejected most partisan gerrymandering challenges.

Shelby County v. Holder (2013): Struck down the VRA’s coverage formula, effectively ending preclearance.

The Takeaway

Equal protection jurisprudence asks: when can government treat people differently?

Understanding civil rights means understanding:

• The three levels of scrutiny
• Brown’s overruling of Plessy
• The civil rights movement’s combination of legal and political strategies
• The rise and (partial) fall of affirmative action
• Ongoing debates about equality and discrimination

The Constitution’s promise of equality has always exceeded its delivery. Narrowing that gap is the work of civil rights law.