Civil Rights

Civil liberties: Constitutional limits on what government can do TO you. Protections of individual freedom from government action. Example: First Amendment freedom of speech (government can't punish you for criticizing it); Fourth Amendment protection against unreasonable searches.

Civil rights: Protections AGAINST DISCRIMINATION by government (and in some areas, private actors). Government must treat you equally and protect you from discriminatory treatment based on characteristics like race, sex, national origin, disability. Example: Equal Protection Clause; Civil Rights Act of 1964 banning racial discrimination in employment.

Distinction: Civil liberties are about what government CAN'T DO; civil rights are about what government MUST DO (or must prevent) to ensure equal treatment. Both rest substantially on the 14th Amendment, though through different clauses (Due Process for liberties; Equal Protection for civil rights).

Plessy v. Ferguson (1896): Upheld a Louisiana law requiring "equal but separate" railway cars for Black and white passengers. The Court held that racial segregation did not violate the 14th Amendment's Equal Protection Clause, so long as facilities were nominally equal. This established the "separate but equal" doctrine that justified Jim Crow segregation across the South for nearly six decades.

Brown v. Board of Education (1954): Unanimously overruled Plessy in the context of public schools. Chief Justice Warren's opinion held that "separate educational facilities are INHERENTLY UNEQUAL" — even when physical facilities were comparable, segregation generated a sense of inferiority that damaged Black children's education and life prospects. Therefore racial segregation in public schools violates the Equal Protection Clause.

Constitutional basis for overruling: The 14th Amendment's Equal Protection Clause. Brown drew heavily on social science evidence (notably Kenneth and Mamie Clark's "doll studies") showing the psychological harm of segregation, marking a more empirically grounded approach to constitutional interpretation than Plessy's formalism.

Why three levels? The Court treats classifications differently based on the historical pattern of discrimination, immutability of the trait, and political powerlessness of the group. Race triggers the most demanding scrutiny because of the long history of racial subordination and the relevance of the 14th Amendment's purpose. Sex receives intermediate (rather than strict) scrutiny — a partial recognition that women are not similarly situated to men in all respects. Most other classifications are everyday legislative line-drawing and only the most arbitrary fail rational basis.

Example application: A law setting different drinking ages for men and women would receive intermediate scrutiny (sex classification) and likely fall — Craig v. Boren (1976). A law setting a minimum drinking age of 21 for everyone would receive rational basis and easily survive.

1. Civil Rights Act of 1964: Banned discrimination in public accommodations (hotels, restaurants, theaters), in employment (Title VII — race, color, religion, sex, national origin), and in federally funded programs (Title VI). Passed despite a lengthy Senate filibuster after President Kennedy's assassination and President Johnson's persistent pressure. The constitutional basis for public-accommodations provisions was the Commerce Clause (upheld in Heart of Atlanta Motel v. United States, 1964).

2. Voting Rights Act of 1965: Banned literacy tests and other discriminatory voting practices; required federal preclearance for changes to election laws in jurisdictions with histories of voting discrimination (Section 5, with formula in Section 4(b)). Triggered by the violent suppression of voting-rights marchers in Selma, Alabama. Dramatically expanded Black voter registration in the South. The preclearance formula was struck down in Shelby County v. Holder (2013), substantially weakening the Act.

3. Fair Housing Act of 1968: Banned discrimination in the sale, rental, and financing of housing on the basis of race, color, religion, or national origin (later amended to include sex, disability, and family status). Passed in the wake of Martin Luther King Jr.'s assassination. Addressed entrenched residential segregation through restrictive covenants, redlining, and discriminatory real estate practices.

These three laws — together with the constitutional victories of Brown and the broader civil rights movement — fundamentally restructured American legal protections against racial discrimination.

(a) Court's reasoning (Roberts, 6–3): Race-conscious admissions programs at Harvard and UNC violated the Equal Protection Clause (and Title VI of the 1964 Civil Rights Act for Harvard, which is private). The Court applied strict scrutiny and held that the universities' use of race failed several requirements:

1. Compelling interest not measurable. "Educational diversity" is too amorphous a goal to justify racial classification under strict scrutiny — there is no clear endpoint or measurable benefit.
2. Race used as a stereotype. Treating applicants as representatives of a racial group violates the principle of treating individuals as individuals.
3. No logical endpoint. Grutter had said race-conscious admissions should end within 25 years; the Court held this open-endedness is itself constitutionally problematic.
4. Negative use of race. Harvard's data showed Asian-American applicants were systematically rated lower on subjective "personal" scores, suggesting race was being used to disadvantage some applicants.

(b) Interaction with precedent:

• Bakke (1978): Struck down explicit racial QUOTAS but allowed race to be considered as one factor among many to promote educational diversity. SFFA did NOT formally overrule Bakke's prohibition on quotas, but eliminated the affirmative use of race that Bakke had blessed.
• Grutter (2003): Narrowly upheld the University of Michigan Law School's race-conscious admissions on diversity grounds. SFFA effectively overruled Grutter's holding without explicitly using the word "overrule" — Roberts's majority said Grutter and Harvard/UNC's programs simply couldn't survive strict scrutiny when applied rigorously.

(c) What institutions can still do:

• The Court left open that applicants may discuss how RACE has affected their lives in personal essays, and admissions officers may consider those essays — but cannot use race as a categorical plus-factor.
• Institutions may pursue diversity through race-neutral means: socioeconomic preferences, geographic preferences, first-generation status, percent plans (e.g., Texas's Top 10% Plan automatically admitting top high-school graduates), recruitment in underrepresented areas, and partnerships with diverse high schools.
• Several states (California, Michigan, Florida, Arizona, Washington, Nebraska, Oklahoma) had already banned race-conscious admissions through ballot initiatives; their experience offers a preview — racial diversity dropped sharply at flagship campuses, particularly in selective programs, despite race-neutral alternatives.
• Continuing legal contests are likely over legacy preferences, early decision, and other admissions practices that produce racial disparities even without explicit race-conscious treatment.

SFFA is among the most consequential Equal Protection decisions of the 21st century and has reshaped the landscape of American higher-education admissions.