Race and Racism.
Problems of race and race relations—particularly issues concerning the status of African-Americans—have played a prominent role in American political life since the colonial era. Given the place of the Supreme Court in the political structure, it was almost inevitable that the Court would be called upon to take an active role in resolving these problems. Thus it is not surprising that the Court has often been a significant participant in controversies over race relations.
The response of the Court has been shaped by a variety of factors. The most obvious is the attitudes of the individual justices toward the race problem itself. These attitudes typically reflect the attitudes of white society as a whole toward blacks. As the position of white society as a whole on racial issues changed over time, so too has the position of the Court. Further, where there has been no consensus in society on a particular issue, the justices themselves have often been split.
The approach of the Court to racial questions has also been complicated by questions of *federalism. Where federal action on racial matters has been challenged, the justices have been forced to consider whether the challenged action was within the powers granted to the states or the federal government by the Constitution. The doctrine of states’ rights has also had a significant impact on the resolution of challenges to state governmental action (see state sovereignty and states’ rights). The attitude of the Court toward these issues has changed substantially in recent years, contributing to a change in the pattern of decisions on racial issues.
Antebellum Era.
Federal law played only a relatively limited role in debates over the status of blacks prior to the *Civil War. The general primacy of state law was a function of both the basic philosophy of the Constitution and specific provisions relating to the *slavery issue. First, the general theory of *federalism underlying the antebellum Constitution left to each state almost complete power to regulate the relationships among its inhabitants and purely domestic affairs generally. Moreover, the Constitution contains a number of specific provisions—most notably the Fugitive Slave Clause, Slave Trade Clause, and the three-fifths compromise—which plainly recognize the existence of the institution of slavery. In the face of such evidence, it is not surprising that only a small group of the most radical abolitionists—well out of the political mainstream—argued that Congress had the power and duty to attack directly slavery in the states.
Nonetheless, federal law became important in a number of contexts. One group of problems involved the interstate movement of slaves or free blacks generally. Such cases involved the sovereign interests of the nation (or at least those of more than one state) and therefore provided an arguable basis for federal control. Thus, for example, federal constitutional arguments appeared in discussions of the obligation of free states to admit free Negroes and to respect the *property rights of slaveholders in transit. In both of those situations, however, nonfederal considerations remained the central force (see comity). By contrast, with respect to the problem of *fugitive slaves, the federal law became dominant.
In response to the demands of the representatives of southern states, the drafters of the Constitution had specifically included a provision dealing with the problem of fugitive slaves. Article IV, section 2 provided that
[n]o person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on claim of the Party to whom such Service or Labour may be due.
Clearly, this provision constitutionalized the *common-law right of “recaption”—the right of the master to retrieve his slave through self-help. But by its terms, the Fugitive Slave Clause does not define the respective roles of the state and federal governments in implementing and regulating this right.
The potential conflicts between state and federal authority in this area emerged soon after the adoption of the Constitution. The federal government passed the first Fugitive Slave Act in (p. 812) 1793. A few northern states responded by adopting personal liberty and antikidnapping laws, which significantly restricted the right of recaption. The issue of the constitutionality of these laws reached the Supreme Court in *Prigg v. Pennsylvania (1842).
Justice Joseph *Story’s majority opinion took a middle ground between the antislavery position, which denied federal power to pass legislation to enforce the Fugitive Slave Clause, and the proslavery position, which posited both a federal and a state duty to adopt enforcement legislation. Story recognized the owner’s right to resort to self-help and the unconstitutionality of any state law that interfered with the right; the authority of Congress to enact legislation that aided the owner; and the lack of any power in the states to enact additional enforcement legislation. Story also suggested that Congress could not constitutionally require state officials to assist in the enforcement process.
As intersectional tensions over the issue of slavery escalated sharply in the 1850s, the issue of fugitive slaves returned to the Court in *Ableman v. Booth (1859). The abolitionist Sherman Booth was a Wisconsin resident who had been arrested and charged under the Fugitive Slave Act of 1850 for obstructing the return of a fugitive slave. While in federal custody, but before his trial, Booth applied to the Wisconsin Supreme Court for a writ of *habeas corpus. A justice of the Wisconsin court freed Booth on the grounds that the Fugitive Slave Act was unconstitutional, and this judgment was affirmed by the entire state supreme court. While an appeal from this judgment to the United States Supreme Court was pending, Booth was rearrested and convicted in federal district court. Once more, the Wisconsin Supreme Court issued a writ of habeas corpus ordering his release from federal custody. In one of Chief Justice Roger B. *Taney’s most famous and well-respected decisions, he overturned the writs and forcefully asserted the principle of federal judicial supremacy. Although it clearly had implications for the struggle over slavery, Taney’s opinion might be viewed as a simple defense of the supremacy of federal law.
Problems of federalism were also involved in Dred *Scott v. Sandford (1857). In Dred Scott, however, issues of race relations were more clearly at the center of the case. Scott had been held as a slave in Missouri, a slave state. His master brought him into a portion of the federal territories in which slavery was forbidden by the Missouri Compromise and into a free state. Scott brought a diversity action in federal court, arguing that he should be considered a free man by virtue of having been brought into a free territory and state. The case raised two critical issues of race relations. The first was whether Scott could be considered a citizen of the United States for purposes of determining diversity of *citizenship. The second was whether Congress could constitutionally prohibit slavery in the *territories.
Rejecting Scott’s claim, Chief Justice Taney answered both questions in the negative, although whether he spoke for a majority of the Court on every issue raised in the case is questionable. Taney first concluded that the federal courts lacked jurisdiction over the case because, under the Constitution, descendants of slaves could never become citizens of the United States. He then argued that, in any event, the portion of the Missouri Compromise banning slavery in the northern territories was unconstitutional. Primarily, this contention was based on the theory of enumerated powers; in Taney’s view the congressional power to “make all needful Rules and Regulations respecting the Territory … belonging to the United States” (Art. IV, sec. 3) did not include the authority to outlaw slavery. In addition, Taney made a substantive *due process argument, concluding that the prohibition on slavery in some of the territories deprived slaveholders of their property without due process of law.
While it cannot be considered a primary cause of the Civil War, the Dred Scott decision did exacerbate sectional tensions over the institution of slavery. On one hand, the decision reinforced Republican claims that the federal government was dominated by a “slave power” committed to the advancement of southern interests at the expense of the values held by northern society. It also raised fears that the Court might require free states to allow Southerners to bring slaves into their jurisdiction. At the same time, Dred Scott bolstered the proslavery contentions that the extension of slavery to the territories was not only just but also mandated by the Constitution itself. But in any event, the doctrinal framework of Dred Scott did not survive the constitutional changes wrought by the Civil War and the *Reconstruction period.
Reconstruction Amendments and Their Aftermath.
The constitutional changes that took place following the Civil War substantially changed the role of the federal courts in defining the terms of race relations in the United States. Concerned about the conditions of blacks in the defeated southern states, Congress adopted three constitutional amendments and essentially forced their ratification. The *Thirteenth Amendment outlawed slavery. Section 1 of the *Fourteenth Amendment conferred both national and state citizenship on blacks. In addition, section 1 required that the states confer on all citizens the *privileges and immunities of national citizenship and required that the life, liberty and property (p. 813) of all persons be protected by due process of law, and that all persons be granted *equal protection of the laws. Finally, the *Fifteenth Amendment prohibited racial discrimination in voting rights. Each of the amendments contained a clause granting Congress enforcement authority. Purporting to act pursuant to this authority, Congress enacted a series of civil rights statutes intended to protect the newly freed slaves from racial discrimination.
In the last third of the nineteenth century, the Supreme Court faced a variety of issues related to the interpretation of the Reconstruction amendments and the statutes adopted under their enforcement authority. The difficulty was that, at the margins at least, the intentions of those who drafted the Reconstruction amendments were unclear. Clearly, the members of the Reconstruction Congresses intended to prohibit certain specific abuses and to arm Congress with the authority to reach those abuses. Beyond those specific problems, the intended impact of the constitutional changes on the states and the powers of Congress was controversial and remains so today.
Occasionally, the Court took a fairly broad view of the scope of the amendments. For example, in *Strauder v. West Virginia (1880), the Court found a statute limiting jury service to whites inconsistent with the Fourteenth Amendment, although a plausible historical argument could be made in favor of a contrary result. In a variety of other circumstances, however, the Court gave a relatively narrow construction to the Reconstruction enactments.
Once again, consideration of federalism played an important role in many of the Court’s decisions. The concept of states’ rights and its corollary, limited national government, were critical to the Court’s approach to civil rights issues. Focusing on these principles, the Court often imposed strict limitations on the scope of both the Reconstruction amendments themselves and the civil rights statutes adopted by Congress.
United States v. *Cruikshank (1876) exemplified this trend. Cruikshank arose from an incident in which several hundred armed whites surrounded a courthouse in which blacks were holding a public assembly, burned the building, and murdered about one hundred people. They were indicted under a statute derived from the Force Act of 1870, which makes it a federal crime for two or more people to conspire “to injure, oppress, threaten, or intimidate any person in the free exercise of any right or privilege secured to him by the Constitution or laws of the United States.”
The Cruikshank Court dismissed the indictment. Following the analysis of the *Slaughterhouse Cases (1873), Chief Justice Morrison R. *Waite closely circumscribed the definition of rights secured to persons by the Constitution. He argued that all of the rights described in the indictment, including the right to assemble peaceably and the right to bear arms, derived from state citizenship and thus were beyond the ambit of federal protection. The scope of congressional authority to protect blacks was thus sharply curtailed.
The Court’s treatment of the *state action problem during this period reflects a similar attitude. The *Civil Rights Cases (1883) provide a particularly striking example. These cases involved the Civil Rights Act of 1875, which outlawed racial discrimination by operators of public accommodations and public conveyances. Such facilities had traditionally been held to be quasi-public in nature; even prior to the adoption of the Reconstruction amendments, a number of courts had held that the common law prohibited operators of public conveyances from segregating their passengers on the basis of race. Moreover, during the Reconstruction era Congress had specifically banned segregation on street railways in the District of Columbia. Nonetheless, the Court in the Civil Rights Cases held that neither the Thirteenth nor the Fourteenth Amendment granted Congress the authority to pass statutes such as the Civil Rights Act of 1875. Congressional power could control only the actions of states, not of individuals. Together with similar decisions in cases such as United States v. Harris (1883) and United States v. *Reese (1876), the Civil Rights Cases effectively curtailed the ability of Congress to improve the condition of the newly freed slaves.
The problem of discrimination in public conveyances returned to the Court in *Plessy v. Ferguson (1896). In Plessy, the Court was faced with a Fourteenth Amendment challenge to a state statute that required railways to maintain separate carriages for white and black patrons. The Court conceded that the object of the Fourteenth Amendment was to enforce “the absolute equality of the races before the law”; at the same time, however, the majority reasoned that the amendment “could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political, equality” (p. 544). The Plessy majority also rejected the claim that the statute by its nature stamped blacks with “a badge of inferiority,” arguing that “[i]f this be so, it is not by reason of anything found in the act, but solely because [the black person] chooses to put that construction upon it” (p. 551). (See separate but equal doctrine.)
Underlying the Plessy decision was an unstated belief that blacks were inherently inferior to whites. This belief was widely shared among whites in the late nineteenth century; indeed, even Justice John Marshall *Harlan’s dissent in Plessy explicitly noted that “[t]he white race deems itself (p. 814) to be the dominant race in this country. … So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty” (p. 559). So long as the Court was dominated by men with such attitudes, constitutional law would be of little use to those seeking racial equality.
Early Twentieth Century: From Plessy to Brown.
During the early twentieth century, the Supreme Court’s record on race relations issues was uneven. In egregious cases, the Court did at times intervene actively to protect the rights of racial minorities; for example, in *Guinn v. United States (1915), it struck down so-called *grandfather clauses—voting requirements that were clearly crafted with a view to restricting the right of blacks to *vote, while leaving the voting rights of whites unaffected. By contrast, in Gong Lum v. Rice (1927), the Court not only refused to require a state to allow a Chinese-American to attend school with whites, but also cited with apparent approval lower court cases that applied the separate but equal doctrine to public *education generally.
The Court was particularly hostile to wartime challenges to government actions aimed at Japanese-Americans during *World War II. Military authorities issued a number of orders placing severe restrictions on this group of citizens, including curfews, exclusions, and forced relocation. Congress adopted legislation criminalizing violations of these orders. In *Hirabayashi v. United States (1943) and *Korematsu v. United States (1944), the Court rejected claims that these orders violated constitutional norms. Speaking for the majority in Korematsu, Justice Hugo *Black declared that “[a]ll restrictions that curtail the civil rights of a single racial group are immediately suspect” and subject to “the most rigid scrutiny” (p. 216) (see suspect classification). Nonetheless, he concluded that the exigencies of the wartime situation provided sufficient justification for imposing restrictions on those of Japanese ancestry.
Despite cases such as these, as the twentieth century progressed the Court showed signs of becoming more sensitive to the plight of minority races. For example, it soon became clear that cases such as Hirabayashi and Korematsu would not be extended to peacetime race-relations issues. In Oyama v. California (1948) and Takahashi v. Fish and Game Commission (1948), the Court made clear that the states could not impose special disabilities on those of Asian descent.
The Court’s decisions also expanded the concept of state action. In one of the most significant cases—Screws v. United States (1945)—the Court gave a broad interpretation to a federal statute that provides for the criminal prosecution of those who deprive persons of civil rights “under color of law.” It held that state officials who wielded government power acted under color of law even when the specific actions for which they were being prosecuted were illegal under state law.
State action was also the central problem in *Shelley v. Kraemer (1948) and Barrows v. Jackson (1953). In those cases the Court was asked to determine the constitutionality of judicial enforcement of private agreements not to sell real estate to blacks. Having held in *Buchanan v. Warley (1917) and Harmon v. Tyler (1927) that the state could not directly restrict the right of blacks to live in particular neighborhoods, the Court in Shelley and Barrows had little difficulty in determining that courts could not constitutionally enforce private racially *restrictive covenants, finding such judicial involvement to be state action (see housing discrimination).
State action again was a key issue in challenges to political party rules that restricted party membership and political participation to whites. Such rules were particularly important in southern states, where nomination by the then all-white Democratic party was tantamount to election. After initially holding in *Grovey v. Townsend (1935) that such rules were not state action and thus not inconsistent with the Reconstruction amendments, the Court reversed itself in *Smith v. Allwright (1944), reasoning that by guaranteeing ballot access to the winner of the party primary, the state had in effect endorsed the exclusionary policy. The rule of Smith was expanded in *Terry v. Adams (1953) to cover the preprimary election of an association of Democrats whose endorsement was functionally equivalent to selection as the party candidate (see white primary).
Finally, during the latter part of this period, the Court began to ease the rigors of the principles underlying Plessy v. Ferguson. Ironically, the only direct assault on the separate but equal doctrine did not involve the Reconstruction amendments at all. In *Morgan v. Virginia (1946), the Court held that a Virginia statute requiring interstate buses to maintain racial segregation was unconstitutional because it imposed an undue burden on interstate commerce (see commerce power).
By contrast, during this era the Court consistently declined invitations to reconsider the application of the separate but equal doctrine to public education. At the same time, however, it viewed with increasing skepticism claims that states were in fact providing members of racial minorities with equal educational opportunity. In *Missouri ex rel. Gaines v. Canada (1938), the Court held that a state could not discharge its obligations under the Equal Protection Clause by providing blacks with tuition to attend law schools in other states while excluding them from its own. In *Sweatt v. Painter (1950), it concluded that a law school for blacks was not functionally (p. 815) equivalent to a school for whites because by its nature it excluded most of those with whom graduates would inevitably have to deal during their professional lives. And in *McLaurin v. Oklahoma State Regents for Higher Education (1950), the Court found insufficient a regime under which blacks were allowed to attend the same graduate schools as whites but were kept physically separated from their white counterparts.
In short, the early twentieth century Supreme Court was significantly more active than its predecessors in protecting the rights of minority races. The importance of the Court’s shift should not be overstated, however; changes in basic constitutional doctrine took place only at the margins. Revolutionary changes did not come about until the advent of the Warren Court in 1953.
Warren Era.
Under the leadership of Chief Justice Earl *Warren, after 1954 the Supreme Court mounted an increasingly aggressive campaign to ameliorate the condition of racial minorities in the United States. The campaign began with the landmark decisions in *Brown v. Board of Education (1954) and its companion case, *Bolling v. Sharpe (1954). Unlike the earlier cases dealing with segregated education, Brown focused directly on the applicability of the separate but equal doctrine to education. Focusing on the importance of education, the Court held that the maintenance of government-mandated segregated schools was inconsistent with the Equal Protection Clause of the Fourteenth Amendment. In sharp contrast to Plessy, the Court also relied heavily on the stigma imposed on blacks by segregation. Some of the language in Brown suggested that decision might have rested on the special place of public education in American society; it soon became clear, however, that the Court would invalidate all state-imposed racial segregation (see segregation, de jure).
The Court’s approach to the state-action problem also reflected its growing concern with the issue of racial equality. While not rejecting the basic proposition that the Equal Protection Clause placed constraints only on governmental action, cases such as *Burton v. Wilmington Parking Authority (1961) and Evans v. Newton (1966) held that a variety of seemingly private activities such as operating a restaurant in a public building would be considered state action for constitutional purposes. Thus the Warren Court’s decisions expanded the scope of Fourteenth Amendment protections.
During the same period Congress also demonstrated a renewed commitment to the concept of racial equality, adopting a variety of landmark laws designed to deal with the problem of racial discrimination. The most important of the new statutes were the *Civil Rights Act of 1964 and the *Voting Rights Act of 1965. Not surprisingly, opponents of both statutes argued that Congress had exceeded the authority granted to it under the Constitution. The Supreme Court uniformly rejected these challenges.
The earliest attack on the Civil Rights Act focused on Title II, which prohibited discrimination in the provision of public accommodations. In upholding the statute, the Court did not rely on any specific constitutional grant of power to prohibit racial discrimination. Instead, *Heart of Atlanta Motel, Inc. v. United States (1964) and *Katzenbach v. McClung (1964) focused on Congress’s power to regulate interstate commerce, reasoning that Congress could have plausibly determined that racial discrimination had an adverse effect on the free movement of goods and people.
In some respects the voting rights litigation was even more significant. The Voting Rights Act not only prohibited racial discrimination in voting rights but also provided that federal officials should register voters in areas where conditions indicated that racial discrimination was prevalent; required federal preclearance for suffrage-related changes in such areas in order to ensure that such changes did not have either the purpose or effect of diluting minority voting rights; and limited the use of literacy tests in some circumstances. By any standard, this legislation intruded deeply into areas that historically had been under state control. Nonetheless, the Court rejected all constitutional challenges to the power of Congress to adopt the Voting Rights Act. Upholding the preclearance provisions in *South Carolina v. Katzenbach (1966), the Court declared that “Congress [is] chiefly responsible for implementing the rights created [by the Fifteenth Amendment]” and had broad discretion in devising remedies for perceived violations of voting rights (p. 326). *Katzenbach v. Morgan (1966) went even further, holding that in some circumstances Congress could rely on its enforcement authority to prohibit even some practices that the Court had specifically found to be constitutionally unobjectionable. Finally, in Allen v. State Board of Elections (1969), the Court rejected all efforts to read the preclearance provisions of the Voting Rights Act (which were its most controversial elements) narrowly. “The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race,” Chief Justice Warren proclaimed. Laws seeking to dilute the voting strength of minorities, therefore, were constitutionally impermissible and subject to Congress’ authority in these matters.
(p. 816) The Warren Court not only took an expansive view of congressional authority to remedy perceived racial discrimination but also gave expansive interpretations to hitherto dormant federal statutes in this area. The most prominent example was *Jones v. Alfred H. Mayer Co. (1968), in which the Court not only reaffirmed its view that Congress had the power to reach private racial discrimination but also reinterpreted the Civil Rights Act of 1866 to prohibit such discrimination.
In short, during the Warren era the Court consistently took an expansive view of Constitutional and statutory prohibitions on racial discrimination as well as congressional power to address such discrimination. The Court’s experience with the school desegregation problem, however, reflected the difficulties that can arise when the judiciary attempts to impose its will on a recalcitrant populace. At the conclusion of the first Brown opinion, the Court requested briefing and argument on the question of what remedial action should be taken to dismantle segregated school systems. The following year, in its second Brown v. Board of Education (1955) opinion, the Court recognized the primacy of local officials in formulating educational policy but directed the district courts to ensure that the transition to a unitary school system was accomplished “with *all deliberate speed” (see desegregation remedies).
Obviously, the Brown II Court hoped for cooperation between the federal courts and local authorities in the desegregation process. Such cooperation was not forthcoming. The judiciary was faced with southern school boards and state governments that were typically committed to the philosophy of “massive resistance” to desegregation. Even when forced by the courts to alter their pupil assignment practices to some degree, local school authorities often adopted policies that might be neutral on their face but were in fact designed to minimize racial integration in the schools. In the most extreme example, the school board of Prince Edward Country, Virginia, attempted to close its public schools and provide tuition grants to students attending private schools, with the expectation that these schools would maintain racial segregation. In *Griffin v. County School Board (1964), the Court ordered the public schools reopened, declaring that “[t]here has been entirely too much deliberation and not enough speed” in the desegregation process. The Court’s frustration became even more evident in *Green v. County School Board (1968). There, rejecting a “freedom of choice” plan for public school students, the Court declared that “[t]he burden on a school board today is to come forward with a plan that realistically promises to work … now … to convert to a unitary system in which racial discrimination would be eliminated root and branch” (pp. 439, 438). Despite such strong statements, the struggle over the proper scope of desegregation orders would continue well beyond the Warren era.
Burger and Rehnquist Courts.
During the post-Warren era, the pattern of Supreme Court decisions on race relations issues has defied easy characterization. In part, the lack of a clear pattern derives from the diversity among the justices themselves. The Warren Court was dominated by liberal activists, and its record on race relations issues reflected this dominance (see judicial activism). By contrast, the Burger and Rehnquist Courts were more ideologically balanced, a factor that has often been evidenced by close divisions on controversial questions. The increased influence of conservatives on the court has been evident in cases such as *Patterson v. McLean Credit Union (1989), which limited the scope of the previous holding in Jones v. Alfred H. Mayer Co.
The nature of the issues faced by the Court has also changed substantially. The legality of deliberate state-imposed segregation and private discrimination against minority races presented the easiest questions for persons committed to the basic principle of racial equality. Unlike their predecessor, the Burger and Rehnquist Courts have been presented with cases that raised more difficult questions about both the nature of racial equality and the proper role of the federal courts in promoting such equality.
School Desegregation.
The influence of all of these factors has been apparent in the continued evolution of the law of school desegregation in the post-Warren era. The period began with the decision in *Swann v. Charlotte-Mecklenburg Board of Education (1971). In Swann, the Court unanimously upheld a district court order that mandated wide-scale restructuring of a southern, urban school district in an effort to achieve racial balance by busing. While denying that there was any constitutional right to attend a school whose student body reflected the racial composition of the district as a whole, the opinion concluded that “[a]wareness of the racial composition of the entire school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations.”
The problem became more complex as desegregation litigation moved to the North. Typically, the laws governing northern school systems did not explicitly mandate the type of racial segregation involved in the cases from Brown through Swann; instead, the systems were generally based on the principle of neighborhood schools. At the same time, however, these schools were often racially unbalanced. The imbalance resulted from two factors. First, demographic factors not directly related to school policies led to the geographic (p. 817) concentration of minority races. Second, boundaries were often subtly adjusted to minimize the mixing of the races in schools. Given Swann’s statement that the constitution did not guarantee to students the right to attend racially balanced schools, distinguishing between the effects of deliberate segregative acts and other factors became an important and difficult consideration (see segregation, de facto).
*Keyes v. Denver School District No. 1 (1973) provided the basis for widespread judicial intervention in northern school systems. In Keyes, the Court held that where a “meaningful portion” of a school system was found to be intentionally segregated, other racial imbalance in the system would be almost irrefutably presumed to also be the result of deliberate segregative acts. Keyes and subsequent cases such as *Columbus Board of Education v. Penick (1979) and Dayton Board of Education v. Brinkman (1979) opened the way for Swann-type orders to be applied to many northern, urban school systems. *Milliken v. Bradley (1977) expanded the scope of permissible orders even further, holding that the federal courts could order previously segregated school districts to adopt measures not directly related to racial balance. *Missouri v. Jenkins (1990) held that a federal district court judge could order local property taxes raised to pay for such measures.
The power of the federal courts to deal with the problem of segregated schools is not unlimited, however. In the first Milliken v. Bradley (1974), the Court held that in the absence of a showing of segregative acts with intersystem effects, the courts could not impose intersystem desegregation orders. Given that the student population of many city school systems had become increasingly dominated by members of minority races, Milliken was an important limitation on the ability of the federal courts to achieve actual racial balance in the schools.
The job became even harder in the early 1990s when, in what became known as the resegregation cases, the Supreme Court reinforced, and even enhanced, the restraints imposed by Milliken by lowering the threshold of proof necessary to determine that a school system had achieved “unitary” (fully integrated) status. In doing so, the Court sent a clear signal promoting the end of desegregation orders, even when the effect was the resegregation of numerous districts.
First up was Board of Education of Oklahoma City v. Dowell (1991) where the justices first noted that a school district could be racially integrated without achieving full “unitary” status. As Chief Justice Rehnquist explained, the key question in determining whether a school district has complied with a court order to racially integrate was whether “the [School] Board has complied in good faith with the [original] desegregation decree,” and thus eliminated all “vestiges of past discrimination … to the extent practicable.” Where this was the case, “such a school district could be called unitary and nevertheless still contain vestiges of past discrimination.” One year later, in *Freeman v. Pitts (1992), the Court noted that the Constitution did not require “heroic” measures to insure racial balance in student assignments, at least when the imbalance was attributable to independent demographic forces and not the prior de jure segregation system or subsequent actions by school officials. Finally in *Missouri v. Jenkins (1995), the Court applied this view, holding against a district court plan to impose a wide-ranging desegregation plan built around the use of multidistrict magnet schools in the Kansas City, Missouri, area. “Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments,” the chief justice noted, “so too will numerous external factors beyond the control of the [the School Board] affect minority student achievement.” Yet so long as these “external factors” were not “the result of segregation,” they did not figure “in the remedial calculus.”
The results of this shift in doctrine were dramatic. While 43.5 percent of southern black students attended majority-white schools prior to 1990, by 1998, the percentage of black students in majority white schools had fallen to 32.7 percent. This made southern schools actually more segregated than they had been thirty years earlier. Nationwide statistics reveal a similar level of resegregation nationally during the 1990s.
Discriminatory Impact.
The Warren Court had generally been preoccupied with problems of deliberate discrimination against minority races. In the post-Warren era, by contrast, race-neutral actions with discriminatory impact came under increasing attack. Some argued such actions should be closely scrutinized in order to ensure that members of minority racial groups were not arbitrarily denied access to opportunities. Others contended that only deliberate racial discrimination should be proscribed. The issue had both statutory and constitutional dimensions (see discriminatory intent).
In *Griggs v. Duke Power Co. (1971), the Court held unanimously that discriminatory impact was an important element to be considered under Title VII of the Civil Rights Act of 1964. Under Griggs, employment practices with a *disparate impact were held illegal unless justified by a “business necessity.” The scope of the business necessity defense became a much-debated issue. Cases such as *Albemarle Paper Co. v. Moody (1975) and Dothard v. Rawlinson (1977) suggested that the business necessity criterion would be difficult to (p. 818) satisfy. *Washington v. Davis (1976) and New York City Transit Authority v. Beazer (1979) conveyed a quite different impression. Ultimately, in *Ward’s Cove Packing Co. v. Atonio (1989), the Court modified *disparate impact analysis, holding that those challenging an employment practice were required to prove that an employer’s proffered justification was in fact illusory (see employment discrimination). The *Civil Rights Act of 1991, however, curtailed the full impact of Ward’s Cove.
The Court’s treatment of the constitutional status of discriminatory impact showed a similar ambivalence. In Washington v. Davis (1976) and *Mobile v. Bolden (1980), the Court held that a simple showing of discriminatory impact was insufficient to raise the level of scrutiny under the Fourteenth and Fifteenth Amendments, respectively (see strict scrutiny). At the same time, however, in *Arlington Heights v. Metropolitan Housing Development Corp. (1977), the Court indicated that discriminatory impact could in some cases raise an inference of *discriminatory intent (though it did acknowledge that “such cases are rare” and involve “a clear [discriminatory] pattern, unexplainable on grounds other than race”) and in Rogers v. Lodge (1982) held that impact was particularly important to the evaluation of voting rights claims.
Voting Rights.
The Supreme Court’s ruling in Allen v. State Board of Elections (1969)—holding that elections systems could be unconstitutionally exclusionary in their effects even while being seemingly nondiscriminatory in form—initiated a period of intense judicial deliberation on minority voting rights. Very little of this action occurred before the Supreme Court, however. With the exception of White v. Register (1973) and Mobile v. Bolden (1980), very few voting rights cases reached the Supreme Court in the two decades following the Court’s Allen ruling. District and circuit courts, on the other hand, heard hundreds of voting rights challenges during this period. Most arose in the South and directly challenged voting systems designed to dilute the impact of African-American voting. One of the techniques used was to gerrymander districts so as to split minority populations among several voting districts. Another popular technique adopted the use of at-large voting systems that submerged minority voters into a larger pool of majority voters. In both cases, so long as the majority voted as a group (and in regions such as the South, this was usually the case) the majority could effectively deny the minority a voice in government by simply not voting for minority candidates. Denied the power that localized numbers should have brought, minority voters were thus effectively cut out of the electoral process.
Taking their lead from the Supreme Court’s rulings in Allen and White, district and circuit judges overturned these and similar vote dilution techniques as violations under the *Voting Rights Act of 1965. They replaced them with a district-based voting system designed to assure minority voters the opportunity to elect candidates of their choice in numbers roughly proportional to their percentage in the population. In practice, this meant the creation of so-called minority-majority districts wherein district lines were drawn specifically to assure that minority voters made up at least 60 percent of the registered voters within the district. The result was nothing less than a revolution in southern politics as hundreds of southern cities, counties, and other kinds of jurisdictions shifted to minority-majority districting with the pay-off seen in the election of hundreds and even thousands of minority candidates to office.
Minority-majority voting systems did have a problem, however. Finding enough minority voters to create a minority-majority district often proved difficult. Unless minority populations were highly concentrated, the creation of these districts required the connection of distant communities into a single district. The result often produced irregularly shaped districts that ambled in snake-like fashion across the map seeking to link up enough minority neighborhoods to create a district-wide majority.
These trends concerned the Supreme Court. The justices were uncomfortable with too extensive an application of race-conscious judicial remedies to voting rights matters. In 1986 the Court hinted at this discomfort in Thornburg v. Gingles (1986) when it imposed a new standard in vote dilution cases, one demanding that “the minority group … demonstrate that it is significantly large and geographically compact [enough] to constitute a majority in a single-member district” (478 U.S. 50). Failing this test, the Court reasoned that “the multi-member form of the district [could not] be responsible for minority voters’ inability to elect its candidates.” And if race was not the cause of electoral failure, then race-conscious districting was obviously not the proper remedy.
The peak of the Supreme Court’s reevaluation of race-conscious districting came in Shaw v. Reno (1993). Brought in response to North Carolina’s Congressional redistricting efforts following the 1990 census, the plaintiffs in Shaw challenged the entire structure of minority-majority districting. As they saw it, minority-majority districting was nothing more than gerrymandering. As evidence of their contention, they pointed to the new district’s shape, which wandered across the north central region of North Carolina, linking together minority communities with land bridges no wider (p. 819) than the interstate highway that connected them. Writing for a five-justice majority, Justice Sandra Day *O’Connor agreed with this logic. “It is unsettling,” she wrote, “how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past.” The district under attack, she noted, was simply too “bizarre,” “irregular,” and “egregious” in form to pass constitutional muster. “Reapportionment is one area in which appearances do matter,” O’Connor noted. “A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, … reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls” (p. 647). This was not constitutionally acceptable. For these reasons, the majority in Shaw concluded that where a state “concentrated a dispersed minority population in a single district, disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions,” a red flag of warning demanded a close examination to assure that race was not the only determinant in creating the district.
Although the five justices in the majority did not comment on the justification for the oddly shaped North Carolina district (merely remanding it back to the district court with instructions to explore the facts in this particular situation), Shaw v. Reno effectively imposed a new and complex standard in voting rights litigation, one that made the defense of minority-majority districts difficult. The new standard in voting rights was race-neutral remedies judged—at least in the case of legislative districting—as much by aesthetics as by close examination of the realities in race relations and political action. Race-based districting—and by implication, all forms of race-conscious remedies—were called into question as an appropriate response to discrimination and exclusion from power. Subsequent rulings by the Supreme Court against minority-majority districting in cases such as Miller v. Johnson (1995), U.S. v. Hays (1995), Bush v. Vera (1996), and Reno v. Bossier Parish School Board (1997) only intensified this trend. In the process almost thirty years of litigation against race-based vote denial were placed in jeopardy of constitutional irrelevancy.
Affirmative Action.
The most controversial race-related issue of the post-Warren era has been the status of *affirmative action programs, described by their critics as “reverse racial discrimination.” The details of these programs vary widely, but all involve the principle of preferential treatment for members of minority racial groups. Opponents claim that affirmative action programs violate the moral imperative that a person’s race should not be taken into account in the decision-making process. Proponents, by contrast, argue that because the long history of racial discrimination in America has a continuing, negative effect on members of minority racial groups, preferential treatment is necessary to provide them with their fair share of benefits and privileges.
The split in society as a whole on this issue has been mirrored in the reactions of the Court when programs granting preferential treatment to minority races have faced legal challenges. Some justices have voted to reject all such challenges. Others have consistently voted to strike down preferential treatment programs. Still others have taken some middle ground. Until quite recently, the middle group seemed to hold the balance of power on the issue. The Court struck down a medical school’s reservation of a certain number of places for members of minority groups in *Regents of University of California v. Bakke (1978). It also found unconstitutional a modification of seniority rights to ensure minority representation among teachers in Wygant v. Jackson Board of Education (1986). During the same period, however, the Court rejected a statutory challenge to a private party’s affirmative action plan in *United Steelworkers of America v. Weber (1979); a constitutional challenge to a set-aside program mandating minority participation in federal public works projects in *Fullilove v. Klutznick (1980); and constitutional challenges to racial quotas imposed by courts as remedies for past discrimination in *Local 28 of Sheet Metal Workers International Association v. Equal Employment Opportunity Commission (1986) and United States v. Paradise (1987).
Recent personnel changes have shifted the balance on the Court against preferential treatment programs. In *Richmond v. J. A. Croson Co. (1989), the Court held unconstitutional a city-adopted minority set-aside program virtually identical to the federal program that had been upheld in Fullilove. Even more importantly, Croson was the first case in which a majority of the Court clearly committed itself to very stringent scrutiny of affirmative action programs.
Croson, however, did not sound the death knell for all affirmative action programs. In *Metro Broadcasting, Inc. v. FCC (1990), the Court rejected constitutional challenges to regulations of the Federal Communications Commission that gave preferential treatment to minority-owned stations in licensing proceedings. The regulations were adopted pursuant to a statutory directive (p. 820) requiring the commission to promote diversification of programming in the broadcasting industry and had been explicitly approved by Congress. Rather than applying strict scrutiny, the majority held that the regulations were constitutionally permissible because they served important government objectives and were substantially related to those objectives.
Following Croson and Metro Broadcasting, the center of debate on affirmative action shifted from jobs and government contracts to preferential college admissions. Through the 1990s, opponents to preferential college admissions attacked the underlying justifications for this form of affirmative action in the lower federal courts. They argued that race-conscious remedies were nothing more than reverse forms of discrimination. As such, they challenged them under the Fourteenth Amendment and called for the courts to impose strict scrutiny in evaluating all such programs. The results were mixed. In 1996, the Fifth Circuit in Hopwood v. Texas found that the University of Texas School of Law had violated the Equal Protection Clause by applying race-based considerations in its law school admissions process. On the other hand, in Smith v. University of Washington Law School (2000) and *Grutter v. Bollinger (2002), the Ninth and the Sixth Circuits respectively upheld the University of Michigan’s law school admission policies as constitutionally permissible.
In 2003, the Supreme Court took up the matter, reviewing the Sixth Circuit’s rulings in Grutter v. Bollinger and a companion case, *Gratz v. Bollinger that challenged preferential admission in the University of Michigan’s undergraduate colleges. The Supreme Court’s response was as divided as that of the courts below. In Grutter, the Court held, “the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body”(p. 443). Meanwhile, in Gratz, the justices held that since the university’s “use of race in its current freshman admissions policy [was] not narrowly tailored to achieve respondents’ interest in diversity” (the university automatically awarded each minority applicant a bonus of twenty points toward admission), the policy violated the Equal Protection Clause.
The split rulings in Grutter and Gratz suggest the indeterminate nature of the Supreme Court’s ongoing response to affirmative action. On the one hand, the justices acknowledge a legitimate governmental duty to assure racial balance within society, even to the extent of employing race-conscious remedies On the other hand, they are deeply worried by the negative constitutional implications for individual rights and equal protection of such race-conscious actions. Their response has been to split their rulings on a case by case basis, questioning the basic doctrine of affirmative action, but allowing its use where the preferential admissions were narrowly tailored in their reach and impact.
Conclusion.
It is quite difficult to evaluate the overall impact of the Supreme Court on race relations in America. One point does emerge clearly, however. In many respects, the evolution of the Supreme Court’s approach to issues of race relations mirrors that of American society as a whole. Overall, whites in the twenty-first century almost certainly view racial minorities more benignly than did their predecessors of 1850 or even 1950. At the same time, however, there are limits to the price that most white Americans are willing to pay in order to ameliorate the conditions of racial minorities, and this factor is also reflected in contemporary decisions.
Changes in perceptions of state-federal relations have also had a strong impact on the Court’s decisions. The movement from Cruikshank to Katzenbach v. McClung to Metro Broadcasting and beyond is not only a function of the evolution of social attitudes toward race. It also reflects the degree to which large segments of American society have come to look to the federal government rather than the state governments as the proper agent to solve social problems.
In short, the Supreme Court’s experience with race relations provides an excellent illustration of the interaction between the Court and society as a whole. The range of actions likely to be considered by the Court will be determined by the overall political culture in which it operates. The choice among those actions will be determined by a variety of factors, not the least of which are the specific predilections of the serving justices. These considerations define both the possibilities and limits of the Court’s potential for dealing with major social problems such as race relations.
Derrick A. Bell, Jr., Race, Racism and American Law (1980). Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development 1835–1875 (1982). Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (1975). Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987). J. Harvie Wilkinson, From Brown to Bakke: The Supreme Court and School Integration: 1954–1978 (1979). Tinsley E. Yarbrough, Race and Redistricting: The Shaw-Cromartie Cases (2002).
Earl M. Maltz; revised by Charles L. Zelden
