University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu

Study questions: chapter 8, “Race and American Law”

The following questions are intended to guide your reading of the assigned texts by calling attention to key concepts, distinctions, principles, and other parts of the texts. The questions are listed in the order in which their answers should become evident to a close reader.

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  1. pp. 238–249 (based on questions written by Ryan Taylor)
    1. What was the Jim Crow system?
    2. What is the doctrine of “separate but equal”?
    3. What was the Supreme Court’s main justification for upholding the separate-but-equal doctrine in Plessy v. Ferguson?
    4. According to Altman, what is the main problem with Justice Harlan’s dissenting opinion in Plessy v. Ferguson?
    5. Why, according to Altman, should the Separate Car Act be deemed to fail to meet the reasonableness standard?
    6. What was the Supreme Court’s main justification for its majority opinion in Brown v. Board of Education?
    7. According to Altman, what is the “critical weakness” in the majority opinion in Brown v. Board of Education?
  2. pp. 249–264
    1. Why did the Supreme Court’s early civil-rights decisions address only state-sponsored segregation and discrimination, not segregation in private facilities and discrimination by private businesses?
    2. What conditions did Martin Luther King, Jr. say had to be satisfied in order for the violation of an unjust law or court order to be justified?
    3. What is the “state action” doctrine, and how did it undermine the claim that the Civil Rights Act of 1964 was within the powers granted to Congress by the Fourteenth Amendment?
    4. How was the Commerce Clause crucial to the Supreme Court’s decision that the Civil Rights Act of 1964 was not unconstitutional?
    5. On what basis does Altman object to interpreting the Commerce Clause as authorizing the Civil Rights Act of 1964?
    6. What departure from the usual understanding of the Fourteenth Amendment does Altman have in mind in proposing that it be “construed as placing affirmative duties on states” (p. 255)?
    7. What does it mean to say that some practices, such as literacy tests for voters, are “facially neutral” but discriminatory in practice?
    8. After reading about the Black Power movement and the idea of institutional racism, you will get to the section entitled “Racial Discrimination: Intent versus Disparate Impact.” What is the difference between the intent theory of racism and the disparate-impact theory of racism?
  3. pp. 264–279 (based on questions written by Tony Quartaro)
    1. What do proponents of Critical Race Theory (CRT) say about the racism in American society? What do proponents of CRT say about the law?
    2. Delgado’s theory of legal instrumentalism is a relatively extreme form of CRT. What does this theory say about when minorities ought to follow the law?
    3. How is Paul Butler’s form of CRT a milder one than Delgado’s theory of legal instrumentalism is?
    4. Despite writing a lone opinion in the Bakke case, Justice Lewis Powell effectively established federal law regarding affirmative action. What test did Powell say an affirmative-action program must pass in order to be constitutional?
    5. What two features must a personal characteristic (such as race) possess in order for individuals to have a right not to be discriminated against on the basis of that characteristic, according to Altman?
    6. Why, according to Altman, does the pursuit of general diversity not entitle a university to have a race-conscious admissions policy?