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Chapter 17
Equal Rights Under the Law
Natural rights

Human rights

Rights endowed to all humans by virtue of being human

Equal right to protection against arbitrary treatment and an = right to the liberties
that the Bill of Rights guarantees


Civil liberties


Not dependent on citizenship…… for all people
Freedoms of conscience, religion, and expression
Civil Rights

The right not to be discriminated against b/c of race, religion, gender, or ethnic
group

Protected by the Constitution

Ensures the gov’t does not discriminated against us

Grants national and state governments the power to protect
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Equality and Equal Rights

Everyone should have equality of opportunity regardless of race, ethnic origin, religion,
and (recently) gender and sexual orientation - Constitutionally protected

Equality of starting position

Well born, educational opportunity, ….. Not all start with the same advantages



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Federal attempt to level the playing field – Head Start
Equality between groups

When large disparities in wealth and advantage exist between groups

Affirmative action: designed to provide special help to the disadvantaged
Equality of results

“Safety net” - minimum floor below which no one should be able to fall

Americans generally do not support an equality of results – everyone having the same amount of material
goods

Generally believe that through hard work things will get better and that entrepreneurial sprit will be
rewarded
Quest for Equal Justice

Racial Equality


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Civil War (1861-1865) northern victory leads to 13th, 14th, 15th amendments

1860s and 70s Congress passed civil rights laws to implement these amendments and provide
programs to provide educational and social services for freed salves.

Supreme Court struck down many of these – not until the 60s that progress was again made
Segregation and White Supremacy

1877 Reconstruction ends

Supreme Court begins rolling back progressive laws pertaining to race – defined the
13th,14th,15th in such a limited way that they were ineffective at protecting African American
rights

For nearly 100 years white supremacy went unchallenged in the South

Denied suffrage, forced to accept menial jobs, denied educ. opportunities, segregated in public and
private facilities

Lynched on average one every four days
Quest for Equal Justice

Racial Equality


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WWI

Great Migration

After WWII African Americans begin to make social gains

Changed demographics in cities across the country and in the north they started to influence the results in
national elections

Mid-twentieth century, urban African Americans were active and politically powerful

Slow Government Response
Brown v. Board of Education of Topeka

Prohibited racially segregated public schools and struck down most of the devices that state and local
authorities had used to keep African Americans from voting

This reversed Plessy v. Fergusson

Truman and Eisenhower used executive authority to fight segregation in the armed services and in the
federal bureaucracy 40s-50s

1957 Congress overrode a Southern filibuster to enact some of the first federal civil rights laws since
Reconstruction

The goal of the 1957 Civil Rights Act was to ensure that all Americans could exercise their right to vote
Quest for Equal Justice

Turning Point
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
Although many barriers had fallen most African Americans still faced discrimination in housing,
employment, schools

Civil Rights movement begins in Montgomery Alabama in 1955

Rosa Parks

Led to a boycott of the city buses – African Americans were the main patrons of city transit

Boycott worked

Emergence of MLK

Sit-ins, freedom rides, … non-violent demonstrations, often met with violence

Summer of 1963 - Birmingham, Alabama : fire houses, police dogs, mass arrests

These “direct actions” had an effect

Many cities enacted civil rights ordinances, more school desegregated

JFK calls on Congress to enact comprehensive Civil Rights legislation

Kennedy is assassinated and LBJ made Civil Rights is top priority – passed Civil Rights Act of 1964

Forbids discrimination based on race, color, religion, sex, or nationality.
Quest for Equal Justice

Riots and Reaction

1965 – Watts

1967 – Detroit
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
Johns appointed a special Advisory Commission on Civil Disorder in 1967 to investigate the origins and
recommend preventative measures

“white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain
it, and white society condones it.” “Out nation is moving toward two societies, one black, one white –
separate and unequal….” “only a commitment to national action on an unprecedented scale” could
change the trend

Other events diverted attention away from commissions findings and recommendations

Vietnam War, Watergate, Ronald Reagan and GW Bush were reluctant to take action to enforce civil rights

Country grew skeptical

Clinton more sympathetic but Repub. Opposition made programs and initiatives difficult to pass

George W. Bush – pursued race neutral policies like No Child Left Behind
Women’s Rights

Seneca Falls Convention 1848

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involved men and women who were working to abolish slavery, gain rights for African
Americans and women
 Civil
War - women encouraged to focus on abolition, brought women’s movement
to a halt
 Temperance
 20th
Movement: prohibition, diverted attention away from women’s rights
century - campaign for woman's suffrage gained momentum
 victory
in the Western States led the way.... Wyoming was the first - vowed not
to join the union unless the national gov’t allowed the “petticoat provision” to
stay
 by
end of WWI more than half the states had given the right to vote in some or
all elections
 1919
Congress proposed the 19th Amendment
 ratified
in 1920
•although they won the right to vote - still denied equal pay and rights
Women’s Rights
 ERA
amendment failed in the 1970s & 80s
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 Supreme
Court has been reluctant to expand the 14th Amendment
protection to gender discrimination
 have
enforced the prohibition against sex discrimination in the 1964
Civil Rights Act and expanded it tot forbid sexual harassment in the
workplace
 Clarence
Thomas - Anita Hill brought the issue of sexual harassment to
the nations attention


harassment: employees are forced to work in a “hostile environment”
(workplace permeated with intimidation, ridicule, and insult that is severe
and pervasive and this includes same-sex harassment)
although women still feel that a “glass ceiling” exists
 they
have made considerable progress, outpace men in college
graduation rates
Hispanics
 anti-immigrant

animosity isn’t new among native born Americans
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Most Hispanics are bilingual, many of their ancestors have been here
for generations
 suffered
the same kinds of discrimination in employment, education,
housing, and access to public accommodations

1994 California adopts Proposition 187
•denied medical, educational, and social services to illegal immigrants
•Congress amended the federal welfare laws- curtailing benefits to noncitizens
•many immigrants rushed to become naturalized
•Half of all Hispanics Americans live in CA and TX
•2001 - CA became the first big state : wht are the minority
•2004 - TX was the second
Asian Americans
 live

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chiefly in Western States
•
•
model minority
face widespread prejudice, discrimination and = opp
barriers
Chinese Americans

 Japanese
1st Asians to US beginning in 1847 - mines, RR, farms

seldom tried to assimilate..... Chinatowns

ethnic enclaves
Americans

first migrated to Hawaii in 1860s, CA in the 1880s

1905 white labor organized Japanese & Korean Exclusion
League
Asian Americans
 Japanese
 1905

Americans
white labor organized Japanese & Korean Exclusion League
children excluded from neighborhood school
 laws
against land ownership, ineligible to become citizens
 internment
- WWII
•property confiscated and sold, businesses lost, jobs, incomes

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Other Asian Americans
•Koreans - housing, and jobs
•Koreans have a growing middle class
Native Americans
 Almost

more than 550 federally recognized tribes
 226

1/2 of the over 2 million live on or near reservation
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in Alaska, 200 different languages
“nations” not fully sovereign, separate people with power to regulate
their own internal affairs (subject to congressional supervision)
 can’t
be regulated or taxed by states w/o congressional authorization
 Natives
are citizens, with the right to vote
•off reservations, have the same rights as any other American
 Bureau
of Indian Affairs of the Dept. of Interior administers benefits that
they are entitled to by law
•Assimilation policy - 1887-1934
•tribal gov’ts weak, some dissolved, federal gov’t
Native Americans
•
•
•
•
•
Many Natives live in poverty
have worse health than the rest of the population
die earlier and suffer disproportionately from alcoholism,
accidents, diabetes, and pneumonia
many reservations continue to experience 50-60 %
unemployment
lack health care facilities, schools, decent housing and jobs
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Equal Protection of the Laws
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 Equal protection clause of the
Amendment
 No state shall “deny to any person within its jurisdiction the equal protection
of the laws”
 5th Amendment – no person shall “be deprived of life, liberty, or property, w/o
due process of law” – interpreted by the courts to impose restraints on the
national government
 Applies only to the actions of governments not private individuals
 In some cases people may practice discriminatory action that isn’t
unconstitutional (although it may be against federal or state law)
14th

Constitutional Classifications and Tests
 rational basis test, strict scrutiny test, heightened scrutiny test

Rational basis : traditional test …. Must show the law has no
rational or legitimate governmental goals
Equal Protection of the Laws
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Rational basis :
 Romer v. Evans (1996) : Court stuck down an amendment in
CO - law bared local gov from adopting laws that forbid
discrimination against homosexuals
 no rational basis for the law
Strict Scrutiny & Suspect Classifications
 The courts must be persuaded that there is both a compelling
governmental interest to pass a law regarding and issue and
that there is no less restrictive way to accomplish this purpose
 Susp. Classif. – a class of people deliberately subjected to
such unequal treatment
 Supreme Court has held that laws giving preference for
public employment based on race are subject to strict
scrutiny
Equal Protection of the Laws
Quasi-Suspect Classification & Heightened Scrutiny
 To sustain a law under this test the govt must show its
classification serves “important governmental objectives”
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Poverty and Age
 It has been argued that the poor and the elderly should be
similarly protected.
 Court rejects that financial need alone identifies a suspect
class for purposes of equal protection
 Supreme Court has repeatedly refused to make age a
suspect classification requiring extra judicial protection
 Congress has made it illegal for most employers to
discriminate on basis of advancing age
Equal Protection of the Laws
Fundamental Rights & Strict Scrutiny
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 Court strictly scrutinizes laws impinging on fundamental rights
 Ex: are considered fundamental – rights to travel, vote,
1st amend. rights, advance political beliefs

right to an education, housing, welfare benefits have
NOT been deemed fundamental
Proving Discrimination
 Washington v Davis (1976) – Supreme Court said the a
violation of the Equal Protection Clause requires state action
motivated by discriminatory intent; disproportionate effects are
not sufficient to establish such a violation
 disparate impact : “14th Amendment guarantess equal
laws, not equal results”
Equal Protection of the Laws
Ex: city ordinances permit only single family residences – make lowcost housing projects impossible – not unconstitutional even though
they keep minorities from moving in …. Unless it can be proven that
they were adopted with the intent to discriminate
Voting Rights
• States, not national govt regulate elections and voting
qualifications
• 1940s white only primaries essentially disenfranchised black
voters
• Smith v Allwright (1944) - Court declared white primary
unconstitutional
• 1960 Court declared racial gerrymandering was contrary to
the 15th Amendment
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Equal Protection of the Laws
Ex: city ordinances permit only single family residences – make lowcost housing projects impossible – not unconstitutional even though
they keep minorities from moving in …. Unless it can be proven that
they were adopted with the intent to discriminate
Voting Rights
• States, not national govt regulate elections and voting
qualifications
• 1940s white only primaries essentially disenfranchised black
voters
• Smith v Allwright (1944) - Court declared white primary
unconstitutional
• 1960 Court declared racial gerrymandering was contrary to
the 15th Amendment
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Equal Protection of the Laws
• Poll Taxes
- 1966 Harper v Virginia Board of Elections
- Court found that poll taxes violated the 14th amendment
- 24th Amendment (1964) prohibited poll taxes for national
elections
• literacy tests
• Voting Rights Act of 1965
- section 2 prohibits voting qualifications or standards the result
in a denial of the right of any citizen to vote on account of
race and color.
- section 5 - states with a history of denying Afr. Amer. or Hisp.
citizens the right to vote must get the DOJ clearance when
changing in voting practices
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Equal Protection of the Laws
• Shaw v. Reno 1993 - states could not make race the sole or
predominant reason for drawing electoral districts
• test case: NC legislature created a majority-minority district
- the Court reapportionment scheme was so “irrational that it
could only be seen as an effort to separate voting districts
based on race”
- court said legislatures may take race into account but when it
becomes the overriding motive it is a violation of the equal
protection clause.
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Education Rights
• Jim Crow Laws
- name given to laws whose intent are to deprive minorities
from participation
Plessy v Ferguson (1896)
- Supreme Court said that segregation was not illegal on
railways so long as there were “separate and equal
accommodations”
Brown v Board of Education of Topeka (1954)
- Court reverses Plessy - sep. but = does not apply to public
schools. Segregation in and of itself is discrimination.
- a year later court ordered all school boards to desegregate
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Education Rights
✦
Civil Rights Act 1964
- federal $ w/drawn from districts and higher ed if discrimination on the
grounds of race, gender, age, or disability
✴
de jure segregation - segregation imposed by law
✴ de facto segregation - resulting fro economic or social conditions or
personal choice
✴
influence of “white flight” on segregation
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Rights of Association,
Accommodations, Jobs, and Homes
✦
Supreme Court has upheld the application of laws forbidding sex or
racial discrimination by organizations such as Jaycees, Rotary Club,
large private eating clubs.
✦ ex: Augusta National Golf Course.... no women and very few if
any minorities
✴Boy
Scouts of America v Dale (2000) Court upheld Scouts exclusion of
homosexual scout masters and members (overturned recently)
✴
Title II of Civil Rights Act 1964
- federal offense to discriminate against any customer or patron in a place
of public accommodation
- doesn’t apply to boarding houses w/ fewer than 5 rooms
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Rights of Association,
Accommodations, Jobs, and Homes
✴Title
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VII of Civil Rights Act 1964
- illegal for any trade union in an industry affecting interstate commerce and
employing 15 or more people to discriminate in employment practices
- employers must create workplaces that avoid abusive environments
- may take into account age, sex, or handicap of prospective employees
when occupation qualifications are absolutely necessary
- Equal Employment Opportunity Commission
- attorney general prosecutes Title VII violations by public agencies
- aggrieved persons sue for damages, they can also file class action suits
Rights of Association,
Accommodations, Jobs, and Homes
Fair Housing Act
- restrictive covenants: provisions in deeds of real estate that restrict to
whom it can be sold
- 1968 Fair Housing Act
- forbids discrimination in housing, excludes boarding houses & dwellings
that have no more than four separate living units in which the owner
maintains a residence
- also covers efforts to deny loans to minorities
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Affirmative Action Controversy
policies enacted by the government to aid disadvantaged groups of people
in finding jobs and gaining access to higher education
- supporters call such policies affirmative action
- opponents call these policies reverse discrimination
- Univ of California Regents v. Bakke (1978)
Bakee, a Vietnam Vet, and top student in college was denied access to
medical school twice
- filed suit based on his denial on account of his race (white)
- Supreme Court that the Universities quota plan was unconstitutional
- quota : set # of admissions from which whites were excluded
- Court declared are not necessarily unconstitutional, race can be taken as
a “plus” when considering factors for admission
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Affirmative Action Controversy
- Richmond v Croson (1989)
- Court struck down regulation that a 30% of city contractors be minority
owned
- California’s Proposition 209
- Regents at Univ of California voted to eliminate race or gender as factors
in employment, purchasing, contracting, and admissions
- Prop 209 voted on by state residents the following year (1996)
- amended the state constitution: forbid state agencies from discriminating
against or granting preferential treatment to any individual or group in
employment, education, or contracting
- California, Texas, Louisiana, Mississippi, Georgia, Florida and
Washington have all abandoned affirmative action programs
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Affirmative Action Controversy
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- Gatz v Bollinger (2003)
- white high school student denied admission to Michigan based on a
selection index
- 20 pts awarded for students from underrepresented minority groups
- Court struck down the policy on ground :”too mechanical and
didn’t give applicants individualized consideration”
- Grutter v. Bollinger (2003)
- law school applicant denied acceptance
- Court upheld affirmative action in this case
- due to the fact that the school was making special efforts to achieve racial
and ethnic diversity
- didn’t use race as a factor in a “mechanical way” rather part of a
individualized holistic approach to admissions