Chapter 5
Civil Rights
Did You Get it? You have 10 minutes- Consult
with each other if it helps
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Discrimination
Civil rights
“Separate sphere”
Dred Scott v Sanford
Jim Crow laws
“Separate but equal”
Social Darwinism
Minimalist state
Strict “separate but equal”
“To secure these rights” post WWII – the issue of federal powers?
Brown v Board turned on the “consequences” of separate but
equal?
Check Up
• What role did the courts play in the evolution of Civil
Rights in the United States?
• 2 points well developed. 4 paragraphs – intro and 2
body ones. Write a conclusion as well
• You have 10 minutes
The Struggle for Civil Rights
The Struggle for Civil Rights: Guaranteed Rights
• Civil rights: rights guaranteed to all American citizens
by law; usually refers to social freedoms and equal
treatment under the law.
– All American citizens have civil rights (not merely minority
groups).
• Often understood in terms of groups whose civil
rights were recognized by the U.S. government only
after legal and political actions secured them.
The Struggle for Civil Rights: Inequalities
• Formal, legal inequalities existed uncomfortably with
America’s value of equality for all held since the
nation’s founding.
• Full benefits of citizenship were limited.
– Race, sex, age, wealth, national origin most clearly
The Struggle for Civil Rights: Equal Rights
• The concept of “equal rights” poses complicated
legal and policy questions.
– Does treating people in the exact same manner mean we
are treating them equally?
– How do we address real differences, as with biological
distinctions between men and women, and preserve
fairness?
– How do we address past legally mandated discrimination
in policy?
The Struggle for Civil Rights: Discrimination
• Discrimination: use of any unreasonable and unjust
criterion of exclusion
• Formal, legal discrimination against blacks and
women was contested, but persisted.
– Abolitionist movement
– Suffrage movement
The Struggle for Civil Rights: Blacks and Women
• The subjugation of blacks and women was political,
economic, and social in nature.
• Voting, property ownership, employment, and social and public
opportunities were sharply limited compared to white and male
counterparts.
• White women had significantly more legal rights than black men or black
women.
– Supreme Court held that a white women’s rights existed through her father,
husband, or trustee.
The Civil War Amendments to the Constitution
• Thirteenth Amendment: abolished slavery
• Fourteenth Amendment: guaranteed equal protection under
the law
• Fifteenth Amendment: guaranteed voting rights for black men
Separate But Equal
Separate But Equal: Fourteenth Amendment
•The Supreme Court initially interpreted the Fourteenth Amendment very
narrowly.
– Ruled the Civil Rights Act of 1875 unconstitutional for targeting private actions.
– Plessy v. Ferguson (1896) upheld the concept of separate but equal.
Organizing for Equality: NAACP and NAWSA
•NAACP
– Sought to win political rights through political pressure and litigation
– Helped bring northern blacks into political system
•NAWSA and National Women’s Party
– Brought suffrage onto the public agenda
•Securing formal rights required over 100 years of challenges to
discriminatory laws.
– Organizational, strategic efforts
– Courts, public opinion, and lawmakers at all levels
What Did you learn from your reading?
1)Shelley v Kraemer
2)Strict scrutiny
3)De jure v de facto
4) Massive resistance and “pupil placement”
5)Bus boycott – strategic logic of it?
6)Enforcement issue and civil rights
7)Title VI of the CRA
8)Desegregation outside of the South?
9)Busing and integration
10)Good faith and “Parents Involved… case.
11)Title VII and employment
12)Duke power : race neutral measures and “burden of proof”
13) Racial gerrymandering
14)Shelby County v Holder
15)Voter ID
16) Housing and redlining
17)Predatory lending
Litigating for Equality
Attitudes on racial discrimination start to change.
•President Harry Truman brings issue of racial discrimination to national
attention through the 1946 President’s Commission on Civil Rights.
- Commission’s report, To Secure These Rights, laid out the problems with racial
discrimination and the success of racial integration in the military.
•The Supreme Court, beginning in 1938, sets stricter criteria for separate
facilities under “separate but equal.”
•After small victories by the Legal Defense and Education Fund of the
NAACP, the Legal Defense Fund in 1948 begins filing federal lawsuits to
enact constitutional change.
- NAACP helps bring Brown v. Board of Education to the Supreme Court
Brown v. Board of Education (1954)
• Unanimous Supreme Court decision
• Landmark because overturns Plessy separate but equal
doctrine that sanctioned segregation
• Determined separate but equal in schooling inherently unequal
because predicated on the idea of racial superiority
Today’s Topics
• Post- Brown Black Civil Rights
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From citizen action to legislation to change
Enforcement
Voting and ID laws
• Gender Discrimination
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Key cases
Civil Rights after Brown
• Government discrimination on the basis of race must
pass strict scrutiny legal standard.
– Is the program a compelling state interest?
– Is it as narrowly tailored as possible?
Social Protest and Congressional Action
Peaceful Civil Rights Demonstrations, 1954–68
Civil Rights after Brown: Disobedience
States refused to cooperate until sued, and they employed
various methods to delay obedience.
•Deep southern states refused to obey court-ordered desegregation of schools
and declared Supreme Court’s decisions and orders had no effect.
– In 1957, Governor Orval Faubus ordered the Arkansas National Guard to block the federal
government’s order to integrate Little Rock High School.
•Discrimination still remained in voting, employment, public accommodations
,and other areas of social and economic activity.
•Adjudication alone would not succeed in changing discriminatory laws.
– Progress would need not just courts and federal agencies, but also intense support.
– Organized demonstrations began to mount after the Brown decision, including the
Montgomery boycott of the bus system and the March on Washington.
Cause and Effect in the Civil Rights Movement
Modern Civil Rights Legislation
• Civil Rights Act of 1964
– forbade discrimination on the basis of race, color, religion,
gender and national origin in
• voter registration
• public accommodations
• public schools
– expanded the power of the Civil Rights Commission
– withheld funds from programs administered in a
discriminatory way
– established the right to equality of opportunity in
employment (created the EEOC)
School Desegregation, Phase 2
• Outlawed discrimination by private employers and
state governments!
• Created administrative agencies to aid enforcement:
– Title IV: Justice Dept. could seek federal court orders to
desegregate schools and do so w/o waiting for parental
complaints
Discrimination in Employment
• Outlawed in all employment, including gov. agencies
• Used Interstate commerce clause
• Title VII: EEOC
– 1972 EEOC can start suits.
• Problem: who has to show proof.
– Statistical evidence….
• Even apparently “neutral” standards which had the
impact of exclusion were suspect
• Had to show that a test or standard had a
demonstrable connection to job performance.
Title VI
– Title VI: federal grants in aid must be withheld from state
and local governments if they are guilty of discrimination.
• For school year 1999–2000, local and intermediate sources made
up 43 cents of every dollar in revenue, state revenues comprised 50
cents, and the remaining 7 cents came from federal sources.
– This was most significant outside the South….
– The political equation outside the south..
– Thus :
• The president could, through Office for CR of JD withhold funds
• Off of AG initiate suits wherever a “pattern or practice” was of
discrimination discovered.
Modern Civil Rights Legislation (cont.)
• Civil Rights Act of 1968
– forbade discrimination in housing
• Voting Rights Act of 1965
– outlawed discriminatory voter registration tests
– authorized federal registration and administration of voting
where discrimination took place
• resulted in massive voter registration drives of African Americans in
the South
Voting Rights
• Set criminal penalties
• Replacement of local registrars in selected counties
designated by the AG.
• 24th amendment in 1964
• 1975: no literacy tests
– Also bilingual ballots
• Racial Gerrymandering
• Self gerrymandering
• Voter ID laws
Voting Rights Act of 1965
• Made interference with the right to vote on the basis
of race a federal issue
• Bans literacy tests
• Pre-clearance requirements for specific states and
regions due to extensive record of
disenfranchisement policies and/or attempts
Impact of Voting Rights Act on Registration
• On June 25, 2013, the U.S. Supreme Court overturned a key
provision of the Voting Rights Act, removing a critical tool to
combat racial discrimination in voting. Under Section 5 of the
landmark civil rights law, jurisdictions with a history of
discrimination must seek pre-approval of changes in voting
rules that could affect minorities. This process, known as
“preclearance,” blocks discrimination before it occurs.
In Shelby County v. Holder, the Court invalidated Section 4 —
which determines the states and localities covered by Section
5 — arguing that current conditions require a new coverage
formula.
Housing
• 1968: Fair Housing Act
• Discrimination in housing not a matter of law, but
of thousands of individual decisions AND local
government policies involving public housing,
federal guidelines out of the FHA and mortgage
lenders
– Had the impact of preventing blacks form joining move to
suburbs in 50’s and 60’s.
• Still hard to prove.
– 1988: Fair Housing Amendments Act
• HUD could initiate legal actions in cases of discrimination.
• Other efforts: mixed results
– Open communities effort
– Lending efforts: more success?
• Redlining
Women and Gender Discrimination
Popular Opinion – Then, Now???
VMI Cadets
Women and Gender Discrimination: Key Cases
• Women and Gender Discrimination
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Equal Rights Amendment
Franklin v. Gwinnett County Public Schools (1992)
United States v. Virginia (1996)
Meritor Savings Bank v. Vinson (1986)
CASE: Franklin v Grinnett County Public
Schools
• (1992 ) Monetary damages….
• Sexual harassment and equal treatment of women’s
athletic programs…
• Universities are sued (complaints x 3 after Franklin)
• NO strict equality in athletic programs
• 1996- VMI – and all male public schools
Standards of proof:
– Strict scrutiny
– Intermediate scrutiny
– Rational basis
• Intermediate scrutiny, in U.S. constitutional law, is the second level of
deciding issues using judicial review. The other levels are typically referred
to as rational basis review (least rigorous) and strict scrutiny (most
rigorous).
• In order to overcome the intermediate scrutiny test, it must be shown that
the law or policy being challenged furthers an important government
interest in a way that is substantially related to that interest.[1] [2] This
should be contrasted with strict scrutiny, the higher standard of review
which requires narrowly tailored and least restrictive means to further a
compelling governmental interest.
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http://en.wikipedia.org/wiki/Mississippi_University_for_Women_v._Hogan
Title VII
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Title VII of the Act, codified as Subchapter VI of Chapter 21 of 42 U.S.C. § 2000e [2] et seq.,
prohibits discrimination by covered employers on the basis of race, color, religion, sex or
national origin (see 42 U.S.C. § 2000e-2[21]).
Title VII also prohibits discrimination against an individual because of his or her association
with another individual of a particular race, color, religion, sex, or national origin. An employer
cannot discriminate against a person because of his interracial association with another, such
as by an interracial marriage.[22]
In very narrow defined situations an employer is permitted to discriminate on the basis of a
protected trait where the trait is a bona fide occupational qualification reasonably necessary
to the normal operation of that particular business or enterprise. To prove the Bona Fide
Occupational Qualifications defense, an employer must prove three elements: a direct
relationship between sex and the ability to perform the duties of the job, the BFOQ relates to
the "essence" or "central mission of the employer's business," and there is no less-restrictive
or reasonable alternative (Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187
(1991) 111 S.Ct. 1196). The Bona Fide Occupational Qualification exception is an extremely
narrow exception to the general prohibition of discrimination based on sex (Dothard v.
Rawlinson, 433 U.S. 321 (1977) 97 S.Ct. 2720). An employer or customer's preference for an
individual of a particular religion is not sufficient to establish a Bona Fide Occupational
Qualification (Equal Employment Opportunity Commission v. Kamehameha School — Bishop
Estate, 990 F.2d 458 (9th Cir. 1993)).
Recent Case on Point
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Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), is an
employment discrimination decision of the Supreme Court of the United States.
Justice Alito held for the five-justice majority that employers cannot be sued under
Title VII of the Civil Rights Act over race or gender pay discrimination if the claims
are based on decisions made by the employer 180 days ago or more. The decision
did not prevent plaintiffs from suing under other laws, like the Equal Pay Act, which
has a three-year deadline for most sex discrimination claims,[1] or 42 U.S.C. 1981,
which has a four-year deadline for suing over race discrimination.[2]
This was a case of statutory rather than constitutional interpretation. The plaintiff in
this case, Lilly Ledbetter, characterized her situation as one where "disparate pay
is received during the statutory limitations period, but is the result of intentionally
discriminatory pay decisions that occurred outside the limitations period." In
rejecting Ledbetter's appeal, the Supreme Court said that "she could have, and
should have, sued" when the pay decisions were made, instead of waiting beyond
the 180-day statutory charging period. The Court did leave open the possibility that
a plaintiff could sue beyond the 180-day period if she did not, and could not, have
discovered the discrimination earlier.[3] The effect of the Court's holding was
reversed by the passage of the Lilly Ledbetter Fair Pay Act in 2009.
Women and Gender Discrimination
• Title VII of the CRA of 64 – the law fostered the
growth of rights groups
• Fight for ERA out of first victories
• Burger: gender NOT equal to racial discrimination –
intermediate scrutiny [Craig v. Boren, 1976]
Women’s Struggle for Equal Rights
• Women’s Suffrage Movement
– was connected to the abolition movement
– suffragists organized the first women’s right convention at
Seneca Falls, NY in 1848
– established women’s suffrage associations
– finally won passage of the Nineteenth Amendment in 1920
Women’s Struggle for Equal Rights (cont.)
• The Modern Women’s Movement
– spurred in by the publication of Betty Friedan’s The
Feminine Mystique ( 1963)
– connected to the Civil Rights Movement of the 1960’s
– argued for ratification of the Equal Rights Amendment
• failed to win the necessary states for ratification
– has targeted gender discrimination by challenging policies
and laws in federal courts
• has advocated and encouraged an increasingly
prominent role for women in government and politics
WHO ARE AMERICANS?
WHO ARE AMERICANS?
WHO ARE AMERICANS?
WHO ARE AMERICANS?
Latinos and Civil Rights
• Education
– Mendez v. Westminster (1947)
– Bilingual education
• Immigration as Civil Rights Issue
– California Proposition 187 (1994)
– Arizona SB 1070 (2010)
• American citizens of Latino origin suspect class claims
• Supreme Court upholds but strikes down parts (2012)
Asian Americans
Asian Americans and Civil Rights
•Asian Americans
– 1870, Congress declares Chinese ineligible for citizenship
– 1882, Chinese Exclusion Act
– Japanese Internment
• 1942–1945, over 110,000 Japanese Americans (and
authorized residents) forcibly relocated and held
• Presidents Ronald Reagan and George H. W. Bush
authorized reparations payments to survivors and
descendants.
American Indians and Civil Rights
•Native Americans
– Tribe members are both American citizens and members of sovereign
tribal nations.
– They may reside on reservations that may have different laws than
states where they are located.
– Many state, federal, and even private programs require proof of Native
American ancestry.
• Such authentication is not asked of any other group.
Ability, Age, and Civil Rights
•Disabled Americans:
– 1973 Rehabilitation Act (outlawed discrimination against individuals
on the basis of disabilities).
– Americans with Disabilities Act of 1990 (guarantees equal
employment; access to public businesses; and prohibits discrimination
in employment, housing, and health care).
Gays and Lesbians
Gays, Lesbians, and Civil Rights
• Gays and Lesbians
– Military policy: Don’t Ask, Don’t Tell (DADT,1993)
• Repealed in 2011
– Bowers v. Hardwick (1986)
– Lawrence v. Texas (2003)
– Defense of Marriage Act (DOMA, 2006)
– Now : Obergefell v. Hodges (2015)
Gays, Lesbians, and Civil Rights: LGBT
Movement
The LGBT movement has become one of the largest civil
rights movements in contemporary America.
•The movement drew national attention in 1969, when patrons at the
Stonewall Inn in Greenwich Village, New York, rioted after a police
raid.
•“Don’t Ask, Don’t Tell” policy allowed gay men and lesbians to serve
in the military as long as they did not openly proclaim their sexual
orientation or engage in homosexual activity.
•“Don’t Ask, Don’t Tell” policy was repealed in 2011: gay men and
lesbians can now serve openly in the military.
Gays, Lesbians, and Civil Rights: Additional
Advances
Additional advances for the LGBT movement include:
•Lawrence v. Texas (2003): the Court overturned Bowers and struck
down a Texas statute criminalizing certain intimate sexual conduct
between consenting partners of the same sex.
•In 2004, the Supreme Judicial Court of Massachusetts ruled that
under that state’s constitution, same-sex couples were entitled to
marry.
•In 2013, after a Supreme Court ruling, the federal government
expanded recognition of same-sex marriages survivor benefits,
bankruptcies, tax purposes, and immigration.
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Obergefell v. Hodges, 576 U.S. ___ (2015), is a landmark United States Supreme Court case
in which the Court held in a 5–4 decision that the fundamental right to marry is
guaranteed to same-sex couples by both the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution.[2][3]
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In November 2014, following a lengthy series of appeals court rulings from
the Fourth, Seventh, Ninth, and Tenth Circuits that state-level bans on same-sex marriage
were unconstitutional, the Sixth Circuit ruled that it was bound by Baker v. Nelson and found
them constitutional, creating a split between circuits and leading to an almost inevitable
Supreme Court review.
Decided on June 26, 2015, Obergefell overturned Baker and requires all states to issue
marriage licenses to same-sex couples and to recognize same-sex marriages validly
performed in other jurisdictions.[4] This legalized same-sex marriage throughout the
United States, and its possessions and territories. The Court examined the nature of
fundamental rights guaranteed to all by the Constitution, the harm done to individuals
by delaying the implementation of such rights while the democratic process plays out,
and the evolving understanding of discrimination and inequality that has developed
greatly since Baker.
Affirmative Action
Equalizing opportunity by eliminating discriminatory
barriers evolved into the goal of affirmative action.
•Affirmative action government policies or programs seek to redress
past injustices against specified groups by making special efforts to
provide members of those groups with access to educational and
employment opportunities.
•President Lyndon Johnson first pursued a policy of minority
employment in the federal civil service and in companies doing
business with the government.
•Affirmative action did not become a prominent goal of the national
government until the 1970s.
Supreme Court Rulings on Affirmative Action
Affirmative Action: Level of Review
What is the appropriate level of review in affirmative action
cases?
•In Regents of the University of California v. Bakke (1978):
Affirmative action upheld, but quotas and separate admission for
minorities rejected; burden of proof on defendant.
•In Grutter v. Bollinger (2003), the Court applied a “strict
scrutiny” test to the law school’s policy, and found that the law
school’s admissions process was narrowly tailored to the
school’s compelling state interest in diversity.
Affirmative Action – Current Case
http://www.nytimes.com/2015/12/10/us/politics/sup
reme-court-to-revisit-case-that-may-alteraffirmative-action.html?_r=0
http://www.salon.com/2015/12/18/a_willful_misrea
ding_of_racism_today_fisher_v_university_of_te
xas_is_part_of_a_general_attack_on_minority_ri
ghts/
http://www.salon.com/2015/12/18/a_willful_misrea
ding_of_racism_today_fisher_v_university_of_te
xas_is_part_of_a_general_attack_on_minority_ri
ghts/
Essay Question for Tuesday
url research – 2 key arguments for 2 key arguments against
why/how is this a “political” issue??
Keep in mind this statement :
Affirmative action is a useful tool for dealing with past injustices,
but it is no longer politically possible. Agree or disagree with
specific reasons and analysis!!
To answer this question successfully, you will need to discuss:
1. Is this a effective way of dealing with past injustices? Why or
why not?
2. Is this a politically possible way of dealing with past
injustices? Why or why not?
Go here for links
In class essay on Tuesday!
Public Opinion in Black and White
Public Opinion Poll: Q1
Do you believe the U.S. Transportation Security
Administration (TSA) should be allowed to conduct
ethnic profiling, or is this practice a threat to an
individual’s civil rights?
a)
b)
c)
Allowed; it is not a threat to an individual’s civil rights.
Not allowed; it is a threat to an individual’s civil rights.
Allowed, despite the threat to individual civil rights, to
protect the public and security interests.
Public Opinion Poll: Q2
Is it possible for schools to be “separate but equal,”
with racial segregation but equal educational
opportunity, in today’s society?
a)
b)
Yes
No
Public Opinion Poll: Q3
Should states and the federal government be
allowed to ask people they suspect of being
unauthorized immigrants to prove their legal status
based on physical appearance?
a) Yes, it protects public and national interests.
b) No, it is a clearly discriminatory policy.
c) Yes, it is worth offending or inconveniencing some
American citizens in order to identify those
breaking immigration laws.
Public Opinion Poll: Q4
Should the federal and state governments
recognize same-sex marriages, recognize
opposite-sex marriages, or get out of the business
of authorizing and recognizing personal
relationships altogether?
a)
b)
c)
d)
Recognize same- and opposite-sex marriages
Recognize opposite-sex marriage only
Recognize same-sex marriage only
Stop authorizing, licensing, or otherwise validating marital
status for anyone
Public Opinion Poll: Q5
What did the election of President Barack Obama
tell us about race in American society?
a) Racism is not a significant problem in American
society any longer.
b) Racism is more problematic than ever; the reaction
to his presidency was noticeably hostile.
c) Racism remains a problem, but only in some parts
of the country.
d) Racism exists, but it now targets nonblack groups.
Following this slide, you will find additional images,
figures, and tables from the textbook.