The Fourteenth Amendment to the U.S. Constitution emerged as the result of a congressional debate about how to deal with integrating the southern states into the Union after the Civil War. The amendment was designed to grant slaves citizenship rights and to eliminate the economic and political system that had supported slavery. Further, in addition to ensuring equal protection to all persons, the Fourteenth Amendment guarantees that no person may be deprived of life, liberty, or property without due process of law. In light of the significant impact that the Fourteenth Amendment has had on legal developments in higher education, this entry reviews its key features along with examples of how it has been applied in specific cases.
Efforts to heal the nation began in 1868 when the states ratified the Fourteenth Amendment to the Constitution. Congress had passed the Fourteenth Amendment in 1866, but it did not become the law of the land until it was ratified two years later. In fact, the Fourteenth Amendment was the result of a compromise between radicals and moderates regarding treatment of former Confederates. Previously, Republicans in the 39th Congress formed a Joint Committee of Fifteen to resolve the difficulties associated with former Confederate state congressmen by granting citizenship to all persons born or naturalized in the United States.
The first section of the Fourteenth Amendment has been the focus of a great amount of litigation. According to this section, no state, which the courts have interpreted as including public officials acting on behalf of states, may abridge the privileges and immunities of citizens; deprive any person of life, liberty, or property without due process of law; or deny any person within its jurisdiction their equal protection of the law. The Fourteenth Amendment Due Process and Equal Protection Clauses shield all individuals from unfair and unjust treatment, protection that has been extended to all regardless of race, sex, religion, or age.
Section 2 of the Fourteenth Amendment provides for representation in Congress, changing the three-fifths compromise, wherein five slaves were counted as equal to three free persons in determining a state’s representation in the House of Representatives, into the provision that all persons in a state counted individually for representation except Indians, who were not taxed. Section 3 calls for removing from Congress all of those who fought against the United States in the Civil War. Section 4 validates the debt of the United States, voids all debts incurred to support the rebellion, and expunges all claims for slave compensation. Section 5 grants Congress the authority to pass legislation to enforce the provisions of the Fourteenth Amendment.
The Fourteenth Amendment’s Due Process and Equal Protection Clauses ensure that persons are protected from all forms of discrimination. The Amendment was designed to give civil rights protection to minorities and the voiceless. Early Supreme Court cases after the Fourteenth Amendment was adopted limited the scope of the law, clarifying its provisions.
The Slaughterhouse Cases in 1873 examined a monopoly in Louisiana, wherein the Supreme Court adopted a limited view of the scope of the Fourteenth Amendment with regard to state action. When independent butchers sought protection for their occupation, the Court reiterated the principle that state legislatures have always exercised the power of granting exclusive rights when necessary to protect the public good. While such power is not forbidden by the Thirteenth Amendment in conjunction with the first section of the Fourteenth Amendment, the Court explained that the main purpose of these articles was to protect the due process rights of all individuals. Even so, in the late 1890s, southern and border states implemented Jim Crow laws and Black Codes that led to mandatory segregation of Blacks in all public places and private businesses, including cemeteries and institutions of higher learning.
In Plessy v. Ferguson (1896) the Supreme Court institutionalized a Jim Crow law from Louisiana in maintaining that the notion of “separate but equal” was constitutional. At issue was a law that mandated separation of passengers in public railway cars based on their races. In so doing, the Court upheld established state segregation customs and usage practices, allowing officials to use partitions to keep the races apart when there were not enough railroad cars to separate the races. In the Court’s majority analysis, Justice Henry Brown noted that the Fourteenth Amendment was undoubtedly enacted to enforce absolute equality of the two races before the law. Yet, in the nature of things, he contended that it could not have been intended to abolish all distinctions based on color or to enforce social, as distinct from political, equality or to require a commingling of the two races unsatisfactory to either race.
The sole dissenter, Justice John Harlan, whose position essentially presaged the majority judgment in Brown v. Board of Education, Topeka (1954), noted that the Constitution is color-blind, neither knowing nor tolerating classes among citizens. In the matter of civil rights, he maintained that all citizens are equal before the law. Further, Harlan’s observation that Plessy would, in time, prove only to stimulate brutal and irritating aggressions on the rights of African Americans was borne out, as states and the judiciary relied on it as legal justification for segregating students based on race in education at all levels of schooling. For example, in Berea College v. Kentucky (1908) the Court upheld a criminal conviction against a private college for teaching African Americans and Whites together.
As challenges mounted to Plessy, initially from the world of higher education, the Supreme Court incrementally undercut the basis of “separate but equal.” In the issue in Sweatt v. Painter (1950), a Black student was denied admission to the University of Texas Law School. Because there were no law schools for Blacks, a lower court in Texas ordered officials to create a law school for Blacks. However, the Supreme Court agreed with Sweatt’s position that because the segregated law school was inadequate, officials had to admit him to the University of Texas Law School. In McLaurin v. Oklahoma State Regents for Higher Education (1950), the issue was that a Black graduate student at the University of Oklahoma was allowed to enroll but required to sit in the designated areas for Blacks in all areas of the university. The Court invalidated this treatment as an unconstitutional violation of the Equal Protection Clause.
The seminal case dealing with the application of the Fourteenth Amendment Equal Protection Clause is Brown v. Board of Education, Topeka (Brown I, 1954). In a unanimous decision, the Supreme Court ruled that that because segregation of students solely on the basis of race deprived minority children of equal educational opportunities, the doctrine of “separate but equal” had no place in public education. The Court added that because separate educational facilities are inherently unequal, state officials violated the Fourteenth Amendment equal protection rights of all children who had been subjected to racial segregation in their schooling.
While Brown did not address remedies, in Brown v. Board of Education II (Brown II, 1955), the Supreme Court directed officials to integrate the schools “with all deliberate speed.” Yet state and local officials made persistent efforts to delay or circumvent the Court’s mandate. Subsequently, the Civil Rights Act of 1964, which became law during the presidency of Lyndon Baines Johnson, reinforced the importance of safeguarding the due process and equal protection rights of all. More specifically, Title VI of the act prohibited discrimination on the basis of race, color, or national origin in any program receiving federal aid.
The Supreme Court narrowed the scope of affirmative action over time. Regents of the University of California v. Bakke (1978) was the Court’s first case dealing with the merits of affirmative action as applied to admissions in higher education. In a plurality, meaning that the Court was unable to reach an opinion on which five justices agreed, it rejected the use of quotas but was willing to treat race as legitimate factor in consideration for admission to a public university’s medical school. Still, because the judgment left key questions unanswered, additional litigation ensued.
Adarand Constructors v. Pena (1995) involved affirmative action remedies with regard to a publicly funded construction project. The Supreme Court ruled that because strict scrutiny and narrow tailoring were the appropriate criteria when dealing with affirmative action, the case had to be remanded for a consideration of whether the program met these standards in its attempt to correct historical injustices.
The Supreme Court’s two most recent cases involving affirmative action in higher education arose at the University of Michigan, and the Court applied strict scrutiny (see definition of this term below) in both cases. In Gratz v. Bollinger (2003) the court ruled that the admissions policy at the University of Michigan School of Law, which was designed to encourage racial diversity in the student body, was constitutional. In reaching its judgment, the Court was satisfied that the law school’s interest in having a diverse student body was a compelling governmental interest that was sufficiently narrowly tailored to achieve the goal of student body diversity, because all applicants were subjected to highly individualized holistic reviews.
On the other had, in Grutter v. Bollinger (2003) the Supreme Court invalidated an undergraduate admissions policy at the University of Michigan that granted preferences to members of identified minority groups. While conceding that having a diverse student body was a compelling governmental interest, the Court struck down the program as unconstitutional in noting that admissions officials could not use student numerical quota systems or grant points to individual applicants based on their race. Instead, the Court explained that officials had to accept applicants in light of their individual qualifications.
Levels of Scrutiny
Equal protection analysis recognizes that no governmental action is neutral and that all acts of government impact the rights of persons. In its contemporary equal protection analysis, the Supreme Court has identified three levels of scrutiny to which governmental actions, through their officials, can be subjected. To this end, three degrees of scrutiny emerged in reviewing challenges to these actions. The highest level, strict scrutiny, applies when the government or its officials treat individuals differently due to their race, national origin, religion, or citizenship status. When government action disadvantages members of these “suspect” classes, such actions must be shown to serve a compelling government interest. Government actions that impact fundamental rights such as those identified in the Constitution also trigger strict scrutiny. When the courts apply strict scrutiny, asking whether actions are narrowly tailored to further compelling governmental interests, most governmental actions are struck down as unconstitutional.
Courts apply intermediate scrutiny when governmental actions in educational settings treat individuals differently typically due to their gender or legitimacy. Although not as stringent as strict scrutiny, this test upholds governmental actions if they are substantially related to achieving important governmental interests.
The third level, rational basis scrutiny, is applied to day-to-day governmental actions, such as those dealing with health and safety. These are ordinarily upheld as constitutional as long as officials can demonstrate that their actions are rationally related to legitimate governmental purposes.
In sum, in light of the history of slavery, it was some time before the implementation of due process and equal protection actually occurred, because officials in states with histories of segregation used a variety of tactics, such as Jim Crow laws, to forestall such action. Yet, over the years, the Fourteenth Amendment has been the source of expanded civil rights in gender, racial, ethnic, civil rights, age, and religion conflicts.
The authors of the Fourteenth Amendment worked through conflicting views to achieve a workable compromise to expanded rights for future generations. Civil rights laws will continue to expand equal access and opportunity for the nation’s growing diverse population. At the same time, the judiciary, in its deliberations, will continue to clarify and expand Fourteenth Amendment due process and equal protection rights for a diverse multicultural, multiracial, multiethnic population in American colleges and universities.
James J. Van Patten
See also civil rights movement
- Kaplan, W. A., & Lee, B. A. (2006). The law of higher education (4th ed.). San Francisco: Jossey-Bass.
- Knudson, S., & Sorenson, A. (1984). The guide to American law (Vol. 4). New York: West.
- Adarand Constructors v. Pena, 515 U.S. 200 (1995).
- Berea College v. Kentucky, 211 U.S. 45 (1908).
- Brown v. Board of Education, Topeka, 347 U.S. 483 (1954).
- Brown v. Board of Education II, 349 U.S. 294 (1955).
- Civil Rights Act of 1964, Pub. L. No. 88-352.
- Gratz v. Bollinger, 539 U.S. 244 (2003).
- Grutter v. Bollinger, 539 U.S. 306 (2003).
- McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950).
- Plessy v. Ferguson, 163 U.S. 537 (1896).
- Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
- Slaughterhouse Cases, 83 U.S. 36 (1873).
- Sweatt v. Painter, 339 U.S. 629 (1950).
- Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.