Civil Rights Outline
I.
Definitions
A. Civil Liberties
(d) – The personal rights and freedoms that government
cannot take away. Not by the law, the Constitution or
judicial interpretation unless there is a very compelling
reason to do so.
B. Civil Rights
(d) – The rights the government must give to its citizens,
whether they are rights of due process or equal protection
that come from the 14th Amendment.
II. Two Centuries of Struggle
Most Americans favor equality in the abstract, but the concrete
struggle for equal rights has been our nation’s most bitter
battle.
Civil Rights are the policies that extend basic rights to groups
historically subject to discrimination.
The beginning of the modern civil rights movement is marked by
Rosa Park’s refusal to give up her seat in the front of a
Montgomery, Alabama bus – where whites were only allowed to
sit. The bus boycott that followed her arrest is often seen as
the beginning of the African-American civil rights movement.
Today’s debate over inequality in America center on racial
discrimination, gender discrimination and factors such as age,
disability and sexual preference.
A. Conceptions of Equality
Philosophically, the struggle for equality involves the
definition of the term. (d) – Constitutionally, it involves
interpreting laws; politically, if often involves power.
American society does not emphasize equal results or
equal rewards, but they do embrace an equal opportunity.
B. Early American Views of Equality
Thomas Jefferson’s statement in the Declaration of
Independence that, “All men are created equal,” did not
mean that he thought there were no differences among
people. Jefferson, a slave holder, believed that blacks
were genetically inferior to whites.
Few colonists were eager to defend slavery, and the
delegates to the Constitutional Convention did their best
to avoid the divergence between slavery and the principles
in the Declaration of Independence.
In the Constitution, they put a 20-year gag rule into
effect regarding slavery. Congress was unable to address
the issue until 1807.
The rights of women received even less attention than did
slavery at the Convention.
C.
The Constitution and Equality
The delegates at the Constitutional Convention came up
with a plan for government; not a guarantee of individual
rights; the word equality does not even appear in the
Constitution.
The only place in which the concept of equality clearly
appears in the Constitution is the 14th Amendment, which
prohibits states from denying “equal protections of the
laws” to any person.
It was not until the mid-twentieth century that the 14th
Amendment was used to assure rights for disadvantaged
groups.
Over the last 100+ years, the equal protection clause has
become the vehicle for more expansive constitutional
interpretations.
III. Race, the Constitution and Public Policy
Three areas define African-American’s struggle for
equality: the Slave Era, Reconstruction and post-1954.
A. Slave Era, 1600s-1865
During the slavery era, any public policy of the slave states
or the federal government had to accommodate the
property interests of slave holders. The most infamous
statement in defense of slavery occurred in Dred Scott v.
Sandford.
1. Dred Scott v. Sandford (1857)
Scott, a slave who had spent most of his life in free
states, and all slaves were declared chattel
(physical property) by Chief Justice Taney. As
such, they had no rights under a white man’s
government. As part of the decision, it was
declared that Congress had no power to ban slavery
in the western states, invalidating the Missouri
Compromise of 1820.
The decision was later reversed by the 14th
Amendment (1868), which made citizens of former
slaves.
Slavery was outlawed with the ratification of the
13th Amendment following the Civil War.
B. Reconstruction and Resegregation Era, 1865-1954
Following the Civil War, Congress imposed strict
conditions of the former Confederate States before they
could be readmitted to the Union, including ratifying the
13th and 14th Amendments.
As soon as they regained some degree of power, however,
white Southerners imposed a series of Jim Crow laws
(black codes) designed to continue the oppression of
blacks.
1. Jim Crow Laws
(d) – Laws enacted by Southern whites in the late
1800s to segregate African-Americans from
whites.
During this time, housing, schools and most jobs
were in one way or another classified as “White”
and “Colored.”
2. Plessy v. Ferguson, 1896
The Supreme Court provided constitutional
justification for segregation in Plessy v. Ferguson
when it held that the principle of separate but
equal public facilities and by extension, Jim Crow
laws, for African-Americans was constitutional.
Some limited progress was made in the first half of the
20th century, including Executive Orders (such as
desegregation of the military) and court decisions
which banned the Grandfather Clause in voting. (d) –
Provision in the law, passed by Oklahoma and other
Southern states, that permitted individuals to vote,
even if legal requirements were not met, if the
individual or their ancestors voted prior to 1867.
Blacks, of course, did not vote and were not covered by
the Grandfather Clause. The goal and effect of the
clause was to deny blacks the right to vote.
Grandfather Clauses were found unconstitutional and
outlawed by the Supreme Court in Guinn v. United
States (1915).
C. Modern Civil Rights Era, 1954-present
The one institution most responsible for putting civil
rights goals on the nation’s policy agenda was the federal
courts.
During the period leading up to the modern civil rights era,
segregation was legally required in the South (de jure, or
by law) and sanctioned in the North (de facto [d] –
Segregation that results from residential patterns rather
than from laws).
In 1954, the first Brown v. Board of Education Topeka,
Kansas trial marked the beginning of the judicial era of
civil rights.
1. Brown v. Board of Education, I
The Court used this case to set aside its earlier
precedent of Plessy v. Ferguson. They overturned
the doctrine of separate but equal. The Court held
that school segregation was inherently unequal.
The Court based their decision on the legal
argument that segregation violated the 14th
Amendment.
2. Brown v. Board of Education, II
In the follow-up case, the Court ordered the lower
courts to proceed with “all deliberate speed” to
desegregate public schools. However,
desegregation moved very slowly until the passage
of the Civil Rights Act of 1964, which denied
federal funds to segregated schools.
3. Civil Rights Act of 1964
Arguably the most important civil rights act since
the Emancipation Proclamation. The Act made
racial discrimination illegal in public
accommodations throughout America, including
motels, hotels and restaurants. It also banned sex
discrimination in employment.
The civil rights movement organized both black and
whites to end the policies and practices of segregation.
The 1950s and 1960s saw a marked increase in public
policies, in addition to the Civil Rights Act of 1964,
designed to foster racial equality.
In Swann v. Charlotte-Mecklenberg County Schools
(1971), the Court allowed court-ordered busing of
students to achieve racially balanced schools
In 1999, federal district courts ended the busing
scheme, finding that it was no longer an effective tool
in attempting to achieve racial balance in schools.
Taken as a whole, the Supreme Court has determined
that the United States Constitution, as it relates to
racial classifications by governments, permits federal
court orders that assign children to schools at least
partly on a racial basis to compensate for past
discriminations.
D. Civil Rights and Women
1. Gathering and Using the Right to Vote
In the United States, voting in a presidential
election is the most common act of political
participation by individuals. In the early republic,
suffrage was primarily limited to white, land-owning
males.
2. 15th Amendment, 1870
Guaranteed blacks the right to vote but full
implementation did not occur for another century.
Nonetheless, the Court, in Smith v. Allwright
(1944), held primary elections are an integral part
of the election process and thus, prohibiting black
from full participation in primary elections violated
the 15th Amendment.
States used various methods to circumvent the 15th
Amendment.
Grandfather Clauses exempted persons whose
grandfather’s were eligible to vote in 1860 from
taking literacy tests in order to vote; the
exemption did not apply to grandchildren of slaves.
These types of clauses were later ruled
unconstitutional.
Poll taxes were also used to inhibit blacks from
voting. (d) – Small taxes levied on the right to vote.
The tax often fell due at a time of year when poor
sharecroppers had the least amount of cash
available. Poll taxes were prohibited by the 24th
Amendment (1964). Poll taxes in state elections
were invalidated two years later.
Many areas in the South employed voter
registration tests (AKA voter literacy tests) in a
discriminatory manner.
3. Voting Rights Act of 1965
The Voting Rights Act of 1965 prohibited any
government from using voting procedures that
denied a person the right to vote on the basis of
race or color. As a result, black participation in
the voting process increased dramatically.
Federal election registrars were sent to areas that
had long histories of discrimination,
The Act gave the government the power to appoint
examiners in certain counties with low voter
registration. Justification for doing so was the
presumption that de facto discrimination existed
which resulted in the low number.
The Act produced a major increase not only in black
voting, but also the number of blacks who sought
political office, thus dramatically increasing
political participation and power.
E. Other Minority Groups
The civil rights laws that black groups pushed for have
benefited members of other minorities as well. The
United States is headed towards a minority majority
status, when minority groups will outnumber Caucasians of
European descent
1. Hispanic
Would include Mexicans, Puerto Ricans, Cubans,
South Americans and others of Spanish descent.
Hispanics have displaced blacks as the largest
minority group in the United States.
2. Asian-Americans
The fastest growing minority group in the United
States.
During WWII, the U.S. government rounded up
more than 100,000 Americans of Japanese descent
and placed them in internment camps.
In the case of Korematsu v. United States (1944),
the Court upheld the constitutionality of the
removal of Japanese-Americans during the war.
3. Native Americans
The oldest minority group in America, but they
were not made citizens until 1924, well before the
struggles of the civil rights era.
Native Americans are guaranteed access to the
polls, housing and jobs. The Indian Claims Act
(1946) was enacted to settle financial disputes
arising from land taken from the Indians.
IV. Women, the Constitution and Public Policy
The struggle for women’s equality has emphasized legislation
over litigation.
A. The Battle of the Vote
The first women’s rights activists were products of the
abolition movement.
“Coverture” was the legal doctrine that deprived married
women of any identity separate of that of their husbands.
The Seneca Falls Declaration of Sentiments and
Resolutions (July 19, 1848) was the beginning of the
movement that would culminate in the ratification of the
19th Amendment (1920), which gave women the right to
vote.
B. The Doldrums, 1920-1960
The feminist movement seemed to lose momentum after
women gained the right to vote, possibly because suffrage
was about the only goal on which all feminists agreed.
State laws at the time tended to reflect and reinforce the
traditional family roles.
Alice Paul, the author of the Equal Rights Amendment
(ERA), unsuccessfully pushed for its passage in the 1920s.
The amendment would have eliminated discrimination
against women. Most people at the time, however, saw the
issue as a threat to the family. ERA was revived in 1972
when it became a proposed constitutional amendment. In
1982, the proposal fell three votes short of the 38
necessary for ratification. It has never been ratified.
C. The Second Feminist Wave
The civil rights movement of the 1950s and 1960s
attracted many woman activists and “Women’s Liberation”
became a common phrase in the 60s. Women’s Liberation
was a general term for the organized effort to end sex
discrimination and assure women of full equality.
Groups like the National Organization of Women (NOW)
and the National Women’s Political Caucus were organized
in the 1960s and 1970s.
D. Judicial Development
Before the advent of the contemporary feminist
movement, the Court upheld virtually all cases of
gender-based discrimination.
In Reed v. Reed (1971), the Court ruled that any arbitrary
gender-based classification violated the Equal Protection
Clause of the 14th Amendment.
The Court has struck down many laws and rules for
gender-based discrimination.
E. Women in the Workplace
As conditions have changed, public opinion and public policy
demands have also changed.
The traditional family role of father as the bread winner
and mother as homemaker is quickly becoming a thing of
the past. The civilian work force includes 58 million
females – representing 58 percent of adult women - and 69
million males. There are also over 12 female-headed
households.
Some important progress has been made through
congressional legislation:
The Civil Rights Act of 1964 banned sex
discrimination in employment.
In 1972, the Equal Employment Opportunity
Commission (EEOC) was given the power to sue
employers suspected of discrimination.
Title IX of the Education Act of 1972 forbade
gender discrimination in federally subsidized
education programs, including athletics.
In 1993, the Court ruled that sexual harassment is
discrimination that violates the Civil Rights Act of
1964 when the workplace becomes hostile or abusive.
Three of the most controversial issues that
legislators will continue to face are wage
discrimination, the role of women in the military and
sexual harassment.
F. Wage Discrimination and Comparable Worth
The Supreme Court has remained silent so far on the issue
of comparable worth. The issue deals with women seeking
to redress the fact that jobs traditionally held by men
tend to pay far greater salaries than jobs requiring similar
skills but are traditionally held by women. The median
earnings of full-time working women are only about 67%
those of men.
G. Women in the Military
Women have served in every branch of the service since
WWII. Today, women comprise about 12% of the armed
forces and compete directly with men for promotion.
There are still two important differences between the
treatment of men and women in the military:
Only men must register for the draft
Until recently, statutes and regulations have prohibited
women from serving in combat. For the first time in
Gulf War II, women were in active combat, but there
opportunities are still limited to volunteers(?)
H. Sexual Harassment
Sexual harassment can occur anywhere, but may be
especially prevalent in male-dominated occupations such as
the military. (Tailhook in the early 1980s, Air Force
Academy rape scandal in 2003.)
The Court held that no single factor is required to win a
sexual harassment case under Title VII of the 1964 Civil
Rights Act. The law is violated when the workplace
environment “would reasonably be perceived, and is
perceived, as hostile or abusive.
V. New Groups Under the Civil Rights Umbrella
New activist groups began to realize that policies that were
enacted to protect racial minorities and women could also be
applied to other groups, such as the elderly, minors, the
disabled and gays.
A. Civil Rights and the Graying of America
People in their 80s comprise the fastest growing age group
in America.
Since 1967, Congress has passed several laws that ban
various types of age discrimination. Age discrimination
laws have denied federal funds to any institution
discriminating against people over 40.
It is not clear what the fate of the “Gray Liberation
Movement” will be as its members approach the status of
majority minority.
B. Civil Rights and Minors
Minors have also suffered from inferior treatment under
the law.
There are obvious difficulties in organizing a “Children’s
Rights Movement,” but there have been instances where
minors who have been successful is asserting their rights.
Case in point: Walter Polovchak, who refused to return to
the Ukraine with his parents and a 12-year-old boy who
“divorced” his family so he could be adopted by foster
parents.
C. Civil Rights and Disables People
Americans with disabilities have suffered both direct and
indirect discrimination. They have been denied
rehabilitation services, education and employment.
The Americans with Disabilities Act (ADA) requires
employers and public facilities to provide “reasonable
accommodations” and prohibits employment discrimination
against the disabled.
D. Civil Rights and Gays
Gay activists may face the toughest battle for equality.
Homosexual activity is still illegal in some states and gays
often face prejudice in hiring, education and housing.
Homophobia is very prevalent in American society and gays
are often targets of public hostility. A substantial
percentage of Americans express opposition to gays
entering many common occupations.
In 1993, President Clinton announced a new policy that
barred the Pentagon from asking recruits or military
service personnel to disclose their sexual orientation.
Popularly known as the, “Don’t ask, don’t tell” policy, it also
reaffirmed the Defense Department’s strict prohibition
against homosexual conduct.
Despite some setbacks, gay activists have won some
important victories. Seven states and more than 100
communities have passed laws protecting gays against
some form of discrimination.
The big issue today is same-sex marriages. I fully
anticipate counter legislation prohibiting and permitting
same-sex marriages to be introduced by this Congress.
VI. Affirmative Action
A. Intro
The interests of women and minorities have converged on
the issue of Affirmative Action. (d) – Programs
established by government, universities, employers and
unions that give preference in admission or jobs to
minorities. The goals of Affirmative Action are to move
beyond equal opportunity, but rather to move towards
equal results.
The federal government has mandated that all state and
local governments and organizations that receive money
from them have an Affirmative Action program.
B. Reverse Discrimination
(Relate story of goal to become a college professor and
being told that there is absolutely no market for
middle-aged white men.)
Some groups have claimed that Affirmative Action
programs constitute reverse discrimination.
1. University of California v. Bakke, 1978
The Court rejected a plan at the University of
California at Davis that set aside 16 of 100 places in
the entering medical school class for disadvantaged
groups.
In Bakke, the Court upheld Affirmative Action
programs, but limited their scope and outlawed
racial quote set asides. However, the Court said a
university could adopt an “admissions program
where race or ethnic background is simply one
element… in the selection process.”
In 1995, the Court in Adarand Constructors v. Pena,
changed direction and began to curtail federal use
of affirmative action. Adarand involved a case of
reverse discrimination in the construction bid
process for highway work in Colorado.
Supporters of affirmative action believe that
affirmative action produces so important a social
goal that some reverse discrimination is acceptable.
Opposition to affirmative action policies:
Surveys find that most Americans oppose
affirmative action programs, even though
Americans in general support
nondiscrimination in employment and
education
Opposition is especially strong when critics
view affirmative action as reverse
discrimination where less qualified
individuals get hired or admitted to
educational or training programs.
VII. Understanding Civil Rights and the Constitution
A. Civil Rights and Democracy
Democracy is often in conflict with itself. Both equality
and individual liberty are important democratic principles,
but they may conflict with each other.
Equality tends to favor majority rule, but equality
threatens individual liberty in situations where the
majority wants to deprive the minority of their rights.
B. Civil Rights and the Scope of Government
Civil rights laws increase the scope and power of
government. These laws place both restrictions and
obligations on individuals and institutions – they tell them
that there are things they must do and that there are
other things they cannot do.
Libertarians and those conservatives that want to restrict
the size of government are uneasy with civil rights laws
and at times are openly hostile to them.
Civil rights is an area in which increased government
activity in protecting basic rights can lead to greater
checks on the government by those who benefit from such
protections.
Revised 8/03