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blacks elected to political ofﬁ ce than before or

since.

Despite these steps toward racial integration

during the mid- to late 1800s, racial desegrega-

tion took a step backward with the assistance of

the U.S. Supreme Court in 1896, with its decision

in P

LESSY V. FERGUSON, 163 U.S. 537. The Court’s

decision, which was based on an earlier state

supreme court ruling (Roberts v. City of Boston,

59 Mass. 198–210 [5 Cush.] [1850]), found segre-

gated schools were permissible under the state’s

constitution. With Plessy, the U.S. Supreme Court

ruled that the Fourteenth Amendment did not

require racially integrated facilities as long as the

facilities were equal, justifying the creation of “Jim

Crow” laws and providing legal and constitutional

support for the “separate but equal” concept. The

Plessy ruling had a lasting impact on racial rela-

tions in the United States until the 1950s and the

U.S. Supreme Court’s consideration of Brown v.

Board of Education of Topeka.

Brown was a landmark case, as the U.S.

Supreme Court in a unanimous decision, over-

turned its previous decision from Plessy, stat-

ing that the notion of separate but equal was

inadequate, as it was found that racially sepa-

rate facilities were “inherently unequal,” even

if the facilities of all schools were equally good.

Although the Brown case declared that separate

schools along racial lines were unequal, the Court

found it difﬁ cult to decide how best to implement

its racial desegregation strategy. While the inten-

tion was there, the actual desegregating of schools

across the country was slow, moving the Supreme

Court in its Brown v. Board of Education II, 349

U.S. 294 (1955), ruling to order the lower federal

courts to require the desegregation of schools

with “all deliberate speed.” In fact, it was follow-

ing Brown II, in 1957, that the Supreme Court’s

desegregation strategy would be enforced by Pres-

ident Eisenhower, who sent troops to Little Rock,

Arkansas, when the governor, having mobilized

the Arkansas National Guard, resisted integration

efforts, refusing to allow black students to attend

a previously all-white high school. A year later,

with states still resisting desegregation orders, the

Court ruled that fear of reprisal and social unrest

were no excuse for state governments’ lack of com-

pliance with the Brown ruling (C

OOPER V. AARON,

368 U.S. 1 [1958]).

Nearly two decades following the 1954 Brown

decision, the Court still found many obstacles

toward desegregation efforts and the means to

enforce them. Other significant desegregation

incidents the Court dealt with following Cooper

included its order to Prince Edward County, Vir-

ginia, to reopen its schools on a desegregated basis

in 1964, after the county had closed the public

schools rather than integrate them in 1959, leav-

ing white students to attend private academies and

black students unable to attend school until the

Ford Foundation funded the creation of private

black schools in 1963.

It was not until the adoption of the Civil

Rights Act of 1964 that the federal govern-

ment gained authority to ﬁ le school desegregation

cases and prohibit discrimination in any program,

activity, or school that received federal funding.

Following the passage of the Civil Rights Act,

the Court established “rules” for judging whether

school systems were complying with the desegre-

gation mandate in its ruling of G

REEN V. COUNTY

CHOOL BOARD OF NEW KENT COUNTY, VIRGINIA, 391

U.S. 430 (1968). The Green ruling outlines spe-

ciﬁ c factors for consideration in gauging compli-

ance. These factors include facilities, staff, faculty,

extracurricular activities, and transportation. Fol-

lowing this ruling, the Court approved the use of

magnet schools, busing, and other “tools” as neces-

sary remedies for overcoming the challenge of res-

idential segregation that impacts and perpetuates

school segregation (S

WANN V. CHARLOTTE-MECK-

LENBERG BOARD OF EDUCATION, 402 U.S. 1 [1971]).

It was not until 1973 that the Supreme Court

went further, declaring that while state-sponsored

racially segregated schools were unconstitutional,

segregation that was a result of private choices was

not unconstitutional.

The issue of school desegregation and the

means of achieving this end continued to play a

large role in American society. In 1986, however,

a federal court, for the ﬁ rst time, allowed a school

district to be released from desegregation con-

trols after meeting the Green factors and allowed

192 desegregation

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the school to return to local control (Riddick v.

School Board of the City of Norfolk, Virginia,

784 F 2d 521 [4th Circuit] [1986]). Following this

precedent, the Supreme Court made it easier for

formerly segregated schools to fulﬁ ll desegrega-

tion orders, thereby releasing them from further

constraints (Board of Education of Oklahoma

City v. Dowell, 498 U.S. 237 [1991]). This ruling

illustrated the Supreme Court’s changing per-

spective of desegregation, that the Court felt its

desegregation strategies of the 1950s were never

meant to be permanent but were intended as rem-

edies that were “limited in time and intent,” and

that school systems would eventually be returned

to local control (M

ISSOURI V. JENKINS, 515 U.S. 70

[1995]).

One would assume that more than 50 years

since the landmark Brown case was decided by

the Supreme Court in 1954, the desegregation

rulings and mandates would have proven success-

ful in overcoming segregation in schools. How-

ever, despite the progress and forced remedies

for countering racial segregation in U.S. schools,

a recent study by Harvard’s Civil Rights Project

has found that schools were in fact more segre-

gated in 2000 than they were in 1970 when busing

and other methods were used for desegregating

schools.

For more information: Campbell, Dun-

can. “U.S. Schools Returning to Segregation.”

Guardian (August 10, 2002). Available online.

URL: http://www.guardian.co.uk/bush/story/-

0,7369,772315,00.html. Accessed June 2, 2008;

D’Amato, Anthony A., Rosemary Metrailer, and

Stephen L. Wasby. Desegregation from Brown

to Alexander: An Exploration of Supreme Court

Strategies. Carbondale: Southern Illinois Univer-

sity Press, 1977; Doyle, Mary C. “From Deseg-

regation to Resegregation: Public Schools in

Norfolk, Virginia, 1954–2002.” Journal of Afri-

can American History 90 (Winter/Spring 2005):

64–83; Raffel, Jeffrey A. Historical Dictionary

of School Segregation and Desegregation: The

American Experience. Westport, Conn.: Green-

wood Press, 1998; Wolters, Raymond. “From

Brown to Green and Back: The Changing Mean-

ing of Desegregation,” Journal of Southern His-

tory 70 (May 2004): 317.

—Dale Mineshima-Lowe

DeShaney v. Winnebago County

Department of Social Services

489 U.S.

189

(1989)

In DeShaney v. Winnebago County Department

of Social Services, the Supreme Court ruled that

the Fourteenth Amendment does not give the

government a speciﬁ c duty to protect an individ-

ual from violence committed by another private

person.

This case involved a boy, Joshua DeShaney,

who suffered several beatings by his father, Randy

DeShaney. These beatings took place from 1982

to 1984. In 1982, Randy DeShaney’s second wife

complained to police that the boy’s father had hit

the boy in such a manner as to cause marks con-

sistent with child abuse. The Winnebago County

Department of Social Services (DSS) conducted

an investigation, yet the father denied the charges,

and DSS did not pursue the matter further.

During the following year, Joshua was admitted

to the hospital with marks and bruises indicative

of child abuse. The attending physician notiﬁ ed

DSS that Joshua was a possible victim of child

abuse. Winnebago County convened a team con-

sisting of a physician, psychologists, a police detec-

tive, the county’s lawyer, some DSS caseworkers,

and hospital staff. This team decided that there

was not enough evidence to support an accusation

of child abuse; however, the team recommended

the father be provided with counseling services,

the boy be enrolled in a preschool program, and

that the father’s girlfriend move out of the home.

The boy was returned to the custody of his father.

A month later, the hospital contacted DSS and

reported that Joshua had returned to the hospi-

tal for treatment of suspicious injuries. The case-

worker who was assigned to the case did not see

any basis for action on the part of DSS. Eventu-

ally, in 1984, Joshua was beaten so severely that

he suffered brain damage and faced spending his

remaining years in an institution for the mentally

challenged.

DeShaney v. Winnebago County Department of Social Services 193

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Joshua and his mother brought action against

the respondents, Winnebago DSS. The complaint

alleged that the DSS had deprived the petitioner of

his liberty without due process of law, a violation

of his rights under the Fourteenth Amendment.

In particular, the DSS had failed to intervene on

Joshua’s behalf in order to protect him from abuse

by his father and that they knew or should have

known that the abuse was taking place and that

the DSS should have taken steps to provide for

Joshua’s safety.

The lower courts found in favor of DSS. The case

moved to the Supreme Court, and in a 6-3 deci-

sion, Chief Justice William Hubbs Rehnquist

delivered the opinion, joined by Byron White,

John Paul Stevens, Sandra Day O’Connor,

Antonin Gregory Scalia, and Anthony M.

Kennedy. The Court found that

nothing in the language of the Due Process

Clause itself requires the State to protect life,

liberty, or property of its citizens against inva-

sion by private actors. The Clause is phrased as

a limitation on the State’s power to act, not as a

guarantee of certain minimal levels of safety and

security. It forbids the State itself to deprive indi-

viduals of life, liberty, or property without “due

process of law,” but its language cannot fairly be

extended to impose afﬁ rmative obligation to the

State to ensure that those interests do not come

to harm through other means.

A state does not incur a duty to protect individ-

uals from violence perpetrated by another private

person, especially if a state did not create those

problems.

In Castle Rock v. Gonzales, 545 U.S. 748

(2005), the Supreme Court ruled that a town

and its police could not be sued for the failure

to enforce a restraining order that resulted in

the murder of a woman. This decision along with

DeShaney v. Winnebago demonstrate that absent

a speciﬁ c duty to victims, along with some other

factors that are under the control of the govern-

ment, it is hard to demonstrate that public ofﬁ -

cials have a speciﬁ c duty to protect individuals

from harm.

For more information: Brom, Marne E. “Civil

Rights and Civil Rights Acts: An Affirmative

Duty to Protect Individuals Who Are Not in the

State’s Custody from Harm by Private Actors

Is Not Imposed on the State by the Fourteenth

Amendment’s Due Process Clause (Case Note).”

Drake Law Review 39, no. 4 (Summer 1990):

911–919; Patterson, J. Randall. “Intimate Injuries:

Are There Constitutional Law Protections from

Family Violence.” Campbell Law Review 15, no.

1 (Winter 1992): 1–27.

—Dan Krejci

Dickerson v. United States 530 U.S. 428

(2000)

In Dickerson v. United States, the Supreme Court

held by a 7-2 vote that Miranda rights were a con-

stitutional requirement and therefore could not be

superseded by a law passed by Congress. These

speciﬁ c rights were announced in M

IRANDA V. ARI-

ZONA, 384 U.S. 436 (1966), in which the Supreme

Court held that a defendant’s statements made

while in custodial interrogation could not be used

against him or her unless the defendant had been

told 1) he/she had the right to remain silent,

2) anything he/she said could be used against him/

her, 3) he/she had the right to an attorney, and 4)

if he/she could not afford an attorney, one would

be provided.

As a reaction to the ruling in Miranda v. Ari-

zona, which required police to read defendants

their rights when taken into custodial interroga-

tion, Congress enacted 18 U.S.C. Section 3501,

a law allowing admission as evidence statements

made by the accused as long as the statements

were made voluntarily. According to this law,

absence of a Miranda right did not by necessity

make such a statement inadmissible.

This law was challenged in Dickerson. Charles

Dickerson was charged with bank robbery and

other crimes. During interrogation, he made a

statement to the FBI he later wished to suppress,

claiming he had not received his Miranda warn-

ings. The trial court granted his motion. The court

of appeals reversed, saying Miranda did not enun-

ciate a constitutional rule, so the law enacted by

194 Dickerson v. United States

xviii+446_EofUSConsti-v1.indd 194 3/12/09 3:04:38 PM

Congress controlled. Since his statement was vol-

untary, it was admissible. Thus, the issue became

whether the rule from Miranda was constitutional

in nature or whether it was the Court using its dis-

cretion to regulate the admissibility of evidence. If

it were the latter, it could be superseded by such

an act of Congress.

The Supreme Court agreed with Dickerson.

Chief Justice William Hubbs Rehnquist’s

majority opinion stated that despite prior cases

referring to the Miranda warnings as “prophy-

lactic” and “not themselves rights protected by

the Constitution” and despite previously carving

several exceptions to the requirement, Miranda

was a constitutional decision. First, the language

in Miranda and in its progeny often spoke of the

warnings being constitutionally required. The

exceptions, he argued, “illustrate the principle—

not that Miranda is not a constitutional rule—but

that no constitutional rule is immutable.” More

important, in Miranda and two of its companion

cases, the Court applied the requirements to state

court decisions. Only if it were a constitutional

decision would the Court have had the authority

to overrule such state court decisions.

To uphold Section 3501, the opinion states,

the Court would have to overrule Miranda, and

it declined to do so. First, the voluntariness test

used before Miranda and required by Section

3501 was more difficult for law-enforcement

ofﬁ cers to conform to than the Miranda require-

ment. More important, overruling Miranda

would disregard the principles of stare decisis.

Stare decisis is the generally accepted rule that

courts should decide similar cases in the same

way they ruled in previous decisions. “Miranda

has become embedded in routine police practice

to the point where the warnings have become

part of our national culture,” the opinion states.

It further supported this argument by quoting

a preexisting dissent given by Justice Antonin

Gregory Scalia, in which he said: “wide accep-

tance in the legal culture [is] adequate reason

not to overrule [it].” Therefore, the Court stated,

though they would not necessarily rule the same

way on Miranda if it were before the Court now,

they refused to overrule it.

Justice Scalia found his own words inapplicable

to the present case. He began his dissent by not-

ing the Court may overturn acts of Congress only

when the law violates the Constitution. Miranda,

he says, “however implausibly,” was decided on

such constitutional grounds; however, he noted,

the Court failed to make such a direct statement

that it was a constitutional decision, one “surely

simple enough to make,” because a majority of

the present Court (the dissenters Justices Clar-

ence Thomas and Scalia in this case and three

of the justices in the current majority in previous

cases) had written or joined opinions stating viola-

tions of Miranda were not perforce constitutional

violations. In upholding the rules announced in

Miranda, the Court assumed a new, “immense

and frightening antidemocratic power.” Hereto-

fore, the Supreme Court could only overrule a

statute when it violated the Constitution. Now,

it can also do so when it violates an “announced

Constitutional rule.”

Justice Scalia criticized the rationale in

Miranda, stating the idea that a violation of

Miranda rules is necessarily a violation of the

Constitution has no basis in “history, precedent,

or common sense.” He also criticized the Dicker-

son opinion and its application of Miranda, par-

ticularly its reliance on stare decisis, saying it was

inapposite since it is no longer reconcilable with

existing judicial doctrine.

His solution was to overrule Miranda and let

the act of Congress control. Doing so, according

to Scalia, would allow “the people the wonderful

reality that they govern themselves—which means

that ‘the powers not delegated to the United States

by the Constitution’ that the people adopted, ‘nor

prohibited . . . to the States’ by that Constitution,

‘are reserved to the States respectively, or to the

people.’ ”

Miranda rights, at least at present, are not

reserved to the people. However plausible or

implausible the rationale may be, they are con-

stitutional in nature since the Supreme Court

says they are. There are exceptions, such as

statements made to routine booking questions

and statements made when there are concerns

regarding public safety, but as demonstrated by

Dickerson v. United States 195

xviii+446_EofUSConsti-v1.indd 195 3/12/09 3:04:38 PM

Dickerson, substitutes for the rules will not be

recognized.

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Proce-

dure. 4th ed. New York: West Publishing, 2004;

Weaver, Russell L., Leslie W. Abramson, John M.

Burkoff, and Catherine Hancock. Principles of

Criminal Procedure. New York: West Publishing,

2004.

—Rob DeWees

diplomatic immunity

Diplomatic immunity is a principle of international

law that provides foreign diplomats with protection

from legal action in the host country. The Vienna

Convention on Diplomatic Relations of 1961 and

the Vienna Convention on Consular Relations of

1963 codiﬁ ed most modern diplomatic and con-

sular practices, including diplomatic immunity.

More than 160 nations are parties to these trea-

ties. The Vienna Convention provides for speciﬁ c

measures that can be taken by both the home and

host countries in cases of misuse or abuse of diplo-

matic privileges and immunities. Diplomatic

immunity, while not a constitutional issue, is none-

theless an important concept that affects the types

of cases the federal courts may hear.

Diplomatic privileges and immunities have

served as efficient tools facilitating relations

between states. No member state of the United

Nations has so far proposed rescinding the con-

vention or rewriting its provisions. The conven-

tions provide immunity to persons according to

their rank in a diplomatic mission or consular

post and according to the need for immunity in

performing their duties. For example, diplomatic

agents and members of their immediate families

are immune from all criminal prosecution and

most civil lawsuits.

Administrative and technical staff members of

embassies have a lower level of immunity. Consular

ofﬁ cers serving in consulates have an even lower

level of immunity. Members of an embassy’s ser-

vice staff and consular employees are immune only

for acts performed as part of their ofﬁ cial duties.

Modern diplomatic immunity evolved parallel

to the development of modern diplomacy. In the

17th century, European diplomats realized that

protection from prosecution was essential to doing

their jobs, and a set of rules evolved guaranteeing

the rights of diplomats. In the 19th century, the

Congress of Vienna system reasserted the rights

of diplomats and has been ratiﬁ ed by almost every

country. In modern times, diplomatic immunity

continues to provide a means to safeguard dip-

lomatic personnel from any animosity that might

arise between nations. In the United States, if

a person with immunity is alleged to have com-

mitted a crime or is faced with civil lawsuit, the

Department of State alerts the government for

which the diplomat works. The Department of

State also asks the home country to waive immu-

nity of the alleged offender so that the complaint

can be moved to the courts. If immunity is not

waived, prosecution cannot be undertaken. How-

ever, the U.S. Department of State can ask the

diplomat to cease his or her duties in the United

States (persona non grata) and leave the nation;

the diplomat’s visas may be canceled, and the dip-

lomat and his or her family may be barred from

returning to the United States. Crimes commit-

ted by members of a diplomat’s family can also

result in this process. On some occasions, diplo-

matic immunity leads to some unfortunate results:

Protected diplomats have violated laws (includ-

ing those which would be violations at home as

well) of the host country. Although the diplomat’s

nation is responsible for carrying out eventual

criminal and civil procedures against him or her,

this is often neglected.

Abuse of diplomatic immunity was made more

visible by media coverage in the 1990s, rang-

ing from parking violations and child custody

law violations to more serious criminal behavior

such as domestic abuse and even murder. World

headquarters, such as New York City, London,

and Paris, have a large number of diplomatic and

consular ofﬁ ces. The large number of diplomats

often leads to a greater number of legal viola-

tions. Historically, the problem of large debts by

diplomats has caused problems between host and

home country. In some cases, violations have

196 diplomatic immunity

xviii+446_EofUSConsti-v1.indd 196 3/12/09 3:04:39 PM

included espionage and smuggling of small high-

value items. One of the cases involving espionage

took place in 2000, when a Cuban diplomat,

expelled by the United States on spying charges,

was ordered to give up his diplomatic immunity

and was taken into custody by the Federal Bureau

of Investigation (FBI).

For more information: Corbett, Percy E. Law

in Diplomacy. Princeton, N.J.: Princeton Univer-

sity Press, 1967; Frey, Linda, and Marsha Frey.

The History of Diplomatic Immunity. Columbus:

Ohio State University Press, 1999; Nussbaum,

Arthur. A Concise History of the Law of Nations.

New York: Macmillan, 1954; Ogdon, Montell.

Juridical Bases of Diplomatic Immunity: A Study

in the Origin, Growth and Purpose of the Law.

Washington, D.C.: J. Byrne & Co., 1936.

—Anna Feygina

discrete and insular minorities

The phrase discrete and insular minorities

appears in a footnote to U.S. v. Carolene Products,

304 U.S. 144 (1938). By itself, that 6-1 Supreme

Court decision receives little attention. The foot-

note, however, is quite a different story. In fact,

footnote four contained in Justice Harlan

Fiske Stone’s opinion is generally viewed as the

most famous footnote in Supreme Court history,

suggesting a rationale for much greater judicial

scrutiny of legislation that affects personal lib-

erties and minorities than the rational-basis test

applied to laws that involve economic regulation.

Stone’s opinion (upholding the Filled Milk

Act passed by Congress in 1923 that prohibited

milk blended with nondairy fats from entering

interstate commerce) expressed the Court’s

deference to the legislature in economic matters.

After all, in the democratic process, governmental

decision making should essentially rest with those

who make the law. The presumption that legisla-

tive decisions are constitutional, however, is not

without limits, precisely the point where footnote

four enters the picture.

As originally circulated within the Court,

Stone’s footnote (shaped by his law clerk Louis

Lusky) consisted of two paragraphs, both of which

went beyond anything actually required for decid-

ing the case. The ﬁ rst asks whether legislation that

serves to limit the operation of the democratic

political process should be subject to increased

“judicial scrutiny.” The second raises the question

as to “whether prejudice against discrete and insu-

lar minorities may be a special condition, which

tends seriously to curtail the operation of those

political processes ordinarily to be relied upon to

protect minorities, and which may call for a cor-

respondingly more searching judicial inquiry.” In

other words, when prejudice and discrimination

against identifiable and socially isolated groups

keeps legislatures from responding to grievances,

the standard presumption of constitutionality for

legislative acts falls by the wayside.

In response to a point raised by Chief Justice

Charles Evans Hughes, Stone added a third para-

graph at the beginning of the footnote. That para-

graph suggested similar judicial scrutiny when

legislation, on its face, appears to violate protec-

tions offered by the Bill of Rights, including

those applied to the states through the Four-

teenth Amendment. Footnote four thus pro-

poses that certain freedoms occupy a preferred

position in the constitutional structure and that

the courts have a special responsibility to protect

those preferred rights in a manner that goes well

beyond deference to the political branches. In

this sense, it provides a path on which personal

liberty and minority rights travel in a constitu-

tional lane quite separate from that of the eco-

nomic regulation exercised by Congress and state

legislatures.

Six years after the Carolene Products deci-

sion, the Supreme Court, in K

OREMATSU V. UNITED

TATES, 323 U.S. 214 (1944), formally adopted the

tentative call found in footnote four regarding a

more searching and exacting standard for the judi-

cial scrutiny of laws involving “discrete and insu-

lar” racial minorities. And that call continues to

resonate in constitutional law, although the doctri-

nal debate over its validity has not abated.

For more information: Lusky, Louis. By What

Right? Charlottesville, Va.: Michie Co., 1975;

discrete and insular minorities 197

xviii+446_EofUSConsti-v1.indd 197 3/12/09 3:04:39 PM

Mason, Alpheus Thomas. Harlan Fiske Stone: Pil-

lar of the Law. New York: Viking Press, 1956.

—Norman Provizer

disparate impact

The disparate impact theory, first articulated

by the Supreme Court in the seminal decision

RIGGS V. DUKE POWER CO., 401 U.S. 424 (1971),

allows facially neutral employment practices to

be deemed illegal under federal equal employ-

ment opportunity statutes without evidence of

the employer’s intent to discriminate. The theory

stands in stark contrast to legal standards under

the equal protection clause, which requires

proof of intentional discrimination to estab-

lish a constitutional violation.

The Griggs case involved a company that had

intentionally segregated its workforce prior to the

passage of Title VII of the Civil Rights Act of

1964. African Americans were limited to the low-

paying and undesirable positions within the labor

department; furthermore, in 1955, the company

imposed a high school diploma requirement for

hire into any department other than labor. After

the passage of Title VII, the company also insti-

tuted a two-part written examination procedure

for all individuals seeking employment or depart-

mental transfer. The effect of the diploma and

testing requirements was to preserve the segre-

gated job lines and to exclude a majority of African

Americans from hire or transfer.

In spite of the employer’s long history of racial

segregation, the Supreme Court did not see the

case as one of intentional discrimination, due pri-

marily to the employer’s laudatory goal of improv-

ing the educational credentials of its workforce

and its apparent willingness to pay the educational

costs of employees who sought to complete high

school. However, recognizing what an obstacle

to eradicating employment discrimination

such hiring standards could be, the Court held

that plaintiffs may establish a prima facie case of

discrimination by showing that a facially neutral

policy has an adverse impact on a class protected

under Title VII. (To this end, the Court gave a nod

to the Equal Employment Opportunity Commis-

sion’s “four-ﬁ fths” rule, which states that a minor-

ity group’s passage rate of less than 80 percent of

the dominant group’s rate demonstrates adverse

impact.) This holding did not preclude the use

of such testing or qualiﬁ cation mechanisms but

rather required that the employer show that the

neutral policies or practices were job related and

justified by business necessity to avoid a find-

ing of discrimination. In the Griggs ruling, the

Court emphasized that “absence of discrimina-

tory intent does not redeem [such] employment

procedures” and that “Congress has forbidden . . .

giving these devices and mechanisms controlling

force unless they are demonstrably a measure of

job performance.”

Although the Court held that such neutral

practices should not be permitted to constitute

“built-in headwinds” for minorities and women,

the Court declined to extend the disparate impact

theory to analogous constitutional claims five

years after Griggs. In W

ASHINGTON V. DAVIS, 426

U.S. 229 (1976), plaintiffs challenged a written

test administered by the District of Colum-

bia police department, which African Americans

failed at a rate approximately four times that of

whites. Because the lawsuit had been ﬁ led in 1970,

two years before the applicability of Title VII to

public employers, the testing procedures were

challenged on equal protection, rather than statu-

tory, grounds. However, although the tests were

comparable to those challenged in Griggs, the

Court not only emphasized that proof of discrimi-

natory intent was necessary for a constitutional

violation but expressly rejected the effects-based

reasoning of its previous decision, holding, “We

have difﬁ culty understanding how a law establish-

ing a racially neutral qualiﬁ cation for employment

is nevertheless racially discriminatory . . . simply

because a greater proportion of Negroes fail to

qualify than members of other racial or ethnic

groups.”

Following Davis, the Court continued to

restrict the applicability of the disparate impact

theory almost exclusively to Title VII litigation,

declining to extend it to claims under the Sec-

tion 1981 Civil Rights Statute, to Fifteenth

Amendment voting rights, or to a lawsuit over a

198 disparate impact

xviii+446_EofUSConsti-v1.indd 198 3/12/09 3:04:39 PM

road closing. And while the Court allowed appli-

cation of the theory to a Title VI claim, involving

the regulations requiring recipients of govern-

mental funding to comply with nondiscrimination

requirements, the complex holding also stated

that the statute itself only prohibited intentional

discrimination.

In the Title VII arena, however, the develop-

ment of disparate impact theory continued to ebb

and ﬂ ow. A few years after the Griggs decision,

the Court elucidated in Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1975), the requirements for

validating written tests and showing job related-

ness and business necessity. In 1988, the Court

resolved the issue of whether disparate impact the-

ory could be applied in cases in which subjective

employment practices (in this case, making pro-

motions based purely on supervisory recommen-

dations) have allegedly led to an adverse impact

on minorities. In Watson v. Fort Worth Bank &

Trust, 487 U.S. 977 (1988), the Court was “per-

suaded that [its] decisions in Griggs and succeed-

ing cases could largely be nullified if disparate

impact analysis were applied only to standardized

selection practices.”

The Court appeared to contract the reach of

disparate impact analysis when it made it easier

for employers to demonstrate business necessity

in Ward’s Cove Packing Co. v. Atonio, 490 U.S.

642 (1989), holding that “there is no require-

ment that the challenged practice be ‘essential’ or

‘indispensable’ to the employer’s business to pass

muster.” However, Congress legislatively over-

ruled the Court when the 1991 Civil Rights Act

restored the deﬁ nition of business necessity to its

pre–Ward’s Cove standard (42 U.S.C.A. Section

2000e-[2][k]).

In 2005, the Court resolved an issue long in dis-

pute in the federal circuits, namely, the applicabil-

ity of disparate impact analysis to claims under the

Age Discrimination in Employment Act (ADEA).

In Smith v. City of Jackson, 544 U.S. 228 (2005),

the Court held that such claims may be raised

under the ADEA but that the scope of disparate

impact theory is more limited than under Title

VII due to two textual differences between the

two statutes.

For more information: Chandler, Ralph Clark,

and William A. Ritchie, eds. The American Con-

stitution at the End of the Twentieth Century.

Kalamazoo: Western Michigan University, 1996.

—Virginia Mellema

District of Columbia

The District of Columbia (D.C.) is the location of

the capital of the United States, and the gover-

nance of this area is entrusted to Congress under

the Constitution.

Congress selected a permanent site for the

capital district in 1790. Land in Maryland and

Virginia bordering the Potomac River was pur-

chased. Until 1800, residents continued to vote in

elections held in those states. In 1801, Congress

assumed the exclusive legislative power granted to

it over its seat of government by the 1787 Constitu-

tion (Article I, Section 8, Clause 17). At that point,

nonslave residents lost their equal rights. For the

next 160 years, residents of what later was named

the District of Columbia were disenfranchised in

presidential elections.

In the 1920s, the Voteless League of Women

Voters and, in the 1930s, the District Suffrage

League championed voting rights and home rule

in the District of Columbia. Fearing that the Soviet

Union would criticize the United States for D.C.

voters’ exclusion from presidential elections, the

Eisenhower administration and the Department

of State supported the Twenty-third Amend-

ment. So, too, did the modern civil rights

movement, but responding to the District of

Columbia’s growing African-American population

(53.9 percent by 1960), segregationists in Congress

insisted on a weakened version. It passed on June

16, 1960. In the second-fastest ratiﬁ cation ever, it

was approved by three-fourths of state legislatures

in less than nine months. The compromise limited

the District of Columbia to “no . . . more [electoral

votes] than the least populous state.” At the time,

the District of Columbia was more populous than

several states and would have been allotted more

than three electoral votes.

In 1970, Congress restored the nonvoting del-

egate position that had been tried during 1871–74.

District of Columbia 199

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And under the 1973 District of Columbia Home

Rule Act, Congress delegated legislative pow-

ers to the Council of the District of Columbia

while retaining ultimate authority not only in

the National Capitol Service Area but also over

the entire district. However, substantive reforms

advanced no further. Residents of national capi-

tal regions in Japan, South Korea, the Philippines,

Mexico, Canada and many other representative

democracies are not similarly disenfranchised.

And despite congressional approval of the D.C.

Voting Rights Constitutional Amendment in 1978

to give voting representation in Congress to the

District of Columbia, less than half the required

number of state legislatures ratiﬁ ed it before the

deadline expired in 1985.

Twenty-four years after a statehood movement

began, the House of Representatives rejected

the proposal in 1993. Pro-statehood sentiment has

persisted. According to one public opinion poll in

2002, nearly 60 percent of D.C. citizens supported

statehood. Also in 1993, the U.S. House of Repre-

sentatives gave the delegate from the District of

Columbia a nondecisive vote on the ﬂ oor of the

House on those occasions when it met as a Com-

mittee of the Whole. Previously, the D.C. delegate

only voted in committee meetings. Yet, even this

modest gesture was withdrawn two months after

the Republican landslide in the November 1994

congressional elections.

Barbara Lett-Simmons, democratic elector

from the District of Columbia, withheld her vote

from Al Gore to protest the District of Columbia’s

“colonial status” in 2000. Along with felons and ex-

felons in most states, D.C. residents have not yet

won rights to self-government enjoyed by most of

their fellow citizens.

For more information: Richards, Mark David.

“The Debates over Retrocession of the District of

Columbia, 1801–2004.” Washington History 16,

no. 1 (Spring/Summer 2004): 55–82; Richards,

Mark David. “Taxation Without Representation.”

Public Perspective 14, no. 1 (January/February

2003): 11–15.

—Vincent Kelly Pollard

District of Columbia v. Heller, ___ U.S. ___ ,

128 S.Ct. 2783

(2008)

In District of Columbia v. Heller, the U.S.

Supreme Court declared unconstitutional on Sec-

ond Amendment grounds a District of Colum-

bia law that banned the possession of handguns,

including in one’s own home. Heller was the ﬁ rst

case where a law was found unconstitutional on

Second Amendment grounds. The decision also

was the ﬁ rst to declare that the Second Amend-

ment protected a personal right of individuals to

possess ﬁ rearms.

While the Second Amendment refers to a right

to bear arms, a critical historical and constitutional

question has been over whether the right is collec-

tive or individual. Speciﬁ cally, the phrasing of the

text of the amendment makes it unclear whether

the right to bear arms should be read within the

context of the ﬁ rst part of the amendment, which

refers to the militia, and, therefore, it only protects

a collective right, or whether the language should

be read to protect an individual right.

From 1791, when it was adopted as part of the

Bill of Rights, until 2008, the U.S. Supreme

Court offered little assistance in interpreting the

Second Amendment. In United States v. Crui-

kshank, 92 U.S. 542 (1875), and in Presser v.

Illinois, 116 U.S. 252 (1886), the Court refused

requests to incorporate the amendment as a limit

upon states. In United States v. Miller, 307 U.S.

174 (1939), the Court implied that the right to

bear arms protected more of a collective than an

individual right.

District of Columbia v. Heller arose in the

context of a District of Columbia law that banned

handgun possession. It made it a crime to carry

an unregistered ﬁ rearm, prohibited the registra-

tion of handguns, and required residents in their

homes to keep lawfully owned ﬁ rearms unloaded

and dissembled or bound by a trigger lock or

similar device. The law did allow for some spe-

cial permits to carry guns. Richard Heller sought

to register a handgun for his home, but he was

refused a permit. He challenged the law, con-

tending that it violated his Second Amendment

rights. A District of Columbia district court dis-

200 District of Columbia v. Heller

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missed his suit, the court of appeals reversed,

agreeing that the Second Amendment protected

his individual right to possess a gun in his home

for self-defense.

In a 5-4 opinion, Justice Antonin Scalia

upheld the court of appeals and ruled in favor of

Heller, holding that the Second Amendment does

confer an individual right to bear arms. In reach-

ing this decision, the majority drew upon both

a textual and historical reading of the Second

Amendment. First, it argued that the prefatory

language of the amendment—“A well regulated

Militia, being necessary to the security of a free

State”—while defining its purposes, does not

limit the right to bear arms. Second, the Court

then undertook a historical analysis of English his-

tory, similar state constitutional clauses in place

when the Second Amendment was written, and

scholarly articles. The Court concluded that these

three sources all supported an individual right to

possess arms.

The majority also ruled that while the Second

Amendment did protect an individual right to bear

arms, that did not mean that all efforts to limit or

regulate guns or weapons would be found uncon-

stitutional. Justice Scalia noted ﬁ rst that many his-

torical laws preventing felons, for example, from

possessing guns would not be affected by this rul-

ing. He also stated that the Second Amendment,

like all other amendments, was not absolute, and,

therefore, some limits on gun ownership would be

permissible.

Writing for the dissent, Justice John Paul

Stevens argued that the debate over the Sec-

ond Amendment was not whether it protected

an individual or collective right but, instead, over

the scope of the right to bear arms. He contended

that while the Second Amendment may protect a

right to use weapons to hunt and for self-defense,

it did not extend to using guns to rob a bank. His

argument was that nothing in text, history, or past

precedents of the Second Amendment precludes

the government from regulating the civilian use of

the weapons. He accused the majority of reaching

a political decision, one not supported by any new

scholarship.

District of Columbia v. Heller was a contro-

versial decision that left many unanswered ques-

tions. Scalia’s opinion did not offer much guidance

regarding what regulations on guns the Second

Amendment did permit. Moreover, given that the

Heller opinion addressed a District of Columbia

law, it also did not address the question of whether

the Second Amendment was incorporated to apply

to the states. Both of these issues will be the basis

of future litigation on the amendment.

For more information: Carlson, Andrew. The

Antiquated Right. New York: Peter Lang, 2002;

Cornell, Saul, ed. Whose Right to Bear Arms Did

the Second Amendment Protect? New York: St.

Martin’s Press, 2000; Cottrol, Robert J., ed. Gun

Control and the Constitution: Sources and Explo-

rations on the Second Amendment. New York:

Garland Publishing, 1994.

—David Schultz

diversity jurisdiction

Diversity jurisdiction is federal court jurisdic-

tion over lawsuits between citizens of different

states. Section 2 of Article III of the U.S.

Constitution provides that the “judicial Power

shall extend to all Cases in Law and Equity . . .

between Citizens of different States.” The statute

authorizing diversity jurisdiction provides: “The

district courts shall have original jurisdiction

of all civil actions where the matter in controversy

exceeds the sum or value of $75,000 . . . and is

between Citizens of different states” (28 U.S.C.

Section 1332 [a][1]).

The idea behind providing a federal forum for

disputes between citizens of different states is to

protect out-of-state litigants from potential favorit-

ism (or the perception of favoritism) by state court

judges toward their own citizens. In response

to criticism of this premise, Chief Justice John

Marshall once stated: “[h]owever true the fact

may be, that the tribunals of the states will admin-

ister justice as impartially as those of the nation

. . . it is not less true that the constitution itself . . .

entertains apprehensions on this subject” (Bank of

diversity jurisdiction 201

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