Constitutional Law: Civil Rights
Syllabus
POLS 129, Spring 2012 – CRN 13959
Prof. Alec Ewald
Lafayette L302, 1:00 – 2:15, Tuesday & Thursday
Old Mill 512 - [email protected] - (802) 656-0263
Office Hours: T/Th 2:30 – 5:00; other times by appointment.
Required texts: Kommers, Finn, and Jacobsohn, American Constitutional Law, Vol. II, 3rd ed. (2010);
Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law. Both are available in
the University bookstore. Other required readings are in the photocopied course-pack (“(pc)” in syllabus).
Additional materials may be distributed in hard copy in class, and/or posted on Blackboard. Readings
listed as “Recommended” are just that: they are things that will enhance your understanding of the material, and may
be discussed in class, but are not part of the required curriculum. (They are usually not posted on Blackboard; most
are in general circulation in the library or available through our databases or the open web.)
Assignments are subject to change with appropriate notice and explanation; each reading is due on the day
it is listed below. A description of course standards and policies is distributed separately.
Schedule of Assignments
I. Introductions
Tues., Jan. 17. Course introductions.
Thurs., Jan. 19. (a) Two short, informal written pieces due (see separate handout). (b) Read syllabus and course
policies handout. (c) Read Jennifer Delahunty Britz, “To All the Girls I’ve Rejected,” New York Times,
March 23, 2006 (Blackboard, and should still be available on the open web – just google it – or you can
easily find it through Lexis-Nexis, one of our paid databases).
In class: introduction to “judicial activism,” “textualism,” “originalism,” “restraint,” and some
other important (but dangerous) terms, and to some sample cases.
Finally, a smart thing to do would be to familiarize yourself with our two Approved Cheating
Websitestm, Oyez.org and the on-line version of the Oxford Companion to the U.S. Supreme Court, which
is available through the UVM library’s catalogue.)
II. Foundations
Tues., Jan. 24. What the Court Does: Theories and Methods of Constitutional Interpretation. Kommers, Finn, and
Jacobsohn, American Constitutional Law, Vol. II [KFJ], Chapter 2; read Appendix E, “Understanding
Supreme Court Opinions;” mark (with a post-it note or a piece of tape) Appendix B in KFJ, the
Constitution of the United States, and Appendix F, “Glossary of Terms.”
Thurs., Jan. 26. What the Court Is: The Institution. KFJ, American Constitutional Law, Chapter 1; Kevin McGuire,
“Setting the Court’s Agenda” (pc); South Dakota v. Dole (1987) (just be sure you know the basics of it).
Recommended: The National Beer Wholesalers Assoc.’s amicus brief in S.D. v. Dole (Blackboard).
Tues., Jan. 31. Interpretation and Judicial Power. KFJ, Ch. 3; among cases, only Marbury v. Madison (1803) is
required (excerpted in KFJ); Cooper v. Aaron (1958) (KFJ) and Walker v. City of Birmingham (1967) (in
class).
Thurs., Feb. 2. Constitutional Law and Racial Thought Before the Civil War. KFJ, 597-603; Dred Scott v. Sanford
(1857), 619-621 in KFJ; see also short passage of Dred Scott decision omitted from KFJ’s excerpt (pc).
Recommended: Mark Graber, Dred Scott and the Problem of Constitutional Evil (2006).
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Tues., Feb. 7. Reconstruction, Constitutional change and Congressional power. Akhil Amar, “A New Birth of
Freedom,” excerpted from America’s Constitution: A Biography (2005), p. 351-363 (pc). KFJ, 603-605
and 614-616; the Civil Rights Cases (1883) (in KFJ); also, additional excerpts from majority and dissenting
opinions in the Civil Rights Cases, particularly Harlan’s dissent (pc).
Recommended: Weiner, “Original Purity,” Chapter 8 in Black Trials; Blackmon, Slavery By Another Name
(2008).
Thurs., Feb. 9. Weiner, “In the Nature of Things,” Chapter 9 in Black Trials (pc) – note that this chapter includes
material on both the Civil Rights Cases and Plessy; Strauder v. West Virginia (1880) (KFJ); Yick Wo v.
Hopkins (1886) (pc); Plessy v. Ferguson (1896) (KFJ).
Tues., Feb. 14. No new readings; work on papers; individual conferences during class time.
Thurs., Feb. 16. First paper due, beginning of class time; class does meet.
III. Interlude: Seeing “Race” in the Early Twentieth Century.
Tues., Feb. 21. Excerpt from “The Destiny of the Country,” an essay published in the journal The American (1847),
p. 231-234 (pc). Excerpt from Josiah Strong, Our Country (1891), ch. 14, “The Anglo-Saxon and the
World’s Future,” p. 200-218 (pc). The “racial prerequisite” cases. Excerpts from Ex Parte Shahid, 205 F.
812 (E.D. So. Carolina, 1913); Ozawa v. U.S. (1922); U.S. v. Thind (1923) (pc).
Recommended: Rollins v. Alabama (1922). White By Law, Ian Haney-Lopez; How the Irish
Became White, Noel Ignatiev; Henry Louis Gates, Black in Latin America (2011).
IV. The Unstable Foundations of Equal-Protection Law
Thurs., Feb. 23. Four pieces comprise this essential chapter in our story. One: Lochner v. New York (1905)
(excerpted at 246-251 in KFJ). Two: very brief excerpt from United States v. Carolene Products Co.
(1938) (pc; it’s also excerpted at 296 in KFJ, and discussed earlier in that chapter). Three: the rise of the
“rational basis” standard: Brown-Forman Co. v. Kentucky (1910), Lindsley v. Carbonic Gas Co. (1911),
and Williamson v. Lee Optical (1955) (all pc). And four: the creation of “strict scrutiny.” Skinner v.
Oklahoma (1942); Korematsu v. U.S. (1944); McLaughlin v. Florida (1964), Loving v. Virginia (1967) (all
pc; you can also find brief discussion of Skinner at 271-273 in KFJ; their shorter excerpt is at 299-302.)
Tues., Feb. 28. Brown v. Board of Education of Topeka, Kansas (1954), case summary, 606-609 in KFJ; opinion,
629-633; the “Southern Manifesto,” from 102 Cong. Rec. 4459-4460 (1956) (pc); Charles Clotfelter, After
Brown: the Rise and Retreat of School Desegregation (2004), Ch. 1, pages 23-33 (pc); Gerald Rosenberg,
“Substituting Symbol for Substance: What Did Brown Really Accomplish?”, PS 37(2), 205 (2004) (pc).
Recommended: excerpt from Michael J. Klarman, From Jim Crow to Civil Rights (pc); Weiner,
“Hearts and Minds,” Chapter 11 in Black Trials; Lani Guinier, “From Racial Liberalism to Racial Literacy:
Brown v. Board of Education and the Interest-Divergence Dilemma,” Journal of American History (2004);
Stuart Buck, Acting White: The Ironic Legacy of Desegregation (2010); Earl M. Maltz, “Brown v. Board of
Education,” in Eskridge and Levinson, eds., Constitutional Stupidities, Constitutional Tragedies (1998).
Thurs., March 1. Brown and school integration, cont. Excerpt from Bradley v. Milliken (U.S. Dist. Ct. E. Michigan,
1971) (pc); Milliken v. Bradley (1974) (KFJ); excerpt from Thomas Sugrue, Sweet Land of Liberty (2008),
478-487 (on the Michigan cases) (pc). And, in class, Bolling v. Sharpe (1954) and Naim v. Naim (1955).
In class: discuss mid-term exam preparation.
[Spring Break is March 5-9]
Tues., March 13. Congress’ “commerce” power; the contemporary “state action doctrine.” On commerce: excerpts
from Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294
(1964) (pc). On “state action” and equality in the modern era: review KFJ 614-616 (summary), and read
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Shelley v. Kraemer (1948) (KFJ). On Shelley: “This Contract of Restrictions,” 65-72 in Irons, Courage of
Their Convictions; excerpt from Sugrue, Sweet Land of Liberty (2008), p. 200-213 (pc).
Thurs., Mar. 15. Mid-term exam.
V. Civil Rights Now: Higher Education, Discrimination, and “Color-blind” Jurisprudence
Tues., March 20. College admissions, gender and athletics. Daniel de Vise, “College admission rates for women
spur civil rights probe,” Washington Post, Dec. 14, 2009 (pc). Britz, “To All the Girls I’ve Rejected,” NYT
(reprise). Daniel Golden, The Price of Admission: How America’s Ruling Class Buys Its Way into Elite
Colleges, Ch. 5, “Title IX and the Rise of the Upper-Class Athlete” (pc).
Recommended: Claudio Sanchez, “Do Colleges Favor Male Applicants?,” NPR’s Morning Edition,
Nov. 11, 2009 (audio at http://www.npr.org/templates/story/story.php?storyId=120300342); Charlotte
Allen, “The Quiet Preference for Men in Admissions,” Minding the Campus weblog, June 7, 2010, at
http://www.mindingthecampus.com/originals/2010/06/the_quiet_preference_for_men_i.html; Eric
Kelderman, “Civil rights panel may ask Justice Department to pry Title IX data from Virginia Union
U.,” Chronicle of Higher Education, May 14, 2010.
Thurs., March 22.“Legacy” candidates; Asians and college admissions; discrimination on the basis of state of
residence.
Legacies: Daniel Golden, “Admissions Preferences Given to Alumni Children Draws
Fire,” Wall Street Journal, Jan. 15, 2003; Richard C. Kahlenberg, “Elite Colleges, or Colleges for
the Elite?” New York Times, Sept. 29, 2010 (pc).
Asians: Golden, The Price of Admission, Ch. 7, “The New Jews: Asian Americans Need
Not Apply” (pc).
State of residence: Ward v. Temple, (E.D. Pa., 2003) (Blackboard only); note the last
couple pages; see also there references to Vlandis v. Kline (1973).
Tues., March 27. Race, college, and “affirmative action.” KFJ, 610-614 (summary); Regents of the University of
California v. Bakke (1978) (KFJ); Adarand Constructors Inc. v. Pena (1995) (KFJ). “Race, Affirmative
Action, and Crime,” ch. 9 in Tushnet, A Court Divided (focus on material on affirmative-action cases).
Grutter v. Bollinger, Gratz v. Bollinger (2003) (KFJ).
Thurs., March 29. Education, race, and the Roberts Court. Parents Involved in Community Schools v. Seattle,
(Ninth Cir., 2005) (just concurring opinion by Judge Kozinski, p. 14710-14716) (pc); Parents Involved in
Community Schools v. Seattle School District (2007) (excerpted in KFJ; full opinions on Blackboard);
With regard to the 2007 Supreme Court decision in Parents Involved, please do the following.
First, read the excerpts in KFJ. Second, using the pdfs on Blackboard (and the lazy man’s best friend, the
“Find” function), focus on this: how did the majority and dissenting Justices differ in their interpretations of
Brown, Bakke, and Grutter – but especially Brown? Be sure you spend time working on this. Be able to
identify and explain key passages.
In class: brief introduction to Ricci, via Griggs v. Duke Power Co. (1971), and Washington v.
Davis (1976).
Tues., Apr. 3. Race and rights today: the clash of statutory and constitutional law? Ricci v. DeStefano, 557 U.S. __
(2009) (opinions on Blackboard; assignments TBA).
VI. Equal Protection in Non-Racial Contexts
Thurs., Apr. 5. Discrimination on the basis of gender. KFJ’s chapter intro, on different standards in deciding equalprotection cases (679-700); focus on summary on gender (687-691). Bradwell v. Illinois (1873) (class
only); Reed v. Reed (1971) (pc); Frontiero v. Richardson (1973) (KFJ). Note that since Tushnet’s chapter
on gender describes these cases, it’d be smart to go ahead and at least start it, though it’s listed on the
syllabus for next class.
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Tues., Apr. 10. Discrimination on the basis of gender. Craig v. Boren (1976) (read also short additional excerpt
from Justice Rehnquist’s dissent) (pc); U.S. v. Virginia (1996) (KFJ). “Ruth Bader Ginsburg’s Equal
Protection Clause,” Ch. 4 in Tushnet, A Court Divided. Letter, Assistant Secretary for Civil Rights,
Department of Education, January 2007, relating to the Department’s new regulation regarding single-sex
classes (pc).
In class, time permitting: U.S. v. Morrison (2000); Gonzalez v. Carhart (2007). (Carhart is
excerpted in KFJ; see in particular the passage at the top of the left column on 335).
Thurs., Apr. 12. Discrimination on the basis of wealth and economic status. Excerpts from Griffin v. Illinois (1956)
(pc); Harper v. Virginia Board of Elections (1966) (pc); Shapiro v. Thompson (1969) (KFJ); and, in class,
U.S. Department of Agriculture v. Moreno (1973). See also, with regard to Moreno, excerpt from 116
Congressional Record 44439 (1970), statement of Sen. Holland (pc).
After you have read and thought about these precedents and what level of scrutiny they employ,
move to San Antonio Independent School District v. Rodriguez (1973); “The Poor People Have Lost
Again,” 283-293 in Irons, Courage of Their Convictions (pc).
Recommended: Peter Applebome, “In a Mother’s Case, Reminders of Educational Inequalities,”
New York Times, Apr. 27, 2011 (pc).
Tues., Apr. 17. Second paper due, beginning of class time; class does meet.
Thurs., Apr. 19. Discrimination on the basis of parental status (“legitimacy”), physical capacity, age, and
citizenship. Non-marital children: Trimble v. Gordon (1977) (KFJ). Disability: excerpt from Buck v. Bell
(1927) (pc) (note that Buck is discussed, but not excerpted, in KFJ, at 271); Skinner v. Oklahoma (1942)
(reprise); Cleburne v. Cleburne Living Center (1985) (KFJ). Age: Mass. Board of Retirement v. Murgia
(1976) (KFJ).
Citizenship: Plyler v. Doe (1982); Foley v. Connelie (1978) (KFJ); Lozano v. City of Hazleton,
496 F. Supp. 2d 477 (M.D. Pa 2007) (Blackboard only; focus on passages dealing with due process and
equal protection); additional readings TBA.
Tues., Apr. 24. Discrimination on the basis of sexual orientation. Bowers v. Hardwick (1986); Romer v. Evans
(1996); Lawrence v. Texas (2003) (KFJ). (Note that Bowers and Lawrence are elsewhere in KFJ.)
“Anthony Kennedy and Gay Rights,” Ch. 6 in Tushnet, A Court Divided.
Recommended: High Tech Gays v. D.I.S.C.O., 895 F.2d 563 (U.S.C.A. Ninth Cir., 1990) (Blackboard).
Thurs., Apr. 26. Discrimination on the basis of sexual orientation. Perry v. Schwarzenegger, U.S. Dist. Ct. No. Cal.,
Aug. 4, 2010. Decision and documents at https://ecf.cand.uscourts.gov/cand/09cv2292/; excerpt posted on
Blackboard. Attorney General Eric Holder, Letter to Speaker John Boehner regarding enforcement and
defense of the Defense of Marriage Act, Feb. 23, 2011 (pc); U.S. Department of Justice, brief opposing
motions to dismiss, Golinski v. U.S. Office of Personnel Management, U.S. Dist. Ct. No. Cal., July 1, 2011
(pc).
Recommended: In re Balas, U.S. Bankruptcy Court, Cent. Dist. of California, June 13, 2011
(Blackboard); Lofton v. Sec. of Fla. Dept. of Children and Families, Eleventh Circ. C.A. 2004;
Witt v. Dept. of the Air Force, Ninth Circ. C.A., May 21, 2008 (Blackboard).
Tues., May 1. Course conclusions and review.
Final exam: Thursday, May 10, 2012, 7:30 – 10:15 a.m., Lafayette L302
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