the class is not suspect and subj to strict scrutiny unless the ct finds there is intent to discrimiate
b. facially netural but administered discriminator
c. discriminatory as applied (not disproportionate impact, but something like a poll tax)
3. Plessy: sep but equal is okay
4. Swett v. Painter: UT law school case before Brown found that it wasn’t really equal
5. Brown: sep but equal is inherently unequal
6. Brown II: desegregate with “all deliberate speed”
7. dejure discrimination: purpose to discriminate <= EP will remedy this
8. de facto discrimination: discriminatory effect only (white flight) <= EP doesn’t care about this!
a. desegregate every facet of school operations (student attendance, faculty, staff, transportation, extracirrics, facilities)
b. unitary status once you have shown/proven you have desegregated, you will be released from court supervision & if segregation comes back per de facto discrimination, that’s okay & we won’t touch it
c. test: has school reached unitary status? Dowell
i. has bd. of education complied in GF w/ desegregation decrees?
ii. have vestiges of past discrim been remedies to effect practicable?
iii. look at Green facets of school operations
iv. policy: there is a judicial desire to return the school to the school boards as expeditiously as possible
10. rules of school desegregation:
a. cts. will only regulate if there is de jure segregation
b. racial quotas are a starting point
c. single race schools may be okay (if de facto)
d. rezoning is okay
e. busing is not permitted if the time/distance is so great that it impairs the educational process
11. affirmative action
a. Bakke: Powell
i. race cannot be determinative; no quotas
ii. but race can be a plus factor
iii. (Brennan dissent): as long as it is to remedy effect of past discrimination
b. Hopwood 5th Circuit only!
i. Bakke not controlling b/c no majority opinion
ii. UT didn’t show any past discrim at UT law school (only in Texas)
iii. can use other factors like economic b/g, etc, but not race
c. note: title 6 applies to Baylor, but not 14th am EP
d. Adarand (gov’t contracts to GC’s with disadvantages subs); held C’al b/c remedying effects of past discrim & is narrowly tailored.
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