Civil Rights and Affirmative Action

Although the Court’s ruling in Brown called for desegregation with “all deliberate speed,” change came slowly. Implementing integration was one of the most pressing issues before the Burger Court. But once the legal foundations of segregation crumbled, broader questions about racial and gender equality surfaced, raising issues that the Court would grapple with well into the twenty-first century.

School Busing

Conceding that the “all deliberate speed” formula for desegregation had failed, the Court in 1969 declared that dual school systems had to be terminated immediately. The methods adopted to achieve this goal generated heated controversy. Among the most controversial were race-conscious school assignments and busing programs for desegregating formerly segregated school districts. Both were upheld as constitutional for school districts created by de jure segregation. But such extraordinary remedial measures were rejected for de facto segregation resulting from demographic patterns unrelated to official segregation policy.

Affirmative Action

Preferential programs to bring minorities into the mainstream of American life were adopted as a counterpart to the integration of the public school systems. Title VII of the 1964 Civil Rights Act prohibited job discrimination based on race. In a series of cases, the Court interpreted Title VII expansively in order to facilitate the entry of qualified minority employees into the labor force through preferential hiring programs. The Court struck down qualifying tests not deemed fair and relevant to the skills required for the job.

Racial Quotas and the Court

In Regents of the University of California v. Bakke (1978), a sharply divided Court rejected the use of racial quotas by public universities in preferential admissions programs. The majority distinguished between the quotas upheld in desegregation programs, which remedied past wrongs committed by the school districts in question, and quotas used by universities to foster diversity in the student body. Absent a showing that the university had engaged in discriminatory practices in the past, the use of racial quotas during the admissions process violated the constitutional rights of nonminority applicants. On the other hand, the Court upheld a quota program created by Congress for minority employment on the ground that it was “remedial and corrective for past wrongs, and therefore constitutional.” Ultimately, the Court held that all racial preferences and set-asides, whether at the state or federal level, must meet the strict scrutiny standard of being narrowly tailored to serve a compelling governmental interest.

Women’s Rights

The civil rights movement of the 1960s brought women’s rights to the forefront of public debate. The Burger Court issued a number of important decisions striking down barriers to gender equality in employment under Title VII of the 1964 Civil Rights Act, which prohibited gender discrimination as well as racial discrimination. It also struck down discriminatory state and federal laws on the ground that they imposed arbitrary gender classifications in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Gender Classification and Heightened Scrutiny

In Frontiero v. Richardson (1973), the Court came within one vote of subjecting gender discrimination to the same strict scrutiny test that requires the government to prove that the classification at issue serves a compelling governmental interest. Rather than subject gender discrimination to the rational basis test, in Craig v. Boren (1976) the Burger Court introduced a third level of judicial scrutiny to constitutional analysis: heightened (or, intermediate) scrutiny. Under it, the government must prove that the challenged gender classification serves an important governmental interest. The standard has not been consistently applied, and gender classifications in everything from criminal law to military conscription have been upheld.

The Equal Rights Amendment

Besides pressing for change before the Court and in Congress, women’s rights advocates sought a constitutional amendment guaranteeing complete legal equality to women. The proposed Equal Rights Amendment stipulated, “Equality of rights under the law shall not be abridged by the United States or by any State on account of sex.” The amendment authorized Congress to enforce its provisions with appropriate legislation. However, the amendment fell three states short of the three-fourths majority required when the deadline for ratification passed in 1982.