Equal Protection Clause the Fourteenth

Equal Protection Clause

The Fourteenth Amendment -- a review: Those who oppose affirmative action insist that it amounts to "reverse discrimination" and further, that it violates the "Equal Protection clause" of the Fourteenth Amendment. The Fourteenth Amendment states very succinctly: "No State shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws." This paper will review historical references and court opinions with reference to affirmative action and the Fourteenth Amendment.

The Fourteenth became part of the U.S. Constitution in 1868, and according to professor Eric Foner of Columbia University, it was the "most important constitutional change" in the history of the U.S. since the Bill of Rights (Foner, 2004). And indeed the Fourteenth "transformed the Constitution from document primarily concerned with federal-state relations and the rights of property into a vehicle through which members of vulnerable minorities could state a claim to substantive freedom..." (Foner). Additionally, the Fourteenth was supposed to offer "protection," in Foner's words, from "...misconduct by all levels of government."

However, the Fourteenth did not protect minority citizens from the racism and segregation throughout the South at the turn of the century. The "blatant violation" of the Fourteenth occurred, Foner continues, with the "...acquiescence of the entire nation." And then in the 1950s and 1960s the Civil Rights Movement, along with litigation (Brown v. Board of Education, 1954) and federal legislation (the Civil Rights Act of 1964, the Voting Rights Act of 1965), began to tear away at the fabric of racism. In a movement to create fairness and justice in the workplace - and perhaps make up for past wrongs - affirmative action programs began to be put into place in 1972. And controversy followed soon after.

Why use the Fourteenth to oppose affirmative action? It was ironic that the Fourteenth, which was originally designed (after the Civil War) to bring justice to all citizens, was used to confront the legality of affirmative action. There have been several important court cases regarding the Fourteenth, including Fullilove v. Klutznick in 1980. This was a case in which Congress had passed legislation requiring that when federal money is used for local public works in states, at least 10% of the funds must be used to hire minority business enterprises (MBE). Suit was brought against the Secretary of Commerce (Philip M. Klutznick) by an association of construction contractors, alleged that they had "sustained economic injury" because the MBE requirement "...on its face violated...the Equal Protection Clause of the Fourteenth" (University of Minnesota Department of Sociology / UMDS).

However, the Supreme Court upheld the affirmative action clause in the Public Works Employment Act of 1977; Justice Powell wrote that the Equal Protection Clause "...demand[s] that any governmental distinction among groups must be justifiable" (UMDS). Further, Powell said that the affirmative action in the legislation "is justified" because it is "...a remedy that serves the compelling governmental interest in eradicating the continuing effects of past discrimination identified by Congress" (UMDS).

Another case -- United States v. Nelson - illustrates how the Equal Protection Clause of the Fourteenth was employed to negate judicial attempts to construct "community-reflective juries" (e.g., juries that reflect the ethnic makeup of communities, another form of affirmative action). In the Crown Heights riots (1991) in Brooklyn, New York, Lemrick Nelson was on trial for violation of federal civil rights laws (he allegedly killed a Jewish student). The district court judge, Judge Trager, using "nontraditional" methods, attempted to create diversity on the jury by using ethnic criteria (blacks and Jews) in an attempt to reflect the actual ethnic makeup of Brooklyn (Wilkenfeld, 2002). The Second Circuit Court, however, "struck down" judge Trager's construction of an ethnically reflective jury; the Second Circuit held that Trager's court "violated the Equal Protection Clause." The circuit explained that "...potential jurors' Fourteenth Amendment rights to be free from racially discriminatory state action preclude treating individual jurors differently based on a desire to maintain a certain aggregate jury composition" (Wilkenfeld, 2002), according to an account in the Columbia Law Review.

An article in the Journal of Supreme Court History (Bressman, 2007) reviews another case that relates to the Fourteenth, this one not dealing with race but rather gender, and it offers another perspective on the Equal Protection standard. Albeit this case does not fall under the category of affirmative action, it certainly relates to fairness in terms of minorities (women were previously classified along with African-Americans, Latinos, Asians and Native Americans as "minorities"). The case was Goesaert v. Cleary; a woman was denied the right to obtain a bartending license in Michigan "unless she be 'the wife or daughter of the male owner' of a licensed liquor establishment" (Bressman, p. 88).