American Constitutionalism in Historical Perspective (packet)

Triggers for de jure remedies:

1. 
   Express racial classification: invidious and unconstitutional
   
2. 
   Implied racial classification: disproportionate impact on subordinated group and no non-racist reason can be offered for it.
   
3. 
   Rural v. Urban: Rural areas d/n have history of residential segregation adding to difficulties.
   
4. 
   De facto Segregation: don’t apply Brown remedies. All minority school in fact b/c of choice.
   

Three periods:

1. 
   Massive resistance throughout the American South after Brown II. Political racism, wanting to win elections.
   
   1. 
      Cooper v. Aaron: 1958, reaffirms principle of Brown and enforces it. Eisenhower orders in federal troops even though he d/n agree w/ Brown, he agrees with law. SC invokes Marbury in its most expansive reading.
      
2. 
   Civil rts movement. protest begins to change the minds of the American ppl. Confronts us w/ the violence sustaining racism of the So. and leads to a shift in our politics democratically so cts no longer alone.
   
   1. 
      2 great pieces of legislation: Civil Rts Act of 1964, validated under the Commerce Clause (extends to hotels and restaurants) and the Voting Rts Act of 1965: first time since Reconstruction AAs are given an effective guarantee of their voting rights.
      
   2. 
      Voluntary transfer is not enough. Green v. County School Board, 1968: p. 698 strikes down school choice program in the south because effects of the proposed remedy would increase rather than lessen segregation.
      
   3. 
      Swann v. Charlotte-Mecklenburg Board of Education, 1971: drastic measures to integrate a residentially segregated urban area, introduces busing. After 20 yrs, school busing leads to fact that most integrated schools are in the south.
      
   4. 
      De jure segregation cases of the North p. 699.
      
      1. 
         Keyes v. School District, 1973: if desegregation is ordered for part of a school district, the Brown remedies are applicable to the whole district. Finds implied segregation in the other areas.
         
      2. 
         Dayton & Columbus School Districts, 1979: court orders school districts to make efforts to integrate, if d/n draw lines across ethnic divide they are causing harm. Going beyond Yick Wo and Gomillion, using Rogers v. Lodge standard.
         
         1. 
            Majority: Find that public education has an obligation to take affirmative steps toward integration. Leads to massive expansion of Brown remedies to the North, more busing. Subject to Swann remedy, redraw attendance zone and permitted to bus to secure integration.
            
         2. 
            Powell dissent: d/n believe fed cts should be doing this implementation, this is the wrong way to achieve integration, more polarizing (leads to white flight). Wants to expand Brown to ALL education, beyond de jure into de facto, but wants to get rid of busing remedy.
            
      3. 
         Milliken v. Bradley, 1974: court struck down Detroit’s efforts to integrate inner city by forcing busing from areas outside the city. Needs to be de jure segregation in districts outside the city to have them involved in integration.
         
      4. 
         But see Hills v. Gautreaux p. 701 Cts remedial order against HUD could extend beyond Chicago’s boundaries b/c metropolitan relief w/n consolidate or restructure local units. Had been discriminatory in selection of sites for public housing in Chicago
         
3. 
   1990s: most cases hold that indefinite extension of remedies isn’t justified.
   
   1. 
      Missouri v. Jenkins (1990) ct c/n order taxes to finance 25% share of desegregation costs. Levels of taxation is democratic matter. Put pressure on local school district to raise these taxes unless absolutely necessary for ct to do so
      
   2. 
      Oklahoma v. Dowell: p. 702 school districts subject to Brown/Swann remedies but SC strikes down revival of busing since resegregation had occurred. Already addressed de jure history.
      
   3. 
      Freedman v. Pitts: allow partial withdrawal of ct supervision.
      
   4. 
      US v. Fordice: p. 703 higher ed, only opinion in 1990s contra. Ct rejected freedom of choice system-can no longer have all black universities. Similar point made about all-women universities b/c reconsideration of separate but equal. After this happens, a lot of AA are leaving all black universities and going to mixed universities.