Race and discrimination

Practice of treating people differently on the basis of their race, skin color, or ethnicity. Racial discrimination may be perpetrated by governments, private persons, or institutions.

The first African slavesSlavery;beginnings of in North America arrived at the English colony of Virginia aboard a Dutch ship in 1619. Slavery grew in the English colonies and continued in the United States after the American Revolution. It was explicitly recognized by the U.S. Constitution. The Thirteenth Amendment, ratified just after the end of the Civil War in 1865, abolished slavery. Two additional constitutional amendments, the Fourteenth and the Fifteenth, were passed in 1868 and 1870 respectively to protect and enfranchise the newly liberated slaves. The Supreme Court was called on almost immediately to define and interpret the meaning of the new constitutional rules.

Four NAACP leaders holding a membership poster for their organization. From left to right: Henry L. Moon, Roy Wilkins, Herbert Hill, and future Supreme Court justice Thurgood Marshall

(Library of Congress)

In its first Fourteenth AmendmentFourteenth Amendment case, Slaughterhouse Cases (1873), [case]Slaughterhouse Cases[Slaughterhouse Cases] the Court clearly acknowledged that the purpose of the amendment was to abolish racial discrimination. In Strauder v. West Virginia[case]Strauder v. West Virginia[Strauder v. West Virginia] (1880), the Court confronted the first of many black codes, statutes passed in the southern states after the Civil War to deny African Americans their newly recognized rights. A West Virginia statute disqualified African Americans from serving on trial juries. Strauder, a black man charged with murder, asked to have his case removed to a federal court because African Americans could not serve on his jury. The Court granted his request. Justice William Strong wrote, “The words of the amendment…contain a necessary implication of a positive immunity, or right, most valuable to the colored race the right to exemption from legal distinctions implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.”

Separate but Equal Doctrine

Despite the tone of the first two cases in which the Court had considered the Fourteenth Amendment’s command that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” its 1896 decision in Plessy v. Ferguson[case]Plessy v. Ferguson[Plessy v. Ferguson] established the separate but equalSeparate but equal doctrine rule. Under this rule, a state did not deny equal protection by establishing racially segregated facilities as long as equal facilities were made available to all. Apart from its inconsistency with the precedents, Plessy also is important because it provided the legal justification for much of the racial segregation that took place in the United States until the 1960’s. In reality, the facilities afforded nonwhites were rarely, if ever, equal. The Court may not have been directly responsible for the repression of African Americans, but it did provide the juridical rationale that permitted both governmental and private racial discrimination.

At the end of World War I, the most visible manifestation of governmental discrimination was the system of segregated public schools that existed pursuant to law in all the former states of the Confederacy and in most of the border states, including Kentucky, Delaware, and Maryland. In 1925 opponents of segregation, most notably the National Association for the Advancement of Colored PeopleNational Association for the Advancement of Colored People (NAACP), devised a strategy to attack the system. By then, Plessy v. Ferguson was bolstered by nearly three decades of governmental practice, public acceptance, and by a good many supporting court decisions. Rather than oppose Plessy directly, they decided to try to chip away at it, in particular at the equal facilities premise. Because an attack on segregation in elementary and secondary public education was thought to be too threatening to the white majority, the NAACP’s legal strategy focused initially on graduate and professional education.

During the 1930’s and 1940’s a series of cases were brought to the Court in which racial bars had been erected to the admission of African Americans to state university graduate and law schools. In most of these cases, the states had made no provision for African Americans, and the Court was quick to force states to remedy the deficiency. The most significant of these cases was Sweatt v. Painter[case]Sweatt v. Painter[Sweatt v. Painter](1950). Homan Sweatt had applied for admission to the University of Texas law school. He was rejected because he was African American. After he brought suit, Texas quickly established a separate law school for African Americans. Sweatt refused to attend the new school and continued his suit. The Court, sensitive to the intangibles in law school education in particular, held unanimously for Sweatt. The opinion’s emphasis on intangible criteria provided ammunition for the appellants’ briefs in Brown v. Board of Education[case]Brown v. Board of Education[Brown v. Board of Education] (1954), involving a segregated public school.

The End of Legal Segregation

Although nothing in the Court’s opinion in Brown said so explicitly, its thrust went far beyond public education.Desegregation The Court struck down every state segregation law brought before it within the next few years. Most of these cases were decided by memorandum or per curiam (by the entire court) opinions, often with just a brief reference to the authority of Brown. Through the remainder of the 1950’s and 1960’s a long and occasionally violent struggle over segregation took place. The Court’s last major opinion in a desegregation case was handed down in Swann v. Charlotte-Mecklenburg Board of Education[case]Swann v. Charlotte-Mecklenburg Board of Education[Swann v. Charlotte-Mecklenburg Board of Education] (1971), in which the Court authorized lower federal courts to use “equitable remedies” court orders to bring about desegregation. Federal courts mandated school busing, redrafting of district boundaries, and other measures designed to end segregation both legally and practically. By 1980 integration had taken place in many U.S. public schools across the country.

The Court’s work also sparked and encouraged the growth and fervor of the Civil Rights movementCivil Rights movement in other areas in the 1950’s and 1960’s. Soon private as well as public racial discrimination was under attack. With the passage of the Civil Rights Act of 1964Civil Rights Act of 1964 and subsequent amendments, most private racial discrimination in education, employment, public accommodations, and housing became unlawful. Congress chose to base this statute on the power to regulate interstate commerce rather than the Fourteenth Amendment. The first important constitutional test of this statute occurred in Georgia in 1964. In Heart of Atlanta Motel v. United States[case]Heart of Atlanta Motel v. United States[Heart of Atlanta Motel v. United States], a downtown Atlanta motel challenged the constitutionality of the 1964 Civil Rights Act because it wanted to continue its practice of refusing to rent rooms to African Americans. The Court, in a unanimous opinion written by Justice Tom C. Clark, held that discrimination against African Americans had a substantial effect in discouraging travel. Therefore, barring African Americans from motels placed a burden on interstate commerce, which Congress had the power to control. In a companion case, Katzenbach v. McClung[case]Katzenbach v. McClung[Katzenbach v. McClung] (1964), the Court held that Ollie’s Barbecue, a small restaurant in Birmingham, Alabama, could also be brought within the scope of antidiscrimination statutes because much of the meat sold there was imported from other states. Within a ten-year period, the law in the United States had changed from permitting government and private discrimination to disallowing both. The Court was a major agent in that change.

Past Discrimination

In the 1970’s civil rights activists shifted their focus from eliminating racial discrimination to remedying the effects of past discrimination. Amendments to the 1964 Civil Rights Act mandated affirmative actionAffirmative action to address this situation. Affirmative action was meant to give preferences to members of traditionally disadvantaged racial groups when the objective criteria for employment or admission to a school were equal between applicants. In practice, it quickly became quota oriented, especially in public institutions where “progress” in bringing an end to discriminatory practices was measured by how many members of minority groups were employed or admitted to programs. Opponents of affirmative action characterized it as reverse discrimination. Supporters saw it as remedial. The practice raised the issue of whether such programs are constitutionally permissible and whether racial classifications could be used to help minorities.

The Court answered this question albeit in an extremely complex way in Regents of the University of California v. Bakke[case]Regents of the University of California v. Bakke[Regents of the University of California v. Bakke] (1978). The medical school at the University of California, Davis, had established an affirmative action program by which sixteen of the one hundred spots for first-year students were set aside for members of minority groups blacks, Chicanos, Asians, and American Indians. Allan Bakke, a white applicant, applied to Davis twice and was rejected both times although his grades, Medical College Admission Test scores, and benchmark scores were significantly higher than those of students admitted under the affirmative action program. Bakke’s claim was that he had been denied “the equal protection of the laws” required by the Fourteenth Amendment. The opinion of the Court was written by Justice Lewis F. Powell, Jr., for two separate five-justice majorities. The justices saw the case as containing two slightly different questions: first, whether California universities could establish a racial quota system for admission and, second, whether the state could use race as a criterion in any way in shaping its medical school admissions policies. Five members of the Court Powell, John Paul Stevens, William H. Rehnquist, Potter Stewart, and Chief Justice Warren E. Burger took the position that quotas may not be used at all. All but Powell would have done away with any use of race. Powell and the remaining four justices Thurgood Marshall, William J. Brennan, Jr., Harry A. Blackmun, and Byron R. White took the position that race may be used in admissions decisions; all but Powell would have approved the Davis quota system. The result was that the Davis program was held unconstitutional and Bakke was admitted to the medical school; however, the Court found that affirmative action programs that did not use quotas could still be constitutional, depending on their content.

Other Racial Issues

Although state-mandated segregation raised the most important racial discrimination issues faced by the Court, many other cases involving race were addressed by the justices. Among the most important of these is Korematsu v. United States[case]Korematsu v. United States[Korematsu v. United States] (1944). The Court declared that race is a suspect classificationSuspect classifications, requiring the most rigorous scrutiny under the equal protection clause. Ironically, Korematsu is one of the very small number of cases in which a racial classification survived strict scrutiny by the Court. Toyosaburo Korematsu had disobeyed a military order that excluded all persons of JapaneseWorld War II;Japanese American relocationJapanese American relocation ancestry from parts of the West Coast at the beginning of World War II. Although the majority sustained the military order as a necessity that the Court should not upset, the strong strictures about racial classifications were to be invoked in many later cases.

In the area of Vote, right tovoting rights, the Court found state-mandated all-white primary elections unconstitutional in Nixon v. Herndon[case]Nixon v. Herndon[Nixon v. Herndon] (1927), and party-run all-white primaries were forbidden in Smith v. Allwright[case]Smith v. Allwright[Smith v. Allwright] (1944). The Voting Rights Act of 1965, which forbade literacy tests for voters, often used in a racially discriminatory way, was upheld by the Court in South Carolina v. Katzenbach[case]South Carolina v. Katzenbach[South Carolina v. Katzenbach] (1966).

Race-related restrictive covenantsRestrictive covenants in real-estate transactions were ruled unenforceable in Shelley v. Kraemer[case]Shelley v. Kraemer[Shelley v. Kraemer] (1948). The restrictive covenant in this case was an agreement in a deed of sale that the property would not be resold to a person “not of the Caucasian race.” The Court, in a 6-0 decision, held that the state government would be violating the equal protection clause of the Fourteenth Amendment if such a contract were to be enforced.

In 1967 the court addressed the issue of miscegenation statutes (laws forbidding interracial marriage), which existed in sixteen states, including Virginia. The Court struck down Virginia’s law in Loving v. Virginia[case]Loving v. Virginia[Loving v. Virginia] (1967). In defending its statute, Virginia argued that because the law affected whites and nonwhites alike it was not racially discriminatory. Chief Justice Earl Warren, in his opinion for the unanimous Court, wrote that such laws established “invidious discrimination based on race,” pointing out that the Virginia statute reached interracial marriages only in which one of the partners was white.

Thus, by the end of the twentieth century, the Court had established that racial classifications in both federal and state legal systems are unconstitutional except for some benign remedial classifications designed to remedy past governmental discrimination.

Further Reading

  • Just as issues of race and discrimination have continued to challenge American courts, those issues have inspired a large literate. Among the many books looking at race and the Supreme Court are Robert A. Williams’s Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005), Maurice Y. Mongkuo’s Race Preference Programs and the United States Supreme Court Strict Scrutiny Standard of Review (Lewiston, N.Y.: Edwin Mellen Press, 2005), Michael J. Klarman’s From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), and Girardeau A. Spann’s The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York University Press, 2000). Other useful books include Kevin J. McMahon’s Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago: University of Chicago Press, 2004) and Christopher Waldrep’s Racial Violence on Trial: A Handbook with Cases, Laws, and Documents (Santa Barbara, Calif.: ABC-Clio, 2001). Among important older works on this subject, the most accessible and useful for the general reader is Richard Kluger’s highly readable Simple Justice (New York: Alfred A. Knopf, 1976), which traces the Court’s role from Plessy to Brown and the litigation strategies of the NAACP and its opponents. On the origin and meaning of the Fourteenth Amendment, Jacobus tenBroek’s Equal Under Law (New York: Collier, 1965) offers an excellent discussion. Thurgood Marshall: Justice for All by Roger Goldman with David Gallen (New York: Carroll & Graf, 1992) offers a good deal of insight into Marshall’s role in the later segregation cases. There are several good biographies of Chief Justice Warren; the one that is strongest on Brown is G. Edward White’s Earl Warren: A Public Life (New York: Oxford University Press, 1982). Justice Frankfurter’s role is well explained in Felix Frankfurter: A Biography (New York: Coward, McCann & Geoghegan, 1969) by Liva Baker. A good overview of racial discrimination cases may be found in Loren Miller’s The Petitioners: The Story of the Supreme Court of the United States and the Negro (Cleveland: World, 1966). The history and development of affirmative action is extensively discussed in The Civil Rights Era: Origins and Development of National Policy, 1960-1972 by Hugh Davis Graham (New York: Oxford University Press, 1990).

Brown v. Board of Education

Civil Rights Acts


Employment discrimination

Fourteenth Amendment

Japanese American relocation

National Association for the Advancement of Colored People (NAACP)

Plessy v. Ferguson

Regents of the University of California v. Bakke

Restrictive covenants

School integration and busing

Segregation, de facto

Segregation, de jure

Separate but equal doctrine

Thirteenth Amendment

White primaries