The concept of equal protection originates in the 14th Amendment of the U.S. Constitution. In part, it reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis added).
The seemingly simple clause has generated significant public debates over its interpretation and usage. Among these is whether the framers were concerned primarily with equality of the laws or protection of the laws. Various alternative framings and interpretations have generated a vocabulary of common expressions such as separate but equal and its converse of separate as inherently unequal, color-blind, or race conscious, as well as the terms equal opportunity, affirmative action, or preferential treatment and its corollary reverse discrimination. These competing conceptualizations frame larger social, political, and legal debates spawned by the equal protection clause.
The 14th Amendment was ratified in 1868, just 3 years after the 13th Amendment, which abolished slavery and involuntary servitude, and 2 years before the 15th Amendment, which prohibited denying citizens the right to vote “on account of race, color, or previous condition of servitude.” This trio of post-Civil War amendments served many purposes, but a central focus was protecting newly freed slaves, particularly in those States that had constituted the Confederacy.
So on its face, the 14th Amendment’s equal protection clause seemed intended to provide recently freed slaves the same protection under the laws as white citizens. Surprisingly, the earliest litigation involving the 14th Amendment had little to do with race. Today, litigation under the equal protection clause involves questions about gender, age, disability, and sexual orientation, among other classifications. Nonetheless, examining the application of the equal protection clause to race is illustrative.
In 1877, when federal troops withdrew from the South, abruptly ending a period of Reconstruction, many Southern and Border States enacted regulations known as Jim Crow laws (which prohibited blacks from using the same public facilities as whites) and Black Codes (which impinged on blacks’ civil rights and civil liberties). In 1896, one such Jim Crow law was the focus of a notorious U.S. Supreme Court case known as Plessy v. Ferguson. This case gave rise both to the doctrine known as “separate but equal” and to a contradictory minority view that the Constitution was “color-blind.”
Using the equal protection clause of the 14th Amendment, Homer Plessy challenged a Louisiana law that mandated that railway coaches be segregated by race. State law required black customers to ride in separate, third-class passenger cars. Plessy, an “octoroon” (meaning he was one-eighth black), was arrested when he boarded the train with a first-class ticket usually reserved for white patrons. The Court upheld the law, finding that the equal protection clause did not extend to “equality in social arrangements” but rather protected only “equality of civil rights.”
In this reading of the equal protection clause, the notion of protection of the laws trumped the idea of equality of the laws. Justice Brown, writing for the majority, identified “the underlying fallacy” of Plessy’s argument as based on an assumption that “separation of the two races stamps the colored race with a badge of inferiority.” The only dissenting justice, John Harlan, wrote, “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens” (emphasis added). Two decidedly conflicting views thus emerged. The majority permitted separate treatment by race if that treatment was equal; Harlan objected to the very notion of separate, where people were sorted by race.
Ostensibly, Plessy permitted separate treatment only when groups were treated equally. In reality, the Plessy decision legitimized racial discrimination in virtually all aspects of social life and resulted in inferior treatment of blacks. Separate accommodations extended well beyond transportation and included all types of public facilities and institutions (e.g., water fountains, swimming pools, schools, hotels, and lunch counters). These laws flourished into the 1960s.
The “separate but equal” interpretation of the “equal protection” clause was finally successfully challenged in 1954 in the landmark case of Brown v. Board of Education of Topeka. In this case, involving segregated public schools, the U.S. Supreme Court held that separate schools were “inherently unequal” and explicitly violated the equal protection clause of the 14th Amendment. Note the significant shift to interpreting the equal protection clause as discriminatory merely by virtue of treating minority groups separately. The Court acknowledged that racial classifications could not be considered independently from the social context that perpetuated inferior treatment.
During the 1960s, civil rights advocates expressed concern about institutional or structural discrimination. Advocates argued that race-neutral or color-blind policy—which might appear fair and impartial on its face—actually perpetuated institutional discrimination (on the basis of race, gender, or age) as a practical matter by replicating the status quo. These advocates argued that race-conscious policies were necessary to correct historic inequities. They sought to provide equal opportunities for historically marginalized populations through affirmative action programs and policies. Under these initiatives, special preferences could be given to under-represented groups. The point of affirmative action was to correct, compensate, or redress past discrimination for social injustices by giving preferential treatment to individuals based on membership in a group to ensure their equal opportunity to participate in social and political institutions (education, employment, etc.). The object was to increase the representation of the minority groups in areas where they had been traditionally excluded or under-represented. Unequal treatment was seen as a way to promote equal protection as it related to distribution of opportunities.
By the 1970s, concern that some groups were receiving preferential treatment led opponents to reframe the issue and introduce the idea of reverse discrimination. In general, “reverse discrimination” was conceptualized as the practice of discriminating against members of a majority or dominant group by favoring members of a minority group. Affirmative action or preferential treatment programs and policies were challenged as violating the equal protection interests of members of the majority.
For example, in Regents of the University of California v. Bakke, another landmark Supreme Court case, Allen Bakke—a white male applicant to the University of California at Davis School of Medicine who was twice denied admission—argued that the school’s affirmative action program, which set aside 16 seats for minority candidates, violated his equal protection guarantees because the policy discriminated based on his race. Notably, he argued it was race alone that barred him from competing for one of those 16 reserved seats. The court agreed, holding that a quota system that reserved a specific number of seats based on race was an unconstitutional violation of the 14th Amendment.
More recently, the Supreme Court returned to the issue of affirmative action policies and university admissions. In 2003 the court held in Grutter v. Bollinger that the University of Michigan Law
School’s affirmative action policy was constitutional and did not violate the equal protection clause. Barbara Grutter, a white woman who was denied admission, argued that the university’s race-conscious admissions policy violated her 14th Amendment equal protection rights. The university argued that diversity—broadly defined to include more factors than race, such as socioeconomic status, gender, age, and religion—was necessary to obtain a diverse student body. In order not to run afoul of Bakke, the University of Michigan argued that it did not have a quota system but rather that each person was individually evaluated based on a number of factors including, but not limited to, race and that each had an equal opportunity to compete for every seat.
Although race serves as the primary example in this entry, the equal protection clause has been broadly applied—with greater and lesser success—to many other kinds of groupings, such as gender, age, sexual orientation, and disability. The Supreme Court has established a three-tiered theory of equal protection depending on what group is being considered and the importance of the interest threatened. Strict scrutiny, the highest standard, is reserved for cases involving race, and the unequal treatment must meet a compelling state interest. The lowest standard of review is known as rational scrutiny. Under this minimal standard, there must be some sort of reasonable relationship between the unequal treatment and a legitimate government purpose. The middle tier has been used exclusively for cases involving gender, where the unequal treatment must be substantially related to an important state objective. Thus, as simple as the idea of equal protection sounds, it applies differently based on group membership and the interests at stake.
- Baer, Judith A. 1983. Equality under the Constitution: Reclaiming the Fourteenth Amendment. Ithaca, NY: Cornell University Press.
- James, Joseph B. 1984. The Ratification of the Fourteenth Amendment. Macon, GA: Mercer University Press.
- tenBroek, Jacobus. 1951. Antislavery Origins of the Fourteenth Amendment. Berkeley, CA: University of California Press.
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