Chapter 5: Civil Rights

Civil Rights What is the legal basis for civil rights? How has the equal protection clause of the

Fourteenth Amendment historically been enforced?

What is the critical Supreme Court ruling in the battle for equal protection?

How has Congress tried to make equal protection a reality?

In what areas did the civil rights acts seek to provide equal access and protection?

Civil Rights

all rights rooted in the Fourteenth Amendments’ guarantee of equal protection under the law

what the government must do to ensure equal protection

what the government must do to ensure freedom from discrimination

African-Americans and the Consequences of Slavery In apportioning congressional

representation based on population, the constitution refers to free persons and “other persons” (or slaves)

For purposes of representation, a slave was equal to 3/5 of a free person

Supreme Court confirms constitutionality of slavery in Dred Scott v. Sanford (1847)

The Civil War Amendments

Undoing Dred Scott v Sanford (1847) Thirteenth Amendment (1865) – neither slavery nor

involuntary servitude shall exist in the United States’ Fourteenth Amendment (1868) – all persons born or

naturalized in the United State are citizens states cannot abridge the privileges or immunities of citizens all persons (whether or not they are citizens) are entitled to due

process all persons are entitled to equal protection

Fifteenth Amendment (1870) – the right to vote shall not be denied because of race, color or previous condition of servitude

Series of Civil Rights Acts After Civil War The Civil Rights Act of 1866 The Enforcement Act of 1870 The Anti-Ku Klux Klan Act (1872) The Second Civil Rights Act (1875) Summary of intent: make equal

opportunity real, protect the exercise of equal citizenship rights.

The Civil Rights Act were nullified through: The Civil Rights Cases (1883)

the Supreme Court rules that the 14th amendment only prevents official discriminatory acts by states, not by private individuals

Plessy v. Ferguson (1896) stated that segregation did not violate the 14th

amendment established the separate-but-equal doctrine paved the way constitutionally for a system of racial

segregation developed, especially in the South

Civil Rights Racial Discrimination after World War IIPresident Truman attempted to end segregation after World War II.

The Supreme Court began to strike down segregation when the states failed to provide equal facilities.The Fourteenth Amendment provides that “no State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws.”

The End of the “Separate But Equal” Doctrine

Brown v. Board of Education of Topeka (1954) – Supreme Court rules public school segregation violates the 14th amendmentoverturns Plessy v. FergusonBrown v. Board of Education (1955) – orders desegregation “with all deliberate speed”Court –ordered busing – transporting African American children to white schools and white children to African American schools

Bussing

De facto as the targetThe Boston caseWithdrawal from bussingRehnquist court 1991: Board of Ed. Vs. DowelKC case of 1995: interdistrict resource re allocation was improper.

“If you look at the victories and failures of the civil rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples, so that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it I’d be okay.”

“But,” Obama said, “The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it’s been interpreted, and Warren Court interpreted in the same way that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted.”

Obama said “one of the, I think, the tragedies of the civil rights movement, was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that.”

http://www.youtube.com/watch?v=iivL4c_3pck

Warm Up

EEOC Title IV: Justice Dept Statistical evidence and “neutral

standards” Racial Gerrymandering

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) From desegregation to integration!

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

Outlawed in all employment, including gov. agenciesUsed Interstate commerce clauseTitle VII: EEOC1972 EEOC can start suits.Problem: who has to show proof.Statistical evidence….Even apparently “neutral” standards which had the impact of exclusion were suspectHad to show that a test or standard had a demonstrable connection to job performance

Discrimination in Employment

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

In October 2004, our investigations team at BBC Newsnight received a series of astonishing emails from Mr. Griffin, then Research Director for the Republican National Committee. He didn't mean to send them to us. They were highly confidential memos meant only for RNC honchos.

However, Griffin made a wee mistake. Instead of sending the emails -- potential evidence of a crime -- to email addresses ending with the domain name "@GeorgeWBush.com" he sent them to "@GeorgeWBush.ORG." A website run by prankster John Wooden who owns "GeorgeWBush.org." When Wooden got the treasure trove of Rove-ian ravings, he sent them to us.

And we dug in, decoding, and mapping the voters on what Griffin called, "Caging" lists, spreadsheets with 70,000 names of voters marked for challenge. Overwhelmingly, these were Black and Hispanic voters from Democratic precincts.

http://www.gregpalast.com/bushs-new-us-attorney-a-criminal/

Interlude 1

Explain the strategy of the Federal government to advance Civil Rights in the areas of public life and schools. Name at least 3 tactics and describe each briefly.

Civil Rights After Brown v. Board of Education

The Supreme Court used Strict Scrutiny to put the burden on the state government to establish the constitutionality of its actions.

Segregation created by law (de jure) was struck down.

Segregation that occurs through housing patterns exists even today.

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

Blaming the Victims: Fair Housing and the Crash of 2004

Applying What You Know

Read the article “Study: Most Students in South are poor….

What is the article’s thesis or main point? What factors explain the article’s main claim? What does this have to do with the ongoing debates over

Civil Rights and the role of government actions , programs and policy?

What does this have to do with your future? Short paper – 500 words or less. You will write it

tomorrow in the computer lab and submit it to auzenne_m@strakejesuit.org

Copyright © by W.W. Norton and Company 2003

What is universalization

The right to NOT be discriminated against out of title VII of the CRA of 1964

First gender, race, nationality, religion, or national origins

Then by Age or sexual preference Change goals or grievances into rights claims Key: plaintiff must prove that their membership

in a group is not “job” related or in some other fashion an unreasonable basis for discrimination

The Universalization of Civil Rights Women and gender discrimination Latinos and Asian Americans Native Americans Disabled Americans Gays and lesbians

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

Title VII 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 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’s Struggle for Equal Rights Women’s Suffrage Movement

was connected to the abolition movementsuffragists organized the first women’s right

convention at Seneca Falls, NY in 1848established 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

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

Sexual Harrassment

Title VII again NO quid pro quo NO hostile environment 1986 – SH is actionable even if the employee suffered no $

or job related harms 1993 – SH is actionable even if the employee suffered no

psychological harms 1998 - is actionable even if the committed by a person with

authority over another BUT it is a defense to say that one had a harassment

prevention and grievance policy in place

Latinos and Asian Americans

Groups like MALDEF and LULAC have pushed for equal rights for Latinos.

Patron, rural areas and the southwest The Asian Law Caucus strives for equal

rights for Asian Americans.

Native Americans

Native Americans were not granted citizenship until 1924.

The issue of sovereignty ….. The American Indian Movement (AIM) was

active in the 1960s and 1970s.

Disabled Americans

The Americans with Disabilities Act of 1990 was a significant victory for groups such as the Disability Rights Education and Defense Fund.

Gays and Lesbians

The Human Rights Campaign Fund is the primary national political action committee working for equal protection for gays and lesbians.

The Supreme Court’s decision in Romer v. Evans (1996) suggests a move toward the recognition of civil rights.

LAWRENCE ET AL. v. TEXAS (2003)-overturns Bowers v Hardwick

Affirmative Action

What is the basis for affirmative action? How does affirmative action contribute to

the polarization of the politics of civil rights?

How does the debate about affirmative action reflect the debate over American political values?

Affirmative Action

The Supreme Court and the burden of proof

Referendums on affirmative action Affirmative action and American political

values

Affirmative Action Affirmative action encompasses

government policies or programs that seek to redress past injuries against specified groups by providing access to education and employment opportunities.

The difficulty is determining the best way to provide opportunity:QuotasLegal action

What We Know

White males:33% of population80% of tenured professors80% of US House90% of US Senate92% of Forbes 40095% of top corporate executives97% of school superintendants97.6% of US Presidents99.9% of athletic team owners

Taking A Step Back in the 80’s

Wards Cove and the burden of proofCivil Rights Act of 1991

Aadarand Constructors v. PenaClinton’s review: “…fair and not unduly

burdensome….”

The Supreme Court and theBurden of Proof

In Bakke v. UC at Davis (1978), the U.S. Supreme Court recognized the importance of affirmative action programs but rejected the procedures used the university to ensure minority admissions.

Specifically, the use of quotas was found to violate the equal protection rights of Mr. Bakke.

The Burden of Proof

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.

The Supreme Court and theBurden of Proof

Federal courts have weakened the impact of affirmative action over the last ten years.

The Supreme Court in Adarand Constructors (1995) rejected race-based preferences in government contracts.

The Fifth Circuit rejected the admissions criteria for admission to U.T. Law School in Hopwood (1996).

Gender Based Discrimination in the Work Place

gender discrimination – any practice, policy or procedure that denies equality of treatment to an individual or group because of gender prohibited by Title VII of the Civil Rights Act of 1964 applies even to “protective policies”

sexual harassment – unwanted physical or verbal conduct or abuse of a sexual nature that interferes with a recipient’s job performance OR creates a

hostile environment OR carries and implicit or explicit threat of adverse employment consequences

wage discrimination – women earn 76 cents for every $1.00 earned by men

Gender Based Discrimination in the Work Place

gender discrimination – any practice, policy or procedure that denies equality of treatment to an individual or group because of gender prohibited by Title VII of the Civil Rights Act of 1964 applies even to “protective policies”

sexual harassment – unwanted physical or verbal conduct or abuse of a sexual nature that interferes with a recipient’s job performance OR creates a

hostile environment OR carries and implicit or explicit threat of adverse employment consequences

wage discrimination – women earn 76 cents for every $1.00 earned by men

Glass ceiling……

Referendums on Affirmative Action The California Civil Rights Initiative

(Proposition 209) outlawed affirmative action programs in the state and local governments.

A similar attempt failed in Houston, Texas.

Affirmative Action and American Political Values

Affirmative action efforts have contributed to the polarization of the politics of civil rights.

Americans seem split down the ideological center over the need for affirmative action.