Chapter 6 — Civil Rights: The Unfinished Struggle for Equality Under Law

"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." — Justice John Marshall Harlan, dissenting in Plessy v. Ferguson (1896)

"In order to get beyond racism, we must first take account of race. There is no other way." — Justice Harry Blackmun, Regents of the University of California v. Bakke (1978)

These two sentences are not contradictions. They are different readings of the same constitutional principle — equal treatment under law — applied to different historical moments and different theories of how equality is achieved. Both quotations are central to the American civil-rights tradition. Both are invoked, today, by serious legal thinkers, and not always by the people who first invoked them. Working through that puzzle is much of what this chapter does.

6.1 Civil rights vs. civil liberties: a working distinction

Chapter 5 covered civil liberties — the limits the Constitution places on what government can do to you. The First Amendment forbids Congress from establishing a religion or abridging speech. The Fourth forbids unreasonable searches. The Fifth and Fourteenth forbid the government from depriving anyone of life, liberty, or property without due process. Civil liberties are negative rights against state action.

Civil rights are about something different: the right to be treated equally by government and, in modern American law, by certain private actors (employers, landlords, public accommodations) under statutes that Congress has the power to enact. The line between liberties and rights is not always clean — Roe and Dobbs sit on the border, Obergefell sits on the border, religious-conscience cases sit on the border — but the working distinction is useful. Civil liberties limit power. Civil rights guarantee equal treatment.

The two interact. A government could in principle violate everyone's free-speech rights equally. That would be a civil-liberties violation. A government could permit free speech but punish only Black citizens for exercising it — that would also be a civil-liberties violation, and a civil-rights violation, because the unequal application is itself unconstitutional under the Equal Protection Clause. The civil-rights tradition is the long American argument over what counts as equal treatment, who is covered by it, and what tools government has to enforce it.

The arc of this chapter. We start with the Constitution's original failure to address slavery, the abolitionist tradition, the Civil War, and the Reconstruction Amendments — the second founding. Then we trace how Reconstruction failed, how Jim Crow rose, how the NAACP legal strategy slowly pulled American law back toward equality, and how the Civil Rights Movement and the great statutes of 1964 and 1965 reshaped American life. Then we work category by category: race (and the contemporary affirmative-action and voting-rights debates), sex and gender (including the new debates over Title IX and gender identity), sexual orientation, disability, the experiences of Native, Asian, and Latino Americans, religion as a civil-rights category, and the question of class. Finally we return to first principles: what is the modern Equal Protection doctrine, and where is the law going?

The history is not contested. Slavery happened. Jim Crow happened. The Civil Rights Movement was a great moral achievement and remains so. The contemporary doctrinal questions — affirmative action, disparate impact, Title IX scope, religious-conscience exemptions, the explanations of measured disparities — are genuinely contested at the level of theory, evidence, and values. The chapter steel-mans across the spectrum on the contested questions and tells the truth on the settled ones.

6.2 The Constitution's original failure

The Constitution that emerged from Philadelphia in 1787 contained three provisions that protected slavery without using the word. Article I, Section 2 counted enslaved persons as "three fifths of all other Persons" for purposes of representation and direct taxation — increasing the political power of slave states in the House and the Electoral College. Article I, Section 9 forbade Congress from prohibiting "the Migration or Importation of such Persons as any of the States now existing shall think proper to admit" before 1808 — protecting the international slave trade for twenty years. Article IV, Section 2 required the return of "Person[s] held to Service or Labour" who escaped to free states — the Fugitive Slave Clause.

The Founders knew what they were doing. The compromises were explicit, debated at length, and described candidly in private correspondence as the price of union. James Madison wrote in Federalist 54 that the three-fifths clause was a "compromise which the Convention have deliberately adopted." Jefferson, who held more than 600 enslaved people across his lifetime, wrote in Notes on the State of Virginia that he "tremble[d] for [his] country when [he] reflect[ed] that God is just." Patrick Henry, opposing ratification in Virginia, said openly that the new federal government threatened slavery — and lost the argument because southern delegates reassured him that slavery was secured.

Whether the Founders should have ended slavery in 1787 is a debate of historical philosophy. What is not in debate is that they did not, that the document they produced gave slaveholders disproportionate political power, and that this disproportion shaped American politics for seventy-five years.

6.2.1 The abolitionist tradition

The argument against slavery did not start in 1865. It started before the Constitution. Quaker meetings denounced slaveholding in the 1690s. Pennsylvania began gradual abolition in 1780. Massachusetts effectively ended slavery by judicial decision in 1783 (Commonwealth v. Jennison). By 1804, every state north of the Mason-Dixon line had begun the process of emancipation.

In the South, abolitionism was suppressed but never silent. William Lloyd Garrison founded The Liberator in 1831 with one of the most famous opening declarations in American journalism: "I am in earnest — I will not equivocate — I will not excuse — I will not retreat a single inch — AND I WILL BE HEARD." Garrison demanded immediate emancipation, denounced the Constitution as "a covenant with death and an agreement with hell," and burned a copy of it in public. He was beaten in the streets of Boston, jailed, and survived multiple assassination attempts.

Frederick Douglass escaped from slavery in 1838, taught himself to read and write, and became one of the most powerful orators in American history. His 1852 speech "What to the Slave Is the Fourth of July?" — delivered in Rochester, New York — remains the single most penetrating short critique of American hypocrisy ever written: "This Fourth of July is yours, not mine. You may rejoice, I must mourn." Douglass split with Garrison over the Constitution: Douglass came to read it as an antislavery document by structure and intent, even where its specific provisions had been corrupted by compromise. The Garrison/Douglass disagreement — was the Constitution itself proslavery, or was it a flawed instrument of liberty whose proslavery readings were a betrayal of its principles? — runs through American constitutional thought to this day.

Sojourner Truth, born into slavery in New York around 1797 and emancipated by state law in 1827, delivered her "Ain't I a Woman?" speech (the title is contested as a later embellishment, but the substance is in the historical record) at the 1851 Akron Women's Convention. She is the first major figure in American history to insist, on a public stage, that the questions of race and sex could not be separated.

These were not marginal voices. The abolitionist movement built a continental network of newspapers, churches, lecture circuits, and the Underground Railroad. Harriet Tubman made some thirteen trips back into slave states between 1850 and 1860 and led approximately seventy people to freedom; she would later serve as a Union Army scout, leading the Combahee River raid in 1863 that liberated more than 700 enslaved people in a single night — the only military action in American history planned and led by a woman until the Second World War.

6.2.2 The Civil War as constitutional crisis

The War of 1861–1865 is the central event of American constitutional history. The South's secession was, at the level of stated reasons, about slavery — the secession ordinances and the so-called "Cornerstone Speech" of Confederate Vice-President Alexander Stephens (March 1861) said so explicitly. The Confederate Constitution forbade any law "denying or impairing the right of property in negro slaves." The war that followed killed approximately 750,000 Americans (a 2011 Hacker re-estimate revising the long-standing 620,000 figure upward), more than every other American war combined until Vietnam.

The legal status of the war was strange. Lincoln refused to recognize the Confederacy as a legitimate sovereign — to do so would have been to concede the constitutionality of secession — but treated it as a belligerent for purposes of laws of war. The Emancipation Proclamation of January 1, 1863, was issued under Lincoln's war powers as Commander-in-Chief and freed only enslaved persons "in States, or designated parts of States, the people whereof shall then be in rebellion against the United States." It did not free anyone in Kentucky, Maryland, Delaware, or Missouri (the loyal slave states) or in Union-occupied portions of the South. It freed approximately 3.5 million people on paper; it would take Union military advance, the Thirteenth Amendment, and post-war enforcement to make that freedom legal everywhere.

6.2.3 The Reconstruction Amendments — the second founding

Three amendments, ratified between 1865 and 1870, rewrote the constitutional architecture.

Thirteenth Amendment (ratified December 1865) — "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Section 2 gives Congress power to enforce by appropriate legislation. The "except as a punishment for crime" clause would later become the legal foundation for the convict-leasing systems that re-enslaved tens of thousands of Black men in the post-Reconstruction South — see Douglas Blackmon's Slavery by Another Name (2008).

Fourteenth Amendment (ratified July 1868) — Section 1 contains four working clauses, each of which is a doctrinal universe: - The Citizenship Clause ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens") overruled Dred Scott v. Sandford (1857), which had held that no Black person could be a citizen. - The Privileges or Immunities Clause ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") was nearly read out of the Constitution by Slaughter-House — see below. - The Due Process Clause ("nor shall any State deprive any person of life, liberty, or property, without due process of law") would become the vehicle by which the Bill of Rights was incorporated against the states (Chapter 5) and the source of the controversial substantive due-process line that runs from Lochner through Roe to Obergefell. - The Equal Protection Clause ("nor deny to any person within its jurisdiction the equal protection of the laws") is the constitutional engine of modern civil-rights law.

Section 5 gives Congress the power to enforce by appropriate legislation. Sections 2, 3, and 4 deal with apportionment, disqualification of former Confederates, and the public debt — they are mostly historical, except that Section 3 was litigated in 2024 in connection with Donald Trump's eligibility for the presidential ballot (Trump v. Anderson, 601 U.S. 100 (2024), which held that states cannot enforce Section 3 against federal candidates without congressional implementing legislation).

Fifteenth Amendment (ratified February 1870) — "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Section 2 gives Congress power to enforce by appropriate legislation. The Fifteenth was the most fragile of the three. Within a generation, southern states would devise poll taxes, literacy tests, grandfather clauses, white primaries, and outright violence to nullify it. It would not be effectively enforced until the Voting Rights Act of 1965 — ninety-five years after ratification.

The Reconstruction Amendments are sometimes called the "second founding," a phrase popularized by Eric Foner's book of that title. They reorganized the basic relationship between the federal government and the states. Where the original Bill of Rights restrained only the federal government, the Fourteenth restrained the states directly. Where the original Constitution gave Congress only enumerated powers, each Reconstruction Amendment gave Congress an additional enforcement power. In principle, the United States had become a different polity.

In practice, it would take a century to make that real.

6.3 Reconstruction and its end

Between 1865 and 1877, the federal government attempted the most ambitious civil-rights project in American history before the 1960s. The Freedmen's Bureau, established in March 1865, distributed food, set up schools, attempted to mediate labor contracts, and tried — within sharply limited resources — to protect newly freed people from violence. By 1870, the Bureau and allied missionary organizations had established more than 4,000 schools educating approximately 250,000 students, the foundation of what would become the historically Black colleges and universities (HBCU) system.

Congress passed the Civil Rights Act of 1866, declaring all persons born in the United States citizens with equal civil rights regardless of race, and the Civil Rights Act of 1875, prohibiting racial discrimination in public accommodations, public transportation, and jury service. Black Americans served in Congress (Hiram Revels and Blanche Bruce in the Senate; sixteen House members during Reconstruction), in state legislatures (a Black majority briefly held the South Carolina House), and in countless local offices.

Then it ended.

6.3.1 The Slaughter-House Cases (1873) — the Fourteenth Amendment narrowed

The Slaughter-House Cases, 83 U.S. 36 (1873), arose from Louisiana's grant of a slaughterhouse monopoly. White butchers sued, claiming the monopoly violated their Fourteenth Amendment rights. The Supreme Court, 5-4, upheld the monopoly by reading the Privileges or Immunities Clause to protect only a narrow set of federal citizenship rights (access to ports, federal protection on the high seas) — not the broad set of "fundamental rights" that abolitionist Republicans had intended.

Slaughter-House did not involve a former slave or a civil-rights claim. But by gutting the Privileges or Immunities Clause, it deprived later civil-rights litigants of the most natural textual home for their claims. Modern Equal Protection doctrine (and the convoluted "substantive due process" doctrine that does much of the work the Privileges or Immunities Clause was supposed to do) is in large part a workaround for Slaughter-House. Justice Clarence Thomas has written, repeatedly, that Slaughter-House was wrongly decided — see his concurrence in McDonald v. Chicago (2010) urging the resurrection of Privileges or Immunities. He is not alone; Slaughter-House is one of the few Supreme Court decisions that virtually every contemporary constitutional scholar across the political spectrum agrees was wrongly reasoned, even if they disagree about what should replace it.

6.3.2 The Compromise of 1877 and the rise of Jim Crow

The presidential election of 1876 produced an electoral-college tie contested in Florida, Louisiana, and South Carolina. The eventual settlement — the Compromise of 1877 — gave the presidency to Republican Rutherford B. Hayes in exchange for the withdrawal of remaining federal troops from the South. Reconstruction effectively ended. Within a generation, every former Confederate state had instituted some combination of poll taxes, literacy tests, white primaries, residency requirements, grandfather clauses (exempting from the literacy test anyone whose grandfather had voted, which conveniently exempted all whites and no Blacks), and the threat of lynching to disfranchise Black voters and re-establish white political dominance.

The numbers are stark. In Louisiana in 1896, 130,344 Black men were registered to vote. In 1900, after the new state constitution's voting requirements were enforced, 5,320 were registered. By 1904, 1,342 were. The same pattern held across the South. Disenfranchisement was not an accident; it was a deliberate constitutional project pursued openly.

The Civil Rights Cases, 109 U.S. 3 (1883), struck down the public-accommodations sections of the Civil Rights Act of 1875 on the ground that the Fourteenth Amendment regulated only state action, not private discrimination. Justice Harlan dissented — he would dissent again, more famously, thirteen years later.

6.3.3 Plessy v. Ferguson (1896) and "separate but equal"

Homer Plessy was an octoroon (one-eighth Black, by the racial classifications of the era) shoemaker from New Orleans, recruited by a civil-rights group called the Comité des Citoyens to test Louisiana's Separate Car Act, which required separate railway cars for white and Black passengers. Plessy boarded the white car, identified himself as Black, was arrested, and his case made its way to the Supreme Court.

The Court ruled 7-1 (one justice did not participate) in Plessy v. Ferguson, 163 U.S. 537 (1896), that separate facilities did not violate the Equal Protection Clause as long as they were equal. Justice Henry Billings Brown's majority opinion reasoned that "if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." The "separate but equal" doctrine would govern American law for fifty-eight years.

Justice John Marshall Harlan dissented alone, in one of the most quoted dissents in American history:

"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. ... 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."

That phrase — "our Constitution is color-blind" — has become one of the most contested in American constitutional rhetoric. For most of the twentieth century, it was a progressive rallying cry: a demand that government stop classifying citizens by race. In the late twentieth century and especially after 2007 (Chief Justice Roberts: "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Parents Involved v. Seattle), the same phrase has been associated with conservative jurisprudence opposing race-conscious affirmative action. Progressive critics now argue that color-blindness is not what Harlan meant — that he was attacking a caste system, not denying the relevance of race to remediation. Conservative defenders argue that Harlan's words mean what they say. Both readings have substantial textual and historical support, and the chapter takes both seriously. Harlan himself, in the same dissent, also wrote that "the white race" was likely to remain dominant "for all time, if it remains true to its great heritage" — a passage that complicates any simple appropriation of his words by either side. The honest summary is that Harlan was a man of his time who saw further than most of his colleagues, and his words are now invoked across the spectrum because they are powerful, because they are ambiguous, and because the underlying question — what does equal treatment require? — has not been answered.

6.4 The long road back: NAACP and Brown

After Plessy, the constitutional path to equality looked closed. The legal strategy that eventually reopened it took fifty years, hundreds of cases, and the patient labor of a generation of Black lawyers and scholars who could not even practice in the courts of the states they were trying to change.

6.4.1 Charles Hamilton Houston and the LDF

The National Association for the Advancement of Colored People (NAACP) was founded in 1909, in part in response to the Springfield, Illinois, race riot of 1908. Its Legal Defense Fund (LDF) was created in 1940 (it became fully separate from the NAACP in 1957). The intellectual architect of the LDF strategy was Charles Hamilton Houston, the dean of Howard University Law School, the first Black editor of the Harvard Law Review, and a graduate of Amherst, Harvard, and the Spanish bar. Houston transformed Howard into a civil-rights legal training ground, telling his students that "a lawyer's either a social engineer or a parasite on society." He died in 1950 at age 54, before he could see Brown.

His most famous student was Thurgood Marshall, who would go on to argue 32 cases before the Supreme Court (winning 29) and become the first Black Justice on the Court in 1967. Constance Baker Motley — the first Black woman to argue before the Supreme Court, the first Black woman federal judge, and Marshall's chief lieutenant on much of the school-desegregation litigation — wrote the original draft of the Brown complaint. The strategy was deliberate: rather than attack Plessy directly, attack the "equal" half of "separate but equal" so insistently that the Court would have to confront the contradiction.

6.4.2 The graduate-school cases

The first Supreme Court wins came in graduate education, where the cost of building genuinely "equal" separate facilities was prohibitive.

Missouri ex rel. Gaines v. Canada (1938) — Missouri excluded Black students from its law school and offered to pay their tuition at out-of-state law schools. The Court (6-2) held that the offer did not satisfy equal protection; Missouri had to provide an equal in-state law school.

Sweatt v. Painter (1950) — Texas, faced with Heman Sweatt's lawsuit, hastily created a separate "law school for Negroes" in three basement rooms of a state office building. The Court held unanimously that the new school was not equal — not just in physical facilities, but in "the reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige." This was a doctrinal breakthrough: equality could not be measured only in bricks and mortar.

McLaurin v. Oklahoma State Regents (1950) — George McLaurin, an admitted Black graduate student in education at the University of Oklahoma, was required to sit at a designated desk in the anteroom of the classroom, at a designated table in the library, and to eat at a designated table in the cafeteria — at different times from white students. The Court held unanimously that these arrangements impaired his ability to "study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Segregation harmed educational equality even where the physical facilities were the same.

After Sweatt and McLaurin, Marshall and his colleagues judged the time was right to attack segregation in primary and secondary education head-on.

6.4.3 Brown v. Board of Education (1954)

Brown was actually five cases consolidated under one caption, from Kansas, South Carolina, Virginia, Delaware, and the District of Columbia (the D.C. case, Bolling v. Sharpe, was decided as a separate opinion because the Fourteenth Amendment does not apply to the federal government — Bolling used the Fifth Amendment Due Process Clause to reach the same result). Chief Justice Earl Warren, newly appointed by President Eisenhower in 1953, made unanimity his goal — he believed (correctly) that anything less than 9-0 would invite massive resistance.

The opinion is short — about 4,000 words. Its central holding is that "in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." The opinion relied on social-science evidence in Footnote 11 — including Kenneth and Mamie Clark's "doll studies," in which Black children showed preferences for white dolls — that has been criticized methodologically since (the studies were small and the Court arguably did not need them). But the holding stood on the constitutional ground.

Brown did not order any specific remedy. Brown II, 349 U.S. 294 (1955), addressed remedy and famously required desegregation to proceed "with all deliberate speed." The phrase was a compromise meant to give school districts time to adjust. In practice, "all deliberate speed" became a license for delay, evasion, and resistance for more than a decade.

6.4.4 Massive resistance

The white South responded to Brown with what its leaders openly called "massive resistance." Virginia's Senator Harry Byrd organized 101 Southern members of Congress to sign the Southern Manifesto in 1956, declaring the Brown decision "a clear abuse of judicial power" and pledging to use "all lawful means" to reverse it. The Manifesto was signed by 19 of 22 Senators from former Confederate states and 82 of 106 House members. Several states passed "interposition" resolutions claiming the right to nullify federal court orders — a doctrine last seriously asserted by John C. Calhoun in the 1830s.

Prince Edward County, Virginia, closed its public schools entirely from 1959 to 1964 rather than integrate them, leaving Black children without formal education for five years. Little Rock, Arkansas, used the National Guard in 1957 to block nine Black students from entering Central High School; President Eisenhower federalized the Guard and deployed the 101st Airborne Division to escort the students. Mississippi, Alabama, and Louisiana saw similar confrontations through the 1960s. Ten years after Brown, fewer than 2 percent of Black children in the Deep South attended desegregated schools.

The pace of desegregation accelerated only after the Civil Rights Act of 1964 authorized the Department of Justice to sue and tied federal education funds to compliance, and after Green v. County School Board (1968) required school boards to take "affirmative steps" to dismantle dual systems and produce results. By the early 1970s, the South was the most desegregated region of the country in education, a status that has slowly eroded since (see Erica Frankenberg's work on resegregation, cited in Further Reading).

6.5 The Civil Rights Movement

A textbook can rehearse the dates. The dates only mean something if the people are real.

6.5.1 Montgomery (1955–56)

On December 1, 1955, Rosa Parks — a 42-year-old seamstress and longtime NAACP secretary, trained that summer at the Highlander Folk School in Tennessee — refused to give up her seat in the "colored" section of a Montgomery bus when the white section filled. She was arrested. Local NAACP leaders, who had been waiting for the right test case, organized a one-day boycott of the buses. The boycott would last 381 days, sustained by Black domestic workers walking to work in winter weather and a network of Black-owned cars and church-organized carpools.

The boycott's spokesman was a 26-year-old Baptist minister recently arrived from Boston University: Martin Luther King, Jr. His Montgomery speech of December 5, 1955 — delivered to a packed Holt Street Baptist Church without notes — is one of the great oratorical performances of the century: "There comes a time when people get tired ... tired of being kicked about by the brutal feet of oppression." Browder v. Gayle, 352 U.S. 903 (1956), summarily affirmed a district-court ruling that Montgomery's bus segregation violated the Equal Protection Clause. The buses integrated in December 1956.

6.5.2 Greensboro and the sit-ins (1960)

On February 1, 1960, four students from North Carolina A&T — Ezell Blair, David Richmond, Joseph McNeil, and Franklin McCain — sat down at the Woolworth's lunch counter in Greensboro and ordered coffee. They were refused service. They sat. The next day, twenty more students joined them. Within a week, the sit-ins had spread to Durham, Raleigh, Charlotte, and Winston-Salem. Within two months, sit-ins were happening in 55 cities in 13 states. Within a year, Woolworth's and Kress had desegregated lunch counters across the South.

The sit-ins gave rise to the Student Nonviolent Coordinating Committee (SNCC), founded at Shaw University in April 1960, which would become one of the most important — and most rigorously trained — organizations of the movement. Ella Baker, who organized the founding meeting, insisted on grassroots leadership: "Strong people don't need strong leaders."

6.5.3 Freedom Rides (1961)

The Freedom Rides tested compliance with two Supreme Court decisions — Morgan v. Virginia (1946) and Boynton v. Virginia (1960) — that had banned segregation in interstate bus travel and bus terminals. Thirteen riders, Black and white, boarded buses in Washington, D.C., on May 4, 1961, planning to ride to New Orleans. In Anniston, Alabama, on May 14, a mob firebombed one bus and beat the riders escaping it. In Birmingham, Public Safety Commissioner Bull Connor told the Klan they would have fifteen minutes with the riders before police arrived. The riders were beaten with pipes and bats inside the terminal.

The federal government, under Attorney General Robert Kennedy, eventually deployed federal marshals and pressured the Interstate Commerce Commission to issue a regulation finally enforcing desegregation in interstate bus terminals. The Freedom Riders kept riding all summer; more than 400 people, including dozens of college students, were arrested in Jackson, Mississippi, alone.

6.5.4 Birmingham (1963)

In April 1963, the Southern Christian Leadership Conference (King's organization) launched Project C ("C" for confrontation) in Birmingham — the most segregated major city in America. King was arrested on April 12 and wrote his "Letter from Birmingham Jail" in the margins of a newspaper, addressed to white clergymen who had urged him to be patient. The Letter is one of the central American political-philosophical documents — a defense of civil disobedience, an exposition of the just-war/just-law tradition from Augustine through Aquinas, and a rejection of "the white moderate, who is more devoted to 'order' than to justice."

In May, the Children's Crusade sent thousands of Black schoolchildren — some as young as six — into the streets of Birmingham. Bull Connor responded with fire hoses powerful enough to strip bark from trees and with police dogs. The footage, broadcast on the new medium of network television, transformed national opinion on civil rights more than any single event of the era. President Kennedy's speech to the nation on June 11 announced the legislation that would become the Civil Rights Act of 1964. That same night, Medgar Evers, the NAACP field secretary in Mississippi, was assassinated in his driveway by a White Citizens' Council member.

6.5.5 March on Washington (1963)

On August 28, 1963, approximately 250,000 people gathered at the Lincoln Memorial. A. Philip Randolph, the dean of Black labor organizing, had originally proposed such a march in 1941 to protest segregation in defense industries and had then called it off when FDR signed Executive Order 8802. Twenty-two years later, Randolph's idea finally happened. Bayard Rustin, the openly gay Quaker pacifist who was Randolph's chief organizer, ran the logistics. John Lewis (then 23, head of SNCC; later a 17-term Congressman from Georgia) gave the march's most radical speech, toned down at the last minute by other organizers worried about offending the Kennedy administration. King delivered the speech now known by its closing improvisation: "I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slaveowners will be able to sit down together at the table of brotherhood." The "I have a dream" portion was not in the prepared text; Mahalia Jackson, the gospel singer, called out behind King: "Tell them about the dream, Martin." He did.

6.5.6 Mississippi Freedom Summer (1964) and Selma (1965)

In the summer of 1964, the Council of Federated Organizations (an umbrella of SNCC, CORE, NAACP, and SCLC) sent approximately 1,000 volunteers — most of them white college students from northern universities — into Mississippi to register Black voters and run "Freedom Schools." The strategy was deliberate: white college students would draw national media attention that Black organizers had been unable to attract.

It worked, terribly. On June 21, 1964, three civil-rights workers — James Chaney (a 21-year-old Black Mississippian), Andrew Goodman (a 20-year-old white New Yorker, on his first day in the state), and Michael Schwerner (a 24-year-old white New Yorker) — were murdered by a Klan group that included Neshoba County deputy sheriff Cecil Price. Their bodies were not found until August. The federal trial — United States v. Price (1966) — convicted seven defendants of conspiracy to violate the victims' civil rights, the first federal civil-rights convictions of white defendants in Mississippi.

In March 1965, in Selma, Alabama, voting-rights demonstrators attempting to march from Selma to Montgomery were attacked by state troopers and deputized civilians on the Edmund Pettus Bridge. John Lewis was beaten unconscious; the day became known as Bloody Sunday. The footage, broadcast nationally, was the proximate cause of President Johnson's voting-rights speech to Congress on March 15: "Their cause must be our cause too. Because it is not just Negroes, but really it is all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome." Johnson, the master Senate parliamentarian, used the phrase that had become the Movement's anthem.

6.6 The great statutes: 1964 and 1965

6.6.1 The Civil Rights Act of 1964

The 1964 Act is the most important domestic statute of the twentieth century. Its key provisions:

• Title II prohibits discrimination on grounds of race, color, religion, or national origin in places of public accommodation (hotels, restaurants, theaters, gas stations) affecting interstate commerce. Upheld unanimously in Heart of Atlanta Motel v. United States (1964) under the Commerce Clause.
• Title VI prohibits discrimination in any program receiving federal financial assistance — the lever that drove school desegregation, hospital desegregation (under Medicare/Medicaid, 1965), and university compliance.
• Title VII prohibits employment discrimination on grounds of race, color, religion, sex, or national origin, by employers of 15 or more employees. Created the Equal Employment Opportunity Commission (EEOC).

The bill's path through Congress was extraordinary. President Kennedy introduced it in June 1963; he was assassinated in November. Lyndon Johnson, in his first address to Congress as President, said: "We have talked long enough in this country about equal rights. ... It is time now to write the next chapter, and to write it in the books of law." The House passed the bill in February 1964. In the Senate, segregationist Democrats — led by Richard Russell of Georgia — mounted a 60-day filibuster, the longest in Senate history at that time.

The bill was broken not by the Democrats — who could not muster the two-thirds vote then required for cloture — but by the Senate Republican leader, Everett Dirksen of Illinois. Dirksen, a conservative Midwestern Republican, negotiated technical amendments and rallied his caucus. On June 10, 1964, cloture was invoked 71-29; 27 Republicans voted yes (out of 33); only 6 Republicans voted no. Among Democrats, 44 voted yes and 23 voted no — every "no" vote among Democrats came from the South. The final passage vote on June 19 was 73-27. Johnson signed the bill on July 2.

The political consequence was a generation-long realignment. Johnson, signing the bill, told an aide (Bill Moyers's recollection): "We have lost the South for a generation." It was an underestimate. The white South, solidly Democratic since Reconstruction, swung Republican beginning with Barry Goldwater (one of the few non-Southern Republicans who voted against the 1964 Act on constitutional grounds — specifically Title II's regulation of private property — and the 1964 Republican presidential nominee). Black voters, who had split between the parties in 1960 (Eisenhower had won 32 percent of the Black vote in 1956, Nixon 32 percent in 1960), became reliably Democratic. The two parties swapped their positions on civil rights in roughly fifteen years.

The "sex" amendment. Title VII originally banned discrimination on grounds of "race, color, religion, or national origin." On the House floor, Howard "Judge" Smith of Virginia — the segregationist chairman of the Rules Committee — proposed adding "sex" to the list. Smith's motives are debated: probably to offer southern segregationists another reason to vote against the bill, possibly as a sincere gesture toward the National Woman's Party (Smith had a long if quirky relationship with women's-rights advocates), most likely both. Whatever the motive, the amendment passed, the bill passed, and Title VII as enacted prohibited sex discrimination in employment. It is one of the most consequential accidents in American legislative history. Within a decade, Title VII had become the legal foundation of women's employment rights.

6.6.2 The Voting Rights Act of 1965

The VRA is shorter than the 1964 Act and did more, faster, on the specific question of Black voter registration. Its key provisions:

• Section 2 — A nationwide ban on voting practices that "deny or abridge" the right to vote on account of race or color. Permanent. Enforced by litigation.
• Section 4 — A "coverage formula" that designated certain jurisdictions (originally most of the Deep South) for special scrutiny based on past discriminatory practices and low minority registration.
• Section 5 — "Preclearance": covered jurisdictions could not change voting laws or procedures without first obtaining approval from the Department of Justice or the U.S. District Court for D.C.

The effect was immediate. Black voter registration in Mississippi went from 6.7 percent in 1964 to 59.8 percent in 1967. In Alabama, from 19.3 percent to 51.6 percent. The number of Black elected officials in the South grew from approximately 100 in 1964 to more than 5,000 by 1990.

The VRA was reauthorized in 1970, 1975 (extending coverage to language minorities), 1982 (extending preclearance for 25 years), and 2006 (extending preclearance for 25 more years, by votes of 98-0 in the Senate and 390-33 in the House). It has been the most successful piece of civil-rights legislation in American history.

The Court's 2013 decision in Shelby County v. Holder — which we discuss below — radically narrowed it.

6.7 The doctrine: Equal Protection and the scrutiny tiers

Modern Equal Protection doctrine asks: when government draws a classification, what level of justification must it provide? The Court's answer is a three-tier framework:

Rational basis review — applied to most classifications (age, wealth, most economic regulation). Government wins if the classification is rationally related to a legitimate government interest. Almost every law passes; this is the default.

Intermediate scrutiny — applied to classifications based on sex (since Craig v. Boren, 1976) and legitimacy of birth. Government must show the classification is substantially related to an important government interest. United States v. Virginia (1996) — the VMI case, opinion by Justice Ginsburg — sharpened intermediate scrutiny by requiring "exceedingly persuasive justification," approaching but not reaching strict scrutiny.

Strict scrutiny — applied to classifications based on race, national origin, and alienage (with exceptions for federal alienage), and to laws that burden fundamental rights (voting, marriage, interstate travel, certain First Amendment activities). Government must show the classification is narrowly tailored to a compelling government interest. Strict scrutiny is almost always fatal to the law — Gerald Gunther's famous formulation: "strict in theory, fatal in fact." But not always: Korematsu v. United States (1944) applied strict scrutiny and upheld the Japanese-American incarceration; affirmative-action cases from Bakke through Grutter applied strict scrutiny and upheld race-conscious admissions in narrow circumstances.

The tier assignment is not just a technicality. It determines which side bears the burden, what kind of evidence the government must produce, and how skeptically courts will read the legislative record. Whether sexual orientation and gender identity trigger heightened scrutiny is unsettled at the federal level — Obergefell did not specify a tier — though several circuits have applied intermediate scrutiny.

6.8 Race after 1965

Federal law since 1965 has been formally race-neutral in most contexts. The contested questions concern when and how race may be considered, how to interpret racially disparate outcomes, and what the proper remedies are.

6.8.1 Affirmative action: from Bakke to SFFA

Regents of the University of California v. Bakke (1978) — Allan Bakke, a white applicant, sued UC Davis Medical School over its 16-seat racial set-aside. The Court fractured. Justice Lewis Powell's controlling opinion held that quotas were unconstitutional but that race could be considered as one factor among many in pursuit of a "compelling interest" in educational diversity. Diversity, not historical remediation, became the constitutionally permitted rationale.

Grutter v. Bollinger (2003) — Sandra Day O'Connor's opinion upheld the University of Michigan Law School's admissions program (race as a "plus factor" in holistic review), holding that diversity is a compelling interest. O'Connor wrote, in the opinion's most-quoted line: "We expect that 25 years from now, the use of racial preferences will no longer be necessary."

Fisher v. University of Texas at Austin I (2013) and II (2016) — Abigail Fisher's challenge to the University of Texas's admissions policy. The Court (in Fisher II, 4-3) narrowly upheld the policy, with Justice Kennedy's opinion emphasizing strict scrutiny and the requirement of strong evidence that race-neutral alternatives had failed.

Students for Fair Admissions v. Harvard / UNC (2023), 600 U.S. 181 (2023) — Chief Justice Roberts, writing for a 6-3 majority (6-2 in the UNC case, where Justice Jackson recused), held that the race-conscious admissions programs at Harvard and UNC violated, respectively, Title VI of the Civil Rights Act and the Equal Protection Clause. The Court held that the diversity rationale, though invoked by Harvard and UNC, did not produce sufficiently measurable and concrete benefits to qualify as compelling, and that the programs failed strict scrutiny because they used race "as a stereotype, not as an individual factor," because they had no logical endpoint, and because they involved racial balancing in fact if not in name. The opinion preserves a narrow opening — applicants may discuss how race has affected their lives in personal essays, and the holding does not extend to U.S. military academies — but the doctrinal direction is clear. SFFA is treated in detail in Case Study 02.

Steel-manning the affirmative-action debate. This is one of the most genuinely contested questions in American politics, and a serious civics text owes both sides a real hearing.

The strongest case for race-conscious admissions (the position defended by Justices Sotomayor, Kagan, and Jackson in SFFA dissent, and by scholars like Randall Kennedy in For Discrimination): The history of American racial inequality is so deep, recent, and structural that race-blind admissions in fact reproduce racial inequality. Research on K-12 schooling, housing wealth, family transmission of educational capital, and access to test preparation shows that the metrics admissions offices rely on are not neutral. Diversity in elite higher education produces genuine benefits — for white students whose education is enriched, for Black and Latino students whose access is widened, and for the legitimacy of leadership institutions in a diverse democracy. Race-neutral substitutes (class-based, geography-based, percent plans) do not produce comparable racial diversity in the most selective institutions, as the post-Proposition 209 California experience and the post-Texas-percent-plan data both indicate. The history of American constitutionalism is one in which the Equal Protection Clause has often required, not forbidden, race-conscious remedies (Bolling v. Sharpe, Green v. County School Board).

The strongest case against race-conscious admissions (the position defended by Chief Justice Roberts in SFFA and by scholars like Thomas Sowell and Richard Sander): Constitutional principle requires that government treat individuals, not groups. Justice Harlan's Plessy dissent and the unanimous opinion in Brown both rest on the principle that racial classifications are constitutionally suspect and that the proper remedy for past racial discrimination is not new racial classification but its abandonment. There is empirical evidence that affirmative action causes harms its defenders underweight: the "mismatch" hypothesis (Sander and Taylor, Mismatch) argues that students admitted with credentials substantially below their school's median may underperform and graduate at lower rates. Stigma effects burden the achievements of minority students who would have succeeded without preferences. Racial diversity is achievable through class-based and geographic methods that do not require explicit racial classification. And — the argument that has carried most weight in recent doctrine — race-conscious admissions necessarily disadvantage some applicants on the basis of race in order to advantage others, which is the kind of state action the Fourteenth Amendment was written to prevent.

The empirical literature is contested. The "mismatch" hypothesis has been supported by some studies and challenged by others (a 2014 Journal of Empirical Legal Studies exchange between Sander and Daniel Ho is the canonical scholarly disagreement). The diversity benefits literature (Patricia Gurin's work cited in Grutter; subsequent meta-analyses) is real but the magnitudes are debated. Post-SFFA admissions data from the 2024 cycle showed declines in Black and Latino enrollment at some elite institutions (MIT, Amherst), maintenance at others (Princeton, Yale), and increases in some places — preliminary, partial, and contested. Honest assessment will take five to ten admissions cycles.

The SFFA majority and dissent were both reading principles that have ancestral roots in the civil-rights tradition. Both readings are serious. The empirical evidence on consequences is genuinely mixed. The chapter takes both seriously.

6.8.2 Disparate impact and Title VII

Griggs v. Duke Power Co. (1971) — A unanimous Court held that Title VII reaches employment practices that are "fair in form, but discriminatory in operation." Duke Power required a high-school diploma and a passing score on a general intelligence test for jobs that did not actually require either; the requirements disproportionately excluded Black applicants and could not be justified by business necessity. Griggs established disparate-impact doctrine — facially neutral practices that produce racially disparate outcomes can violate Title VII unless justified by business necessity.

Disparate-impact doctrine is contested today on both legal and empirical grounds. The legal challenge: does disparate-impact liability itself require employers to engage in race-conscious decision-making to avoid disparate outcomes — and if so, does that race-conscious decision-making itself violate the Equal Protection Clause? Justice Scalia raised this question in Ricci v. DeStefano (2009) (the New Haven firefighters case); Texas Department of Housing v. Inclusive Communities Project (2015) extended disparate-impact doctrine to housing under the Fair Housing Act, but with significant limits and a 5-4 split. The Roberts Court has not yet directly resolved the underlying tension.

The empirical challenge: disparate-impact analysis assumes that the absence of disparity is the natural baseline and any disparity reflects discrimination. Critics argue this is not always so: real differences in job-relevant qualifications across demographic groups (themselves the products of upstream inequalities) can produce disparate outcomes even without discrimination at the point of hiring. Defenders argue that disparate-impact liability is precisely the right tool to address upstream inequalities indirectly, by requiring employers to use only validated, job-related criteria. The dispute involves serious scholars on both sides; we flag it without resolving it.

6.8.3 Voting rights: Shelby County and Allen v. Milligan

Shelby County v. Holder, 570 U.S. 529 (2013) — Chief Justice Roberts wrote for a 5-4 majority that Section 4(b)'s coverage formula — which determined which jurisdictions were subject to Section 5 preclearance — was unconstitutional because it was based on data from the 1960s and 1970s and no longer reflected current conditions. Section 5 itself was not formally struck down, but with no coverage formula, it became dormant. Justice Ginsburg's dissent compared the majority's reasoning to "throwing away your umbrella in a rainstorm because you are not getting wet." Within hours of the decision, several previously covered states announced new voting laws (most notably Texas's voter-ID law, which had been blocked under preclearance).

Allen v. Milligan, 599 U.S. 1 (2023) — In a surprise to many observers, the Court (5-4) upheld Section 2 of the VRA as applied to Alabama's congressional districting, requiring Alabama to draw a second majority-Black district. Chief Justice Roberts and Justice Kavanaugh joined the three Democratic-appointed Justices. Milligan signals that, while Shelby County dismantled preclearance, Section 2's vote-dilution doctrine remains in force.

The voting-rights chapter (Ch. 36) covers this terrain in more depth, including the contested questions of voter ID, mail-in ballots, and election administration.

6.8.4 Racial disparities and the contested explanations

Empirical disparities by race are real and large. The 2022 wealth data from the Federal Reserve's Survey of Consumer Finances showed median white household wealth of approximately $285,000 and median Black household wealth of approximately $44,900 — a ratio of about 6:1. Black Americans are incarcerated at roughly 5 times the rate of white Americans. Life expectancy gaps, infant mortality gaps, and gaps in college completion are documented across thousands of studies.

The explanations for these disparities are contested. Three broad camps in the academic literature:

1. Structural-racism / continuing-discrimination accounts. Disparities reflect ongoing discrimination (some overt, much subtle), the cumulative effects of historical exclusions (redlining, GI Bill exclusions, school-funding inequities), and structural features of American institutions (criminal-justice enforcement disparities, employment networks, residential segregation). Authors: William Julius Wilson (some), Mehrsa Baradaran, Michelle Alexander, Heather McGhee.

2. Cultural / behavioral / family-structure accounts. Disparities reflect, in part, cultural and behavioral patterns that emerged historically but now persist somewhat independently of current discrimination. These accounts emphasize family structure, neighborhood norms, schooling expectations, and decisions that interact with structural conditions but cannot be reduced to them. Authors: Glenn Loury (in his later work), the "acting white" hypothesis literature (Roland Fryer is associated with this work, though his findings are nuanced), some of Thomas Sowell's writings.

3. Mixed / interactionist accounts. Most contemporary scholarship is some form of mixed account. The dispute is over the relative weights, the directions of causation, and the policy implications. Authors: Raj Chetty's Opportunity Insights work (ongoing), William Julius Wilson (canonical), Patrick Sharkey.

The honest summary: disparities are real, the causal mechanisms are multiple and interact, the relative weights are contested at the level of evidence, and the policy implications differ depending on which causal story you weight more heavily. A textbook that presents only one story is doing political advocacy, not political science. The chapter presents the data and lays out the contested explanations. Roland Fryer's empirical work (some of which has produced findings unwelcome to both political camps) is a particularly useful entry point — see Further Reading.

6.9 Sex and gender

6.9.1 From Reed to VMI

Until 1971, the Supreme Court applied only rational-basis review to sex classifications, and almost every law treating men and women differently was upheld — including, notoriously, Bradwell v. Illinois (1873), in which the Court allowed Illinois to bar women from the practice of law. Goesaert v. Cleary (1948) upheld a Michigan law forbidding women from working as bartenders unless they were the wife or daughter of the male owner.

Reed v. Reed (1971) — A unanimous Court struck down an Idaho statute preferring men over women as administrators of estates, the first time the Court invalidated a sex-based law under the Equal Protection Clause. The opinion did not specify a tier of scrutiny.

Frontiero v. Richardson (1973) — A 4-justice plurality (Brennan) argued for strict scrutiny of sex classifications. Two other justices concurred but declined to commit to a tier. Ruth Bader Ginsburg argued the case for the appellant; she had founded the ACLU's Women's Rights Project the year before.

Craig v. Boren (1976) — The Court formally adopted intermediate scrutiny for sex classifications, striking down an Oklahoma law that allowed women to buy 3.2% beer at age 18 but required men to wait until 21.

United States v. Virginia (1996) — Justice Ginsburg's opinion struck down VMI's male-only admissions policy. The opinion required "exceedingly persuasive justification" for any sex-based classification — a phrase that has been read as either intermediate scrutiny on steroids or strict scrutiny in disguise. The doctrinal point is that intermediate scrutiny, as applied by Ginsburg's court, is now nearly as protective as strict scrutiny.

The Equal Rights Amendment, proposed by Congress in 1972, would have explicitly required strict scrutiny of sex classifications. It fell three states short of ratification by the 1982 deadline (Chapter 3 covers the ERA story in detail). Whether the ERA is currently the law remains contested — Virginia ratified in 2020, after the deadline; the National Archives has not certified ratification; litigation continues.

6.9.2 Title IX

Title IX of the Education Amendments of 1972 is one sentence: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." It applies to nearly every American educational institution, public or private, that accepts federal funds.

Title IX has been the legal foundation of women's access to athletics — high-school participation rates went from approximately 7 percent of female students in 1972 to more than 40 percent by 2010 — and to graduate and professional schools (women now earn the majority of college degrees, master's degrees, and law and medical degrees in the United States, a complete reversal from 1972).

Title IX has also been the vehicle through which the federal government has regulated sexual harassment and assault on campus (since Davis v. Monroe County (1999) and the 2011 "Dear Colleague" letter from the Obama administration's Office for Civil Rights). The 2011 guidance required schools to use a preponderance-of-the-evidence standard, lowered some procedural protections for accused students, and expanded the definition of harassment. The Trump administration's 2020 Title IX rule (Secretary Betsy DeVos) restored cross-examination rights and narrowed the definition. The Biden administration's 2024 rule expanded protections again, including extending Title IX to sexual orientation and gender identity. The Trump administration in 2025 announced rule-making to revise the 2024 rule. Title IX procedures are now a partisan football, with each administration substantially rewriting the rules.

6.9.3 Gender identity: Bostock and the post-2020 divergence

Bostock v. Clayton County, 590 U.S. 644 (2020) — Justice Gorsuch wrote for a 6-3 majority holding that Title VII's prohibition of "sex" discrimination in employment includes discrimination on the basis of sexual orientation and gender identity. The reasoning was textualist: an employer who fires a man for being attracted to men, but would not fire a woman for being attracted to men, has discriminated based on sex (the male employee's sex). Similarly for transgender employees.

Bostock was a doctrinal earthquake. It was decided by a textualist conservative justice (Gorsuch) using the originalist methodology favored by the conservative legal movement, applied to produce a result favored by the progressive movement. The opinion explicitly limited itself to Title VII employment context and explicitly did not decide whether the same reasoning applies to Title IX, religious liberty exemptions, locker-room and bathroom policies, athletic eligibility, or medical-care regulation.

Since 2020, those questions have produced rapidly diverging law:

• Title IX athletics. The Biden administration's 2024 Title IX rule extended protection to gender identity but did not address athletic-eligibility specifically; a separate proposed athletics rule was withdrawn. As of 2026, the question of whether transgender women may compete in women's sports has split federal courts, state legislatures, and athletic governing bodies. The NCAA changed its policy in 2024 to align with international federations sport-by-sport; the new Trump administration in 2025 issued an executive order restricting federal-funded programs from allowing biological males in women's sports; the resulting litigation is ongoing.
• Medical care for minors. As of 2026, more than 25 states have restricted or banned puberty-blocking medication, cross-sex hormones, or surgical interventions for minors with gender dysphoria. The Supreme Court's United States v. Skrmetti (2024) upheld Tennessee's restrictions under rational-basis review, holding that the law classified by age and medical procedure rather than by sex or transgender status.
• Religious-conscience exemptions. Several states and the federal government have wrestled with whether religious institutions, individual professionals, or employers must comply with gender-identity requirements when those requirements conflict with their religious beliefs. The Supreme Court has addressed pieces of this in cases like Bostock, 303 Creative, and Fulton v. City of Philadelphia (2021).

Steel-manning across the spectrum on gender identity. This is among the most politically charged civil-rights questions of the 2020s. A serious civics text owes the strongest version of each side.

The progressive case: Transgender people exist, are a small but real population (roughly 1.6 million Americans by Williams Institute estimates as of 2022), and have historically faced extraordinary discrimination, violence, and exclusion. Civil-rights protections that exclude them leave a vulnerable population legally exposed. Medical organizations including the American Medical Association and the American Academy of Pediatrics have endorsed gender-affirming care for adolescents under appropriate clinical protocols. Bostock's textualist reasoning, applied consistently, extends to Title IX and to the broader civil-rights statutes.

The conservative case: Sex is a biological category with real, durable physical correlates (athletic performance among them) that do not change with self-identification. Civil-rights statutes were enacted with a particular meaning of "sex" in mind, and changing that meaning is the kind of major-questions decision the legislature should make, not the courts or the executive branch. The medical evidence for adolescent gender-affirming care is contested; European countries that pioneered the protocols (Sweden, Finland, the United Kingdom's Cass Review of 2024) have substantially restricted them based on subsequent evidence. Religious institutions and individuals should not be compelled to adopt practices that conflict with their religious beliefs.

The empirical and medical questions involved are genuinely contested. The Cass Review (2024), commissioned by the British National Health Service and conducted by Dr. Hilary Cass, found that the evidence base for medical interventions in adolescents was thinner than its proponents had claimed and that several European countries' decisions to restrict such interventions reflected the state of the evidence. The Endocrine Society and major American medical associations disagreed with parts of Cass's analysis. As of 2026, the medical consensus is in flux.

The chapter's posture: present the law clearly, present the strongest version of each side's position, present what is empirically contested as contested, and let the reader evaluate.

6.10 Sexual orientation

The doctrinal trajectory on sexual orientation is one of the fastest in American constitutional history.

Bowers v. Hardwick (1986) — Justice White's 5-4 opinion upheld Georgia's sodomy law, characterizing the question as whether "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."

Romer v. Evans (1996) — Justice Kennedy's 6-3 opinion struck down a Colorado constitutional amendment that prohibited any state or local protection for gay and lesbian citizens, on the ground that the amendment singled out a class for disfavor without legitimate justification.

Lawrence v. Texas (2003) — Justice Kennedy's 6-3 opinion overruled Bowers and struck down Texas's sodomy law on substantive due-process grounds. Justice Scalia's dissent warned that Lawrence's logic could not be confined to private adult conduct; it would, he argued, ultimately require the recognition of same-sex marriage. He was right.

United States v. Windsor (2013) — Justice Kennedy's 5-4 opinion struck down Section 3 of the Defense of Marriage Act (which defined marriage federally as between a man and a woman) as a denial of equal protection.

Obergefell v. Hodges (2015) — Justice Kennedy's 5-4 opinion held that the Fourteenth Amendment requires states to license and recognize marriages between people of the same sex. The opinion's reasoning blended substantive due process and equal protection. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented; Roberts read his dissent from the bench, arguing that the question was for democratic decision rather than judicial mandate.

303 Creative LLC v. Elenis (2023) — Justice Gorsuch's 6-3 opinion held that Colorado's public-accommodations law could not be applied to require a website designer (Lorie Smith) to create wedding websites celebrating same-sex marriages. The Court reasoned that the application would compel speech in violation of the First Amendment. The case continues a tension running through Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018, decided on narrower religious-accommodation grounds) and Fulton v. City of Philadelphia (2021): when public-accommodations laws meet First Amendment and Religious Freedom Restoration Act claims, who wins?

The law on sexual orientation as of 2026: marriage is constitutionally protected; employment is protected by Bostock under Title VII; public accommodations protections vary by state, with significant First Amendment carve-outs for "expressive" services. The terrain remains active.

6.11 Disability

Disability is the civil-rights category most often left out of standard civil-rights treatments and the one that affects the most Americans (CDC: approximately 27 percent of adult Americans report a disability).

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in any program receiving federal funds. It was the first federal disability-rights statute and the result of a sustained activist campaign — most famously the 504 sit-in in San Francisco in April 1977, in which disabled activists occupied the federal building for 25 days demanding the issuance of regulations. Judy Heumann, who would later serve in the Clinton and Obama administrations, was a key leader.

The Americans with Disabilities Act (ADA), 1990 — signed by President George H. W. Bush, who said at the signing ceremony: "Let the shameful wall of exclusion finally come tumbling down." The ADA has five titles: - Title I: Employment (employers of 15 or more must provide reasonable accommodations) - Title II: State and local government services - Title III: Public accommodations (private businesses serving the public) - Title IV: Telecommunications - Title V: Miscellaneous, including anti-retaliation

The ADA was extraordinary in its bipartisan support — it passed the Senate 91-6 and the House 377-28. Disability rights, unusually for an American civil-rights category, did not become a partisan issue.

Olmstead v. L.C., 527 U.S. 581 (1999) — Justice Ginsburg's opinion held that unjustified institutional segregation of persons with disabilities violates Title II of the ADA. The "integration mandate" requires states to administer services in the most integrated setting appropriate. Olmstead drove the long deinstitutionalization of state psychiatric and developmental-disability facilities, with mixed results — many former institutional residents have moved to community settings; many others have ended up homeless or in jail because community resources were never adequately funded.

The ADA Amendments Act of 2008 broadened the definition of disability after a series of restrictive Supreme Court decisions; it passed unanimously in the Senate.

6.12 Race and civil rights beyond the Black-white frame

American civil-rights law and history are sometimes presented as if Black/white were the whole story. They are not. Native, Asian, and Latino Americans have their own civil-rights histories, with their own legal landmarks and ongoing questions.

6.12.1 Native Americans

The tribes are sovereign nations whose relationship to the United States is governed by treaties, the Indian Commerce Clause (Article I, Section 8, Clause 3), Supreme Court doctrine, and federal statutes — a body of law largely separate from the rest of constitutional civil-rights doctrine.

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) — Lone Wolf, a Kiowa leader, sued to enjoin the federal government's allotment of tribal lands in violation of an 1867 treaty. The Court held that Congress has plenary power over Indian affairs and may unilaterally abrogate treaties. Lone Wolf is sometimes called the "Dred Scott of Indian law"; it remains technically good law, though significantly modified by later doctrine recognizing tribal sovereignty.

Indian Citizenship Act of 1924 — granted U.S. citizenship to all Native Americans born in the United States. (Some states continued to deny voting rights to Native Americans for decades after.)

Indian Civil Rights Act of 1968 — extended most Bill of Rights protections to tribal members against tribal governments, while preserving tribal sovereignty in important respects.

McGirt v. Oklahoma, 591 U.S. 894 (2020) — Justice Gorsuch's 5-4 opinion held that the Muscogee (Creek) Nation's reservation in eastern Oklahoma had never been formally disestablished by Congress, meaning that approximately half of Oklahoma — including most of Tulsa — remains "Indian Country" for purposes of federal criminal jurisdiction. McGirt reshaped state-tribal relations across the country; Castro-Huerta (2022) clarified state criminal jurisdiction in Indian Country, partly walking back McGirt's implications.

The federal trust relationship, the Indian Reorganization Act of 1934, the Indian Self-Determination Act of 1975, and the Indian Child Welfare Act of 1978 (upheld in Haaland v. Brackeen, 2023) constitute a body of "civil rights" law specific to tribal members and tribal sovereignty.

6.12.2 Asian Americans

The history of Asian American civil rights includes some of the most explicit racial exclusions in American law.

Chinese Exclusion Act, 1882 — the first federal law to bar immigration on the basis of race or nationality. Repealed in 1943.

Yick Wo v. Hopkins, 118 U.S. 356 (1886) — A unanimous Court struck down San Francisco's facially neutral laundry-licensing ordinance because it had been applied in a racially discriminatory pattern (200 of 200 Chinese applicants denied; nearly all white applicants approved). Yick Wo established the principle that facially neutral laws may violate the Equal Protection Clause through discriminatory administration.

United States v. Wong Kim Ark, 169 U.S. 649 (1898) — Held that Wong Kim Ark, born in San Francisco to Chinese parents, was a U.S. citizen by birth under the Fourteenth Amendment's Citizenship Clause. Wong Kim Ark remains the foundational birthright-citizenship precedent (relevant as of 2026 to ongoing litigation over executive orders attempting to limit birthright citizenship).

Korematsu v. United States, 323 U.S. 214 (1944) — In one of the most criticized decisions in American constitutional history, the Court (6-3) upheld the World War II incarceration of approximately 120,000 Japanese Americans, more than two-thirds of them U.S. citizens, on the basis of their national origin. Justice Murphy's dissent called the order's racial premise "the legalization of racism." Justice Jackson's dissent warned that the Court had created "a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." The Civil Liberties Act of 1988, signed by President Reagan, formally apologized and provided reparations of $20,000 to each surviving incarceree. The Supreme Court formally repudiated Korematsu in Trump v. Hawaii, 585 U.S. 667 (2018) (Roberts: "Korematsu was gravely wrong the day it was decided"), though only in dictum.

Lau v. Nichols, 414 U.S. 563 (1974) — A unanimous Court held that San Francisco's failure to provide English-language instruction to Chinese-American students who did not speak English violated Title VI of the 1964 Civil Rights Act. Lau was the foundation of bilingual-education law.

6.12.3 Latino / Hispanic Americans

Mendez v. Westminster (Ninth Circuit, 1947) — A pre-Brown federal court of appeals decision holding that California's segregation of Mexican-American students into separate "Mexican schools" violated the Equal Protection Clause. The case never reached the Supreme Court because California declined to appeal — but the briefs and arguments developed in Mendez fed directly into the Brown litigation. Thurgood Marshall and Robert Carter wrote amicus briefs.

The Bracero Program (1942–1964) brought approximately 4.6 million Mexican workers to the United States on temporary labor contracts during and after World War II. The program is a complicated chapter — it provided economic opportunity for many Mexican workers and effectively created the modern American agricultural labor force, but it was rife with exploitation and was a precursor to the contemporary undocumented-labor system.

Hernandez v. Texas, 347 U.S. 475 (1954) — Decided two weeks before Brown, a unanimous Court held that the Equal Protection Clause prohibits the systematic exclusion of Mexican Americans from juries. Hernandez was the first Supreme Court case argued by Mexican-American lawyers; the lead counsel was Gus García.

The Voting Rights Act amendments of 1975 extended the Act to "language minorities" and required bilingual ballots and election materials in jurisdictions meeting certain criteria.

Plyler v. Doe, 457 U.S. 202 (1982) — A 5-4 Court (Brennan) held that Texas could not deny free public education to undocumented immigrant children. The decision reads the Equal Protection Clause to protect all persons (the textual word) within the jurisdiction, including those without legal status.

6.13 Religion as a civil-rights category

Religion sits at an unusual intersection. It is a protected classification under Title VII (employment), Title VI (federally funded programs), and the Fair Housing Act. It is also constitutionally protected by the First Amendment's Free Exercise Clause and the Religious Freedom Restoration Act of 1993 (federal level) and state RFRAs (about half the states). Religious-based civil-rights claims include:

• Cases of anti-religious discrimination — denying employment, housing, or services on the basis of religion.
• Cases of religious accommodation — requesting modifications to neutral rules to allow religious practice (sabbatarian work-schedule accommodations, prayer breaks, religious dress).
• Cases of religious-conscience exemption from civil-rights statutes themselves — most prominently when a religious provider declines to provide services that conflict with the provider's religious beliefs (often around LGBTQ+ accommodations).

The first two are relatively uncontroversial as civil-rights categories. The third is the contested terrain.

The progressive case: civil-rights statutes are passed precisely because some forms of discrimination cannot be tolerated even when motivated by sincere religious belief. The history of religious justifications for racial discrimination (segregation defended on religious grounds well into the 1970s) demonstrates that sincere belief is not a sufficient defense against the civil-rights interests of those discriminated against. Religious-conscience exemptions, broadly construed, can swallow civil-rights protections.

The conservative case: free exercise of religion is itself a fundamental constitutional right. The First Amendment's text predates any specific civil-rights statute. Forcing religious actors to participate in activities that violate their beliefs imposes a serious cost on a constitutionally protected interest, and a properly drafted civil-rights statute should accommodate sincere religious dissent rather than override it. The religious-conscience tradition is a civil-rights tradition in itself — see Jefferson's Virginia Statute for Religious Freedom (1786).

The Supreme Court's recent religious-conscience cases — Hobby Lobby (2014), Masterpiece Cakeshop (2018), Fulton (2021), 303 Creative (2023) — have generally moved toward greater accommodation. The legislative response has varied by state.

6.14 Class

The United States has notably weaker class-based legal protections than many comparable democracies. Wealth and income are not "suspect classifications" under the Equal Protection Clause; classifications based on wealth get only rational-basis review (San Antonio Independent School District v. Rodriguez, 1973, holding that disparities in school funding based on local property taxes did not violate equal protection).

Why? Several explanations have been offered:

• The Fourteenth Amendment was drafted with race in mind; class was simply not on the framers' agenda.
• Drawing constitutional lines around class would require courts to second-guess economic policy, which the Court has generally been reluctant to do since the Lochner era.
• The political coalition that produced civil-rights legislation has historically split on class — Black civil-rights leaders have generally been on the left of class issues, but the cross-racial coalition needed to enact civil-rights laws has not always extended to class redistribution.

Whether class should be a suspect classification is contested in academic scholarship (Frank Michelman, Cass Sunstein, and others on the affirmative side; James Pope, Jed Rubenfeld, and others on the skeptical side). It is not part of current doctrine. The chapter flags the question without attempting to resolve it.

6.15 Where the law goes from here

As of 2026, the landscape:

• Race — SFFA has substantially narrowed race-conscious admissions. Whether Griggs-style disparate-impact doctrine survives the next decade is contested. Section 2 of the VRA was preserved in Allen v. Milligan; whether Congress can enact a new preclearance regime remains a political question.
• Sex and gender — Intermediate scrutiny is stable. Title IX scope is in administrative flux. Gender identity is unsettled doctrinally.
• Sexual orientation — Obergefell remains good law; some Justices (Thomas in Dobbs concurrence) have argued for reconsideration. The First Amendment carve-out for expressive services (303 Creative) is settled but its boundaries are not.
• Disability — Stable. The ADA Amendments Act is broadly accepted across the political spectrum.
• Religion — The accommodation-vs-civil-rights tension is the active doctrinal frontier.

6.16 Closing

Civil rights is the area of American law where the gap between aspiration and reality has been longest, most painful, and most consequential. The story of American civil rights is the story of a country that wrote into its founding document a commitment to "We the People" while excluding most of the population from "the People," and that has spent two and a half centuries arguing about who counts and what equality means.

The history is settled. Slavery was wrong. Jim Crow was wrong. The Civil Rights Movement was a great moral achievement. Reasonable people across the political spectrum agree on these.

The contemporary doctrine is contested. What "equal treatment" requires when historical inequalities have produced unequal starting points; whether disparate outcomes are evidence of discrimination, of unequal inputs, of cultural variation, or of all three; whether religious-conscience exemptions are themselves civil-rights protections or undermine them; whether sex and gender-identity claims rest on the same logic — these are open questions at the level of theory and evidence.

Justice Harlan's "color-blind Constitution" can be read as a demand for race-neutral law and a demand for the abolition of caste. Both readings are serious. Both have descended through the civil-rights tradition. Working out which reading our law adopts, in which contexts, will be the project of American constitutional law for at least another generation.

The two-volume case-study reading for this chapter — the Civil Rights Act of 1964 and SFFA v. Harvard / UNC — illustrates the structure of the chapter's argument. One was a great civic achievement of one era; the other is a contested doctrinal moment of another. The principle of "equal treatment" is doing different work in each. Working out what those different jobs are, and how they relate to each other, is the work of every serious citizen.

Continue with the case studies (Civil Rights Act of 1964; SFFA v. Harvard), the exercises, and the further-reading bibliography.