Challenges for Civil LibertiesChapter 14.5

Government Mr. Biggs

Affirmative ActionIn the 1960s a new approach to dealing with discrimination developed through so-called affirmative action programs.Affirmative action refers to government policies that directly or indirectly award jobs, government contracts, promotions, admission to schools, and other benefits to minorities and women.This was instituted to make up for past discrimination caused by society as a whole.Today, the government as well as any institution receiving aid from the government is required to adopt an affirmative action program.

Changing ideas, social conditions, and technology have combined to raise new issues for civil liberties.

Regents of University of California v. Bakke (1978)The Court ruled to uphold the basic idea of affirmative action by stating that a university could consider race along with other characteristics when admitting students.The Court, however, went on to explain that a strict quota system based on race was unconstitutional.

Unclear Constitutional StatusSince the Bakke decision, the constitutional status of affirmative action has become unclear.

An Ongoing DebateOpponents of affirmative action claim that any discrimination based on race or gender is wrong even when the purpose is to correct past injustices.They argue that merit is the only basis for making decisions on jobs, promotions, and school admissions.Some people use the term reverse discrimination to describe situations where qualified people lose out to others who were chosen based on race, ethnicity, or gender.

Discrimination Against WomenIn recent decades new challenges to discrimination against women have been raised in such areas as employment, housing, and credit policies.

The Supreme Court’s PositionHistorically, the Court had ruled that laws discriminating against women did not violate the equal protection clause of the 14th Amendment.

Reed v. Reed (1971)The Court ruled that a law that automatically preferred a father over a mother as executor of a son’s estate violated the equal protection clause of the 14th Amendment.

The Reed decision created a new standard for judging constitutionality in sex discrimination cases.The Court said any law that classifies people on the basis of gender “must be reasonable, not arbitrary, and must rest on some ground of difference.”

Reasonableness Standard

Decisions Under Substantial Interest StandardSince the Reed decision, courts have allowed some distinctions based on gender, while they have invalidated others.For example:

States cannot set different ages for men and women to purchase alcohol.States cannot exclude women from juries.Employers cannot require women to take maternity leave.Private clubs cannot exclude women from membership.States can give widows tax breaks and not widowers.

Congressional ActionsCongress has passed many laws protecting women from discrimination since the 1964 Civil Rights Act.

Citizens’ Right to KnowThe right of citizens and the press to know what the government is doing is an essential part of democracy.The government, however, is reluctant to share information about their policies.The government’s security classification system provides that information on government activities related to national security and foreign policy may be kept secret.

The Freedom of Information ActIn 1966 Congress passed the Freedom of Information Act requiring federal agencies to provide citizens access to public records on request.Exemptions are permitted for national defense materials, confidential personnel and financial data, and law enforcement files.

The Sunshine Act 1976The Sunshine Act requires the government to have any meetings open to the public with at least one week notice given.Some closed meetings are allowed, but a transcript, or summary record, of the meeting must be made.

Citizens’ Right to PrivacyMany government agencies collect data about people and that begs the question “do we have a right to privacy?”

The Court has interpreted several rights guaranteed in the Bill of Rights and the 14th Amendment to extend to personal behavior and privacy.The Court has also determined that the right to personal privacy is limited when the state has a “compelling need” to protect society.

The Constitution and Privacy

ConfidentialityIn 1996 the Court ruled that communications with mental health professionals are privileged, and ordinarily such professionals cannot be required to disclose the contents of therapy sessions.

Legislation on PrivacyCongress passed the Family Rights and Privacy Act (FERPA) in 1974 which allows people to inspect information about themselves in federal agency files and to challenge, correct, or amend the materials they find.

Sharing Credit InformationThe Fair Credit Reporting Act (1970) was written to control the collection and distribution of personal information.

Internet IssuesInternet companies have testified that voluntary compliance is the best approach to handling privacy issues in the online world.

The End