Chapter 6 Exercises — Civil Rights

The exercises in this chapter ask you to read primary sources, steel-man across the spectrum, trace doctrinal change, audit data, and locate civil-rights questions in your own district. You should not finish the chapter without doing at least three of them. Civil rights is a topic where strong opinions are easy and disciplined argument is hard. The exercises are the discipline.

Exercise 1 — Read the opinion (pick two of the following)

Choose two of the listed cases and read at least the majority opinion (and one dissent or concurrence, where indicated). Write a 500–700 word response covering: (a) the facts, (b) the legal question presented, (c) the holding, (d) the central reasoning, and (e) what you think is the strongest objection a thoughtful adversary would raise. The point is to summarize and steel-man, not to evaluate.

  • Brown v. Board of Education, 347 U.S. 483 (1954). The opinion is short — about 4,000 words. Note the role of Footnote 11 (the social-science evidence). Note that the Court explicitly does not address remedy; that came in Brown II (1955). Read both.
  • The Slaughter-House Cases, 83 U.S. 36 (1873). Read the majority and Justice Field's dissent. The case has nothing to do with race directly, but its narrowing of the Privileges or Immunities Clause shaped civil-rights doctrine for the next 150 years. Pay attention to how the Court describes the purpose of the Reconstruction Amendments.
  • Plessy v. Ferguson, 163 U.S. 537 (1896). Read both Justice Brown's majority opinion and Justice Harlan's dissent. The dissent is about 6 pages; read it twice. Identify the passages most often quoted, and the passages less often quoted (especially Harlan's reference to "the white race" being "dominant" and to Chinese persons being "a race so different from our own").
  • SFFA v. Harvard / UNC, 600 U.S. 181 (2023). The full opinion is long; read at least Roberts' majority (Sections I-III) and Sotomayor's dissent (Sections II-IV). Note Justice Thomas's originalist concurrence and Justice Jackson's UNC dissent.
  • Bostock v. Clayton County, 590 U.S. 644 (2020). Read Justice Gorsuch's majority opinion and Justice Alito's dissent. Pay attention to the textualist methodology Gorsuch uses and to how Alito argues that the same methodology cuts the other way.

Exercise 2 — Steel-man (pick one)

For one of the following debates, write two essays of approximately 500 words each: one presenting the strongest case for the progressive position, one presenting the strongest case for the conservative position. Use the chapter's framework: don't characterize either side's view in your own terminology; use the terms its serious advocates use; cite specific cases, statutes, scholars, and data.

You will be graded on the strength of both essays. If the conservative essay is conspicuously weaker than the progressive one, you have not done the exercise; the same is true in the other direction. The point of this kind of writing is the discipline of thinking against the grain of your prior commitments.

(a) Affirmative action in university admissions. Pro: Drawing on Sotomayor's SFFA dissent, Randall Kennedy's For Discrimination, the historical-context arguments, and the empirical-disparities literature. Con: Drawing on Roberts's SFFA majority, Thomas Sowell, the Sander-Taylor mismatch arguments, and the principle of color-blindness running from Harlan through Brown.

(b) Title VII disparate-impact doctrine. Pro: Drawing on Griggs, the Inclusive Communities majority, and the argument that disparate-impact liability is the only practical tool against subtle discrimination. Con: Drawing on Justice Scalia's Ricci concurrence, the Inclusive Communities dissent, and the argument that disparate-impact liability necessarily forces race-conscious hiring decisions.

(c) Title IX and transgender athletes in women's sports. Pro inclusion: Drawing on the textualist logic of Bostock, the medical organizations' position, the legal claim that the existing Title IX rules contemplate sex as a self-identification category. Pro restriction: Drawing on the biological-correlates argument, the Cass Review, the historical purpose of Title IX in creating women's athletics, the major-questions argument that this policy belongs to legislatures.

Exercise 3 — Trace the doctrine

Pick sex as a constitutional classification. Trace its doctrinal development from no protection (Bradwell v. Illinois 1873; Goesaert v. Cleary 1948) through the rational-basis era, to the breakthrough in Reed v. Reed (1971), the plurality push for strict scrutiny in Frontiero (1973), the formal adoption of intermediate scrutiny in Craig v. Boren (1976), and the elevation in United States v. Virginia (1996). For each case, write 100–150 words covering: the facts, the holding, what changed about the level of scrutiny, and what social or political conditions had changed since the prior case.

In your conclusion (200 words), address: do you think it would have been better for Congress and the states to have ratified the ERA in the 1970s, settling the question of strict scrutiny by constitutional amendment? Why or why not? Steel-man both sides.

Exercise 4 — Find the data

Locate primary-source data on three of the following measured racial disparities in the United States, as of the most recent year available:

  • The Black-white wealth gap (try the Federal Reserve's Survey of Consumer Finances).
  • The Black-white life-expectancy gap (try the CDC's National Vital Statistics System).
  • The Black-white incarceration ratio (try the Bureau of Justice Statistics).
  • The Black-white college completion gap (try the National Center for Education Statistics).
  • The Black-white maternal mortality gap (try the CDC's Pregnancy Mortality Surveillance System).

For each measure, document the data, the year, and the source. Then, in 600–800 words total, present three different academic explanations of the disparity — drawing from the chapter's framework: structural-racism / continuing-discrimination accounts, cultural / behavioral / family-structure accounts, and mixed / interactionist accounts. Cite at least one scholar for each. Do not endorse any of them; the point is to know the lay of the academic land.

In your final paragraph, address: what would you want to know that you currently do not know, in order to decide which causal account is most accurate?

Exercise 5 — Democracy Audit (carries forward across the book)

Each chapter of this book has a Democracy Audit exercise that asks you to apply the chapter to your own congressional district. The chapter-6 component:

(a) Identify civil-rights litigation in your district or state. Search for federal civil-rights cases filed in your federal district court within the past five years. PACER (Public Access to Court Electronic Records) requires registration and modest fees but allows full search; CourtListener (free) covers most published opinions. List three cases. Identify the civil-rights statute or constitutional provision invoked and the legal status (pending, settled, won, lost).

(b) Map your district's demographic composition against the U.S. Census Bureau's 2020 Census data and the American Community Survey. What share of your district is white, Black, Hispanic, Asian American, Native American? What is the gender breakdown? The disability rate? The religious composition (Pew's Religious Landscape Study, 2023, has district-level data for the larger denominations)?

(c) Find your representative's voting record on civil-rights legislation since 2018. GovTrack and Congress.gov both have searchable voting records. Look for: VRA amendments or extensions, ADA amendments, Title IX-related legislation, SAFE Act / Equality Act / Religious Freedom legislation, and any federal-court nominations they've voted on. Identify the demographic composition of the district relative to the representative's positions.

(d) In 600 words, address: Does your representative's voting record on civil-rights issues track the demographic and ideological composition of your district? Where it diverges, what explains the divergence (party, donors, primary electorate, personal conviction)? You are not asked to praise or criticize; you are asked to analyze.

Exercise 6 — The Civil Rights Movement, by the numbers

The Civil Rights Movement is often taught as a sequence of moral moments. It was also a long, expensive, organized political campaign. For one of the major actions covered in 6.5 — Montgomery, Greensboro/sit-ins, Freedom Rides, Birmingham, March on Washington, Mississippi Freedom Summer, Selma — research:

(a) The number of participants and arrests. (b) The duration of the action. (c) The estimated funding (where data exists) and the principal sources. (d) The casualties (killed, injured, jailed, fired from jobs). (e) The proximate political effects and the more durable legal effects.

Write 800–1,000 words on what the numbers add to the moral narrative — what the moral narrative tells you that the numbers don't, and what the numbers tell you that the moral narrative doesn't.

Exercise 7 — Religion and civil rights

Read either Hobby Lobby (2014), Masterpiece Cakeshop (2018), Fulton v. Philadelphia (2021), or 303 Creative v. Elenis (2023). In 600 words: present the religious-conscience claim, the civil-rights claim that conflicts with it, and the Court's resolution. Then, in a separate 400 words, steel-man the position that religious-conscience accommodations are themselves civil-rights protections (drawing on the free-exercise tradition), and then steel-man the position that broad religious-conscience exemptions undermine civil-rights protections (drawing on the public-accommodations tradition that emerged from the 1964 Act). Both positions have serious advocates. Both deserve charitable rendering.

Exercise 8 — The disenfranchisement archive

The disenfranchisement of Black voters in the post-Reconstruction South was not an accident; it was a deliberate constitutional project pursued openly. State constitutional conventions from 1890 (Mississippi) through 1908 (Georgia) explicitly addressed how to disfranchise Black voters within the formal constraints of the Fifteenth Amendment.

Locate the proceedings of one of the following state constitutional conventions and read at least 30 pages of the debates: Mississippi 1890, South Carolina 1895, Louisiana 1898, Alabama 1901, Virginia 1901–02, North Carolina (1900 amendment), or Georgia 1908. (Most are available through state archives, HathiTrust, or university repositories.)

In 800–1,000 words: (a) identify the specific mechanisms proposed (poll taxes, literacy tests, residency requirements, grandfather clauses, white primaries); (b) note how the mechanisms were defended in the debates — pay attention to how openly delegates discussed the racial purpose, and to the rare voices in opposition; (c) document the registration data before and after the convention's reforms; and (d) reflect on what the candor of these proceedings tells you about the Fifteenth Amendment's enforceability without political will to enforce.

This exercise is hard. It is also, more than any other exercise in the book, the way to understand why the Voting Rights Act of 1965 — and federal preclearance specifically — was structured the way it was. Until you have read the actual disenfranchisement debates in the words the delegates used, the VRA looks like an unusually intrusive federal statute. After you have read them, it looks like a measured response to ninety years of state-level constitutional manipulation.

Exercise 9 — A people's history of one statute

Pick the Americans with Disabilities Act of 1990 and trace its legislative history through the activism that produced it. The ADA is sometimes left out of standard civil-rights treatments. It should not be.

Research: the 504 sit-in (April 1977) in San Francisco, the work of Justin Dart Jr., Judy Heumann, Pat Wright, Evan Kemp Jr., and Senator Tom Harkin (whose brother Frank was deaf). Identify the key floor debates in 1989–90; locate the bill's signing-ceremony speeches by President George H. W. Bush; and trace the bill's passage (Senate 91-6, House 377-28 — among the most lopsidedly bipartisan civil-rights votes in American history).

In 700–900 words, address: (a) what made the ADA bipartisan when other civil-rights legislation has been so polarizing; (b) what the disability-rights movement learned from the African American civil-rights movement and what made its strategy distinct; and (c) why, despite the law's success, Olmstead's integration mandate has been only partially implemented in the decades since.