These are NOTES related to one of the main topics we are studying in Unit 3.

YOU
WILL NEED TO MAKE USE OF THESE AS YOU WORK ON YOUR NEXT LAW JOURNAL!

LAW and SOCIETY EXPLORING THE EQUAL PROTECTION CLAUSE

1. What was the original purpose of Amendment 14 and how did that change over time?

The original purpose of Amendment 14 was to benefit newly freed slaves after the Civil War. Over time, the Amendment acquired a MUCH
BROADER MEANING and TODAY it essentially forbids state and local governments from drawing UNREASONABLE DISTINCTIONS between
different classes of people. Simply put, that means that the government cannot treat one group of people differently than another group in
front of the law, unless there is some proper (“reasonable”) purpose for that.

2. What are the “tests” that are used to test for “unreasonable classification?”
Remember that
the Court often
a. RATIONAL BASIS TEST: Is the classification related to some proper government purpose?
establishes
(for example, we don’t allow people to vote until 18 – that’s probably reasonable – saying “tests” for
that someone can’t vote because they have red hair, probably not reasonable!) evaluating laws –
this is an example
b. FUNDAMENTAL RIGHTS TEST: If a law is passed that violates a person’s fundamental of that!
rights – such as “freedom of speech” – that won’t pass muster. It will be struck down.

c. SUSPECT CLASSIFICATION: If a law is passed that differentiates on how people are treated based on
race or national origin – that would be automatically “suspect” and most likely struck down. (Note:
“gender,” at least to this point in our history, is not put in the same category as “race.”)
YOU NEED TO REFER TO YOUR CASE BOOK FOR THIS PART OF THE
3. Traveling the road from Plessy to Brown NOTES! REFER TO YOUR CASE BOOK!

Key Case #1: Plessy v. Ferguson – 1896 (read the facts) p. 12/ Case Book

An incredibly important case in our legal history (read the facts). This is the case that made it “OK” to have separate (aka SEGREGATED)
facilities in our nation, especially in the American South. The DISSENTING OPINION IN THE CASE is FASCINATING (Justice Harlan) – this guy was
outvoted 8-1 in 1896, but look at what he said: "Our Constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law. . . The sure guaranty of the peace and security of each race
is the clear, distinct, unconditional recognition by our governments, 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. . . In my opinion, the judgment this
day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case."

THIS DISSENT BY HARLAN ESSENTIALLY BECAME THE MAJORITY OPINION IN THE BROWN CASE OF 1954!

For the sake of argument . . . make the case that segregation of public facilities was “reasonably related to some
proper government purpose” (rational basis test) (HINT: think “public order”)

What were the long-term implications of Plessy? Why was this case such a disaster?

The reason Plessy was such a disaster is that it INSTITUTIONALIZED SEGREGATION IN AMERICA for two or more generations. In other words, it
made it OK to segregate people, but it was that SEGREGATION that was contributing to the unequal treatment of minorities!

Key Case #2: Brown v. Board of Education – 1954 (read the facts) p. 12/ Case Book – READ THE FACTS!
What had changed between 1896 and 1954 that would lay the groundwork for REVERSING the “separate but
equal” doctrinFor the sake of argument . . . do any of the arguments posed earlier in this discussion apply to the
situation in 1954? In other words, how would people have made the case in 1954 FOR segregation? Just to add
some complexity here . . . Why do people today sometimes make the case FOR SEGREGATED SCHOOLS?

Realize that the Brown case reversed Plessy – SEPARATE FACILITIES WERE SEEN AS INHERENTLY UNEQUAL! There had been many changes in
American between 1896 and 1954 – most notably, in 1948 President Harry Truman, by executive order, INTEGATED THE ARMED FORCES. That
was a monumental change for our culture. And, as a SIDEBAR on all this, REALIZE THAT THE BROWN DECISION actually had an impact in
Jackson County. The integration of our schools began in full force in 1963! Think about that!
 NOTE THESE EXHIBITS: THESE TWO PIECES OF LEGISLATION OFFER A VIVID EXAMPLE OF HOW THE NATIONAL GOVERNMENT
WAS CONSTRUCTING POLICY FOR THE NATION AS A WHOLE BASED ON REINTERPRETATIONS OF AMENDMENT 14 AND THE
“EQUAL PROTECTION” CLAUSE. LISTEN FOR OUR DISCUSSION OF THAT!

THE VOTING RIGHTS ACT OF 1965

There are two landmark laws from our history related to Equal
Protection, among others. Below is a brief summary of each:
CIVIL RIGHTS ACT OF 1964
TITLE I:
Bars arbitrary discrimination in voter registration
TITLE II:
Outlaws discrimination in public accommodations, such as
motels, restaurants, theaters, and sports arenas.
Gives the Attorney General the power to bring lawsuits to
desegregate public facilities and schools.
TITLE VI:
Calls for withholding federal funds from private or public
programs (including schools) that practice discrimination.
TITILE VII:
Prohibits job discrimination by private employers or unions on
account of RACE, COLOR, RELIGION, NATIONAL ORIGIN, OR SEX
(note the last one).
TITLES VII AND X:
Expand the power of the Civil Rights Commission, created a
Community Relations Service to conciliate racial disputes, and
established the Equal Employment Opportunity Commission.
1. Directs the Attorney General to attack the
constitutionality of the remaining state poll tax
laws.
2. Suspended the use of any illiteracy test or similar
device in any state or county where less that half
of the population of voting age had been
registered or had voted in the 1964 elections.
3. Delcared that no new election laws can go into
force in any of those states unless first approved –
in other words given “preclearance” – by the
Department of Justice.
4. The law was extended in 1970, 1975, and 1982, and
a provision was added that said that in any state or
county where more than 5% of the voting age
population belonged to certain “language
minorities”, all ballots and official election
materials must be printed in both English and in
the language of the minority.
5. The most recent extension of the Act, as noted,
came in 1982. The basic features of the act were
scheduled at that time to remain in effect for 25
years (until 2007), with the “minority provisions” in
effect until 1992, at which time they would be
reexamined. President Bush signed the
extension of the law (with bi-partisan
support) in July of 2006, a year before its
expiration (extends it to 2032).

OK, now let’s broaden this out and bring it up into the 2013 legal culture:

UNDERSTANDING EQUAL PROTECTION AND HOW IT RELATES TO THE RIGHTS OF GAY PEOPLE TODAY:
In an upcoming Law Journal, I will challenging you to make this application. Can you see how some
people make the same arguments regarding Gay Rights as were made for Civil Rights earlier in our
history? This is what the Supreme Court is grappling with right now!

1. HOW DOES THIS RELATE TO THE CONCEPT OF “UNREASONABLE CLASSIFICATION?”

2. HOW SHOULD WE DEAL WITH “LEGAL-MORAL” DILEMMAS IN THE LAW?

Think of it this way: Can we agree that some people see “same-sex” marriage as immoral? Can we
agree that some people see not allowing people to have the same rights as heterosexual couples as
illegal and/or unconstitutional?

3. HOW SHOULD WE DEAL WITH THE MARRIAGE DEBATE?