Civil Rights: Equality

An American Dilemma: Promotion of equality conflicts with demands for freedom…

Definition

• Policies to protect people against discrimination by government

• Three types of discrimination:– Race– Gender– Other

Concept of Equality

• Does NOT appear in the entire Const, not even in BoR

• Only place = 14th A’t– “equal protection of the law” guaranteed to all

citizens• Initially meant only “life, liberty &

property” but has expanded

Tests Used to Decide Discrimination Cases

• 1. Rational basis test (most lenient)– Used to decide age/ $ cases– A law is const’al IF there is a reasonable

relationship b/the purpose of the law & a legitimate govt objective (health, safety, etc)

– Burden of proof on the individual who challenges the law

– Ex. airline pilots over 61 not ok… safety– Ex. 18 year olds drinking, not ok…alcohol

accidents

• 2. Intermediate scrutiny test (used w/gender cases)– State must prove a relationship b/law &

objective

• 3. Strict scrutiny test (used w/race cases)– State must prove compelling reasons for

enacting a law (ex. nat’l security, to remedy past discrimination)

– State must have used least restrictive means

History of Race Cases

• Slavery to 1865– Scott v. Sandford

(1857): black men, free or slave = chattel, no rights as citizens AND Congress has no power to ban slavery

– 13th Amendment (1865) abolished slavery

14th Amendment

• “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge [deprive] the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Citizenship by Birth

• Jus soli- “law of the soil”

• Grants citizenship to nearly all people born in US or Am territories

• Jus sanguinis- “law of blood”

• If an individual is born in a foreign country and both parents are US citizens, the child is a citizen if at least one parent is a legal resident of the US

• If only one parent is an American citizen, the parent must have lived in the US for at least 5 years, 2 of which had to occur after the age of 14

• Reconstruction & Resegregation– “occupation,” state legislatures had to ratify

new amendments; no former Confederates could hold office

– Jim Crow laws returned w/Home Rule… de jure & de facto segregation

– Plessy v. Ferguson (1896) established “separate but equal” (RR transportation)

Retired professor George McLaurin’s shameful accommodation outside of the classroom when a federal district court ordered his admission into the University of

Oklahoma’s doctoral program.

Era of Civil Rights• Sweatt v. Painter (1950)

– Separate MUST be truly equal

• Brown v. Board of Education (1954)– Unanimously ended

segregation as violation of 14th Amendment Equal Protection Clause

– Led to bussing; Rosa Parks 1955, MLK, marches, non-violence, sit-ins

Era of Civil Rights

• Hernandez v. Texas (1953)– the Fourteenth

Amendment protects those beyond the two classes of white or Negro

– Hispanics cannot be barred from juries

Civil Rights Act of 1964• Racial discrimination illegal in places of public

accommodation (hotels, restaurants, etc b/c commerce clause!)

• Forbade discrimination on basis of race, color, natl origin, religion or gender

• Created EEOC to monitor and enforce protection against job discrimination

• Withheld federal grants from st/loc govts who practiced discrimination

• Strengthened voting rights

The right to vote

• Suffrage was denied in a variety of ways–Grandfather clauses–Poll taxes–Literacy tests–White primaries–Violence and intimidation

Voting Rights Act of 1965

• Although 15th Amendment in 1870 guaranteed African-Americans the right to vote, South used many methods to restrict voting

• Act prohibited any govt from using any procedure denying the right to vote on the basis of race or color

Other Minority Groups• Native Americans became citizens in 1924;

tribal self-rule recognized• Hispanic-Americans = largest minority;

MALDEF modeled on NAACP• Asian-Americans = fastest-growing

minority– Korematsu v. US (1944): Su Ct upheld need to

protect against espionage > Fred’s rights

Women’s Rights• Part of abolitionist movement; little other

agreement• Seneca Falls Declaration of Sentiments &

Resolutions in 1848– Fought “coverture” which said married

women’s identity was her husband’s… no signing of contracts or owning property, or right to vote

• 19th Amendment in 1920 gave women right to vote

• Time of protectionist laws– Hours, overtime,

physical nature or work also kept men from competing w/women for jobs

• Reed v. Reed (1971)– First Su Ct ruling

on gender discrimination

– Must be rational!

Women in the Workplace• EEOC protects women (not just race)• Title IX of Education Act of 1972 forbade gender

discrimination in federally-subsidized education, including athletics

• Pregnancy now covered in sick leave & health benefits• Military: no draft for women, no ground combat

• US v. Virginia (1996)– State-funded military colleges (VMI, in this case) must admit

women (not separate but =!!)

Sexual Harassment

• In 1986, Su Ct ruled that a hostile or abusive work environment = discrimination forbidden by the Civil Rights Act of 1964

• In 1988, ruled that employers are responsible for preventing/eliminating harassment at work, even if management doesn’t know about it!

Other Groups

• Age discrimination• Disabled (today, wheelchair ramps, toilet

grab bars, Braille signs)– Americans w/Disabilities Act 1990 required

employers to make “reasonable accommodations” and prevents discrimination

– Ex. Casey Martin v. PGA , Lane v. Tennessee (2004) (access to courts)

Definition of Disabled??

• AIDS?? Yes• Epilepsy, high blood pressure, eyesight??

– Not if it can be addressed w/medication or tools• Biggest concern = $ needed to

accommodate

Gays & Lesbians• Not much public support to extend

protections to them, but changing– Support for “civil unions” but not

marriage• Clinton’s “don’t ask, don’t tell”

policy in military 1993; must promise celibacy if “come out”

• Congress just repealed Don’t Ask Don’t Tell in 2010

• Romer v. Evans (1996)– Su Ct voided a state

amendment voted on by the population that denied protection to homosexuals

• Boy Scouts v. Dale (2000)– Could NOT allow

gay troop leaders b/c private organization, inconsistent w/ their values

• Lawrence and Gardner v. Texas (2003)– 6-3; Texas’ anti-sodomy law = violation of 14th

Amendment Due Process & Equal Protection Clause… BUT doesn’t guarantee right to same-sex marriage

Current Controversy• 1996 Federal Defense

of Marriage Act– Lets states refuse to

recognize other states’ same-sex marriages

– State laws preventing gays/lesbians from adopting children

Affirmative Action

• Definition– Special attention or

compensatory treatment to members of previously disadvantaged groups

• Goal– Equal results– NOT just equal

opportunity– Typical means =

quotasFreedom is not enough. You do not wipe away the scars of centuries. You do not take a man who for years has been hobbled by chains, liberate him, bring him to

the starting line of a race saying, 'You are free to compete with all the others', and still justly believe you have been completely fair. Thus it is not enough to

open the gates of opportunity. --LBJ

• Regents of University of California v. Bakke (1978)– Race can be a

factor in admissions, but not the factor

– No quotas

• Adarand Constructors v. Pena (1995)– Fed programs that

classify people by race, even for benign purposes, should be presumed to be unconst’al

• Gratz v. Bollinger (undergrad student won), Grutter v. Bollinger (grad student lost) (2003)– Univ of Michigan law school– Yes to affirmative action– No to point system!

Do the following situations violate the 14th Amendment’s Equal Protection Clause?

1. Due to the fact that most fast-food restaurants are robbed during closing hours, Kouba’s Coney Dogs has a policy that does not allow women to be hired to work the late closing shift.

2. A maximum-security prison in the state of Texas does not allow female prison guards in its employ.

3. In an effort to reduce crime, a community passes a curfew law that requires all persons under the age of 17 off the streets M-F between 10 pm and 5 am.

4. Ambulance service charges individual passengers $75 for transportation to any local hospital. However, if a passenger weighs over 300 pounds, a $25 fee is added on.

5. Kouba’s Kool House of Coffee requires that all male patrons wear a sport coat and tie.

6. The state of Texas requires all public employees to be citizens of the United States.

7. A university, in an effort to promote diversity on its college campus, considers race and ethnicity when admitting students.