Crossroads: Equal Opportunity Page | 2
segregation of public schools. The dissenters, in opinions written by Justice John Paul Stevens andStephen Breyer, forcefully took issue,
accusing the majority of “rewrit*ing+ the history of one of thisCourt’s most important decisions”
s promise of integrated primary andsecondary education
that local communities have sought to make a reality.”
At its core, this fight is a battle about whether
sets a constitutional minimum floor, ormore of a maximum limit, in terms of what federal, state, and local governments can do to redress our
nation’s long history of racial discrimination and ensure that the Constitution’s promise of equal
opportunity is a reality for all Americans regardless of race. In the decades after
under theleadership of Chief Justices Earl Warren and Warren Burger, the Supreme Court upheld and broadlyinterpreted civil rights statutes such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965 thatbuilt off
, as well as race-conscious measures that sought to bring
promise of racialequality to life.
But over the last quarter of a century, in a string of bitterly divided rulings
mostdecided by a 5-4 margin
conservatives on the Rehnquist and Roberts Courts have redefined themeaning of
and of the Equal Protection Clause, invoking the constitutional guarantee of equalityto strike down virtually every race-conscious government action the Court has reviewed.
Insisting thatan identical form of strict scrutiny applies whenever the government uses race
whether to oppressracial minorities or to assist them
the Court’s rulings have
dramatically limited the power of government to redress racial isolation in schools, enact affirmative action programs, and draw legislativedistricts in which minorities have a fair chance of electing their candidate of choice. Next Term, in
Fisher v. University of Texas
, the Roberts Court has the opportunity to extend these precedents to strike downthe race-
conscious admission policy at Texas’ flagship public university.
’s command, Chief Justice John Roberts has written, “is to stop discrim
inating on the basisof race.
In his hands,
has become a potent weapon against statutes intended to realize thepromise of true racial equality.
The Constitution’s Equal Protection Clause, and
the meaning of
,are at a Crossroads.
Race-Conscious Measures and the History of the Fourteenth Amendment
Conservatives like to call the Constitution generally, and the Equal Protection Clause, in
” and it certainly is, at lea
st to an extent. The framers of the FourteenthAmendment very deliberately rejected limitations on the Equal Protection Clause, sweeping men andwomen of all races and groups into its coverage. In particular, the Equal Protection Clause was drafted
, 551 U.S. at 799 (Stevens, J., dissenting);
at 803-04 (Breyer, J., dissenting).
Heart of Atlanta Motel, Inc. v. United States
, 379 U.S. 241 (1964);
South Carolina v. Katzenbach
, 383U.S. 301 (1966);
Griggs v. Duke Power Co.
, 401 U.S. 424 (1971);
Regents of University of California v. Bakke
, 438U.S. 265 (1978);
City of Rome v. United States
, 446 U.S. 156 (1980);
Fullilove v. Klutznick
, 448 U.S. 448 (1980);
Thornburg v. Gingles
, 478 U.S. 30 (1986).
City of Richmond v. J.A. Croson Co.
, 488 U.S. 469 (1989);
Adarand Constructors, Inc. v. Pena
, 515 U.S. 200(1995);
Miller v. Johnson
, 515 U.S. 900 (1995);
Shaw v. Hunt
, 517 U.S. 899 (1996);
Bush v. Vera
, 517 U.S. 952(1996);
Gratz v. Bollinger
; 539 U.S. 244 (2003);
Parents Involved in Community Schools v. Seattle
, 551U.S. 701 (2007).
Grutter v. Bollinger
, 539 U.S. 306 (2003).
, 551 U.S. at 748.