POSC 130g 1st Edition Lecture 15 Current LectureRace and LawWhat is the meaning of equal protection of the laws?Even though race is a social construct, the law uses categories of races as though it was real; realificationRacial Integrity Act of 1924: prohibited whites from intermarrying, but not minorities from intermarrying. This violated equal protection. BROWN V BOARD CONT. Criticisms of Social Science: methodological Herbert Wechsler- “neutral principles”; don’t want to base interpretation on equal protection on what social scientists find. It should be based independent on abstract ideas rather than social science. Equality shouldn’t be decided on something so flimsy as social science. Court downplays it because they put it in a footnote. This argument is worth considering because we know that scientific paradigms can shift. When the court ruled to finally overturn Plessey case, they didn’t say what the remedy was. in 1955, when the court ordered desegregation, they said it should be “with all deliberate speed”. They understood there would be resistance. They read the whole piece to the media, it seems more like propaganda rather than a legal decision. Earl Warren needed everyone to sign the decision, and therefore he had to put everyone’s argument in. The Brown decision doesn’t say there is a constitutional right to education. It says the education is instrumental, but later decisions of the court provided a stronger argument to education. Earl Warren played a crucial role in the internment of Japanese Americans, he felt so remorseful that it may have motivated him to ensure the Brown decision came out the way it did. One scholar said the JA’s paid the ransom for the freedom of the African Americans. Reactions to Brown decisionPresident Eisenhower wasn’t willing to play an active role, 96 Congressman issued the Southern declaration on integration. It was published in the New York Times and these congressman denounced the Supreme Court decision, saying it’s a classic example of judicial activism.Cooper v. Aaron, Little Rock, Arkansas. They said that the schools couldn’t be desegregated and wanted two and a half years until implementing a desegregation plan. When this went to trial, the US Supreme Court said the lower court couldn’t wait just because of hostility. The US Supreme Court said they were taking too long to implement the decision. The governor of Arkansas had blocked the integration of a high school so President Eisenhower had to federalize the troops to escort black children to the high school through force. Richard Neustradt, Presidential power, in this book, this is a sign of weakness by President Eisenhower. The main argument of the book is the power of the president is the power to persuade. After considerable delay, he federalized the national guard to restore order. How do you get leaders to comply with the decision? What sorts of policies can be used to try to bring about social change to ensure racial equality? Was busing students around school districts a legitimate policy? Supreme Court ruled it was a legitimate policy. What if it was a school district where there was no mandate to discriminate, but just happened because of residential patterns? If there were separate schools, it created a presumption of discrimination. In the area of busing, the Supreme Court treated it was discrimination in separate school. KEYES vs School District: intent v. impact; there was a racist intent in the impact of the law. Doesthe policy violated equal protection by the policy being enacted based on race? Legacy of Brown: Public PoliciesHow do you prove there is a racist intent on law?Forseeability, impact, etc. It’s hard for people to claim that there was racist intent. Unconscious racism: means that it will be it is virtually impossible to show there was racist discrimination. in the busing area, the Supreme Court said that the fact there are two separate school districts, they were going to presume its discrimination. They were going to infer a discriminatory intent from the impact. This is an exception from how the Supreme Court handled discrimination. One issue that came up is if they are going to have busing in a policy, how far could you bus people? The Supreme Court supported busing as a policy, they started to limit it.Milikan v Bradley: 5 v 4 decision, in an all African American city, the local district court decided to let these kids be bused to 53 different district in the suburban districts. This was too far. This showed the Supreme Court was hesitant to allow busing to be used. There was white flight to suburbs and whites went to private schools. Affirmative ActionShould courts use the strict scrutiny test?If a law treats people differently on the basis of race to help groups that have previously experienced discrimination, should those laws be analyzed under strict scrutiny.This is important because in the early use of equal protection, the Supreme Court said there must be a compelling state interest. In the 1970s, affirmative action was used to achieve equality. Can you take race into account to benefit groups that have experienced discrimination? CasesAllan Bakke v. UC Regents (1978), 5 v 4 decisionUS Supreme Court said race could be taken into account during admissions. This is a landmark case that US Supreme Court said that Bakke should be admitted and the quotas were invalid butit was permissible to take race into account. This is a fragmented decision and is hard to know what the US Supreme Court agreed on. It seems that the court was using the strict scrutiny test.What were the issues with Bakke? He was older and white. He applied to go to UC Davis and themedical school. They had 100 seats and 16 were set aside for minority or disadvantaged groups.His scores were lower than those admitted for the regular seats but were higher than those of the 16 spaces. He said the policy violated the 14th amendment, the Civil Rights Act, the Constitution, the California Constitution. What admission policies are justifiable? Compare admissions at UC Davis and HarvardUC Davis was honest and admitted that they had tried to get 16 students from different backgrounds. Harvard doesn’t admit it publicly but it shows that they do. Is there really a difference? Students don’t start in the same place in life, to try to level the playing field or give people equalopportunities, it must mean something more than the mere absence of