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Election of minority/women officials
Disparities in criminal sentencing
Minority hiring and contracting
Affirmative action in employment and college
admissions
Abortion
Gay rights/gay marriage
Immigration
Public K-12 education: methods of integration
and issues of funding equity
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To what extent may race/gender be taken into
account in formulating policies to erase the
effects of previous discrimination on the basis
of race?
Does any race-conscious policy, even one
designed to correct previous discrimination,
violate the 14th Amendment’s guarantee of
equal protection of the laws?
Courts have ruled that “narrowly tailored”
remedies are permissible and subject to “strict
scrutiny” by the courts
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Effort to ensure that economic development
benefits all segments of the community
Minority “set-asides” are a guarantee that a
certain percentage of state/local business
(construction contracts, subcontracts,
purchasing, etc.) is done with companies
owned or controlled by minorities or women.
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The city of Richmond, VA, required companies
granted city contracts to subcontract 30% of the
work to minority-owned firms.
This was intended to correct for past
discrimination against minority-owned
businesses.
This was challenged and the US Supreme
Court struck it down as a quota.
Subsequent decisions have held that “goals”
are permissible but quotas are not.
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Adarand Constructors v. Pena (1995): A minorityowned company, identified as a
“disadvantaged” business, was given a
highway contract despite the fact that Adarand
made a lower bid.
This practice was declared unconstitutional on
the grounds that “race” was automatically
assumed to constitute a “disadvantage.” This
established the legal standard that race-based
programs must be narrowly tailored and
subject to strict scrutiny.
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The medical school at the University of California
at Davis reserved 16% of the seats in each class for
black applicants.
Allan Bakke, a white man, was rejected for
admission.
Black candidates with lower grades and test scores
than Bakke were admitted because of the 16%
quota.
The Supreme Court ruled that affirmative action as
a means of correcting previous discrimination is
constitutional, but quotas are not.
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Two cases from the University of Michigan
The law school had an admissions policy which took race into
account but did not have a quota. Barbara Grutter, a white woman
who was not admitted, challenged this.
The undergraduate program had a policy where an applicant
would be admitted if they scored 100 of a possible 150 points on a
scale.
Points were earned for high school grades, test scores,
extracurricular activities, and other factors.
Members of underrepresented ethnic groups were given 20 extra
points.
Jennifer Gratz, a white woman, was not admitted and argued that
her rights were violated by the race-based point system.
The Supreme Court held that race may be taken into
consideration, but that the point system was the equivalent of a
quota.
Grutter lost her case, Gratz won.
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Argued before the US Supreme Court, Oct. 2012.
The University of Texas automatically admits any
student who finishes in the top 10% of their high
school class.
This makes up about 85% of their undergraduate
student body.
Race may be considered in admissions to the
remaining slots, in order to achieve a “critical
mass” of minority students, where the student
body is diverse enough that affirmative action is
no longer necessary.
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Abigail Fisher, a white woman, did not finish in
the top 10% of her class and was not admitted.
She claims that minority students whose
credentials were less than hers were admitted to
the remaining slots, and that this violates her 14th
Amendment right to equal protection under the
laws.
The University won at the lower court level, but
the US Supreme Court (2013) vacated this decision
and sent it back to the lower courts for further
review. The Fifth Circuit Court of Appeals heard
arguments in November 2013.
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Women earn 77 cents for every dollar that men earn in
the US (but not for doing the same jobs).
Traditional discrimination both in pay and in career
advancement opportunities
Many professions are still overwhelmingly dominated
by one gender (women are 10% of engineers and 73%
of public school teachers).
Affirmative action for women appears to have been
more successful in educational settings than in the
workplace (women are now a majority of college
students and earn a majority of degrees).
Should there be affirmative action programs for
women in areas like engineering? What can state and
local governments do about this?
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Brown v. Board of Education of Topeka (1954): Segregated
schools are unconstitutional
Alexander v. Holmes County Board of Education (1969) ordered
immediate end to segregated schools
De jure segregation vs. de facto segregation: what’s the
difference and how are they dealt with differently?
Desegregation vs. integration: how far do you have to go?
Swann v. Charlotte-Mecklenburg Board of Education (1971):
Busing is constitutional as a means of integration, upheld
policy where each school in the district had to be within a
certain percentage of the district as a whole
The busing policy was overturned by a court decision in
2001
Charlotte-Mecklenburg schools have largely re-segregated;
with white flight to the suburbs and to private schools, black
children are now a majority of students in CMS.
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Gender discrimination has been outlawed in most, but not
all, cases
Women earn 77 cents for every dollar that men earn in the
US (but not for doing the same jobs).
Traditional discrimination both in pay and in career
advancement opportunities
Many professions are still overwhelmingly dominated by
one gender (women are 10% of engineers and 73% of public
school teachers).
Affirmative action for women appears to have been more
successful in educational settings than in the workplace
(women are now a majority of college students and earn a
majority of degrees).
Should there be affirmative action programs for women in
areas like engineering? What can state and local
governments do about this?
1993: Hawaii Supreme Court rules that forbidding
same-sex couples to marry is unconstitutional sex
discrimination under the state constitution. This did
not explicitly legalize same-sex marriage.
1996: Congress passes the Defense of Marriage Act,
prohibiting federal recognition of same-sex
marriages and allowing states to refuse to recognize
same-sex marriages which were legal elsewhere
(although no state had actually legalized it yet).
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2004: Massachusetts Supreme Judicial Court rules
that restricting marriage to heterosexual couples
violates the state constitution. This makes samesex marriage legal in MA, the first jurisdiction in
the country to do so.
2008, 2009: Supreme Courts of Connecticut and
Iowa make the same determination.
2009: Vermont and New Hampshire become the
first states to legalize it by passing a law (as
opposed to a court decision).
2010, 2011: Washington, DC, and New York do so.
2012: Washington State and Maryland legalize it
by statutes which were upheld by referenda.
Maine legalizes it by referendum (first state where
this happened).
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What about the Full Faith and Credit Clause?
The US District Court in MA and the First
Circuit Court of Appeals have found the
federal provisions of DOMA unconstitutional;
the Supreme Court agreed in 2013.
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2000: CA bans same-sex marriage by initiative.
2008: State Supreme Court rules this law
unconstitutional. Same-sex marriage is now legal.
November 2008: An initiative (Proposition 8)
overturning the Supreme Court’s decision passes.
Same-sex marriage is now illegal, but marriages
performed during the period between the Supreme
Court’s decision and the passage of Prop 8 are still
valid.
2010/2012: A federal district court and appeals court
find Prop 8 unconstitutional.
2013: US Supreme Court declined to hear appeal, thus
permanently legalizing same-sex marriage in the state.
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Illegal in 33 states.
Legal in 17 states and DC.
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California, Connecticut, Delaware, Hawaii, Illinois, Iowa,
Maine, Maryland, Massachusetts, Minnesota, New
Hampshire, New Jersey, New Mexico, New York, Rhode
Island, Vermont, Washington.
Colorado, Nevada, Oregon and Wisconsin permit
same-sex civil unions or domestic partnerships but
not marriage.
Oregon recognizes same-sex marriages from other
states.
In 2013, the US Supreme Court struck down the
federal prohibition on recognition of same-sex
marriages. Legally married same-sex couples now
have benefits like filing federal tax returns jointly.
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Issues:
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Impact on society?
Constitutionality of DOMA? Should states be
required to recognize each other’s same-sex
marriages under the Full Faith and Credit Clause?
Should a majority be able to deprive the minority of
a right by popular vote?
Should basic rights be different from state to state?
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Roe v. Wade (1973): US Supreme Court rules that bans on
abortion early in pregnancy violate a constitutional right to
privacy. The state had an increasing right to prohibit
abortion as the pregnancy progressed.
Webster v. Reproductive Health Services (1989): Supreme Court
upholds right to abortion while upholding some state
restrictions on it and allowing states to enact further
restrictions.
Planned Parenthood v. Casey (1992): The Court again upholds
basic right to abortion but upholds some state restrictions on
it.
Gonzalez v. Carhart (2007): The court upholds a Nebraska
state ban on “partial-birth abortion” even though it includes
no exception for cases in which the woman’s health is
endangered by continuation of the pregnancy.
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State restrictions/requirements which have
been upheld:
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Parental notification requirements for minors (with a
judicial bypass)
Late-term (third trimester) bans
Informed consent requirements
Waiting period
Fetal viability testing after 20 weeks
Bans on public funding and abortion in public
facilities or by public employees (state/county
hospitals)
Ban on specific procedure
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State restrictions/requirements which have
been struck down:
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Spousal notification requirements
Any ban that does not include exceptions for cases
when the abortion is necessary to protect the
woman’s life or health.