Amendment Equal Protection Research Articles

Pandemic, Protest, and Agency: Jury Service and Equal Protection in a Future Defined by COVID-19

This essay calls for an expansive view of Fourteenth Amendment equal protection against the discriminatory empanelment of juries grounded upon a culture of systemic racism. For an individual juror fundamental elements of survival during a pandemic are access to health care, safe transportation, and connective technology. Yet, structural and systemic racism precludes many potential jurors of color from securing these necessary supports, thus denying them the ability to be recognized on juror source list or accommodated for jury service. Jury service is a direct and impactful act of citizen agency over the justice system, and the systemic exclusion of individuals from jury service based on race and economic status is a denial of that agency and a constitutional violation. Supreme Court rulings like Duren v. Missouri are inadequate to provide relief in the face of such violations and only provide outdated and ineffectual remedies to this mass denial of equity.

Make Way for Women: Gender Quotas in American Government Under Dominance Feminist Theory

“Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance.” - Kofi Annan, former United Nations Secretary-General Statistically, women have made drastic strides in the past century in American politics. However, the small percentage of female representation in the 2021 American government system shows just how much farther women have to go to get equal representation as to their fellow men. The answer may be mandated change in the form of a gender quota system. While research and public debate speculate the legality of gender quotas under America’s formal equality framework, this paper gender quotas application under Catharine Mackinnon’s dominance feminist theory. This paper first addresses how gender quotas are consistent with the goals of dominance feminism, which attributes women’s inferior societal position to men’s concerted effort to subordinate and control women. Then, the analysis breaks down a gender quota system’s place under the formal equality framework as echoed in the Constitution’s Fourteenth Amendment Equal Protection Clause. Additionally, a discussion regarding American’s strangeness towards quota systems is addressed. The conversation then moves into types of quota systems and the public policy that supports and encourages gender quota systems. Then, an analysis of international countries' use of quotas systems is discussed as well as the respective country’s success stories. The paper next shifts to the home-front of American states that have enacted “gender-balance laws,” which are loosely constructed gender-quota systems, to encourage gender balance on state boards and commissions. This paper is the first piece of legal academic scholarship that depicts each state’s enacted gender-balance law and discusses the law’s effects on female representation within each state. The research suggests that true gender equality within the American government cannot be quickly or fully achieved under the American formal equality framework because formal equality endorses unequal electoral representation. Thus, formal equality is insufficient for ensuring meaningful gender equality in politics. On the other hand, quota systems are consistent with the goals of dominance feminism because they raise women to the same level of representation as men in historically male-dominated governments. Therefore, gender quota systems as applied under dominance theory are key in correcting the electoral gender imbalance in the American government.

The Forgotten Member of Patient Selection Committees: The US Constitution.

The Forgotten Member of Patient Selection Committees: The US Constitution.

Equal Protection versus Free Speech Rights: When Gains Loom Larger than Losses

SummaryThis paper examines the tension between equal protection and free speech in the hate speech context through a prospect theory lens. Two hundred and fifty‐four participants recruited through Amazon's Mechanical Turk read a First Amendment free speech or Fourteenth Amendment equal protection argument framed to endorse the protections gained by each right, the losses avoided by each right, or the security provided by each right. Results showed gain‐framing was more persuasive than loss‐framing. Participant race and constitutional principle influenced punishment invoked for cross burning but not destruction of property or trespassing. Participants who received a positive framed equal protection argument believed the target would experience stronger negative emotions, particularly under low intimidation. Furthermore, participants receiving a positive frame speech argument believed the target would be less willing to support suppression. Unlike previous research, which suggests an equal protection principle default, this study demonstrated an impact of framed statements on decisions.Copyright © 2016 John Wiley & Sons, Ltd.

Reducing the Density and Number of Tobacco Retailers: Policy Solutions and Legal Issues.

Because higher density of tobacco retailers is associated with greater tobacco use, U.S. communities seek ways to reduce the density and number of tobacco retailers. This approach can reduce the concentration of tobacco retailers in poorer communities, limit youth exposure to tobacco advertising, and prevent misleading associations between tobacco and health messaging. Communities can reduce the density and number of tobacco retailers by imposing minimum distance requirements between existing retailers, capping the number of retailers in a given geographic area, establishing a maximum number of retailers proportional to population size, and prohibiting sales at certain types of establishments, such as pharmacies, or within a certain distance of locations serving youth. Local governments use direct regulation, licensing, or zoning laws to enact these changes. We analyze each approach under U.S. constitutional law to assist communities in selecting and implementing one or more of these methods. There are few published legal opinions that address these strategies in the context of tobacco control. But potential constitutional challenges include violations of the Takings Clause of the Fifth Amendment, which protects property owners from onerous government regulations, and under the Fourteenth Amendment's Equal Protection and Due Process Clauses, which protect business owners from arbitrary or unreasonable regulations that do not further a legitimate government interest. Because there is an evidentiary basis linking the density of tobacco retailers to smoking rates in a community, courts are likely to reject constitutional challenges to carefully crafted laws that reduce the number of tobacco retailers. Our review of the relevant constitutional issues confirms that local governments have the authority to utilize laws and policies to reduce the density and number of tobacco retailers in their communities, given existing public health data. The analysis guides policy makers in crafting laws that comply with constitutional requirements by outlining the most important procedures and evidentiary justifications to use in development, implementation, and enforcement. This perspective also highlights the importance of reviewing state constitutions, statutes, and municipal codes and getting local input from attorneys and community stakeholders to assess the likely success of some methods over others.

The Implications of the Use of Parental Choice as a Legal “Circuit Breaker”

This study explores four instances where parental choice has been employed as a legal “circuit breaker”: (a) First Amendment Establishment Clause cases related to public funding, (b) Fourteenth Amendment Equal Protection cases regarding race-conscious student assignment, (c) Title IX regulations concerning single-sex education, and (d) a provision of the Individuals with Disabilities Education Act (IDEA) related to parental refusal to consent to initial special education services. In each example, while the end result would not be legally permitted if directed by some governmental decision maker, the presence of parental choice produces a permissible indirect path to the same policy outcome. This study traces the legal underpinnings of each example and discusses their implications for policymakers and practitioners.

Babies Behind Bars: An Evaluation of Prison Nurseries in American Female Prisons and Their Potential Constitutional Challenges

This note opens the prison doors and delves into the United States female prison system, primarily focusing on the positive and negative impact of nursery programs on mothers and children, along with potential constitutional claims that can be brought against these programs. Part I provides a general background about the American prison system, and briefly touches on the constitutional standards of prisoners’ rights. It also discusses the history and development of female prisons and illustrates the rapid increase of female incarceration. Part II focuses on the prevalence of mothers within the female population in prisons. Part III introduces prison nursery programs and explains their history and how they operate. Part IV discusses the positive impact prison nurseries have had on both mothers and children. Part V touches on a few negative effects and the limitations of these programs. Finally, Part VI raises three potential constitutional challenges that can be raised against prison nurseries: two arguments based on the Fourteenth Amendment Equal Protection Clause and one argument based on the Fourteenth Amendment Due Process Clause. As this note will conclude, there should be an increase in the implementation of prison nursery programs in American prisons, as the value of these programs greatly outweighs their limitations. Moreover, potential constitutional attacks on these programs should not be discouraging, as they are unlikely to prevail.

Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage)

Originalism has played a part in many court decisions including on the issue of whether states can ban same sex marriage. For the most part, the argument goes that the modern constitutional meaning trumpeted by supporters is not the original public meaning of the constitutional provision. Regarding same sex marriage, for example, originalists argue that the original public meaning of the Fourteenth Amendment's equal protection clause was the protection of African-Americans from discrimination by states, not the protection of gays and lesbians from discrimination by states. So, the equal protection clause did not and cannot protect gays and lesbians from such discrimination. These arguments assume that originalism should play a significant role in the interpretation of all provisions in the Constitution. This essay argues that this assumption is misplaced. The interpretation of the Constitution must begin with the text. The text of the Seventh Amendment is the only part of the Constitution that explicitly incorporates originalism, doing so through the use of the words common law and preserved in the context of limiting the authority of the judiciary and the jury. The express inclusion of originalism in the Seventh Amendment necessarily limits the use of originalism for the interpretation of the rest of the Constitution. Originalism must play a lesser role or no role in the interpretation of the rest of the Constitution, including the Fourteenth Amendment. While acknowledging that some role for originalism in the interpretation of the Constitution has been generally accepted, this essay argues that originalism does not strictly govern the Constitution outside of the Seventh Amendment, and nor should it same sex marriage.

Just, Smart: Civil Rights Protections and Market-Sensitive Vacant Property Strategies

This essay, prepared for and published by the Center for Community Progress, a national, non-profit intermediary dedicated to developing effective, sustainable solutions to turn vacant, abandoned and problem properties into vibrant places, examines the legal and normative implications of local governments' use of neighborhood real estate market data to strategically focus vacant property remediation tools. I and other writers, such as Frank Alexander, Alan Mallach and Joseph Schilling, have argued for the importance of understanding the economic feasibility of market-based rehabilitation of derelict, vacant houses in making decisions as to how and when to use a variety of code enforcement, tax foreclosure and land banking mechanisms. Part I of this essay explains how treating vacant properties in similar states of disrepair differently because of the condition of the properties around them appears to constitute, at least in the short term, vigilant support for healthy neighborhoods and acquiescence to continuing decline in more distressed areas. Because the distressed areas in many of the cities dealing with long-term vacant property problems are far more likely to have high percentages of African-American residents, the first part examines the scope and evidentiary standards of the relevant civil rights law, including the Fourteenth Amendment's Equal Protection Clause, 42 U.S.C. §1982 and the Fair Housing Act. Part II concludes by outlining recommendations for local jurisdictions looking to create a substantively just and legally compliant approach to vacant property remediation that takes advantage of market-sensitive strategies.

Rule of law: Sharia panic and the US Constitution in the House of Representatives

In spring of 2011, Peter King (R-NY) convened a hearing titled ‘The Extent of Radicalization among American Muslims’ in the US House of Representatives. Democratic participants critiqued the hearings and contextualized the proceedings within the long history of institutionalized racism in the USA. They argued that the hearings were a threat to the Constitution itself, a violation of the Fourteenth Amendment's equal protection clause and the First Amendment's guarantee of freedom of religion. Republican participants shared concerns about threats to the Constitution but suggested that the hearings were part of a strategy to combat this threat. Numerous Republican participants identified forms of Islamic law, or sharia law, as the primary threat to the integrity of the rule of law (ROL). Despite opposing positions, all actors agreed that the ‘ROL’ is that which will save the nation from threats posed from both outside and inside the nation and, as such, it is the ROL itself that must be protected. In this sense, the ‘ROL’ ensured by the Constitution inadvertently became the primary object of the hearings. In this essay, we bring analytical approaches from performance studies and anthropology to argue that the hearings impel a re-examination of the concept of ‘ROL’ itself. Rather than simply addressing the legislative effects of the hearings, we are interested in what they reveal about the performative and cultural dimensions of the law and the lawmaking process. While critics of the hearings derisively referred to them as ‘political theater’, we suggest that it is the nature of the King Hearings as staged public spectacle that imbue them with a politically performative power. We also identify the specific effects of sharia panic in contemporary US American political and legal discourse.

Brief Amicus of North Carolina Legislative Black Caucus in Dickson v. Rucho, 11-CVS-16940

This amicus brief is offered on appeal of a state trial court's decision to uphold district maps drawn by the Republican majority in North Carolina's General Assembly in 2011. The underlying complaint in the lawsuit alleges that the state's plan violates the 14th Amendment Equal Protection Clause's color blindness principles and ignores the state's constitutional directive that district lines keep county lines intact except when necessary. Under a gross misinterpretation of the Voting Rights Act, the challenged plan replaces a series of majority-white districts in which black-preferred candidates have successfully been elected with racial gerrymanders -- majority-black districts with bizarre shapes that are inexplicable without predominant attention to race. This amicus brief makes three arguments to show the error in the decision below: (1) the state's map drawers completely ignored existing federal voting rights law, by turning the doctrine on its head, (2) the evidentiary record of elections in North Carolina amply shows that legally significant racial polarization is the exception and not the norm, belying any basis for imposing a statewide race maximization plan, and (3) the strategy of maximizing black majority districts without need and contrary to the announced views of black citizens, illustrates an illegal intent to target black voters for the purpose of minimizing their political efficacy.

DADDY WARRIORS: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes: A Fourteenth Amendment Equal Protection Analysis

DADDY WARRIORS: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes: A Fourteenth Amendment Equal Protection Analysis

The First Amendment, Equal Protection, and Felon Disfranchisement: A New Viewpoint

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage - felon disfranchisement. A deeply racialized problem, felon disfranchisement is additionally and independently a legislative judgment as to which citizen’s ideas are worthy of inclusion in the electorate. Relying on a series of cases involving states’ interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disfranchisement is assailable under the Supreme Court’s fundamental rights jurisprudence when it is motivated by a desire to limit political expression based on its perceived content; in other words, when felon disfranchisement is motivated by viewpoint discrimination. The justifications for felon disfranchisement laws reflect a misguided perception of how a voter’s identity, status, or behavior will affect how he votes. This Article confronts these justifications and examines the linkages between the right to vote and First Amendment protections of freedom of speech. Recognizing the difficulty in proving legislative motive in electoral decisions, this Article draws upon the underexplored theory of First Amendment Equal Protection, as well as the Court’s jurisprudence in the area of partisan gerrymandering to formulate the claim of viewpoint discrimination and demonstrate increasing judicial intolerance for legislative tampering in the electoral process with suspect motives. Through its viewpoint discrimination analysis, this Article also lays bare the multi-scalar impact of felon disfranchisement in terms of race, class, and partisanship, thereby highlighting the particular segments of society whose political participation and freedom of expression are most directly infringed by felon disfranchisement, and, perhaps, the underlying motivations for the practice.

Examining the Crossroads of Law, Ethics, and Education Leadership

Educational leaders are bound by legal and ethical imperatives to make certain that all children have access to an education and the opportunity to learn. To better understand how law and ethics intersect, this article adopted the cultural study perspective to analyze U.S. Supreme Court opinions for language revealing the intersection of law and ethics. The Supreme Court has contributed to the realization of educational goals, relying on the Fourteenth Amendment's Equal Protection Clause to ensure that equal educational opportunities are not deprived because of a child's race {Brown v. Board of Education, 1954) or illegal immigration status ( Plyler v. Doe, 1982). Through the cultural study of law and exploration of legal discourse—language, symbols, and content—in these landmark Supreme Court decisions, similar taxonomies and patterns of discussion emerged illustrating the intersection of law and ethics. These taxonomies were used as coding protocols and exploratory guides for the subsequent review of education leadership literature through the quantitative content analysis method. Based on this analysis, a proposal is made advocating a paradigm shift in the way that law and education scholars analyze, discuss, and critique the Supreme Court decisions affecting children's educational rights. Specifically, this article proposes the adoption of an integrated legal and ethical paradigm to study the legal discourse in the Supreme Court's education law decisions.

Legitimate Absenteeism: The Unconstitutionality of the Caucus Attendance Requirement

Dubbed by the Washington Post as “undemocratic,” the caucus system for selecting delegates to national party presidential nominating conventions tends to disenfranchise identifiable factions of voters, including deployed service members, religious observers, persons with disabilities or in poor health, students who attend school away from home, and shift workers unable to leave work during caucus hours. This Note contends that eligible party voters have the constitutional right to vote in their political parties’ caucuses without being physically present. It presents three central constitutional arguments that raise doubts about the constitutionality of the physical attendance requirement of many state party caucuses: first, that the attendance requirement may violate the First Amendment associational rights of voters; second, that it may breach Fourteenth Amendment equal protection of the right to vote; and third, that it may constitute an unconstitutional poll tax. This Note proposes four alternatives to the present caucus system that could eliminate or mitigate the potential unconstitutionality of the physical attendance requirement. Additionally, it examines which actors are best situated to reform caucuses. It concludes that the most effective avenues toward reform are an associational rights judicial challenge or congressional legislation.

'Race' Ipsa Loquitur: How Blind People Understand Race and Its Implications for Equal Protection

14th Amendment Equal Protection jurisprudence offers stronger Constitutional protections to racial minorities because, in part, the basis of their discrimination is presumed to be fixed and visible, e.g. phenotype. This is what I term the ‘race’ ipsa loquitur trope in Equal Protection law, meaning that the moral, legal, and conceptual significance of race stems from a reductionist account that treats race as a visually obvious and self-evident marker of human difference that is exogenous and exists autonomously from any social, legal, or political process. Race is thought to speak for itself; it is what is seen. Critical Race Theorists have offered unparalleled insight into the social construction of race, challenging the longstanding presumption that race reflects natural categories of human difference by demonstrating the way racial meanings are produced by social, political, legal, and economic conditions. But less attention has been paid to a completely separate question: how do visual cues associated with race become socially (and therefore legally) salient? Are they, as Equal Protection jurisprudence largely assumes, merely self-evident triggers of group conflict that are visually obvious? This article is based on the hypothesis that the visual cues that have come to define race are not obvious in any objective sense, but capture our attention through constitutive social practices that treat race as a visually obvious part of the social world. As an empirical matter, this article explores the accuracy of the ‘race’ ipsa loquitur theory driving Equal Protection law by interviewing blind people about race. By collecting qualitative data from blind people about their understanding of and experiences with race, this approach is able to empirically isolate the significance of vision to race’s salience in critiquing the dominant theory of race in Equal Protection law. I find (1) blind people have as significant an understanding of race as anyone else and that they understand race visually, (2) this visual understanding of race stems from interpersonal and institutional socializations, and (3) these socializations are significant in shaping how they view themselves and interact with others. The findings highlight how visual understandings of race are encoded into individuals through iterative social practices that train people to think a certain way about the world around them - regardless of what that world actually looks like. These findings also raise serious questions about the appropriateness of the current approach to race embedded in Equal Protection jurisprudence. While well intentioned, it might limit broader discussions of what race is and, more importantly, may obscure the most effective way to use racial categorizations in a thoughtful, non-discriminatory manner.

Peremptory Challenges and National Origin: Watson v. Ricks

During voir dire in criminal trials, prosecutors and defense attorneys can challenge potential jurors to remove them from the jury pool These challenges can be based on cause when a juror displays bias or incompetence. Attorneys also can use a limited, specified number of peremptory challenges to remove jurors for any or no reason, without showing cause. Until recently, there were few if any restrictions on how peremptory challenges could be employed. However, the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), held that the Fourteenth Amendment's equal protection clause prohibits prosecutors from using peremptory challenges to exclude jurors based on their race. In subsequent cases, the Supreme Court applied the Batson rule to prohibit peremptory challenges based on ethnic origin, Hernandez v. New York, 500 U.S. 352 (1991), and gender, J.E.B, v. Alabama, 511 U.S. 127 (1994). The Supreme Court has never considered whether Batson prevents peremptory challenges based on national origin. This issue arose in Watson v. Ricks, and in his unpublished report and recommendation to District Judge William H. Pauley III of the Southern District of New York, Magistrate Judge James C. Francis IV concluded that the Batson rule additionally prevented peremptory challenges based on national origin. He thus recommended that the petitioner's writ of habeas corpus be granted. The Supreme Court has determined that when a Batson objection is raised, the following procedure takes place:

Much Ado about a C?

FROM kindergarten through grade 8, Brandy H. was an honor roll student at Island Union School District, which is in central California. She received numerous awards for both her academic and athletic performance. In the fourth quarter of grade 7, which was in spring 2003, Brandy and three other girls each received a C in physical education, or PE, which focused on track and field events. Brandy and another girl in the group were African American; the other two were white. As stated on the report cards, the grades in Island Union's PE classes are based on effort and attitude only, not athletic ability. Thus they are not included in the calculation of a student's grade-point average for placement on the honor roll. The four girls' PE teacher, Julie Hansen, was a long-term sub who also taught sixth grade and was one of the track coaches. Brandy's parents had observed various track practices and meets, which were part of the PE grade and had yielded only positive feedback. On 10 July 2003, Brandy's father sent a letter to the superintendent complaining about the C in PE and adding that in a conversation with the assistant track coach, which the assistant had reported to him, Hansen had referred to the four girls as bitches and stated that she wanted to wring their necks. The superintendent tried to reach Hansen, but she was away on summer vacation. He did speak to other PE teachers to find out what they knew about the situation. On July 24, he sent Brandy's father a reply, explaining that the reason for the C grade was insufficient effort and attitude during PE class and confirming that Hansen had apparently made the alleged statements. On August 8, the superintendent received a letter from attorney Kevin Little on behalf of Brandy's parents and sent it to the school district's legal counsel for a response. On August 20, the district's legal counsel sent a letter to attorney Little inviting him to contact her if he had any questions or additional information. The parents did not contact her further, directly or via their attorney. They also did not resort to the California statutory procedures for a parent to request a grade change, which include an appeal to the school board and, thereafter, the right to judicial review in state court. Instead, on 24 April 2004, Brandy's parents filed suit in federal court against Hansen and the superintendent, alleging that the PE grade constituted unfairness, in violation of 14th Amendment substantive due process, and racial discrimination, in violation of the 14th Amendment equal protection clause. They sought money damages and a corrected grade that truly reflects her performance in the track and field class. On 28 April 2005, the federal district court granted the defendants' motion for summary judgment, meaning a decision in their favor without a trial.(1) The judge rejected the substantive due process claim for two reasons. First, the magistrate judge distinguished the Supreme Court's pertinent substantive due process decisions as arising from academic dismissals, not grades in a particular course, much less a seventh-grade PE class that is not even part of the student's GPA.(2) He reasoned: At best, the Supreme Court has recognized a fundamental right to an education, nothing more. Second, the magistrate judge cited precedent in the Ninth Circuit that negates substantive due process claims based on deprivation of a state-created property interest and not a separate constitutional violation, where state law remedies are adequate. He concluded that California's statutory procedures for correcting student records are obviously adequate to address such fairness challenges. As for the equal protection claim, the court pointed to precedents that require specific facts showing intentional racial discrimination and concluded that the parents' arguments failed to meet this threshold standard. While asserting that Brandy was consistently cooperative and diligent and that Hansen never gave her any indication otherwise, the parents largely relied on simple statistics and Hansen's statements. …

"Cooper v. Aaron:" Incident and Consequence

THE FOLLOWING ARTICLES PRESENT important new perspectives on the Little Rock school desegregation crisis. When Arkansas governor Orval E. Faubus, in the name of preserving order, directed the Arkansas National Guard to prevent nine black young people from entering Little Rock Central High School on September 2, 1957, he precipitated a constitutional crisis. Blocking a federal court order upholding the Little Rock School Board's attempted compliance the U.S. Supreme Court's decisions of 1954 and 1955 in Brown v. Board of Education, Faubus placed the governor's police powers at odds city authorities, President Dwight D. Eisenhower, and the Supreme Court itself. Yet the constitutional issues engendered by Faubus's actions remained abstract to most people except for legal experts. At the time and ever since, it was the practical consequences that garnered public attention: the consequences for the school board's good-faith effort to implement the token desegregation of a single city school in the face of growing hostility on the part of the white community, for Faubus's purported political ambitions, for the Eisenhower administration's inconsistent stance on the Brown decision even as it wrestled a Cold War propaganda battle over the same issue, for the authority of the Supreme Court as it confronted mounting opposition from southern segregationists and their northern conservative sympathizers, and, above all, for the courageous Little Rock Nine, bearing the painful assaults of racial animosity. The three essays that follow suggest how the litigation culminating in Cooper v. Aaron shaped these consequences and their ramifications for decades to come. The Cooper v. Aaron litigation went through several stages. The Supreme Court's Brown decision of 1954, holding that racially segregated public schools were inherently unequal and therefore violated the Fourteenth Amendment's equal protection clause, precipitated the Little Rock School Board's efforts to comply. Shortly before the Court handed down the 1955 Brown II order, which required desegregation plans to proceed with all deliberate speed but left their formulation to community school boards-subject to local federal court oversight-Little Rock school officials published a plan that opened only Little Rock Central High to token desegregation, maintained racial segregation at all other schools, and left unstated when those schools might be desegregated. Once the limited scope of desegregation became apparent, the Little Rock branch of the National Association for the Advancement of Colored People (NAACP) rethought its earlier trust in the school board's good faith effort, and, in the name of black parents and children, initiated suit in 1956. Styled Aaron v. Cooper, the case was tried and decided during August 1956. The black litigants lost at trial and upon appeal in April 1957. As the summer unfolded and the nine black students prepared to enter Central, Faubus and city school officials confronted mounting hostility from segregationists. Meanwhile, the federal government declined to become involved. After various public and secret maneuvers, Faubus implemented a strategy defying the federal court's desegregation order. The ensuing three-week crisis culminated in Eisenhower's dispatch of the 101st Airborne to Little Rock, which ended the violence and enforced the court order. Inside Central High, the Little Rock Nine-Minnijean Brown, Elizabeth Eckford, Ernest Green, Thelma Mothershed, Melba Pattillo, Gloria Ray, Terrence Roberts, Jefferson Thomas, and Carlotta Walls-endured continuous harassment. School officials responded by asking the federal court for a two-and-a-half-year delay in implementation of the desegregation decree. Although the local federal court awarded the delay, the NAACP appealed. The U.S. circuit court, sustained by the U.S. Supreme Court, upheld the NAACP's argument that Little Rock's desegregation plan had to continue to be enforced. …

:The People Themselves: Popular Constitutionalism and Judicial Review

For the last two generations, the central preoccupation of constitutional historians seems to have been to provide a historical foundation to support the work of the Warren, Burger, and Rehnquist Courts in expanding the reach of the Fourteenth Amendment's Equal Protection and Due Process clauses, in order to prevent state legislatures or state law enforcement officials from abusing the rights of criminal defendants, religious and ethnic minorities, women, and homosexuals. Liberals cheered these developments, and liberals wrote those histories that made it seem that from the time of John Marshall forward it had been the job of the United States Supreme Court, consistently with our constitutional scheme, to protect minorities from discrimination by the majority. Conservatives, not much in evidence in the academy, tended to view these Supreme Court decisions with some suspicion, believing that the Court was making up purported constitutional rights out of whole cloth, that the Supreme Court had been legislating rather than judging, and that such conduct was inconsistent with the Constitution, which leaves matters of making up new law to the legislatures and to the people themselves.