CHAPTER 5:
CIVIL RIGHTS
Civil Rights
• Civil Rights refer to those things that the government
must do to provide equal protection and freedom from
discrimination for all citizens. Traditionally, we think of
civil rights as those rights rooted in the 14th Amendment
to the Constitution. While the term “civil rights” goes
back in history, early attempts at true protection were
unsuccessful because the Supreme Court believed that
it was not within its purview to stop non-governmental
discrimination. Since the 1950’s, the Supreme Court has
held the opposite view, thus enabling the government to
offer broader protections of citizens’ equality in various
aspects of social and economic life.
African Americans and the Consequences of
Slavery in the United States
•
Article I, Section 9 states, “The Migration or Importation of such
Persons as any of the States now existing shall think proper to admit,
shall not be prohibited by the Congress prior to the Year on thousand
eight hundred and eight...” The phrase “such Persons” refers to slaves.
The only other vague reference to slavery in the original Constitution is
Article I, Section 2, which mentions “other persons.” Why did the
founding fathers choose to not directly address the issue of slavery?
One of the major reasons concerned the adoption of the Constitution by
the states. If slavery had been a major controversy within the
Constitution, it is doubtful the document would have been ratified. By
not addressing this issue in the Constitution, the national government
was allowed time to become a powerful political force. The issue of
slavery was not resolved until after the Civil War some 70 years later.
With the passage of the Civil War amendments, slavery and some of
the problems slavery had created were abolished.
–
The Thirteenth Amendment (1865) prohibits slavery within the
United States.
–
The Fourteenth Amendment (1868) establishes that all persons
born in the United States are citizens and no state shall deprive
citizens of their rights under the Constitution.
–
The Fifteenth Amendment (1870) establishes the right of citizens to
vote.
African Americans and the Consequences of
Slavery in the United States
•
•
After passing the Civil War Amendments, Congress
enacted the Civil Rights Acts of 1865 –1875, which
were aimed at Southern states. These laws attempted
to prevent states from passing laws that would
circumvent the ideas put forth in the amendments. Not
all of the reasoning for this type of legislation was
altruistic. Partisan political reasons and economic
interests were major concerns that helped build the
support necessary to gain a majority in Congress, for
the passage of Civil Rights laws.
The United States Supreme Court invalidated some of
the civil rights legislation in the Civil Rights cases
(1883). Enforcement of the Fourteenth Amendment
was limited to correcting actions by states in their
official acts. This would mean that private citizens
could practice discrimination without interference from
the national government.
African Americans and the Consequences of
Slavery in the United States
•
•
The Supreme Court went further in this direction in
1892 in the case of Plessy v. Ferguson where the
Court held that separate but equal treatment of people
of different racial origins by state government is not a
violation of the Fourteenth Amendment.
Plessy v. Ferguson was eventually overturned by the
Supreme Court but not until 1954. In the case of
Brown v. Board of Education of Topeka, the separate
but equal doctrine was reversed. States were ordered
to eliminate segregation policies with all deliberate
speed. Reaction to school integration was mixed.
States that already had integrated schools prior to
Brown hailed the decision as an end to inequality.
States that still mandated segregation were outraged
at interference in state issues by the national
government. Many southern school systems were still
segregated ten years after the Brown decision.
African Americans and the Consequences of
Slavery in the United States
•
•
Some states are still attempting to end policies and
actions which are remnants from segregational
attitudes. In late 1992, the state of Louisiana was
ordered to fully integrate two institutions of higher
education which have been traditionally African
American schools.
Nonetheless, there is some evidence that courts are
allowing public schools systems to abandon strategies
designed to eliminate de facto segregation. The cases
of board of education v. Dowell (1991), Freeman v.
Pitts (1992) and Missouri v. Jenkins (1995) the
Supreme Court ruled that school districts did not have
to engage in certain efforts to attract multi-racial
students to public schools.
The Civil Rights Movement
•
•
The elimination of segregational policies and racial
intolerance would not have occurred without a strong
civil rights movement. This movement began in the
South and grew to a national scale. Although this
movement included thousands and had many leaders,
the most famous leader was Dr. Martin Luther King, Jr.
One of the major reasons Dr. King was so successful
was his philosophy and action of non-violence.
Peaceful civil disobedience became the hallmark of the
civil rights movement. This approach gained the
support and respect of millions of Americans. What
began as a small movement in the South quickly
became a national mission.
The Civil Rights Movement
• Technology also had an important role in the integration
of society. Television allowed for the contrast between
the violent opposition to civil rights and integration and
the nonviolent civil rights actions. Also, television brought
the problems of racial inequality into the living rooms of
Americans on the nightly news. As racial barriers fell in
national institutions like baseball, movies, television, and
the music industry began to offer major roles for African
Americans. A new generation became admirers of
athletes like Jackie Robinson (baseball), actors like
Sidney Poitier (movies) and Bill Cosby (television) and
recording artists like Diana Ross and James Brown.
These very popular stars helped to eliminate racial
prejudice by becoming role models for a new generation
regardless of race.
The Climax of the Civil Rights
Movement
• The civil rights movement led to pressure on the
national government to take action to end racial
discrimination. In 1957 Congress established
the Civil Rights Commission, which is
responsible for investigating claims of racial
bias. Because of the large number of claims
that many southern states were denying African
Americans the right to vote, Congress passed
the Civil Rights Act of 1960, which was intended
to stop this type of action by state governments.
The actual impact of these laws was not very
substantial.
The Climax of the Civil Rights
Movement
•
•
In response to public demands for stronger action
congress passed the Civil Rights Act of 1964. This law
prohibited discrimination in the areas of:
– voter registration
– public accommodations
– public schools
– employment
The Equal Employment Opportunity Commission
(EEOC), which was established by this law, was
assigned the task of ending racial discrimination in the
work place. In 1965, affirmative action, remedial action
to improve employment opportunities for groups that
had been the victims of past discrimination, was added
to the powers of the EEOC.
The Climax of the Civil Rights
Movement
• Political power, through the ballot box, has been very difficult
for many ethnic minorities. The Fifteenth Amendment
attempted to establish voting rights for all citizens, except
females and some Native Americans. However, some state
governments enacted laws that circumvented the right to
vote. The effect of these laws virtually prohibited African
American males from voting in many southern states. The
enactment of the Twenty-fourth Amendment in 1964, which
eliminated any tax for the purpose of voting, was the modern
beginning for the end to racial discrimination at the ballot
box. The Voting Rights Act of 1965 made state laws
restricting political participation by minorities through tactics
like voter registration test illegal. The Voting Rights Act of
1965 also authorized federally administered voting
procedures in counties (mostly in the South) where less than
50 percent of the eligible population was registered to vote.
The result was a massive voter registration drive focused
mainly on African American voters in the South.
The Climax of the Civil Rights
Movement
•
One of the major omissions of the 1964 act
was discrimination in housing. In 1968, days
after the assassination of Dr. King, the Civil
Rights Act of 1968 became law. Part of this
legislation prohibited racial discrimination in
the area of housing.
Women’s Struggle for Equal Rights
•
•
The early struggle for equal rights for women began in
the 1840’s with the women’s suffrage movement. This
struggle would continue for more than 70 years until
the ratification of the 19th Amendment to the
Constitution that states “The right of citizens of the
United States to vote shall not be denied or abridged
by the United states or by any State on account of
sex.”
The modern Women’s Movement started in the 1960s
as a result of the awareness of rights caused by the
Civil Rights Movement as well as the publication of
Betty Friedan’s The Feminine Mystique and the
formation of the National Organization for Women.
Women’s Struggle for Equal Rights
• The goals of the modern women’s movement
have included the ratification of the Equal Rights
Amendment, which states, “Equality of rights
under law shall not be denied or abridged by the
United States or by any state on account of sex.”
The ERA was sent to the state legislatures for
ratification on March 22, 1972. It failed to win the
necessary 38 states’ approvals in the traditional
seven-year limit. The Congress extended the
time limit, but the states again failed to support
the ratification of the ERA.
Women’s Struggle for Equal Rights
•
Part of the opposition to the ERA came from
an anti-feminist backlash. This conservative
backlash asserted that the passage of the ERA
would significantly alter social relations in the
United States, and that men and women would
be the “same” under law (rather than equal).
Women’s Struggle for Equal Rights
•
Since the failure of the ERA, the women’s movement
has changed focus to include challenging gender
discrimination in the Courts and expanding women’s
political opportunities.
– Challenging gender discrimination in the Courts -suits filed include those that establish arbitrary
height and weight requirements that would, in effect,
exclude women.
– Expanding women’s political activities -organizations have been formed to promote greater
representation of women in government. These
include interest groups, like the National Women’s
Political Caucus, and political action committees,
like EMILY’s List.
Gender-Based Discrimination in the
Workplace
•
•
Title VII of the Civil Rights Act of 1964 prohibits
gender discrimination in employment. This has
been used to protect women from workplace
discrimination. In 1978, Title VII was amended
to include the condition of pregnancy. The
Supreme Court also has held that Title VII
includes prohibitions on sexual harassment.
One problem with addressing sexual
harassment complaints is associated with
defining a “hostile environment.” The Court has
attempted to address this concern, but with
little clarity offered.
Gender-Based Discrimination in the
Workplace
•
•
Sexual harassment became front-page news during
the Senate confirmation hearing of Supreme Court
Justice Clarence Thomas. Law professor Anita Hill
alleged that Thomas had sexually harassed her while
they were employed at the Equal Employment
Opportunity Commission.
The topic of gender-based discrimination in the work
place promises to continue to be an important civil
rights concern, as more and more women enter the
workplace of position of increasing responsibility. In
addition, the role of the Internet will continue to
challenge the Courts and legislators as they attempt
equal protection.
Affirmative Action
•
Affirmative action describes those policies that
give special preferences in educational
admissions and employment decisions to
groups that have been discriminated against in
the past. As originally intended, affirmative
action policies were an attempt by the federal
government to “level the playing field” for
women and African Americans in particular.
The policy of affirmative action goes beyond a
strict interpretation of the equal protection
clause.
Affirmative Action
•
Special consideration for various groups is not
limited to women and racial minorities. Rather,
Congress has passed legislation that goes
beyond the equal protection clause to benefit
non-English speaking immigrants, people with
disabilities and older Americans. Indeed,
current attempts by gay and lesbian activists
and children’s rights activist represent attempts
by these groups to get their rights affirmed
beyond the 14th Amendment protections,
which are afforded to all citizens.
Affirmative Action
•
Affirmative action remains a controversial issue for
several reasons. Some people argue that racial and
gender-based discrimination in employment and
school admissions decisions is now so infrequent that
affirmative action is no longer warranted. Others argue
that the “backlash” created hurts race relations. Some
women and African Americans argue that the presence
of affirmative action discredits their achievements. On
the other side of the argument are the economic
realities. There is no doubt that women and African
Americans lack economic parity in the U.S. Affirmative
action represents one attempt to remedy this. Popular
support of affirmative action programs seems to be
based somewhat on racial identity, with majorities of
African Americans and Hispanics supportive of
affirmative action, and whites widely divided on the
issue.
Affirmative Action
•
One U.S. Supreme Court case challenged
affirmative action programs, claiming that they
injured non-minority applicants for schools
because they promoted reverse discrimination.
In Regents of the University of California v.
Bakke n(1978) the Supreme Court ruled that
quota systems that only considered the race of
an applicant were unconstitutional. The court’s
decision applied only to situations where race
was the sole factor being used.
Affirmative Action
•
•
In another decision, Adarand Constructors, Inc. v.
Peña, U.S. Supreme Court ruled that when
governments use affirmative action programs, it must
do so under the “strict scrutiny” rule. This means that
governments typically cannot use quota systems, and
once a program has been deemed successful, it must
be eliminated.
One form of backlash against affirmative action has
been California’s Proposition 209, which, through a
ballot measure, ended all state-sponsored affirmative
action programs. Similar ballot measures currently are
under consideration in other states.
Special Protection for Older
Americans
•
The projected population trends reveal that the
number of people over the age of 65 is
growing dramatically. This growth of the
number of older people will present some
difficult questions for society in the next
century. The decisions made now will have a
major impact on every member of society well
into the twenty-first century. As the baby boom
generation nears retirement it is increasingly
important to make decisions that will take
effect prior to this massive number of
individuals retiring within a short time frame.
Special Protection for Older Americans
•
During this century, the following areas concerning the
status of older Americans will have to be addressed by the
national and state governments:
– Age discrimination in employment -- Many individuals
do not desire retirement when they reach the age that a
company or government has set as the retirement age.
In some companies and in some governmental
positions there are mandatory retirement policies. The
Supreme Court has upheld such policies providing
there was a physical requirement relating to age. A
less conspicuous type of age discrimination occurs
when an employer does not have a formal policy
concerning older employees but has an informal policy
of replacing older workers (over the age of 40 to 50)
with younger workers. Such a policy reduces payroll
and benefit expenses. While such informal policies are
discriminatory, they are also difficult to prove in a court.
Special Protection for Older Americans
•
During this century, the following areas
concerning the status of older Americans will
have to be addressed by the national and state
governments:
– Mandatory Retirement – One form of age
discrimination prevalent in years past was a
mandatory retirement age. Amendments to the
Age Discrimination in Employment Act of 1967
and other legislation have succeeded in
eliminating mandatory retirement in all but a
limited number of occupations where age is
considered important to job responsibilities (like
fire fighting).
Special Protection for Older Americans
•
All of these problems of age must be addressed by the
political system. Individuals who are active in the political
process are more likely to influence these policy
decisions. In regard to age, people over the age of 65
tend to be actively involved in the political process.
– Voting Over 60% of the people 65 and older report
they voted in the 1988 election, the highest figure in
any age group.
– Members of Congress -- In the 103rd and 104th
Congresses over 75 percent of the Senate was over
the age of 50, and over 60% of the House was age 50
or older. Not all members of Congress have the same
amount of power, those who have been in Congress
longer tend to have significantly more power. Although
there are some exceptions, most of the influential
members of Congress are over the age of 50.
Special Protection for Older Americans
–
–
Activists --As with voting, individuals tend to be more
politically active as they age. Membership in interest
groups representing the elderly has been growing
steadily and will be likely to increase even more as
more people reach the age of retirement.
AARP, formerly the American Association of Retired
Persons, has succeeded in channeling the opinions of
older Americans. AARP is one of the most effective
lobbying organizations in the country. It advocates for
policies that benefit older Americans on the federal and
state levels.
Securing Rights for Persons with Disabilities
•
•
Disabled Americans have only recently been able to
have a political impact. One of the first areas that
received national legislation concerned educational
requirements. State governments were required to
provide “appropriate” educational opportunities for
children with disabilities, many of whom had been
denied access to public educational facilities. The
most significant development for the disabled to date
was the passage of the Americans with Disabilities Act
of 1990. This legislation prohibits job discrimination
against individuals with physical or mental disabilities.
Furthermore, it requires physical access to public
buildings and public services.
In 1998, the Supreme Court ruled that persons
infected with the HIV virus are protected by the ADA.
This means that employers must be accommodated.
The Rights and Status of Gay Males and Lesbians
•
•
In the 1960’s every state except Illinois had
laws that banned the practice of sodomy.
During the 1970’s and early 1980’s there was a
trend where many states began to repeal such
laws that banned homosexual practices.
The repealing of such laws halted in 1986, with
the case Bowers v. Hardwick. The Supreme
Court upheld a Georgia law that banned
homosexual conduct between adults.
The Rights and Status of Gay Males and Lesbians
•
•
In the 1996 case Romer v. Evans, the
Supreme Court ruled that a Colorado
constitutional amendment that invalidated state
and local laws that protected gay males and
lesbians from discrimination. The court ruled
that the amendment violated the equal
protection clause of the U.S. Constitution.
Since Romer, many states and cities have
passed measures that afford special protection
to homosexuals in housing, employment,
public accommodation and credit.
The Rights and Status of Gay Males and Lesbians
•
In 1996 the state of Hawaii became the focal point of
same sex-marriages. An appeals court held that the
state constitution protected the rights of individuals
who sought a marriage license regardless of their
gender. Congress responded with legislation that
would allow states to refuse to recognize same-sex
marriages. Can Congress pass such legislation
without violating Article IV of the Constitution? Should
states be allowed to not recognize a legal marriage
from another state? (In Hawaii, voters failed to pass a
referendum that would have allowed same-sex
marriages).
The Rights and Status of Gay Males and Lesbians
•
•
In Vermont, the state Supreme Court ruled that gay
men and lesbians are entitled to the same benefits of
marriage that opposite-sex couples enjoy. The
Vermont legislature has passed a law permitting “civil
unions” between homosexual couples.
What rights individuals have in the area of sexual
preference will continue to vary from city to city and
state to state, as long as the federal courts do not
establish some national standard of protected right for
sexual preference. Does the Fourteenth Amendment
provide for the equal protection of individuals based on
sexual orientation? If the majority of the people in a
state are opposed to same sex marriages should they
have the power to deny such marriages? What would
James Madison, the author of Federalist #10, have to
say on this issue?
The Rights and Status of Juveniles
• The rights of children are different from those of adults.
This does not mean that children do not have rights, for
children do have rights, but these rights are not identical
to adult rights. While there are some exceptions, the
age separating children from adults is eighteen. People
under the age of eighteen are usually treated for legal
purposes as minors. In the past many states considered
minors as people under the age of twenty-one.
However, with passage of the Twenty-sixth Amendment,
which lowered the voting age to eighteen, states began
to consider minors as people under the age of eighteen.
The Rights and Status of Juveniles
•
The rights of children in civil and criminal proceedings
is significantly different from the rights of adults. If a
person is a minor, he or she is not usually held
responsible for contracts they have entered into.
Because of this it is very difficult for minors to enter
into a contract without an adult who is willing to co-sign
the contract. In criminal law, minors do not always
have the right to trial by jury or to bail, but according to
the Supreme Court, the Fourteenth Amendment does
provide certain rights for minors including the right to
counsel. Minors cannot be tried as adults in most type
of cases. With the increasing number of crimes
committed by minors, the issue of the rights of minors
will continue to be a problem for society to cope with.