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The Supreme Court as the Major Barrier to Racial Equality


Ivan E. Bodensteiner


Valparaiso University Law School

May 2008

Valparaiso University Legal Studies Research Paper No. 08-05

Abstract:     
This Article suggests that the U.S. Supreme Court, through its decisions in cases alleging race discrimination, stands as a major barrier to racial equality in the United States. There are several aspects of its decisions that lead to this result. Between 1868 and 1954, the Equal Protection Clause of the Fourteenth Amendment, while it had been interpreted to strike down a few blatant forms of de jure discrimination, allowed government to separate the races based on the separate but equal fiction. Beginning in 1954, Brown and a series of subsequent decisions attacked this fiction and for a period of nearly twenty years the Court was intent on eliminating the vestiges of segregation in the schools, approving broad remedial orders. This changed drastically beginning in 1974 when the Court began limiting the available remedies and relieving school systems of the burdens imposed by court orders. Around the same time, the Court decided that equal protection plaintiffs needed to show a discriminatory governmental purpose in order to trigger meaningful constitutional protection. This meant that facially neutral laws and practices with discriminatory effects were largely constitutional.

Beginning with Bakke in 1978, the Court made it difficult, and eventually nearly impossible, for government to take affirmative steps designed to promote equality. A majority of the Court determined that invidious and benign racial classifications should be treated the same under the Equal Protection Clause, with both subjected to strict scrutiny. This completed the Court's interpretation of the Fourteenth Amendment in a manner that makes it a real barrier to racial equality: government is free to engage in invidious discrimination as long as it masks the real purpose, and affirmative steps designed by government to promote equality will be struck down as a violation of equal protection. Ironically, the constitutional amendment designed to promote freedom and equality for the newly-freed slaves now stands in the way of true freedom and equality.

Number of Pages in PDF File: 37

Keywords: equal protection, race discrimination, equality, equal opportunity, Supreme Court - race discrimination jurisprudence

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Date posted: May 16, 2008  

Suggested Citation

Bodensteiner, Ivan E., The Supreme Court as the Major Barrier to Racial Equality (May 2008). Valparaiso University Legal Studies Research Paper No. 08-05. Available at SSRN: http://ssrn.com/abstract=1133633 or http://dx.doi.org/10.2139/ssrn.1133633

Contact Information

Ivan E. Bodensteiner (Contact Author)
Valparaiso University Law School ( email )
656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
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