Race and discrimination and the Supreme Court

DESCRIPTION: Discrimination is the practice of treating people differently based on their race, skin color, or ethnicity. Racial discrimination may be practiced by governments, private persons, or institutions.

SIGNIFICANCE: After the Civil War and the end of slavery in the United States, the struggle for racial harmony and equality gradually became a contentious issue, first in public spaces, and then in the Supreme Court.

The first enslaved people from Africa arrived in North America at the English colony of Virginia aboard a Dutch ship in 1619. Slavery grew in the English colonies and continued in the United States after the American Revolution. It was explicitly recognized by the US Constitution. The Thirteenth Amendment, ratified just after the end of the Civil War in 1865, abolished slavery. Two additional constitutional amendments, the Fourteenth and the Fifteenth, were passed in 1868 and 1870, respectively, to protect and enfranchise African Americans. The Supreme Court was called on almost immediately to define and interpret the meaning of the new constitutional rules.

In its first Fourteenth Amendment case, Slaughterhouse Cases (1873), the Court interpreted the amendment narrowly, limiting its application to federal citizenship rights. In Strauder v. West Virginia (1880), the Court confronted the first of many Black codes, statutes passed in the southern states after the Civil War to deny African Americans their newly recognized rights. A West Virginia statute disqualified African Americans from serving on trial juries. Strauder, a Black man charged with murder, asked to have his case removed to a federal court because African Americans could not serve on his jury. The Court granted his request. Justice William Strong wrote, “The words of the amendment … contain a necessary implication of a positive immunity, or right, most valuable to the colored race the right to exemption from legal distinctions 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.”

Separate but Equal Doctrine

Despite the tone of the first two cases in which the Court had considered the Fourteenth Amendment’s command that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” its 1896 decision in Plessy v. Ferguson established the Separate but equal doctrine. Under this ruling, a state did not deny equal protection by establishing racially segregated facilities as long as equal facilities were made available to all. Apart from its inconsistency with the precedents, Plessy is important because it provided the legal justification for much of the racial segregation that took place in the United States until the 1960s. In reality, the facilities afforded to people of color were rarely, if ever, equal. The Court may not have been directly responsible for the repression of African Americans, but it did provide the juridical rationale that permitted both governmental and private racial discrimination.

At the end of World War I, the most visible manifestation of governmental discrimination was the system of segregated public schools that existed pursuant to law in all the former states of the Confederacy and most border states, including Kentucky, Delaware, and Maryland. In 1925, opponents of segregation, most notably the National Association for the Advancement of Colored People (NAACP), devised a strategy to attack the system. By then, Plessy v. Ferguson was bolstered by nearly three decades of governmental practice, public acceptance, and by a good many supporting court decisions. Rather than oppose Plessy directly, they decided to try to chip away at it, particularly the equal facilities premise. Because an attack on segregation in elementary and secondary public education was thought to be too threatening to the White majority, the NAACP’s legal strategy focused initially on graduate and professional education.

During the 1930s and 1940s, a series of cases were brought to the Court in which racial bars had been erected to the admission of African Americans to state university graduate and law schools. In most of these cases, the states had made no provision for African Americans, and the Court was quick to force states to remedy the deficiency. The most significant of these cases was Sweatt v. Painter (1950). Heman Sweatt had applied for admission to the University of Texas law school. He was rejected because he was African American. After he brought suit, Texas quickly established a separate law school for African Americans. Sweatt refused to attend the new school and continued his suit. The Court, sensitive to the intangibles in law school education in particular, held unanimously for Sweatt. The opinion’s emphasis on intangible criteria provided ammunition for the appellants’ briefs in Brown v. Board of Education (1954), involving a segregated public school.

The End of Legal Segregation

Although nothing in the Court’s opinion in Brown said so explicitly, its thrust went far beyond public education. The Court struck down every state segregation law brought before it within the next few years. Most of these cases were decided by memorandum or per curiam (by the entire court) opinions, often with just a brief reference to the authority of Brown. Through the remainder of the 1950s and 1960s, a long and occasionally violent struggle over segregation took place. The Court’s last major opinion in a desegregation case was handed down in Swann v. Charlotte-Mecklenburg Board of Education (1971), in which the Court authorized lower federal courts to use “equitable remedies” court orders to bring about desegregation. Federal courts mandated school busing, redrafting of district boundaries, and other legal and practical measures designed to end segregation. By 1980, integration had taken place in many US public schools nationwide.

The Court’s work also sparked and encouraged the growth and fervor of the Civil Rights movement in other areas in the 1950s and 1960s. Soon, private as well as public racial discrimination was under attack. With the passage of the Civil Rights Act of 1964 and subsequent amendments, most private racial discrimination in education, employment, public accommodations, and housing became unlawful. Congress based this statute on the power to regulate interstate commerce rather than the Fourteenth Amendment. The first important constitutional test of this statute occurred in Georgia in 1964. In Heart of Atlanta Motel v. United States, a downtown Atlanta motel challenged the constitutionality of the 1964 Civil Rights Act because it wanted to continue its practice of refusing to rent rooms to African Americans. The Court, in a unanimous opinion written by Justice Tom C. Clark, held that discrimination against African Americans had a substantial effect in discouraging travel. Therefore, barring African Americans from motels placed a burden on interstate commerce, which Congress had the power to control. In a companion case, Katzenbach v. McClung (1964), the Court held that Ollie’s Barbecue, a small restaurant in Birmingham, Alabama, could also be brought within the scope of antidiscrimination statutes because much of the meat sold there was imported from other states. Within ten years, US law had changed from permitting government and private discrimination to disallowing both. The Court was a major agent in that change.

Past Discrimination

In the 1970s, civil rights activists shifted their focus from eliminating racial discrimination to remedying the effects of past discrimination. Amendments to the 1964 Civil Rights Act mandated affirmative action to address this situation. Affirmative action was meant to give preferences to members of traditionally disadvantaged racial groups when the objective criteria for employment or admission to a school were equal between applicants. In practice, it quickly became quota-oriented, especially in public institutions where “progress” in bringing an end to discriminatory practices was measured by how many members of minority groups were employed or admitted to programs. Opponents of affirmative action characterized it as reverse discrimination. Supporters saw it as remedial. The practice raised the issue of whether such programs are constitutionally permissible and whether racial classifications could be used to help minorities.

The Court answered this question in an extremely complex way in Regents of the University of California v. Bakke (1978). The University of California, Davis medical school established an affirmative action program by which sixteen of the one hundred spots for first-year students were set aside for Black, Hispanic, Asian, and Indigenous Americans. Allan Bakke, a White applicant, applied to Davis twice but was rejected both times although his grades, Medical College Admission Test scores, and benchmark scores were significantly higher than those of students admitted under the affirmative action program. Bakke claimed that he had been denied “the equal protection of the laws” required by the Fourteenth Amendment. The Court’s opinion was written by Justice Lewis F. Powell, Jr., for two separate five-justice majorities. The justices saw the case as containing two slightly different questions: first, whether California universities could establish a racial quota system for admission, and second, whether the state could use race as a criterion in any way in shaping its medical school admissions policies. Five members of the Court—Powell, John Paul Stevens, William H. Rehnquist, Potter Stewart, and Chief Justice Warren E. Burger—took the position that quotas may not be used at all. All but Powell would have done away with any use of race. Powell and the remaining four justices—Thurgood Marshall, William J. Brennan, Jr., Harry A. Blackmun, and Byron R. White—took the position that race may be used in admissions decisions; all but Powell would have approved the Davis quota system. The result was that the Davis program was held unconstitutional and Bakke was admitted to the medical school; however, the Court found that affirmative action programs that did not use quotas could still be constitutional, depending on their content.

In Grutter v. Bollinger (2003), the Court upheld the affirmative action admissions policy at the University of Michigan Law School. It clarified this ruling in Fisher v. University of Texas at Austin (2013) by asserting that such policies are only legitimate if there are no reasonable “race-neutral alternatives” for achieving diversity.

In 2022, the Roberts Court appeared inclined to scale back affirmative action programs seeking to diversify college student populations. Several members articulated opinions that racial diversity is not a sufficient reason to allow race-based preferences in admission processes. The Court heard cases regarding the constitutionality of affirmative action admission policies at the University of North Carolina and Harvard. In 2023, the Court ruled in Students for Fair Admissions v. Harvard that race-conscious admissions policies violate the Equal Protection Clause, effectively ending affirmative action in higher education.

Other Racial Issues

Although state-mandated segregation raised the most important racial discrimination issues faced by the Court, many other cases involving race were addressed by the justices. Among the most important of these is Korematsu v. United States (1944). The Court later came to treat race as a suspect classification requiring the most rigorous scrutiny under the equal protection clause. Ironically, Korematsu is one of the very few cases in which a racial classification survived strict scrutiny by the Court. Toyosaburo Korematsu had disobeyed a military order that excluded all persons of Japanese ancestry from parts of the West Coast at the beginning of World War II. Although the majority sustained the military order as a necessity that the Court should not upset, the strong strictures about racial classifications were to be invoked in many later cases.

Concerning voting rights, the Court found state-mandated all-White primary elections unconstitutional in Nixon v. Herndon (1927), and party-run all-White primaries were forbidden in Smith v. Allwright (1944). The Voting Rights Act of 1965, which forbade literacy tests for voters, often used in a racially discriminatory way, was upheld by the Court in South Carolina v. Katzenbach (1966). In Allen v. Milligan (2023), the Court held that Alabama’s congressional redistricting plan violated the Voting Rights Act by diluting Black voting power.

Race-related restrictive covenants in real-estate transactions were ruled unenforceable in Shelley v. Kraemer (1948). The restrictive covenant, in this case, was an agreement in a deed of sale that the property would not be resold to a person “not of the Caucasian race.” The Court, in a 6-0 decision, held that the state government would be violating the equal protection clause of the Fourteenth Amendment if such a contract were to be enforced.

In 1967, the Court addressed the issue of miscegenation statutes (laws forbidding interracial marriage), which existed in sixteen states, including Virginia. The Court struck down Virginia’s law in Loving v. Virginia (1967). In defending its statute, Virginia argued that because the law affected White and non-White individuals alike, it was not racially discriminatory. Chief Justice Earl Warren, in his opinion for the unanimous Court, wrote that such laws established “invidious discrimination based on race,” pointing out that the Virginia statute reached interracial marriages only in which one of the partners was White.

The issue of racial discrimination has also intersected with debates about unauthorized immigration in the United States. In Arizona v. United States (2012), the Court ruled on a 2010 Arizona law known as SB 1070, which, among other things, sought to curb unauthorized immigration by requiring state police to request proof of citizenship status of subjects they stop. This was contingent on police having a reasonable suspicion that the detained person was an undocumented immigrant. The law was controversial nationwide, with opponents asserting it encouraged racial profiling. In its ruling, the Court struck down several provisions of the law it said were preempted by federal immigration law, but left in place the provision allowing police to check immigration status.

The Human Rights Watch and other voting rights activists criticized a 2024 decision allowing Louisiana to use a congressional map alleged to dilute the voting power of Black residents. Despite Black people making up nearly one-third of the state’s population, the map included only one majority-Black district out of six. Critics argued this violated Section 2 of the Voting Rights Act. Conversely, in that case, the Court found Alabama’s similar map to violate the Voting Rights Act and ordered the creation of a second Black-majority district. The Louisiana case (Louisiana v. Callais), however, suggests inconsistency in the Court’s enforcement of Section 2. This shift builds on earlier rulings such as Shelby County v. Holder (2013), invalidating key Voting Rights Act provisions, and Brnovich v. DNC (2021), making it more difficult to prove discrimination without clear evidence of intent. Similarly, in Abbott v. Perez (2018), the Court emphasized that plaintiffs must prove intentional racial bias, not just discriminatory effects.

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