Equal Protection Clause

By Mark Ladov, is counsel for the Justice Program of the Brennan Center for Justice at NYU School of Law.

The nation will be paying close attention to the Supreme Court’s review of the University of Texas’s admissions policies when it hears oral argument in Fisher v. University of Texas at Austin (UT) on October 10.  Most of the conversation will focus, as it should, on what the Court has to say about race, education and opportunity in the twenty-first century.  But Fisher is also important for what it will teach us about the Roberts Court’s faith in the rule of law and the principle of stare decisis (or the binding effect of past precedent).

UT’s admissions program considers the race of its applicants, but only alongside a variety of factors (including class, family history, work experience and individual talents) that shape a student’s identity and potential.  As Joshua Civin explained well in this blog, the alternative so-called “race-neutral” approach would actually demean students’ individuality, by forcing them to censor references to race and culture out of their college applications.  

It is well established that UT’s admissions policies are good for our multi-racial democracy, and wholly consistent with the Constitution’s equal protection clause.  That is not just the opinion of over 70 amici briefs siding with the university.  It is also the view of the Supreme Court, which addressed these exact issues less than a decade ago in Grutter v. Bollinger. 

In Grutter, the Court upheld the University of Michigan Law School’s similarly holistic admissions policy.  Justice O’Connor’s opinion enthusiastically affirmed principles first announced by Justice Powell in Regents of Univ. of Cal. v. Bakke(1978).  She explained the importance of diversity for giving all students the best education possible, and for training a diverse set of leaders for America’s future.  

UT has followed these instructions to the letter.  The Fifth Circuit found exactly that when upholding the constitutionality of its admissions program.  As my colleague Sidney Rosdeitcher points out, in a thorough review of the facts and law of this case, “it would be an assault on the principles underlying stare decisis” for the Supreme Court to reach beyond the issues raised in this case to overturn or limit Grutter.

by Jeremy Leaming

It took an incredibly ridiculous amount of time, but 45 years ago today the U.S. Supreme Court finally got around to invalidating state laws that banned interracial marriage.

The case, Loving v. Virginia decided on June 12, 1967, involved Mildred and Richard Loving who were married in the District of Columbia in 1958, and later prosecuted in Virginia by authorizes intent on enforcing the state’s racist laws against interracial marriage. The couple later moved to the District of Columbia and lodged a class action challenging Virginia’s anti-miscegenation laws as a violation of the Constitution’s liberty protections found in the Fourteenth Amendment.

The case eventually reached the Supreme Court.

Writing for the unanimous Court, Chief Justice Warren E. Burger rejected Virginia’s arguments that its laws did not subvert the Constitution. The state’s arguments are not worth reciting. Suffice it to say, those arguments were racist. The Warren Court easily found that Virginia’s laws were a serious affront to the Constitution’s liberty protections.

“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification,” Burger wrote. “The fact that Virginia prohibits only interracial marriage involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

“We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”