Chapter 5: Civil Rights and Public Policy
AP GOVERNMENT

The phrase “all men are created equal” is part
of the Declaration of Independence. The
phrase is at the heart of American political
culture; yet implementing this principle has
proved to be one of our nation’s most enduring
struggles.

Throughout our history, issues involving AfricanAmericans, women, and other minorities have
raised constitutional questions about slavery,
segregation, equal pay, and a host of other
issues.

The rallying cry has been civil rights, which are
policies designed to protect people against
arbitrary or discriminatory treatment by
government officials or individuals.

The resulting controversies have been fought in
the courts, Congress, and the bureaucracy, but
the meaning of equality remains as elusive as it
is divisive.

Today’s equality debates center on these types
of inequality in America:
 Racial
discrimination.
 Gender discrimination.
 Discrimination based on age, disability, sexual
orientation, and other factors.
RACIAL EQUALITY: TWO CENTURIES OF
STRUGGLE

The struggle for equality has been a persistent
theme in our nation’s history.

Slaves sought freedom, free African-Americans
fought for the right to vote and to be treated as
equals, women pursued equal participation in
society, and the economically disadvantaged
called for better treatment and economic
opportunities.

This fight for equality affects all Americans.

Philosophically, the struggle involves defining
the term equality.

Constitutionally, it involves interpreting laws.

Politically, it often involves power.
CONCEPTIONS OF EQUALITY

What does equality mean?

Jefferson’s statement in the Declaration of
Independence that “all me are created equal”
did not mean that there were no differences
among human beings.

Jefferson insisted throughout his life that
African Americans were genetically inferior to
whites.

The Declaration went on to speak, however, of
“inalienable rights” to which all were equally
entitled.

A belief in equal rights has often led to a belief
in equality of opportunity; in other words,
everyone should have the same chance.

What individuals make of that chance depends
on their abilities and efforts.

American society does not emphasize equal
results or equal rewards; few Americans argue
that everyone should earn the same salary or
have the same amount of property.
EARLY AMERICAN VIEWS OF EQUALITY

Few colonists were eager to defend slavery.

The delegates to the Constitutional Convention
did their best to avoid facing the tension
between slavery and the principles of the
Declaration of Independence.

Women’s rights got even less attention than
slavery at the Convention.
THE CONSTITUTION AND INEQUALITY

Perhaps the presence of conflicting views of
equality in 18th century America explains why
the word equality does not appear in the
original Constitution.

In addition, America in 1787 was a far different
place from contemporary America, with far
different values.

The privileged delegates to the Constitutional
Convention would have been baffled, if not
appalled, at the discussions of equal rights for
12 year olds, deaf students, gay soldiers, or
female road dispatchers.

The delegates created a plan for government,
not guarantees of individual rights.

Not even the Bill of Rights mentions equality.

It does, however, have implications for equality
in that it does not limit the scope of its
guarantees to specified groups within society.

The First Amendment guarantees of freedom of
expression, in particular, are important
because they allow those who are
discriminated against to work toward achieving
equality.

This kind of political activism, for instance, led
to the constitutional amendment that enacted
a guarantee of equality, the 14th Amendment.

The first and only place in which the idea of
equality appears in the Constitution is in the
14th Amendment, one of the three
amendments passed after the Civil War.

The 14th Amendment states, “ No State shall
make or enforce any law which shall abridge
the privileges or immunities of citizens of the
United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”

Equal protection of the laws: part of the 14th
Amendment emphasizing that the laws must
provide equivalent “protection” to all people.

Those five words represent the only reference
to the idea of equality in the entire Constitution,
yet within them was enough force to begin
ensuring equal rights for all Americans.

The full force of the amendment was not felt for
nearly 100 years, for it was not until the midtwentieth century that the 14th Amendment
was used as an instrument for unshackling
disadvantaged groups.

Once dismissed as “the traditional last resort
of constitutional arguments,” the equal
protection clause now has few rivals in
generating legal business for the Supreme
Court.

But what does equal protection of the laws
mean?

The 14th Amendment does not say that “states
must treat everybody exactly alike,” or that
“every state must promote equality among all
its people.”

Presumably, it means, as one member of
Congress said during the debate on the
amendment, ”equal protection of life, liberty,
and property” for all.

Thus, a state cannot confiscate an African
American’s property under the law while letting
Whites keep theirs, or otherwise give Whites
privileges denied to African Americans.

Some members of Congress interpreted the
clause to be a much more lavish protection of
rights than this interpretation.

Over the last 100 years, however, the equal
protection clause has become the vehicle for
more expansive constitutional interpretations.

In order to determine whether a particular form
of discrimination is permissible, the Supreme
Court developed three levels of scrutiny, or
analysis, called standards of review.

The Court has rule that most classifications
that are reasonable-that bear a rational
relationship to some legitimate governmental
purpose-are constitutional.

The person who challenges these
classifications has the burden of proving that
they are arbitrary.

A classification that is arbitrary-a law singling
out, say, people with red hair or blue eyes for
inferior treatment-is invalid

The Court has also ruled that racial and ethnic
classifications are inherently suspect.

These classifications are presumed to be
invalid and are upheld only if they serve a
“compelling public interest” and there is no
other way to accomplish the purpose of the law.

In this case, the burden of proof is on the state.

Classifications by race and ethnicity, such as
for college admissions, may be acceptable if
they are made in laws seeking to remedy
previous discrimination.

Classifications based on gender fit somewhere
between these two extremes; they are
presumed neither to be constitutional nor to be
unconstitutional.

A law that discriminates on the basis of gender
must bear a substantial relationship to an
important legislative purpose.

If these three levels of judicial scrutiny
(reasonable, inherently suspect, and
somewhere in between) appear confusing, they
are-even judges and legal scholars struggle to
interpret these standards.

Today the equal protection clause is interpreted
broadly enough to forbid racial segregation in
public schools, prohibit job discrimination,
reapportion state legislatures, and permit
court-ordered busing, and affirmative action.

Conditions for women an minorities would be
radically different if it were not for the “equal
protection” clause.
RACE, THE CONSTITUTION, AND PUBLIC POLICY

Throughout American history, African
Americans have been the most visible minority
group in the United States.

The individuals have blazed the constitutional
trail for securing equal rights for all Americans.
THE ERA OF SLAVERY

The first African immigrants to America were
kidnapped.

African Americans lived in slavery for the first of
250 years of American settlement.

Slaves were the property of their masters.

They could be bought and sold, and they could
neither vote nor own property. The Southern
States, whose plantations required large
numbers of unpaid workers, were the primary
market for slave labor.

During the slavery era, any public policy of the
slave states or the federal government had to
accommodate the property interests of slave
owners, who were often wealthy and enjoyed
substantial political influence.

The Supreme Court got into the act, too, along
with the legislative and executive branches.

In 1857 under Dred Scott v. Sandford, the
Supreme Court decision ruled that a slave who
had escaped to a free state enjoyed no rights
as a citizen and that Congress had no authority
to ban slavery in the territories.

This decision invalidated the Missouri
Compromise, which allowed Missouri to
become a slave state on the condition that
Northern territories would remain free of
slavery.

As a result, the Scott decision was an important
milestone on the road to the Civil War.

The Union victory in the Civil War and the
ratification of the 13th Amendment ended
slavery. It also ended involuntary servitude.

The promises implicit in the 13th Amendment
and the other two Civil War Amendments
introduced the era of reconstruction and
resegregation in which these promises were
first honored and then broken.
THE ERA OF RECONSTRUCTION AND
RESEGREGATION

After the Civil War ended, Congress imposed
strict conditions on the former confederate
states before they could be readmitted to the
Union.

Many African Americans held state and federal
offices during the 10 years following the war
because no one who had served in the
Confederate army or the state secessionists
governments could hold state office.

Some government agencies, such as the
Freedman’s Bureau, provided assistance to
former slaves who were making the difficult
transition to independence.

To ensure his election in 1876, Rutherford B.
Hayes promised to pull the troops out of the
South and let the old slave states resume
business as usual.

This done, Southerners lost little time
reclaiming power and imposing a code of Jim
Crow laws, or segregational laws, on African
Americans.

These laws relegated African Americans to
separate school systems, and even separate
restrooms.

Most Whites lost interest in helping former
slaves.

And what Jim Crow laws mandated in the South
was also common practice in the North.

In this era, racial segregation affected every
part of life, from cradle to the grave. Groups
such as the Ku Klux Klan terrorized African
Americans who violated the norms of
segregation, lynching hundreds of them during
this era.

The Supreme Court provided a constitutional
justification for segregation in the 1896 case of
Plessy v. Ferguson. The Court ruled that a
Louisiana law requiring “equal but separate
accommodations for White and colored races “
was constitutional.
THE ERA OF CIVIL RIGHTS

After searching for the perfect case to
challenge school segregation, the NAACP
selected the case of Linda Brown. In Brown v.
Board of Education, 1954, the Supreme Court
held that school segregation in Topeka, Kansas
was inherently unconstitutional because it
violated the 14th Amendment’s guarantee of
equal protection. This case marked the end of
legal segregation in the U.S.

A year after its decision in Brown, the Court
ordered lower courts to proceed with “all
deliberate speed” to desegregate public
schools. Desegregation began, and proceeded
slowly in the South, however.

A few counties threatened to close their public
schools; enrollment in private schools by
Whites soared.

In 1957, President Eisenhower had to send
troops to desegregate Central High School in
Little Rock, Arkansas.

Congress prohibited federal aid to schools that
remained segregated.

Some federal judges ordered the busing of
students to achieve racial balanced schools, a
practice upheld in by the Supreme Court in
Swann v. Charlotte-Mecklenberg Schools, 1971.

Not all racial segregation is what is called de
jure (by law) segregation.

De facto (“in reality”) segregation results, for
example, when children are assigned to
schools near their homes, and those homes
are in neighborhoods that are racially
segregated for social and economic reasons.

Sometimes the distinction between de jure and
de facto segregation has been blurred by past
official practices.

Because minority groups and federal lawyers
demonstrated that Northern schools, too, had
purposely drawn district lines to promote
segregation, school busing came to the North
as well.

The civil rights movement organized both
African Americans and Whites to end the
policies and practices of segregation.

The movement began in 1955 when Rosa
Parks, an African American woman, refused to
give up her seat in a Montgomery, Alabama bus
to a White man.

This incident prompted a bus boycott led by a
local minister, Martin Luther King, Jr. who
became the best known civil rights activist.

As a result of national conscience, the courts,
the civil rights movement, and the increased
importance of African-American voters, the
1950s and 1960s saw a marked increase in
public policies to promote voting rights, access
to public accommodations, open housing, and
nondiscrimination in many other areas of social
and economic life.

The Civil Rights Act of 1964:
 Made
racial discrimination illegal in hotels, motels,
restaurants, and other places of public
accommodation
 Forbade discrimination in employment on the basis
of race, color, national origin, religion, or gender
 Created the Equal Employment Opportunity
Commission (EEOC) to monitor and enforce
protections against job discrimination

The Civil Rights Act of 1964:
 Provided
for withholding federal grants from state
and local governments and other institutions that
practiced racial discrimination
 Strengthened voting rights legislation
 Authorized the U.S. Justice Department to initiate
lawsuits to desegregate public schools and facilities

The Voting Rights Act of 1965 was the most
extensive federal effort to crack century-old
barriers to African-American voting in the
South.

So many congressional and judicial policies
were instituted after 1954 that virtually every
type of segregation was attacked by legislative
or judicial policy.
GETTING AND USING THE RIGHT TO VOTE

When the Constitution was written, no one
thought of extending the right to vote to African
Americans or to women.

The early Republic limited suffrage, the legal
right to vote, to a handful of the populationmostly property-holding White males.

Only after the Civil War was the right to vote
extended, slowly and painfully, to AfricanAmerican males and the to other minority
groups.

The 15th Amendment, adopted in 1870,
extended suffrage to African American males
(at least in principle).

The gap between these words and their
implementations, however, remained wide for a
full century.

States seemed to outdo one another in
developing ingenious methods of circumventing
the 15th Amendment.

Many states required potential voters to
complete literacy tests before registering to
vote.

These test typically required potential voters to
read, write, and understand their state
constitution or the U.S. Constitution.

In practice, however, the literacy test was rarely
administered to Whites, yet the standard of
literacy required of blacks was so high that few
were able to pass the test.

Some state also used the grandfather clause,
that exempted persons whose grandfathers
were eligible to vote in 1860. This exemption
did not apply to the grandchildren of slaves, but
did allow illiterate Whites to vote. The law was
unfair and the Supreme Court overruled it in
Guinn v. United States, 1915.

To exclude African Americans from registering
to vote, most southern states also relied on poll
taxes, which were taxes levied on the right to
vote that often fell due at the time of the year
when poor sharecroppers had the least cash on
hand.

To render African-American votes ineffective,
most Southern states also used the White
primary, a device that permitted political
parties in the heavily Democratic South to
exclude African Americans from voting in
primary elections, thus depriving them of a
voice in the most important contests and
letting them vote only when it mattered least.

The Supreme Court declared White primaries
unconstitutional in 1944 in Smith v. Allwright.

The civil rights movement put suffrage high on
its political agenda; one by one, the barriers to
African-American voting fell during the 1960s.

Poll taxes in federal elections were prohibited
by the 24th Amendment, which was ratified in
1964.

The Voting Rights Act of 1965 prohibited any
government from using voting procedures that
denied a person the vote on the basis of race
or color and abolished the use of literacy
requirements for anyone who had completed
the 6th grade.

As a result of these provisions, hundreds of
thousands of African Americans registered to
vote in Southern States.

By the early 1980s, more than 2,500 African
Americans held elected offices and the number
has continued to grow.

The Voting Rights Act of 1965 not only secured
the right to vote for African Americans but also
ensured that their votes would not be diluted
through racial gerrymandering.

Officials in the Justice Department, which was
responsible for enforcing the Votings Right Act,
and state legislatures that drew new district
lines interpreted these actions as a mandate to
create minority-majority districts.

Later, the Court gave legal standing to
challenges to any congressional map with an
oddly shaped minority-majority district that may
not be defensible on grounds other than race.

We can expect continued legislation concerning
this question after each census is taken.
OTHER MINORITY GROUPS

America is headed toward a minority majority: a
situation in which minority groups will
outnumber Whites.

As of 2001, African Americans were no longer
the largest minority group in the U.S.

The civil rights laws for which African Americans
fought have benefited members of other
groups as well.
NATIVE AMERICANS

The Native Americans are the oldest minority.
The history of poverty, discrimination, and
exploitation experienced by Native Americans is
a long one.

Native Americans were first isolated on
reservations, losing their lands and their rights
in the process.

After the Dawes Act of 1887, the federal
government switched strategies and focused
on assimilation into mainstream American life.

In 1924, American Indians were made citizens
of the U.S. Not until 1964 did Congress
establish the Indian Claims Act to settle
financial disputes arising from lands taken from
the American Indians.

Today, most Native Americans still live in
poverty and ill health, almost half on or near a
reservation.

As in other areas of civil rights, the preservation
of Native American culture and the exercise of
Native American rights sometimes conflict with
the interests of the majority.

Native American rights to run businesses
denied to others by state law and to avoid
taxation on tribal lands have made running
gambling casinos a lucrative option for Native
Americans.

This has irritated both those who oppose
gambling and those who are offended by the
free-tax competition.
HISPANIC AMERICANS

Hispanic Americans have replaced African
Americans as the largest minority group.

The first major efforts on behalf of civil rights
for Hispanics date only from the mid-1960s.

An early example was the United Farm Workers,
led by Cesar Chavez, who publicized the plight
of migrant workers, a large proportion of whom
are Hispanic.

Like Native Americans, Hispanic Americans
benefit from the nondiscrimination policies
originally passed to protect African Americans.
ASIAN AMERICANS

Asian Americans are the fastest growing
minority group.

Asian americans suffered discrimination in
education, jobs, and housing, as well as
restrictions on immigration and naturalization
for more than one hundred years prior to the
civil rights acts of the 1960s.

In 1944 The Supreme Court decided that it was
constitutional to intern more than 100,000
Americans of Japanese descent in
encampments during WWII. The decision was
called Korematsu v. United States, 1944.

Congress has since then authorized benefits to
former internees.

Today, Americans of Chinese, Japanese,
Korean, Vietnamese, and other Asian cultures
have assumed prominent positions in U.S.
society.
WOMEN, THE CONSTITUTION, AND PUBLIC
POLICY

The first women’s rights activists were products
of the abolitionist movement, where they often
encountered sexist opposition.
THE BATTLE FOR THE VOTE

In 1848, 100 men and women signed the
Seneca Falls Declaration of Sentiments and
Resolutions.

It was patterned after the Declaration of
Independence. Thus began the movement that
would culminate in the ratification of the 19th
Amendment.

The 19th Amendment was the constitutional
amendment adopted in 1920 that guarantees
women the right to vote.

From 1920-1960, the feminist movement
seemed to lose rather than gain momentum
after winning the vote, perhaps because the
vote was about the only goal on which all
feminists agreed.

The Equal Rights Amendment (ERA), was a
constitutional amendment originally introduced
in Congress in 1923 and passed by Congress in
1972.

Despite public support, the amendment failed
to acquire the necessary support from threefourths of state legislatures.
THE SECOND FEMINIST WAVE

The civil rights movement of the 1950s and
1960s attracted many female activists, some
of whom also joined student and antiwar
movements.

Before the advent of the contemporary feminist
movement, the Supreme Court upheld virtually
any instance of gender-based discrimination.
The state and federal governments could
discriminate against women-and, indeed, menas they chose.

In Reed v. Reed, 1971, the Supreme Court for
the first time upheld a claim of gender
discrimination.

In Craig v. Boren, 1976, the Supreme Court
established the “medium scrutiny” standard for
determining gender discrimination

Gender discrimination would be presumed to
be neither valid or invalid. The courts were to
show less deference to gender classifications
than to more routine classifications, but more
deference than to racial classifications.
WOMEN IN THE WORKPLACE

Congress has made some important progress,
especially in the area of employment. The Civil
Rights Act of 1964 banned gender
discrimination in employment.

Title IX of the Education Act of 1972 forbade
gender discrimination in federally subsidized
education programs, including athletics.
WAGE DISCRIMINATION AND COMPARABLE
WORTH

Traditional women’s jobs often pay much less
than men’s jobs that demand comparable skill.

Medium annual earnings for full-time workers
are only about three-fourths of those of men.

In 1983, the Washington Supreme Court ruled
that its state government had discriminated
against women for years by denying them equal
pay for jobs of comparable worth.

The U.S. Supreme Court has remained silent so
far on the merits of this issue.
WOMEN IN THE MILITARY

Military service is another controversial aspect
of gender equality.

Now women are part of the regular service.
They make up 15 percent of the armed forces.

Congress opened all the service academies to
women in 1975.

Only men must register for the draft when they
turn 18.

Statutes and regulations also prohibit women
from serving in combat.
SEXUAL HARASSMENT

Whether in the military, on the assembly line, or
in public office, women have voiced concern
about sexual harassment for years.

Sexual harassment can occur anywhere but
may be especially prevalent in male dominated
occupations such as the military.

A 1991 convention of the Tailhook Association,
an organization of naval aviators, made news
after reports surfaced of sexual harassment
directed toward female guests, including naval
officers.

Behavior that was once considered as male
high jinks is now recognized as intolerable.
NEWLY ACTIVE GROUPS UNDER THE CIVIL
RIGHTS UMBRELLA

Three current entrants into the civil rights area
are aging Americans, people with disabilities,
and homosexuals.
CIVIL RIGHTS AND THE GRAYING OF AMERICA

America is aging rapidly.

Although many elderly people want to work,
employers routinely refused to hire people over
a certain age.

As early as 1967, Congress banned some kinds
of age discrimination.

In 1975, civil rights law denied federal funds to
any institution discriminating against people
over the age of 40 because of their age.

Compulsory retirement has been phased out
altogether. No one knows what other directions
the gray liberation movement may take as its
members approach the status of a minority
majority.
CIVIL RIGHTS AND PEOPLE WITH DISABILITIES

Americans with disabilities have suffered from
both direct and indirect discrimination

The Americans with Disabilities Act of 1990
(ADA) requires employers and public facilities to
make “reasonable accommodations” for
people with disabilities and prohibits
discrimination against these individuals in
employment.
GAY AND LESBIAN RIGHTS

Gay and lesbian activists may face the toughest
battle for equality.

Homophobia-fear and hatred of homosexuals
has many causes; some are very powerful.
AFFIRMATIVE ACTION

Affirmative Action involves efforts to bring
about increased employment, promotion, or
admission for women and minorities.

The goal is to move beyond equal opportunity
toward equal results.

This goal might be accomplished through
special rules in the public and private sectors
that recruit or otherwise give preferential
treatment to previously disadvantaged groups.

The constitutional status of affirmative action is
not clear.

New state and federal laws have discriminated
in favor of those previously disadvantaged
groups.

Eventually, the federal government mandated
that all state and local governments, as well as
each institution receiving aid from or
contracting with the federal government, adopt
an affirmative action program.

In Regents of the University of California v.
Bakke, 1978, the Supreme Court held that a
state university could not admit less qualified
individuals solely because of their race.

In Adarand Constructors v. Pena, 1995, the
Supreme Court decided that federal programs
that classify people by race, even for ostensibly
benign purpose such as expanding
opportunities for minorities, should be
presumed to be unconstitutional.

25 years of distortion and political warfare over
affirmative action have made it difficult for
most people to speak clearly on the subject or
even to recognize affirmative action when they
see it.

Loaded terms such as “quotas and “reverse
discrimination” have made it all but impossible
to see affirmative action as a constructive and
vitally important policy for the United States.
UNDERSTANDING CIVIL RIGHTS AND PUBLIC
POLICY

The original Constitution is silent on equality.
The only direct reference is in the 14th
Amendment.
CIVIL RIGHTS AND DEMOCRACY

Equality is a basic principle of democracy.
Every citizen has one vote. Individual liberty is
an equally important democratic principle, one
that can conflict with equality.

Equality tends to favor majority rule. Thus, the
principle of equality can invite the denial of
minority rights, whereas the principle of liberty
condemns such action.
CIVIL RIGHTS AND THE SCOPE OF GOVERNMENT

Civil rights laws increase the scope and power
of government. These laws regulate the
behavior of individuals and institutions.

The Founders might be greatly perturbed if they
knew about all the civil rights laws the
government has enacted; these policies do not
conform to the 18th century idea of limited
government.

But the Founders would expect the national
government to do whatever is necessary to hold
the nation together.

However, civil rights, like civil liberties, is an
area in which increased government activity in
protecting basic rights can lead to greater
checks on government by those who benefit
from such protections.

The question of where to draw the line in the
government’s efforts to protect civil rights has
received different answers at different points in
American history, but few Americans want to
turn back the clock to the days of Plessy v.
Ferguson and Jim Crow laws or to the exclusion
of women from the workplace.