Civil Rights and Public Policy

1
Civil Rights and Public Policy

• Chapter 5

2
Civil Rights

• Policies designed to protect people against
  arbitrary or discriminatory treatment by
  government officials or individuals
• Positive Rights

3
Equality v. Inequality

• Racial discrimination
• Gender discrimination
• Discrimination based on age, disability, sexual
  orientation, and other factors

4
What might be included?

• To live free of bondage and intimidation
• To enter into contracts and own property
• To have access to businesses that serve the
  public
• To enjoy equal educational opportunities
• And many other things

5
Conceptions of Equality

• all men are created equal
• What exactly did (does) this mean?
• In what sense can humans be considered equal?
• What is equality of opportunity?
• What are equal results or equal rewards?

6
Constitution and Inequality

• The Constitution does not mention the word
  equality
• It only appears in the 14th Amendment
• One of the Reconstruction Amendments
• Contains the phrase equal protection of the
  laws
• Ignored for 100 years it is now one of the most
  powerful tools for the promotion of equality

7
Discrimination

• The state discriminates every time it makes
  classification
• The Court is concerned less with the fact of
  discrimination and more with reasons used by the
  state to justify its actions
• They are concerned with noxious or malignant
  forms of state discrimination
• The state action doctrine means that the
  Constitution does not apply to private acts of
  discrimination

8
Equal Protection of the Laws

• They do not require that the government must
  promote equality
• But all must have equal stature before the law
  no arbitrary distinctions
• Strauder v. West Virginia (1880) the courts
  were going to interpret this phrase in a very
  narrow sense
• The America of the time accepted
  institutionalized racism Religion Science

9
Standards for Classification

• There are three levels of scrutiny, or analysis,
  called standards of review
• Critics of the Court, including its own members,
  have called these standards arbitrary, confusing,
  invidious, and unnecessary
• Either the Amendment provides equal protection or
  it doesnt. The wording makes no distinctions

10
Basis of Standard of Applying theClassification
Review Test

• Race
• Inherently suspect (difficult to meet)
• Is the classification necessary to accomplish a
  compelling governmental purpose and the least
  restrictive way to reach the goal

11
Basis of Standard of Applying theClassification
Review Test

• Gender
• Intermediate standard,
• a.k.a. semi- suspect or quasi-suspect (moderately
  difficult to meet)
• Does the classification bear a substantial
  relationship to an important governmental goal?

12
Basis of Standard of Applying theClassification
Review Test

• Other (age, wealth, etc.)
• Non-suspect or Reasonable (easy to meet)
• Does the classification have a rational
  relationship to a legitimate governmental goal?
• Also called the rationality test

13
The Era of Reconstruction

• Many African-Americans had held public office in
  the immediate post-war years
• In 1876 Rutherford Hayes (R) ended Reconstruction
  as part of a political deal leaving southern
  blacks to their own devices
• Southern states almost immediately passed Jim
  Crow laws relegating them to second class
  citizenship
• The Ku Klux Klan and other organizations
  terrorized the black community with impunity

14
Post Reconstruction

• Blacks were as likely to be discriminated against
  in the north as in the south
• Almost all states had black codes
• In a series of decisions the Court restricted the
  scope of the Civil Rights Acts of the 1860s and
  70s
• They also restricted the reach of the 15th
  Amendment by upholding literacy tests, poll
  taxes, and all white primaries

15
Plessy v. Ferguson (1896)

• Involved a Louisiana test case where a black man,
  Homer Plessy, (7/8s white) was denied a seat in a
  whites only rail car
• The Court decided that the 14th Amendment was
  only to mean equality before the law
• It was not meant to ensure political, social, or
  cultural equality
• The law applied to both races equally

16
Plessy v. Ferguson

• The only thing necessary is for the statute to be
  reasonable
• Who decides what is reasonable?
• The legislature!
• The Court also found that the only reason this
  law gave the appearance of inferiority was
  because the blacks chose to give it that meaning
• Laws could not alter long-established customs of
  society
• Separate but equal became the standard

17
The Dissent

• Justice John Marshall Harlan
• In the view of the Constitution, in the eye of
  the law, there is in this country no superior,
  dominant, ruling class of citizens.Our
  Constitution is colorblind, and neither knows nor
  tolerates classes among citizens.
• Future Court decisions placed the emphasis on the
  separate rather than on the equal
• In actual fact there was no approximation of
  equal ever effectually attempted

18
Results

• A virtual system of apartheid resulted from the
  decision
• Racial discrimination and segregation were now
  not only the de facto law of the land, but the de
  jure as well
• The standard of review in cases of racial
  discrimination was to be the lowly rationality
  test.

19
Moving Forward

• The NAACP (National Association for the
  Advancement of Colored People) set out to attack
  Plessy by going after the equal component
• Missouri ex rel. Gaines v. Canada (1938) and
  Sweatt v. Painter (1950) both involved the issue
  of separate law schools
• Testimony was introduced involving intangible
  inequalities

20
Brown v. Topeka Board of Education (1954)

• The Supreme Court decision holding that school
  segregation in Topeka. Kansas was inherently
  unconstitutional because it violated the 14th
  Amendments guarantee of equal protection. This
  landmark case ended the era of legal segregation
  in the United States

21
Brown v. Topeka Board of Education

• It was a combination of several cases
• Heard first in 1952 but reargued in 1953
• Chief Justice Vinson, a supporter of Plessy died
  just before the Court opened its session
• President Eisenhower named Earl Warren as Chief
  Justice
• He convinced the Court to render a unanimous
  decision in favor of desegregation

22
Brown v. Topeka Board of Education

• The decision overturned Plessy
• Several southern states issued a Manifesto in
  which they claimed the authority to nullify the
  law within their borders
• 100 congressmen signed a resolution condemning
  the clear abuse of judicial authority
• The use of social science data was attacked by
  certain legal scholars - intangibles

23
Brown II

• In a decision rendered one year later the Court
  answered the question as to who was to implement
  the decision of Brown I
• It was to be the states themselves and they were
  to do so with all deliberate speed
• This seemed to leave the possibility of foot
  dragging at the local level
• As Justice Frankfurter commented," only one
  thunderbolt from Zeus at a time

24
Results

• By 1964 delays were no longer tolerable
• Federal funds would be cut to school systems that
  remained segregated
• The Court found that busing could be used to
  create integrated schools (Swann v. Mecklenburg
  County Schools (1971)
• Busing came to the north as well as the south
• Busing has never been popular with either blacks
  or whites

25
Civil Rights Act of 1964

• Made racial discrimination illegal in hotels,
  motels, restaurants, and other places of public
  accommodation
• Forbade discrimination in employment on the basis
  of race, color, national origin, religion, or
  gender
• Created the Equal Employment Opportunity
  Commission (EEOC) to monitor and enforce
  protections against discrimination

26
Civil Rights Act of 1964

• Provided for withholding federal grants from
  state and local governments and other
  institutions that practiced racial discrimination
• Strengthened voting rights legislation
• Authorized the U.S. Justice Department to
  initiate law suits to desegregate public schools
  and facilities

27
The Right to Vote

• The Court had struck down numerous state laws
  designed to keep blacks from voting
• Grandfather clause Guinn v. U.S. (1915)
• White primary Smith v. Allwright (1944)
• Poll taxes 24th Amendment (1964)
• Poll taxes in state elections Harper v.
  Virginia State Board of Elections (1966)

28
Voting Rights Act of 1965

• Prohibited any government from using voting
  procedures that denied a person the vote on the
  basis of race or color
• Hundreds of thousands of black voters registered
  to vote in southern states
• Ensured that their votes would not be diluted
  through gerrymandering
• Lately the Court has not looked kindly on using
  race as a basis for districting

29
Native Americans

• American Indians were only given the right to
  vote in 1924
• Indian Claims Act (1946) designed to settle all
  of the financial disputes arising over the
  seizing of their lands
• Santa Clara Pueblo v. Martinez (1978)
  strengthened the tribal powers of individual
  tribe members and furthered self-government by
  Indian tribes

30
Hispanic Americans

• The largest minority group
• Mexican American Legal Defense and Education Fund
  (MALDEF, 1968)
• Led by Cesar Chavez who organized migrant workers
  as the United Farm Workers
• Like all other minorities they benefited from the
  civil rights movement of the 1960s
• They are now a powerful political force in many
  districts and cities

31
Asian Americans

• Fastest growing minority group
• They suffered from discrimination in education,
  housing, voting, as well as restrictions on
  immigration and naturalization
• Korematsu v. United States (1944) upheld the
  internment of more than 100,000
  Japanese-Americans in encampments during World
  War II (the only time a racial restriction has
  ever passed strict scrutiny)

32
Women

• Seneca Falls Convention (1848) called for the
  repeal of laws that were directly aimed at
  maintaining female legal subjugation
• Women were denied the right to vote in most
  states
• 19th Amendment (1920) officially guaranteed
  women the right to vote
• President Wilson was initially opposed but WWI
  changed his mind

33
Equal Rights Amendment

• Originally proposed in 1923 but not voted on
  until 1972 when it was defeated
• Despite receiving the right to vote, the status
  of women went largely unchanged for 50 years
• Many women had opposing points of view about the
  roles that they should play in society
• Many laws were passed to protect women

34
Gender Discrimination

• Reed v. Reed (1971) In a surprise decision the
  Court struck down an Idaho state law that gave
  men precedence over women in the administering of
  an estate
• All of the previous cases had seen gender
  discrimination upheld because the laws merely had
  to be reasonable
• If not reasonable, must it be strict scrutiny?

35
Gender Discrimination

• Frontiero v. Richardson (1973) A plurality (4)
  of the Court called for strict scrutiny saying
  the discrimination based on gender would also be
  considered suspect
• Three other judges were in agreement on the
  unconstitutionality of the law but opposed the
  strict scrutiny requirement
• Justice Rehnquist disagreed with all of the
  others and favored reasonableness

36
Suspect Category

• What makes a classification such as race suspect?
• Racial classifications are suspect because there
  is a long history of racial discrimination in the
  U.S.
• Racial classifications are suspect because it is
  difficult to imagine situations in which the
  state might discriminate for reasons that are not
  stereotypical or invidious
• Race is an immutable characteristic and cannot be
  changed and is beyond the control of the
  individual

37
Craig v. Boren (1976)

• Females in Oklahoma could purchase 3.2 beer at
  age 18 but males could not
• This is the first time that the Court finds that
  gender-based classifications must meet more than
  the rationality test but less than the strict
  scrutiny test
• An intermediate test would be used to determine
  if a state had a substantial interest in enacting
  a law

38
Women in the Workplace

• Civil Rights act of 1964 banned gender
  discrimination in employment
• Title IX of the Education Act of 1972 forbade
  gender discrimination in federally funded
  education programs including sports
• Pregnancy Discrimination Act of 1978 made it
  illegal to exclude pregnancy and childbirth from
  sick leave and health benefits plans
• Dothard v. Rawlinson (1977) physical
  requirements for jobs must not be arbitrary

39
Sexual Harrassment

• The Court has indicated on several occasions that
  a hostile or abusive work environment is a form
  of gender discrimination
• Employers are responsible for the preventing and
  eliminating harassment at work
• Schools are also covered including
  student-on-student harassment
• The military has also come under fire for its
  handling of sexual harassment claims

40
Other Categories

• Age discrimination cases are only subject to the
  rationality test
• The Americans with Disabilities Act of 1990
  strengthened the protections against
  discrimination in the workplace, at school, and
  in the public sphere reasonable
  accommodations must be provided to those with
  disabilities
• A negative has always been the costs involved

41
Gay and Lesbian Rights

• They may find it the hardest to gain civil rights
• Bowers v. Hardwick (1986) found a Georgia law
  banning homosexual activity constitutional
• Lawrence v. Texas (2003) the Court overturned
  Bowers v. Hardwick finding the Texas law an undue
  intrusion of the right to privacy

42
Affirmative Action

• A policy designed to give special attention to or
  compensatory treatment of members of some
  previously disadvantaged group
• An effort to move beyond equal opportunity to
  equal results
• This often took the form of numerical quotas
• Used by schools of all sorts, police and fire
  departments, government procurement agencies, etc.

43
Affirmative Action

• Regents of the University of California v. Bakke
  (1978) The UC-Davis medical school reserved 16
  of 100 openings for minorities, Bakke sued saying
  he was denied equal protection of the law (14th)
  and that it violated Title VI of the Civil Rights
  Act of 1964 which forbids racial or ethnic
  preferences in programs supported by federal money

44
Affirmative Action

• The state argued that it had a compelling
  interest in diversifying the student body to
  reflect the composition of its population
• In a 5 to 4 decision the Court agreed with the
  need for diversity as a legitimate interest but
  found quotas unacceptable as a method for fixing
  the problem
• In cases such as this the intermediate test could
  be applied

45
Affirmative Action

• In a series of decisions handed down between 1978
  and 1995 the Court seemed unable to agree on
  exactly what the standards should be for deciding
  these types of cases
• Should benign racial classifications be held to
  the same scrutiny as invidious ones
• When, if ever, is it ever permissible for the
  state to discriminate based on race?

46
Affirmative Action

• Grutter v. Bolinger (2003) The Court found that
  strict scrutiny applies to all affirmative action
  cases. In this case the University of Michigan
  Law School could use racially biased criteria for
  purposes of admission because it was narrowly
  tailored to achieve a compelling state interest
• Gratz v. Bolinger (2003) U of M could not use a
  point system in its undergraduate admissions
  process because it constituted a quotas system
• These decisions did not settle the question of
  when is discrimination permissible

47
Civil Rights

• Equality, while a basic principle of democracy,
  can lead to what Madison called the tyranny of
  the majority
• The circumstances of minorities changed when they
  gained the vote
• Civil rights laws increase the scope and power of
  government
• Civil rights laws also protect the individual
  against collective discrimination