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BAKKE'S FATE
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Akhil Reed Amar" andNe~I.K~~ Katyal""
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A. Adarand (At First) ;..•.....••........•... :..................
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E. Metro Broadcasting-·.··:·. .•• 'c .'••••••• ',' ••.: ••••••••••• .' •••• ,. , 1759
F.. Ad4T"nd (Again) : .•. ;... : .... ".; ,'. ,:, , .. , ... : ..•• ,:.... 1767
II. POUCY: AND STRUCTURE ••• ~ •• , , , • , ••• , . . . . . :. , •.....•., , : , , ,.. 1771
A. Quotas Versus Pluses' ....' .... , ." .. , • , • , •. ,', .•• , •.... " ..•...', • . 1772
5, Demo.:ratic Diversity iri Education'. ,' ...•....... '. , : . , , ... : .... J 773
CONCUlSION ,;, ' .
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INTRODucnON
.Bakke>
it seem.s, now hanis by a thread.Wiilthe :thread hold?
Should it? To answer these questions;' we must reconsider vario~ possible
ineanings of"the ·concept· ~f "affirmative action, ,i a phrase that' today con;
'jures up images ofeverything from set-asides for govemmen~ contractors to
.diyersity programs for, ~nege students, In this ,Article, we propose that
, these two .particular (:!omains be/analyzed separately.l , In the former, affir
mative, action guarantees minority firm.s .. a piece of the action» ,iii gettiryg
govemmerit:business. ;In the liiltter, affirmative action brings young adults .
from diverse bacligrounds together 'into a, democratic dial~gue where they:
wilrlearn' from each other.
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• 'Southmayd'Professor of Law, Yale Law School.
•• La., Clerk, Han. Guido Calab",si, U.S. Court of APpeau for the Second Circuit. This
. Article derive> from a UCLA symp'osium on affltmative action, held on March 2; 1996. For helpful
co.mmenlJ, we thankvil!am Amar, lan,Ayres, lack Balkin, Alan Brownstein, liin Chen. Owen,
Fiss, lames Fonnan. Paul Ce.,un, Joe aold.tein,:Leslie Hakala. Erex KallI, Ken Karst, Jeff Rosen,
Kathy Ruemmler, Larry Tribe. Rebecca Tushnet, and ,Eugene Vol£1kh.
'
.1. . Regents of the Univ. of CaLv. Bakke, 438 U.S. 265 (1978),
. 2.. Cf. MICHAEL WAI..l'.EIt, SPHERES Of JUSTICE (1983)(ldeiltiiying different domalm of life
,governed by. diffecent ordecing princlpl,e».
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43 UCLA LAW 'REVIEW 1745 (1996)
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cases-City of Richmond v, ].A. ,Croscm Co.,JMetrq
Broadcasting, In:c. v: FCC,~ and Adarand, ConstructOrs; Inc., v. Pena',-the
Supreme Court has :saida lot about contracting and, rather little about
education. Energized by these decisionS, some, opponents, of contracting.
sf:t.asides have now set their sights oneducation'al diversity'lirograms. ,But
one.'dm agree with t"'e. reasoning and results of the antl·affirmative ,action
~ontfacting opinions and still share the vision of Bakke: Because our public
universities 'should be places where ,persons from different walks of life and
diverse backgrounds come togetherro talk 'with, 'to learn: from, anq to teach
each.other, each person's unique background and life experience m'ay be
relevant in the,admissio~ proceS~thus, absolute color.blindness, i~ pot
constitutionally required in the education context. In thtfcourkof elabO:
~ating Bakke's 'vision, and pondering Bakke's fate, we shall journey first
. through Supreme eo'urt precedents and then through various policy.bas~d'
and structural arguments about the'importance,of democratic dialogue and
diversity in public universities. 6
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In
a trio.of recent
;."t_,
l. PRECEDENT
A. ,Adarana (At First)
Our exami;;ation begins with the Court's mos't recent' affirmative
action ,cas~, Adara1u:l,1 where a 'white contractor challenged a federal pro
'gram that set aside contractS forminQritY:owned' construction companies ..
The contractor, argued that his bid to install a guardrail on a federal high·
way~wa5 lower than the bid of the 'contract-winning, minority.owned com~'
pany,and that the set-aside thtJs ~iolated his constitutional right to equal
protection of the .laws. The <:::Qurt, by a five-to-four vote,\:alled forscrict
scrutiny anl hinted that the program was, unconstitutional. 8 With Justice
O'Connor Writingfor th,e majority, the c(iurt ovetruled its 1990 qecision in
3.
488 U.S. 469 (1989),
497 U.S. 547 (1990).
5. H5 S. Ct. 2097 (1995).
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6. Because arguments based on the text and history of the Fourteenth Amendment:se.m
"largely lndet.miinate, we do not consider them here at length.' S.. infra text accompanying note
A.
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, 7, ,Ad.rand Consrructors,lnc"v, Pena, 1155, Ct. 2097 (1995).
8., ' Contrary to many ;eports, the Court did not rule that the program was unconstitutional:
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rather, it remanded' the case to a lower court to decide that issue.
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. Bakke?s
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Metro B;oc:i.dcasting,whi~hhad' held ,th~t feder~1 set-asidb should receive
only intermediate scrutiny from the judiciary. 9
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Yet Adaraml said next to nothing about ~. 'In that famous 1978
Case, Allan Bakke, 'il white cahdidakwho had been rejected twice' by U.c.
, Davis Medical School, filed suit contending that the school Yspecial admis
sions p~9giamfor mi'norities was a rigid quota. that excluded, him" on ,the
basis of his race., ,A fractured Court struck down the Dav.is, program but.
,held that Davis :could still use race as a factor in its admissions dedsions. 1O
The' future of Bakke, h~ obvious importance t~ scate colleges and uni\'erSi
ties' acrOSs America: All these schools are directly governed 'by the Supreme
COurt's interPretation of the 'Fourteenth Amendment. lI: And the' Court's
interpretation of the Fourteenth 'Amendment may have a staggering.i~pact
on private colleges ,and universities as well,u , , .
Thus, after ~darand,'a huge question remains: What happens to BcJkkd
Put another way, though'.Adarand said. virtually nothing about education,
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did the Court somehow ~vetr~le Bakke ~ub silentio?
Th~re are different ways to read Adarand. Read one way, tneC'urt
was insisting on "nice neutrality", across the board;:' On this ,view, [he
Court was" saying that the government could ~ever take race into account,
except in narrowly defined remedial, contexts. Adirstgian~e, this reading
might seem compellirig., The Court' laid down a "harsh test: "IAIIl'rndal
claSsifications, imposed by ~hatever federal: state,. or local governmental
actor, must be analyzed by a reviewing court under strict scrutiny. "13 But
other language' reveals the Court' s ~i1willingness to'demand complete r.lce
, neutrality.' As the COurt' later said, "strict scrutiny does take 'relen!\t'
differences'" into account" 14_an, ope,n' rejection 'of race-neutrality ':absdut,
ism. Further" Adarand explicitly: rejected the ,notion that s~ict scrutin\' is .'
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9, Adarand, 1155: Ct. at 2113.
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10. 'Regents of the Univ. of Cal. v;Saldce, 438 U.S. 265, 320 (1978) (opinion of Pow& p.
'11. Some states are" considering the abolition of aU racial preferences. ,The Universi::< "f
California's Regents have' already passed su'ch a ban, though it has not yet lieen iinplemc;::"'.i."
S~. S,' Drummond Ayru Jr., Board DeIaJ. Ban on AffrrrnatWe Aclicn, but Discord Persists. S,Y,
TIMES, Feb. 16, 1996, at A24 (noting delay in Regents' implementation of policy that:the ;:"'..
" :versity toIshalt" not"USC race. religiot:l, sex, color! ethnicity or national origin 'as a criterion t~"" !J.
mission to the university").
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12.' •Title VI of-the 1964 Ovil Rights' Act prohibits schools that receive federal fund. ::'.'c
discriminating on the basis of r,ace. 42 U.S:c. § 2000d (1994)" Because; post-Balli. Title\"; "
to be interpreted iIi line with' the Equal Protection aause, see infra note '54, a reversal oi """",'
may doom all race-consciousdiversity progriims ~ private colleges that' accept fede",l funJs,
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13. Adarand, 115 S. Ct: at 2113.
14. 1d.·
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"stricUn theory, but fanil in fact."ls For example, 'the Court noted'that
affir~ative ac:tion may be justifi~d by the "unhappy p~i;tence of. both cite
practice 'and the lingering 'effects of racial' discrimjnation against minority
groups in this country," 16 Inanother key passage, the Court' pointedly left
, open, the possipility that in applying strict scnitiny jiJdges could se'ek to
distingu'ishbet)veen a race.copscious "No TrespaSsing- sign and a race·
consCiou~ :'welcome mat:"17 ' In .fact, only tW'o. Justices, Thomas and
'Scalia, 'sounded the theme of absolute color-blindness.'" (Scalia was aware
that' he was rejecting the ra,ce·consciousness of 'the majority opinion; he
c:oncurred "except .insofar as jt may be inconsistent with the following:
my view, government can, never have a _' cOmpelling interest' in discriminat
ii)g on the basis of race in .order to 'make up"for past racial discriminatio,n
in the opposite direction.")19
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A differe~~ reading' of AaaTarid could stress iis COntext: government'
contracts for things,Hke guardrails. Th~ Court' was,n~t making wholesale,
social policy in the case;' rather;, it was iritei:pretirig the Fourteenth Amend:
ment in one partLCulai, and particulai"lytr~ubling, s~tting. On this r~ading,
, the' differences' between contracts and education suggest' that AdaTdrui did
not change Bakke. First, many government c~ntracts arehighiy susceptible
t~ fraud, since contracts may be'awarded to "minority" firms where mino~i •.
ties' ;i;e' "owners" on' the books but not in reality, or are present only as
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corpo'rate figureheads. By contrast, the opportunities for shaID and fraud in
education are constrained 'by high school gUid~,nce counselors' and parents,'
, as,well as'~ythe university, whicllhas four years to verify an individual
. applicant's claims abou~ who he is and where;! he comes from,IO In addi·
.. tion, the millions of dollarUhat may be at stake in any given cOntr~ct'can'
be ~ juicyinducement'foi-cOITuption of a more general variety. Moreover,
,a wider range' of people benefits from preferences in education than from •
.contraCting set~asides, which are"notorious for. h~lping . the weU-off'and the,
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15. Id, .. 2117 (quoting Fullilove v. Klutzilick. 448 U.S. 448, 519 (1980) (Marshall, J.,
concurring in Judgment».
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ld.
ld. adll4.
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ld. at 2118-19 (Scalia, J" c.oncurririg in part and concurring in me judgment); id. at .
18.
2119 (Thomas, J., concurring in part 'and concurring in the judgment); ,
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, 19.' ld. at 2118 (Scalia, J., concurring in part and concurring in the judgment).
, 20. .Admittedly, both schemes pose ~orny iSS1,les of prClOf of mInority .titu.: How does'one '
prove that she is really one,eighm black? Should Aleuts,countl :But as w~ shall see. infra, note
131, universitY admissions committees can be much more nuanced in considetinga whOle person,
and, her unique background. man can a contracting set'asideprogram in which' a bureaucrat
requires a 'contractor to check a racial. box on a form. ",
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w,eil.connected}i . How .many' minorities own' 'construction companies?
Als~, contracts are aw~ded to ,people throughout their adult years' and ha""e:
no. logical stopping point short of perpetual proportionality in all sectors of',
, the economy. University educati~n, however"typically occurs early in life
and then ends. Higher education, by making up for educational 'ineqUities
at early stages m,life, can be the ramp up to level playing field-with no
" further affirmatlv~ action-fo~ the rest of one's future: What's more, affir·
mative action m"ay partiaily correct the rac;iat' skew of what are, quite liter-..
'educati~nal, grandfather clauses-the admissions pr~ferenceS ,some
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schools award alumru offspring. u
In the end·thesedifferences may ri~t be entirely convincing; After all,
Allan Bakke and other whites may still feel: vict!mized' by virtue of thei~
race. But, before agreeing With them, 'lYe should stop to ponder the biggest
difference .,of all. Contras;ting· set·asides ' mean that "millori ty firms" win
some projects' and "white firms" do riot; this 'can balkanize the races by
encouraging their ,segregation: Education, in contrast, unites people from
different walks of life. Instead of insular co.rporations performing various '
'~- discrei~ co~tracts in isolatiori,-the "minority firm;" addsthe i:uardrail after' ,
, the ~'white firm" . lays die asphalt-universities draw diverse people into"
spaces. ~here they ~ngle with and learn from each otheT. Set-asides ~an go
"to a 'lYholly unintegrated firtiJ. and therefore do riot always help bring Amer
icans'together,.n Il1tegrated education" on tlie other hand, does noi just'
benefit minorities-It advantages Q1J. students in a distinctive way; by.bring
ing rich and poor, black and white, urban and rural, together to teach and
learn from 'each' other a§ democratic equals.'
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,If a far.flung democratic republic-as diverse-and at time~ divided-as
l~tetwe'r;,tieth"century'AmetiCa is.to survive and flourish, it must cultivate
some 'common ',spaces where citizens. from every comer of.socie~ can come
together to' 'learn 'how others live, how ~thers think, ho.W others feel: If not
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in public uni~ersities. where? If not in young adulthood, when!
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21. St<, e.g.. Evan aahr, FCC Preferrncd: ~u. ~tion'for the Wealthy',.[NSIGfIT MAG.,
Feb. 22, 1993, at 1 (describing how Vernon Jordan, Quincy Jones, O.J. Simpson, and omers may
,benefit from FCC. preferences).
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22. UCLA is apparently one such school. Su, .,g,. Eugene Volokh, DiversiIJ, Rae. as Prorj,
,on<! Religion as Prox" 43 UClA L. REV. 2059, 2068 (1996).'
23. One can argue iliat contracting set-asides might "integrate" 'l'inorities into memiddle
a~d upper classes; but wimout more.mis "integTation" mlght occur wim minorities and whites
living in "separate. but equal" segregated· middle-class neighborhOOds, wonhipping.in separate
churches, working in separare jobs, and never coming togemer in common citizenship .. Educa
tional divetsity. don,night, is inhereiuly integrating. Su infra text accompanying notes 134-148.
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,Bakke 's, Fate , .
43VCLALAW IhVlEW,l745 (l99~)
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This vision of university diversity, we submit, is the heart andsotll of
In that case, .four Justices (Brennan, Blackinun, MarShall, ana
.white), said' the Davis plan was,coristftu't'ionalY Four J~stices (B~rger,
Rehnquist, Stev~ns, and Stewart) 'said it violated Title VI of the 1964 Civil
Rights Act. 25 And one'Justice (Powell) hc;Jd, that the partiCular DaJis
scheme, at issue was ,unconstitutional; but that ,other affhmative action
plans baSed on diversity ~ere notY ,'One certainty emerged from dlespli~
te~ed Court: Five Justices"':'the Brennal} Four and Ju~tice Powell~signed on
,to: Part V,C ~of Justice Powell's opinion,which in'its entirety reaas as
foll~ws:'"
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, Bakke.
In enjoining [Davis] from ever considering the .race of anyawli~
, cant,' however, the courts below fui!ed' to recogtl.ize' that the State
has. a su'bstantial inter~t that legitimately ~ay be ~ei:ved by a-prop
erly deVised admissions program:involving the 'cQmpetitive considera
, tion' of race'lmd ethnic origin. 'For this reason, so ,much of the·
California 'court's judgm~nt as enjoins' rDa~i~J from any cOnSider~don
. , of the race of any ~ppiicant must l'ereverSed. 21 . '
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In hi~F~re~ord to the HaTvci~d 1A~ Ritiewthe year, Bakke. was
announced., John· Hart Ely quoted Part V-C and glowed: "T1ltit'is the Opin~ ,
ion of the Court in Bakk2. I'll :take it. :'28, But what, exactly, 'does it mean
to "take" this pack~ge?The Court has attirpes been' ",nciear, .and scholars
. have riot been': entirely forthcoming. Yet; beneath. the confusion lies, a ,
powerful the~rv-anaigumi::nt PUt forth by the'swing vote, Justice lewiS ,',
"PowelL'.,
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. JuStkePowell argued,that the 'benefits of integrated eQ'ucation accrue
to an.students,29 and that some affirmative actfon:to increase diversity was
'therefore appropriate. The goaL of "a diverse 'student bOdy."he said"
"clearly is a constitutionally permissible goal fo~ ,~institution o(highei
education;. '.' [lJt· is not too much to'say that 'the n'ation's future depends
~pon leaders "trained - through wide exposure' to' the, ideasandmores.of
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24. Regents of the Univ,of CaLv.Bakke.438 U.S. 265, 324 (1978) (Brennan. White.,
Marshall. &. Blad,mun;Jj., 'conc!IITing in the judgmeiu in part' and dissenting in part). "
25. ' Id. at 408 (Stevens. j., concurring in the judgment in part and'dissentirig in part).
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26. Id.adI5-20 (opil\ion of Po,:,"ell, j.r. .
27. Id. ai 320.'
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28. john 1-'- Ely; The Supr~ eaurt, 1977 Tm>'i-Fortword: On Disc01JeTing Furidammial.
Valuis, 92 HARv, L. REV. 5. 10 n.33 (1978).: ' '.
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29. : \ Baklc£.,438 U.S: .at 323 (appendix to opinion of Powell, J.);
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stlidents as diverse ~s this Nation 'of many peoples. "30' 'bive!'Sityvi~ not"
ho\yever,:a rpagiclil phrase that a university couldlncant wht;rie~er it found
itself in trouble. 'After alL;-' Justice Powell sided with: Allan Bakke and
'struck down the Davis pr9gram: . The Justice wrote that the progcim's:
•"fatal flaw" was "its. disregard of indivioual rights" betaUse .. lilt tellsappli;
cants who are not Negro, Asian: or Chicano that they are' totally excluded
, from'a.specific percentage of the' ~eats.in an 'entering class"ll-in short, it ,
:was a rigid 'set-~ide;' ' : .
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Justice Pow~ll madethre~' big pointS in Bakke. 'Fir~t. diversity'may
eriable 'an educationalaffinnative action program to pass C?nstitutioI\3l
muster because· democratic and dialogic;educational benefits accrue' to all
students. To the Jus!ice, such ractal considerations w~re' appropriate when.
Aor ~xafuple, blacks would not'otherWise be admitted in sufficient numbers
"to bring to their 'classmates and to each other the variety ofpoints of view,
'back'groun:ds and experien~es of blacks, in the Uriiied States. "32 ~ Second, a
uhiverSity co-uld not use a.striCt quota ora rigid seNiside in an atteIIlPtto
enhan~ediversity: It must:look'instead to the ~hole person. These two
points led'Justice Powell to attach anappe~dix (0 his opinioQ that d~tailed
the' Harvard College Admissions' Program. The Harvard, program did, not
.' use quotas, but' permitted, race to "tip the balance" in some cases because
"diversity adds an essential ingredient to the ed~cationalprocess. "33';
The' Hai:vard plah also satisfied ,a thii:daspect,:of J~tice Powell's'
'visi~n~ari interest in,nonracial diversity. He believ~;that theBavispl~
~as.unconstit~tional beca~se "[n]o,matter h~w strong their qualifications,
quantitative and extracurricular. in~luding their
potential for cOntribu
tion to educationa'l diversity.[~onminority studentS] are never afforded the,
'chance to, comp~te wiih applicants frofu the' preferred groups for the' speci~l
admissions seats...•34 , Earlier in his opinion. JustiCe Powell had declared
that ,"[i:)he diversity that furthers(a compelling state intc:~est enComp~ses a'
far broader ,array 'of qualifications and characteristics of which, racial\ or
ethnic origin is but ~ single though important dement" and thatthe Davis'
progi-am,' "focused sqlelyon ethnic diversity, wo~ld hinder rather than:'
further attainrpe~t ,ci genuine diverslty>'35 ' In the Harvard pr~, by con- '
(op~ion
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30. Id. at 3i 1-1-3
of Powell.).)
v. Boaro. of RegentS, 385 U.S,
589. 603 (1967». ,
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33,,' 'ld. at 322, 323.
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35. Id. ,at 315:
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trast, '",al farm ,boy from Idaho can bring something to Harvard College
that a Bostonian cannot offer. Similarly, a black student can usually bring
something that white person'can:not offer. "36
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J~stice Powell~s three argumeri~s,are tightly intermeshed. One reason
,that a university must not use a rigid quota is'that doing so' could h:ad the
school to admit hnqualifi~ minorities who would ~ndermine' the schOol's
. educational nii~ion. ' Racial qUOtas, could also hamper 'the ~iversity's '
, ability to admit nonradaUy diverse studentsY A~d one reason thatnonra
ciaLdiversity was so 'important was to ensure that a.Il students' would be,
exposed to people different from themSelves-African Americans who grew
up in thdnner-city, white farm boys from'Idaho, and every permimition in
be~ee~. Justice Powell stressed this point in a key footnote quoting the
,President 'of Princeton Univers'ity:
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{AI gr~at deal of leamingoccurs informally, 'It occurs through it;tter-'
, actions. among ,students of both sexes; o( different, races,:religions,
and backgrounds; who come from' .
cities I and'rural areas, from various
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, states ana countries; who, have:a wide variety of int~rests, talents,
, ,and perspectives; ima who are .able, directly or .indirectly, to lellPl
'from their'differences:and to stimulate one another to, reexamine
even' their most ;;Ieeply held assumptions abdut themselves and theri'
world. 3~,
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,IT]he cei1tr~1 meaning of toda~'s op'i~iOns {is thatl Govem:ment 'may
take race into -account when' it acts not to demean: or i~~lt any
, racijlgroup, but t~ remedy disadvantag'es' ..•.
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, .. '. Since we !;onc1udethat the affirmat!ve,adirussions program at
the Davis Medical School is constitutional, we would reverse, the,
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~ Their' opinion,contained the following:'
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,'Did the four Justiceswhi{went along with Justice PoweU's Part V-C in
36, 'Id. at 316 (quoting id. af 323 (appei.dtx to opinion of Powell. J
, 37. In Powell's words:
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The file of :i particular black applicant may be examined for his potential contribution to
diversity without the factor of race being decisive whe'; compared, for exampie; with that
~f an apj)licant identified as an Italian·American if the latter is thought to exhibit quali.
ties more likely to promote beneficial educational pluralism. Such qualities could 'include
exceptional personal'talents, unique work or service experience, leadership 'p(nendal,
,maturity, demonstrated compassion. a histoty of overcoming disadvantage', ability to
Communi~'at,e with the poor, or other qualificationsdeemed,appropriate.
ld. adl7.
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38•. ld.'at 312-13 nAS'(alteration in original).
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They then dropped this footnote: "We ,also agree 'With U
ustice Po~elIi' thai
apl~n like the 'Harvard' plan is cOnStituti011al under our approach, at least .
so long as the use of race to achieve an integrated student body is necessi
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,tated by the lingeCring effects of past discrimination."4O '
There are· twO ways to read all this. The first is thatchis "approach" ~ ,
permits Haivard-sryle affirmative action'only "so longas"it ~emediesthe
effects' of past discriminati9n. ' The' four Justieesarticulated' a, test tnat
str~ssed remedies for past discriminationWand then ,eJ!:plained 'how the
,Davis,plan
th!s test. 41
"
",
".',
"
But, ,if anything, the Brennan Four's test' w~s more perm:issive'thail
Powell's. 1be Brennan FoUr said more than their. Harvard foOtnote,':They
'spoke the l~gi,!age of , diversity as
,arguing that' the Davis program
"does not, for example; establiskt an'exclusive preserve fcir minority students'
apa~t {ram' andexdusive of whites. Rather, its purpose is to overcome ,the
effects' of segl'~gition by bringing the races tog!ither,"4L This language, com
bined witp the caveat "at least" iri their Harvard footnote; supports the
diversity, argument; the Brennan Four.' argued that affirmative action in
education "bring[sJ the races together" into "an integrated student' body"
,al).d that trus feature justified even'the rigid Davis program. +I As the most
recent Foreword to the Ha",a~d .Law Review, writt~n by G:harles Fried,
suggests, "it may not be wrong to say that the 'difference between Powell
. Bakke also embra~e the diversity theorY iI:l which' that Paitwas nested?
-.:,
judgmencbelow in all respects. [Mr. Justice Powell)'agrees that'sonie
,uses of race, in univer;icy admissions are pennissible' md" th~efore;'
'he joins wit/1 us to, make! five votes' reversing the judgment below
insofar as it prohibits the University from establishing.race~c,onsciotis
',programs in the future.}9
'
"
I,
39. ld. at 324-26' (Brennan, WNte. MatSllall, &. Blaclcmun. 11., conc~rring in'the judgment'
in part and dissentin:g in part) (citation omitted). This statement was attacked by the Stevens
, ,Four, wno argued that "only a majority can speak for the Court or determine what is the 'central
meaning' of any judgment of the Court," ld. at 408 n.1 (Stevens, J., concurring il1. judgment in '
part and dissenting in p·art).
,' , '
, "
,
40. ld. at 326,n.1 (Brennan, White:MarshaU. &. Blaclcmun, JJ., concurring in'the judgment
in part and dissenting in part) (citation oinitted).
, 41. (d. at 369 (arguing that the "government may adopt race-conscious programs ,if the '
purpose of such program. is to remove the disparate racial inipact· its actions might otherwise
have' and if there is reasOn to, believe that the disparate,impact is itself the product 'of past' d~," ,
(r'iminaCion, whether it5 0)Y1\ or that of society at large 1.
42. ld. at, 371-73 (looking to low percentage of "Negro physicians" in 1970 and 19th- '
century penal sanctions for educating slaves).
"
,
"
43. ld. at 374 (emphasis added).
,
44: These four Justices did not thint.: that the plus/quota diStinction mattered,stating' that,
for ·purposes of constitutional adjudication, there is no difference between the ,two approaches."
rd. at 378.
"
•
"
.
I
,
.
~
�1754
43 UCLA LAW ,REVIEW
p45 '(996)'
13akke's Fate,
a'
'Writing for
plurality, held that the plan violated the Equal Protection
Clause and that the role-moq.el the~ry:,used to fustifY the-p.1an':-based 'on
the' notion. that minority students needed, minority teachers as role
mQdels-"had no logic!!l stopping point."'"! , Unlike the educational diver
sity ,theory, role-modelling could apply in vinually eveiy sector, of life and
the' e<::onomy. and seemed p'remised 0;' segregationist rather than 'integra
tionist'ideology: "carried to 'i~ logical exrreme,d~e-id~a that black students
'are better off with black teachers could lead to the very system the Court.
,
'
rejected in BrOOm v. Board af Edueatiori. h49
':rhus. :Jusdce Powell's repudiati~n of die role-model theoiy in no way
signalled a retreat from Bakke. 'As Justice O'Connor noted in her separate
, concuirence; "[tlhe. goal ~f providing 'role models' dis~ussed .by the courts
b~lciw~should' not be con£used .with the very diffe.rent 'goat of promoting,
racial diversity among the faculty. "5OBmh here andelsewhere in her con- '
currence, justice O~G:>nnor may have tipped her hand abOUt Bakke: Earlier '
in h~r bpinion; ~hestated-dting to Justice Powell's opinion.in Bakke~that
",a sWte interest in the prom9tion of ra::ialdiversity has 'been found suffi- .
dentiy 'compelling,! at least in thi: context ,of higher education, to support
the use of racial considerations in 'furthering that \ . ,
intereSt. "51 She never
,
,theless sided with .thewhite, plaintiffs because t~e. school had not relied in
the courts, below on the "very different" and pOssibly.winning'rati<male of
, promoting diversity,sz "
..
_. ' ,
:.
, Justice Stevens 'also' played ,the div~rsity -card iii., his dissent. He
~ ,
.
,argued:
'
and Bre~an in Bakke'was one of degree ',' .. ~!45. The Brennari Four~s
'hesitation about diversity , insofar, as it existed. may have stemmd' from a
worry that the theory could be, used 'to exclude "overrepresented". but his
torically victimized minorities (caps on Jews or' Asians.' for example).:.,-and to,
make -deaf that the Court's standard could be applied differently in con
t~xts wher~ diversity served to limit the admissio~ of'suc\:l minorities.'
Also.' the "at least" language may have hinted at. temporal limits' on
diversity-based affirmative action: As: university affirmative action achieves
its lorig:ru!' effect of healing racial separat.ion: divisior, discrimination.' and '
inequality in American society. race' will gradually become,irrelevant arid~
like eye color or blood type-will cease to be significant for university
' , . "
'. "
,,'
admission,s." ' . '
Does the diversity vision ,still dwell in the hearts and minds of the'
Justices? No member of the original Bakke Five sits on ttie Court today, '
arid of the fo~r'~dissenters, only 'Chie{J~stice R~hD.quis~ and Justice Stevens
"rel1J.airi. The Supreme .court that decides the future of Bakke in the late
1990s,willlook,very different from the one that decided the original case in
the late 19705. We thus must try to:understand what th~ Justices ha.je said
about affirmative action since.l978. and· whether their decisions cast doubt
on'the Bakke p~inciple. To do this. we shall parsejnoreres:.ent 'cases by'
looking at the Justices individually, with a heaVy empnasis on Justice
O'Conno~, who, we believe, 'may well hold d~e 'f~te of Bakke, in h~r
'ha'nds.46 :
' 'c
,
,,', ' ' '
, "
'
,
"
'
./ , 'Our survey of the post-B~kke. affirmative action~ases will demonSrrate
an important distinction between conaactsand. \
schools.". We want'toper
.
._'
suade readers, that a wall between these twO ,domains exists, and that this
wall'-:'at the base of Bakke-h~ not ~ol\apsed under the v:reight of the vari
'
,ous post-Bakke'contracti'ng cases."
,"
">1
C. Wygant
"1755,
,
'.,
,
In the, context of public education, it is' quite obvious that a
, school board may reasonably conclude that ariintegrated faculty will,
be able to provide ben~fitS to the student body thai: coul~not be
, provided by an all-white, neady all-white, faculty. F~rone of the
, mOst important lessons that the 'AmeriCan' public schoolsteach:is
th~t the diverse ethnic, cultunil, 'and national backgrounds thatha~~
or
,
,
West~t with Wjg~nt "v. Jackson Board afEducation. a 1986 c~e in
which the'Court examined, a school boarq's policy ofretainingminority
teachers over nonminority :teachers in'layoff decisioris.Justic~' Powell, ' '
47
48. ' ld. at 275,(pluralitY opinion). Powell also fou~d it significant that the policy concerned
'layoffs. Id: at 283 (":While hiring goals iinpose a diffuse burden, often foredosing onlY one of
entire burden,of aclrleving racial equalitY on particular
several opportunities, layoffs impose
.
individuals, often resulting'in serious Ciisruption 'of their lives .• (footnotes omitted». '
49. ld, at 267.
'
.
50. ld.at 288 n." (O'Connor,J., concurring in part and concu~ing in thejudgnient). '
51'. Id. at 286 {Citing Regents of the Univ. of CaI..Y. Bakke, 438 U.S: 265. 311-15 (1978)
.
(Opinion of Powell, J.».
' . - ' , ":'
, ,
52. Id. at 288 n.· ("Because this latter goal was not 'urged as such in support of the layoff.
provision before' the Dislrict Court and the Court of Appeals, however, I'd6 not believe it nece.., "
.,
sary to dis<::uss die magri.itudeof that interest or its'applicability in this case.1.
rhe
Charles Fried, Th Supre~ Court, 1994 T~~FOTewOTd;' Re\lolutioiu?, 109 HARv, ~.
'
" '
,-:-,
46. Cf, Susan R. Estl'ich &. Kathleen M. Sullivan: Abortion Polirics: Writing for an Audi;m,e
of OM, 138 U. PA. I:.. REV. 119, 122-23 (1989) (noting that. in 1989, Justice O'Connor held the
'fau: of Roe v. Wade. 410 U.S. 113 (1973), in her hands).'
.
. \;.
.'
47. 476 U.S. 267 0986)~
.
'45.
~ REv. 13,48 (1995).
".
,'.
j
~
:..
, r
�'.
'"
)
.
"
Bakke's Fate
43l,JCLA LAW REVlEW 1745 (1996)
i{;:)-"
~
/,'
H
1757.
ti
"
IIj
~
~ ::ought rog~tJ'tet in our. famous "melting·,pot" do nor identify
, es_~::li diiferences among the human beings that inhabit ,our land.
!: ~ :::~ thing ior a white ~hild, to be taught by a white teacher that
i:ke. beauty, ·is only "skin deep "; it is far·more convincing to
:!.,-~,~ce[hat truth on day-to-day b~is during 'the routine, on
,,:.-:- ';!,afning processY
"
-~~
a
,>
,
on th~ f~cts th~t.diversity brings benefits,
student body, "that "white child[re~j" learn from diverSitY
",ia .
. i~termingling with Q[h~rs ,in an "ongoinglear~ing' pro- '
, c~s. - ::,; :o:",at American schools se;ve a 'vital function when' they bring
Amen::::.;;' ddiffeieni backgrounds "together" in '''i~t~'grated'' settings. 54
-
-\
·
,
·Ste\'ens'.em~hasis
,
.
.
'
I,
.
D.··C"."$."l":
was written the year befo~e ju~tice Kennedy jpiried the Court,
· and tl::e ;=-~:;i6n thus sheds no light on his thinking: We b~gin to under- '
· srand ·.. ·~-:::.~e Kennedy, and the nuanced world of justice O'b:>nn~r, by
e'xaml:--':-+ :.i.e 1989· conrnicting case, City' of RichmoTl{fv. ).A. .CrosOn
Co." :~, .':":15011 , the justices reviewed the constitutionality of Ric~Olld's
5et,a5i;e, ;- _l:'l. -Which reserved thirty percept of the city's contracts for
·minori:-:-:-:.'7i.ed busiriessesj ,in issue waS 'a plumbing contract to install uri
nals a,;.:::Gets in a city jail. . Writillg 'for, the Court, justice 'O'Connor
applie: ,::-:.;:, scrutiny, and fqund that the' city set.asid~ Violated the Equal
.
.
'~~
,"
wro:..;,,,,::.
,
is
.
. 56. Although the pOrtion of her oPinion announcing i,strict scrutiny test, was·t~clu:lically
only a. plurality opinion representing four votes. ill: at 493-96. Justice Scalia's concurrence added.'
in effect, a fifth vote for (at least) strict scrutiny of stare-initiated affirmative action, ill. at 520-28
,(Scalia, J., concurring in the judgment).
' ,
'
57., Id; at 506.'
'
'58. 'Id. at 508,
59. 'Id. '~t 493-94. 497. 506.
'60. Id,c at 510 n.1 (Slevens. J., conc.urring in parr arid concurring in the'judgmenr).
61. Id. at 512 (emphasis added). ' .
' . ' . ."
.
, 62.. O'Donnell cOnstr. OJ. v. DiStrict of Columbia; 963 F.2d 420, 429 (D.C. ,Cir. 1992)
(Ginsburg, J., concurrd.g): .
""
'"
/
•
M~mor<--'- ~:n
\"\:'al,er Dellinger, AssiStant Anomey General. US. Department of Justice, to
Generai:':',=..",:.s 18 (June 28, 1995), reprinted in Daily Lab. Rep. (BNAl So. 125.. at 0-33 (June
" ,
_.
29, 199;,
55, -'-:'; '_ ,5.469 (1989).
• <,
:...
~
.!~r:
~
j
~I!
--;r;"
>.'. .
I 'I
~~
"j
";~
!....
~f
.~I
·not, in' fact,. to remedy past discritrunation"s1-t he . majority-black
.Richmond City Council' w~s fav9ring blacks ~d other minority busi-'
,nesse~~and found that the program, was not "narrowly tailored to remedy
the effectS of pri~r discrimination. "S8 While she quoted diff~rent P2l-'ts of
justice Powell's Bakke ,opihion,s9 diversity was never an issue in ihecase.
Justice Stevens' largely concurred, but wer'lt out of his way t~ suggest·
,that Croson cont;acts-c~~ld be disti~g'uished. from Bak1<e benefits:'
,
, [SJ~'me .race-based policy decisions ma; serve alegiti~te public'
purpose: !.agree. 'of courSe,. that race is so sddom relevant to legisla- .
. ,iivedecisions on how belitto fosterthe pUblic good that .legitimate
'j~stifications for race-based legislation will usually not be~vailabl~.
But unlike the Court, I would not totally discount the legitirria~y of:
. race-based deCisions that may produce, tangible and fully iustifi,ed
future' be~efits. _S~e n.2, infra; see alS? Justice Po~ell's discussion: in
University of California Regents v; Bakke,43& u.s. 265, 311-19
(1978).60
'
Stevens' continued' by emphasizing, the difference between, the contracting
'and education contexts, stating tha~ "the city makes no, claim that'the
public'interest in the efficient perfonnance of its conStrUction contracts will
,be se~ed""y the preference imd that "[tlhis cashs therefore completely,'
unlike 'W,gant, in which'l thought it quite obvious that i:he school bpard" '
had reasonably concluded th~t an.integrated faculty could provide educa~
. tional·benefits to the mtire stUdent body thaHxruldnot be provided by an
all.~hite, ~or 'nearly . all-white, facu'lty;"61 ,(Then-judge Ruth Bader '
GinSburg, while on the D.C Circuit, explicitly endorsed justice Ste~ens'
Croson concurrence and argue.d '~that remedy for. past 'wrong' not the
exclusive basis upon which raci~1 classifications may be justified. ")62
!'
JustiCe Kennedy also concurred, e1oquendysounding the theme 6f race
- neutrality-a theme that Justice Scalia ~lified'il'\ his own~parate C;osOn
(stevens, J., dissenting) (fcomote omined),
Jusr;ce Srevens'5'opinions duririg.the 1970s "'ere considerably more !1ostile
In Bakke, he argued that the DalliS rrogram violated Tide VI of the 1964
.In the wake of Bakke, however; the law is serdediln public schools, Title VI
",::"ethe Fourteenth Amendment protec\>. ,Thererore, to undem,and how Justice
.;;re today., we must' examine.!;is approach to theFourteenth Amendment. SOon,'
after B;;;.;~ :.! l",thored a highly influential dissent in FuUilove \', K1ucnick; 448 U.S. 448, 532
, 098(;) iE:;:-,-!!'..;. J... dissenting). a dissent that became the basis for· the Court'S holding in,
Adara~ : =:! O'Connor's Adarand opinion repeatedly died Justice Sre~'ens's FuJI.i/o". dissent.
,S.. A.;i;;:;::..: '::':::.structors,Inc. v. Pena, 115S:Ct, 2097. 2109,2113,2117 (1995).) But in the
Il-,~ganl wao' one of many steps that Justice Steveru.'rook-in recf~at from his
pO$!-F2:'i<
1910$
1I;!!on.
. 51.-", :,~'-~. justice Stevens hilS been the most forceful advocate on·the Court for non-.
, 'rerr. •.:..:.. C=_-:':,.1tjve aciion'measures. 'He has consistehely argued that affirmative act",m
m..a~= ".:;::: iJ.:nuch sense when ie promotes an intere!>t in crearin.g '3 more indusive and ~
dive:l< ;':';::,,',io[ today and the.future, as when it serves an mteresr in temedying past
"
ii
Prote~tionClause.56 , Sh~ suggested tha~ "perhaps d~e- city's purpose' ~as
>;: •
"
....:'.
/'
I
';
'.
-'.,
.
'
'
�Bakke's Fate
, 43 UCLA LAW REVIEW 1745 (1996)
1758
1759:
/
,/"
concurrence. 61 ,In Justice Kennedy's soaring, worck: "The moral impera
ti~e of ,racial ,neutrality [s' the driving force of the Eqll!lIProtection,
Clau~e ... 64 [n general, we take Justi~eKe~edy's heartfelt Vision her~ as a
,sign of his' strong reluctance to accept diversity as a: justification for t<';lkillg ,
race .into account. He has not directly confronted the issue, but his, pas:.
sionate writings.on race suggest thache is uncomfortable with the notion
that government action should ever binge on a' person's rac~. 65 'Yet per
, haps he may be persu~ded by the many difft;:rences betwe,en the, Harvard
, ahd Richmolld plans; and it remliins to be see'it what will happen whe~ his
, race ne'utrality i~pul~~ confronts his strong affinityJor precedent :ci.d his,
willingness to, examine"thorny race issues on a c:ase.bY·case basis, 'Indeed,
in-Croson itself, Justice Kerinedy carefully trimmed his'sails'to take account
of past, precedent: "[Gliven that a rule of atitom~tic' invalidity for racial,'
prefere~ces in almost evety case.~ould be a significant break with our pre~
cedt;!lts that require a caSe·by·case test, I am not convinced we need adopt
'
"
it at thi~ point."66
63. Crolo;" 488 U.S, 'at 520 (Scalia, j.; concurrmgmthe judgment).
64. It!. at 518 (Kennedy, j., concurring in pact and concurrmg in the judgment).
65: For example, in one of the important voting tights cases decided lastyear"Mi!kr'v,
}ohil;on, Justice Kennedy began his opinion by quoting Jusrlce Powell's'e~hortaiion: "'Racial and
ethnic distinctions'of any sort are inherent!y:suspcct arid.thuicall for the most exacting judicial,
'examinati~n,'" 115 S.-Ct. 2415, 2482 (1995) (quotmg Regents of the'Unlv~ of Cal. v, Baleke,
438 U,S. 265,291 (1918) (opinion of Powell, j.». This principle; Kennedy argued,"obtalns with
equaHorce regardless of the 'race of those burdened or bene'fited by, a particular classification.'''
1£1: (quoting Croson, 488 U.S.'at 494). This, once agam, is the theme ohace neutralitY, See aho
Powers v. Ohio, 499 U.S. :400, 410 (1991) (opmion of:Kennedy, j., 'for the Court).,
'
, It is suggested that no particular stigro,. 'or dishonor results if a ptosecutor uses the'
raw fact of skin 'color to determin~ the objectivity or qualifications of a juror. We ,do not
believe a victim of ;he classification would en'dorse this vi~w;the assumptiortthat no
stigma or dishonor attaches contravenes ,accepteclequal' protection prmciples. 'Race
'cannot be a proxy for determinmg juror bias 'or competence, '
,
"Id,; c/' Edmonson v: Leesville Concrete Co .• ,500 u.s: 614 (1991) (opmion ofKennedy,j., ~or the
CoUrt).
',,'"
_"
'
'./
'
[Dliscriminat!on on the basis of race m selectmg a jury m a civil proceedmg harms, the
excluded juror no less than discrimmation mea crimlnal trial: In either case, ra~e is the
sole reason ,f~rdi:nYin"g the excludedvenireperson' the honor ~ p-;:ivilege of partiel·
pati,!g in our system of justice.
"
Id, (citation omitted).
66. Croson, 488 U.S,
519 (Kennedy, J., concurring-m' part and concurring in "the
judgment).
'
at
E. ,Metro BToadca.!ti'ilg
--:
,t'
We t",m' next to Metro' BrixuJca.sting, Inc.,~. FCC;6.1 where, the ',19'90
Court examin~d the constitutionality of tWo policies adopted by ~he Fed~ral '
CommunicatioQS' Commission. In one policy, the FCC ga~e preferences to
minority.owned finns when it reviewed license applications for n~w radio or
",TV stations: In the.other. the:"distress sale" program; a radio or TV sta
tion-whose licens~ qualifications had ~ome into question could transfer that
license to another, entity before the FCC resolved the matter, if;md only if'
,the transferee was a minority ent~rprise. 'The poliCies tried to blur the'line
'-. betwe(!n e~u~ational'diversity, and contracting; the FCC, 'relying on BalP<e,
claimed that the broadcast preferenc(!s were desif!11ed to ~nsure div~ity in
programming.
_
.
In ,upholding the FCC, poliCies, Justice Brennan's opinion.f6r, the
Court made two crucial moves; First,.iC argued that courts 'should defer to'
, Conw-ess becailse6f Section 50f the Fourteenth.Amendment:and other
conside,rations. 68 Second, it found that' Qingress;~ broadcast policy was
justified because racial preferences enhanced broadcast div~ity. In elab&
rating the second argument,Justice'Brennan tried to plant..himself squarely
on the sh~ulders of Justice Powell:'
,'".
-.
"Against .this background, we ,cOnclude tft~t the interest i~ eri~' '
cing bi~adcastdiversity is. at th~ very least, an im~rtimt gov~n.
mental,' objective and,' is therefore a ;ufficient basis' for: the
'COilunission's minority ownership ~licies. Just as a "divers,e stud~nt"
body" Coi-ttributing to a "'robust exchange of ideas'" is ,a ;'co~titu.
tionally : permissibie goal" on' which, a race~consci6us llniversity
ac!rrlissioris, program' IIJllY be' predicated, Regents 0/ University 0/
Cali/orriia v~ ,Bakke, :438, U.S, 265, '311-313 (1978) (opiriion of
Powell, J.), the diversity ot views arid iriformation on the airwaves
serv,es important First Amendmen~ values. Cf. W,ganLII. Jacbqn ~
Board 0/ Educa,tion, 476 U.S. 267: 314-315 (1986) ([Stevens), J., '
disse{lti~. _The ben~its of such diversity' are not 'limited' to the'
61.' 491 U.S. 541 (1990).
68., Id. at 563.
\,
/
:.,.,..:
,.
�1760
,43 UCLA LAW REVIEW f745 (1996):
memb~rs of minbri~y groups, who gain access to the :!>roaCicasting'
I
'industry by virtue of the mvnership policies; rather' ihe .benefits
red~un:d 'to all men:tbers of rhe viewing and listening, audience. As
'Congress found, "the American public wili benefit oy having access
tl? a wider diversity of. informath:m sources;,'69
'.
Justice Steve~, concurring, found that the' "public interest in broad.
cast diversitY-like the' interest in an integrated poliCe force,diversiry in
the 'composition of a public schooHaculry or d,iversiryin the,student bqdy ,
of a ,professional. school-;-is in my view uriquestionably legitimate. "70 He
, then dropped a', footnote' here: "See Justice P6weU's,opinion announcing
th~ judgmenUn Regents of University of Califamiav. Bakke,. 438 O.S: 265,
311~19·(l,978) . .,7t '
'.'
.'
, .'~, But the, majqriry's !lse. 'If Bakke did not. go unchallenged:-Justice-'
o'Q;imor. flankea by Chief Justice Rehn'quist arid Justices Scalia and
, Kennedy, diss~nted.72 Her:opinion~ay beread to me~ more, hutit is at
least an attack:on the FCC's attempt to so.;tch'Bakke .tocover the broad;
casting sphere, .Early 'In, she stated' that "the ,<:Oristitution provides that
"the Government may not aliocllte benefi~ andb'urdens among individuals'
'l?~ed on the assimipti6n that race orethnidty determines how they act or' '
think. ;>73 Such classifiCations "endorse race-baSed ~easoning and the con-,
cC!ption'of a N~i:ion divided into racial' blocs, thus contributing to,an e~ca, lation of racial hostiliry and conflict. 1174 Ana she went on to attack the
interest jn diversiry:
'
:',.
The interest in increasing the diversity of broadcaSt ~iewpoi~ts is,
clearly not a compelling interest; It is simply too am()rpho~s, toO
insubstantial, and too unrelated to any legitimate basis for employing
racial classifications ... , We have recognized that'racial c1assifica:
tions are so harmful that "[u)nless they are strictly reserved for reme
dial settings. they,may in fact prorriote notions ~f racial inferiority
.' 1mdlead toa politicS of racial hostility." '
.-,
,
~~~~~~~~"
,69., Id: at 567-68 (foomote omitted) (citation omitted).
70.
Id. at 601-02 (Stev:ens"J., concurring) (foomotes omitted).
,"
.
7 L tid, at 602 n.6.
M"
.72. Id. at 602 (O'umnor; J.• dissenting).
,
73. Id.'
74. - Id. at 603 (citing CitY of Richmond v.J,A. Croson Co., 488 U.S. 469. 493-94 (~989».
Bakke's Fate
1761
'
f .
. . . We determined [in Crosonl that a "generaliz~ assertion" of
past discrimination "has no logical stopplng point" and would sup~
port unconStrained u~of race c1assifica[ions: 7!
.
Now tnese are strong \Yords about diversity'. - And some may think" that
, th,ese strong words dopm Bakke. But, read closely, we believe that Justice
. O'Connor's, words can' be confined to the -contracting sphere and the'
. .
"diversity of brOOdcast viewpoints.""
. After all, JustiCe O'Connor both began 3{ld ended her disselltby
, appealing'.ro.precedent., Her first paragraph Claimed that Brennan's defer
,ential approach "finds no support in our cases"76 'and her last substantive
sente~ce excoriated' the majority'~ "break with our precedents. "11
Nowhere in' her opinion 'did Justice O'Connor repudiate Bakke-she only'
~epudiated an 'extension of Bakke beyond the education context. Indeed,
, the ~ourse 'of explaining why ~cut,against the FCC, she thrice expli
cited with approval JUstice' Powell's 'Bakke opinion. 78 What's more,
,'she never disavowed, what she. srud in Wygant, ,and ~e should not 'lightly
assume that lier 'later ~etro Broqd.ca.stiri,g dissent took baclc her :'earlier state
ment sub silentio. In fact, she had gone out of her way in. Croson to Cite
Powell's opinion' in Bakke, and some of her most po~erful language in'
Metro Broa4CastiJ:lg-::-a~out "racial hostiliry" often en:gende~ed 'by I}on
,: remedial ,affirmative action...:..carriefrom the exact passage of her earlier
Croson opinion where ~he cited Powell. 79
'
Indeed, Justice O'Connor's opinion highlighted' five troubierome
,features of affirmative action in the contractirigcase before her, and these
five 'do not apply'straightforwardly to all ~ucational diversity programs:
First,
noted above. she argued, that the FCC's ,theory- 'lacked"a: logical,
stopping point and' se~ed -to push bard toward'strict racial proportional
, representation' in broadcas'ting and elsewhere.eo Second, she pointed out
in:
as
75. Id.·at 612-13 (first alteration ~ original) (quoting 0050,:,.488 U.S. at 493, 498):
76. Id: at 603. '·See also'her statemmt that:modem: equal protection doctrine has recog.
nized only· the remedial interest as compelling, it:!. at 612, a statement that can be read.at face' I
value: as merely describmg past precedent.
'
,
77. Id. ~t631. ,;'
78. 'Id.'at 619, 621, 625.
'
79. Croson, 488 US. at 493-94 (citing Regents ,of theUniv. of Cal. v. Bakke,'438 U.S.
265,298 (1978) (opinion'of Powell,
'80, on stopping points in -education. see/s..p.a text acco'mpanying note 22 and infra text
'
acco'mpanying notes 1 4 2 - 1 4 5 . '
J.».
. ,
(,
"
':
�..
,.'
43 UCLA, LAw REVI~W 1745 (1996)
\7<'<
Bakke:s Fate
rc:
:::.it
C licenses art! "exceptionally valu.able'property" and th~t'''given
:::e ;:ims at stake; :applicants have every incentive'to structure their owner
:rrrangemenuto'prevail in the comparative'process'~81-perhapscreat~
:~ :~e Fossibility of sham and corruption. 52 This concern was .elaborated
:::- J. ',cFar-ate disSent; byJustice Kennedy; who argued thad~e: FCC 'pro-'
'::-J.t':'.s "often are p~rceived as targets for exploitation 'by ~pporrunists who
:q r;:ike advantage 'of-monetary rewards without advancing the stated,'
of minority inclusion:"'8) Justice Kennedy added a pointed footnote
:-,~:~; noting .thatthe beneficiary of the FCC p~licy in' the case at hand was '
" ":':::'lpmy with: a capitalization of $24 million with only 0~e'-min6rity
::1Sti:or who had contributed a paltry '$210)1""
: -- :,
. ~
Third, Justice O'Connor emphasized that diversity of ow~er~hip may
:ranslate in,to diversity of programming.,' Explicitly invoking Justice
?_'wdl's opinion in Bakke, she arguedthat powerful market forces'shape \.
. ;:.... f7.unmin g so that station oymers tend i:o:hav~' only limited control o~e[
:::<" ::irimate form and content ',of their broadcasts. 55 (Her observation that'
, "witer's racial identi'cY often 'haS little to do with the output and 'cow
:!:::' ,'r the broacic'ast has be,en powerfully confirtned by theie~ente~peri
~:'.":~ .;>i the FoxTelevision,network-owned by awhite, with prograrnmiqg
has attracted large' black audiences.)86 . Fourth, JUsi:i~e' O'Connor
:·~:::,.i .the" FCC licensing scheme problem~tic because it operated by <liden
what constitutes' a 'Blackviewpoii:tt,' an '~i~ viewpoint,' an 'Arab
I
;._;.:
ana
By conaast, affirmative' action in education operates on individuals, nor corporations,
"", typicaUY,involve vast su~ of money in anygi~en'case: See supra rext accompany·
,.-.;;i'c,::'" :0-21.
,,'
"
'
. '
'
-'\iura BrOadcasting, 497 U.S. '~t 636 (Kennedy,]., dissenting).
El at 6~6 n.3. Elsewhere in' hls dissent, which was joined by Jusrice Scalia but- ,
:.:",,';~:.;:i\'-'nod;y Jusrice'O'COnnor,JustiCe Kennedy sounded saong themes'of race neuaal
',:-:, 5«. 'q., ill. ar 631-32 (comparing majority opinion t9 ,PlesSY v. Ferguson. 163 U.S. 537,
',,;:';", This is' itself.perhaps,'ievealing of a ~ubtle difference of approach on thls question
.iuS[ices Kennedy,and O'Connor-a difference that' may also be manifesr in Miller v.
::;_:_'-'~' il; S. Ct. 2475 (1995).' Compare supra, note 65 w~h infra text accompanying note 109.
,:.~' :;..-,,'rher key foomote in his ,Merro' Br0adc4sting dissent. Justice Kennedy voiced concern
;:-."": ':<:'_"ling which minorities ,count and who counts as a minority-what we have called the
,,~~,~": - :;.:d "Octoroon" problems. Se. 497 U.S. at 633 n:1 (Kennedy, J.. d~enting); supra note
:: . ;:':r, .,it, <xplanation of h~w the Harvard plan, Sensitively administered. helps allay these
',:=."",,;, ," infra note 131. '.
"
,.'
':. :,;. a£o6! 9 (O'Connor.- J., dissenting) '("This strong link between race and behavior,
when'mediated by market.forces, ~,the assumption that Justice Powell rejected in his
=-;,;,::,"':"~"0i health care service in Bakk<e."). By conaast. an individual student has more conaol
-::-.< •:"ntent" of the views he expresses in classes, cafeterias. dormitories. e,tc. ~
~:. \\'< thank Jim Chen for this r e m i n d e r . '
"
':<"""""
--',
/
,~
1763
',~
_
viewpoint,' and so 'On; determining which viewpoints.are underrepresented;
and then using thai: determination to mandate panicular programmii-tg. "57 "
All' of this sugge~ts' that Justice O'Connor in Metro BToadcasting did
not repudiate Justice O'Connor, in Wygant. And to these four reasons can
be added, a Jifth-'the Harvard plan. Justic~ O'COnnor reserved her most
powerful la~guage for an attack 'on the FCC's "racial clasSifications.... H~r
langllage must be understood in view' ofwhat sh~ meant by that phraSe. To'
us, these' wordscreference her earlier excoriation' of the FCC policies as a
';direct[] equat{ion ofJ race wi~h' belief aI'!d J:)ehavio~, for they establish rac~
as a necessary and, su/ficUmi:, condition [for] securing the, preferel).ce."!iJl
The key words here are '''equation'' and "sufficient"; the Justice was taking
tssuewith the crude view that race is b:Y itself-without ever looking at'the
whole persori-e~ough to' presume' fhatone ,has a certain set of belief~.
Government may ~ot presume that race detenni~s how a person dlinks~or,
acts; but' perhaps this is different from saying that government, may not·
concl~de that race may influence'how a person thinks
that gov'eriunent
m4st be utterly blind to r~cewhen looking at an applicaI'!t as a whole per-,
son. 59 The' kind of wooden "r~cial cl~ifica:ticin"atissue in,:Metro ' ,
~:, ,.\!itTO B;oadcas,ing;497 U.S.at,630 (O'Coru:\oi. J., dissenting),
~:.
.
:'
87. MelTo'Broadcasting. 497 U:S.' at 615 (O'cOnnor, J.; dissent~. This c~ncem ~Iosely
connects to a ,fifth; which we discuss .in d~iail infra text accompanying notes 88-,1 10. By con
aast.,a proper Harvard;style education plan does not assume that there is; say, only one way to be
black. C{. Jim chen, DitJt1'sil)' and Damnation. 43 UaA L. REv.. 1839 (1996). A follower of
,Thomas Sowell or Linda Chavez'or George Will is no 'less authenti~ally black thim an adherent
of Jesse Jackson. JustiCe Powell's Balli Appendix pointedly quoted Harvard's recognition of the
importance of inaa- as well as inter-racial diversity:
~' '
:: The Admissions Committee. with 'only a few places left to fill. might find itself forced to
" choose between A, the child of a successful black physician in a,n academic community
_wid~ promise of superior academic performance, and B; ii black who gi-ew up in an inner
, city ghetto of semi-literate parents, whose academic achievement was lower but who had
demonsaated energy and leadership as well as an apparently abiding interest in black'
power. If a good number of black students much like A but few like B had already been
admitted; the cOmmittee might prefer B; and vice versa. '
'
Regents of the Univ. of Cal. v. Baldee, 438, U.S. 265; 324 (1978) (appendix to the opinion of
Powell. J.). ' , '
" ' ,
,
,88: MelTo BroadcasIing,497 U.s. at 618 (O'Connor, j., dissenting) (emphasis added);'seialso
id, at 615 (condemning "generalizations impermiSsibly equ.cuing race with thoughts and behaVior"
(emphasis added»; ill, at 629 (similarly condemning th'e' "equation of race with behavior and
, ' . ' J,
•
'
thoughts" (emphasis 'added». ' '_
89.. S •• also id:at 618 (attacking notion thac' ~a particular and distinct viewpoint iwres in
certain racial groups' and that "race or ethnicity aIoru:" guarantees diversity (emphasis added)); ill.
at 618-19 (notulg,ri!at,FCC assumes a "particularly strong comilation' of race and behavior" and
condemning this assumed "saong link between race and behavior"}; id. at 619-20 (attacking the
majority's willingness to uphold "equatiOn of race with distinct views" because the "racial general-,
i,ation inevitably'does not apply to certain individuals" (emphasis added)).
'
. \
,,'
�...
\'
Bakkeis Fate
i764
1765
'43 UCLA LAW REVIEW 1745 (1996) "
1
,
r
~
"
:;:"
.:;':,-:'Jlor felt, "may create ~onsiderable tension \l(ith ,the
NatiQn, "'~'.' ,:... ~ commitment to evaluati~g, individuals UPQn ,their
indivic.,:: =,:..-<; Indeed; in the very first sentence' .of her dissent, Justice
O'Co:-..::a '
set the ~tage: ~At,'the h~~t .of the ',ConstitutiQn's
guarar.:!:= :i
;:rotecdQn lies the simple cQmmand that the GQvern-
ment ~:::;: =c ,;::.:;.:~ns as'individuals,nQt as simply CQmpQnents .of a radal,
religi6:.:; '~";' :. ':"..ltiOnal·class. "?I
.
" . i'
.
'Co:-. -,.~: .
]u~tice O'Connor's anaiysis is quite similar to Justice
,::1 3J.kki; ,When the governn:ient looks solely at race and
t:-eca~se of their, skin color, 'it violates equal protec~
.cion,':' ,~..::. ,:0. "ne Qc,casiQn ·she·cites Justice Powell's opinion in
'Bakke :::r~ ~:~:~"";'lng prQPosition:"IRJace-cQnsci6usmeasures~ might be
empl~"::::::
iiversliy .only if race were 'One of m;my aspects of back
groun::: ,,:;~- ;:,::-i, .:onsidered relevant to' achie~ing ,a diverse. studeht '
bQdy. "'0 ~:.~ ;;.=e. this favQrable. citation can., be cQristrued' narrowly-it. '
'5t<itement, and even then perhaps only an argument·
·_··7C-".~_">T It tracks much '.of JusticeO'C:C;nnor's own language.'
j;:-::::, :~-r example, she Writes that "if the FCC 'believes that
':''- 11..-rue .of, their uniqueex'periences will contribute, as '
.
broadcasting, '~he FCC could simply favor applicants' '"
C"'"
:-"-C.~-r~ul1d indicates that they will add, to the diversity '.of
:=~:narirely solely upon suspect c1assifications.,,\l4,
'
R-::;c '::::::; . .:. iustice O'Co'nflor's,Qpinion
the need fQr' 'a
differe:-..: '
" ~p:Qach to education.95 .A college applicatiQnallows
an,
:c:::e :6 look at the views and attItudes of a whole person in
awal: ::.,. '~..l,.:anriQt and the FCC did not. After an admissions
, .office ::-;:~ .;z: ==:.::.::<: pers.onal applicatiQn'file, with,apersQnal statement,
recQm-,-::-,=. 2:':...i die like, it is mucheasierc to tell wh~ther a given
C''';:-
suPPorts
':
applicant will bring diversity' to a uruversity than it is' to tell whether a
CQntractor will sQmeh6w "diversify", thlngs. Put 'another way,' Ju~tice "
O'Connor in MetTo Broadcasting was troubled~by "[tlhe iIIfit of means'to
ends" in the FCC prograin. 96 'In particular, she felt that the FCC's policy
'was "overinclusive" because."lmJany members of a particular radal .or' eth,
.nic group will h~ve nQ interestinadvancing the views the FCC believes to
be undetrlipresenteq.~' and that the PQlicy was ",{mderinclusive"~ecause
"[iJtawardsno prefe~ence tQ disfavored iildividuals whQ may be par~icularly
, well versed in'and, cQmmitted t9' presenting: tnose views. "97 Both, ~nder-'
inclusiveness and, overinclusiveness were,' .of. course, factors that drove
Justice PQwell to strike, do~n thegrQl,Ip-Qriented, Davis plan and tQ support
the individual-fQcused H~ard, one. In short, ,we believe, that, Justice
O'ConnQr's language ,attacked a program in which race was widely equa, ,
ted-categorically'-:with viewpoint, and sufficient. by itSelf, to wi~massive
gove~ent l~gesse.98 Thus; her l;mguage may be inapposite, to Harvard
plan diversity in education.,
'_'
, 1rusdistinction,can explain why, in Wygant, Justice 'O'Connor stated
that "a state 'interest in the promotiQn ofracial diversity has been found
sufficiently •compelling;' at least in the context: .of higher education; to
support the use .of racial considerations in 'furtheiingthat interest. "99, To
J~stice O:Corinor as well as Jusdc~ Powell, the diversityra'tiQnale may hot
be enQugh touphQld qUQtas, and rigid set-asides, but it may be eno~gh to
uphold the use of race as'a "corisuleration" ,or "plus" in adriUssions.
, Justice O'Connor has pursued similar distin;ctions' be~een c1assifica
tiQns and consideratiQns in other cases. In.the'1987 Title VII case';Jo~on
l),
Traruporcation Agency,u:o for example, "she appr.Qved an affirmative
action plan in which gender was used Qruy. as a "'ph~s' factor. "101 She
riQted that if ,"an affirmative action prQglam . .' .autQmaticallY ;md blindly,
96,
96, :::.
,:,i:- :=,=,,,, .JJed),
,
"
9i. :.:. t:~
"
:\,rGm3 Governing Comrn. for
Deferred Annuiry & Def~rred
Comre:""i:iJ::.?..i::;,
463 U.S. 1073,.1083 (1983» (internal quotation marks deleted),
,92.:.!::L
:.''''ell', opinion in Bakkt: featured passages sharply critidzing vario,!s '
,
, 'rypes c,:, ""'-';~,, ~=~Jssag~s that pOwerfully' anticipated much of Justice O'Connor's
langua;;< :: .',~
Sie Bak~, 438 U.S. at 315.:.20 (opinion of Powell; J.).
U.S. at 621 (O'Connor, J., dissenting); ,ee also'id, at 625 (citing
9J. ' -,,'.e::-: '=-:-~.r,
:~;,..: 5,,7' :::t,notioo·that government may not allocate benefiis'''simpL, on the
.o::t;'\"
'
Tax
'
= ':.;,. .;: ", :
=-=.JJ~d).
95, ! "'"'"
like ",:;.
,.= ~.. dissent abo expressed concern that,allegedly'''benign" theories
~ Ot-:Ji:icastrng diversiry could "jUStify limiwitms on,minoriry members'
partic:,~:.r oo·
, see ~"I":
'-=:
2;;tio;' p\'()grams. Id, at 614-'15 (emphasis added). On this concern,
o:.::...--=",,;'~ ::otes 45-50 and infra note,IH.
..
/
97.
Me~ Broadcasting, 497 ,U.S. at 621 (O'Connor, J.• dissenting).
Id, at 621.
, '
'.'
"
,98: Justice Biennan tried to portray the FGC policies as akin to the Harvard plan, with race
as a mere «'plus' to be weighedtogethen"ith all other relevant fact?rs." Id. 'at 557 (opinion'of
, the Court); see also id. at 597 & n.50. Justice ,O'Connor sharply disagreed, noting that one of the
two FCC poliCies was the worst of all "rigid quota[sl"-"a 100% set·aside;"ld, at 630 (O'Connor,
1.: dissenting)., As:to the second FCC polky, she found tliat "[tlhe basi': noruac~ C'riteria are not
'difficult, to 'meet" and that "race is cle~r1y 'the dispOsitive' factor 'in a substantial percentage of
comparative proceedings"-;-perhaps ~overwhell1\ingly the dispostive factor. ""d, at 630-31.'
, 99, Wygant v, JacksOn Bd. of Educ., 476 U.S. 267. 286 (1986) (O'Connor, J., concurring in
part and concurring in the judgment) (citing Regent> of the Univ: of',Cal. 'v. Bakke, 438 U.S.
•
265,311-15 (I 978)(opinion of powell,J.» (emphasis added).
100. 480 U,S. 616 (1987).
.,',
10 I. Id. ~t 656 (C'Conn,or. J:: concurring in the judgment).
.
'
1,
-Z. .'
"t
fl
!.
t
I·
r'. :
!
it!
If
t'
I
"Y:.
/'
,~
if,
,>
F
f'
,I
�~O
43 UCLALA~ REVIEW 17~5 (1996)
1766
promoteS ,those'marginal1yq~alifiea ~andidates falling ~ithin a preferred
,race or gen4er category," the' program would. violate TitleVn.IOI ' Bt:cause
, the facts of Johnson suggested that' the applicant who ~on the 'promotion
"waS ,not selected' solely on rhe basis of her sex;" she voted 'to uphold' the,
plan.tO) The Justice',s views cannot bedisnri~sed because Johnson was a
snitutory case; her. c.oncurrenceexplicitly' stated that '''the, proper initial
iriquiry ip evaluating the legaliry ofal). affirmative action plan by apublic
employer under Title VII is no differentfrom that required b{the Equal
Protection Clause:"\()4, '
"
"
'
,
Two' years later in'heipiurality,~pinion in CrDscm; Justice O'COnnor,
used precise l;m~age in condemning Richmo~d's "rigi~ rule"denyi l1 g','
,whites "tne oPPoirtlnity to compe~e for,:a,fixed percentage'o(public con
tracts based sokly upon. their race."l.~5 Similarly, ih.the1993 voting
rights case'Shaw v.ReTI;o,I06 Justice O'Conn~r, writing fora majority, de
c!at~dit "antithetical to our,system'of representati':e democracy" when "a'
district obviously is 'treated solely toeffecruate the perceived common iriter
ests 'of. one raCial groUp."la) Yet she cushioned her nice neutrality with,
s~fi: language about the permissibility 'oftalCing ra~e into ~onsideration,
noting .that .'~the legislature alwayS is aware of race when'.it drawS district
lines, just.aS .it is aware of ,age; economic status, teligiou~ and political
, persuasii?n, and a variety ,of other demographic factors"and thai: '~{tlhat sort
of race consciousness does not ieadinevitably to'impeimissible race discrim
inatio,n."lc<I ,Again, Justice O'Connor is contendi~g that when race' is
one factor among ffian'{and is not""':'by,itself-a sufficientfacto~; then,tak.
ing race into account may' be constitutional.1bis was also her message in
, the 1995 voting 'rights case, Miller v. Johnscm. l {1} 'In a 'separate concur·
, re~ce(dting: to the page from Shaw with the' above language), shestat~d
that the majority opinion "does not thiowintodoubt ,the vast majority" of
. the districts becau~e "States have drawn the boundaries 'inaccordance with
their customarydistricting ~rinCipies: ... [E]ven though race may welihave
been'considered ,in :the rooiscrictingproceSs."llO, The fifth factor, the con-'
t""··
~,
102.
,103.
,,104.
Id.
Id; (emphasis added).
Id. at 649.
,
'
105. City of Richmond v. J.A. Closen 0:>.; 488 U.S. 469,' 493 (1989) (emphaSis added);
106. , 113 S. Ct.zSlo ( 1 9 9 3 ) . '
.
107. " Id, a~ 2827(emphasis added}.,
108. 1<1. at 2826.,
', ,;
,
'
109. ll~ S. Ct. 2475 (1995).
'110. Id. at 2497 (O'O:>nnor, J., concurring) (emphasis added).
r:.
.....
.(
"
;:".
~
'-,
I
Bakke!s Fate
1767
tl
lx
'-
siderationfciassification distil}ction, therctore, may ,be weighty enough to
produce ~rfifthvotefor Bakke today.
"'
,",
'
, Our readin'g of-the cases' thus shows how JUstice Q'Connor has ,fol.
lowed a.~onsistent (yet nuanced) .approach to affirma~ive !lction ai1d racial
'issues-":'and not die unprincipled, ad hoc jurisprudence that, some of her
b-itics d e t t y . ' ·
. '
,
ft~
"
F. •AdaTand(Again) ,
With,this quick trip through the p(e-AdaTand pre~edents' npwcom'
plete, let us return to' AdaTand itself: 'Whilewe'bClieve' thai. the contracting
, caSes, .in'general, do not say very"'much about education, weno(~ that
'Justices Scalia' and Thom~ have chosen language in AdaTand and elsewh~re
making de~ 'their passionate beli~f' in race neutrality acrois the board:
, Jus~iceThomas v.;rotethat the "governmenpnay not ma,ke distinctipns
the'basis ofrace" an'd declared it "irrelevant- wheth~~ governmen':?s racial
"
dassificatioruare drawn by t~ose who wi~h to oppress a ~ace or by ~hose
"who have a sin<:eredesire to help·those thought 'to be, disadvantaged."1l1
:Justice Scalia offered'up a similar" vision: "In rheeyeso£ government, we'
. 'ar~ju~t one race-here. It'is American. "112 While,neitner Justice has con- '- ,
'fronted diversity, neither haS shoWIl any sign' of ,s~pporting.BaAAe;, :We '
/ strongly susp-ect that, despite the many significarit. differences" in the educa-,
, tion sphere; both Just:'ices will be ,'blinded by the color consciousness of
diversity programs ~d' will vote, to, overrule. Bakke, And we exp~ct that
'·Chief Justice Rehnquist \ViII followthi:ir lead. While he did not join the
rigid ,Scalia;T,homas appioachin Adarand, his independence may reflect,a
a
on
,Ill. ' AdarandConsttuctors, In.:. v.. Pena.1l-S'S. Ct~ 2097, 2119 (1995) (Thomas.l., concur"
ing in parr andconcuning in the jUdgment). '
" .
112: rd. at 21 19. (Scalia, J., concurrmg in part and concurring in the judgment)., This noble
vision would have been more persuasive coming from Justice Scalia had he not'conaadicted it
h,i. dissent in Powers Ohio, .499 U.S. 400, 423-26 (1991) (Scalia, f, dissenting) (argUing
'government prosecutor,s' could ,lawfully scrilce black jurorS thro'ugh the use of race·based petemp·
~tory "hallenges).For criticism o{ Justice Scalia's Pow.,.. approach;see id, at _410 (majority opin;
',lon, per Kennedy, J,).
'
" , '
,
'
, '
'
The suggestion 'mat raciai claSSifications may surviv'e when Visited upon all persons js'no
more 'authoritative today than the c~se which advanced the theorem, Pleuy v. Ferguson,'
163 U.S. 537 (1896). The idea has, no place ,in our modem equal protection jurispru
den'ce. 'It is'axiomatic thaHacialclassificationsdo nOt become legitimate on'the'assump
tion that all personS suffer them in equal degree. : LOlling 1/. Virgi7iia, 388 U.S. I (1967).'
Id:; see alSo Akhil Reed Amar, & Jonathan L. Marcus, Double Jeopardy Law After Rodniy King,
,'95 CoWM. L. REv. I, 50 n.246 (1995).
' ':,.
l'
v:,
II,
�176~
\~.Orry that their. opinions wereto~ broad for i:ne facts in Adarand., William
,f
Rehnquist voted for Alhin, !,\likke once,' and his, writingS' and op!nions reveal
no faith in ,Lewis Powell's diversity theory.
. .'
"
, 'In'hisAda~and dissent, Justice ~tevens once again showed his true
,colors. 'He pointed ou~ that tbe ',decision said nothing about "fostering
diversity", because'the issue was not even '''rem~t~ly presented~'and that ,he
did "not take the Court's opinion to diminish that aspect ,of our decision in
Metro Broadc~tin.!r. "II}' Having earlier sided with Justice StevenS' on the
issue in the 1992 D.C. Circuit O'DonneU case,1I4 Justice Ginsburg uns'ur~
rrisingly:joined his AJarand dissent, and went-on ~oWrite a separate dissent,
~'Oojhed by Justice Breyer) offering a hopeful reading of Justice O'Connor's
majority op ini.on. 1I5", 'Justice ,Souter lik,ewise dissented, and his separate
dissent '(joined by Justices BreY,er and ,Oinsburg), while saying nothing abo,:!t
diversity. rejected- the .idea of strict" race neuqality and extolled the virtues
of precedent;116'
"
But, are ~he Adararyd dissenterS right, in su~esting that Bf!kke lives?
Since AdarQnd overruled Metro Br~tini in parti and Metro,.Bioadcasting ,
relied on Bakke, does this mean that the Court has overruled Bakke? No.
"The Court. we (epeat"ilowhere expli~itly' overrulelB,<#<ke, 'and so; under
~ell established general' principles" it dearly remains binding precedent .for
all 'lower courts, staee and~federaVP Also recall' that Adarand overru'led
! 13. ,-'.darand.~115 S. Ct. at 2127-28 (Stevens. J.. dissenting) (emphasis added).
'114: See supra text accompanying note 62.'
" , '.
115, .-'.darand. 115 S. Ct: at .?134-36 (Ginsburg,L d~enting).
'11'6. ld. at 2131-34 (Souter. J.• dissenting).,
'
117, - ...... this Article was gqing to press, a panel of the Fifth G:ircuit strucle down the aifu:ma
,tWe action program adopted by the University of Texas Law School. Se. Hopwood v. Texas. 78:,
{lJ 931 (;th Cli.).,m!. ckni<!d. 116 S. Ct. 2581(1996). The majority opinion held that "the law
$cl\ool may nor use race as 'i factor in law school admissions" and that "the use of race to achieve
a di"er><! srudent bOdy .. : simply cannot be a state interest compelling enough to meet the steep
standarJ of strict scrutiny.", .ld. at 934.948, Further language in the opinion suggested; however.
'that a s.:hool may enact racial preferences to redress "past ww'ngs at that School." fa. at 952.
Jlcques Wie';e;. Jr., specially concurring. found that the majority's diversity , ,
'•
condusion may well be a defensible extension' of recent Supreme Couf{ precedenr •...
Be that as it may. this position remains an extension of the'law-one that '. , . is both
'0",,1\' broad and unnecessaty, to the dispositionof this' case. , , . ' '
,
:. IIlf Bakke is to be declared dead. the Supre""'; Court, not • three~judge panel of
a c';,uit court. should malee that pronouncement.
'
., ",
'
/J.at963.
,'.
,
,',
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'Th<,. were reasons.. under, Bakke., why the Texas pr6gram~specially prior to,,1994-ma y
h,,'e ~«n unconstiTUtional, see infra note 142. The HopwoOd majority opinion. how"ver, seems
lTOublini: to the ,extent that if reached ou't ~eyond these r~asons to defy Pait v.c of Bakke (curi
ouslv nut'mentioned anywhere 'in Hopwood)-a section that, we repeat. was an opiniOn of the,
c.,~t. ...... Justices Kennedy and O'Connot hay. written for the Court. one thing that a lower
'court c:mno do'is to anticipate an,~verruling of ,an opinion ,of the,Couf{ by distegardingtne
t
JuJ~~
Bakke's Fate
43 UCLA LAW REVlEW 1745 (1996)
"
1769
Metro ,Broadcasting only "(tlo the extel').t" that it "{was} inconsistent" with,
the holding that "strict scrutiny is the proper standard for analysis
all
'racial classifications, whether :imposed by, federal, stitli, 'Or local actors. "118
, While Adarandoverruled one oftne two crucial steps in Metro Broadcasting,
the dt;ference given to,€ongress, it did not passjudgment on the other, the
diversity argument.
"
""
.
Perhaps ,'most important, Adarand teaches us a ,valuable lesson' about
'Justices O'Connor and Kennedy. Justice Kennedy has be«;n a proponent of
. race, neutrality but he has also been a propQnent of precedent. 'So has
Justice O'Connor., Joinea at that point 'only by Justice Kennedy, she care
fully crafted one section of AcIarana in light of her 1992' Que)' opiruon
(coauthored with 'Justices 'Kennedy and Souter), 119 which cautioned
against ov~rruitng hugely important ca,sesaround which major Social expec
'tations have, crystallized. 120 ' CAse)," thus Simultaneously affirmed' Roe II:'
,Wade:,and'overruled more mi~or pOst-Roecascii.' By the Que)" test, Balli is'
like Roe and should stand, ev~n"afte~the ~oie minor Metro Br~dng is
, tossed out. ,On\yJustices O'Connor and Kennedy used this test in Adarand,
. presumably, because Chief Justice RehnquisLa:ndJl!Stices Scalia and Thomas'-'
did not want tejoin anything that cOuld be cOnstrued' as support for Roe.
Yet Justices O'Connor and Kennedy hold the two moSt crucial', votes, as
dramati~edby Que)' andAdarand themsel.ves. Thus, a big "pl,us': fo~ Bakk
is its sodal importance. An entire generation of Americans, has been
schooled under Bakke-style a££i~ative action, with the explicit blessing:
, of-indeed, following a how-to-do-it manu~1 from-:-U.S. Reports. 121 Only
of
opinion., See Rodrigue: de Quijas, v. ShearsoniAmerican Express. Inc .. 490 U.S. 471. 484 (1989)
(Kennedy,'}.) ("If a prece.dent of this Court has direct application in a case, yet appears to rest on',
feasons rejected in some other line of decisio,ns" the [lower courts] should follow the case '!Ihich' '
directly controls, leaving to this Court,the 'prerogative of oveiruling its own decisions. ii Ameri·
can Trucking Ass'ns, Inc. v"Smith; 496 U.S. 167, 180 (1990) (opinion of O'Connor, J., for the
Court) (similar),
.
,
•'
Admittedly; Part V.c presents thorny social",hoice theory,problems it' its,clear ~ommand
state universities may take race into acCount-were seen as resting on two inconsistent theories
'(the diversity theory and tJ:!e remedial theoty). neithe~ of which •.it might be argued, clearly c';m.
'manded a majority of the Bal<.ke Court. ~But surely these'problems cannot be solved simply by
ignoring Part V.c-which is. we repeat,. the holding of Bal<.ke. Se. also ""PTa text accompanying "
notes39-45 (suggesting that the Brennan Four opiniP"!, read c~lly;'did embrace the diversity-'
. '
"
'theory):
,
.
H8,·AdaTand. 115 S. Ct. ai 2113.
119; Planned Parenthood v. Casey, 505'U.S. 833 (1992):
120. Adarand, IJ5 5.0. at 2114-17, (pluralityPl'inion).
,
, ,
, q I. See'Kenneth L: Karst ISo. Harold W. Hoiowill, 1M Balek.. Opinioru and Equal Proteciion
Doctrine. 14 HARv. C.R ..cJ:. 7. 7 (1919); c:f. Cas." 50S-U.S. at 868 (~[N]o' COUtt that brolee its
, faith with the people could sensibly expect credit for principle in the decisiori by which' it did
,tha~,"),
;
of'
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1771
- Bakke's Fate
'43 UCLA LAW.REVIEW 1745 (1996)
1770
'"-,
that-though not invoking Bakk£ by nam~left the door open 'for a reaffir
a.'handful of modern Supreme Court cases are 'now household' words in '
.
mance of Jus'tree Powell's.approach:
Americ~. But Bakke-like Brown and Roe~is sUrely one of them. (And if
Acco~ding toJUSTICESTEVEljS, ou~ viliw of c;hsistency '.·equat~
overruling Bakke \yere also to 'me.an suddenly that all federally funded tin
remedial preferences with invidious discrinunation: ,and ign~res the
,\late schools must tle\lef 'consil:{er race in their ildrnissiofi$, a sl}arp resegrega
difference between "an engine of oppreSsion~ and an effort "to foster
tion of higher education might occur-:--the possible ~ocial upheaval is dither
,eq~~lity in society," or, more colorfully, "between a 'No Trespassing'
'startling'co contemplate.)lZL
. '
'.
sign and a welcome mat."' It does nothing of the kind. , . ~ Ii says
" Thus, we s'ound,a note of caution to thosi:tempted co overread what
nothing about the ultimate validity ~f any particular law; that' det~._ Justices OiConnor and Kennedy may have s~d In their"previous dis'sents.
minatioQ'is the job of the rourt applying 'strict scrutiny.t.za
.
Both, may .write differently, as fifth votes for'the Court, than t~ey ~o when
. If we seek a;;". example of this .brand of ~~ict sc~tiny; h!t' us remember that'
they write for .themselves in dissent. Dissenters, of course, having lost the
Justice Powell's opinion in. Bakk£ itself of cOJD;se explicitly applied.strict:
case at hand, may be tempted to 'let fly loose language ranging far beyond
scrutiny and yet ,endorsed Harvard-style affinn~tive action in education.
the facts bef9re them, language that would, OIJ. more sober reflection', ill-suit'
a majority opinion of the. 9ourt~ We do not deny that Justice O'Connor's
-.
,,:.' (
-~
'II. POLlCY AND STRUCfURE
Metro BrOadcasting dissent does. include strong .language that, read in isola
tion; might: seem to squint against Bakke. (So tOO, JusticePoweU's opinion'
'\
Until n~w, we have simply been asking whether_ Bakke's fate is pr;~r~
in Baklu: itself contains much srrong language that-read in isolation- .
dained by Justice~C:)'Connor's opi~ions in Croson, Met1;o Broadcastir!€, and
might seem to s~uiilt against lilpguage later in hJs own 'Baklu: opinion.)123
Adararul. Our. negative answer naturally prompts us to ask whether Bakk£
But, ih retr~pect; it now seems clear that 'opponents 6f Roe read too much
males. good sense. from. a practical and structural perspective. Such an
into Justice O'Connor's dissent in City of Akron \I. Center for Reproducti\le
" inquiry' is more'· important' her~ than in other. c,onstitutional, coritex~
Hedlth,lHonly to be upset,by'Casey, and that proponen.ts of schooJ prayer
because the text and', hiscorygf the Fourteenth Amendment seem rather
wrongly' extrapolated (rom Justice Kennedy's partial dissent in County of
'open'on the queStion Of affinnative action:', Textually, exactly what does
Allegheny _\I; ACLU m to be upset by.' Lee", \I. WeisrnilnYo. C~iticS of
..' equal protection, require 'against a backdrop of historic racial inequality?
affirmative action' in. education should rememb~r that much of the most.
Histbrically, does the race-consciousness of early bills to help thefreed-.
pOillted anti-affirmativ~' ac~ion language_ from thes,e Justices ,has 'likewise
men-passed,by the sam~ Congresses thatg~ve ~s ~he Thirteeiuh and Four
.-;
,
.
. ."
', '
'appeared.in dissents: m
teef\th ~endments,p~nn1t similar race-C9nscious poliCies o~e hundred
, A close co~parison of Justice O'Connor's dissent in Metro B~ting
ye~ later to eliminate ,the vestiges of a racialcas~e' system?ll9· While text
-and her maj~ty' opinion' in Adararul highlights this difference .in cone.
Although her Mitro Broadcastingdissentco~tains-some sharp language, in
Adararul she went' out of her' way ,to reassure readers' With: words'
-\
......
./
....
'-.
,
:122. SeesU/>Ta note 12.
,
i2L' SteKam& Horowitt,supranote 121, at 8,11.
. , .
'
. 124.' 462 U.S.~416. 452-75 ~1983) (O'<;:OMor, J., dissenting). ,For a similar (and in retro:
.spect, prophetic) warning.against the oveiTeadingpf Akron ~I.r, see Eurich &: SulHvan, supra
note 46.
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.125: 492 U.S. 573. 657 (1989) (KennedY,J,. concurring in judgment in part anddissenting in
part).
'.
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126. 505 U.S. 577 (1992):
'
127: Another clue about a given judge or Justice's leanings on Bakke may. perhaps be teased
oui of his or her 'own .pOlicies in hiring law clerks..Does a particular jurist-as a government
actor-:<onsider applicatiOns in,an absolutely sUict race-blind way? .Or, instead, does the judge",
think about how a clerk with''- particular racial· identity and life expe,rience might have sol'f'ething distinctive to' teach the judge and fello!" clerks! . . ,
'
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,.
>~
128. Adarand, 115 S. Ct. at 2114 (quoting i£i at 2\20. 2121, 2122 (Stevens, J., dissenting»
(citations omitted). For a similar suggestion, see City ofRichmond v, J.A Croson Co., '188 U.S.
469.493 (1!jl89) (plu~a!ity opinion per O·Connor:J.>..'
'_
,_
'
129. Our d.iversity an?lysis:does not focus on any particular race, Of course, the case f<;lr
affirmative action is strongest for blacks. 'where .the . historical arguments for affirrru'tive action
(such as they exiSt) have the most force .. Set Eric Sehnapper: AffiTmlllioie Action.aiuJ. the Legisla;i~';
Hutory oflho Fourte';'thA~I,'71 VA. L. REV,7S3 (1985). But becaus.-all sorts of people
contribute rodiversity, drawing the line at African Americans'will not achieve full diversity. For
an analysis of affirmative action for people of other races, see Paul Brest.& Miranda Oshige,
Afftrn1i1tive Action fOT Whom?, 47 STAN"-L: REv.,8SS (1995).
. .
set-aside scholarships. we do not corui·,
. Because pluses in admissions are quite different
der the implications of our theory 'for minority targeted scholarships. For an examination of th~se ~
. programs, see U.S. GEN.- ACCOUNTINO OFFICE. HIOHER EDUCATION-INFORMATION ON
MINORITY-TAROETED SCHOLMSHIPS (1994).
'.
from
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�43 UCLA LAW REVIEW 1745 (1996)
1ii:
1773
of
~
an::~r. =:a\' nvt the Court
ge~;:::-,,- ;;::-:==.ai a.~.:men[s might.
what to do, however. poli~y, and more ,
" ,
' "
,
\;
;z~.' ",':'er .ail. sound reasons why 'the Court should hesitate to
re;::'.l=
in the poSt-Adarand,era. T6 see-this rnareclearly,
let :.:: ~==-..;,.,-::: :0 tW0 ke\: ways' in, which Harvard-plan affirmative, actian '
di....::~
r:'::n the rigid 'cantractingset:asides struck,down by the
.-::~.
,A.~.' ~;.C.l~ '\~~-sus ?l~es
_,=
I..
Bakke's Fate
"
~_-r:: ~ir.! ~0n,ems quatas versus pluses, ar<ta use Justice'
,
classificatianS' versus consideratians.' Race-based ,
.,•.:-..:...:ien natians '.of what it means to be'diverse; racial
CO::'3-~:- ''('.s. ~\' .:;ntr~t" permit and -indeed requi;e eval~~tian bfa
;e:::..::n., ;::.:::::l.l. i:vnstitutianal standpaint.' the distincti.on between
="---,-,,,__ 'e, ~.;i, .:.::::i-i.:!era!ian ciraws uppn twO separate fairness ideas.
F:::.: •.: :.,:::'.::.;.:i';-:-. :.! unfair to the Allan Bakkes .of the world 'because it
.,1.-'-"-''';':''_'' exci:;;ie; ;,,;:;'em .on theJ:!asis of !heiiskin color. Because of his
~i:'-"';::':(:..-\ib..--: ~::i.ke was !lot even allowed ta compete for sixteen aut
.0;= '
~';':;"~! LI.t. Davis. l30 , Second, classificatians are stigma
t~ :: :-:.;.-r'.=L!. Q.:..otaS create the impression, that minority stude!1ts'are '"
a~ ':o:!'.::::..~
5<!"J[Swho\ly set 3:!ide for ihe!ll and only them, ,an,!.'
rr,::'"
6::-:~~ :i .utvgether different fram other div~sity factors in
'r.n::
~..:
admissions'pracess.:
'
"
.. 'L~ :-i..:e, ,;;; :::: '~onsidet:ai:ion ~ang many, 'however, mirii'mizes
~.~:':-..:'rir.... applicants,are not segregate&' inca a separate
a...,:~"",:l:;; ',"~-"''''''''~:C: wherethefrfiles sit with'each ather and compete
instead., they are treated just like other appli
.i\\'ersiry they may offer ,are assessed ,alo~gside other; ,
\:._,.." :i :':';~::-; \~i ::=::Sictans, Texans, dless players, French speakers, and
~,.: life experience are pasitive attributes-like,gcowing
,
_,,~.-"c,_' :: -:; ::,.~{ther unfair to whites nor stigmatizing to minorities,
~
~
',' _"~,,, -':="'-:!
-:c.~, i'mp<clive, on Bakke; Equal P";'leclion, Pro~edllral Foime.u' or,
5,:-=:."",'='.:: "'-''::":,,, "-~'. 864; 867-:70 (1979),
.
=.;:
~-'= ,x,.:erbates the "Octoroon"' and "Aleut" problems noied earlier,
:"-7.'.
~' :" ''::' :::'...:t !equiring an.application form, with a fixed number of radal
'~:= '::" :.::i:::""- i =::·... 'F'w .ystem need not pigeonhole persons into boxes; Ihe adrnis'
o-=-~ ;=
nliretY of a person:s (perhaps complex) racial and social experi
"'",,"'.'
~",,~-6 ,;i :.'-.e complexitY of "racial identitY,'.ee IAN F. HANEY LOPEZ,
'-";"~ j~'; -::-E ~,.: C;:;S;:,IRUcnON OF RACE (i996); jim,chen, Unw..ing, 80 IaWA L.
:;-,._~: :w
:..=::-...
1
. to ~onsider .these. factors so long as they do not becOm~ the' only or the
dOminant things that admissions committees look at: ll2 , If having a dis-'
tinctive,tacial experience isvi~~ed in. the same ~ay
being bilingual.or a'
good violinist. then' the' Allan Bakke~ of the world may have
easier time .
,understanding the preference.,. ([he bilingu~lanalogy, is•.we submit. a
rathe.. precise one; many-not
but many""':'bIack AnlericanS today must
in effect navigate "bilingually" through black America and white America.)
, If a given minarity ~tudent understands that she is v~lued not because of
what her, ancestors went ,through two centuries "ago, but, rather because .of
~hat she goes through every day, she may feeUes~ stigma an~ m'ore"self
"
,
esteem.
As a practical matter,' admissions coriimittees often inevitably know
somerhingabout the race of an,applicant'bec:;a!lse their goalis to look at a:
whole. p~rson. Just as it is per.missible for . legislatures ta consider their
knowledge about, racial demqgraphics when they creat,e voting districts
because they "always (arel aware of race"l33 in drawing boundaries, it 'may
makesel1Se to permit admissions coinmittees t~ <;onsider what th~y will
know anyway. To demand .otherwise will force admissions coriunittees to
evaluate an applicant without ever understapding wh,o that applicant really'
is. Colleges da nat accept an SAT score and a OPAi theyaccept' a whole
" ,person.
as
i
an
all.
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B. ' , DeID:6cratic [liversity in Educa~ion
-
~
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~.
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~' The cornerstone of our argument 'remains democratic diversity., While
,
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diversjty analogies can'be dr~wn between education and other spheres
(witness the FeGs attempt in Met:roBroadcasting) , we must not)ose sight of
. Justice Powell's 'vision,of the unique democratic value of diversity in educa
, rion-a message sqmetimes' missed by academics. 1.34,. KathleeriSullivan:. for
eXaplple, has written that if race is' "us~as merely one factar in ,the bid
ding process'lfor gove~ment cOntractsl wi thout, a preassigned weight," then
';'/
'
13Z., Thus. as jus;ice P~well said in Bakke,:iffirriiativeaction'rilust not "insulat~ rhe indi~i'
dual from comparison with all other'candidates for the available seats." ,Regents of the Univ, of
Cal. Bakke, '438 U.S. Z65, 317 (I 97S)(opinion of Powell,l.),
.
, \
133,' See supro note lOS and accompanying text:
. 134. " ,And perhaps even by justice:~owell himself. In johnsor.v. Trar1sponation Agency, 480
1),$,616 (1987), the Court;,in an opinion Powell joined, upheld rheSanta Clara CountY Trans· ,
portatlon Agency's affirmative' action plan because it "resembles the'Harvard Plan' approvingly
noted by Uustice Powell] in Regent! of University of California v. Bakke;which considers race along
With other criteria in determinmg admission to the 'college.. '. .' Similarly, the Agency Plan
r~quires w0lX!en to compete with all other qualified' applicants. No persons are automatically
excluded from consideration .... » ld. at 638 (citation omitted):
v.
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:.::..e; - ;;pproach ';ould 'be analogc:;!":o ~ narvilrd9011ege admissions plan "
by Justice Powell."135 B:::
'
takes on·a special meaning in
,c:-.: S):hoo!.' As BrOOk'7l v, Board ,;i ::-':'..--";.:m l'ut it, education is "the very
iC:'-lT'dation of good cii:izenship~ ~ "< pncipal instrument in awakening.
t:-,e [studentl to cultural values.' ;:re:?.r~-..g her for participation al! a
cil equal in' a pluralistdemocrat7,'-'< ~,[oreover, university education typ- ,
jc;<jil.,. 0CCu.."S at a distinctive
ex ::ie-yo~g' ad~lthood-when people
are' particularlY,oren to new ideao •.,·,::;..-i-,en they have a tendency to boqd
, :~ith others. (For similar reasons. ::::.is :oding may also 9ccur in places like
the
and thePeace'Cofj:s.)"- ,
' .
.
In, other' words, muCh of ,::.~ ::0''::: of education' is to teach ' students
how others think and ,to helprr,....,.' =::mtand' different points of view"",to
teach'students how to be sovere:zc. :-:s-.:<insibleand informed citizens in a'
he'ter~gen~us democracy. A~l ~ts students, in large pait, ~o.that
they w"ill,beteacher; to other s'(';Ce-....::;. A!!ain: SAT scores and grades are
,at best a ~de proxy for "a st-",:"'-:".: F ;Ot:nt{al to teach other students
-'often, an applicant's backgroun':,';"": ~eexperience ',I{illalso be vit~l com·
, ponents of this' pote,ntiaI. . if? =-enirr wants to teach people abour
FJance, the uruver;ity, should ,,':""i: ;;:-dentsfrom France; if a liniver;ity'
v.ants to teach l'eople about t±-i! So~ it should admit students from the·
South. The, uruver;iry
,~ diusquite, different from the 'v.eN'
attenuated interaction between :::-,e =:':':::Ority ':oVlner" of.abroadqlSt station
and the' public in M(!t1'o Broc.i:.:.s:i7..l, .and even more' differe~t'from the
largely.nonexistent contact be...--=:-, '';.e'ro.lnority and . nonminority contta~·:
..
;.
rvrny
,t,;·'
rc..:
/
v. ).A. Croson Co.:, TIlt' Backla.sh Against
:~~:<~:l.39(19"").
136, Brown Board of Educ., 3'~
~~.- '93 (1954); see also Bethel 5ch. Dist. NC?. 403
v. Fraser, 478 U.S, 6i5, 681 (19861 ,::;.::q ,~,,,,.::.ad. Lmguage linlcing "public education" to
America's "democratic political syst=' ;;:.:: ";,'-1 that such education should promote "toler,
anee of divergent roliticaland relig'''''' T.!"O"" .'::.:nbacl, v. Norwiclc"HI U;S. 68, 77,(1979) ,
(opinion of the CoUIt', per Powell,).)
'~.:.;...n and then describing "public schools as an '
'assimilative force: bv which dillen.
' e'iements'in our society are brolight wgerher on
a broad but commo;,'ground ... incci:<.~ :,-h-ental nlues necessaty to the maintenance of
a d.emoCTaru: political system" '(qu9 tir4 ~,:,,~; :E70TI, DE~\aCR,"CY Al"D EDUCATION 26 (1929»)
, added)),
, , '
,
.
Kenneth L Karst, TI..e Pun-":: ':: ),,,=,'.:od end rl'..' Desegregation of IhI! Armed FOTCes,
38.UC~A L. REv.. 499. ,
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v,
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>
torS in Croson and Adarand.. ·'Integrated ed~catio~ democraticalfy benefits
students' of allr~ces, including white ,students, by providing a'space for
people o'f all races to grow together. 138 '
"
,Thus; Bakke 'builds' squarely on the rock of Brown. Brown held that "
education was sui generis and d1~n'e~en ifracial,segregation Could be toler·,
'ated in other spheres, the school w'as "different. ReCall ,that" technically,
Brown did,not explicitly' overrule'Pkss], but simply said that the separate~
.but.equal rule had "no"place" "in"the fielci'of publiC educatiop;"1J9 . like
wise, Bakke says that,even if affirmative action is unconstitutional in other
spher~s, schools are differe~t and.l)l~y be able to take race into account to
pring races together: Indeed, the'entire,5tructute of Justice Powell's opin·
ion proclaims that education is special. In Parts N-A, IV~B, and N·Cof
his Bakke opinioiI,. he crisply casts aside sweeping justifiCations for affirma
, tive action thatwoitld radiate far beyond ed~cati~n: proporticmality foiits
o~n sake, broad remediation of "societal discrimination, " imd fadlitating
the' delivery of s~r'vices to consumers. '- But. ,in' f>arts N.D,and 'v" he
embraces ,a diversity theory that paradigrnatically apRlies to education .. ,
138. As'Dulce President Nan' Keohan~.receritly reiruirlc~d:
.
From where I sit, .only one ,strategy for dealing with:our increasingly diverse world
appears likely to be, successful.for the long cerrn....:a strategy that delioeiately ralces advan·
tage of the educational power 6f diversity. Such a strategy. is not easy to desi~ or imple;
: , "
,
ment, but the pOssible alternatives are ultimlitely sterile.
"RerumtD the Good 01' Days!, 6 J. BLACKS IN HIGHER EDUC. 90 (1994-1995h see also Text of, ~
A{{irmarj,,,,Acrioit Review Repair 10 President amton, Daily Lab. Rep. (BNA) No. 139 (Special
Supplement) at D-30 (july 20, 1995) ("Virrually all educators acknowledge that a college is a
better academic enterprise if the srudent body a'nd faculry are di'!erse."); Brest & Oshige, supra'
note lZ9, at 863' ("We/believe that ,encounters among, srudents frOm different bade,
grounds-especially within an academic instirution'thar seelc.s to, encourageintergioup relations
and diseourse"-tend to reduce prejudice and alienation.,,); cf. Shurberg Broadcasting of Hartford,
Inc, v. FCC, 876 F.2d 902, 920 n.26 (D.C. Cir. 1989) (opinion of Silberman, J.) ("Unlilce the
staie's goal in ·Bakke; which arguably'served to break down racial and ethnicstereorypes, the'
FCC's policy does ;'Ot reinforce the 'melting pot' because televiSion 'Iiewen never have any
knowledge of ' the race or ethniciry of the various station owners. '1. rev'd sub nom. Metro
Broadcasting, Inc. v; FCC, 497 U.S. 547 (1990}.·'
•
'.
"139. Brown, 347 U.S. at 495. Of course, soon after Brown came down, the Court invoiced it
to invalidate ~th~r vestiges of Jim Crow. ,Se., .,g., Gayle'v: Browder~352 U.S. 903 (1956)
(invoicing Brown to invalidate bus segregation). Thus Brown,quiclcly ca.m,e to stand for more than
educational desegregation. ,But it still does stand {or the specialness ,of education. Se., e.gi, Plyler
v. Doe, 457 U.S. 202, 222-23 '(1982) ("What we said 28 years ago in Brown labout education's'
'spoclal status] still holds true, ").
" ,
. "
~I.'Sullivan,
64 TUL.L. REv.
1775
Bakke:s.Fate'
.;:3 'XL-\LAW REVIEW 1745 (1996)
•
.ft,
:'
�--
.-/
,
/
~
Bakke's
.:.; ::.:L-\ LA.W REVIEW 1745 (1996) .
1776 .
~ate
1777
"
Of_course. a 'contra~tir~ 5!!:'~ =-.~ • .:l.iversHY" an industry (as could
imegrated wor~:acesin the
~.:..: but the democratic berie·
. fits ofdiv~icY =~' not be as su;:I:ll; :::tl±;;:e ~
setting. The divers.ity-in
. contracting arg-:::nertt .a5SuiJ:.e!' ~
"'ill somehow occur between
firms-a rather· ~.er6ic or
in many cOntractual: set;.
tfngs.. hi: tr e ;~hool com::::::'.:'! :::::c..--:3:>"t. reople fromdifferent ba.ck
grounds are thro ..n togethe::
"'=. a,.,J they are th~re .to leaf"!l.
Inherent in the conce.:: :r
affirmative action is a recog
nition of the l-xJSitiveedu~:r:::a.:-:i::.oe:i raq: an4 lif~ experience. .This
differs dramati~ly fr9m co:-..:::-r-: ~ involving guap:lrails and urinals,
where affirmati';e action. ha;:i!.C:.
ofvalue. In the contracting
arFna, a minoriry v~uable.:r..."< :~..e
person's race.helps 'secure a
contract.' Whites' may rescc: ::::.!' ~ :::"'t a minority, .simply by virtue .of
'could have completed the
her skin color; ..ins a contr::.= ~ i '
.job at., a lower ~i:: Min=-= = :::::.e: :;:-art. may' internalize the belic::f
that they need a handout ;,::. ::r:- _ ~e Il.ith whites. In education,
. bycontrasr, r:llriority
\-a1~able if she brings tmissing
element to the schooL· Be=.::-c
=.::::1.."['.;:-' st1Jdem'must still be;evaluated
on other ctiteri~ besides cli';;::;;::":',
~ ensure that it,is admitting
a'Studem .-.yhohas .the ac..a.::.~· =="''5 ::J }.:eep up Il.1th "the .rest of the
student body-an irripo~ar_:, :"';'-';i:~!l
'the goal is.to encourage
imerrningling and leaminl!'::-:.c::
.
.
Of course; any form i:.;;',;~
nonwhit~ ~isks backlash
, -from whites, But failure tc :C
i::wi:grate disadvantageO' nunori
ties into mainStream Arne:::::; :--=d ==:cr,:;. Cackl~h-i-ace riots tomorrow,
' . in a generation or_two.:
perhaps, ~d potential
Affi:rrnative action in..educ.:::;;r. -="'"
long-run'antidote to back- ,
hlsh and enmity among ra=.·""'· -':--': '::'v;::rse elemems of society into a
:.s ~recisel\' in such spaces that
. common'space. a commQn --~
the "Creolization" ~d
celebrates can begin to take
root.)141 What's. more, 'di'::::-0 ~ i'~''-:'~-i.n. sto~ping point, an inherent
, ,
.-:
a
ea.. . :-.:
.
==
an
'
.
6:
..;
.•'!;
, .
140. The def!'.i:x:ratic value ::0:' ~-=-=C:
"
grounds, to work tcgerher as a
14 L. ?ee Chen. supra note
f.<..,.,ns from' different back
like Tide VII.
,',
!f#
i;;·r
,I
142: Se;' Lino A Graglia. Hopwood v_Texas: Racial Prtfermas in Higher' Education Upheld
Endorsed, 45 J,LEGAL EDuc. 79, 82-83, 92-93 (1995),' :
,
Although.Justice 'Powell in Bakke,did not specify the precise amount of pe!'llli55ible w~ight to
be given to race, he did make clear that race should~ not be:a.,"decisive" "factor" that would
"insulate" a person of cine nIce from comparison with others, and that race must'be ~simply'one
.elem,mt-to be weighed fam, against other' elements.· 'Regents oLthe Uitiv. of ail.· v. Bakke,
438 U.s: 265,317-18 (1978) (opinion 'of,Powell, J.) (emphasis added).' At some Point, when ~
racial plus looms 50 much larger than oth~r diversity factors,
adn1issions scheme would, it
seems! 'violate the le,:ter and spirit'of B<jkke., In this reg~d; 'u~iverSities that are designing affirina- .
tive action programs would do well to consider thefollowing language from Justice O'Connor's
MetTo BTOadcitsrmg dissent: "The Court'S ·emphas.is on' die multifactor process sho~ld not be con
fused with the claim that the preference is in some sense a minor one. It is not. The basic non
iace 'criteria are not 'difficuit to meet .. " _ (RJace is clearly the dispositive factor in'3 substantia"
percentage of 'comparative proc~edings." .Mew BToackasring,497 U.S, at 630. (0'Connor, J..- .
dissenting);
.
.
-
,
1.43. On the huge.importance of intra-racial diversity; see supra note 8 7 , ' .
/
144. Suppose, instead, that diversity is used' to limit the representation of certain minori
ties-"minuses" rather than "pluses" for Asians or Jews,Jor example, Inniany .cases,'this may
well be smokes.ereen ror 'prejudice against racial and ethnic outgroups, protection of whom is'
ce'!tral to the history underlying' the: .Fourteenth Amendment. . Of course, this' anti-minority
program could derive little support from Bakke itself, in'light of the Brennan Four's language on'
this issue: Se. , ..PTa text accompanying notes 39-45. Here 'we see that in applying saict scrutiny
'. to allradal preferences, courts may nonetheless be obliged to diStinguish between !flIe aifirtrll.tive
ion 'and old-style racial discrlininaiion.,,·
. '
This approach finds S\lpport in"Adarand itSelf: In Justice Ginsburg's words:.
.
Properly, a majotity of the Court calls for review that is, searching in order to ferret out
c.lassifications. in reality malign, but masquerading as benign, ',TI)".Co.urt's once lax
review of sex·based Classifications demonstra,tes the need fot such suspicion. Today'.
decision thus usefully reiterates that the purpose of strict scrutiny "is preci.lely to dis
tinguish legitimate from illegitimite wes of ra~~ in governmental decisionmaking." "to
. 'differentiate between' permissible and iplperinissible governmental use of race.~ to dis·'
.. tinguish "'between a "No Trespassing" sign and a welcome mat.'" .. '
Adarand Coruuuctors, Inc.-v. Pena, 115 S.Ct. 2097. 2136 (1995) (Ginsburg, J.,dissenting)
(quotmg id, at2112,2H3;2114r{citations omitted).
.
. .
~and
is
,).
limit on the amount of pennissibleaffirmative action: If a school adniits
minority .students ,who are.not roughlY'equal to. white students; 'it may'
actually. undermine the demociatiC benefits of diversity by reinforcing stere-.
otypes of 'minority studeri~ as poor students. 142 f A critical' mass of ~tu--J
~ents of a -particul~ group may be needed so t!:tat other students become
aware of the group'(and of the diversity withmthe groUp),I43 but this·by~
no means, requires exact proportionality~r anything like. it}44
.
a
'
�43UC;:LA
,--;
LAW REVIEW
1745(1996)
Bakke's Fate
It may be argued that there is greater force to these; vi~ws a't the
undergrad~at~ level than in a medical school whet-eell\! training is
centered primaiily\ on prof~sioJ1l1I, competency. But .'even at the
graduate level, otirti:~dition and experience lend s1.!pport to the view
,that- the contribution of diversity is substantial. H6
:.:-_::.~ h~n~ ~fl:rayed' dive~ity as,a tool
only to help whites under-'
14S
:j&,--0r as ,an' exploitativ:e way of adding spice to a ~hite mix.
~\inorities m~y benefic just a$ m~ch from div~rsity as wl}it'es
.-\merican- from rural Georgia, ,after all, can
fro~ a,
':C -"-r'~nlf," from Phoe-nix, ~and the suburbanite' can learn from the
;::=.:r~~ '\'I:' e do 'noc mean to glam~riZe; ;,.,ie recognize, that' affirmati ve
i~,-~ ::r-~~ams~3\'noc~IW;iys work thi; way. If a diversity program does
.:: ~', ;-:tice. allvw all students to Lear'n fr9m ea~h other; then the pre- '
.i '~,,:,;et'\'ing the state's interest in diversity-and the school should
, "'.:iiver;itv" slogan to show' how the progra,m passes constitl~-
Jearn
"
>
,
-:;,_! -'.-Quid. tvr exaIDple.-be ,troubled by de fa~tQ segregation in univer
::::-;Ii s.:hvvls believe thai:minori~ies add to diversity, then they
~; ',; :.c::~ en~6urafe- different groups to ~rdon themselv~s qff from'each
:,:.:..--, ::versity i, "hen tough-it is only natural that people from different
mavnnJ it easier to stick with what is familiar. Doing so, '
_ ~~'_';':'::§::_ '::lunt> me,Nine oj diversity,based admissions i!l the first place7it'
, "
interleCt"e learning process, All of this suggests that schools
.;je tJ.~t" r~idential segregation inay be' estopped from pleading
a Jeie!'..>e to artinnative action' 'in admissions. Schools are nbt
~~=-~.: :vaJort 'aiiinnati\:e action -policies:' nor are, tney ~ops~itutionally,
:::q.:.,::, :J aJdres> ,,elf_segreglltedhousing-but if they do choose 'tD adopt
;:rvgraID>. then they should 'Hye, up to the goal of. encouraging
::: learn frem each oilier.
:!' ~;.)~e . .:iiversitv cannot function the same way, ~or be a~ irriportant;·
.;ontext. There. may. be settings where div:ersitY may not'
edt:C3ti.:>nal !m£ortance;at all.(graduate school in math, per
. ~,",,:~'. ;:oj omer !e:rings where i~ \\:ill matter a great deal (college, for exam- .
~ -:.0, _ _~_'1.1
:s a-\\iJe range -of places in the middle. ' But we must be
:::r:i-~ ~.;)t eo l!n.:ier~nmate the iinjJortance· diversity--'--eve~ in, ~duca. ;,!:ti,;'lgs ,Jut. at first blush, seem t6 have little to gai~ through_ diver
,!...;'.iu,tice ?~well himself n6tedwhile:justifying.affirmative actio~ for
:'-:.2l.Jelllh
='.z-:n
of
~\c..ii..:J.i
'::' :;« ",,,",,z': ::Y,)':0,
~. ;,~"
l~
>-,,=,,:,;~.s,.-:,;:
Re~iew of Ciyil, RightS
'
.as. a matter of
S,holar: RefiectWru on' a .
.,,:ac,n,le.=jorit;' persons may be admitted
I t.I.
56!. 57Jn.46 (1 994):
.1:: .;.:=uneJ be\:a·,.;se-ilieir presence Will c:oncribute to ;~diver..
1:-.< ,-=:::n " ,-"jt such .iil-mit;'·is educationally valuable'to the' majority'-'
."
mal: ...eil b. perceived as treating the minority adminee
..-ho'brl.'\gS an element of the p.iquant to the lives ot
..._;"'.!!I!
",
,
"
<-:
1779
Our democratic di~~rsity point can perhaps als~ be reCast into remedial - '
language. The COurt;inAdarand and other anti-affirmative action' cases has , acknowledged that race can indeed be usea in narrO\yly tailored remedies
for discrete constitutional violatioris. 147 'DiverSity in education may not
be narrowly (ailored,_nor does it respondt~ -discrete violations; but, the
integration of our universities, greaiand small, may ~ell' be, in: KenKarse~
nice phraie, "i:hebest long-term remedy for the private beliefs and oehavior
that perpetuate th~ effects of racial caste. ~>l48
CONCLUSION
,
Our 'trek 'through the 'contracting cases suggests diat ~ucational affir-_
. mative, action on' a H~vard-plan ~od~l may' pass 'Supreme Court muster.
.There are souhd reasonS why this is s~reasons that ).\Te 'believe are at the:
heart of Bakke and at- the core 'of much of Justice O'Connor's writings 'on
'race. There is a proud American tradition of treating' educa'tion'diff'eiernly .
f~omother sph~res:Ed~Cation 'is differerit.!...speci~l"::because· it te~ches
, Americans, how.: to become, full ,citizens in a heterogeneous, pluralistic
scheme of democratic self-government.> As Justice Powell ,wroc-e in Bakke;
"the ·nation'.~ futured~pends, upo~' lead~rs. trained' through .wjd~ exposure'
to the ideas anq m~resof students'as diverse as this Nation of many pee
ples."14~ Adarand-like sei-asides -sei: us apart, but. Bakke-like affirmativ~'
action bri~gs Americans togetl}er. ISO Under a Consti~ution thad:icgiru
i46.· Bakkt, 438 U.S, at 313 (opinion of Poweli.].) .
Adarand, 115 S. Ct. at 2117; Uni~ed Smes v. Paradise, 480U.S..!12,-167 (1987) (pl';ral:
ity opinion of· Brennan,
id. Oat 196 '(O'Connor, ],' dissenting).
.
148. Kenneth L. Karst, Private Discrimination and RaporuibiIiry; Patterson in Conlexl. 1989
SUP.
REv. I, 36. Note also how a sodal·remedy theory-though not; by itself, suffiCient to
justify affirmative action-can be added to a diversity theory both to exphiin the social difference
between "welcome mats" and "No Trespassing signs" and to suggest a temporal endgame and,exit
strategy for affi,rn;.tive ac~ion,in education•. See sup;.a text'accompanyu\g note 46. '
"
149. , Bak,I<£. 4381.).S. at 313 (opinion o(Powell, J-) (quotirig Keyishianv. Board of Regents,
. '
.
385 U.S. 589, 603 (1967».
.
150. Thus· the key constitutional evil is not sO muCh race-consciousness; as some seem to';"
believe, but racial divisiveness;.enmity, polarization, or subordination•. For a some'wh~I' similar
. suggestion, see .Ou-istopher L, Eisgruber, Political Unu:y and the Powers of GOIII!'rnmrnr, 41 UCLA
L. REV. 12~7~ .131~21 (1994),
' l '
'.,'
,_
'
147.
er:
n;
.. '
'-
�•
,~
\
NARROW TAiLORING
1750
,/
Ian Ayres'
with a \'i;ion oi We.,:::~ ?:::':l! ~.:,::::8lg together 'in:order to form a more
"i many, one), this coming together of_
perfect union (~ piurW..s
, American; to teach <:i: ::
each qther is an inspiring event to
behold/
- '
,..
1781
1786
1793
1796
1800
1802.
1803
'INTRODUCfION ••.•' •.••..• , . , , ... ; •.•••• , .• , •••••••• , • , • , ,'. , ••
I. WHEN DoES NARROW'TA1l0RING MANDATE RACE·NElITRAL, MEANS? ••
A: 'The Argumem from Opaqueness
.. ,:, ..... '.' ... , . .. ',.,.,::.
B. Avoiding Individual Racial Detenninations ...... " " ' ... ,
II.
m:
QUOTAS VS. CREDITS
,.,.: ., .. : ...•. '.• , ' ',' .••. ',' .••• , .. ",' ',"
A. Colllparing Quotas and Simple Credits .. ,:. , , , ......... : ..... .
I. Trading Off Quamity and Quality Burdens ..... , ... : :, ..... .
2" The Impact ofQuotas and.Credits,on the Government's
Remedial Interest .,.:.,"', .... , ...' .. , .... ,."., ... ". 1806
B. Declining-Credit Schedules, : . , .. , .. , . , , ; ". , , ; ..... , ......'. 1808
,C. QuasbQuotas, .,.,"; .. ', ,-, " .... , , , . , .'; . .' .....:.. , .. , .... . 'lim
1817
TAilORING THE SCOPE OF RACIAL PREFERENCES IN mE REALWORlo .. .
A: Estimating the OveraiI Remedial Goal ' .. :.... :. ',' .. , , . '.., ; . , , . ',., 1818
Setting the Size of the Credits .~';"" .. :." ... ,.;, .. , ..\ ..... 1820
c. Overview of the "160" Federal Affinnative Action Pro~ms , •. , ., , 1822
B:
CoNCLUSiON .••. " .•••••• : ••• ,. ",' ..• :'••.•.••.•..•• '••..•. , •.•
ApPENDiX','" .'•••• : •• , •• : ..• '•.•.•. ',' ~.' :,., ••:', .'c.. , ... , ....'...
INTRODUcnON
_
1824
1829. .
~
.
•
'.
J,
Since'-theSupr!,!me COurt 'announced inAdarand Consm«:tors; Inc. v.
P~nal that ,federaL a£firmiltive action' programs ·will· be subject to "strict
scrutiny I tt2 a "debate' has reemerged over" what constitutes 'a compelling
'gqvernment interest for classifications t!>at favor traditior:i.ally disadvantaged'
,'
• , William K. Townsend Professor: Yale Law School. Steven Bainbridge. jer~my Bulow;
Donohue. R,chardFallon. Paul Gewirtz, Kenneth Karst, Paul Klemperer, Peter Maggs. George
RutJ:>erglen. Eric Talley, Tom t1len; Eugene Volokh, and seminar partidp.n:ts at the Univer~ity of
Illinois provided helpful commenci. The detailed comments ofAkhil 'Amar and Evan Caminker
particularly aided my reWriting of an initial draft. (professor Ayres has advised the justice
Department in its,post-Adarmld review ohffirmative action. The opinions expressed:in this Essay
are hot necessarily the views "the justice Dep,artnient.) Catherine Sharkey provided exceilent
resea~ch assistance: -.........'
. '
I. 1·15~. Ct: 2097 (1995).
"
"
,
.
2: ,Strict scnitiny, analysis has two prongs. ,~e goveminent must shgw (I) a ~compelling , '
purpose", and (2) that the meanll chosen ro accomplish that purpose are. "narrowly tailored."
Adararui. 1I5"S. Ct. at 2113. ' ' . "",
,~
of
J
"
""'~ ~.~~
Rei~v~n[ing
151. For a similar ....
-; ."-"'orican jury, see Akhil Reed ;\mar,
Juries: .Ten SuggWe4 Rej:-.;., :! :;.::. :::-•. 'S ::"iffi'. ,1169 (1995); Akhil Reed Amar, The Bilr,of
. ,Right! as a Constitution. ::C ... ,:..; :.. .. :.~:, ::52-99'(\991i; Akhil Reed AmJ,r, Note,'CMosing
'Reprelentarivel/ry Lott'" .:={ ;:: >::;,,:..;, :,:5J,'1Z87-890984).' ,
,
.... ;.
-,.
.~
~
'1781
.t
~
.~>
,~
,
.
"
ilf'
h
II
L
��!"-_.....:-.-,
'.;
)
2132"
43 UCLA LAW REVIEW 2113 (1996)
:...... ~
'0
P'i~,,~
. Rec0t:lciling Rights
i~
o'igi~ly
",d 'Ppl....
bo,h' "'<e oction "'d.
OOnd"", '" .. Thc Fo"nc"'<h
(,om"donY[lngi
"'Y p"",," Wi<hJn
.
Amondmcn'piohi'iU •
j ",i'<lic'"," <hc "l",i pio<ec"on of "hc I. w "'" Whilc ,i ....
"
in<endod '" p,o,,,, ""'''" on 'hc
of no,",. ,h. Fo"neon<h Amend,
mc",
bc", ,ppliod ,ihd
P"'<'''.ion
o'h" ba"", ...
w<ll. '"
Do","," n<l'h" '."ndm"". J,.. b<en b,oodly <On- '
'tt"od
"'ohibi' di",imin.tion in <hc P""<e
ond """""
,tti" '''"''ny "nd" ,h""on""dmcnu Cxton<J. only <0 "d"""c ond iru"'
I" minon" ..."'" ·dioc,imin.tion .doim.. . "c oftcn b'ough, undo< ••".
discrimination statUtes.,
.
h~
'm"
'0
H~",,,.
b~i,
io""i""io~.1
'0'
n,
0"
''''0,. ,j.
"gul."~iu
'''''I,,,
pr~videsa
I.~
,II
CoU~t
n
construed this Acne
eolor of law.1JOl 1968 the Supreme
callYP.fohibifra!:ial discrimination in hOusing. lJl . .
.
Title VIII_of the Civil Rights Act of
I~c.
sp~cifi-
1968,co~only referred to as
'hc F.i, Fro"'in, A". piohibi" d"«imin"ion 'n thc P'ovi'ion of how'ng
ond !<l"od' "'vicc,•.'"d"d'ng 'col ""'c. b",k"..c.
",d mon'
",,,,,'Icnd'ng, "'Thc A" p",h'b," d""'mJn.tion On thcb"" of ,oce.
,,,,",,.ce.
121. U.S. CoNST.
v. Alfred
392 U.S. ·409
'ili', all laws "necessary amend. XIf/;}ones.h.them).H. Mayer Co.;md '""d~" of(1968) (holding
Pass Coo.~. h. ~.p~~proper' to abolish =,,'"'" "",., .
and ~"'.m"'"
.."~;, md ~
.
122.
U.S. CoNST. amend. XIV, §.1;
133. ld. §§ 3601-3612.
134. Pub. L. No. 1()()';430, § 1; 102 Stat. ·1619 (1988).
'.
135. 42 U.S.c. §§ 3604-3606 (1994).'
136. 114 CoNG. REC. 2495 (1968).(stat~mer\{ of serlo Mondale) (coining the tenri Mrs,
MurPhy.to represent rlierraditio'lal boarding house opera~or).·
137 .ld. § 3603(b)(2).
.'
,
138. 114 CoNG. RIc. S2495 (1968) (statement of Sen. Mondale).
.
139. 42 U.S.C. § 3607 (1994).
140. See, e.g., CAL Gov';' CODE § 12,920 (West·1992 & Supp. 1996).
141.. Justice Louis D. Brand~is; dissenting in New Statdce Co'. V. Liebmann, 285.U.S. 262,
311 (1932), wrote, "k is one of the happy incidentS of rhefederal system that a single courageous
state may, if itS citizens choose, 'serve as.a la!lpratory; and try novel social and econoll1ic experi
. merits without risk to the rest of the country."
.
'·142: For instance; marital staNS.and sexual orientation are not protected classes under federal
' . .
law. See.infra notes 151-·153 and accompanying text.
143. See infra note 145 and accompanying text.·
144, For instance, of the 23 states that prohibit marital status discrimination in housing, just
.()ver half ~rovide a Mrs. Murphy exemption:
"
123.• See;
v. BOren,·J29 U.S. 190
Gr"ah
R;"'''d~". ."e.g., Craig (l97'''d''''m.'~''O'i'~d (i976) (selC dis<:rimination);. ' am.",v.
.h"...),
'
ugU.S, 'OS
00
. 124. :Altho h: the ·Thirteenth'Amendment does prote;;t·against slavery by either private or
'state actors; it seems to have been narrowly construed. to apply"only to'race and national origin
discrimination. See; e.g.,· St. Francis College II. AI-Kllazfaji, 481 U.S. 604 (987). The
amend. ·XIV. .
. Prohibitions extend only .to discriminatory state actiOn. U:S. cONST, ,
,
Fou'rteenth Amendment. . .
125.. United States II. Carolene Prods. Co., 304 U.S. 144,152-53 n.4 (1938).
126. 42 U.S.C. §§ 1981, 1982 (1994).
..
/'.
v<
127. ld. §§ 2000a-2000h.
128. ld. § 1981.
.
'129; ld.
130.· ld. § 1983.
2133
color, religion, sex,and national origi~:lJj' In ~ddition, with the p~ssage
of the Federal FHAA in 1988,B4 the Act now covers· hOUSing. discrimi;"a
.. '
.
.
.
. .'. ti0l1.on the basis offamilial and handicap starus. m
.
Title VIII includes tWO e;K,emptioris that may be relev·int to the resolu
t·ioriof free exercise/anti-discriminationcases .like . Mrs. SmIth's. Fi~st; the .
. Fair Housing Act includes a so.~alled "Mrs. Murphy'; exemption 136 that
removesfrom its appiic~tiofl rooms ortinits in dwellings where there are no
more thanfoui: units and where the owner actually ,Jives· in,one of the
units. 137 : This exemption was i;wendedto . protect ·-owner-operators cif
bo~ding liou5es. 1J8 In pra(;tice, it serves to statutorily raise the ·rights of
pri v?cy.and frc;:e association of an on-site owner above, the govemmenfs
inte~est in prohibiting dis<;rimination.. The second exempti'On provided
by §3607 specifically exempts religious orgahizatioI)S and private Clubs from
the Act's pr'ohibitionson discrimination in the. provision .of housing-that. is
owned and operated for religious, not coinmercial, purposes~ 139 .
. Lik~ the federal- governrnent, the states may use'i:heir police p~wers to
prohibit discrimination in furtherance· of the welfare, health, and peace of
the state. l40 In fact, many states have gone further than federal law l41
to p'rohibitdiscrimination"affordingmore protections to their citizens than
. federal law by grantillg legal protection to more. classes of persons, 142 . by
expanding protections through j~dicial :interp;etatiqn, 143 ~d by including·
..
• .
fewer exemptions to theJr legal proscriptions: 1+1
. Under. bodi state and.federal fair Qousirig laws;. once dispan:ite treat
ment ac'ro~s proCt!cted class lines is showp., the burden of proof shifts to thc:
the two,moin' fcdc,,1
'h" P,ohibi, di<crimin"ion' "cd"
ei'il Righ" Ac" ·ofI866'· ond 1968.'" ,Sec'ion 1981 of 'hc 1866
A" "''''n"" .Ii p",o,,; :wi,h," thc j ""di"ion of 'hc Uni'od S""" 'hc
"m'''gh". bcncfl".ond puru,hmcn" und" the
.. imy mhe,,,,,,
'on.'''
1982 .of 'hc 1866 Ac,
'h". qru<edS""" C'ti-'
"n,h"'·,hc·"mc <igh, .. ony wh;<e p",qnJ 'ro inh"i'. pu<ch",c.
"II, hold••nd CO""y ,,,i.nd P""""'" P'opc"Y: ,.,,' Section 83 of ihe
19
1866 Act
civil cause of action for deprivation of rights under
S""~n.
.
131. lones v.. Alfred H, Mayer Co., 392 U.S. 409 •.421 (1968).;..
132•. 42 U.S.c. §§ 3604-3606 (1994).
,
.)
�,_,I• . ,
-----'.
2134
43 UCLA LAW REVIEW 211J(I996)
discriininator to. show a sUfficiel1t justification for the cOhduct.14s How;
ever, the level of protection that a victim o( discrimination
I depends Upon the. basis of dlscrimination"the spedific' legal
in
which the complaint is brought,and the COntext in which the discrimina.
,•
."~, , ' . • ' , ,__
r. '
tion Occ~rred, 146
recei~es
f~amework
poin~s alci~g
I!J. order to understand federal prOtections, picture truee
a
spectrum of governm~ntal interests: On ,6neend;' federal law has recognized
a compelling interest'in prOtecting people £rOIn discrimination on 'the . basis
of race;147 inihe, middle, a less stringenr Justification, an,
state interest: is'required to justify ·discrimination on the basis OfseX;I48:
. on the other end,
federal law, and the CoUrt; in
it,have
that federal protections, including the Fair'
HOUSing Act,' do not prote<;t perSons, on, the 'OaSis of'sexual, orientation
l49
ort;l).arital status. ISO Also; the ,inclUSion of'i:he Mrs. Murphy exemption' in
federal law suggests that the COntext in' which the discrimination OCCurs.
may affect the levef of.
" jUstification required to defend a' discriminatory "
"
practice.
'~important"
in~erpretirig
Congres~,in ,devisi~g
signale~
State law,ori th,!:!, other ,hand, may, afford very. differen.r-pz:otections
against identical discrimihat6ry: conduct. Many state. statutes protect c1ass~s '
beyond 'those
in the federaL/aw, PJoviding protection 'against
discrimination on'the basis of sexual orientation,l51 marital St ttiS,15Z and
a
"bitt"" di,;"imination:'" The" """if.ci"o," "]'" no,. be
e~en
en~merated
P'~
2135'
Reconciling Rights
-:--
"
protected by federal law , but state courts have nonetheless confirrnec! that
states do have compelling interests' in'protecting against discrimio:ation on
these bases}54'ln "addition,protected .conduct, under feclerallaw w~uld '
likely be subject to scrutiny under most' state statutes if petp~trated qy a
Mrs. .Jvfurphy landlord.155 '" .
. ' , '." .
For instance, in the case of discrimination on the basis of sexual orien
. tation,IS6 the Supreme ,Court may· be ,more restrictive in' weighing the
'state's: interes~s than ~tate courts.·Jn a federal challenge to a state anti·
discrimina'tion law,' under which the stat~, qas granted a certain groups )?(
people protected class status; a courtshould theoretically give deference to
the legislative .intent 'Of the state or municipality and the weight thauhe
stine places on the interest. 151" This is. particularly true of discrimination
cases where the protected dass is one that,has "moral" or ,religious repercu~.
sions, like sexual orientation or marital status .. ' However, as mentioned
abo~e, the prevailing doctrine gives courts room to "fudge ~n standards," to
'expand i:h~ sphere or reduce., the sphere of the hlteres't dependirig on
whe~her Or not they believe that die class,ification deserves protected. class ,
"status. 'The restiit is both ihconSistent decisions, ~ well as decisions)n.
which th~ true ,state's interests may not have been weighed, but instead:
the court's evaluation of that inter.estYs
',' .
-.:
,'., .
{
'IV.,
RECONCILING
Fi'!.EE EXERCISE'ANn ANn.DISCRIMINATION
RIGHTS
~
145., See. e.g., NAACP v: Town of Huntington, 844 F.2d 926 (2d Cir. 1988), aH'd. 488 U.S.
15 (1988) (requiring defe,ndan t to show that the practice furthers sUbstantiai concerns that 'cannot
Advisory Bd. v. Rizzo, 564 F.2d 126,
be resolved with less discrinii.natory alternatives);
149. (3rd Cir. 1977), em. dirtied, 435 U.S. 908 (1978) (requiring a defendant to show "a legiti.
mate. bona fide interest" and "that no alternative Course ofaction could be adopted ... with less _
,.'
;, ",., '. ' .
,
discriminatotY impact'').
. . .
~esident
146. . emplovnient discrimination) at _
Victim of See Wessels, Supra note 89, ..., 1216
(desc~ibiilg the. levels of protection available.to a
,""
"
147. 'See Palmore II. Sidoti. 496 U.S. 429, 432 (1984) ("[CllasSifications [on the basis of race]
are Subject to ve
most exacting scrutiny;, to 'pass COnstitutional muster"they must be justified by
the
a corftpelling g6 rnmental interest ..•• ") (emphasis added); See also loVing v. Virginia, 388 U.S.
I (1967). .
"
'.,.' ,
,
ch~llenge
serv~
...
148. Craig y. Bore'n;429 U.S. 190, 197 (1976) ("To withitand COnstitutional
claSSifications by gender must
ImpOrtant governmental Objectives and must be sUbStantially
related to achievement of those objecttves. ") (emphasis added)..
149. BowerS v.Hardwick. 478 U.S: 186,,190-91 (1986).,
.
42 150. ,The 3604-3606 (1994).' .protect
U.S.C. §§ FFH"AA does no"t
C
perSOns
on. the
"
basis
"
of
,
marital
~(Wes1
status.
,
"lSI. See. e:g., CoNN. CEN. STAT. ANN. § 46a·81e (West i995); D.C. CoDE § 1:2515 (1992
&'Supp. '1996); MINN. . "
STAT. ANN. § 363:12
Supp. ,
tit. 9.§ 4503 (1993).
' . . 1996); , 9 VT. STAT. ANN.
!52. See.supra note 16.
.
.
,
153. ' Se'CAt.
~~
..
"
0\:'. c;oDe § 51 (West 1982 &. SuPP. 1996) (Unruh Civil Rights Act).
Becau;e the resol~~ion of wti.d~crimination and free exer.cise claims
use similar b,,"ancing telits, they 'also share common. shortfalls. When the
two are pitted against one another, iss\!es:of shaping, defining, and measur;
, , i,ng interests are m~gnified.Neither the Sherbert~ YOOer balancing test' rior
, the RFRA does away WIth the ambiguiti~ that surface in fraIning the inter·
J54. A court in d,e'District of Columbia held that the District has .- compelling interest"iri,
preventing ,discrimination on the basis of sexual- orientation. Gay Rights Coalition
. Georgetown Uni"., 536 A.Ul (D.C. 1987) (en banc)., Similarly;
Alaska Supreme Court
found that ,the State had a compelling interest in preventing housing discrimination, thus allow
,ing the unmarried co~ple's marital status diKrimination complaint to oilmp Mr. Swanner's free
'exercise rights. Swanner v. Anchorage ~ual Rights Comm'n, 874 P.2d '274 '(Alaska'1994), cm.
denied, liS S. Ct. 460 (1994).
'.
..
'. .
'
.
155. 'See supra notes 137-138.
156. Bowers v. Hardwick, 478 U.S. 186 (1986).
.'
.
'
,157: See Gay Righis Coalition, 536 A.2d at 33 (court looking to the intent of the legislature iri .
making sexual orientation a protected class). The Supreme Court may have given deference to
the legislative intent of Alaska when it denied certiorari to Mr. Swanner. It is clear thilt, in
finding a compel\mg state interest in preventing Qiscrimirlation on the baSiS of marital status, the
Alaska Supreme Court gave such deference to the legisiarure. Swanner, 874 P.2d at 282-83:
158., See We,ssels, supra note 89, at 1218-19.'
.
,
the
v.
'.
)
�482"
OCTOBER TERM, 1953.
Opinion of the Court.
BROWNv. BOARD OF EDUCATION.
483
34i U.S.
Syllabus.
the complete exclusion of negroes from jury service,
the constitutional provision .. : would be but a
vain and. illusory requirement." 13 .
The same reasoning is applicabl~ to these facts." .
Circumstances or chance may well dictate that no per
sons in a certain class will serve on a particular jury or
during some particular period.' But it taxes our credulity
to say that mere chance resuliedin there being no mem- .
bers of· this class among the ov~r six thousand -jurors
called in the past 25 years. The result bespeaks discrim
ination, whether or not it was a conscious decision on
the part of any individual jury .commissioner. The
reversed.
judgment of conviction must
To say that this decision revives the rejected contention
that the Fourteenth ~ Amendmen t requires proportional
representation 'of all the. component ethnic groups of the
community on every jury 16 ignores the facts .. The peti
tiOIler did not seek proportional representation, nor did
he claim a right to have persons of Mexican descE:!nt sit'
on the particular juries which he faced. 17 · His only claim.
is the right to be indicted andtrie'd by juries from which
.all members of his class are not syst'ematically excluded......,
juries selected from among aUqualified per~onsregardless
of national origin or descent. 'To this much, he is entitled
by the Constitution.
.' .
Reversed.
BROWN
. NO.1.
294 U. S., at 598.
See Akins v. Texas, 325 U. S. 398, 403; Cassell v. Texas, 339.
U.S. 282, 286-287.
17 See Akins v. Texas, supra, note 16, at 403..
18
~
APPEAL FROM THE UNITED STATES DISTRICT COURT
. FOR THE DISTRICT OF ·KANSAS.·
Argued December 9, 1952.-Reargued December 8, 1953.
.
Decided May 17, 1954.
.
be
u
.
v. BOARD OF EDUCATION
OF TOPEKA ET AL.
ET.AL.
f
Segregation of white and Negro children in the public schools of a
State solely on the basis of race, pursuant to state laws permitting
or requiring such seg~egation, denies to Negro children the equal
protection of the laws guaranteed by 'the Fourteenth Amendment
even though the physical facilities and other "tangible" factors of
white and Negro schools may be equal. Pp. 486-496.
(a)' The history. of the Fourteenth Amendment is inconclushle
as to its intended effect on public education. Pp. 489-490.
(b) The queStion presented in these cases must be determined,
not on the basis of conditions existing when the Fourteenth Amend
ment 'was adopted, but in the light of the full development of
. public education and its present place in American life throughout
the Nation. Pp.492-493.
(c) Where a State has undertaken to provide an opportunity
for an education in ..its public schools, such an opportunity is a
right which must be madeavailableto.all on equal terms. P.493.
(d) Segregation of children in public schools solely on the
basis of race deprives children of the minority group of equal
educational opportunities, even though the physical facilities and
- other "tangible" factors may be equal. Pp. 493-494 ..
(e) The "separate but equal" ·doctrine adopted in Plessy v.
Ferguson, 163 U. S.537. has no place in the field of public education.
P.495.
*Together with No.2, Briggs et ai. v. EUiott et ai., on appeal from
the United States District Court for the Eastern District of South(9
Carolina, argued December 9-10, 1952,'. reargued December 7-8,
1953; No.4, Davis et ai. v. County School Board 01 Prince Edward
County, Virginia. et ai., on appeal from the United States District 0
.. Court for the Eas,tern District of Vi,minia, argued December 10, 1952, '!:../
reargued December 7-8, 1953; and No. 10, Gebhart et ai. v. Belton ~
et ai., on certiorari to the Supr,eme Court of Delaware, argued De- ~
cember 11, 1952, reargued December 9, 1953!
.&
�484'
OCTOBER TERM, 1953.
.
.
,
,BROWN
"
347U. S.
. Counsel for Parties.
483
(f)The ~ases are restored to the docket for further argument
on specified questions relating to the forms of the decrees. Pp.
. 495-496.
Robert L. Carter argued the .cause for appellants in
No. Ion .the original argument and on the reargument.
Thurgood Marshall argued the cause foi appellants in'
No. 20n the original,.argument andSpottswood W. Robin
son,I II, for appellants in No.4 on the original argument"
and both argued the causes. for appellan'ts in Nos: '2 ~nd:4
, on the reargument. Lo~is L.Redding,and Jack Green- .
·bergargu·ed.the cause for respondef.lt~ in: No. 10 on. the
,
original a~guIY1entand Jack Ore.enbergandfhurgood
Marshall on the ,reargtimen t .. '
~,
"
· "-On the brief~ were'RobertL. Carter,ThurgoodM(Lr
'shall; Spottswood W. Robinson, III, Lo~is L. Redding,
.Jack Greenberg, George.gC.• HaYes,Wil,lidm>R. Ming;
Jr., . Constance BakerMotl~y; Jame~ .M.Nabrit,. Jr.,
· CharlesS. Scott, Pranl<; D. Reeves, Harold R.Bo,!,-lwani
and .Oliver W. Hill for appellants in Nos. . 1, 2and 4 and
.
respondents in No. 10 ; Geo.rgeM. Johnson for appellants
in Nos. 1, 2 and 4; and Loren Miller for appellants in
!.
Nos. 2 and 4. Arthur D. Shores andA. T. Walden were
· on the Statement as to Jurisdi'ction and 'a brief oppo~ing
a Motion to Dismiss or Affirm in No.2. '
.
,
.,
-
-
Paul E. Wilson, Assistant Attorney General of Kansas,
argued the cause for appellees in No. 1 on the original
argument and on the reargument. With' him on the
briefs was Harold R. Fatzer,Attorney General.
'
John lV', Davis argued thecausefor appellees in No.2
on the original argument and for appellees in Nbs. 2 and,
4 .on the reargument. 'With him on thebriefsiri No.2
were T. C. Callison, Attorney General of South Carolina;
. Robert McC. Figg, Jr., S. E. Rogers, William R. Meagher
and Taggart Whipple.
'
v.
BOARD OF EDUCATION.
485
Counsel for Parties.
J. Lindsay Almond, Jr., Attorney General of Virginia,
and T. Justin· Moore argued the cause for appellees in
No.4 on the originalargument and for appellees in Nos. 2,
and 4 on the reargument. On the briefs in No.4 were,
. J. Lindsay Almond, Jr., ,Attorney General, and HenryT.
Wickham, Speciar'Assistant Attorney General, for the
. State of Virginia, and T. Justi~ 'Moore, Archibald G.
Robertson,John W: Riely. and T: Justin Moore, Jr. for
,.' the Prince Edward:Co'Unty School' Authori'ties, appellees.
. ,R. . Albert' . You~g, AttorIley Gen~ral of. ,Delaware,
.. arguedthecaus~ for petitioriers in No. 10 on the original
argull1ent and on, the reargument. With him· on the'
.' briefs ~asLoi1,ts J. Finger; Special Deputy Attorney
General. "
".
, ,
. ,By, special leave of Cou'rt, ,Assistant Attorney General
Rankin argued the cause for the, United States on the
reargument, as amicus curiae, urging reversal in Nos. 1, 2
and 4 ,and affirm'ance in No. 10. 'With him on the brief
wen; Attorney General Brow11ell;' Philip Elman, Leon
, . Ulman, William J. Lamont and M. MagdelenaSchoch.
, James P. McGranery, then Attorney General, and Philip
El'trtan filed it brief for the United States on the original
argument, a~ amicus curiae, urging reversal in Nos. 1, 2
' '
,
and 4. and affirmance iriNo. 10..
Briefs,of amiCi curiae supporting appellants in No.1
were filed by Shad Polier, Will Maslow and Joseph B.
Rdbison for the' American Jewish' Congress; hy Edwin
J~ Lukas~ Amold Forster" Arthur Garfield Hays, Frank
E.Karelsen, Leonard Haa,s, ,Saburo Kido and Theodore
Leskes for the A,merican Civil Liberties Union et ~l.; and
by John Ligtenberg and SelmaM. Borchardt for the
All'lerican Federation of Teachers., Briefs of amici curiae
supporting appellants in No.1 and respondents in No. 10
were filed by Arthur J. Goldberg and 'Thomas E. Harris
�480"
,
OCTOBER TERM, 1953.
Opinion of the Court.
. 347 U. S.
for the Con~ress of Industrial Organizations and ·by
Phineas lndritz for the American Veterans Committee,
Inc.
MR. CHIEF JUSTICE WARREN delivered the opini.on:of
the Court.
"
These cases come ·.to· us from the States of Kansas,
South Carolina, Virginia, and Delaware. They are pre:'
mised on different facts and different local conditions"
but a common legal question justifies their consideration
together in this consolidated opinion. I
".
In the Kansas case, Brown v. Board 01 Education, the plaintiffs
are . Negro· children of elementary school age residing in Topeka.
They brought this action in. the United States District Court for the
District of Kansas to enjoin enforcement o.f a Kansas statute which
permits, but does not require, cities of more than 15,000 population
. to 'maintain separate school facilities for Negro and white students,
Kan. Gen. Stat. § 72-1724 (1949) .. Pursuant to that authority, the
Topeka Board of Education elected to establish segregated elementary
schools: Other public schools in the community, however, are oper
atedon a nonsegregated basis. The three-judge District Court, con
vened under 28 U. S, C; §§2281 and 2284, found that segregation
in public education has a detrimental effect upon Negro children,
but denied relief on the ground that the Negro and \"hite ,schools
were substantially equal with respect to buildings, transportation, .
curricula, and educational qualifications of teachers. 98 F. Supp. 797.
The case is here on direct appeal under 28 U.S. C. § 1253. .
In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro
children of both" elementary and .high school age residing in Clarendon
County. They brought this action in the United States District
Court for the Eastern District of South Carolina to enjoin enforce.
ment of provisions in the state constitution and statutory code which
. require the segregation of Negroes and whites in public schools.
S. C. ConsL, Art. XI, § 7; S.C. Code § 5377 (1942). The three
judge District Court; convened under 28 U. S. <:;. §§ 2281 and 2284,
denied the requested relief. .The court found that the Negro schools
were inferior to the white schools and ordered the defendants to begin
immediately to equalize the facilities. But the court sustained the
validity of the contested provisions and denied the plaintiffs adInis
I
BROWN v. BOARD OF EDUCATION.
'.
487
Opinion of the Court.
483
In each of the cases, minors of the Negro race, through
their legal representatives, seek the aid of the cpurts in
obtaining admission to the public schools of their com
.' munity on a nonsegregated basis. In each instance,
sion .to the white schools during the equalization program. 98 F.
Supp. 529. This Court vacated the District Court's judgment and
remanded the case for the purpose of obtaining the court's views
on a report filed by the defendants concerning the progress made in
the equalization program .. 342 U. S. 350. On remand, the District
Court found that substantial equality had been achieved except for
buildings and that the defendants were proceeding to rectify this
inequality as well. 103 F. Supp. 920. The case is again here on
direct appeal under 28 U. S. C. §'l253.
In the Virginia case, Davis v. County School Board, the plaintiffs
are Negro children of high school age residing in Prince Edward
County. They brought this action in the United States District
Court for the' Eastern District of Virginia to enjoin enforcement of
provisions in the state constitution and statutory code which require
the segregation of Negroes and whites in public schools. Va. ConsL,
§140i Va. Code §22-221 (1950). The three-judge District Court,
convened under 28 U. S. C. §§ 2281 and 2284, denied the requested
. relief. The'. court found the Negro school inferior in physical
plant, curricula, af!d transportation, and ordered the defendants
forthwith to provide substantially equal curricula and transportation
and to "pro<;eed with all reasonable diligence and dispatch to remove"
the inequality in physical plant. But, as in the South Carolina case,
the "court sustained the validity of the contested provisions and denied
the plaintiffs admission to the white' schools during the equalization
program. 103 F. Supp; 33.7." The case is hereon direct appeal
under 28 U. S. C. § 1253.
In the Delaware case,Gebhart v. Belton, the plaintiffs are Negro
children of both elementary ~nd high school age residing in New
Castle County. They brought this action in the Delaware Court
of Chancery to enjoin enforcement of provisions in the state consti
. tution and statutory cQde which require the segregation of Negroes
and whites in public schools. Del. Const., Art. X, § 2; Del. Rev.
Code § 2631 (1935). The Chancel\orgave judgment for the plain
,tiffs arid ordered their immediate admission to schools previously
att"ended only by white children, on the ground that the Negro schools
were inferior with respect to teacher training, pupil-teacher ratio,
extracurricuiar' activities, physical plant, and time and distance in
. 288037 O-~4-36.
�488
BROWN v.BOARD OF EDUCATION.
OCTOBER TERM, .1953.
Opinion of the Court.
347 U. S.
483
489
Opinion of the Court.
they had been' denied admission to schools' attended, by
white children under laws requiring or permitting segre-'
gation according to race. This segregation was alleged to
deprive the plaintiffs of the equal protection of the laws
under the Fourteenth Amendment, ' In each of the cases
other than the Delaware case, a three-judge federal dis
trict court denied relief to the plaintiffs on the so-called
"separate but equal" doctrine announced by this Court
in Plessy v; Ferguson, 163 U.,S. 53Z,~ Under that doctriIl;e,
, equality 'of treatment is accorded 'whenthe races are
provided substantially equal facilities, even though these'
facilities be separate. In the Delaware case, the Supreme ,
Court of Delaware adhered to that doctrine, butordered
that the' plaintiffs, be admitted to the white schools
because of their superiority to the Negro schools.
The plaintiffs contend that segregated public schools
are not Hequal" and ~_anriot be made ''E.~qual,'' and that
hence they are deprived'-~f the equal protection of the
laws. Because of the obvious importance of the question
presented, the Court took jurisdiction.2 Argument was
heard in the 1952 Term, and rearg'umeut was heard this
Term on certain questions propounded by the Court.3
. Reargument was largely devoted to the circumstances
slhrounding the adoption of the Fourteenth Amendment
in 1868. It covered exhaustively cpnsiderationof the
Amendment in Congress, ratification by the states, then
existing practices in racial segregation; and the views of
'proponents and. opponents of the, Amendment.' This
discussion and our own investigation convince us that,
although these sources cast some light, it is not enough
to resolve the problem with which we are faced. At best,
, . they are inconclusive. The most avid proponents of the
post-War' Amendments undoubtedly intended them to
remove all legal distinctions among "all persons born
or naturalized in the United States." Their opponents,
jUst as certaInly, were antag9nistic to both the letter and
thespirit of the Amendments and wished them to have
the most limited effect. What ,'others in Congress and
the state legislatures had in mind cannot be determined
with any degree of certainty.
'
'
An additional reason for the inconclusive nature of the
Amendment's history, with respect to segregated schools,
is the status of public education 'at that time! In the
South, the movement toward free common schools, sup
volved in traveL 87 A. 2d 862. The Chancellor also found that seg
regation itself results in an inferio~ educ'ation for Negro children (see
note 10, infra) ,but did not rest his decision. on that 'ground. !d., at·
865. The Chancellor's decree was affirmed by the Supreme Court of
Delaware, which intimated, however, that the defendants might be'
able to obtain a modification of the decree after equalization of the.
Negro and white schools had been accomplished. 91 A. 2d 137, 152.
The defendants, contending only that the Delaware courts had erred
in ordering the immediate admission of the Negro plaintiffs to 'the'
white schools, applied to this Court for certiorari. The writ was
granted,344 U. S. 89L ' The plaintiffs; \vho were successful below,
did not submit a cross-petition.
2344 U. S. 1, 141, 891..
,
3345 U. S. 972: The Attorney General of the United States par-'
ticipated both Terms as amicus curiae.'
• For a general study of the development of public education prior
to the Amendment, see Butts and Cremin, A History of Education in
. American Culture (1953), Pts. I, II; Cubberley, Public Education in
the United States (1934 ed.), cc. II-XII. School practices current
at the time of the adoption of the Fourteenth Amendment are de
scrib,ed in Butts and Cremin, supra, at 269-275; Cubberley, supra,
288-339, 408-43 I; Knight, '. Public Education in the Sou th (1922),
,cc, VIII, IX. See also H. Ex. Doc. No, 315, 41st Cong., .2d Se::;s.
(1871). Although the demand for free public schools followed sub
st:mtiallythe same pattern in both the North and the South, the
development in' the South did not-begin to gain momentum until
about i850, some twenty years after that in the North. The reasons
for the somewhat .slower development in the South (e. g" the rural
character of the South and the different regional attitudes toward
state assistance) are well exp!ained in Cubberley, supra, at 408-423.
In the country as a whole, but particularly in the South, the War
at
�490
BROWN v. BOARD OF EDUCATION.
OCTOBER TERM, 1953.
Opinion of the Court.
483
347 U. S.
ported by general taxation, had not yet taken hold.
Education of white childr,en was largely in the hands of
private groups. Education' of Negroes was almost non
existent, and practically all of the race were illiterate.
In fact, any education of Negroes was forbidden by law
in some states .. Today, in contrast, many Negroes have
achieved outstanding success in the arts arid, sciences as
well as in the business and professional world. It is·true
that public school education at the time of the Amend
ment had advanced further'in the North, but the effect
of the Amendment'on Northern States was generally
ignored in the congressional debates. Eveil in the North,
the ctmditions of public education did not' approximate
those existing today. The curriculum was usually rudi
mentary; ungraded schools were common in rural areas ;
the school term was but three months a year in many ,
states; and compulsory sch.ool attendance was virtually
unknown. As a consequence, it is not surprising that'
there should be so H,ttle in the history of the Fotir.teenth
Amendment .relating to' its intended' effect on public.,
.education.
In the first cases in' this Court construing .the Four~·
teenth Amendment, decided shortly after its adoption;
the Court interpreted it as proscribing all state-imposed
discriminations against the Negro race. S The doctrine of
virtually stopped all progress in public education. Id., at 427-428.
The low status of Negro education in all sections of the country,
both before and immediately after the War, is described in Beale, '
A History of Freedom of Teaching in Ame~ican Schools (1941), 112
132, 175-195. CompUlsory school attendance laws were not gen
erally adopted until after the ratification of the Fourteenth Amend
ment, and it was not until 1918 that such laws were in force in all
the states. Cubberley, supra, at 563-565.
~ Slaughter-House Cases, 16 Wall. 36, 67-72 (18i3); Strauder v;
West Virginia, 100 U. S. 303,307-308 (1880):
"It ordains that no State shall deprive any person of life, liberty, or
property, without due process of law, or deny to any person within
its jurisdiction the equal protection of the. laws. What is this but
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Opinion of the Court.·
"separate but equal" did not make its appearance in this
Court until 1896 in the case of Plessy v. Ferguson, supra,
involving not education but transportation.6 American
Courts navesiiiCeliiborea with the doctrine for over half
a century. In this Court, there have been six cases in
,volving the "separate but equal" doctrine in the field of
, public education. 7 InCummingv. 'County Board of
Education, '175. U. S. 528, and Gong Lum v. Rice, 275
U. S; 78, the validity of the doctrine itself was not chal
lenged. s · In ,more recent cases, all on the graduate school
declaring that the law in the States shall be the same for the black
as for the white; that all persons, whether colored or white, shall
stand equal before the laws of the States, and, in regard to the colored
race, for whose protection the amendment was primarily designed,
that no discrimination shall be made against them by law because of
their color? The words of the amendment, it is true, are prohibitory,
but they contain a necessary implication of a positive immunity, or
right, most valuable to the colored race,-the right to exemption from
unfriendly legislation against them distinctively as colored,-:-exemp
tion from legal discriminations, implYing inferiority in civil society,
lessening the security of their ,enjoYment of the rights, which others
enjoy,. and discriminations which are steps towards reducing them to
, the condition of a subject race."
. See also Virginia ~. Rives, 10(1 U; S. 313, 318 (1880); Ex parte Vir
ginia,l00 U. S. 339, 344-345 (1880).
6 The doctrine apparently originated' in Roberts v . City of Boston,.
59 Mass. 198,206 (1850), upholding school segregation against attack
, as being violative' of a state constitutional guarantee of equality.
Segregation in Boston public schools was eliminated in 1855. Mass.
.Acts 1855, c. 256. But elsewhere in the North segregation in public
education has persisted in some communities until recent years. It
is apparent that such segregation has long been a nationwide prob
lem, not merely one of sectional Concern.
7 See also Berea College v. Kentucky,211 U. S. 45 (1908).
'
8 In the Cumming case,'Negro taxpayers sought an injunction re
quiring the defendant school board to discontinue the operation of a
,high school for white children until the board resumed operation of
- a high school for Negro children. Similarly, in the Gong Lum case,
, the ·plaintiff, a child of Chinese descent, contended only that state
authorities had misapplied the doctrine by classifying him with Negro
children and requiring him to attend a Negro school.
�f"
492
OCTOBER TERM, 1953.
Opinion of the Court.
BROWN 'v.. BOARD'OF EDUCATION.
\
347U, S.
I
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483
493
Opinion of the Court.
i
level, inequality was found in' that specific benefits en
joyed by' white studentswe~edenied to Negro students
oLthe.§~me educational qualifications. Missouri ex reI. .
Gaines v. C~nada, 305 U. S. 337; Sipuel v. Oklahoma, 332
. U; S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin v.
Oklahoma State Regents, 339 U. S. 637. In none of
these cases was it necessary to re-examine the doctrine to
grant relief to the Negro plaintiff. And in Sweatt L
. Painter. supra. the Court expressly reserved decision on
the question whether Plessy v. Ferguson should be held
inapplicable to public education.
(' In the instant cases, that questlOn is directly presented.
Here;' unlike Sweatt v.' Painter, there are findings below
that the Negro and white school~ involved have been
equalized, or are being.equalized, with respect to build
ings, curricula, qualifications and salaries of teachers, and
other "tangible" factors. s Our decision, therefore,£a.!l
not turn on merely a comparison of these tangible factors
in the Negro and white schools involved in each of the
cases. We must look instead to the effect of segregation
..' .
,.
itself on public education.
In approaching this problem, we cannot turn the clock
back to 1868 when the Amendment was adopted, or even
to 1896 when Plessy v. Ferguson was written~ We must
consider public education in the light of its full develop
ment and its present place in' Am.erican life throughout
In the Kansas ease, the court below 'found substantial equality
as to all. such factors. 98 F: Supp. 797, 798.. In the South Carolina'
case, the court below' found ,that the defe!ldants were proceeding
"promptly and in good faith to comply with the court's decree." 103·
F.Supp. 920, 921. In the Virginia case, the. court below noted that
the equalization program was already "afoot and progressing" (103 F:
Supp. 337, 341); since then, we have been advised, in the Virginia
Attorney General's brief on reargument, that the program has now
been completed. 'In the Delaware case; _the court below similarly
noted that the state's equalization program was well under way .. 91
A. 2d 137, 149.
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the Nation. Only in this way can it be determined if
;~g~g~tion in public schools deprives these plaintiffs of
the'-eciual protection of the laws.
'
Today, education is perhaps the most important func
tion of state and local governments. Compulsory school
attendahce laws and the great expenditures for education
both demonstrate our recognition of the importance of,
education to our democratic society. It is required in,
the. perforqiance of our most basic public responsibilities,
even service in the armed forces. It is the very founda
tion of good citizenship: .Today it is a prinCipal instru
ment in awakening the_ -child t9cultural values,in
preparing him for laterprofesslo~al training, and in help
ing him .to ~djust normally to his environment::-~In-these
.·days, it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity
of an education. Such an opportunity, where the state
hasundertakeri to provide it, j~_~r!ght which must be
made available to all on equalterms. - ....- -'-- -. .
.
We come then to the question presented: Does segre
gation of children in public schools solely on the. basi&
of race,. even though . the physical facilities and other
"tangible" factors may be equal, deprive the children of
theminori.~y._group of equal educational opportunities?
We believe tha.tjt does.
.
In Sweatt v. Pf),inter, supra, in finding that a segregated
, law school for Negtoes could not provide them equal
educational opportunities, this Court relied in large part
on "those qualities whlchate incapable of objective meas
urement but which make for greatness' in a law school."
i~ 'M cLaurin v.' Oklahoma State -Regents, -supra, the
Court,in requiring that a Negro admitted to a white
graduate school be treated like all other students, again
'. resorted to intangible considerations: "... his ability
-to study, to engage in 'discussions and exchange views with
other students, and, in general, to learn his profession."
�<1:94
I
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OCTOBER TERM, 1953.
Opinion of the Court.
BROWN v. BOARD OF EDUCATION.
347 U. S.
Such considerations apply with added" force to children
in grade and high schools. To separate them from others
of similar age and qualification~ solely hecause of their
race generates a feeling of inferiority as to their status
in the community that may affect their hearts and minds
in a way unlikely ever to be undone. ' The effect of this
separation on their educational' opportunities was ,well
stated by a finding in the Kansas case by a court which
nevertheless felt compelled to rule against the Negro,
plaintiffs:
"Segregation of white and colored children in pub
lic schools has a detrimental effect upon the colored
children. The impact is greater when it has the
sanction of the law; for the policy of separating the
races is usually interpreted as denoting the inferiority
of the negro group. A sense of inferiority affects
,the motivation of a child to learn. Segregation with
the sanction of law, therefore, has a tendency to [re
tard l the educatioilaland mental, development of,
negr~ children 'and, to deprive them of some of the'
, benefits they would receive in a racial[ly] integrated
school system." 10
Whatever may have been' the extent c,f psychological
knowledge at the time of Plf:ssy v. Ferguson;ihis'flnding'
is, amply supporteq by ,modern authority.ll Any lan
483
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10 A similar finding was made in the 'Delawa.re case: "I conclude
from the testimony that in our Delaware society, State-imposed
segregation' in education, itself results in the Negro children, as, a
class, receiving educational opportunities which are substantially
inferior ~o those available to white children otherwise similarly
situated." 87 A. 2d 862, 865.
11 K. B. Clark, Effect of Prejudice and Discrimination on Personai
ity Development (Midcentury White House Conference on Children
and Youth, 1950); Witmer and Kotinsky, Personality in the Making
(1952), c. VI; Deutscher and Chein, The Psychological Effects of
Enforced Segregation: A Survey, of Social Science Opiniori, 26 J.
Psycho!. 259 (1948); Chein, What are the Psychological Effects of
I
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495
Opinion of the Court.
guage in Plessy v. Ferguson contrary to this finding is
" rejected.
,
,We conclude that in the 'field of pubiic education the
doctrine of "separate but equal" has no place. Separate
educational facilities are inherently unequal. "Therefore,
''we hold that "the plaintiffs and others sinlliarly situated
for whom the actions have been brought are, by reason,
of the segregation complained of, deprived of the equal
protection of the laws guaranteed by the Fourteenth
Amendment. This disposition makes unnecessary any
discussion whether such segregation also violates the Due
Process Clause of the Fourteenth Amendment.12
Because these are class actions" because of the wide
applicability of this decision, and because of the great
variety of local conditions, the formulation of decrees in
these cases presents problems of considerable complexity.
On reargument, 'the consideration of appropriate relief
was necessarily subordinated to the primary question
the constitutionality of segregation in public education.
, We have now announced that such segregation is a denial
, of the equal protection of the laws. ' In order that we
may have the full assistance of the parties in formulating
decrees, the cases will be' restored to the docket, and the
parties are requested to present further argument on
Questions 4 and 5 previously propounded by the Court
'for the reargument this Term.l3 The Attorney General
Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion
and Attitude Res. ~29 (1949); Brameld, Educational Costs, in Dis
crimination and National Welfare (MacIver, ed., 1949), 44-48;
Frazier, The Negro in the United States (1949), 674-{)81. And see,
generally Myrdal, An American Dilemma (1944).
12 See Bolling v. Sharpe, post, p. 497, concerning the Due Process
'CI~use of the Fifth Amendment.
13 "4., Assuming it is decided that segregation in public schools
violates the Fourteenth Amendment
"(a) WOUld, a decree necessarily follow, providing that, within the
�490
I
OCTOBER TERM"1953.
Opinion of the Court.
BOLLING v. SHARPE.
341 U.S.
Syllabus.
of the United States is again invited to participate. The
Attorneys' General of the' states requiring or permitting
segregation in public education will also be permitted to
appear as amici curiae upon request to do so bySeptem~
ber 15, 1954, and submission of briefs by October 1, 1954.14
I t is so ord(}red.
BOLLING
ETAL.
v. SHARPE
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No.8. Argued December' 10-11, 1952."'-Reargued December 8-9,
1953.-Decided May 17, 1954.
I
'limits set by normal geographic school districting, Negro children
should forthwith be admitted to schools of their choice, or
"( b) may this Court, in the exercise of its equity powers,. permit
an effective gradual adjustment to be brought about from existing
segregated systems to a system not based on color distinctions?
"5. On the assumption on which questions 4 (a) and (b) are
based, and assuming further that this Court will exercise its equity
.
powers to the end described in question 4 (b),
"( a) should this Court Connulate' detailed decrees in' these cases;
"( b) if so, what specific issues should the decrees reach;
"( c) should this Court appoint a special master to hear evidence
with a view to recommending specific tenns for such decrees; ,
"( d) should this Court remand to the courts of first instance with'
directions to frame decrees in these cases, 'and if .SO\~hat general
directions should the ,decrees' of this Court include and what pro
cedures should the courts of first' instan~e Collow' in arriving .at the
.
specific tenns of more detailed decrees?"
U See Rule 42, Revised Rules of this Court (effective July 1,1954).
497
(
Racial segregation !n the public schools of the District of Columbia
, is a denial to Negro children of the due process of Jaw guaranteed
by the Fifth Amendment. Pp. 498-500.
(a) Though the, Fifth Amendment. does not contain' an equal
protection clause; ,as does the' Fourteenth Amendment which ap·
plies only to the States, the concepts of equal protection' and due
process are not. mutually exclusive. P. 499.
, (b) Discrimination maybe so unjustifiable as to be. violative
'
of due process. ,P. 49~.
(c)Se~regation in public education is not reasonably r~lated
to any _'proper governmental objective, .and thus it imposes on
. Negro children of the District of Columbia a burden that consti·
tutes an arbitrary' depriv~tion of their liberty in violation oC the
Due Process Clause. Pp. 499-500.
(d) In view of this Court's decision in Brownv. Board 0/ Edu·
cation, ante, p. 483, that the Constitution prohibits the States from
maintaining racially segregated public schools, it would be unthink·
able that the same Constitution would impose a lesser duty on the
Federal Government. P. 500.
(e) The case is restored to the docket for further argument on
specified questions relating to the fonn of the decree. P. 500.
George E. C. Hayes and James M. Nabrit, Jr. argued
the cause for petitioners on the original argument
and on the reargument.. With them on the briefs were
George M. Johnson and Herbert a.Reid, Jr. Charles W.
Quick was also on tile brief on the reargument.
..Milton D. Korman argued the cause for respondents
on the original argument and on the reargument. With
him on the briefs were Vernon E. West, Chester H. Gray
and Lyman J. Um8tead.
�')f
"",,',
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536
OCTOBER TERM, 1895.
PLESSY
Decree of the Court.
;
Angle to right 12° 17' 30", course N. 10° 45' W. 1202~li:ft.
v.
.
$57575
. 56460
52000
52000
1500
. 4125
-
'Total .... : ....•.............. '._ .. _..... _', " ,
$223660
. And the court being now fully advised in the premises :
It is ordered that the exceptions to the report of said com.
missioners be overruled and that the. report of said. commis..
sioners be" and the same is hereby, confirmed;
And it is ordered, adjudged, and decreed that the boundary
line between said States of Indiana and Kentucky in contro
versy herein be, and it is hereby, established and declared to
be as delineated and set forth in said report and the map ac
companying the same and referred to therein, 'which map is
hereby directed to be filed as a part of this decree.
. .It is further ordered,adjudged, and decreed that the said
537
bouD-daryline as described .in said report and as delineated
on said map, and now'" marked by cedar posts, be permanently
marked as recommended in said report, with all convenient
. speed, and that said commission be continued for that purpose,
and make report thereon to this court, and that this cause
be retained un til such report is made..
.
Itis further ordered, adjudged, and decreed that the com- .
pensationand expenses' of the commissioners and the expenses
attendant on the discharge of their duties, up to this time,
be, artdthey are hereby, allowed at the sum of two thousand
two hundred .and thirty-six dollars and sixty cents in accord
ance,vitp the~r report, and that said cbargesand expenses
and the costs oltbis suit to be taxed. be equally divided be
tween the parties hereto, .
. .
And it is further ordered, adjqdged, and decreed that-this
. c}eQree is wi~hout prejudice to' further proceedings as either of
the partit:is may be advised for the determination of such part
of the :boundary line between' said States as may not have
. been settled by this decree under the pleadings in this case.
And it is further ordered, adjudged, and decreed that the
clerk of th is court do forth \vith transmit to the chief magis
trates of the States of Kentucky and Indiana copies of this
decree duly. authenticated under the seal of this court..
.
per Mr. CHIEF JUSTICE ·FULLER,•.
May 18, 1896.
inches, N .. 65° 35' E. 363.45 ft.· The above courses are run'
Il'om the true meridian as ascertained by observation at the
point on the map marked" W" on tbe line between township
six (6) and seven (7)..
Respectfully submitted.
. C. C. GENUNG, .
.Feb'y 3d., 1896..
.
0. E. and S . . 0.
.
FERGUSON.
Syllabus.
to' a post opposite the lower end of Green River Island, ~nd.
at low water as it was in 1792, witnessed bra sycamor~52
EXHIBIT "G."
Statement qf Costs and Expenses.
C. C. Genung, civil' engineer, services ren
deredby order of the commission ....... .
Exp~nses of Lieut. CoL Amos Stickney,
U. 's. A., commissioner ................ . $6460
Services as member of the commission .. ~' .. '50000
Expenses of Gaston M. Alves, commissioner . 2000
Services as mem ber of the :commission .... 50000
Expenses of Gustavus V. Menzies, .commis
sioner·.... : ............................' 2000'
Services as member of the commission . ; . . . 500 00
F. A. Guthrie, typewriter ............... .
. Kellar Printing Company ............... .
'V.
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PLESSY v. FERGUSON.
.
ERROR
TO
THE
i
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•
8UPRE:l!1E
COURT OF THE STATE OF.
210. Argued Apt1113, 1896. - Decided
LOUISIANA.
~lay 19,1896.
The statute of"Lou!slana, acts of 1890, No. 111, requiring railway compa
nies carryirig.-passengers in their coaches in that.State, to provide equal,
bllt separate. accommodations for ·the white and colored races, by 'pro
vldlngtwo or more passenger coaches for. each passenger train, or by
dividing tile passenger coaches by a partition so as to secure separate
accommodations; and providing that no person' shall be permitted to
occupy seats In coaches other than the ones assigned to them, on account
�",
538 .
OCTOBER TER;\f, 1895,
PLESSY v. FERGUS,ON.
.
~ ~.'"
Statement of the Case.
Statement of the Case.
".,
",
'of the race they belong to; anel reqlliring the officers of the passenger
trains to assign each passenger to the coach or compartment assigned
for the raCe to which he or she belongs; and imposing tines or imprison~
men~ upon passengers insisting' 011 going iuto a coach or compartmeut
other than the olle set aside for the race to which' he or she belongs;
and conferring upon officers of the trains power to refnse to carryon the
train passengel's refusing to occnpy the coach or compartment assigned
to them, anel exempting the railway company from Iillbilltyfor sUch
refusal, are uot in contlict with the provisions either of the Thirteenth
Amendment or of the Fourteenth Amendment to the Constitution of the
United States.
Tars was a petition for writs of prohibition and certiorari,
originally filed in the Supreme Court of the S~ate by Plessy,
the plaintiff in error, against the Hon. John H.Ferguson,
judge of the criminal District Court for the parish of Orleans,
and setting forth in substance the following facts:
. That petitioner was a citizen. of the United States and a
resident of the State of Louisiana, of mixed descent, in the
proportion of seven eighths Caucasian and one eighth Afri,can
blood; that the mixture of colored blood was .not discernible
in him; and that h~ was entitled to every recognition, right,
privilege and 'immunity secured to the citiulnsof the United
States of the white race by its Constitutionand laws; that .on
June 7, 1892, he engaged and paid for a first class passage on
the.East Louisiana Railway from New Orleans to Covington,
in the same State, and thereupon entert';ld a passenger train,
and took possession ofa vacant seat in a coach where 'passen
gers of the white race were accomnwdated; that such railroad
company was incorporated by the la\vs of Louisiana as a
common carrier, and was not authorized to distinguish be
tween citizens according to their race, . But, notwithstanding
tbis, petitioner was' required by the conductor, under penalty
of ejection fl'om said train and imprisonment, to vacate said
coach and occupy another seat in a coach assigned by said
company for persons not of the white race, and for no other
reason than that petitioner was of the colored race; that
upon petitioner's refusal to comply with such order,he was,
with the aid of a police officer, forCibly ejected from said
coach arid hurried off to and imprisoned in the parish jail of
539
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New Orleans, and' there held to answer charge made by
such officer to' the effect that he was guilty of having 'crim
inally violated an act of the G'ener::il Assembly of the State,
approved JUly 10, 1890, in such case made and provided.
That petitioner was' subsequently brought before the. re- .
corder of the city for, preliminary e:Kamination and committed'
for trial to the criminal District Court for the parish of
Orleans, where an information. was filed' against him in the
matter. above set forth, for a violation of the above act, which
. act the petitioner affirmed to be null and void, because in .
conflict with the· Constitution of the. United States; that
petitioner interposed a plea to such' information, based upon
the unconstitutionality of the act of the General Assembly, to
which the district attorney, on behalf of the State, filed a
demurrer; that, upon issue being joined upon such demurrer
and plea, the' court sustained the demurrer, overruled the plea,
and ordered petitioner to plead' over to the facts set forth in
the information, and that, unless the· judge of the said court
be enjoined by a writ of prohiQ.ition from further proceeding
in such case, the court will proceed to fine and sentence
petitioner to imprisonment, and thus deprive hini of his con
stitutional'rights set forth in his said plea, notwithstanding
the unconstitutionality of the, act under which he was being.
prosecuted; that no appeal lay from such s~ntence; and peti-.
tioner was without relief or remedy except by writs of pro
hibition and certiorari. Copies of the information and other'
proceedings in the criminal District Court were annexeq to
the petition as an exhibit. . .
,.t
'u pon 'the filing of this petition, an order waS issued upon
the respondept to ~how cause why a ~vrit of prohibition should
not issue a~ be made perpetual; and a furtller order that the
record of the proceedings had in the criminal cause be certified
and transmTtted to the Supreme Court..
To this order the respondent made answer, transmitting a
certified copy of the proceedings, asserting the constitutionality
of the law, and averring that, instead of pleading or admit
ting that he belonged to the colored race, the said Plessy
declined and refused, either by pleading or otherwise, to ad
�540
OCTOBER TERM, 1895.
PLESSY v.FERGUSON.
541
Opinion of the COllrt.
. mit that he was in any sense or
.man.
"-
Opinion of the Court•
.... ~-,.
"''''
any proPQrtiona colored
The case coming on for a hea!'ing before the Supreme Court,
that court was of opinion that the law under which the pros.
ecution was had was constitutional, and denied the relief
prayed for by the petitioner. Bx parte Plessy, 45 La~ Ann.
80. Whereupon petitioller pmyed for a IHit of error from this
court which was allO\ved by the Chief Justice of the Supreme
Court of. Louisiana.
.Mr. A. TV: Tou1·gee and Mr. S. F. Phillips for plaintiff in
.error. Mr. F. D. <McKenney was on M7'. Phillips's brief. .
M1'. James O. Walker filed a brief for plaintiff in error.
Mr. Alexander Porter Morse for defendant in error. Mt..
M. .7. Cunningham, Attorney General of the State of Louisi.
ana, and jJh. Lional Adams were on his brief.
MR. J US'rtcE BROWN, after stating the case, delivered the
opinion of the court.
This case turns upon the constitutionality of an act 0 f the
General Assembly of the State of Louisiana, passed in 1890.
for separate railway 'carriages for the white and
colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts" that all rail way corn.
panies carrying passengers in their coachesin this State, shall
pl'ovide equal but separate accommodations for the white, and
colored races, by providing two or more passenger coaches for
each passenger train, or by dividing the passenger coaches by
a partition so as to secure separate accommodations: Provided,
That this section shall not be construed to apply to street rail.
roads. No person or persons, shall be admitted to occupy
seats in coaches, other than, the ones, assigned, to them on
account of the race they belong to."
By the second section it \Vas enacted "that the officers of
snch passenger trains shall have power and are hereby required
•
•
to assign each passenger to the coach or 'compartment used
for the race to which such passenger. belongs; any passenger
insisting on going into a coach or compartlIlent to which by
race he does not belong, shall be liable to a fine of "twenty-five
dollars, or ill lieu thereof to imprisonment for a period of not
more than twenty days in the parish prison, and any officer
of any railroad insisting on assigning a passenger to a coach or
compartment other than the one set aside for the race to which
said passenger belongs, shall be liable to a fine of twenty-five
.dollars, 01' in lieu thereof to imprisonment for a period of not
more than twenty days in the parish prison; and should any.
passenger refuse to occupy the coach or compartment to which
he 01' she is assigned by the officer of such railway, said officer
shall have power to refuse to carry such passenger on his
train, and for such refusal neither he nor the rail way company
which he represents shall be liable for damages in any of the
courts of this State."
. The third section provides penalties -for the refus~l or neg
. lect of the officers, directors, cpnductors and employes.of rail·
way companies to comply with the act, with a prpviso that
"nothing in this act shall be construed as applying to nurses
attending children of the other race." The fourth section is
~~~d
.
The information filed in the criminal District Court charged
in substance that Plessy, being a passenger between two·
statioli~ \1:ithin the State of Louisian'a, was assigned by officers
of the company to the coach used for the race to which he be
longed, but he insisted upon going into a coach used by the
race to which he did not belong. Neither in the information
nor plea was his particular race or color averred .
. The pet.i(\on for the writ of prohibition averred that peti.
tioner was seven eighths Caucasian and one eighth African
blood; that.the mixture of colored blood was not discernible
in him, and, that he was entitled to every right, privilege and
immunity secured to citizens of the United States of the white
race; and that, upon such theory, he took possession of a va'
cant seat in a coach where passengers of the white race were
accommodated, and was ordered by the conductor to vacah:
�· 542
,.
OCTOHER TER,U, 1895.
PLESSY v. FERGUSON_'
5'43
Opinion of the Court.
Opinion of the Court.
said coach and take a seat in another assigned to perSons, of
the colored race, and having refused to comply with su~h
demand he 'was forcibly ejected with t~e aid, of {t police
officer, and imprisoned in ..the paris~ jail to answer a ,charge
, ,
of having violated the above,act.,',
The constitutionality of this act attacked upon theg,.ound
that it conflicts both, with the Thirteenth Amendment of the
Constitution, ab(jlishing slavery,and the Fourte~nth Amerid_
ment, which 'prohibits certain restrictive legislation on the
part of the States.
is
1. That it does not conflict with the Thirteenth Amend.
ment, which aboIishedslavery and involuntary servitude,'
except as a punishment for crime, is too clear' for argument.
Slavery implies involunt~ry servitude - a state of bondage;
the ownership of mankind as a chattel, or at least the control
of the labor and serVIces of 'one man for the benefit of another,
and the absence of alegal right to the disposal :'ofhis own
person, property and services. This amendment was said in
the Slaughter-house' cases, 16Wall. 36, to have been' intended
primarily to abolish slavery, as it had been previously known ,
in this, country, and that it' equally forbade Mexican peonage
or the Chinese coolie trade, when they amounted to slavery
or involuntary servitude, and that the use of the word "servi~
tude" was intended to prohibit ,the use of all forms of invol.
untary slavery, of whatever class or name. It was intimated, '
however, in that case that this amendment was regarded by
the statesmen of that day as insufficient to protect the colored
race from cel'tain laws which had been enacted in the Southern
,States, imposing upon the colored race onerous disabilities and
burdens, and curtailing ,their rights in the pursuit of life,
liberty and property to such an extent that their freedom,
was of little value'; and that the Fourteenth Amendment was
devised to meet this exigency.
So, too, in the Oivil Rights cases, 109 U. S. 3, 24, it was
said that the act of a mere individual, the owner of an inn, a
public conveyance or place of amusement, refusing, accommo
dations to colored people, cannot be justly regarded as impos
ing any badge of slavery or servitude upon the applicant, but
~
I
only as'involving an ordinary civil injury, properly cognizable
.by: the laws of the State, and presumably ,suhject to, redress
by tbose lawsurtil the contrary appears.. " It would be run·
ning the slaveryargum:ent. into the ground,'~ siddMr. Justice
Bradley," to make it apply to e\rery act of 'discrimination
which a person may see fit to, make as to the guests he w.ill
entertain, or as to the people he will take into his coach or cab
or car, or admit to his concert or theatre, or deal with in other
mattersof intercourse ()r business."
A statute which' implies merely a legal distinction between
the,vihite and .colored races-a distinction y·;'hicb is founded
in the color of the two races, and which mus,t al ways exist so
10llg'as white men are distinguished, from the other race by
color - has no tendency to destroy the legal equality of the
two races; or reestablish a state of involuntary servitude. In
deed; ~e do not understand that the Thirteenth Amendment
is strenuously relied upon by the plaintiff in error in this con,
nection.
'
.
,'"
2. 'By the ,Fourteenth Amendment;: all persons born- or
naturalized in the United States,.and 'subject to "the jurisdic
tion thereof, are made citizens of the United States and of the,
State wherein they reside; and 'the States are forbidden from
making or enforcing any law which shan 'abridge the. privi.
leges or immunities of citizens of the United States, or shall
deprive any person of life, liberty or property without due
process of 'law, or deny to any person -ivithin their jurisdiction~
the equal protection of the laws. ,
'
The proper construction of this amendment \vas first c~led,
to the attention of this court in the Slanghtel'-holtse caseiJ, 16
Wall. 3~, which involved, however, not a question of race, but
one of exclusive privileges. The case did not call fOl' any ex
pression of opinion as to, the exact rights it was intended to
secure to tlitJ colored race, but it was said generally that its
main purpos~ was to establish the citizenship of the negro; to
givedefinitlons of citizenship of the United States and of the
States: and to protect from the hostile legislation of the States
the privileges and immnnities of citizens of the United States,
as distinguished from those' of citizens of the States.
�544
OCTOBER TERM, 1895.
PLESSY v; FERGUSON.
OpiIJiOIl of the CQurt.
,Opinion' of the,Court.
The, object of the amendment was undoubtedly to enforce
the absolute equality of the tW? races before the law, but in
the nature of thingsit could not, ha \ye been int,ended to abol.
ish distinctions based upon color, or to enforce social, as dis.
tinguished from political equality, or a commingling of the
two races upon tel'ms unsatisfactory to either. La \Vs permit
ting, and even requiring, their separation in places where the\
. are liable to be brougllt into contact do not. necessarily imp);,
inferiorit.y of eitherrace to the other, an~ ha ve been gen- .
erally, if not universally, recognized as within the competency
of the state legislatures in the ,exercise of their police power.
The most common instance of tllis is connected 'With the.estab_
lishment of separate schools foJ' white, and,colol'edchilclren,
which has been held to bea valid exercise of the legislative
r
poi e'l' even by courts 'of. States \\I here the political rights of
the colored race have been longest and most earnestly en
forced,
'.
'
. One of the earliest of these cases is that of Robe;'~8 \T. Oity
of B08ton, 5 Oush. 198, in' which the Supreme .Judicial Oourt
of ll'fassachusetts held tl1<1t the general sellOol committee of
Boston had pOIVer to 'make' pJ'O\~ision for the instruction of .
colored children in separate schools established exclusi'-ely fOI'
them, and to llrohibit their,attendance upon the other schools.
~'The great pl'inciple," said Ohief Justice Shaw, p. 206; "ad.,
vanced by the learned and eloquen t ad vocate .for the plain.
tiff," (Mr. Oharles Sumner,) "is, that by the constitution ,and
la \vs of Massachusetts,' all persons without distinction of age
or
birth Or color, origin or condition, are equal before the
law.
. But: ,dien this great principle comes to be ap,
plied to the'actual and ,'aJ'iolls conditions of persons in society,
it will not 'warrant the assertion, that men and women are
legally clothed with the same civil and political powers, and
that children and adults are legany'to have the same func ..
'tions and be sUbject to the same treatment; but only that the
rights of all, as they are settled and regulated by law, are
equally entitled to the paternal consideration and protection
of the law for their rnainten;ince and security." It was .held
that the powers of the cOli1lilittee extended to the establish.
ment of separate schools for children of different ages, se:)i:es .
and colors, and that they might also establish speciai schools
for poor and neglected children, who have become too old to
attend the primary school, and yet have not acquired the rudi
ments of learning, to enable them to enter the ordinary
schools. Similar laws have been enacted by Oongress under
its general power of legislation over the District of Oolumbia,
Rev. Stat. D. C. §§281, 282, 283, 310, 319, as well as b,;the
legislatures of many of the States, ~nd have been generally,
if not uniformly, sustained by the courts. State v. JfcOann,
21 Ohio St. 198; Lehew v:. 'Brunimell, 15, S. W. Rep. 765;
Ward v. Ftood,48 Oalifornia, 36; Be)·tonnea1..t v. School Di
'rector8,3 Woods: 177; People Y. Gallagher, 93 N. Y. 438;
Oo~y v. Oa1'ter, 48 Indiana, 327; Daw80n ". Lee,83 Kentucky,
49.
Laws forbidding the intermarriage of the two races may be
'said in a technical sense to interfere with t.he freedom of con
. tract, and yet have been unive'i'sally recognized ~s within the
police power of the State~ State v. Gibson, 36 Indiana, 389.
The distinction between la\vs interfel'ing \vith the political
equality of the negro and tho~e req!11ring the separation of the
two races in schools, theatres' and rail waycari'iages has heen
frequently drawn by this court'. Thus inStmuder v. lfe8t Vi1'
ginia, 100 U. S. 303, it was held that a law of West Virginia
limiting to white male persons, 21 years of age and citizens
the State, the right ~o sit upon juries,. was a discl'iminatioQ;
which implied a l~gal inferiority in· civil society, which )es,
sened .the security of the right of the colored race, and 'v~s a
step toward reducing them to a condition of ser"ility. Indeecl~
the right of a colored mantilat., in the selection of jurors to
pass upon His 'life, liberty and property, thel'e shall be no ex
clusion of'1fis race, and no discrimination against them hecause
of color, h~~ been asserted in.a number' of cases. Vi1'ginia .Y.
Rive8,100:U. S. 313; Neal v. Delat,oare, 103 U. S. 370;.
Bush v. Kentucky, 107 U. S. 110; Gib80n v. Mi8si88ipJ,i,
162 U. S. 565. So, where the laws of a particular locality or '
t~e charter of a particular railway corporation has pro\'ided
that no person shaH be exCluded from the cars on account of
. .
,
,
545
or
l
\·OL. cLxm-3.5
I .
./
�546
OCTOBER TERM, 1895.
PLESSY v. FERGUSON;
54:7
Opinion of the Court.,
Opinion of the' Court.
'"
color, we have held that this meant that persons of color
should travel in the same car as white ones, and. that the'
enactment was not satisfied by the company's providing cars,
assigned' exclusively to people of color, though they ,"vere as
' good as those which they assigned exclusively' to white per
sons. Railroad Oompany v. .Brown, 17 Wall. 445. .
Upon the other hand, where a statute of Louisiana required
those engaged in the transportation of passengers among the
States to give to ,all persons travelling within that State, upon'
vessels employed in that business, equal rights and privileges
in all' parts of the vessel, without distinction on account of
race or color, and subject~d to an action for damages the
owner of such a vessel, who excluded' colored passengers on
account of their color from the cabin set aside by him for .the
use of whitef.!, it was held to be so far as it applied to interstate
commerce, unconstitutional and void. Hall v . ./)8 OMir, 95
. U. S. 485. The', court in this case, however, expressly dis
claimed that it had anything whatever to do with the statute
as, a regulation of internal commerce, or ,affecting anything
else .than commerce among the States.
In the Oivil Rig/its case, 109 U. S. 3, it was held that an
act of Congress, entitling all persons within the jurisdiction of
the United States to the full and equal enjoyment of the ac
commodations, advantages, facilities and privileges 'of inns,
public conveyances, on land or 'water, theatres and .other
places of public amusement, and made, a.pplicable. to citizens
of every race and color, regardless of any previous 'condition
of ser\'itude, was unconstitutional and void, upon the ground
that the Fourteenth Amendment was prohibitory upon the
States only, and the legislation authorized to be adopted by
Congress for enforcing it was not direct legislation on mntters
respecting which the States were prohibited from making or
enforcing certain laws, or doing certain acts, but was correc-.
ti,ve legislation, such as might be necessary or proper for coun"
teracting and redressing the effect of such laws or acts. In
delivering the opinion of the court Mr~ Justice Bradley ob
served that the Fourteenth Amendment" does not invest Con
gress with po\ver to legislate upon subjects that are within th9
'c
domain .of, state legislation; but to provide modes of relief·
against state, legislation, or state action, of the kind referred
to. It does not authorize Congress to create a code of munici
pal law for the regulation of private rights; but to provide
.modes of redress against the operation of state laws, and the
action of state officers, executive or judicial, when these are
subversive of the fundamental rights specified in the amend
'ment. Positive rights and privileges are undoubtedly secured
by the Fourteenth Amendment; but they are secured by way
of prohibition against state laws and state proceedings affect,
ing those rights and privileges, and by power given to Con
gress to legislate for the purpose of carrying such prohibition
into effect; and such legislation must necessarily be predicated
upon such supposed state laws or state proceedings, and'. be
directed to the correction of their operation and effect."
Much' nearer, and, indeed, almost diI:ectly in point, is t4e
case of.the Louisville, New Orleans &0. Railway v. Missis
sippi, 133 U. S. 587, wherein the raihvay company was in
dictedfor a violation of a statute of Mississippi, enacting that
an. railroads carrying passengers' should provide equal, but
separate, accommodations for the white ~nd colored races, by
providing two or ,more passenger cars for each passenger
train, or by dividing' the passenger cars by a partition, so as
to secure separate accommodations. The case was presented .•.
in a different aspect from the one under consideration, inas..:
much as it was an indictment against the railway company
for failing to, provide the separate accommodations, but' :t'he
question considered was the constitutionality of the law. In
that case, the Supl'eme Court of Mississippi, 66 Mississippi,
662, had held that the statute applied solely to commerce
within the S~te, and, that being the construction of the state
statute by its highest court, was accepted as conclusive. " If
. it be a mattlr/' said the court; p. 591, "respecting commerce
wholly within a State, and not interfering with 'commerce
between the States, then, obviously, there is no violation of
the commerce clause of, the Federal· Constitution. . . ' .
No question arises under this section, as to the power of the
State' to separate in differ~nt compartments interstate pas
�54:8
<
I
OOTOBEH TERM, 1895.
PLESSY v. FERGUSON.
Opinion- of the Court.
Opinion of the Court.
sengers, or affect, in any manner, the privileges and rights~of
sucp passengers. An that we can consider is, whether the
State has the power to require that· railroad trains within her.
limits shan have separate accomniodatiol)S for the t\Voraces;
that affecting only commerce within the State is. no invasion
of the power given to Congress by the commerce clause.,"
A like course of reasoning applies to the case under Con.
sideration, since the Supreme Court of Louisiana in the case of
the State ex ret. Abbott v. Hick.s; Judge, et at., 44: La. Ann. 770,
held that the statute in question did not apply to interstate
passengers, but was confined in its application to passengers
travelling exclusively within the borders of the State. . The
case was decided largely upon the authority of Railway 00.
v. State, 66 Mississippi, 662, and affirmed by this court in 133
U. S. 587. In the present (lase no question of interference'
with interstate commerce. can possibly arise, since the East
Louisiana Railway appears to ha\'e been pllrelya local line,
' with both its termini within the State of Louisiana.. Similar
statutes for the separation of the two races upon public Con
veyances were held· to be constitutional in West Ohe8ter &e.,
Raib'oad \'. ;,.~iles, 55Penn. St. 209; Day v. Olpen,'5 Michigan,
520; Okicago &0. Rail-way v. Williams, 55 Illinois, 185; Ohesa
peake etc. Railroad. v. Wells, 85 Tennessee, 613; Hemphis &c.
Railroad '\". Bens,on, 85 Tennessee, 627; The Sue, 22 Fed. Rep.
843; Logwood v. Hemphis &c. Railroad,23 Fed. Rep. 318;
.MoGuinn v. Foroes,37Fed. Rep., 639; People v. King, 18,
N. E. Rep. 245; Houok v. South' Pac. Rail-way, 38 Fed. Rep.,
2~fi; Heard v. GeOl'gia Railroad 00., 3 lnt. Coin. Oom'n, ]11;
8. 0., 1 Ibid. 428.
'
While we think the enforced separation of the races, as ap
plied to the internal commerce of the State, neither abridges
the privileges or immunities of the colored man, deprives him
of his property without due process of law, nor denies him the
equal protection of the ,laws, within the meaning of the Fo.ur
teenth Amendment, we are no.t prepared to say that the con.
ductor, in assigning passengers to the coaches according to their
race, does not act at his peril, or that the provision of the sec
' ond section of,the act, that denie~ to the passenger compepsa
.<
549
I
(
tion in damages for It refusal to receive him into ,the coach in
which he properly belongs, is a valid exercise of the legisla
tive power. Indeed; we-understand it to be conceded by the
State's attorney, that such part o.f the, act as exempts from
liability the railway company ,and its officer.s is unconstitu
tional. The power to assign to a particular coach obviously
implies the pow;er to determine tci which race the passenger
. belongs, as well as the power to determine who, under the
la"'sof the particular State, is to. be deenled a white, and who
a colored person. This question, though indicated in the brief
of the, plaintiff· in error,' does hot properly arise upon the·
'record in this case, since the only issue made is as to the
unconstitutionality of the act, so far as it 'requires the rail way ,
to provide separate accommodations, and. the conductor to
assign passengers acco.rding to their race. _
It is claimed by the plaintiff in error that,in any mixed com
munity, the reputation of belonging to the dominant race, in
. this fnstancethe white race, is property, in the same sense that
a right of action, or of inheritance, is p~operty. Conceding
this to beso, for the purposes of this case, we are unable to.
see how this statute deprives him of, or in any. way affects his
right to, such property. If he be a white man and assigned
toacoloredcoach, he may have his action for dalnages against
the company. for being deprived of his so called property .
Upon the other hand, if he baa ,colored man and be so ag
signed,he has been deprived _ no property, since he is not
of
lawfully entitled to the reputation of being a white man. , ;
In this connection, it is also suggested by ,the learned JlOUn
sel for the plaintiff in error that the same argument tha:-t will
'justify the state legislature in requiring railways to provide
separate aCyommodations for the two races 'will also authorize
them to r41uire separate cars to be provided for people iv hose·
hair is of a certain color, or who are aliens, or who belong to
certain nationalities, or to enact laws requiring colored people
to walk upon one side of the street, and .w hitepeople upon
the other, or requiring white men's· houses to. be painted
white, and colored men's black, or their vehicles o.r business
signs to be of different colors, upon the theory that one side
�;';'~/~~l
550
OCTOBER TEnl\I, 1895.
PLESSY v.
Opinion of the Court.
:;~hicle
.
.of the street is as good as the other, or that a house or
· of one color is as good as one of another color. The reply to
all this is that every exercise of the police power must be
· reasonable, and extend only to such laws as are enacted in
· good faith for the promotion for the pUblic good, and not
for the annoyance or oppression of a particular class. Thus
in Yick Wo v. Hopkins, 118 U. S. 356, it was held by this
court that a municipal ordinance of the city of San, Francisco.
to regulate the carrying on of public. 'laundries within th~
. limits of the.municipality, violated the provisions of the Con
stitution of the United States, if it conferred upon the mu
nicipal authorities arbitrary power, at their Own will, and
without regard to discretion, in the legal sense of the term,
to give or withhold consent as to person$ or places, without
regard to the com.retency of the persons applying, or the pro
priety of the places selected 'for the carrying on of the business.
It was held to be' a covert attempt on the part of the munici.
pality to make an arbitrary and unjust discrimination against
the Chinese race. While this was the case of a municipal
ordinance, a like principle has been held to' apply to acts of
a. state legislatl.lre passed in the exercise of the police. power,
Railroad Oom,pany v. Husen, 95 U. S. 465; lmtisville &:
.Nasl~ville Railroad v. Kentucky, 161 U. S. 677, and cases
cited on p..700; Daggett v. Hudson, 43 Ohio St: 548; Oapen
v. Foster, 12 Pick. 485; State em reI: Wood v. Baker, 38 Wis
consin, 71; MOn1'oe v. Oollins,17 Ohio St. 665; Hul8emanv.
Rems, 41 Penn. St. 396; Orman v: Riley, 15 California, .48.
So far,th.en, as a conflict with the Fourteenth Amendment
is concerned, the case reduces itself to the question whether
the statute of Louisiana is a reasonable regulation, and with
respect to this theremust necessarily.be a large discretion ori .
the part. of the legislature. In determining the question of
reasona~leness it is at liberty to act with reference to the es.
tablished usages, customs and traditions of. the people,' and
with a view to the promotion of their comfort, and the pres
ervation of the pUblic peace and good order. Gauged by this
standard, we cannot say that a law which authorizes or even
requires the separation of the two races in public conveyances'
FEl~GUSON.
551
Opinion of the' Conrt:
(
is unreasonable, or more obnoxious to the Fourteenth Amend
ment than the acts of Congress requiring separate sc~ools for
colored children in the District of Columbia, the constitution
ality of \vhich does not seem to have been questioned, or the
corresponding acts of state legislatures.
We. consider the uncterlying fallacy of the plaintiff's argu
lIlent to consist in the assumption that the enforced separation'
of the t\\·o races stamps' the colored race with a badge of in
feriority.' If this be so, it is not by reason of-anything found
in the act, but solely because the .colored race chooses to put
that construction upon it. The argument necessarily .assumes
that if, as has been more than once the case, and. is not un
likely to be so ago,in,' the colored race should become the
dominant power in the state legislature, and should enact a
hi. w in precisely similar terms, it would thereby relegate the
white race to an inferior position. We imagine that the white
race, at least, would not acquiesce in this assumption. The
argument alsonssumes thatsocial prejudices may be o\'ercome
by legislation, and that equal rights cannot be secured to the
negro except by an enforced commingling of the two races.
We cannot accept this proposition. If the two races are to
meet upon terInS of social equality, it must be the result of
natural affinities,a mutual apprecio,tion of each other's medts
and'a voluntary consent ~f individuals. As wa.s said by tt1e
Court of Appeals of New York in People v. Gallagller, 93
N. Y. 438, 448, "this end can neither be accomplished 'nol'
promoted by laws which conflict with the general 'sentiment
of the community upon whom they are designed to ·operate.
When the government, therefore, has secured, to each of its
citizens eq~lal rights before the law and equal opportunities for
improvell1~nt and progress, it has accomplished the end for
which it'vas organized and performed all of the functions'
l'especting>: social advantages with which it .is endowed."
Legislation is powerless to eradicate racial instincts or to
abolish dIstinctions lJased upon physical differences, and the
attempt to do so can only result in accentuating the difficuities
of the present situation. If the civil and political rights of
both races be equal one cannot be ,inferior to the other civilly
�552
OCTOBER TERM, 1895.
PU<;f3SY
DiSStollLilig Opiuion: Harlllll, J ..
It is true that tile question of the proportion of colored
blood necessar'j' to constitute a colored person, as distinguished
from tt white person, is one upon which there is a difference
of opinion in the differ'ent States, some holding that any yisi.
ble admixture of black blood stamps the person as belonging
to the colored race, (State \', OhwL'eJ's, 5 Jones, [N. C.] J, p. 11);
others that it depends upon the preponderance of blood, (Gray
v. State, 4: Ohio, 354: j .lYIon1·oe v. Oollill.~, 17 Ohio St. 665);
and still other's that the predominance of white blood must
only be in the proportion of till'ee fonrths.· (People v. Dean,
14: Michigan, 406; Jones v. OOJnmonweaUlt,SO Virginia, 538.)
But these al'e questions to' be deter'mined under the laws of .
. each State and are not· proper'!y put ill iSfiue in .this case.
Under the allegations of his petition it may undoubteply be-'
COllie a· y'uestion of impor'tance whether\. tUleter the laws of
Louisiana, the petitioner' belongs to the white or oolored race,
The judgment uf the court belmv is, thel'efore,
I.
Aj/h·med.
By the Louisiana statute, the validity of which isbere in
volved, all railway companies (other than street railroad
companies) carrying passengers in that State are required
to have separate but equal accommodations for white and
colored persons, "by providing two or more passenger ooaches
for each passenger train, or by dividing the passenger coaches
by a pm'tit/on so as to secure sepal'ate accommodations."
Under this statute, no colored person is permitted to occupy
a seat in a coach assigned to white persons; nor' any white
person, to occupy a seat in a coach assigned to colored persons.
The managers of the railroad are not allowed to exercise any
discretion in the premises, but are required to assign each
passenger to some coach or compartment set apart for the ex
clusive use of his race. If a passenger insists upon going int<?
a coach or compartment not set. apart for persons.of his rare,
553
J:
~ ~.
or politically. If one mce be inferior to the other socially:"
the Constitution ot the United States cannot put them upon
the same plane:.
.
.MR. J US'l'ICB HARLAN dissenting;
FERnUSON.
Dis:S'~lltilig Opinioll: Harlall,
..... ""
,J
1',
he is subject. to ue fined, OJ' to he imprisoned in the parish
Penalties are prescribed for the refusal or neglect of the
offie{ll's, llirectors, conductors and employes of railroad com
.
panies to comply with·the provisions of the act.'
Only'" nnrses attending children of the other race" are ex
cepted from the opel'ation of the statute. No exception is
made of colored attendants travelling with adults. A white
man is not permitted to IIa ve his colored serrant with him in
the same coach, e\'enif his condition of health requires the
constant, per'sonal ·assistance of such servant. If a colored
rmiid . insists upon ridillg in the same coach with a white
woman whom she has been employed to ser\re, and who may
Heed hel' 110I'Sonal atten tion 'while tl'tt \'elling, she is subject to
ue ~ned or imprisoned for such an exhibition of zeal in the
discharge qfduty.
.
"While the~e may he in Louisiana persons of different races
who are not citizens of the United States, the words in the act,
"white and colol'ed mces/, necessarily include all eitizens of
the Ul1itclI Stntes of both l'Uces residing in that State.. So
we ha\'c hefore us a. state e1lllctment that c.ompels: under
pen~Llties, the separation of the two races in raill'Oad passen
ger coaches, and makes it a crime for a citizen of eithel' race
to enter a coach that has been assigned to citizens of the
other race.
.
Thus the State regulates the use oia public highway by'
citizens of the United States solei,)' upon the basis of race.
However apparent the injustice of such legislation may be,
we have only to consider whether it is consistent witli.the
Constitution of the United States.
That a railroad is a public high way, and that the corpora
tion which O\tns or operates it is in the exercise of public func
tions, is not;bt this day, to be disputed. }\Il'; J llstice Nelson,
. . speaking for this court in New Jel'8ey Steam. Nav£gation 00.
.
v; JJfe'rchants' Ban":, 6 How. 344, 382, said that a common
carrier was itl the exercise" of a sort of public office, and has
public duties to perform, from which be snould not be per
mitted to exonerate himself without the assent of the parties.
concerned." Mr. Justice Strong, deliyel'ing the judgment of
~.
<
�t
;")54:
PLESSY
OCTOBER TERM, 1895.
FERGUSON.
. Dissenting Opinion:, Hnt'hn,
Dissenting Opinion: Harlan, J.
this court in Olcott ' T. The 8upervis01's, 16 W all. 678, 694, said:'
"That railroads, though constructed by private corporat"ions
and owned, by th~ril, are public highways, has been the doc
trine of nearly all the courts ever since such qonveniences for ,
passage and transportation.have had any existence. Very' eady"
the question arose whether a State's right of eminent domain
could be exercised by a private corporation created for the'
purpose of constructing a railroad. Clearly it could not,
unless taking, land for such a purpose by such an agency is
taking land for public use. The right of eminent doTllain
,nowhere'justifies taking property for a' pri\Tate use. Yet
it is a doctrine universally accepted that, a state legislatur~'
, ,may authorize a private corporation to take lal)dJor the: con- '
struction of such a: road, making compensation to the owner.
,What else doe~ this doctrine mean if not that building a rail
road, though it be built byaprivate cOI'poration, is an act
done for a public use?" So, in Towl1sMp qf Pi.ne ,{}rot'e v~
Talcott, 19 Wall. 666, 676: "Though the corporation [a rail
road company] was private, itS work was public,as much so as '
if it were to be constructed by the State." So, in Inhabitanl8
of W01'cesler v. Western Railroad 001'Poration~ 4: Met. 564:
"The establishment of that great thoroughfare is regarded as
a public work,established by public authority, intended for
the public use and benefit, the use of which is secured to •
the whole community, and constitutes, therefore, 1i~e a canal,
turnpike or. highway, a public easement." It is true that the
,real and personal property, necessary to the establishment
and management of the railroad, is vested in the corporation;
but it is in trust for the public."
,
In respect of civil rights, common toaH citizens, the Consti.
tution of 'the United States does not, I think, permit any pub.
lic'authority to know the race of those entitled to be protected
in the enjoyment of such rights. Every true man ,has pride
of race, and under appropriate' circumstances when the rights
of others, his equals before the 'law, are not to be affected,
it is his privilege to express such pride and to take such action
based upon it as to him seems proper. But I deny that any
legislative body or judicial tribunal-may have regard to the
11.
~
555
.r,
race of citizens when the civil rights of those citizens are in
. volved. .Indeed, such legislation, as that here in question, is
inconsistent not only with that equality of rights wbichper
,tains.to citizenship, National and State, but with the personal
1it~~rty enjoyed by every one within the United States. "
The Thirteenth Amendment does not permit the withhold·
ing or the deprivation of any right necessarily inhering in '
fl'cedom,' It not only struck down the institution of slavery
as previously existjng in the United States, but it prevents the
imposition of any burdens or disabilities that constitute budges.
of slavery or servitude. It decreed univCI'Sal civil freedom in '
this country. ,This court has so adjudged. But that amend
. ment having been found inadequate to the protection of the
rights of those who had been in slavery, it was followed hy
the Fourteenth Amendment, which added greatly to the dig
.. nity and glory of American citizenship, and to the security of
personal liberty, by declaring that" all persons born or natil:
ralized'in the United States, and subject to the jurisdiction
thereof, are 'citizens of the United States and of the State
wherein they reside," and that ".no State shall make .01' en
force any la:i.v which shall abridge the priYiieges or immunities
of citizens of the United States; nor shall any State d~lll'ive
any person of life, liberty or property without' due process
la w, nor deny to any person within its jurisdiction the equal
protection oHhe laws." These two amendments, if enforced
aecording to their true intent and meaning, will protect all
the civil rights that pertain to ,freedom . and citizenship.
Finally, and to the end that no citizen should be denied, on 'lit·
count of his race, the privilege of participating in tile political
control of his country,it was declared by the Fifteenth Amend·
ment that" thejright cif citizens of the United States to vote
not he dElDied'.r abridged by the United States or by any State
on account of race; color or previous condition of servitude." .
These notable additions to the fundamental law were wel
comed by the:·rriends of liberty throughout the world. They·
removed the race line from our governme'ntal systems; They
had, as this court has said,' a. common plII'pose, namely, to
secure "to a race recently emancipated, a race that through
�.
55~
octom~R 'rEIU!, 1895.
,
. PLESSY v. FERGUSON.
Dissclltir~g Opioiotl: Harlan,
557
J.
. many generations have been beld in slu\'el'j', all tb~ civil rights
that the superior race enjoy." Tbey declared, in legal effect'
this court has further said, H that tbe'law in tbeStates suali
' be the same for the black as for the white; tbat all persons,
colored or white, shall stand equal before the laws oC
the States, and, in regal'd to the colored race, for whose pro.
tection'the amendment was primarily designed,that no dis
. crimination slwll be made against them by law because of
their colol'." 'Ve also said: "The words of the 'amendment
it is tl'ue, are prohibitory, but tbey .contain a necessaf\' illl:
plication of a positive. immunity, or right, most valuab"le' to
the colored race - the right to exemption from unfriendlv' .
legislation against them distinctively as colored-exemptio~"
from legal discl'iminations, implying inferiority in ci\'n society,
l:3ssening the security of'their enjoyment of the rigbtswbich
enjoJ;, and disGr~minations which are steps 'towards reo .
(hwing them to the condition of a subject race." It was, con-'
sequently, adjudged that a state law that excluded citizens of .
the colol'ed I'acefl'om juries,becuuse of their I'ace and ho\\,e\'er
well qualified in other respects to discharge t.he duties of jury.
lIl,en, was repugnant to the ~9urteenth Amendment. Straltde'l'
v. ll'est' TTi1'gim:a, 100 U. S. 303,306, 30i; V'£l'ginia v. Rives,
100 U.S. 313;
parte Vi1'ginia, JOO U. S. 339; Nealv.,
Delaware, 103U. S. 370, 3S6; Bush v. Kent1toky, 107 U. S.
110, 116. At the present term, referring to the. previous ad.
judications, this court declared that "underlying all of those
decisions is the principle that the Oonstitution of the United
States, in its present form, forbids,
far as civil and political
rights al'e concerned, discrimination by ~he General GO\~ern
ment or the States against' any citizen because of his race.
All citizens are equal before the law." Gibson v. M1'SS£8.yippi,
162 U. S. 565.
.
.
Dissenting Opinion: Harlan, J •
I.
so
The decisions referred to show the scope of the. recent
amendments of the Oonstitution. They also shO\v tbat it is
not within the power of a State to prohibit colored citizens,
because of their race, from participating as jurors i,n the
administration of justice.
'
.
It was said in argument that the statute of Louisiana does
J
not discrimin9~te against either race, but prescribes a rule
applicable alike to white and colored citizens. . But this
argument does not meet tbe difficulty. Everyone knows
tbe statute in question had its origin iil the purpose, not
so much to exclude white persons from railroad cars occupied,
by blacks, as to exClude colored people from coaches occupied
by or assigned to. white persons. Railroad corporations of
Louisiana did. not make' discrimination among whites in
matter of accommodation for travellers. The thing to accom
plish was; under the guise of giving equ'ai' accommodation for '.
whites and 1;>lacks, to compel the latter to keep to themselv:es
while travelling in-railroad passenger:coac~es.No one would
be so wanting in candor as toassert the cQntrary. The funda·
mental objection, therefore, to the .statute is that it interferes
with the personal freedom of' citizens.· "Personal liberty,"
it has been well 'said, "consists in tlie pi:nver of looomotion,
of changing' situation,or removing one's person to whatsoe\rer
places 'one's own inclination may direct, without. imprison-'
ment
,restraint, unless by due courSe of law." 1 Bl. Oom.
*134. If a white man and a black man choose to occupy the
same public conveyance on a public highway, it is their right_
to do so, arid no government, proceeding alone on grounds of
race, can prevent-it without infringing the personal liberty of
each.
It is one thing for railroad carriers to furnish, or t~ be re!"
quired by law to furnish, equal accommodations for all whom
they are under a legal duty to carry. It is quite another
thing for government to forbid citizens of the white andqlack
races from travelling in the same public conveyance, arid to
pun ish officers of railroau companies for permitting persons
of the two races to occupy the same passenger coach., If a
State can pt~scribe, as a rule of civil conduct, that whites and
b'lacks shall n'ot travel as passengers in the' same railroad
coach, whyhlay it not so regulate the use of the streets ofHs
cities an,d towns as to conipel white citizens to keep on one
side of a street and black citizens to keep on the other ~ Why
may it not, upon like grounds, punish whites and blacks who
ride together in street cars or in open vehicles on a pnblic road,
...
or
�558
PLESSY
OCTOBER TEltM, 1895.
'V.
FERGUSON.
559
r,"'
Dissenting Opinion: Harlan, J.
Dissenting Opinion: Harlan, J.
"' ..
or street? Wily lllay it not require sheriffs to assign whites to,
one s~de of a court-r~o~n and black? to. the other? And why,
may It not also pl'olllbit the commInghng of the' two races in
the gaIlel'ies of legislative hulls or in public assemblages con
vened for the consideration of the political questions of the day 1
Further, if this statute of Louisiana is consistent with'the per
sonalliberty of citizens, why may not the State require the sep
aration in railroad coaches of nati\'e umI naturalized citizens of
the U nitedStates, or of Protestants and Roman Catholics 1
The answer given at the argument to these questions Was
that regulations of the kind they suggest would be unreaso'n
nble, and could not, therefore;' '~tand befol'e thela W.' Is it.
meant that the determination of questions of legislative power
depends upon the jnquit~y whether the statute whose validity
is questioned is, in the judgment of the courts, a reasonable
one, taking all the circumstances .into consideration? A
statute may be unreasonable merely because a sound public
policy forbade its enactment. But I tIo not understand that
the courts ha\'e anything to do with the policy or expediency.
of legislation. A statute may be valid, and yet, upon grounds
of public policy, may well be characterized as unreasonable.
11£1'. Sedgw'ick correctly states the rule when he says that the
legislative intention being clearly ascertained," the courts have
no other duty to perform than to execute the legislative will,
without any~ regard to·their yiews 'as to' the wisdom or justice
of the particular enactment." . Stat. & Conl)t. Constr. 324.
There is a dangerous tendency in these latter days to enlarge
the functions of the courts, by means of judicial interference
with the will of the people as expressed by the legislature ..
'
the distinguishing characteristic that the
of gO\1ernment are coordinate and separate.
must keep within the limits- defined by the Constitution.
And the courts best discharge their duty by executing the
will of the law-making power, constitutionally expressed, leav
ing the results of legislation to be dealt with by the people
through their representati\~es. Statutes must always have a.
reasonable construction, Sometimes they are to be construed
stl'ictly; sometimes: lihel'ally, ill ol'Clel'to carry out the Iegisla.-
(!
. I
tive will .. ' But however construed, the intent of the legisiature
is to be respected, if the particular statute in question is valid,
although the courts, looking at the public, interests, may con
ceive the statute to be both unreasonable and impolitic. If the
po\ver exists to enact a statute, that ends the matter so far as
the courts 'are concerned. The adjudged cases in which stat
utes _have been·beld to be void, because unreasonable, are those
. in which the means employed by the legislature were not at
. all germane to the 'end to which the legislature was competent.
The white race deems itself to be the dominant race in this· .
counfry. And so it is, in prestige, in achil?vements, in educa
tion, in wealth and in power. So, T doubt not, it will continue
. to be for all time, if it. remains true to its great heritage and
holds fast to the principles of constitutional liberty. But
yiew of-the Constitution, in the eye of the law, there isin this
country no sllperior, dominant, ruling class of citizens. T.here
is no caste here. Our ConstitutioQ. is color-blind, .and neither
'knows nor tolerates classes among citizens. In respect of
.civil rights, all citizens are equal before the law'. The hum
blest is the peer of the most powerful. The law regards man
as man, and takes no account of his surroundings or of his
color when his civil rights as guaranteed by the supreme law
of the land are involved. It is, therefore, to be regretted that
thi~ high tribunal, the final expositor of the fundamental law.
of the land, has' reached the conclusion that it is competent'
for- a State to regulate the enjoyment by citizens of their civil
rights solely upon the basis of race. .
In my opinion, the judgment this. day rendered wilt; in
time, prove to be quite as pernicious as the decision made by
; this tribunal in the Ih-ed Scott case, It was adjudged in that
case that theidescendants of Africans who were imported into
this countr,Y4ind sold as slaves were not inCluded nor intended
to be inclu~d under the .word" citizens" in the Constitution,
and could not claim any of the rights and 'priyileges which
that instrument provided for and secured to .citizens of the
United States; that at the time of the adoption' of the Con
they were" considered as a subordinate and inferior
class of beings: who' had been subjugated by the dominant
;
i
I
�560
OqTO BER 'rImMJ , 18\);). '
561
PLESSY v. FERGUSON.
Dissenting Opinion: Hnrlan, J.
DIssenting Opinion: Harlan, J.
'.'.
race, and, whether emancipated UJ' nut; yet' J'errfained subject
. to their authority, and had no rights (}r pr'l\'ileges but such as
those who held the power and the govemment might' choose
to grant them." 19 How. 393, 404.. The recent amendments
of the Oonstitution, it was supposed, had eradicated these
principles from our institutions. But' it seems, that we ha\"~
yet, in some of the States, a dominant mce - a superior class
of dtizens, which assumes to regulate the enjoyment of cid!
rights, common to all citizens, upon the basis of race. The
present 'decision, it may well be apprehended, will not only ,
stimulate aggressions, more or less bl'Utal and irritating, upon
tqe admitted rights of colored citizens, but will encourage the
belief that it is possible, by, mea.ns of state enactments, to
defeat the beneficent purposes which the people of the U nite(l
States had in view when they adopted the recent amendments
of the Oonstitution, by one of which the blacks of this COun- ,
try were made citizens of the United States '~tnd of the States
in which they respectively reside,and \\' hose privileges and
immunities, as citizens, the States al'e forbidden to abridge..,
Sixty millions of whites are in no (lallger from the presence
here of eight millions of blacks~ The destinies of. the two'
races, in this country, are inclissolubly linked together, and the
interests of both require that the comlllon' government of all
shall not permit ,the seeds of race hate to be planted under the
sanction of iaw. What can mOI'e. certainly arouse race hate,
what more certainly create and perpetuate a feeling of distrust
between these races, than state enactments, which, in fact, pro
ceed on the ground that colored citizens. are so inferior and de
graded that they cannot be allowed to sit in public coaches
occupied by white citizens? That, as all will admit, is the .
real meanin!r of such lecrislation ils was enacted in Louisian:l ..
b
.
The sure guarantee of the peace and security of each I"ace
is the clear, distinct, unconditional recognition by our govern
ments, National and State, of every right that inheres in civil
freedom, and of the equality before the law of all citizens of
the United States without regard to race. State enactments,
regulating the enjoyment of civil rights, upon the basis of
race, and cunningly devised to defeat legitimate results of the
~
war, under the pretence of recognizing equality of rights, can
have no other result than to render permanent peace impossi
ble, and to keep alive a conflict of races, the continuance of
which must do harm to all concerned. This question is' not
met by the suggestion that social equality cannot exist between
the white and black races in this country. That argument,
if it can be properly regarded as one, is scarcely worthy of
consideration; for social equality no more exists between two
races' \~hen travelling ina passenger coach or a public highway
than when members, of the same races sit by each other in 'a
street car or in the jury box,' or stand or sit with ea,ch other
in a political assembly, or when they use in common the streets
of a city or town, or when they are in the same room for the
purpose of having their names placed on the registry of voters,
'or i,.vhen they approach the ballot-box in order to exercise the
high privilege of voting.
'
There is a race' so different fropl our' own that we do not·
permit those belonging to it to become citizens of the United
States. Persons belonging to it are, .with, few exceptions,
"absoluteiy. excluded from' our country_ I allude to the Ohi
nese race. But by the statute in question, a Chinaman can'
ride in the same passenger coach with white citizens of the
United States, 'while citizens of the black race in Louisiana,
many of whom, perhaps,' risked their lives for the preserva
tion of the Union, who are entitled, by law, to' participate in.
the political controL of the State and nation, who are not ex
cluded, by law or 'by reason of their race, from public station~,
of any kind, and who have all the legal rights that belong to
white citizens, are yet declared to be criminals, liable to im-.
prisonment, if tl;ley ride in a public coach occupied by citizens
of the whiterahe.It is scarcely just to say that a colored
citizen should il'lit object to occupying a public coach assigned
to his own rac~., He does not object, nor, perhaps, would he
object to separate coaches for his race, if his rights under the
law were recognized. But he objects, and ought never to cease
, objecting to the proposition, that citizens of the white arid
black races can be adjudged criminals because they sit~ or claim
the right t.o sit, inthe same public coach on a public highway.
YOLo
cLxm-36
'
�OCTOBER TERilI, 1895.
PLESSY v. FERGUSON.
Dissentltlg Opinion: Harlan, J.
562
563 .
:pissenting Opinion: Harlan, J.
The arbitrarysepamtion of citizens, on the basis of r~oe ,
.
while they are on a public highway, is a badge of servitude
wholly inconsistent with the civil freed6mand the equality
. before the law established by the Constitution. It cannot be
justified upon any legal grounds.
. .
If evils will result from thecomminglingpf the t\VO races
upon public highways established for the benefit of all, they"
will be irifinitely less' than· those that will surely come from
state legislation regulating tile erijoyment of civil rights upon
the basis of race. We boast· of the freedom enjoyed by our
people above all other peoples. But it is difficult to reconcil~
that boast with a state of the la 'v which, practically,- puts the
brand of servitude and degradation upon a large class of Our
fellow-citizens, our equals before the law. The thin disguise of
"equal" accommodations for passengers in railroad coaches
not mislead anyone, nor atone for the wrong this day done.
The result of the whole matter is, that while this court has'
frequently adjudged, and at the present term has recognizetl
the doctrine, that a State cannot, consistently with the Con
stitution of the United States, prevent white and black citizens,
having the required qualifications for jury service, from sit
ting in the same jury box, it is now solemnly held that a State
may prohibit white and black citiz~ns from sitting in the same
passenger coach on a public highway, or m~y requfre that they·· .
b"e separated by a "partition," when in the same passenger
coach. lfay it not now be reasonably expected that astute
men of the dominant race, who affect to be disturbed at the
possibility that the integrity of the white race may' be cor~ .
rupted, or that its supl'emacy wiII be imperilled, by contact on
public highways 1vith black people, will endeavor to procure
statutes requiring white and black jul'Ors to be separated in
the jury box by a "partition,"and that, upon retiring from
the court room to consult as to their verdict, such. partition,
if it be a moveable one, shall be taken to their consultation
room, and s'et up in such way as to prevent black jurors from
coming too close to their bl'other jurors of the white race. If
the" partition" used in the court room happens to be .station
ary, provision could be made fol' screens with openings through
which jurors of the two races could confer as to their verdict
without coming into personal contact with each other: I can
not see'but that, acc9rding to the principles this day announced, .
. such state legislation, although conceived in hostility to, and
enacted for the purpose of humiliating citizens of the United
States. of a particular race, would. be held to be consistent
with the Constitution.
.
Ido not deem it, necessary, to review the decisions of state
courts to which reference was made in argument. Some, and,
the most important, of them are wholly inapplicable, because
rendered prior to the adoption of the last amendments of the
Constitution, when colored people had very few rights which
the dominant race felt obliged to respect. Others were made
at a time when public opinion, in many localities, was domi
nated by the institution of slavery; when it would not have
been sale to do justice to ,the black man; and when, so far as
the rights of blacks were concerned, race prejudice was, prac"
tically, the supreme law of the land: Those decisions cannot
be guides in the era introduced by the recent amendments of
the supreme law, which established' universal civil freedom,
gave citizenship toall born or naturalized in the United'States
a'nd residing here, obliterated the race line from oursysterris
of governments; National and State, and placed our free in
stitutions upon the broad arid sure fouridationofthe equality.,
. of all men before the law.
I am of opinion that the statuteof Louisiana is inconsistent
with the personal liberty of citizens, white and black, in .t~at
State, arid hostile to both the spirit and letter of the Consti
tution of the United States. If laws of like character should
be enacted in the "Bev.eral States of the Union, the effect would
be in the highest degree mischievous. Slavery,:is an institu
tion toleratea: by law w:ouid, it is true, have disappeared from
our country,~but' there would remain a power in the States,
by sinister legislation, to in,terferewith the full enjoyment of
the blessings of freedom j to regulate civil rights, common to
all citizens, upon' the basis of race; and to place in a condition
of legal inferiority a large body of American citizens, now
constituting a part of the political community called the
�..
564
OCTOBER TERM, 1895.·
UNION PAciFIC R'Y CO. y. CHICAGO &c. R'Y CO.
Syllabus.
Syllabus.
People of the United States, for whom, and by whom thro~gh
representatives, our government is administered. Such a sys
tem is inconsistent with the guarantee given by the Constitu_
tion to each State of a republican form of government, and
may be stricken down by Congressional action, or by the
courts in· the discharge of their solemn duty to maintain the
supreme law of the land, anything in the constitution or laws
of any State to the contrary notwithstanding.
For the reasons stated, I am constrained to withhold my
. assent from the opinion and judgment.of the majority. ,
MR. JUSTICE BREWER did not hear.the argument or partici~
pate in the decision of .this case.
UNION PACIFIC RAILWAY COJl.fPANY et al.1 v.
. CHICAGO, ROCK ISLAND AND PACIFIC RAIL-
WAY COMPANY.
UNION PACIFIC RAILWAY COMPANY v. CHI
CAGO, MILWAUKEE AND ST. PAUL RAIL
WAY COMPANY.
APPEALS FROM THE CIROUITOOURT OF APPEALS FOR THE EIGHTH
CIROUIT.
No•. 1~7, 1:;''\,
.hl(l..d "l'rI121. 22. lR9r..- f)""i<l~d May 2~, 11l96,
Railroad corporations possess the powers. Ivhich nre expressly conferred
by their charters, together with sueh powers as are fairly incidental
thereto; and they cannot, except with the coil sent of the State, disable
themselves from the discharge of the fUllctions, duties and obligations
whicb they haVllassumed.
The general rule is that a contract by which a railroad company renders
itself incapable of performing Its duties to the public or attempts to.
absolve Itself fl'om those obligations without the consent of .the Atate'
,I
The other party was Tht Omaha and Republican Val/til Railwav Com- .
'JlI:tnll·
565
.
or a contract made by a corporation beyond the scope of Its powers,
express or implied, on a proper construction of its charter, Cannot
be enforced. or rendered enforceable by the application of the doc
trine of estoppel; but where· the subject-matter of the contract is not
foreign to the purposes for which the corporation' is created, a con
tract embracing whatever may fairly be regarded as Incidental' to,. or .
consequential upon, those things which the legislature has authorized, .
ought not, unless expressly prohibited, to be held by judicial construc
. tion to 'be ultra vires.
The' contract' with the Rock Island Company on thelJart of the Union
Pacific Company which forms one· subject of this controversy ·was
one' entirely within the corporate powers of· the latter company,
and. throughout the whole of It there· is nothing which looks .to any
actual. possession by the Rock Island Company of any of the Union
Pacific property beyond that which was involved in its'trafns being run
over the tracks under the direction of the other company; 'and this was
an arrangement entirely within the corporate powers of the Union
Pacific Company to make, ·and which was in no respect ultra vires.
The common object of the act of Febrmiry 24; 1871, c. 67, regarding the
construction of a bridge across'the Missouri at Omaha, and the act of
July 25, 1866, c. 246, touching the construction of se\'eral bridges across
the Mississippi, was .the more perfect connection of the roads running
to the respective bridges on either side; and being construed Iiherally,
as they sbould be, the scheme of CQngress in, the act of 1871 was to
accomplish a more perfect connection at or near Council Bluffs, Iowa,
and Omaha, Nebraska,
It being within the power of the Union Pacific Company to enter into con
tracts for running arrangements, including the use of its track and the
connections and accommodations provided for'bY the contract in contro·
.versy, and that contract not being open to the objectiol\ tilat it disables the
Union Pacific Company from discharging Its duties to the public, It will
not do to hold It ,·oid. and to allow the Union Pacific Company to escape
from the obligations which it has assumed, on the mere !:!uggestton that
at some time in the. remote future a contingency may arise which w,ill
prevent it from performing its undertakings in the contract.
Other objections made on behalf of the Uniol\ Pacific Compauy disposed, of
as follows: (1) The provision in the contract respecting. reference
does' not tllke fFom the company the full control of its road; (2) Its
acts rn constrPiting its road in Nebrask!\, not having been objected to by
the State, must, in the absence of proof to the contrary, be deeiDed valid;
(3) The contr~t is not to be.deemed invalid because, during its, term,
the cha.rter of ·thel Rock Island Company will expire; (4) The Republl
can Valley Company, being a creation of· the Pacific Company, is bound
by the ·contract;· (5) The Pacific Company has power. under its charter,
to operate the lines contemplated by these contracts, It being a general·
'principle that where a corporate contract is forbidden by a statute or is
obviously hostile to the pnbiicadvantage or convenience, the courts dIs
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Stephen Warnath - Civil Rights Series
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Stephen Warnath
Civil Rights Series
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-1997
Is Part Of
A related resource in which the described resource is physically or logically included.
<a href="http://clinton.presidentiallibraries.us/items/show/36406" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Description
An account of the resource
Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
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Clinton Presidential Library & Museum
Format
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Adobe Acrobat Document
Extent
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134 folders in 13 boxes
Text
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Original Format
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Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Cases [Civil Rights] [2]
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Steven Warnath
Civil Rights Series
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 2
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/Warnath-DPC-Civil-Rights.pdf" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
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Clinton Presidential Library & Museum
Medium
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Reproduction-Reference
Date Created
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2/8/2012
Source
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641686-cases-civil-rights-2
641686