CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 32 Equal Protection III
Constitutional Text: Amendment XIV: “No state shall make or
enforce any law which shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”
II. Facially Race Neutral Laws
A. Is discriminatory purpose required for such a law to be treated as
a racial classification?
B. What about a discriminatory effect?
C. Village of Arlington Heights v. Metropolitan Housing Development
Corp. (1977) [C p. 688]
a. statistical pattern
b. history of official action
c. legislative/administrative history of regulation
d. burden shifting effect
e. if the Court finds a discriminatory purpose, is strict scrutiny
applied?
III. Remedies for Equal Protection Violations
A. Court will sometimes simply invalidate the offending law, e.g.
Loving v. Virginia (1967) [C p. 659]
B. Why have courts had difficulty in fashioning remedies in school
desegregation cases?
i.
Resistance to Brown, e.g. Cooper v. Aaron (1958) [C p. 694]
ii.
Difficulty in proving discrimination in Northern states
where there was never de jure segregation, only de facto
desegregation.
C. Power of courts to issue remedies in school desegregation cases
becomes more limited over time
i.
Swann v. Charlotte-Mecklenburg Board of Education (1971)
[C p. 697]
ii.
Milliken v. Bradley (1974) [C p. 700]
D. When court desegregation orders should end
i.
Board of Education of Oklahoma City v. Dowell (1991) [C p.
703]
ii.
Freeman v. Pitts (1992) [C p. 705]
iii. Missouri v. Jenkins (1995) [C p. 705]
I.
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