Classification on the FACE of the law 1. Race specific classifications that disadvantage racial minorities upheld in Korematsu (Japanese Americans during WWII - only instance) 2. Race Classifications burdening BOTH whites & minorities a. Loving v. VA – unconstitutional to forbid interracial marriage b. Palmore v. Sidoti – no deny custody when stepfather of different race 3. Laws requiring separation of the races – only allowed if meet SS a. Plessy v. Ferguson – upheld separate but equal b. Brown v. Board of Education – no segregation in public education ii. Facially Neutral laws w/a Discriminatory Impact/Administration 1. Rule : require proof of discriminatory purpose ( Davis ) AND effect ( Palmer ) 2. Discriminatory purpose a. WA v. Davis – police entrance exam b. McCleskey v. Kemp – death penalty to blacks c. City of Mobile v. Bolden – at large elections 3. Discriminatory effect - Palmer v. Thompson (swimming pools) 4. Rule : discriminatory purpose is proven by… a. Showing proof that the gov’t desired to discriminate b. It is not enough to prove that the gov’t took action w/knowledge that it would have discriminatory consequences (Feeney) c. Ex: Feeney – hiring preference to veterans d. Arlington Heights v. Metropolitan Housing – zoning low income 5. Discriminatory use of Preemptory Challenges is not permitted based on race ( Batson ) or gender ( JEB ) by the prosecutor ( Batson ), the civil litigant ( Edmonson ) and criminal defendants ( McCollum ) a. Batson Test: whether impermissible discrimination in jury selection i. Δ prima facie case of discrimination ii. burden shifts to prosecutor to offer race-neutral explanation iii. court decides whether explanation is persuasive d. Remedies – the problem of School segregation 2
i. Brown v. Board of Education – ordered school desegregation ii. Massive Resistance – ex: Cooper v. Aaron (Little Rock & National Guard, reasserted that Brown is the law and the state’s must follow the federal judiciary) iii. District Courts have broad discreation to impose remedies in school desegregation cases ( Swann v. Charlote-Mecklenburg Board of Education ) 1. Ex: Millikin v. Bradley – multidistrict remedy not generally allowed e. Racial Classifications Benefiting Minorities (SS) i. SS used to evaluate all gov’t affirmative action plans ii. The use of race to benefit minorities in college and university admissions not allowed if using quotas or numerical qualifications 1. Gruter v. Bollinger – MI Law upheld under SS b/c race a factor, not the 2. Gratz v. Bollinger – MI undergrad point system invalidated 3. Seatle School District case – white/non-white determinations not allowed 3. Gender Classifications a. Early cases approving gender discrimination i. Bradwell v. IL – prohibited women licensed to practice law ii. West Coast Hotel v. Parish – uphold minimum wage law for women b. Evaluate Gender with Intermediate Scrutiny ( Craig v. Boran ) i. Reed – invalidated gender classification (1st time) re: hierarchy of estates ii. Frontiero – gender should be subject to SS (no to law re: women prove dependence) iii. Craig v. Boren
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