We the People. Those are the first three words, probably the most famous words of the Constitution. But who are We the People? Well, that's a question that has gotten different answers at different times in American history. And one way of thinking about American history is as a story of growing inclusiveness. Over time, more and more groups get included in We the People. They get to be considered full members of our constitutional community. They get to be treated equally. So in this module, we'll be talking about equality. There have been three major equality movements in American history, race, sex and sexual orientation. We'll talk about all of those, about how they've succeeded and how they failed, about how they're similar and how they're different. And ultimately, we'll see how people become equal under the law. [MUSIC] No state shall deny to any person within its jurisdiction the equal protection of the laws. That's part of the first section of the 14th amendment. It's the equal protection clause and from pretty early on, the Supreme Court has said that it's a ban on certain kinds of discrimination, certain kinds of differential treatment, arbitrary, oppressive, unjustified. That hasn't changed much over the years. What has changed is what kinds of discrimination the court considers unjustified. Very soon after the ratification of the 14th amendment, the court applied the equal protection clause to strike down a law that excluded blacks from jury service. But it didn't touch segregation, the practice of separating the races. In a notorious case called Plessy against Ferguson from 1896, it upheld the Louisiana law that required railroads to have separate cars for whites and blacks. Discrimination that's designed to oppress or stigmatize a group, the court said, was unconstitutional. But, this wasn't. Separate but equal is a-okay. Segregation does not imply inferiority and if some people thought this was stigmatizing, that was just because they chose to put that construction on it. Hm. From the modern perspective, that doesn't sound very persuasive. It didn't persuade Justice John Marshall Harlan either. He dissented. Everyone knows, he said, that the point of this law is to establish two classes of citizen and states can't do that. There is no caste here, he said. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. 58 years later, there comes another decision, Brown v. Board of Education. This is about the segregation of public schools and now the court reaches the opposite conclusion. Segregation is stigmatizing, it says. Separate is inherently unequal because segregation implies inferiority, so states can't segregate their schools. It's important to understand that Brown didn't come out of nowhere and it didn't come from the Supreme Court alone. Brown is the culmination of decades of careful work by the NAACP legal defense fund. And it's made possible by changing societal attitudes about race, by the success of people of color in business, the arts and science, by their participation in the armed forces in World War II. It became much harder to argue that segregation was a reasonable response to real differences between the races. It stopped seeming sensible and started seeming oppressive. There was a lot of resistance to Brown, but the other branches of the federal government supported the court. Congress enacted civil rights acts that prohibited segregation and discrimination by private businesses. President Eisenhower sent the 101st Airborne to Little Rock, Arkansas to make sure that black children could attend the schools the Constitution entitled them to. And eventually, the societal turmoil died down. The Brown decision, so fiercely challenged when it was announced, became considered one of the most fundamental, one of the most undeniably correct decisions the Supreme Court had ever issued. Its rule against segregation was extended to other contexts, pools, golf courses, even marriage in 1967. By the time of that decision, Loving v. Virginia, it was clear that the opponents of Brown had lost. So it might surprise you to hear that battles about race and the equal protection clause have continue to occupy the court in recent years. In 2005, there was a pair of very important decisions. Another one in 2007. One just last year in 2013. What are those about? Well, it turned out that Brown was the end of one struggle and the beginning of another, because after deciding that excluding people from school because of their race was unconstitutional, the Supreme Court started grappling with the issue of when race could be used to include. What this struggle boils down to is a clash between two different ways of understanding the equal protection clause. I'm going to call them the anti-subordination view and the anti-classification view. Anti-subordination says oppression is bad. We should worry about laws that injure or stigmatize certain vulnerable groups, politically weak groups typically, racial minorities in particular. Legislatures might enact laws that hurt these groups out of hostility because they actually want to hurt them or out of indifference because they just don't care about their interests. The basic equal protection problem from the anti-subordination perspective is a lack of equal concern and respect. The government is taking some people's interests more seriously than others. It's giving some people's interests more weight. Anti-classification says something very different. The equal protection clause in the anti-classification perspective isn't about oppression, it's about classification. There are certain kinds of characteristics according to which the government really shouldn't classify people. Race is the biggest of those. The government, according to the anti-classification view, should basically never treat people differently because of their race. And there are a couple of reasons for this that the court offers. One is that race is unrelated to merit, so treating people better or worse because of race is unfair. Another is that racial classifications get people upset. They increase racial tension. You should see that the difference between these two views doesn't come out in cases like Brown. There, both views agree segregation is unconstitutional. It's suppressing minorities and it's treating people differently based on race. The difference comes out in situations where, for instance, a state university or law school wants to give admissions preferences to racial minorities in order to produce a racially diverse student body. Anti-subordination would say that's fine. It might be good policy or bad policy, but the Constitution allows the state and the school to make the choice because it's not oppressing a politically weak group. Anti-classification would say it's probably unconstitutional. The government simply can't treat people differently based on their race. Which of these views is right? As I said, the Supreme Court has struggled with the issue over the years. In its early cases, it took the anti-subordination view. That, along with the idea that racially segregated railroad cars aren't oppressive, is why Plessy came out the way it did. In its most recent cases, it has shifted decisively to the anti-classification view. Most notably, in a 2007 case called Parents Involved, it said that it was unconstitutional for a school district to use race as a factor in assigning students to public schools within a district. The district wanted to do this in order to maintain racial diversity. Now, what was notable about this was that the assignment system wasn't a merit-based competition. The Affirmative Action cases before had been about competition for a limited number of spots in elite schools, where minority status counted as a plus factor. Minorities in that kind of system get an advantage. They're treated better. But these students weren't competing for the public schools. No one was looking at their grades or test scores to make these decisions. So there was no sense in which one racial group was treated better or worse than another. And for that reason, it was pretty clear that there was no systematic oppression or creation of a racial class system. Still, the court said, this is unconstitutional. It's just like Brown, the majority said. You're telling students where they can and can't go to school based on their race. This is exactly, the court said, what the lawyers behind Brown were fighting against. They won. And we honor their victory by holding it unconstitutional to use race to decide which public school a student can go to. The way to stop discrimination on the basis of race, Chief Justice Roberts wrote, is to stop discriminating on the basis of race. The dissent, this was a pretty bitter 5-4 decision, disagreed. Brown, they said, was about using race to segregate and label one race as inferior. This, on the other hand, is about using race to integrate in order to break down stereotypes. And that's maybe a good question to end with. What was Brown about? Everyone agrees now that Brown was right. It's become central to our understanding of racial discrimination and racial equality. But what does it mean? Which side of this case do you think was right about what Brown stands for? About what the lawyers behind it were arguing for? [MUSIC]
