FOUNDING PRINCIPLES COURSE Equal Protection Module
Equal Protection Under the Law Module
Introduction
The principle of equal justice under law means that every individual is equal to every other person
in regards to natural rights and treatment before the law. There are no individuals or groups who
are born with the right to rule over others.
Lesson One: The Foundations of
American Justice
Overview
The foundations of the principle of equal justice
under the law has roots in documents like the
Magna Carta and the English Bill of Rights
as well as from the writings of philosophers
like John Locke and Baron de Montesquieu.
The Founders used their understandings of
these documents and writers to create the
Declaration of Independence, the Constitution,
and the Bill of Rights. In this lesson, students
will analyze these documents to help them
understand the significance of equal justice.
Montesquieu’s The Defense of the Spirit of
Laws to understand the foundations of equal
justice prior to the American Founding.
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North Carolina Clarifying Objectives
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Recommended Time
130 minutes
Objectives
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Students will:
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Understand and exemplify the definitions of
the terms equal and fair.
Understand the importance of equality
and rights in a representative government
and how equal treatment under the law is
important for a self-governing society.
Analyze documents including the Magna
Carta, the Mayflower Compact, the Petition
of Right, the English Bill of Rights, Locke’s
Second Treatise of Civil Government, and
© The Bill of Rights Institute
Explain how the foundational documents led
the Founders to protect equal justice in the
American Founding Documents.

CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
FOUNDING PRINCIPLES COURSE 
Equal Protection Module
AH1.H.1.2: Use Historical Comprehension to:
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition, “
slavery as a peculiar institution”, etc.).
1. Reconstruct the literal meaning of a
historical passage.
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2. Differentiate between historical facts and
historical interpretations.
Lesson Two: Equal Protection and the
Supreme Court
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
Overview
1. Formulate historical questions.
The Equal Protection Clause of the Fourteenth
Amendment states that no state shall “deny
to any person within its jurisdiction the equal
protection of laws. In this lesson, students
will learn how to analyze primary source
documents from Supreme Court cases using a
document based question (DBQ) model. Most
document based questions require students
to write essays to show understanding. This
lesson will walk students through a document
analysis activity for one Supreme Court case
as a class. They will then be asked to write a
document-based question essay individually.
2. Obtain historical data from a variety of
sources.
Recommended Time
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
5. Evaluate the influence of the past on
contemporary issues.
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AH1.H.1.4: Use Historical Research to:
3. Support interpretations with historical
evidence.
60 minutes
4. Construct analytical essays using
historical evidence to support
arguments.
Objectives
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
© The Bill of Rights Institute
Students will:
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Understand the significance of the
Fourteenth Amendment’s Equal Protection
Clause.
Analyze the how the American Founding
Documents protect equal justice and
individual rights.
Analyze primary source documents relating
to landmark Supreme Court cases about the
Equal Protection Clause.
Analyze laws and policies relating to
“separate but equal,” segregation, and
desegregation and explain the history
behind such laws.
FOUNDING PRINCIPLES COURSE 
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Evaluate Supreme Court decisions on equal
protection.
Equal Protection Module
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Evaluate the causes and effects of Supreme
Court decisions.
Apply historical understanding to evaluate
Supreme Court rulings.
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North Carolina Clarifying Objectives
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans
with Disabilities Act, equal opportunity
legislation).
CE.C&G.3.3: Analyze laws and policies in
terms of their intended purposes, who has
authority to create them and how they are
enforced (e.g., laws, policies, public policy,
regulatory, symbolic, procedural, etc.).
© The Bill of Rights Institute
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CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.5.2: Analyze state and federal
courts by outlining their jurisdictions and the
adversarial nature of the judicial process
(e.g., Appellate, Exclusive, Concurrent,
Original, types of federal courts, types of
state courts, oral argument, courtroom
rules, Supreme Court, opinions, Court
Docket, Prosecutor/Prosecution, Complaint,
Defendant, Plaintiff, hearing, bail,
indictment, sentencing, appeal, etc.).
AH1.H.1.2/AH2.H.1.2: Use Historical
Comprehension to:
1. Reconstruct the literal meaning of a
historical passage.
2. Differentiate between historical facts and
historical interpretations.
3. Analyze data in historical maps.
4. Analyze visual, literary and musical
sources.
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AH1.H.1.3/AH2.H.1.3: Use Historical
Analysis and Interpretation to:
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
FOUNDING PRINCIPLES COURSE Equal Protection Module
since Reconstruction and the compromises
that resulted (e.g., Populism, Progressivism,
working conditions and labor unrest, New
Deal, Wilmington Race Riots, Eugenics,
Civil Rights Movement, Anti-War protests,
Watergate, etc.).
5. Evaluate the influence of the past on
contemporary issues.

AH1.H.1.4/AH2.H.1.4: Use Historical
Research to:
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.

3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.





AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
AH2.H.2.2: Evaluate key turning points
since the end of Reconstruction in terms
of their lasting impact (e.g., conflicts,
legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH2.H.4.1: Analyze the political issues and
conflicts that impacted the United States
© The Bill of Rights Institute
AH2.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems since Reconstruction
(e.g., “separate but equal”, Social
Darwinism, social gospel, civil service
system, suffrage, Harlem Renaissance,
the Warren Court, Great Society programs,
American Indian Movement, etc.).
Assessment
Overview
After completing both lessons, have students
write a document based question essay
analyzing Regents of the University of
California v. Bakke (1978). Students may
use the Documents Summary or Case Briefing
Sheets from Lesson 2, but they should
NOT have the Tips for Thesis Statements
and Essays, the Key Question Scoring
Guidelines for All Essays, or the Rubric for
Evaluating DBQ Essays.
Recommended Time
60 minutes
Assignment
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Students should answer the Key Question
regarding Regents of the University
of California v. Bakke (1978) in a wellorganized essay that incorporates their
interpretations of Documents A-M, as well
FOUNDING PRINCIPLES COURSE 
as their own knowledge of history. They
have 60 minutes to complete the essay.
E. President Lyndon Johnson, Speech at
Howard University, 1965
Key Question: Appraise the claim that
the University of California at Davis
special admissions program resulted in
unconstitutional reverse discrimination.
F. Program Demographics, 1970-1974
Materials
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Equal Protection Module
Regents of the University of California v.
Bakke (1978) Document Based Question
Assessment
Regents of the University of California v.
Bakke (1978) Documents:
A. Section of the Fourteenth Amendment,
1868
B. Executive Order 10925, 1961
C. “Civil Rights Legislation,” 1963
G.Education by Race Statistics, 1940-1980
H. Alan Bakke’s Credentials, 1973-1974
I. UC-Davis’s Reply to Bakke’s Query on
Age, 1972
J. Oral Arguments, 1978
K. Justice Thurgood Marshall’s Memo,
1978
L. Plurality Decision (5-4), Regents of the
University of California v. Bakke, 1978
M.Justice Marshall’s Separate Opinion,
Regents of the University of California v.
Bakke, 1978
D. Title VI of the Civil Rights Act of 1964
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American history meet the
requirements of the founding Principles course.
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
Regents of the University of
California v. Bakke (1978)
Document Based Question Assessment
Directions
Read the Case Background and Key
Question. Then analyze Documents A-M.
Finally, answer the Key Question in a wellorganized essay that incorporates your
interpretations of Documents A-M, as well as
your own knowledge of history.
Case Background
The phrase “affirmative action” first appeared
in a 1961 executive order by President John
F. Kennedy, barring federal contractors from
discriminating on the basis of race, creed, color,
or national origin. President Lyndon B. Johnson
echoed this phrasing in his own policies and
speeches. Congress later passed the Civil
Rights Act of 1964, barring discrimination by
any institutions receiving federal money.
The University of California at Davis Medical
School, a public school, was founded in 1966.
The first class of fifty students was made up of
forty-seven white students and three of Asian
descent. In order to achieve a more racially
diverse student body, in 1970 the University
took what it described as affirmative action by
creating two separate admissions programs.
The general program required a 2.5 GPA, an
interview, letters of recommendation, and test
scores. The special program, for which only
disadvantaged members of minority groups
were eligible, had no GPA cutoff.
© The Bill of Rights Institute
By 1973, the class size had doubled to
100, and of those 100 spaces, sixteen
were reserved for minority applicants in the
special program. Applicants to the special
program competed only against each other
for admission, and did not compete against
applicants to the general admissions program.
Allan Bakke, a Caucasian, applied twice to the
medical school, and was rejected both times.
His GPA and test scores, however, were higher
than those of any of the students accepted
into the special program. He sued the school,
charging that the special admissions program
amounted to a quota system that discriminated
against whites.
Key Question
Appraise the claim that the University of
California at Davis special admissions
program resulted in unconstitutional reverse
discrimination.
Documents you will examine:
A. Section of the Fourteenth Amendment,
1868
B. Executive Order 10925, 1961
C. “Civil Rights Legislation,” 1963
D. Title VI of the Civil Rights Act of 1964
E. President Lyndon Johnson, Speech at
Howard University, 1965
F. Program Demographics, 1970-1974
FOUNDING PRINCIPLES COURSE Equal Protection Module
G. Education by Race Statistics, 1940-1980
H. Alan Bakke’s Credentials, 1973-1974
I. UC-Davis’s Reply to Bakke’s Query on Age, 1972
J. Oral Arguments, 1978
K. Justice Thurgood Marshall’s Memo, 1978
L. Plurality Decision (5-4), Regents of the University of California v. Bakke, 1978
M. Justice Marshall’s Separate Opinion, Regents of the University of California v. Bakke, 1978
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT A
Section of the Fourteenth Amendment, 1868
No state shall … deny to any person within its jurisdiction the equal protection of the laws.
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Why was this amendment passed in 1868?
DOCUMENT B
Executive Order 10925, 1961
Establishing The President’s Committee On Equal Employment Opportunity
[Federal government contractors] will not discriminate against any employee or applicant for
employment because of race, creed, color, or national origin. The contractor will take affirmative
action to ensure that applicants are employed, and that employees are treated during employment,
without regard to their race, creed, color, or national origin.

What does “affirmative action” mean?
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What does “without regard to” mean?
DOCUMENT C
“Civil Rights Legislation,” 1963

What is the point of view of the cartoonist?
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT D
Title VI of the Civil Rights Act of 1964
No person in the United States shall, on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any program
or activity receiving federal financial assistance.

Does the policy stated in this document differ from that in Document B? If so, how?
DOCUMENT E
President Lyndon Johnson, Speech at Howard University, 1965
You do not wipe away the scars of centuries by saying: “Now, you are free to go where you want,
do as you desire, and choose the leaders you please.” You do not take a man who for years has
been hobbled by chains, liberate him, bring him to the starting line of a race, saying, “You are
free to compete with all the others,” and still justly believe you have been completely fair. …This
is the next and more profound stage of the battle for civil rights. We seek not just freedom but
opportunity—not just legal equity but human ability—not just equality as a right and a theory, but
equality as a fact and as a result. 4 Restate this excerpt from Johnson’s speech in your own words.

How does this understanding of equality differ from that expressed in Documents B and D?
DOCUMENT F
UC-Davis Medical School Program Demographics, 1970-1974
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Summarize the chart data in one or two sentences.
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT G
Education by Race Statistics, 1940-1980
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Summarize the chart data in one or two sentences.
DOCUMENT H
Alan Bakke’s Credentials, 1973-1974
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How did Bakke’s GPA and MCAT scores compare to those of students accepted from
both the regular and special programs?
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT I
UC-Davis’s Reply to Bakke’s Query on Age, 1972
Note: By 1971, Alan Bakke had served four years as a United States Marine, including one tour
in Vietnam. He had also completed a Master’s Degree in mechanical engineering, was a father of
two, and was 32 years old. When he decided to apply to medical school, he wrote to more than ten
medical schools, including UC-Davis, asking about their policy on considering applicants’ ages.
[Dear Mr. Bakke:] When an applicant is over thirty, his age is a serious factor which must be
considered. …The Committee believes that an older applicant must be unusually highly qualified if
he is to be seriously considered.…
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Does this information change your assessment of Bakke’s credentials from Document H?
DOCUMENT J
Oral Arguments, 1978
Colvin [representing Bakke]: Race is an improper classification in this system… we believe it to be
unconstitutional.
Justice Burger: Why? Because it is rigidly limited to sixteen [spots set aside in each class for
minorities]?
Colvin: No, because the concept of race itself as a classification becomes in our history and in our
understanding an unjust and improper basis on which to judge people.
Justice Marshall: Would it be constitutional if it was one [space that was set aside for minority
students]?
Colvin: No. Whether it is one, one hundred, two—
Justice Marshall: You are talking about your client [Bakke’s] rights. Don’t these underprivileged
people have rights?
Colvin: They certainly have the right to compete—
Marshall: To eat cake.
Colvin: They have the right to compete. They have the right to equal competition.
Marshall: So the numbers are just unimportant?
Colvin: The numbers are unimportant. It is the principle of keeping a man out because of his race
that is important.
Marshall: You’re arguing about keeping someone out, and the other side is arguing about getting
somebody in.
Colvin: That’s right.

Contrast Bakke’s lawyer’s argument with President Johnson’s assertion in Document E.
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT K
Justice Thurgood Marshall’s Memo, 1978
Note: This memo was circulated while the Justices were considering the case.
The decision in this case depends on whether you consider the action of [UCD Medical School] as
admitting certain students or excluding certain other students.

What two approaches to the Bakke case does Justice Marshall identify?
DOCUMENT L
Plurality Decision (5-4), Regents of the University of California v. Bakke, 1978
The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit. …The
guarantee of equal protection cannot mean one thing when applied to one individual and something
else when applied to a person of another color. If both are not accorded the same protection, then it
is not equal. …Preferring members of any one group for no reason other than race or ethnic origin
is discrimination for its own sake…. Hence, the purpose of helping certain groups whom the faculty
of the Davis Medical School perceived as victims of “societal discrimination” does not justify a
classification that imposes disadvantages upon persons like [Bakke], who bear no responsibility for
whatever harm the beneficiaries of the special admissions program are thought to have suffered….
[A] diverse student body … clearly is a constitutionally permissible goal for an institution of higher
education. …Ethnic diversity, however, is only one element in a range of factors a university
properly may consider in attaining the goal of a heterogeneous student body…. In summary,
it is evident that the Davis special admissions program involves the use of an explicit racial
classification never before countenanced by this Court. It tells applicants who are not Negro, Asian,
or Chicano that they are totally excluded from a specific percentage of the seats in an entering
class. No matter how strong their qualifications, quantitative and extracurricular, including their own
potential for contribution to educational diversity, they are never afforded the chance to compete
with applicants from the preferred groups for the special admissions seats. In enjoining petitioner
[UC-Davis] from ever considering the race of any applicant, however, the courts below failed to
recognize that the State has a substantial interest that legitimately may be served by a properly
devised admissions program involving the competitive consideration of race and ethnic origin. For
this reason, so much of the California court’s judgment as enjoins petitioner from any consideration
of the race of any applicant must be reversed.
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Of the two approaches identified by Marshall in Document K, which does the Court
appear to have adopted?
How does the Court define terms such as “equal” and “protection” in this ruling?
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT M
Justice Thurgood Marshall’s Separate Opinion, Regents of the University of California v. Bakke, 1978
I agree with the judgment of the Court only insofar as it permits a university to consider the race of
an applicant in making admissions decisions. I do not agree that petitioner’s admissions program
violates the Constitution. For it must be remembered that, during most of the past 200 years, the
Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms
of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy
of discrimination, I cannot believe that this same Constitution stands as a barrier…. The position
of the Negro today in America is the tragic but inevitable consequence of centuries of unequal
treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains
a distant dream for the Negro…. It is because of a legacy of unequal treatment that we now must
permit the institutions of this society to give consideration to race in making decisions about who
will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to
those positions have been shut to Negroes. If we are ever to become a fully integrated society, one
in which the color of a person’s skin will not determine the opportunities available to him or her, we
must be willing to take steps to open those doors….

In what way does Marshall agree with the majority decision? How does he depart from it?
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
Equal Protection Under Law: The Foundations of
American Justice Lesson
Overview
The foundations of the principle of equal justice
under the law has roots in documents like the
Magna Carta and the English Bill of Rights
as well as from the writings of philosophers
like John Locke and Baron de Montesquieu.
The Founders used their understandings of
these documents and writers to create the
Declaration of Independence, the Constitution,
and the Bill of Rights. In this lesson, students
will analyze these documents to help them
understand the significance of equal justice.
North Carolina Clarifying Objectives


Recommended Time
130 minutes
Objectives
Students will:




Understand and exemplify the definitions of
the terms equal and fair.
Understand the importance of equality
and rights in a representative government
and how equal treatment under the law is
important for a self-governing society.
Analyze documents including the Magna
Carta, the Mayflower Compact, the Petition
of Right, the English Bill of Rights, Locke’s
Second Treatise of Civil Government, and
Montesquieu’s The Defense of the Spirit of
Laws to understand the foundations of equal
justice prior to the American Founding.
Explain how the foundational documents led
the Founders to protect equal justice in the
American Founding Documents.
© The Bill of Rights Institute


CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
AH1.H.1.2: Use Historical
Comprehension to:
1. Reconstruct the literal meaning of a
historical passage.
2. Differentiate between historical facts and
historical interpretations.

AH1.H.1.3: Use Historical Analysis and
Interpretation to:
1. Identify issues and problems in the past.
FOUNDING PRINCIPLES COURSE 2. Consider multiple perspectives of
various peoples in the past.
2. Obtain historical data from a variety of
sources.
Handout C: Excerpts from the Magna Carta
(1215)
Handout D: Excerpts from the Mayflower
Compact (1620)
Handout E: Excerpts from the Petition of Right
Handout F: Excerpts from the English Bill of
Rights (1689)
Handout G: Comparing the Documents
Handout H: Excerpts from John Locke’s
Second Treatise of Civil Government (1690)
Handout I: Excerpts from Montesquieu’s The
Spirit of the Laws (1748)
Handout J: Comparing Locke and Montesquieu
Handout K: Attitude Inventory Review
3. Support interpretations with historical
evidence.
Lesson Plan
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
5. Evaluate the influence of the past on
contemporary issues.

AH1.H.1.4: Use Historical Research to:
1. Formulate historical questions.
4. Construct analytical essays using
historical evidence to support
arguments.


Equal Protection Module
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition, “
slavery as a peculiar institution”, etc.).
Materials
Handout A: “Equal Protection and Affirmative
Action” by Warner Winborne, Ph.D.
Handout B: Attitude Inventory
© The Bill of Rights Institute
Background/Homework [10 minutes
the day before]
A. Have students read Handout A: “Equal
Protection and Affirmative Action” by
Warner Winborne, Ph.D. and complete
Handout B: Attitude Inventory.
Warm-Up [15 minutes]
A. After reading the essay and completing the
attitude inventory, hold a class discussion.
Ask students what the terms “equal” and
“fair” mean.
a. Write the students’ definitions and
examples on the board.
b. Have a few students look up definitions
of each terms using dictionaries.
c. By the end of the exercise, students
should have an understanding of the
similarities and differences between
equality and fairness.
FOUNDING PRINCIPLES COURSE Activity I [45 minutes]
A. Have students read the excerpts from the
Magna Carta, the Mayflower Compact,
the Petition of Right, and the English
Bill of Rights provided in Handouts CF. They should also use copies of the
Declaration of Independence, Constitution,
and Bill of Rights to complete Handout G:
Comparing the Documents. They can do
this individually or in groups.
a. The students should look for ways in
which the documents promote equal
justice and protect the people.
B. After students have completed the reading
and Handout G, conduct a class discussion
on the ways in which the documents they
read are similar to or different from each
other.
a. Ask the class to think about what
ideas or principles from Handouts C-F
were used in the American Founding
Documents.
Activity II [45 minutes]
A. Have students read the Handout H:
Excerpts from John Locke’s Second
Treatise of Civil Government (1690) and
Handout I: Excerpts from Montesquieu’s
The Spirit of the Laws (1748) Students
should concentrate on the ways in which
both authors think about liberty, justice, and
rights and record their findings on Handout
J: Comparing Locke and Montesquieu.
© The Bill of Rights Institute
Equal Protection Module
a. After students have read the excerpts
and completed Handout J, have them
discuss this question with a partner:
i. Many of the Founders read the
writings of Locke and Montesquieu.
How did the Founders incorporate
Locke and Montesquieu’s ideas into
the Founding Documents?
Wrap-Up [15 minutes]
A. Have students complete Handout K:
Attitude Inventory Review. With a partner,
in groups, or as a class, discuss how their
opinions have changed since the beginning
of the lesson.
Homework/Extensions
A. Have students write a response to these
questions in their journals:
a. In what ways did the Founders include
the protections of equal justice in the
Magna Carta, the Mayflower Compact,
the Petition of Right, the English Bill
of Rights, Locke’s Second Treatise,
and Montesquieu’s Spirit of Laws
when creating the American Founding
Documents?
b. Why did the Founders believe that equal
justice needed to be protected?
c. Does equal justice still need to be
protected today? Explain your answer.
FOUNDING PRINCIPLES COURSE Equal Protection Module
B. Rubric:
Category
1
2
3
4
Protections of
equal justice
in historical
documents used
in Founding
Documents
Student did not
explain how
the documents
influenced
the Founding
Documents.
Student explained
how two or three
of the documents
influenced
the Founding
Documents.
Student explained
how four or five
of the documents
influenced
the Founding
Documents.
Student explained
how each of the
six documents
influenced
the Founding
Documents.
Protection of
equal justice
Student did not
explain why
the Founders
believed equal
justice should be
protected.
Student explained
one reason
the Founders
believed equal
justice should be
protected.
Student explained
two reasons
the Founders
believed equal
justice should be
protected.
Student explained
three or more
reasons the
Founders
believed equal
justice should be
protected.
Does equal
justice still need
to be protected?
Student did
not answer the
question or explain
why the equal
justice should
or should not be
protected.
Student answered
the question, but
did not explain why
the equal justice
should or should
not be protected.
Student answered
the question and
explained why
the equal justice
should or should
not be protected.
Student answered
the question and
explained why
the equal justice
should or should
not be protected
with specific
examples.
© The Bill of Rights Institute
Handout A: “Equal Protection and Affirmative
Action” by Warner Winborne, Ph.D.
That “all men are created equal” was a truth
so obvious, it needed no defense, according
to the Declaration of Independence. Indeed,
equality itself appeared to need no defense, as
the Declaration next claimed that the function
of government was not to guarantee natural
equality, but to protect natural rights, and in
particular, the right to liberty. Thus, the purpose
of government was the prevention of tyranny,
and not the promotion of equality.
That focus shifted following the Civil War. The
Reconstruction Congress found the oppression
of an entire race abhorrent and drafted the
13th, 14th, and 15th amendments to correct
the situation. These amendments, which
Southern states were required to ratify before
readmission to the Union, were intended to
end this unequal treatment by correcting those
portions of the Constitution which could be
used to support slavery or discrimination. And
two Supreme Court Cases in particular, Prigg
v. Pennsylvania (1842) and Barron v. Baltimore
(1833) appear to have been especially
targeted. Prigginvolved the Fugitive Slave Act
and Article IV, Section 2 of the Constitution.
Edward Prigg, who captured and returned a
fugitive slave to her owner, was arrested and
charged with kidnapping. The Court ruled that
Article IV, Section 2, the “service or labour”
clause, required states to assist in returning
fugitive slaves to their owners. But several of
the Justices went further, reading in the clause
a positive affirmation of the property right of the
slave-owner to the slave.
© The Bill of Rights Institute
According to the Declaration of
Independence, the function of government
was not to guarantee natural equality, but
to protect natural rights. That focus shifted
following the Civil War.
Of similar trouble to the Reconstruction
Congress was Barron v. Baltimore, which
involved not issues of equality, but property (as
arguably did Prigg). In Barron, Mr. Barron lost
his property and his livelihood because of the
actions of the City of Baltimore. He claimed
that this constituted a “taking” in violation of his
rights guaranteed in the 5th Amendment. The
Court agreed that Baltimore’s act amounted
to a “taking” but argued that the guarantees
contained in the Bill of Rights applied only to
national action, not action by the states.
These two cases find their ultimate expression
in Dred Scott (1856), the case that affirmed
the property rights of slave owners, denied the
claims to citizenship and equality of the Negro
race, and voided the Missouri Compromise.
Although it is grounded in some measure by a
most curious understanding of race relations
at the Founding, following on the heels of
Prigg and Barron, and to some degree bound
by stare decisis, the Court defends slavery
and denies that the civil liberties enshrined
in the Bill of Rights extend to the citizens of
the states. That is, following Prigg, slaves are
property, not persons, and following Barron,
the states are free to deny constitutionallyguaranteed civil rights and civil liberties.
It is this which the Civil War Amendments
in general and the 14th Amendment in
particular, attempted to change. The result
is the requirement that the states extend to
all citizens of the United States, the “equal
protection of the laws.”
later, the Court ruled that the Equal Protection
Clause applied with equal force to Asians (Yick
Wo v. Hopkins, 1886). And in 1927, the Court
defended the rights of minorities to participate
in political primaries (Nixon v. Herndon, 1927).
But this is perhaps easier said than done.
The Founders either took human equality for
granted, or believed that government need
not enforce equality. But with the adoption
of the 14th Amendment which requires the
equal protection of the laws, it was the task of
government, especially the Court, to determine
just what “equal protection of the laws”
required. Unsurprisingly, the Court interpreted
the Equal Protection Clause as a group of
lawyers might; what was protected, they said,
was legal and political equality, not social or
economic equality.
But it was not until 1954 that the Equal
Protection Clause was extended beyond
the legal and political realms to social and
economic activity. In Brown v. Board of
Education, the Court found persuasive the
claim raised in Plessy that segregation
necessarily stigmatized the excluded race,
and that therefore, separate conditions could
never be equal. A unanimous Court ordered
the end of de jure segregation in education,
finding, “We conclude that in the field of public
education the doctrine of ‘separate but equal’
has no place. Separate educational facilities
are inherently unequal. Therefore, we hold
that the plaintiffs and others similarly situated
for whom the actions have been brought are,
by reason of the segregation complained of,
deprived of the equal protection of the laws
guaranteed by the Fourteenth Amendment.”
In Plessy v. Ferguson (1896), the Court
determined that separate accommodations for
the races are constitutionally permissible. The
Equal Protection Clause does not require the
intermingling of the races, merely their equal
treatment under the law. Indeed, the Court
suggested that legislation requiring integration
was likely to fail, and that racism could only be
eradicated by the slow and informal process of
voluntary social interaction. The Court found
the claim that segregation imposes a stigma
on the excluded race without merit, as such a
stigma is the result of that race’s assumptions
regarding the purpose of the segregation.
Although the Court defended the notion
of “separate but equal” regarding social or
economic conditions, it protected the legal and
political equality of the races. In 1880, the Court
defended the rights of blacks to serve on juries
(Strauder v. West Virginia, 1880). Six years
© The Bill of Rights Institute
In its interpretation of the Equal Protection
Clause, the Court developed a doctrine of
“suspect classifications” which, if involved
in the policy at issue, would trigger “strict
scrutiny.” In University of California Regents
v. Bakke, Justice Powell, writing for a divided
Court, employed the doctrine of suspect
classifications to find a policy setting aside
seats for minority students violated the Equal
Protection Clause. He noted that suspect
classifications had not been reserved only
for those in minority positions. “Nor has this
Court held that discreteness and insularity
constitute necessary preconditions to a holding
that a particular classification is invidious.
…These characteristics may be relevant in
deciding whether or not to add new types
of classifications to the list of “suspect”
categories or whether a particular classification
survives close examination. Racial and ethnic
classifications, however, are subject to stringent
examination without regard to these additional
characteristics.” Thus, the Equal Protection
Clause protects against reverse discrimination
as well as discrimination against minorities.
Nevertheless, Justice Powell also concluded
that although racial quotas could not be
established, race could be considered as a
factor in admissions since a diverse student
body was a compelling interest.
The Equal Protection Clause protects
against reverse discrimination as well as
discrimination against minorities.
© The Bill of Rights Institute
The Court’s reasoning in Bakke was recently
confirmed in Gratzv. Bollinger and Grutterv.
Bollinger, two cases testing admissions policies
at the University of Michigan and the University
of Michigan Law School respectively. In both
cases, the admission of traditionally underrepresented minorities constituted a compelling
state interest, but the law school considered
the applicants as individuals, thus meeting the
requirement that the procedure be “narrowly
tailored.” On the other hand, the University
of Michigan treated all minorities equally,
automatically awarding them twenty percent of
the score needed for admission, and was thus
not sufficiently narrowly-tailored to survive strict
scrutiny.
Dr. Warner Winborne is Assistant Professor of
Political Science at Hampden-Sydney
College in Virginia.
Handout B: Attitude Inventory
Directions: Rate your agreement with each statement.
1. I understand the principle of “equal justice/protection under the law.”
1 2
3
4
5
6
7
Completely Disagree 8
9
10
Completely Agree
2. When judging how well a country exemplifies the principle of equality under law, it should be
judged against an ideal.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
3. When judging how well a country exemplifies the principle of equality under law, it should be
judged against how well other countries do so.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
4. Since all people are created equal, all people should have equal outcomes.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
5. “Equal protection of the law” means treating everyone the same.
1 2
3
4
5
6
7
Completely Disagree 8
9
10
Completely Agree
6. “Equal protection of the law” means treating everyone differently based on their unique
circumstances.
1 2
3
4
5
6
Completely Disagree 7
© The Bill of Rights Institute
8
9
10
Completely Agree
Handout C:
Excerpts from the Magna Carta (1215)
1. … the English Church shall be free, and shall have her rights entire, and her liberties inviolate…
13. [T]he city of London shall have all its ancient liberties and free customs… further more…all
other cities, boroughs, towns, and ports shall have all their liberties and free customs…
20. A freeman shall not be amerced for a slight offense, except in accordance with the degree
of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the
offense…
28. No constable or other bailiff of ours shall take corn or other provisions from anyone without
immediately tendering money therefore, unless he can have postponement thereof by permission
of the seller…
39. No freemen shall be taken or imprisoned or diseased or exiled or in any way destroyed…
except by the lawful judgment of his peers or by the law of the land…
40. To no one will we sell, to no one will we refuse or delay, right or justice…
42. It shall be lawful in future for anyone (excepting always those imprisoned or outlawed in
accordance with the law of the kingdom…) to leave our kingdom and to return…
© The Bill of Rights Institute
Handout D: The Mayflower Compact (1620)
In the name of God, Amen. We, whose
names are underwritten, the loyal subjects of
our dread Sovereigne Lord, King James, by
the grace of God, of Great Britaine, France
and Ireland king, defender of the faith, etc.
having undertaken, for the glory of God, and
advancement of the Christian faith, and honour
of our king and country, a voyage to plant the
first colony in the Northerne parts of Virginia,
doe by these presents solemnly and mutually
in the presence of God and one of another,
covenant and combine ourselves together
into a civil body politick, for our better ordering
and preservation, and furtherance of the ends
aforesaid; and by virtue hereof to enacte,
constitute, and frame such just and equall laws,
ordinances, acts, constitutions and offices,
from time to time, as shall be thought most
meet and convenient for the generall good
of the Colonie unto which we promise all due
submission and obedience. In witness whereof
we have hereunder subscribed our names at
Cape-Codd the 11. of November, in the year of
the raigne of our sovereigne lord, King James,
of England, France and Ireland, the eighteenth,
and of Scotland the fiftie-fourth. Anno Dom.
1620.
John Carver
Edward Tilley
Degory Priest
William Bradford
John Tilley
Thomas Williams
Edward Winslow
Francis Cooke
Gilbert Winslow
William Brewster
Thomas Rogers
Edmund Margeson
Issac Allerton
Thomas Tinker
Peter Browne
Myles Standish
John Rigdale
Richard Britteridge
John Alden
Edward Fuller
George Soule
Samuel Fuller
John Turner
Richard Clarke
Christopher Martin
Francis Eaton
Richard Gardiner
William Mullins
James Chilton
John Allerton
William White
John Crackston
Thomas English
Richard Warren
John Billington
Edward Dotey
John Howland
Moses Fletcher
Edward Leister
Stephen Hopkins
John Goodman
© The Bill of Rights Institute
Handout E: Excerpts from The Petition of Right
(1628)
III. And where also by the Statute called The
Great Charter of the Liberties of England, it is
declared and enacted, That no Freeman may
be taken or imprisoned, or be disseised of his
Freehold or Liberties, or his Free Customs,
or be outlawed or exiled, or in any manner
destroyed, but by the lawful Judgment of his
Peers, or by the Law of the Land.
IV. And in the Eight and twentieth Year of the
Reign of King Edward the Third, it was declared
and enacted by Authority of Parliament, That
no Man of what Estate or Condition that he be,
should be put out of his Land or Tenements,
nor taken, nor imprisoned, nor disherited, nor
put to Death, without being brought to answer
by due Process of Law.
VI. And whereas of late great Companies of
Soldiers and Mariners have been dispersed
into divers Counties of the Realm, and the
Inhabitants against their Wills have been
compelled to receive them into their Houses,
and there to suffer them to sojourn, against the
Laws and Customs of this Realm, and to the
great Grievance and Vexation of the People.
IX. And also sundry grievous Offenders, by
colour thereof claiming an Exemption, have
escaped the Punishments due to them by
© The Bill of Rights Institute
the Laws and Statutes of this Your Realm,
by reason that divers of your Officers and
Ministers of Justice have unjustly refused or
for born to proceed against such Offenders
according to the same Laws and Statutes,
upon Pretence that the said Offenders were
punishable only by Martial Law, and by
Authority of such Commissions as aforesaid:
Which Commissions, and all other of like
Nature, are wholly and directly contrary to the
said Laws and Statutes of this Your Realm:
XI. All which they most humbly pray of Your
most excellent Majesty as their Rights and
Liberties according to the Laws and Statutes
of this Realm; and that Your Majesty would
also vouchsafe to declare, that the Awards,
Doings and Proceedings, to the Prejudice
of Your People in any of the Premises shall
not be drawn hereafter into Consequence or
Example; and that Your Majesty would be also
graciously pleased, for the further Comfort and
Safety of Your People, to declare Your Royal
Will and Pleasure, that in the Things aforesaid
all your Officers and Ministers shall serve You
according to the Laws and Statutes of this
Realm, as they tender the Honour of Your
Majesty, and the Prosperity of this Kingdom.
Handout F: Excerpts from the English Bill of
Rights (1689)
The pretended power of suspending the laws or the execution of laws by regal authority without
consent of Parliament is illegal;
It is the right of the subjects to petition the king, and all commitments and prosecutions for such
petitioning are illegal;
The raising or keeping a standing army within the kingdom in time of peace, unless it be with
consent of Parliament, is against law;
The subjects which are Protestants may have arms for their defense suitable to their conditions
and as allowed by law;
Election of members of Parliament ought to be free;
Freedom of speech and debates or proceedings in Parliament ought not to be impeached or
questioned in any court or place out of Parliament;
Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted;
Jurors ought to be duly impaneled and returned…
And that for redress of all grievances, and for the amending, strengthening and preserving of the
laws, Parliaments ought to be held frequently….
© The Bill of Rights Institute
Handout G: Comparing the Documents
Document Name
Magna Carta (1215)
The Mayflower
Compact (1620)
The Petition of Right
(1628)
The English Bill of
Rights (1689)
Declaration of
Independence (1776)
Articles of
Confederation (1781)
United States
Constitution (1788)
United States Bill of
Rights (1791)
© The Bill of Rights Institute
Summarize
How
does this
document
promote
justice?
How is this
document
similar to
the other
documents?
How is this
document
different
from the
other
documents?
Handout H: Excerpts from John Locke’s Second
Treatise of Civil Government (1690)
The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves
under government, is the preservation of their property.
First, There wants an established, settled, known law, received and allowed by common consent to
be the standard of right and wrong, and the common measure to decide all controversies between
them: for though the law of nature be plain and intelligible to all rational creatures…
Secondly, In the state of nature there wants a known and indifferent judge, with authority to
determine all differences according to the established law…
Thirdly, In the state of nature there often wants power to back and support the sentence when right,
and to give it due execution…
But though men, when they enter into society, give up the equality, liberty, and executive power
they had in the state of nature, into the hands of the society… to preserve [themselves, their] liberty
and property…
The power of the society, or legislative constituted by them, can never be supposed to extend
farther, than the common good; but is obliged to secure everyone’s property …. And all this to be
directed to no other end, but the peace, safety, and public good of the people.
© The Bill of Rights Institute
Handout I: Excerpts from Montesquieu’s The
Spirit of the Laws (1748)
In every government there are three sorts of power; the legislative; the executive… [and] the
latter we shall call the judiciary power…
There would be an end of every thing were the same man, or the same body…to exercise those
three powers that of enacting laws, that of executing the public resolutions, and that of judging
crimes….
The executive power ought to be in the hands of a monarch; because this branch of government,
which has always need of expedition, is better administered by one than by many: Whereas,
whatever depends on the legislative power, is oftentimes better regulated by many than by a
single person.
When once an army is established, it ought not to depend immediately on the legislative, but on the
executive power, and this from the very nature of the thing; its business consisting more in action
than in deliberation.
From a manner of thinking that prevails amongst mankind, [armies] set a higher value upon
courage than timorousness, on activity than prudence, on strength than counsel. Hence, the
army will ever despise a senate, and respect their own officers…
© The Bill of Rights Institute
Handout J: Compare and Contrast Locke and
Montesquieu
Directions: After reading the excerpts from Locke and Montesquieu, complete the table below.
Think about the ways in which each author hopes to promote and protect liberty, justice, and rights.
Locke
Montesquieu
Liberty
Justice
Rights
How are Locke’s and Montesquieu’s understandings of liberty, justice, and rights similar?
How are they different?
© The Bill of Rights Institute
Handout K: Attitude Inventory Review
Directions: Rate your agreement with each statement. How have your opinions changed since the
beginning of the lesson?
1. I understand the principle of “equal justice/protection under the law.”
1 2
3
4
5
6
7
Completely Disagree 8
9
10
Completely Agree
2. When judging how well a country exemplifies the principle of equality under law, it should be
judged against an ideal.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
3. When judging how well a country exemplifies the principle of equality under law, it should be
judged against how well other countries do so.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
4. Since all people are created equal, all people should have equal outcomes.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
5. “Equal protection of the law” means treating everyone the same.
1 2
3
4
5
6
7
Completely Disagree 8
9
10
Completely Agree
6. “Equal protection of the law” means treating everyone differently based on their unique
circumstances.
1 2
3
4
5
6
7
Completely Disagree © The Bill of Rights Institute
8
9
10
Completely Agree
FOUNDING PRINCIPLES COURSE Equal Protection Module
Equal Protection Under the Law Module: Equal
Protection and the Supreme Court Lesson
Overview
The Equal Protection Clause of the Fourteenth
Amendment states that no state shall “deny
to any person within its jurisdiction the equal
protection of laws.” In this lesson, students
will learn how to analyze primary source
documents from Supreme Court cases using a
document based question (DBQ) model. Most
document based questions require students
to write essays to show understanding. This
lesson will walk students through a document
analysis activity for one Supreme Court case
as a class. They will then be asked to write a
document-based question essay individually.




60 minutes

Students will:




Understand the significance of the
Fourteenth Amendment’s Equal Protection
Clause.
Analyze the how the American Founding
Documents protect equal justice and
individual rights.
Analyze primary source documents relating
to landmark Supreme Court cases about the
Equal Protection Clause.
Analyze laws and policies relating to
“separate but equal,” segregation, and
desegregation and explain the history
behind such laws.
© The Bill of Rights Institute
Evaluate the causes and effects of Supreme
Court decisions.
Apply historical understanding to evaluate
Supreme Court rulings.
North Carolina Clarifying Objectives
Recommended Time
Objectives
Evaluate Supreme Court decisions on equal
protection.

CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans
with Disabilities Act, equal opportunity
legislation).
FOUNDING PRINCIPLES COURSE 





Equal Protection Module
CE.C&G.3.3: Analyze laws and policies in
terms of their intended purposes, who has
authority to create them and how they are
enforced (e.g., laws, policies, public policy,
regulatory, symbolic, procedural, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
5. Evaluate the influence of the past on
contemporary issues.

1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.5.2: Analyze state and federal
courts by outlining their jurisdictions and the
adversarial nature of the judicial process
(e.g., Appellate, Exclusive, Concurrent,
Original, types of federal courts, types of
state courts, oral argument, courtroom
rules, Supreme Court, opinions, Court
Docket, Prosecutor/Prosecution, Complaint,
Defendant, Plaintiff, hearing, bail,
indictment, sentencing, appeal, etc.).
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.


AH1.H.1.2/AH2.H.1.2: Use Historical
Comprehension to:

Reconstruct the literal meaning of a historical
passage.

Differentiate between historical facts and
historical interpretations.

Analyze data in historical maps.

Analyze visual, literary and musical sources.
AH1.H.1.3/AH2.H.1.3: Use Historical
Analysis and Interpretation to:
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
© The Bill of Rights Institute
AH1.H.1.4/AH2.H.1.4: Use Historical
Research to:


AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
AH2.H.2.2: Evaluate key turning points
since the end of Reconstruction in terms
of their lasting impact (e.g., conflicts,
legislation, elections, innovations,
FOUNDING PRINCIPLES COURSE leadership, movements, Supreme Court
decisions, etc.).


AH2.H.4.1: Analyze the political issues and
conflicts that impacted the United States
since Reconstruction and the compromises
that resulted (e.g., Populism, Progressivism,
working conditions and labor unrest, New
Deal, Wilmington Race Riots, Eugenics,
Civil Rights Movement, Anti-War protests,
Watergate, etc.).
AH2.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems since Reconstruction
(e.g., “separate but equal”, Social
Darwinism, social gospel, civil service
system, suffrage, Harlem Renaissance,
the Warren Court, Great Society programs,
American Indian Movement, etc.).
Materials
Plessy v. Ferguson (1896) Case Background
and Key Question
Documents Summary
Plessy v. Ferguson (1896) Documents A-M
Case Briefing Sheet
Tips for Thesis Statements and Essays
Brown v. Board of Education (1954) Case
Background and Key Question
Brown v. Board of Education (1954) Documents
A-K
Key Question Scoring Guidelines for All Essays
Rubric for Evaluating DBQ Essays (for teacher)
Lesson Plan
Equal Protection Module
Explain that they will be participating in a
document based question (DBQ) lesson where
they will analyze sources relating to the topic
to answer the key question. Also tell them
that students would usually write an essay to
answer the key question in DBQs, but that
today you will start by learning how to analyze
the documents as a class.
Activity [45 minutes]
A. Divide students into thirteen groups.
Each group should be given one of the
documents from the Plessy v. Ferguson
(1896) document based question resources
(Documents A-M).
a. Have students look at or read the
documents they are assigned and
answer the scaffolding questions.
b. After the groups are finished, go over
each document as a class. Students
should complete Documents Summary
about each of the documents.
c. When all of the documents have been
discussed, ask students to think about
the case and answer these questions:
i. What is the constitutional question in
this case?
ii. What are the strongest arguments
on each side of the case?
iii. How did the Court rule?
iv. Do you agree or disagree with this
ruling based on your understanding
of the Constitution? Explain your
answer.
Background [15 minutes]
Homework
A. Distribute Plessy v. Ferguson (1896) Case
Backgroundand Key Question to each student.
A. Now that students understand how to
analyze documents, have them write
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE an essay using the Brown v. Board of
Education (1954) Case Background
and Key Question and Brown v. Board
of Education (1954) Documents A-K.
In order to develop their argument, they
may also use the Documents Summary,
the Case Briefing Sheet, and the Key
Question Scoring Guidelines for All
Essays.
a. Remind students to answer the key
question in their essay using evidence
from the documents and by thinking
through these questions:
i. What is the constitutional question in
this case?
© The Bill of Rights Institute
Equal Protection Module
ii. What are the strongest arguments
on each side of the case?
iii. How did the Court rule?
iv. Do you agree or disagree with this
ruling based on your understanding
of the Constitution? Explain your
answer.
B. Teachers may use the Rubric for
Evaluating DBQ Essays when grading
these essays.
Handout A: Plessy v. Ferguson (1896) Case
Background and Key Question
Case Background
Although the Declaration of Independence
affirmed that “all men are created equal” and
had inalienable rights including liberty, African
Americans were systematically denied their
liberty with the institution of slavery. Even after
the Civil War and the passage of the Thirteenth,
Fourteenth, and Fifteenth Amendments,
segregation was a fact of life in the United
States. Throughout the country, the races
remained separated by both custom and law.
With the end of Reconstruction, every southern
state, as well as some northern ones, passed
what came to be termed Jim Crow laws. These
policies required segregation in public places.
African Americans were denied equal access
to public facilities like transportation, education,
and the voting booth. In 1878, the Supreme
Court held that states could not require
integration on interstate common carriers. In
1890, the Court held that Mississippi could
require segregation on modes of interstate
transportation.
Five years later, Homer Plessy, a resident of
Louisiana, decided to challenge a Louisiana law
requiring segregation on railcars by purchasing
a train ticket and sitting in a “whites only” car.
Because Plessy was an “octoroon” (1/8th
black), he was subject to the black codes of
Louisiana. When he was questioned as to his
status, he admitted to being an octoroon, and
was arrested when he refused to leave the car.
© The Bill of Rights Institute
He appealed his case to the Supreme Court
of Louisiana and eventually the United States
Supreme Court, claiming that the Louisiana law
violated the Fourteenth Amendment.
Key Question: Evaluate the degree to which
each of the following informed the ruling in
Plessy v. Ferguson: custom, precedent, and
understanding of federalism.
Documents you will examine:
A. The Declaration of Independence, 1776
B. Thomas Jefferson, Notes on the State of
Virginia, 1787
C. The Constitution of the United States, 1789
D. The Tenth Amendment, 1791
E. Thomas Jefferson to Henri Gregoire, 1809
F. Argument of John Quincy Adams, Amistad
Case, 1841
G. “The American Declaration of
Independence Illustrated,” 1861
H. Section of The Fourteenth Amendment,
1868
I. Civil Rights Cases, 1883
J. Final Judgment, Plessy v. Ferguson, 1896
K. Majority Opinion (6-1), Plessy v. Ferguson,
1896
L. Dissenting Opinion, Plessy v. Ferguson,
1896
M. “At the Bus Station,” 1940
Handout B: Documents Summary
Document Name
and Date
© The Bill of Rights Institute
Author
Answers to Scaffolding
Questions
What is the main idea of this
document? How might each
side use this document to
answer the key question?
DOCUMENT A
The Declaration of Independence, 1776
We hold these truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness….

In what manner does the Declaration of Independence understand all people to be equal?
DOCUMENT B
Thomas Jefferson, “Notes on the State of Virginia”, 1787
Comparing [Negros] by their faculties of memory, reason, and imagination, it appears to me, that
in memory they are equal to the whites; in reason much inferior, as I think one could scarcely be
found capable of tracing and comprehending the investigations of Euclid; and that in imagination
they are dull, tasteless, and anomalous…. This unfortunate difference of colour, and perhaps of
faculty, is a powerful obstacle to the emancipation of these people.

Contrast Jefferson’s views on racial equality with the assertion of the Declaration of
Independence (Document A).
DOCUMENT C
The Constitution of the United States, 1789
Article I, Section 2, Paragraph 3: Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, according to their respective Numbers,
which shall be determined by adding to the whole Number of free Persons, including those bound
to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.


Who are the “all other Persons” referred to in this document?
How were these “all other persons” counted for the purpose of apportioning a state’s
representatives and direct taxes?
DOCUMENT D
The Tenth Amendment, 1791
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people.

What does the Tenth Amendment protect?
© The Bill of Rights Institute
DOCUMENT E
Thomas Jefferson to Henri Gregoire, 1809
Be assured that no person living wishes more sincerely than I do, to see a complete refutation
of the doubts I have myself entertained and expressed on the grade of understanding allotted to
them [Negroes] by nature, and to find that in this respect they are on a par with ourselves. My
doubts were the result of personal observation on the limited sphere of my own State, where the
opportunities for the development of their genius were not favorable, and those of exercising it still
less so. I expressed them therefore with great hesitation; but whatever be their degree of talent it
is no measure of their rights. Because Sir Isaac Newton was superior to others in understanding,
he was not therefore lord of the person or property of others. On this subject they are gaining daily
in the opinions of nations, and hopeful advances are making towards their re-establishment on an
equal footing with the other colors of the human family.

How does Jefferson clarify his beliefs on the racial inferiority of blacks (Document B)?
DOCUMENT F
Argument of John Quincy Adams, Amistad Case, 1841
Note: In 1839, Africans aboard the schooner Amistad revolted and demanded to be returned home.
The captain instead brought them to New York, and the captives were to be sold as slaves. A legal
battle followed over the question of the status of the captive Africans.
The Constitution of the United States recognizes the slaves, held within some of the States of the
Union, only in their capacity of persons. …The Constitution nowhere recognizes them as property.
The words slave and slavery are studiously excluded from the Constitution. Circumlocutions are
the fig-leaves under which these parts of the body politic are decently concealed. Slaves, therefore,
in the Constitution of the United States are recognized only as persons, enjoying rights and held to
the performance of duties. That Declaration [of Independence] says that every man is “endowed by
his Creator with certain inalienable rights,” and that “among these are life, liberty, and the pursuit
of happiness.” …The moment you come, to the Declaration of Independence, that every man has
a right to life and liberty, an inalienable right, this case is decided. I ask nothing more in behalf of
these unfortunate men, than this Declaration.

What does Adams argue about the Constitution’s recognition of slaves?

Why does Adams reference the Declaration of Independence?
© The Bill of Rights Institute
DOCUMENT G
“The American Declaration of Independence Illustrated,” 1861

What does the artist believe is the promise of the Declaration of Independence?
© The Bill of Rights Institute
DOCUMENT H
Section of the Fourteenth Amendment, 1868
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws….
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of
this article.


What does the Fourteenth Amendment guarantee to residents of every state?
Does Section 5 of this document change the meaning of the Tenth Amendment
(Document D)?
DOCUMENT I
Civil Rights Cases, 1883
[Federal civil rights] legislation cannot properly cover the whole domain of rights appertaining to
life, liberty, and property, defining them and providing for their vindication. That would … make
congress take the place of the state legislatures and to supersede them. It is absurd to affirm that,
because the rights of life, liberty, and property … are by the [Fourteenth] Amendment sought to
be protected against invasion on the part of the state without due process of law, Congress may,
therefore, provide due process of law for their vindication in every case; and that, because the
denial by a state to any persons of the equal protection of the laws is prohibited by the amendment,
therefore congress may establish laws for their equal protection.

Which level of government does this opinion imply has the power to correct state
violations of rights to life, liberty and property?
© The Bill of Rights Institute
DOCUMENT J
Final Judgment, Plessy v. Ferguson, 1896

Did the United States Supreme Court affirm or overturn the decision of the Louisiana
court?
© The Bill of Rights Institute
DOCUMENT K
Majority Opinion (6-1), Plessy v. Ferguson, 1896
The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality
of the two races before the law, but, in the nature of things, it could not have been intended to
abolish distinctions based upon color, or to enforce social, as distinguished from political, equality,
or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and
even requiring, their separation, in places where they are liable to be brought into contact, do not
necessarily imply the inferiority of either race to the other, and have been generally, if not universally,
recognized as within the competency of the state legislatures in the exercise of their police power.…
We consider the underlying fallacy of [Plessy’s] argument to consist in the assumption that the
enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so,
it is not by reason of anything found in the act, but solely because the colored race chooses to put
that construction upon it.… The argument also assumes that social prejudices may be overcome by
legislation, and that equal rights cannot be secured to the negro except by an enforced commingling
of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social
equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a
voluntary consent of individuals.… Legislation is powerless to eradicate racial instincts, or to abolish
distinctions based upon physical differences, and the attempt to do so can only result in accentuating
the difficulties of the present situation. If the civil and political rights of both races be equal, one
cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the
constitution of the United States cannot put them upon the same plane.

What kinds of laws does the Court say that state legislatures have the rightful power to
pass?

What does the Court say is the basic flaw in Plessy’s argument?

What does the Court argue about laws that try to abolish racial prejudices?

Why is this decision said to have affirmed the doctrine of “separate but equal”?
© The Bill of Rights Institute
DOCUMENT L
Dissenting Opinion, Plessy v. Ferguson, 1896
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in
achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all
time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.
But in view of the constitution, in the eye of the law, there is in this country no superior, dominant,
ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows
nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
The humblest is the peer of the most powerful…. Sixty millions of whites are in no danger from
the presence here of eight millions of blacks. The destinies of the two races, in this country, are
indissolubly linked together, and the interests of both require that the common government of all
shall not permit the seeds of race hate to be planted under the sanction of law. What can more
certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between
these races, than state enactments which, in fact, proceed on the ground that colored citizens are
so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white
citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.


What does the dissenting opinion mean by “Our constitution is colorblind”?
What does the dissenting opinion claim is the “real meaning” of the Louisiana
segregation law?
© The Bill of Rights Institute
DOCUMENT M
“At the Bus Station,” 1940

How does this photograph from 1940 reveal the legacy of the Plessy decision?
© The Bill of Rights Institute
Brown v. Board of Education (1954) Document
Based Question
Directions
Read the Case Background and Key Question.
Then analyze Documents A-K. Finally, answer
the Key Question in a well-organized essay that
incorporates your interpretations of Documents
A-K, as well as your own knowledge of history.
had on black school children. One case was
brought on behalf of Linda Brown, a thirdgrader from Topeka, Kansas. Several additional
school segregation cases were combined into
one, known as Brown v. Board of Education.
This case reached the Supreme Court in 1953.
Case Background
Key Question
After the Civil War, the Fourteenth Amendment
was passed to grant citizenship to former slaves
and protect them from civil rights violations in
their home states. Public schools were relatively
rare throughout the United States, but were
often segregated by race where they existed.
The same Congress that passed the Fourteenth
Amendment created racially segregated schools
for the District of Columbia. Beginning in 1877,
many states passed “Jim Crow” laws requiring
segregation in public places. Jim Crow laws
were adopted in every southern state as well as
some in the North. Louisiana’s policy requiring
that blacks sit in separate railcars from whites
was challenged and upheld in the Supreme
Court case Plessy v. Ferguson (1896). The
Court held that there was nothing inherently
unequal—nor anything unconstitutional—about
separate accommodations for races. In the
twentieth century, the National Association for
the Advancement of Colored People (NAACP)
began a litigation campaign designed to bring
an end to state mandated segregation, calling
attention to the shabby accommodations
provided for blacks, as well as arguing the
damaging psychological effects that segregation
© The Bill of Rights Institute
Assess the role played by the Court as the
protector of individual rights against the tyranny
of the majority in Brown v. Board of Education.
Documents you will examine:
A. Virginia Criminal Code, 1847
B. Section of the Fourteenth Amendment,
1868
C. Majority Opinion, Plessy v. Ferguson, 1896
D. Dissenting Opinion, Plessy v. Ferguson,
1896
E. “Washington, D.C. Public Schools, 1st
Div-Class Making Geometric Forms with
Paper,” 1899
F. “African American Schoolgirls in Classroom,
Learning to Sew,” 1899
G. “Crowded Segregated Classroom,” ca.
1940s
H. Segregation Laws Map, 1953
I. Unanimous Majority Opinion, Brown v.
Board of Education, 1954
J. Majority Opinion, Brown II, 1955
K. “Supreme Court Decision,” 1954
DOCUMENT A
Virginia Criminal Code, 1847
Any white person who shall assemble with slaves, [or] free Negros … for the purpose of instructing
them to read or write … shall be punished by confinement in the jail … and by fine…

What does this law reveal about African Americans’ access to education in mid-nineteenth
century Virginia?
DOCUMENT B
Section of the Fourteenth Amendment, 1868
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.

What was the historical context of the passage of this amendment?

What level of government does this amendment limit?

What prohibitions did it create?
DOCUMENT C
Majority Opinion, Plessy v. Ferguson, 1896
The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of
the two races before the law, but in the nature of things it could not have been intended to abolish
distinctions based upon color, or to enforce social, as distinguished from political, equality, or a comingling of the two races upon terms unsatisfactory to either.… Laws permitting, and even requiring,
the separation [of races] in places where they are liable to be brought into contact do not necessarily
imply the inferiority of either race to the other, and have been generally, if not universally, recognized
as within the competency of the state legislatures in the exercise of their police power…

What is the majority’s opinion in this case?
DOCUMENT D
Dissenting Opinion, Plessy v. Ferguson, 1896
[I]n the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There
is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law….The destinies of the two
races, in this country, are indissolubly linked together, and the interests of both require that the
common government of all shall not permit the seeds of race hate to be planted under the sanction
of law.

How does the dissent disagree with the majority opinion?
© The Bill of Rights Institute
DOCUMENT E
“Washington, D.C. Public Schools, 1st Div-Class Making Geometric Forms with Paper,” 1899

What are the conditions in this classroom?
© The Bill of Rights Institute
DOCUMENT F
“African American Schoolgirls in Classroom, Learning to Sew,” 1899

What are the conditions in this classroom? How are they similar or different from those
in Document E?
© The Bill of Rights Institute
DOCUMENT G
“Crowded Segregated Classroom,” ca. 1940s

What are the conditions in this classroom? How are they similar or different from those in
Documents E and F?
© The Bill of Rights Institute
DOCUMENT H
Segregation Laws Map, 1953

How does this map reflect the legacy of Plessy v. Ferguson?
© The Bill of Rights Institute
Document I
Unanimous Majority Opinion, Brown v. Board of Education, 1954
In approaching this problem, we cannot turn the clock back to 1868 when the [Fourteenth]
Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must
consider public education in the light of its full development and its present place in American
life throughout the Nation. Only in this way can it be determined if segregation in public schools
deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most
important function of state and local governments. …In these days, it is doubtful that any child may
reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an
opportunity, where the state has undertaken to provide it, is a right which must be made available
to all on equal terms…. To separate [students] from others of similar age and qualifications solely
because of their race generates a feeling of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely to ever be undone. …Whatever may have been the
extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported
by modern authority.… We conclude that in the field of public education the doctrine of “separate
but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold
that the plaintiffs and others similarly situated … are, by reason of the segregation complained of,
deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

How did the Brown decision overturn Plessy v. Ferguson in Document B?

On what grounds did the Court base its decision?
Document J
Majority Opinion in Brown II, 1955
Note: After the 1954 decision in Brown v. Board of Education declared state-mandated segregation
in public schools unconstitutional, the case was reargued to determine how to correct the
violations.
[T]he cases are remanded to the District Courts to take such proceedings and enter such orders
and decrees consistent with this opinion as are necessary and proper to admit to public schools on
a racially nondiscriminatory basis with all deliberate speed the parties to these cases.


What did the Supreme Court order District Courts to do?
How does this document reveal the Court’s dependence on other branches and levels of
government for enforcement of its decisions?
© The Bill of Rights Institute
Document K
“Supreme Court Decision,” 1954

Identify the hands in the cartoon and their symbolic relationship to Brown v. Board of
Education (1954).
© The Bill of Rights Institute
Case Briefing Sheet
Case Name and Year:_____________________________________________________
Facts of the Case:________________________________________________________________
_______________________________________________________________________________
What is the constitutional question that the Supreme Court must answer?
(This is a yes/no question and spells out the specific part of the Constitution at issue.)
_______________________________________________________________________________
_______________________________________________________________________________
What constitutional principles are indicated in the case?
_______________________________________________________________________________
_______________________________________________________________________________
Summary of one side’s arguments:
_______________________________________________________________________________
_______________________________________________________________________________
Summary of the other side’s arguments:
_______________________________________________________________________________
_______________________________________________________________________________
How would you decide the case and why?
_______________________________________________________________________________
_______________________________________________________________________________
How did the Supreme Court majority decide the case and why?
_______________________________________________________________________________
_______________________________________________________________________________
What were the main points raised in any dissenting opinions?
_______________________________________________________________________________
_______________________________________________________________________________
What other Supreme Court cases are related in important ways?
_______________________________________________________________________________
_______________________________________________________________________________
© The Bill of Rights Institute
Tips for Thesis Statements and Essays
The thesis statement condenses your arguments to a nutshell and appears in the opening
paragraph, but it is not written until AFTER you have planned your overall response. (Planning
process shown in table below. A good thesis statement:




Fully addresses all parts of the prompt, while acknowledging the complexity of the issue.
Clearly takes a side—makes a declarative statement that one thing was more important, more
persuasive, etc. than another. Since the verb in the prompt is often something like “assess” or
“evaluate,” the thesis statement should show which side the writer takes.
Suggests a “table of contents” or road map for the essay—shows what elements enter into
consideration.
Begins an essay that is proven by abundant and persuasive facts and evidence.
In a DBQ essay, the student writes a well-organized response to target a specific prompt, analyzing
pertinent documents in order to support his/her thesis. The steps described here will guide the
process of handling the documents. (For Advanced Placement U.S. History the response must
include BOTH outside information AND information from the documents. On U.S. History AP
exams, one of the essays that must be written under timed conditions is the DBQ.)
DBQ Do and Don’t
Step
Do
Don’t
1. Analyze the prompt and
divide it into its components.
A graphic organizer helps with
this step.
Fully address the prompt. It is better to address
all parts of the prompt, even if you must do
some in a way that is less complete, than to
spend all your time on just one of two parts or
3 of 4 parts.
Neglect part of the prompt because
you spent too much time on the part
you know more about.
2. Plan to prove your point. It
is best to begin by planning
the overall structure BEFORE
even looking at the documents.
Organize your thoughts before writing the
thesis statement. What are the logical points
your essay needs to include?
Write a “laundry list” that simply
summarizes each document.
3. Check the documents to
see how you can use them as
tools.
Strive to use all the documents; but be sure
you accurately understand their main ideas.
Take quotes or ideas out of context to
use them in a manner other than the
author intended.
4. Ask yourself when writing
every paragraph: “How does
this help to prove my thesis?”
Analyze to prove the position asserted in the
thesis statement. Analysis is not the same
thing as description or narrative. Merely
making a series of true statements is not
analysis. Key to analysis - is the essay
answering the “So what?” question?
Use 1st or 2nd person pronouns: “I think
the Supreme Court has the authority
to use judicial review because…” or
“Have you ever wondered how the
Supreme Court got the authority to
overturn federal laws?”
5. Manage time wisely; writing
long quotes will eat up thinking
time.
Use relevant facts, evidence, and proof. A wellchosen brief phrase in quotations and worked
into your own sentence is powerful.
Use lengthy quotes. Pad the paper
in an attempt to conceal a lack of
analysis.
6. Give credit to sources.
Cite sources using the author’s name and/or
document title.
Write “According to Document B…”
7. Think as you write!
Let logic and analysis drive the essay.
Let documents drive the essay.
© The Bill of Rights Institute
Key Question Scoring Guidelines for All Essays
The Good-Excellent Essay





Asserts a strong, clear, and well-developed thesis in response to the key question.
Supports the thesis with outstanding analysis of Founding documents, custom, legal precedent
and contemporary views.
Intelligently applies and/or critiques the Court’s opinion(s).
Effectively uses many documents and incorporates prior knowledge.
Contains only minor errors; is clearly organized and exceptionally well-written.
The Average-Good Essay





Asserts a thesis in response to the key question.
Supports the thesis with some analysis of Founding documents, custom, legal precedent and/
or contemporary views. Analysis of some aspects may be cursory or absent.
Critiques and/or applies the Court’s opinion(s), but may demonstrate less command of nuance
than the Good-Excellent Essay.
Effectively uses many documents and incorporates prior knowledge.
Contains few significant errors; is acceptably organized and written.
The Below Average-Average Essay





Asserts a limited thesis or does not fully address the key question.
Analysis is largely incomplete, superficial, or incorrect; may merely paraphrase or quote
documents.
Contains simplistic or incorrect application/critique of the Court’s opinion(s).
Uses few documents and incorporates little prior knowledge.
Contains some significant errors and is poorly organized and written.
The Poor-Below Average Essay





Lacks a thesis.
Exhibits inadequate understanding of the question and the documents.
Offers no application/critique of the Court’s opinion(s).
Uses very few documents and incorporates no prior knowledge.
Contains numerous significant errors and is poorly organized and written.
© The Bill of Rights Institute
Rubric for Evaluating DBQ Essays
Score/
Grade
Entire
Prompt
Thesis
Analysis
Contains
a welldeveloped
Thesis
which clearly
addresses
all aspects of
the prompt
and shows
organizational
roadmap.
Effective
analysis
which shows
& proves
relationships;
fully answers
the “so what?”
questions;
more analytical
than narrative.
Addresses
all aspects
of the
prompt,
though
coverage
may be
slightly
uneven.
5-6-7 Contains a
(80-85- thesis which
90)
addresses the
prompt.
Limited
analysis;
mostly
descriptive;
knowledge &
comprehension
level in use of
facts.
Slights or
Uses some
neglects
documents
some parts Effectively.
of the
Prompt.
2-3-4 Presents
(65-70- a limited,
75)
confused
and/or poorly
developed
thesis.
Simplistic
explanations
that do not
indicate
mastery of
the content;
may list
facts without
analysis.
Deals with
one aspect
of the
prompt in
a general
way or with
additional
parts in a
superficial
way.
0-1
Contains no
(60 & thesis or a
below) thesis which
does not
address the
prompt.
Shows in
adequateor
inaccurate un
derstanding of
the prompt.
Ignores
part of the
question.
8-9
(95100)
--
© The Bill of Rights Institute
Documents
Effectively and
appropriately
Uses all (or
almost all)
Documents.
Outside Info
Organization
(Required for
and Writing Skill
AP courses)
Errors
Supports thesis
with substantial
and relevant
outside
information.
Clearly organized
& well-written
evident on first
reading, but we’ll
read it again just
for pleasure.
May
contain
minor
errors.
Supports
thesis with
some outside
information.
Acceptable
organization;
Language
errors do not
interfere with
comprehension
and do not
indicate
misunderstanding
of the topic.
May
contain
errors that
do not
seriously
detract
from
quality of
the essay.
Quotes or
Contains
brief lycites
little out side
some
information.
documents,
but does not
use them
as tools to
support thesis.
Demonstrates
weak
organization a
land/or writing
skills which
interfere with
comprehension.
May
contain
major
errors.
Contains
little or no
understanding
of the
documents or
ignores them
completely.
Is so poorly
organized or
written that it
is difficult to
understand.
Contains
numerous
errors,
both
major and
minor.
Includes
inappropriate,
off-target, or
no outside
information.
Response is completely off-target.
Equal Protection Under the Law Module
Answer Keys
Lesson One:The Foundations of American Justice
Handout G: Comparing the Documents
Document
Name
Magna
Carta (1215)
Summarize
How does this document
promote justice?
How is this
document
similar to
the other
documents?
How is this
document different
from the other
documents?
Protects property,
requires no
excessive
punishments,
protects jury trials
by peers, and
protects customs.
It protects customs of cities
throughout England, punishments
should fit crimes, government
officials cannot take property
without paying for it, judgment
by peers for crimes, justice is
protected, anyone can leave
and return unless imprisoned or
outlawed.
Protects jury
trials and
property rights
like the Petition
of Right and the
English Bill of
Rights.
It mentions customs
of the English people
whereas the others
only mention rights.
Creates a compact
to preserve order
and preservation,
and pass laws to
protect the common
good.
It creates equal laws, ordinances,
acts, constitutions, and offices for
the general good.
Allows for the
passage of
laws to protect
the rights of
citizens.
Creates a new
agreement to protect
liberties whereas
the other documents
are reiterating the
protection of rights.
The Petition
of Right
(1628)
Protects due
process and rule
of law in England
and prevents the
government from
overstepping its
role in protecting
citizens’ rights.
It protects English citizens from
being imprisoned or exiled and
removal of property without due
process of law. Protects against
the quartering of soldiers in private
homes against the will of citizens,
government officers not being
punished for breaking the law,
and promises to have government
officials protect the people.
Protects
property
rights and due
process rights
like the Magna
Carta and
English Bill of
Rights.
Discusses issues with
government officials
overstepping their
power and infringing
upon the rights of
citizens.
The English
Bill of Rights
(1689)
Enumerates
the rights of
citizens regarding
suspension of
laws, petitioning
the government,
standing armies,
elections, and
punishments for
crimes.
Protects against suspending of
laws, allows for petitioning the
king, protects against having a
standing army during times of
peace, bearing arms, maintaining
free elections, maintaining
free speech in Parliament,
no excessive fines, bail, or
cruel or unusual punishments,
juries retained, and meeting of
Parliament should be frequent
enough to amend, strengthen, and
preserve laws.
Protects jury
trials and
doesn’t allow
cruel or unusual
punishment or
excessive bail
or fines like the
Magna Carta
and the Petition
of Right.
Unlike the other
documents, it
discusses the right to
petition the king, free
elections, and the
right to bear arms.
The
Mayflower
Compact
(1620)
© The Bill of Rights Institute
Handout J: Comparing Locke and Montesquieu
Locke
Montesquieu
- Uniting under government to protect rights
- Exercise powers to enact laws
- Common consent for government
- Executive power in hands of one person
- Put power in hands of society to preserve those liberties - Legislative power in hands of many people
- Preserving property of citizens
- Executive business in action, legislative in deliberation
- Right to preserve liberty through government
- Known and indifferent judge to determine all cases
- Standard of right and wrong
- Common measure to decide controversies
Both Locke and Montesquieu believed that a government is created to protect the liberties of its
citizens. Based on these excerpts, Montesquieu believed that government should be separated
into three branches with different roles to protect liberty, but Locke was more concerned with
protecting the individual liberties of people like property, peace, and safety than about the structure
of the government itself.
© The Bill of Rights Institute
Lesson Two: Equal Protection and the Supreme Court
Plessy v. Ferguson (1896)
Document A: All people are born with an equality of rights.
Document B: Blacks may be inferior tow hites in their faculties. Jefferson does not say blacks do
not have equal rights.
Document C:
1. Slaves.
2. Three-fifths of the total slave population was added to the total free population to determine the
state population for purposes of representation and taxation.
Document D: Powers not given to the federal government remain with the states and the people.
Document E: Jefferson is open to being proved wrong. Nevertheless, even if blacks are inferior in
understanding, they still have equal rights.
Document F:
1. They are recognized as persons, not property.
2. Slaves are people and have inalienable rights.
Document G: It would lift slaves from the chains of slavery.
Document H:
1. National citizenship, along with the privileges and immunities there unto, due process, and
equal protection of the laws.
2. Yes, as the federal government now had a check on state power.
Document I: State governments.
Document J:
1. Judge of Section “A” Criminal District Court for the Parish of Orleans.
2. Affirmed.
Document K:
1. Laws permitting or requiring separation of races.
2. Separate does not mean inferior.
3. They will not work.
4. Because it asserted that separate accommodations were not necessarily unequal.
© The Bill of Rights Institute
Document L:
1. It does not reference race or class; it applies to all.
2. To keep blacks inferior in both feeling and fact.
Document M: Segregation was institutionalized for decades to come.
Brown v. Board of Education (1954)
Document A: It was against the law in some states to educate African Americans.
Document B:
1. It was passed after the Civil War to protect the rights of newly-freedslaves.
2. The states cannot deny citizens the privileges and immunities of citizenship, due process of
law, and equal protection of the laws.
Document C: Separate was not inherently unequal. Segregation, therefore, did not violate the
Constitution.
Document D: Both the opinions agreed that the Fourteenth Amendment was designed to
guarantee legal equality of the races. However, the majority asserted that segregation did not
necessarily lead to inequality while the dissenter argued that it does.
Document E: Neat, orderly, full.
Document F: It looks very similar.
Document G: Crowded, cramped, full.
Document H: Many former slave states allowed or required segregation, which was declared to be
constitutional in Plessy v. Ferguson.
Document I:
1. Segregation was declared unconstitutional.
2. Separation of the races was inherently unequal and violated the Fourteenth Amendment.
Segregation creates a feeling of inferiority in black children that would impede their future
success.
Document J:
1. To integrate schools with all deliberate speed.
2. The Court cannot write or enforce laws. It must rely on state and local executive and legislative
bodies for enforcement of its decisions.
© The Bill of Rights Institute
Document K: The white hands represent the Supreme Court. The black hands represent African
Americans shackled by segregation. The Supreme Court, which in 1954 was comprised entirely
of white justices, was the force demanding the shackles binding black Americans be broken. The
Court was acting as the final force ending the social and legal bindings and effects of slavery on
black Americans.
Module Assessment: Regents of the University of California v. Bakke (1978)
Document A: To protect the rights offormer slaves.
Document B:
1. Positive steps.
2. Paying no attention to.
Document C: Congress is being forced by the demands of African Americans top ass civil rights
legislation.
Document D: Yes. Executive Order 10925 applied only to federal government contractors. Title
VI of the Civil Rights Act of 1964 applied to “any program or activity receiving Federal financial
assistance.”
Document E:
1. Historic disadvantages are not rectified by mere equality of opportunity. True equality is equality
of results.
2. The first document implies that equality of opportunity is sufficient for true equality. Johnson
asserts that equality is measured by results.
Document F: Under the “special program” a significantly higher number of minorities (particularly
blacks and Mexican-Americans) were accepted to medical school than were accepted under
the “general program.” Nationally, most minority medical students went to “traditionally African
American colleges.”
Document G: While the percentages of education achieved for both races increased, blacks
lagged significantly behind whites in all categories.
Document H: His scores for both years were comparable to those accepted into the general
program, but far exceeded the scores of students admitted to the special program.
Document I: Answers will vary.
Document J: Equality is in opportunity, not in results, as asserted by President Johnson.
© The Bill of Rights Institute
Document K: As admitting certain students on the basis of race, or excluding certain students on
the basis of race.
Document L:
1. The case is about excluding certain applicants on the basis of race.
2 “Equal” means treating everyone the same; “protection” means security from discrimination.
Document M: Marshall agreed that the race of an applicant can be taken into consideration when
determining admission. Marshall disagreed that the Equal Protection Clause prevents a university
from providing additional opportunities to particular races in its admissions policy.
© The Bill of Rights Institute