Political Science 362

Constitutional Law II: Issues of Equality

Syllabus

Fall Semester, 2021 David Dehnel

I am the American heartbreak--

The rock on which Freedom

Stumped its toe--

The great mistake

That Jamestown made

Long ago.

-Langston Hughes

This course is on law and politics in the United States in relation to issues of equality. The United States has made a strong commitment to equality before the law. Legal equality does not assure political or social equality. However, if other dimensions of equality are not taken into account, the commitment to legal equality can seem hollow. As the writer Anatole France once said, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

A major theme of the course is the extent to which the politics of legal equality have been driven by issues of race. Much of our constitutional doctrine on equality arose in the context of race issues or was shaped in reaction to them. The politics of racial equality in turn have a complex relationship to other dimensions of social equality, especially social class. The issue of race must be confronted if we are to make progress towards the elusive goal of a just society.

Required texts

Finkelman, Paul. Dred Scott v. Sandford: A Brief History with Documents, Second Edition. Boston: Bedford/St. Martins, 2017.

Martin, Waldo. Brown v. Board of Education: A Brief History with Documents, Second Edition. Boston: Bedford/St. Martins, 2020.

Sracic, Paul. San Antonio v. Rodriguez and the Pursuit of Equal Education. Lawrence, Kansas: University Press of Kansas, 2006

Getting in Touch With Me:

E-Mail: daviddehnel | Office: 312 Old Main | Phone: 7235

Meeting me outside of class: The best way to meet me is to make an appointment, however, I will generally be in my office from 10:30-noon on Tuesdays and Thursdays. Virtual meetings worked well last year but I am willing to meet with in person if you prefer. Either way, I welcome one-on-one meetings.

Rules and Policies

1. Regular in-person attendance is expected. Missing class will negatively impact your grade for attendance and participation.

2. Students who miss class are responsible for finding out about any assignments, handouts, etc. that they missed.

3. Assignments turned in late will be penalized. Discussion questions are due at the beginning of class. They may be submitted by email before the class period begins. I recommend email submission.

4. Students who miss an exam without prior permission will be penalized. If some form of personal disaster prevents you from making it to an exam, to be eligible for a make-up, you must notify me of your problem before the beginning of the exam.

5. Please do not take bathroom breaks during class. This rule will be enforced during exams.

6. Use of electronic devices for non-class purposes is inappropriate.

Grades

Grades will be based on two unit exams (10% each), a final exam (15%), 8 of 10 discussion questions (15%), two turns on a discussion panel (5% each), one annotated bibliography (5%), a modest research paper (15%), serving as discussion leader on your paper topic (5%), and class attendance and participation (15%).

The exams will include identification items and essay questions. Identification items may include cases or terms. The final exam will have a cumulative component.

The discussion questions are spelled out on the syllabus on the date due. The primary purpose of these assignments is to prepare for class discussion, therefore late papers will be penalized. Late papers will be accepted for partial credit only up to the day of the next exam. The assignments will be graded based on how well you engage with the readings in responding to the question.

During weeks 3-10, each student will serve twice on a discussion panel. The panels will have four main tasks:

1. Give an overview of a major controversy addressed in each reading or case.

2. Summarize the main point of each assigned reading or case.

3. Initiate a discussion of one or two critical thinking questions based on the reading or case. I will give you guidelines for formulating good questions.

4. The panels will need to meet before class to coordinate the tasks.

While attendance and participation is important throughout the course, the main focus of the participation grade will be on the final part of the course. During that time each student will serve as discussion leader for a part of one class period. Students are expected to support each other’s discussion topics by doing the assigned readings and participating in the class discussion. For each of the presenters, I will assign specific students to come to class with prepared questions.

The expectation for the research paper is 6-8 pages. You will be asked to select a recent court case related to issues of constitutional equality, explore commentaries on the case and related issues, and report your findings. You will also lead a class discussion of your case. More detailed instructions will be distributed in class.

Course Outline, Schedule of Assignments

I. Slavery and Constitutional Politics

Week One (8/30-9/3)

Monday: Introduction: The Evolving Constitution and Equal Rights

Marshall, "Race and the Constitution" (handout)

Provisions of the Constitution on Slavery and its Abolition

Wednesday: The Setting of the Dred Scott Decision

Finkelman, Dred Scott v. Sandford: A Brief History with Documents, 1-29

“Slave Code of Virginia” (handout)

Friday: The Dred Scott Decision on the Issue of Citizenship

Chief Justice Taney’s Majority Opinion on the citizenship issue (Finkelman, 55-69)

Justice Curtis’s Dissenting Opinion on the citizenship issue (Finkelman, 106-113)

Discussion Question #1 due: Comment on the debate between Taney and Curtis over the intent of the framers of the Constitution. What historical evidence does each emphasize?

Week Two (9/6-9/10)

Monday: No class meeting

Wednesday: The Dred Scott Decision on the Issue of Slavery in the Territories

Chief Justice Taney’s Majority Opinion on the territories issue (Finkelman, 69-76)

Justice Curtis’s Dissenting Opinion on the territories issue (Finkelman, 113-124)

Discussion Question #2 due: How does Curtis’s opinion on the territories issue compare with Taney’s?

Friday: Constitutional Politics after Dred Scott

Finkelman, 38-48, 178-207

[discussion panel]

II. After the Civil War: Enforced Segregation and Second-Class Citizenship

Week Three (9/13-9/17)

Monday: Legal Equality and Its Limits

The Civil Rights Cases of 1883 (see also Martin, 64-69)

Pace v. Alabama

Plessy v. Ferguson (Martin, 78-88)

Discussion Question #3 due: What constraints did the post-Civil War Supreme Court place on the concept of legal equality?

Wednesday: Discrimination against Asians

The Chinese Exclusion Case

Ozawa v. United States

Gong Lum v. Rice

Verhovek, “Justice Prevails” (New York Times, March 11, 2001)

[discussion panel]

Friday: Law and Society in the Jim Crow Era

Turner, “Civil Rights” (Martin, 64-69)

Wells-Barnett, “The Case Stated” (Martin, 69-75)

Washington, “Atlanta Exposition Address”

Washington, excerpt from "Is the Negro Having a Fair Chance?" (from Brotz, Negro Social and Political Thought, 1850-1920)

[discussion panel]

Week Four (9/20-9/24)

Monday: The Evolving Thought of W.E.B. Dubois

Dubois, "Race Prejudice" (from Golden and Reike, The Rhetoric of Black Americans)

Dubois, “Segregation” (Martin, 89-90)

Dubois, “Does the Negro Need Separate Schools” (Martin, 93-102)

[discussion panel]

III. The Civil Rights Movement and the Constitution

Wednesday: The NAACP Litigation Campaign

Martin, 1-28

Smith v. Allright

[discussion panel]

Friday: Brown v. Board of Education and Precedent

The Sweatt and McLaurin Decisions (Martin, 112-116)

Brown v. Board of Education (Martin, 163-169)

Bolling v. Sharpe

Discussion Question #4 due: In Brown, how does Chief Justice Warren’s opinion for the Court address the issue of precedent?

Week Five (9/27-10/1)

Monday: Brown v. Board and Constitutional Interpretation

Briggs v. Elliot (Martin 119-131)

Re-read Brown v. Board (Martin, 163-169)

Discussion question #5 due: How does Chief Justice Warren’s opinion for the Court in Brown respond to the majority opinion in Briggs? How does Warren’s opinion differ in emphasis and tone from the dissenting opinion in Briggs?

Wednesday: The Aftermath of Brown

Brown II (Martin, 190-93)

Cooper v. Aaron

Samples from Published Responses to Brown (Martin, 194-216)

[discussion panel]

Friday: The Impact of Brown

Martin, 217-225

Rosenberg, excerpt from The Hollow Hope

[discussion panel]

Week 6 (10/4-10/8)

Monday: First Exam

Wednesday: Symposium Day

IV. Race, Class and the Limits of Legal Equality

Friday: San Antonio v. Rodriguez—Day 1

Sracic, Preface and chapters 1-3

Milliken v. Bradley

Discussion Question #6 due: How does the case of Milliken v. Bradley limit the impact of Brown v. Board of Education?

Week 7 (10/11-10/15)

Monday: San Antonio v. Rodriguez—Day 2

Sracic, chapters 4-6

[discussion panel]

Wednesday: San Antonio v. Rodriguez—Day 3

Sracic, chapters 7-9

San Antonio Independent School District v. Rodriguez (handout)

[discussion panel]

Friday: San Antonio v. Rodriguez—Day 4

Sracic, chapters 10-12 and Epilogue

Arlington Heights v. MHDC

Discussion Question #7 Due: What connections can you make between the Arlington Heights and San Antonio cases?

V. Prelude to Current Debates

Week 8 (10/18-10/22)

Monday: No class meeting

Wednesday: Sex as a Semi-suspect Classification

Bradwell v. Illinois

Frontiero v. Richardson

Craig v. Boren

Discussion question #8: How does the Supreme Court doctrine on sex discrimination evolve in these cases?

Friday: Sexual Orientation and Fundamental Rights

Bowers v. Hardwick

Lawrence v. Texas

[discussion panel]

Week 9 (10/25-10/29)

Monday: Discrimination in the Private Sector

Heart of Atlanta Motel v. United States

United States v. Morrison

Discussion Question #9 Due: In each of these cases, what civil rights statute was challenged? What was the constitutional logic behind the challenge? What was the primary response to that challenge?

Wednesday: Interpreting Statutes

“The Structure of American Law: Statutes and Statute Makers,” from Friedman and Hayden, American Law, an Introduction)

United Steel Workers of American v. Weber

[discussion panel]

Friday: Employment Discrimination

Griggs v. Duke Power Company

Wards Cove Packing Company v. Atonio

Biskupic, Joan. "Senate Passes Sweeping Measure To Overturn Court Rulings." CQ Weekly (November 2, 1991): 3200-3204

[discussion panel]

Week 10 (11/1-11/5)

Monday: Sex Discrimination under Title VII and Title IX

Meritor Savings Bank v. Vinson

Davis v. Monroe County Board of Education

Discussion Question #10 due: What similarities and differences do you see between these two cases?

Wednesday: Race and Criminal Justice

Powell v. Alabama

Tennessee v. Garner

McCleskey v. Kemp

[discussion panel]

Friday: Second Exam

Week 11 (11/8-11/12)

Wednesday: Annotated Bibliographies due

VI. Contemporary Issues in Constitutional Equality

Weeks 11-14:

Topics and Readings to Be Announced

In this part of the course students will present a recent case related to issues of legal equality and lead a class discussion of the case (two-three students will go each day). The case will also serve as the topic of a modest research paper.

Possible cases for this section:

Race and School Desegregation

Parents Involved v. Seattle

Race and Criminal Justice

Whren v. United States (traffic stops and searches, DWB)

Terry v. Ohio and Stop and Frisk

Race and Voting Rights

Shaw v. Reno (majority minority legislative districts)

Shelby County v. Holder (ending pre-clearance under the Voting Rights Act and upholding various voting restrictions)

Husted v. A. Phillip Randolph Institute (purging of voter registration rolls)

Race and Affirmative Action

Grutter v. Bollinger (law school admissions)

Fisher v. University of Texas (undergraduate admissions)

Adarand Constructors v. Pena (minority owned businesses)

Sex and Gender

United States v. Virginia (single sex higher education)

Rostker v. Goldberg (male only draft registration)

Planned Parenthood of SE Pennsylvania v. Casey, focus on Blackmun’s concurring opinion (abortion as an issue of sexual equality)

Maher v. Roe (public funding of abortion)

Sexual Orientation

Romer v. Evans (state prohibition of anti-discrimination ordinances)

US v. Windsor (DOMA and gay marriage)

Obergefell v. Hodges (Gay marriage at the state level)

Equality for Non-Citizens

Plyler v. Doe (children of illegal aliens)

Demore v. Hyung Joon Kim (detention of aliens)

Wealth Discrimination

Maher v. Roe (Medicaid funds for abortion)

Saenz v. Roe (residency requirements for welfare benefits)

Mental Retardation

City of Cleburne v. Cleburne Living Center (zoning laws and a group home)

Heller v. Doe (civil commitment procedures)

Native American Treaty Rights

Minnesota v. Mille Lacs Band of Chippewa Indians

Private Sector Discrimination

Bob Jones University v. United States (tax exemptions for private universities)

Burwell v. Hobby Lobby (private health insurance and religious freedom of employers)

Employment Discrimination

Bostock v. Clayton County (sexual orientation)

Title IX

Cohen v. Brown (Athletics)

Pederson v. Louisiana State University (Athletics)

Doe v. University of Cincinnati (campus sexual assault)

Research paper due: Friday, December 3

Final exam: Monday, December 6, 3:00 p.m.