Legal Foundations of Civil Rights and Pluralism in America

Published date01 March 1981
Date01 March 1981
Subject MatterArticles
Legal Foundations of Civil Rights
and Pluralism in America
ABSTRACT: Central to the dynamics of American pluralism
are legal protections provided for minorities. To a large degree
these rights revolve around the concept of equal protection
of the laws. Whether reflected in the Fourteenth Amendment
or statutes, the principal question is, Under what conditions
is it just or reasonable to afford different treatment to persons
because of their race? Here this question is addressed in the
context of the transformation of the concept of equal protec-
tion since Plessy v. Ferguson (1896). Certainly the legal meta-
morphosis from the "separate but equal" doctrine to the cur-
rent status of minority rights is truly profound. Particularly
important in recent years is the issue of affirmative action.
After a brief survey of the legal transition from Plessy into the
1970s and of the various levels of scrutiny that the United
States Supreme Court has given to equal protection prob-
lems, the progression of the equal protection principle is
traced herein with emphasis placed on the three most recent
affirmative action decisions announced by the Court: Univer-
sity of California Regents v. Bakke (1978), United Steel-
workers of America v. Weber (1979), and Fullilove v. Klutz-
nick (1980).
Charles M. Lamb is an assistant professor of political science, State University
of New York at Buffalo. The author of several articles on civil rights and judicial
philosophy, he formerly served on the staffs of the United States Commission on
Civil Rights and George Washington University.

ALTHOUGH progress has often protection must begin at least as far
been too slow, the political,
back as the 1896 decision in Plessy
economic, and social status of most
v. Ferguson.’ There the Court held
American minorities has improved
that a Louisiana statute requiring
dramatically since the turn of the
&dquo;separate but equal&dquo; railroad ac-
twentieth century. The same gener-
commodations for Blacks and Whites
alization applies to the legal rights
was not a violation of
either the Thir-
of minorities. The legislative and
teenth or Fourteenth amendments
executive branches of the federal
of the Constitution. Justice Brown,
government have played a substan-
speaking for the Court, stressed
tial role in this legal transforma-
that the Thirteenth Amendment ap-
tion. For example, Congress must be
plied strictly to slavery and that
applauded for passing the Civil
separate but equal accommodations
Rights acts of 19601 and 1964,2 the
did not &dquo;constitute badges of slavery
Voting Rights Act of 1965,3 and the
or servitude,&dquo; as was contended by
Fair Housing Act of 1968.~ Similarly,
the first Justice Harlan’s stirring
President Kennedy must be com-
and historic dissent.
mended for issuing Executive Order
Moreover, according to the ma-
11063,5 the first major federal re-
jority, the Fourteenth Amendment
quirement for equal opportunity in
required only political-not social
housing, and President Johnson must
-equality. Thus states had the right
be given credit for his Executive
under their police power to separate
Order 11246,6 which prohibits em-
Blacks and Whites if the traditions
ployment discrimination by govern-
and customs of the states suggested
ment contractors. Yet the United
that such a law was not unreason-
States Supreme Court has been at
able. Justice Harlan, on the other
the cutting edge of much civil rights
hand, took the famous position that
progress, particularly prior to the
&dquo;in view of the constitution, in the
1960s. It is therefore appropriate
eye of the law, there is in this country
for this article to stress the role
no superior, dominant ruling class of
of the Court in ensuring equal pro-
citizens.... Our constitution is col-
tection through both its constitu-
or-blind.&dquo; State laws that separate
tional and statutory constructions of
races, he explained, would naturally
the law.
contribute to interracial distrust and
would force Blacks into a position of
course, under the &dquo;separate but
equal&dquo; principle, it was rare that
separation was ever accompanied by
Any account of legal develop-
actual equality. But some three dec-
ments under the concept of equal
ades after Plessy a more liberal
Supreme Court gradually began to
underscore the fact that the equality
1. Public Law (P.L.) No. 86-449, 74 Stat.
component was indeed required by
2. P.L. No. 88-352, 78 Stat. 241.
Equal Protection Clause of the
3. P.L. No. 89-110, 79 Stat. 437.
Fourteenth Amendment. In Missouri
4. P.L. No. 90-284, 82 Stat. 81.
ex rel. Gaines v. Canada,8 the Court
5. 3 Code of Federal Regulations 652
(1959-1963 Compilation).
6. 3 Code of Federal Regulations 339
7. 163 U.S. 537 (1896).
(1964-1965 Compilation).
8. 305 U.S. 337 (1938).

invalidated a Missouri statute that
both constitutional principles and
prohibited Blacks from attending the
social science findings, the Warren
University of Missouri Law School,
Court noted that &dquo;to separate [black
even though the statute provided
children] from others of similar age
tuition payments for Blacks to study
and qualifications solely because of
law in neighboring states where
their race generates a feeling of
segregation was not enforced. Equal
inferiority as to their status in the
facilities for Blacks’ legal education
community that may affect their
was required by the Court; Missouri
hearts and minds in a way unlikely
could not abdicate its responsibility
to ever be undone.&dquo; Since feelings
for providing equal educational op-
of inferiority retard a child’s drive
portunity through another state. Like-
to learn, and since education is vital
wise, a decade later in Sipuel v.
for success in later life, the Court
Board of Regents of the University
announced that &dquo;in the field of pub-
of Oklahoma,9 a black woman was
lic education the doctrine of ’sepa-
held to have been denied equal pro-
rate but equal’ has no place. Sepa-
tection when refused admission to
rate educational facilities are in-
the Law School of the University of herently unequal.&dquo;
By so ruling, the Court reversed
Two 1950 decisions further under-
Plessy as it related to public edu-
scored the &dquo;equal&dquo; component of
cation, vindicated Justice Harlan’s
Plessy, thereby delivering noteworthy
&dquo;color-blind&dquo; dissent, and implicitly
blows to its continued existence.
suggested that &dquo;separate but equal&dquo;
McLaurin v. Oklahoma State Re-
would not meet constitutional stand-
gents10 ruled that black graduate stu-
ards in other areas of segregation as
dents could not be subjected to var-
well. The most apparent reasons for
ious segregative practices in class-
this change in legal policy were the
rooms, libraries, and cafeterias. And
directions taken by the cases leading
Sweatt v. Painter’1 announced that
up to the Brown decision, the fact
it was difficult, if not impossible, for
that the Court’s members were gen-
a state to meet the &dquo;separate but
erally more liberal than they had
equal&dquo; requirement where there
been in prior decades, and perhaps
were disparities in vital intangible
most crucially, the brilliant leader-
factors, such as the reputation and
ship of Chief Justice Warren, which
prestige of white as opposed to black
ably and assertively forged una-
law schools.
nimity in Brown.
The stage was thus set for a final
Nevertheless, from the initiation of
assault on Plessy via Brown v. Board
the Brown litigation, all the justices
of Education. 12 In a short, unani-
of the Warren Court-whether lib-
mous opinion, the Brown Court
eral or conservative-were fully
overruled the &dquo;separate but equal&dquo;
cognizant of the problems that would
standard as it was applied in public
be inevitably associated with imple-
schools, although physical facilities
menting school desegregation. The
and other tangible factors might in
Court therefore directed the plain-
fact be equal. Basing its decision on
tiffs to come before it again during
the 1955 term to argue how imple-
mentation should take place. Then,
9. 332 U.S. 631 (1948).
in Brown
10. 339 U.S. 637
11,13 the justices relied
11. 339 U.S. 629 (1950).
12. 247 U.S. 483 (1954).
13. 349 U.S. 294 (1955).

on ad hoc gradual relief by calling
the manipulation of school zones
for &dquo;good faith compliance at the earli-
was nevertheless de jure discrimina-
est practicable date&dquo; and for school
tion and therefore unconstitutional.
desegregation to proceed &dquo;with all
Although this list could be con-
deliberate speed. &dquo; 14
tinued to the present, including the
Since the midfifties, the Supreme
three affirmative action cases re-
Court has largely continued to en-
ceiving detailed attention in the fol-
sure that the guarantee of equal pro-
lowing pages, it is also important to
tection be afforded to this nation’s
note that in recent years the Court
minorities. Especially crucial was
has not been as consistently sym-
the period from 1967 through 1973.
pathetic toward some of the claims
For example, in Loving v. Virginia, 15
of minorities as it was from Brown
the Court outlawed a state criminal
through Keyes.21 Nor has it been
statute proscribing marriage between
unanimous as regularly in its civil
persons of different races. In Jones
rights decisions since 1973 as it was

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