Chapter 6
Civil Rights
Civil Rights: The rights of people to
be treated without unreasonable or
unconstitutional differences.
Segregated water fountains
in 1939, p. 126
Russell Lee/ The Granger
Collection
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Civil Rights
Is it ever right for a government policy
to discriminate among groups of people?
THREE LEVELS OF JUSTIFICATION
Rational basis: Children not permitted to
purchase alcohol and tobacco.
Compelling state interest: Children without a
TB vaccination may not attend public school.
Exceedingly persuasive justification: VMI –
state supported college. NO GIRLS ALLOWED!
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The Black Predicament
• 1865: Approximately 4 million
former slaves were now free.
• They had no property, no wealth,
no education.
• Should the government have
done something to “lift them up?”
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The Black Predicament
• Fourteenth Amendment
guaranteed citizenship.
• Some northern congressmen
supported land redistribution
programs. None were passed.
• “40 acres and a mule” never
materialized.
• Freedmen’s Bureaus provided
relief for provisions, clothing, fuel,
schooling for children, but not
jobs.
• Freedmen’s Bureaus were a
temporary remedy.
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The Black Predicament
The former bondsman “was free from the
individual master but a slave of society. He
had neither money, property, nor friends.
He was free from the old plantation, but
he had nothing but the dusty road under
his feet…He was turned loose, naked,
hungry, and destitute to the open sky.”
Frederick Douglass
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The Black Predicament
Economic Individualism
19th Century social
science: Any person
could achieve
economic success by
adopting certain
behaviors:







hard work
temperance
honesty
education
industry
thrift
virtue
The Black Predicament
• Has economic equality between races been achieved?
• Is any further use of government policy needed to “level the
playing field?”
• Is it possible for a policy to improve economic potential for one
group without hurting another group?
The Black Predicament
Source: Center for American Progress
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Separate but Equal
Plessy v Ferguson (1896)
• Broad interpretation: the Constitution
is color blind, so no differential
treatment is acceptable.
Homer Plessy
• Narrow interpretation: equal legal
rights, but African Americans and
whites could otherwise be treated
differently
• Supreme Court adopted narrow view
in Plessy v. Ferguson (1896)
• Separate but equal: The Constitution
permitted separate facilities for blacks
and whites.
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Separate but Equal
Plessy v Ferguson (1896)
“…in the nature of things [the Fourteenth Amendment] could
not have been intended to abolish distinctions based upon color,
or to enforce social, as distinguished from political equality, or a
commingling of the two races unsatisfactory to either.“
Justice Henry Billings Brown, majority opinion
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Separate but Equal…is inherently unequal
Brown v Board of Education (1954)
• Segregated schools violate the equal protection clause
of the Fourteenth Amendment.
• Segregated education is bad because it “has a
detrimental effect upon colored children ”because it
creates “a feeling of inferiority as to their status in the
community…”
• Use of social science reasoning was needed for a
unanimous decision since the justices disagreed on the
Constitutional principles.
“Brown II”
Brown v Board of Education
(1955)
• The Court heard arguments again in
1955 to decide how to implement the
principles of Brown (i.e. how to
provide children a racially integrated
educational environment).
• The Court recognized that different
localities had different needs.
• The Court determined that
implementation must move forward
with “all deliberate speed.”
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Separate but Equal…is inherently unequal
Brown v Board of Education
(1954)
• Southern Congressmen signed
“Southern Manifesto” which condemned
the “abuse of judicial power.”
• Southern states dug in and prepared
for resistance to the Brown decision.
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South Carolina Senator
Strom Thurmond
Desegregation vs.
Integration
Desegregation
• The community has blacks and whites living in same
contiguous area.
• They are required by law to attend different schools.
(de jure segregation).
• “Desegregation” means removing the legal barrier to
racially mixed schools. Blacks and whites attend the
nearest school to their house.
Desegregation vs.
Integration
Integration
• Blacks and whites live – by choice – in separate parts
of the community.
• Regardless of the law, the school populations reflect
the racial mix of the community (de facto segregation).
• Should judicial remedies include requiring local
school districts to re-draw their boundaries to bring
black and white students together?
Swann v CharlotteMecklenburg Board of
Education (1970-71)
• Approximately 14,000 black students attended schools that
were either totally black or more than 99 percent black.
• Were federal courts constitutionally authorized to produce
remedies in segregated school districts?
• Yes (9-0). The Court ruled that if local governments violated
court mandates under Brown, federal courts had authority to
oversee implementation.
Swann v CharlotteMecklenburg Board of
Education (1970-71)
PROVISIONS
• To violate the Constitution, a school system must have
engaged in discrimination by law, practice or regulation.
• The existence of all-white or all-black schools in a district
with a history of segregation creates a presumption of intent
to discriminate.
• “Freedom of choice” in schools is not sufficient remedy for
past discrimination. Remedies can include racial quotas for
students and teachers, redrawn district lines, and courtordered busing.
• Not every school must reflect the social composition of the
school system as a whole.
School Desegregation Cases Summary
• BROWN:
o “Separate but equal” is inherently unequal.
o Segregated schools are unconstitutional.
• BROWN II:
o Ending discrimination in schools required “varied
local solutions.”
o Authorized local school districts and federal district
courts to devise remedies.
o Desegregation must be implemented “with all
deliberate speed.”
• SWANN:
o If local school districts violated court mandates, the
authority of the federal district court to devise
remedies was very broad (redistricting, ratios,
quotas, busing, etc).
The Campaign in Congress
• Early strategy was to get issues on the
political agenda by mobilizing opinion
through dramatic events.
• Sit-ins and freedom rides, voterregistration efforts
• Martin Luther King, Jr., Rosa Parks—
Montgomery bus boycott
• From nonviolent civil disobedience to the
“long, hot summers” of racial violence
(1964–68)
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The Campaign in Congress
Mixed results
•
Agenda-setting success – political leaders saw a
need to address problems.
• Coalition-building setbacks, because many whites
saw demonstrations and riots as law-breaking
The Campaign in Congress
Legislative politics (more setbacks)
• Opponents had strong defensive positions
• Senate Judiciary Committee controlled by
southern Democrats
• House Rules Committee controlled by
Howard Smith (Virginia)
•
Senate filibuster threat
• President Kennedy reluctant to submit
strong civil rights legislation
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South Carolina Senator
Strom Thurmond
The Campaign in Congress
Four developments broke this deadlock
• Public opinion changed regarding school integration and
access to public facilities.
• Violent reactions of segregationists received extensive
coverage by the media.
• Kennedy assassination—November 22, 1963
• Democratic landslide in 1964 allowed northern Democrats
to prevail in Congress.
The Campaign in Congress
Five bills pass
• 1957, 1960, 1965: voting rights laws
• 1968: Fair Housing Act
• 1964 Civil Rights Act: the high point—employment,
public accommodations, voting, schools
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Civil Rights Act of 1964
Major provisions
Title I: Barred unequal application of voter registration
requirements, but did not abolish literacy tests sometimes
used to disqualify African Americans and poor white voters.
Title II: Outlawed discrimination in hotels, motels,
restaurants, theaters, and all other public accommodations
engaged in interstate commerce; exempted private clubs
without defining "private," thereby allowing a loophole.
Title III: Encouraged the desegregation of public schools
and authorized the U. S. Attorney General to file suits to
force school desegregation, but did not authorize busing as
a means to overcome segregation based on residence.
Civil Rights Act of 1964
Major provisions
Title IV: Authorized but did not require withdrawal of federal
funds from programs which practiced discrimination.
Title V: Outlawed discrimination in employment in any
business exceeding twenty five people and created an Equal
Employment Opportunities Commission to review complaints,
although it lacked meaningful enforcement powers.
Civil Rights Act
of 1964
Heart of Atlanta Motel v. U.S.
(1964)
• The 216-room Heart of Atlanta Motel was located
near Interstates 75 and 85.
• The owner benefitted from convention business and
advertised in magazines with a national circulation.
• Approximately 75% of registered guests were from
out of state.
• The Heart of Atlanta Motel refused to rent rooms to
African Americans.
Civil Rights Act
of 1964
Heart of Atlanta Motel v. U.S.
(1964)
• The owner claimed that Title II of the Civil Rights Act
violated his right to serve guests of his choosing.
• He claimed Congress had exceeded its power under
the Commerce Clause.
IN A NUTSHELL
The Court ruled 9-0 that Congress has the
power to regulate “enterprises having a
direct and substantial relation to the
interstate flow of goods and people. . .“
Hotels do not have a “right” to select guests
as they so choose without any government
regulation.
Fair Housing Act of 1968
Prohibits discrimination in the
sale, rental, and financing of
dwellings, and in other housingrelated transactions, based on
race, color, national origin,
religion, sex, familial status and
handicap.
The Campaign in Congress
• Since 1960s, mood of Congress has shifted and is
now supportive of civil rights legislation.
• Change in congressional response reflects both
dramatic rise in African American voting and change
in white elite opinion.
• In 2001 over 9,000 blacks held elected office.
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Figure 6.2 Growing Support Among
Southern Democrats in Congress for
Civil Rights Bills
Sources:
Congressional
Quarterly,
Congress and the
Nation, vols.
1, 2, 3, 7, 8.
Copyright © 2011 Cengage
Sources: Statistical Abstract of the United States, 2003, table 417.
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School integration
in the 21st Century
• De facto segregation still exists in U.S.
schools.
• Most African-American (and Latino)
children live in urban areas and attend
schools with almost no non-Hispanic whites.
• The goal expressed in Brown has not been
fully realized.
Latinos and Equal
Rights
• Latinos are the largest and fastest growing ethnic
minority in the U.S.
• Mexican-Americans – largest group, strongly support
Democratic party.
• Puerto Ricans – second largest group, generally support
Democratic party.
• Cuban-Americans – third-largest group, more
conservative and support Republican party
• Latinos are becoming more politically active
• Sotomayor: First Hispanic justice of the U.S. Supreme
Court
Latinos and Equal
Rights
Should U.S. public
schools provide
classroom instruction
in both English and
Spanish?
Latinos and Equal
Rights
• Major political issue for Latinos has been bilingual education
programs.
• Language is a barrier to success in school; schools have
struggled to educate newly-arrived Spanish-speaking
children.
• Supporters: Spanish instruction should be provided.
• Opponents: English is necessary for economic success and
must be learned. ESL programs slow the learning of English.
• California, Arizona and Massachusetts have banned bilingual
education.
Women and Equal Rights
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Women and Equal Rights
• Legal tradition in America
was based on protecting
women.
• Women viewed as fragile, not
as strong, not as self-reliant.
• In late 18th Century women
had few legal rights, little
education and almost no
occupational choices.
• Coverture – a married woman
had no individual legal
identity. She was, legally, her
husband.
Women and Equal
Rights
• Women and the military draft has been a controversial
issue.
• Should women be treated differently than men
regarding military service?
• Rostker v Goldberg (1980): Congress may require men
to register for draft but not women. Not a violation of 5th
Amendment due process clause.
• An all-male court ruled 6-3 that men and women are
not “similarly situated” for military service.
• 2013: Sec. of Defense Leon Panetta lifts ban on women
in combat roles. Implementation by 2016.
Women and Equal
Rights
• Equal Rights Amendment: “Equality of rights under the
law shall not be denied or abridged by the United States
or any State on account of sex.”
• Passed by Congress in 1972.
• By 1978, 35 states had ratified. (38 needed)
• Draft of women became an issue. More debate ensued.
• Time limit for ratification passed.
• ERA died.
Women and Equal
Rights
• United States v Virginia (1996)
• VMI – state supported all-male school
• General Assembly established “equivalent” all-female
leadership program at Mary Baldwin College (Virginia
Women’s Institute for Leadership).
• Did Virginia's creation of a women's-only academy, as a
comparable program to a male-only academy, satisfy the
Fourteenth Amendment's Equal Protection Clause?
• No. 7-1 VMI failed to show an "exceedingly persuasive
justification“ for an all-male admissions policy.
Women and Equal
Rights
• Minimum scrutiny: Government must have a “rational basis”
for legal distinctions. They are not arbitrary. Example:
prohibiting the sale of alcohol to children.
• Strict scrutiny: Government must have a “compelling state
interest” in making legal distinctions. Example: Prohibiting a
person awaiting trial from traveling freely.
• Court declared that gender-based distinctions must meet
“heightened scrutiny.”
• Virginia failed to show "exceedingly persuasive justification"
for VMI's gender-biased admissions policy and was thus
violating the equal protection clause.
Women and Equal Rights
Sexual Harassment
• Quid pro quo rule: Offering promotion, pay
raise, better work conditions, etc. in exchange
for sexual favors is illegal. Employer is strictly
liable.
• Hostile environment: A pattern of sexual
joking, teasing or language creates a hostile
environment. Employer that allows this is
“negligent” and therefore legally liable.
Affirmative Action



Equality of Opportunity – Giving people
an equal chance to succeed.
Equality of Results – Making certain that
people achieve the same result
Reverse discrimination – Using race or
sex to give preferential treatment to some
people.
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Affirmative Action
• Do you support
programs which are
designed to help blacks
get better jobs and
education?
• Do you support
programs which give
special preferences to
qualified blacks in hiring
and education?
60% support, 30% oppose
Perceived as: compensatory
action
39% support, 47% oppose
Perceived as: preferential
treatment
Source: Pew Research
Affirmative Action
Source: Pew Research
Board of Regents, University
of California v Bakke (1978)
• UC-Davis Medical School reserved 16 out of 100 places
in each entering class for “qualified” minority applicants.
• Quota system – a system that gives preferential
treatment to a protected group of people and specifies a
targeted number to admit, employ, etc.
• Purpose: Promote equal representation in the medical
profession by redressing the past unfair exclusion of
minority applicants.
• Allan Bakke: a white applicant to UCD medical school
who was rejected twice. He claimed that UCD was
practicing reverse discrimination which violated the equal
protection clause of the 14th Amendment.
Board of Regents, University
of California v Bakke
• Issue: Did the U.C. violate the equal protection clause
and 1964 Civil Rights Act through its affirmative action
program?
• Yes and no. Four justices said yes, four said no.
• Justice Lewis Powell cast the tie-breaking vote to
force the medical school to admit Bakke.
• Powell then joined both opinions (majority and
dissenting).
• He agreed that UC’s use of racial quotas violated the
equal protection clause BUT that the use of race as one
admission criteria is permissible under the law.
Two more college
admissions cases
• University of Michigan, 2003.
• Both cases involved white women whose applications were
rejected in favor of minority applicants with lower test
scores and GPAs.
•
Grantz v. Bollinger – Admissions based on point system that
awarded more points solely for being a minority student.
• SCOTUS ruled that the point system was not carefully
designed to achieve diversity and the result was reverse
discrimination.
• Grutter v. Bollinger – Admission formula did not involve a
point system. Race was just one factor considered in
admissions process.
NEXT UP…
Fisher v. University of Texas at Austin
• SCOTUS will issue decision before end
of this session in June.
• Decision could overturn Grutter v Bollinger if the Court
rules that race may not be a factor at all in admissions
policies.
• 2002 study at UT-A: 79% of classes had zero or one
African American students.
• UT-A admissions policy is “narrowly tailored to achieve
the educational benefits of a diverse student body.”
•
Plaintiffs claim that racial diversity can be achieved
through “race neutral alternatives” in the admissions
policy.
More on quota systems
 United Steelworkers v Weber (1979): Kaiser Aluminum
sued for preferential hiring practices. Court ruled that the
government cannot forbid use of quotas by a private
company.
 Richmond v Croson (1989): Richmond, VA, required firms
receiving government contracts to sub-contract 30% of
their business to minority-owned companies. The Court
ruled that “general assertions” of past discrimination
cannot justify the use of “rigid” racial quota systems.
 Parents v Seattle School District (2007) Racial quotas
must be “narrowly tailored” to serve a “compelling
government interest.”
Gays and the Constitution
Issue include:



Gay marriage
Gays in the military
Adoption by gays
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Gays and the Constitution
Lawrence v Texas (2003)
• Responding to a reported weapons disturbance in
a private residence, police entered an apartment
and found Lawrence engaged in a consensual
sexual act with another man.
• Lawrence was arrested and convicted under a
state law prohibiting homosexual sex.
• Issue: Does the criminalization of private sexual
conduct between members of the same sex violate
the fundamental rights liberty and privacy?
• Constitutional issue: Does the Texas law violate
the due process clause of the 14th Amendment?
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Gays and the Constitution
Lawrence v Texas (2003)
• Yes. In a 6-3 vote (Wilson says 5-4), the Court
ruled that the 14th Amendment’s due process
clause protects the liberty to engage in such
conduct.
• "Their right to liberty under the Due Process
Clause gives them the full right to engage in
their conduct without intervention of the
government. The Texas statute furthers no
legitimate state interest which can justify its
intrusion into the personal and private life of the
individual."
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Gays and the Constitution
Marriage Equality
• Defense of Marriage Act 1996 – Passed by
Congress, signed by Clinton
• No state has to recognize a same-sex
marriage granted in another state.
• SCOTUS will rule on DOMA before end of
June.
• Nine states (Connecticut, Iowa,
Massachusetts, Maine, Vermont, New
Hampshire, Maryland, New York,
Washington) and Washington DC have
authorized same-sex marriage .
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Marriage Equality
Loving v. Virginia
"Almighty God created the races white, black, yellow,
malay and red, and He placed them on separate
continents. And but for the interference with His
arrangement there would be no cause for such
marriages. The fact that He separated the races shows
that He did not intend for the races to mix."
Virginia Circuit Court judge as he sentenced Mildred and
Richard Loving to one year in jail for getting married in 1958.
Should this be the basis for civil law?
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