• Scott sued for his freedom because he lived in states where slavery was illegal based on
Missouri Compromise of 1820
• Question: Was Dred Scott free or slave?
• SC rules that no person of African-American descent could be a citizen of the US and the
Missouri Compromise was unconstitutional
• Catalyst for Civil War
• Freed Blacks all over the country “lost” citizenship, right to vote, etc

• 13-15 “Civil War” or “Civil Rights” amendments passed in (1865,68,70)
• If the intention was for the federal government to protect freed slaves why did the history of century that followed these amendments happen?

• Black Codes emerged in the South States
– Designed by the South to limit legal rights of freed slaves. Laws against blacks for:
• Appearing in public places
• Sitting on juries
• voting
• Civil Rights Acts of 1866 & 1875
– Designed by national government to overturn black codes and grant equal access to voting, juries, public accommodations in theaters, restaurants, and transportation.
– Civil Rights Act of 1866 was first vetoed bill to get an override vote.

• 1877
– Federal occupation of South ended
– Federal troops no longer there to enforce protection of freed slaves
– States quickly started to limit African
Americans’ access to voting
– Jim Crow laws which separated races in public and private establishments and were created by southern states began to be upheld by federal courts

5 cases involving violations of Civil Rights
Act of 1875 in public accommodations
• Supreme Court Ruling:
US Congress could only prohibit local and state governments from discrimination, not privately held companies including theaters, rest. etc. This severely limited the influence of first Civil Rights Act of 1866 as well as the intent of the 13-15 amendments.

• Laws banning interracial marriages in the south also began to emerge in late 1800’s.
• Case Loving v Virginia (1967) overturned this type of state law regarding marriage.

• Southern states used these to limit the African
American vote
– Poll taxes
– Some form of property ownership
– Literacy tests
– Grandfather clause added in to protect poor whites- if grandfather could vote prior to
Reconstruction then you could vote even if you failed literacy tests.
* By 1890’s black voting fell by 62% so these methods were effective.

• African-Americans in Louisiana tested the racial segregation laws in this case and lost.
• Question : Is Louisiana's law mandating racial segregation on its trains an unconstitutional infringement on both the privileges and immunities and the equal protection clauses of the Fourteenth Amendment?
• Ruling : Segregation is legal as long as it is “equal”.
• Impact on spreading of Jim Crow laws was massive in the South

• Formed in 1909 to try to help fight the problems of African-Americans after the setbacks of the late 1800’s.
W.E.B. Du Bois
An African American drinks out of a segregated water cooler designated for
"colored" patrons in 1939 at a streetcar terminal in Oklahoma City . Founders of the Niagara
Movement, 1905

• Fight segregation via lawsuits that challenged earlier civil rights rulings such as Plessey.

• By 1935 all southern states (and northern states) had fully segregated elementary and secondary schools.
• Colleges and Universities were also segregated (meaning blacks could not attend white schools) but many states did not have black universities, or the universities were not of equal quality of the white colleges.

• Focused on graduate and law schools
• NAACP tested laws with cases involving
– Lloyd Gaines to get into all-white Un. of Missouri Law
School.
– H. M. Sweatt at Un. of Texas Law School
– George McLaurin at Un. of Oklahoma doctoral education program
• Other challenges followed through NAACP
University of Oklahoma’s accommodations for its first black doctoral student. (1940’s)
Lloyd
Gaines in the late
1930’s. He went missing in
March
1939.

New Jersey Supreme Court case which desegregated public schools in New Jersey in 1944.
Predecessor to the Brown case because the
New Jersey Supreme Court found the separate but equal doctrine unfair.

• Brown I (1954)
– Question : Is segregation legal under equal protection clause of 14 th amendment?
– Ruling: No it is inherently unequal and therefore unconstitutional. (Overturned Plessy)
• Brown II (1955)
– Question: What means should be used to implement the principles announced in Brown I?
– Ruling: Varied solutions developed by local school districts and governments. Plans should be implemented “ with all deliberate speed.”

• Sit-ins (restaurants and such)
• Boycotts (buses, businesses, etc)
• Lawsuits to challenge Jim Crow laws(NAACP
Legal and Educational Fund – Thurgood
Marshall was the first to head this.)
• Freedom rides (students from north go south to ride segregated buses together, worked to get
African-Americans registered to vote.)
• Protest marches (in DC and southern citiesexample “I have a Dream Speech at DC)

• Rosa Parks
– NAACP local youth coordinator in Alabama
• Alabama bus boycotts led by King
• Brown and Brown II
• New groups formed
– Southern Christian Leadership Conference
(SCLC) with Martin Luther King – used nonviolent civil disobedience
– Student Nonviolent Coordinating Committee
(SNCC) whites and blacks

A Toddle House in Atlanta has the distinction of being occupied during a sit-in by some of the most effective organizers in America when the SNCC staff and supporters take a break from a conference to demonstrate.

• Housing Laws created segregation in the north
• Racism was “alive and well” in the north as well.
– Levittown Video
• http://www.youtube.com/watch?v=7ELW9eQAYcY
– Former George Washington Swim Club in
Lower Providence
• Busing became a court ordered solution to desegregate in the north. (started in the 70’s)

• Civil Rights movement progresses.
– More demonstrations in more areas
– Mostly non violent protests about schools, elections, public accommodations, etc.

• “Project C” or project confrontation by
SCLC and King.
• King gets arrested and writes his famous
“Letter from Birmingham Jail.”
16 th Street Baptist Church

• Photos of police (white officers) response to Birmingham civil rights demonstrators.
• Put in a article in Life magazine.

Use of water hoses to disperse high school age student protestors.

Treatment of elderly protestors and use of police dogs.

Birmingham, AL Children’s March 1963

• Alabama Church bombing September of 1963 set by Klu Klux Klan member
• Killed four little girls
• 18 days after King’s March on Washington 1963
“I have a dream speech”

• Civil Rights Act 1964 – see page 203 in new text
– Protection in voting, public places, education, etc
• Voting Rights Act 1965
– Hired more poll workers to monitor elections in south
– Enforce voting laws in the south and increase voting drives in the south, targeting blacks
• Americans with Disabilities Act 1990
– Forced private businesses and public buildings to be accessible for people with disabilities.
– Created changes to safeguard employment and education opportunities for people with disabilities
– Accommodations need to be reasonable and deal with fundamental rights or access to public places.
• All of these are enforced by the Civil Rights Division of the
Department of Justice or Dept of Education.

• Title IX of the Education Amendments of
1972
• "No person in the United States shall, on the basis of gender, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." [1]
• Used for gender equity in all educational programs but has gotten more attention for sports

Forced busing to desegregate publics schools
Affirmative Action policies

– Question: Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation?
– Ruling: 90 Federal gov’t can order districts to use quotas and force busing for racial proportion if the segregation was originally state-imposed (de jure segregation) instead of segregation by choice (de facto segregation)
Black students board a school bus in this September
12, 1974 photo outside
South Boston High School as a police officer stands guard.

What is it?
• Affirmative action policies are used primarily for hiring and advancement for jobs and entrance to schools
• Many educational and job programs designate African-Americas,
Native-Americans, and Hispanics as minorities.
How did it start?
• Mentioned by Pres. Kennedy in one of his executive orders in 1961.
• Based on Civil Rights Act 1964
• Pres Johnson puts it into action. Mentions concept in a graduation speech at Howard University.
“You do not wipe away the scars of centuries by saying: 'now, you are free to go where you want, do as you desire, and choose the leaders you please.' You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, 'you are free to compete with all the others,' and still justly believe you have been completely fair . . . This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity —not just legal equity but human ability —not just equality as a right and a theory, but equality as a fact and as a result."

Johnson’s Executive Order 11246 enforces affirmative action for the first time
. . .the executive order requires government contractors to "take affirmative action" toward prospective minority employees in all aspects of hiring and employment. Contractors must take specific measures to ensure equality in hiring and must document these efforts. On
Oct. 13, 1967, the order was amended to cover discrimination on the basis of gender.

• Background: for Bakke- 35 yr old man twice rejected by school. 16 spots (quota) guaranteed for minorities even if minorities were less qualified than other candidates
• Question: Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school?

• Ruling (5-4)
– Use of specific quotas illegal
– Bakke should be admitted
– Race can still be used as permissible admission criteria to create a “diverse learning environment” but specific quotas can’t
(limiting affirmative action)

• Two separate affirmative action cases involving the University of Michigan
• Questions:
Does the University of Michigan's use of racial preferences in undergraduate/law school admissions violate the Equal Protection
Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?

• Ruling: Gratz 6-3 If racial minorities get too large of a % of points towards admission (in this case 20%) then it would violate the 14 th amendment equal protection clause because non-minorities are treated unequally.
Grutter 5-4 Race can be used as a compelling factor for admission by the state to create a diverse educational environment but no specific points were awarded to make minority applicants superior to non-minorities.

• June 2006 -Supreme Court Rules Against Considering Race to
Integrate Schools
In Parents v. Seattle and Meredith v. Jefferson , affirmative action suffers a setback when a bitterly divided court rules, 5 –4, that programs in Seattle and Louisville, Ky., which tried to maintain diversity in schools by considering race when assigning students to magnet schools, are unconstitutional.
• November 2008 –present Ballot Measure to Ban Affirmative Action in government educational and other institutions.
States and cities are individually banning the use of affirmative action policies.
• Ricci v DeStefano 2009 – case about promotion of fire fighters based on test. The ruling was really unclear.
• Recent polls suggest the majority (around 75%) do not approve of this policy anymore. Most African-Americans support this policy however.

th
• Many concerns of the African-American community were reflected in women’s rights movement
– Access to voting (resolved with 19 th amendment)
– Fair juries with women included (many states did not mandate females be on juries)
– Access to educational institutions and treatment in those institutions (curriculum and after school activities)
– Equal treatment in hiring and pay
• Concerns specific to wemen -Access to contraceptives and other reproduction rights

th
• 19 th amendment – states can’t deny women the right to vote
• 1960’s – A new focus on the status of women in the US from several high profile publications.
– 1963 Report American Women documented pervasive discrimination against women in all walks of life.
– 1963 The Feminine Mystique , by Betty Friedan caused many women to rethink their roles in society
• Title VII of the 1964 Civil Rights Act covered discrimination based on gender.
– When the Equal Employment Opportunity Commission failed to enforce this law, the feminist interest group NOW was formed.
– NOW fashioned itself after the NAACP. Its two goals?
• Equal rights amendment
• Judicial decisions that created equality

• Originally the Supreme Court case did not apply the equal protection clause of the
14 th amendment to gender discrimination.
• Finally in 1971 it did with the case Reed vs
Reed.

• Idaho law stated males are preferable to females in settling estates of deceased children.
• Question: Does Idaho law violate 14 th amendment equal protection law?
• Ruling: Yes. Unanimous decision. First time gender was applied to equal protection clause of 14 th amendment.

• Passed Congress in 1972 by large margins.
States had 10 years to ratify it.
• Within a year 22 states voted in favor of it.
• Roe v Wade happens in 1973 and stalls it.
• 35 states ended up ratifying it (needed 38)
• Rokster case in 1981 further stalls it.
• Never got 38 states to ratify it within the 10 year limit.
• A new ERA has been introduced every year since.

• See other lessons on this
• Women’s right to control her body is ruled as a protective right by SC

Standards of Review Under the Equal
Protection Clause of 14 th Amendment.
• See Table 6.1 in new text for more details
• Lowest Level – minimum rational standard
– Age, wealth, mental retardation, sexual orientation
• Intermediate Standard – Does classification serve an important gov’t objective and is it substantially related to those ends
– Gender
• Strict Scrutiny – Is the classification necessary to accomplish a permissible state goal? Is it the least restrictive way to reach that goal?
– Race, alienage, and national origin(suspect classification), fundamental freedoms such as speech, religion, assembly, press
(strict scrutiny)

• Background - Oklahoma passed a law that allowed a low alcohol beer could be sold to 18 year-old women but men had to be 21.
• Ruling - Selling this beer to men and women at two different ages was unconstitutional as it served no legitimate state goal. Created new review standard for gender discrimination – “intermediate review”.

• BackgroundIn 1980 Jimmy Carter reactivated the registration of draft and wanted women included. Congress went against his wishes regarding women. Men challenged the decision of Congress to not include women.
• Question: Did the MSSA's (Military Selective
Service) gender distinctions violate the Due
Process Clause of the Fifth Amendment?

• Ruling: 6-3
The Court found that men and women, because of combat restrictions on women, were not "similarly situated" for the purposes of draft registration.
The Court also upheld Congress's judgment that the administrative and military problems that would be created by drafting women for noncombat roles were sufficient to justify the Military
Selective Service Act.

• Equal Pay Act 1963
• Title VII of Civil Rights Act of 1964
– Prohibits discrimination by private and public employers
– Include sexual harassment as discrimination
• Title IX
– Bars educational institutions who receive federal funds from discriminating based on gender.

• Background:
Dale was an Eagle Scout and scout master who was also a gay rights activist.
The scouts took away his eagle scout status and membership. Dale sued the Scouts saying they violated a New Jersey law banning discrimination based on sexual orientation in public accommodations. New Jersey’s Supreme
Court ruled in favor of Dale. Boys Scouts requested the Supreme Court hear the case.

• Question: Does the application of New Jersey's public accommodations law violate the Boy
Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders?
• Ruling: In a 5-4 ruling, the court said yes and sided with Boy Scouts saying that private organizations have the right to determine who is in their group. They have the right to expressive association.

• Background: Police responded to
“neighbors’” reports of gunshots at the home of two men -Lawrence and Garner. Police forced their way in to their home and found them to be
“getting busy.” They were arrested under Texas sodomy laws. Lawrence and Garner sued
Texas over the law for which they were arrested.
• Questions: Does the Texas sodomy law violate the 14 th amendment due process clause?

• Ruling: 6-3 Yes. There is no legitimate state interest that is justified by the law which invades the privacy of adults in their own home. It denies adults of their due process. It overturned a related ruling from 1980’s on the same subject
(Bowers v Hardwick)
• States (around 14 still had them) had to get rid of sodomy laws.
Garner on left,
Lawrence in middle, and their lawyer on the right

• Background: Lane, a disabled person who needs a wheel chair, was unable to access the court room in the state court house in TN. He sued TN for not being compliant with the Americans with Disabilities Act .
State of TN said they could not be sued under the immunity doctrine of the 11 th amendment.
• Question: Did the Americans with Disabilities Act violate the sovereign immunity doctrine of the
11th Amendment when, based on Congress's
14th Amendment enforcement powers of the
Due Process clause, it allowed individuals to sue states for denying them services based on their disabilities?

• Ruling:
5-4 Individuals with disabilities can sue the states for equal access to fundamental rights such as access to court rooms- especially if the accommodation can be reasonably be done. In this case – put in an elevator.
• * SC has not ruled in favor for disabled people who have sued the state gov’t for employment discrimination.
– Example – Wheelchair bound people can be denied employment for state police because they don’t meet the physical fitness test.