CAN STATES DISCRIMINATE OR FORCE OTHERS
TO DISCRIMINATE?
• 14th Amendment: “No state shall make or enforce any law
which shall…deny to any person within its jurisdiction equal
protection before the law.”
• The Slaughter House Cases (1873): Does the 14th Amend
protect everybody? Initially it didn’t because that wasn’t
what the drafters of the 14th Amend intended?
• Can states require separation as long as services are equal?
– Plessy v. Ferguson (1896); Univ. of Missouri Law School (1938); Sweat
v. Painter (1950)
– Korematsu v. US (1944): Strict scrutiny/Suspect classification
– Brown v. Board (1954): Separate is inherently unequal; states must
undo segregation in public facilities.
– VMI and the admission of women (1996)
• Does the Voting Rights Act (VRA) of 1965 require
discrimination? How could it be legal?
CAN GOVT STOP INDIVIDUALS FROM
DISCRIMINATING AGAINST ONE ANOTHER?
• Facilitating Private Discrimination: The Civil Rights Act of
1875 vs. The Civil Rights Cases (1883)
• Undoing Private Discrimination
• Smith v. Allwright (1944) and primaries; Shelly v. Kramer
(1948) and housing
• Executive Orders
• Civil Rights Act of 1964
– Katzenbach v. McClury (1964) and the Commerce Clause
• Americans with Disabilities Act (1990)
• Can the government go too far? Violence Against Women
Act case (2000)
CAN GOVERNMENT OR PRIVATE
COMPANIES USE AFFIRMATIVE ACTION?
• Can any type of reverse discrimination pass strict scrutiny?
The debate over the Voting Rights Act
• Affirmative action by private companies has a low standard:
United Steelworkers v. Weber (1979)
• Affirmative action in state colleges can’t use quotas Bakke v.
UC Davis (1973), but it is legal sometimes: two cases
involving the Univ of Michigan 2003
• The burden of proof lies wit the government: The Crosan
decision (1989) and contracts
• Affirmative action in firing is different than in hiring: The
Wygant case (1987)
• But promotions can be required when egregious
discrimination is obvious: The Paradise case (1989)
THREE PHASES OF THE CIVIL RIGHTS
MOVEMENT
Legalism and the NAACP
• The effectiveness of the strategy was limited
Non-violent Direct Action (NVDA)
• MLK in Montgomery (1954-55)
• Southern Christian Leadership Conference (SCLC)
• Student Non-violent Coordinating Committee (SNCC)
• Congress for Racial Equality (CORE)
• Freedom Rides (1961)
• The revolution of minds. Serious change among white
America occurred with respect to racism between 1944 and
1960; however, as of 1960, over half of Americans said that
they would not approve of an an African-American family
being their next door neighbor.
THREE PHASES OF THE CIVIL RIGHTS
MOVEMENT
Political Power Phase:
• Taking the vote to the 95% of African-Americans in the South
who did not vote. Mississippi Freedom Summer (1964)
• 1964 Civil Rights Act (1964)
• Voting Rights Act of 1965
• Black power phase? Was violence (especially in 1968) a dead
end, or was it an integral part in the success of more
moderate approaches to civil rights?