Equal protection?

From Civil War to Affirmative Action

by Claudia Hartmann, Kerstin Ohler, Caroline Rupp and Rebecca Walz

Equal Protection

Background:

• part of the 14th Amendment to the United States Constitution

• enacted in 1868, shortly after the American Civil War

• enacted in response to the Black Codes

Meaning:

• It provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws."

• The Clause restrains only state governments.

Meaning:

• It has no counterpart in the Constitution applicable to the federal government.

But: Due Process Clause of the 5th Amendment.

Meaning:

• It applies only to government action, not to action by private citizens.

government action only

Meaning:• It is only involved where the government makes a

classification in a discriminatory manner

in applying law.

Three Levels of Review:

• Strict Scrutiny

• Middle Level Review

• Mere Rationality Test

Strict scrutiny:

It’s required for any classification that involves a suspect class:

• race: segregation = physical separation between the races

• affirmative action = aid for minorities

• alienage = non U.S. citizenship

Strict Scrutiny:

Fundamental Rights

the right to vote to be a political candidate to have access to the courts to migrate interstate

Middle Level Review:

• It’s easier to satisfy than strict scrutiny but tougher than mere rationality.

• gender

• illegitimacy = children being born of parents who are not married to each other

Mere Rationality Test:

• age

• mental condition

• sexual orientation

An example for racial discrimination:

(1984)A divorced white woman was awarded custody of her child until she remarried a black man. The trial court awarded custody to the father based on the idea that it was in the best interest of the child to protect the child from the discrimination and prejudice that would accompany her remaining with her mother in an interracial family.

The Supreme Court decided that the Clause was violated.

An example for alienage: (1978)

In New York there exists a New York statute in which people who are legally admitted resident alien of New York are not allowed to become a part of the police.

The Supreme Court decided that this statute did not violate the Equal Protection Clause.

German equivalents:

Art. 3 GG – equal treatment

It is only applied to governmental action, not to action by private citizens.

But the Federal Labour Court has often applied this article to the rapport of employers and employees.

German equivalents:

Allgemeines Gleichbehandlungsgesetz (AGG)

It’s a federal law which was enacted in August 2006. It should prevent and abolish unjustified discrimination because of race, national origin, gender, religion, view of life, mental condition, age and sexual orientation.

German equivalents:

It is not applied in every social and legal sector and doesn’t abolish every kind of discrimination.

• Firstly, it only prohibits discrimination because of specially named conditions.

• Secondly, the AGG distinguishes between personal and objective scopes:

Personal and objective scopes:

Personal scopes are race, national origin and gender etc.

Objective scopes include access to occupation and conditions of employment, working conditions and conditions of layoff, education and sexual harassment.

Civil War1861-1865

Congress

• 1808: It is illegal to import slaves. But everybody ignores it.

• 1820: Slavery is legal in the South, but illegal in the rest of the states.

"Fugitive Slave Acts”

1793-1850:

• REPATRIATION of escaped slaves

"Fugitive Slave Acts”

• professional “catchers”

• heavy punishments

Changes

becomes President• Abraham Lincoln

• Slaves - a “vital part of the economy”?

Changes

• Southern states leave the Union.

Civil War

• 1865: The North defeats the South,

slaves are set free.Spiritual: “Free at last”

“I have a dream today“

“[…] We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. […]

We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which tovote. […]

“I have a dream today“

I have a dream that one day on the red hills of Georgia the sons of former slaves

and the sons of former slave owners will be able to sit down together at the table of

brotherhood. […]

“I have a dream today“

I have a dream that my four little children will one day live in a nation

where they will not be judged by the color of their skin but by the content of their character.

I have a dream today. […]

“I have a dream today“

And when this happens, […] we will be able to speed up that day when all of God's children, black men and white men, […] Protestants and Catholics, will be able to join hands and sing in the words of the old negro spiritual,

Free at last, free at last. Thank God Almighty, we are free at last.”

Reconstruction

• the attempts from 1865 to 1877 to resolve the issues of the American Civil War, when both the Confederation and slavery were destroyed

• addressed the return of the Southern states that had seceded into the Union, the status of ex-Confederate leaders, and the Constitutional and legal status of the African-American Freedmen

Reconstruction

• Violent controversy arose over how to accomplish those tasks, and by the late 1870s Reconstruction had failed to equally integrate the Freedmen into the legal, political, economic and social system.

• "Reconstruction" is also the common name for the entire history of the era 1865 to 1877.

Amendment 13

• 1865

• ban on slavery and involuntary servitude

Amendent 14

• 1868

• All persons born in the United States are

citizens of the United States and of the

state wherein they reside.• Every state has to notice the basic rights of the Bill of Rights.

Amendment 15

• 1870 same voting right for citizens of the United

States regardless of their color, race and previous condition of servitude.

What is segregation?

• the policy or practice of imposing the social segregation of races, as in schools, housing, and industry especially discriminating practices against nonwhites in a predominantly white society

(northbysouth.kenyon.edu)

What is segregation?

• de facto segregation: Segregation that occurs without state authority, usually on the basis of

socioeconomic factors.

• de jure segregation: Segregation that is permitted by law.

(Black`s Law Dictionary)

Where does segregation have its seeds?

• Black codes

• Jim Crow Laws

• Plessy v. Ferguson

Black Codes 1804-1868

The Black Codes were laws passed on the state and local level in the United States to restrict the civil rights and civil liberties of black people, particularly former slaves in former Confederate states.

Black Codes

for example:

African-Americans were not allowed to hold property or to enter into contracts or even to settle down

(e.g. Ohio 1804, Indiana 1851)

Black Codes

anti-miscegenation statute (e.g. Indiana 1845)

reduction of choice of employment (e.g. black people were not allowed to teach)

Black Codes

prohibition of pleading in court

The Black Codes were repealed by the 14th Amendment.

Jim Crow Laws• a character in an old song („Jump Jim Crow“).

• the term came to be used as an insult against black people  • the systematic practice of promoting the segregation of Negro people

Jim Crow Laws (1876-1965)

In a bid to stop black Americans from being equal, the southern states passed a series

of laws known as Jim Crow laws which discriminated against blacks. 

Jim Crow Laws (1876-1965)

The Jim Crow laws separated people of color from whites

• in schools,

• housing,

• public bath houses

Jim Crow Laws (1876-1965)

- jobs, and • public gathering places.

They required black and white people to use separate water fountains, restaurants,public libraries, buses.

Jim Crow Laws (1876-1965)

Plessy v. Ferguson

• In 1892, Homer Plessy entered a compartment for white people in Louisiana. He was asked to sit in a compartment for colored people. Because he declined the offer, he was arrested.

Plessy v. Ferguson

• A month later he was was found guilty of breaching the law by the district criminal court of New Orleans.

• The chief judge in this court was John Howard Ferguson.

Plessy v. Ferguson

• 1896, Louisiana: the case was disputed in front of the Supreme

Court of the United States.

• The court had to decide whether the law in Louisiana, the Separate Car Act, which stated that white and black had to have seperate compartments, offended against the Constitution (14th Amendment).

Plessy v. Ferguson

• Decision: (18.05.1896)

The judge said that the spatial separation between white and black would be matter of fact and did not offend against the 14th Amendment, as long as the dispositions were equal.

Plessy v. Ferguson

This decision became the legal basis for the legitimation of the Jim Crow

laws, which already existed.

"Separate but equal“

"Separate but equal“

Civil Rights Movement-

Brown v. Board of Education

• Holding: Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment,

because separate facilities are

inherently unequal.

Civil Rights Movement-

Brown v. Board of Education

This case overturned the legal doctrine of "separate but equal“ declaring the establishment of separate public schools for black and white students inherently unequal.

Civil Rights Movement

• from 1955 until 1968

• by 1955 black citizens became frustrated

Civil Rights Movement

• Civil Rights Marchers

• with nonviolent resistance known as civil disobedience.

• In defiance, these citizens adopted a combined strategy of direct action

Civil Rights MovementSome of the different forms of civil disobedience employed included

• boycotts- which began after the Montgomery Bus Boycott (1955-1956) in Alabama,

• "sit-ins" as demonstrated by the influential Greensboro sit-in (1960) in North Carolina, and

• marches,

Civil Rights Movement

• Rosa Parks (1913-2005)

• In 1955 Rosa Parks refused to sit in the back of a segregated bus.

• She got arrested.

• "Mother of the Modern-Day Civil Rights Movement".

Civil Rights Movement

• Martin Luther King Jr. (1929-1968)

• For over 13 months the Afro-American population boycotts the buses.

Civil Rights Movement

bus boycott

The success and influence of the Montgomery Bus Boycott

also led to Martin Luther King Jr. being one of the top leaders of the Civil Rights Movement, too.

• set of actions designed to eliminate existing and continuing discrimination

• to remedy lingering effects of past discrimination

• to create systems and procedures to prevent future discrimination.

(Black’s Law Dictionary, p. 64)

Affirmative action

Affirmative Action

• imposed by Congress, a state, or an organization (e.g. school board)

• either minority quota,

or special programs directed at redressing wrongs

Affirmative Action and the Constitution

• constitutionality is hotly debated and often questioned

• Is the preference of a special group

constitutional?

To what extent?

Affirmative Action and the Constitution

• plaintiff:

• decisions are made on a case-by-case basis

somebody who feels unfairly treated

Example Case

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

Minorities

“[…] group that is different in some respect […] from the majority and that is […] treated differently as a result; […] It may also be applied to a group that has been traditionally discriminated against or socially suppressed, even if its members are in the numerical majority in an area.”

(Black’s Law Dictionary, p. 1017)

Minorities

• African Americans

• Native Americans, Mexican Americans

• Inuit? Asian Americans?

• all members vs. only a few?

Discrimination

“1. The effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion, or handicap. [...]

Discrimination

“2. Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those

favored and those not favored.”

(Black’s Law Dictionary, p. 500)

Discrimination

Which definition should be followed?

How to “prove” discrimination, especially historical discrimination?

Reverse Discrimination?

Does preference of minorities lead to discrimination against the majority?

differentiation between cases necessary

• situations where except for the race or

ethnic background, all conditions are equal

affirmative action discriminates and is

unconstitutional

Reverse Discrimination?

situations where conditions are not equal due to past discrimination

if no other remedial measures are available, affirmative action within limits is constitutional

Reverse Discrimination?

• Facially neutral affirmative action?

• Arbitrary application of neutral rules?

• “Punishing” individuals

by making them bear the burden

of affirmative action without

their fault?

Political and Social Problems

• no proof that affirmative action attains its goals

• may lead to feelings of inferiority

• disadvantages those who live

in the same conditions but do not fall under the

criteria of affirmative action

Political and Social Problems

• leads to decisions on an individual level

• may create feelings of hatred and prejudice

Major Case Groups

• educational: e.g. minority quota in college admissions

(Regents of the University of California

v. Bakke, 438 U.S. 265 (1978))

Major Case Groups

• employment:

e.g. employment policies that actively

prefer minorities

Major Case Groups

• building contracts from federal money which stipulate that a certain percentage has to be contracted to Minority Business Enterprises (MBEs)

(City of Richmont v. J.A. Croson Co., 488 U.S. 469, 1989; Adarand Constructors, Inc. v. Pena, 515 U.S.

200, 1995)

Example Case

Taxman v. Board of Education, 91 F.3d 1547 (3rd Cir. 1996)

Any questions

?

Thank you!Thank you!