Back

Civil rights

 

“Positive right”-government takes action to halt discrimination- any unreasonable or unjust criterion of exclusion even if done by public accommodations that are privately owned

 

State-action requirement

Despite the 14th  – the Supreme Court overturns Civil Rights Act of 1875 (which prohibited discrimination in privately owned, public accommodations) in the Civil Rights Cases of 1883 be arguing that the 14th amendment only applied to actions of state government

 

As a result all-white primaries are allowed, restrictive covenants, and segregated restaurants, theaters and hotels

 

1944 – Smith v Allwright – white’s only primaries, though run by non-state political parties, are a crucial component of government and thus a state function

 

1948 -- Shelley vs. Kraemer- restrictive covenants cannot be enforced by a court of law (which would be an action of the state), but can still be written

 

State-action requirement reversed by Civil Rights Act of 1964 (under the commerce clause) and upheld by 1964 Heart of Atlanta Motel v US

 

Plessy v Ferguson -1896- Separate but equal

First hint of change in the court is found in the famous footnote four of United States v Carolene Products Co. (1938) The case involved the question of whether Congress could regulate milk products under the commerce clause, the court said it would defer on commercial questions to Congress, but from now there would be more judicial attention on: 

  Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.   

Following WWII- 1954

1. Court begins to insist that equal education facilities be present (rejected Texas claims that its black law school was equal to its all-white law school, rejected Missouri practice of paying for out-of-state law school tuition for blacks instead of admitting them to University of Missouri Law School)

 

 

NAACP debates whether to attack separate but equal or just insist on the equal part – but Congressional refusal to consider fair employment legislation convinces Thurgood Marshall, the lead litigator for the NAACP, decides to attack Plessy head on – files cases in S. Carolina, Virginia, Kansas, Delaware, and the District of Columbia (attempt to get inconsistent results) – eventually Oliver Brown’s case is accepted for Certiorari (wanted to enroll daughter in all-white school closer to home)

Brown vs. Board- 1954- court focuses strictly on the impacts of segregation and declares separate facilities are inherently unequal because it “generates a feeling of inferiority in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

 

1.Race can no longer be criterion for discrimination

2.Federal government would have the power to intervene with strict regulatory policies against discriminate practices- government or private

 

Response to Brown v. Board: instead of the states falling into line – most states refused to cooperate until they were sued and then invented schemes to avoid desegregation (like paying the tuition for white students to attend “private” academies)

 

Segregation shifted from De jure (legally enforced) to de facto (actual) as a result of racially segregated housing, preferred living patterns, and administrative practices as well as “massive resistance” to supreme court decisions from the states that closed schools and cut funding to schools that integrated – 1957 Governor Orval Faubus mobilizes the national guard to halt enforcement of a federal court order in Little Rock Arkansas, Eisenhower deploys US troops and places city under martial law

 

10 years after Brown, less than 1% of black students in the deep south were in classes with whites --

 

Swann v. Charlotte-Mecklenberg Board of Education (1971) – state-imposed desegregation could be brought about by busing children across school districts

 

Boston schools are forced to bus by Judge Arthur Garrity – creates violent clashes

 

Milliken vs. Bradley- 1974 -Only schools guilty of de jure segregation could be legally forced to desegregate – exempted most northern cities because segregation there is generally de facto

 

Busing is still unpopular- In 1992 a poll found that 48 percent of whites in the NE and 53 percent of whites in the South felt it was “not the business” of the fed. Gov. to ensure that black and white children went to the same school

 

Congressional action on Civil Rights

 

Civil rights legislation begins to pickup as Congress and the courts join forces. Both are confronted with “massive resistance” in the South – to further dramatize the point Civil Rights leaders stage protests starting in the late 1950s – the Southern response is so violent and well publicized that sympathy begins to shift slowly --

 

Civil Rights Act of 1957 – makes it a federal crime to try to prevent someone from voting in a federal election

 

1963 – police and police dogs attack a demonstration in Birmingham (photo of a dog attacking an unarmed black man have a national impact, Kennedy killed in Dallas, Texas (a southern city), Johnson (who has more leg. Experience) becomes president –

 

1964 – Democrats take control of House and Senate allowing for the passage of the: -- but not before 19 southern senators filibuster for 8 weeks – eventually a cloture petition was passed and we have the:

Civil Rights Act of 1964 – Voting – made it more difficult to block African Americans from voting using literacy tests and other devices

Public accommodations – barred discrimination based on race, religion or national origin in restaurants, theaters, gas stations, stadiums, and hotels

Schools – authorized the attorney general to sue to desegregate schools Employment – Outlawed discrimination in hiring, firing, or pay based on race, religion, national origin, and sex

Federal Funds – Barred discrimination in any activity that receives federal assistance

 

(at roughly the same time the federal government begins to require school desegregation for schools to receive federal funds)

 

Voting Rights Act of 1965 – authorizes intervention of a Civil Service Commission to oversee voter registration and suspends use of literacy tests and other devices to prevent African Americans from voting

 

Civil Rights Act of 1968 – Banned discrimination in housing

 

General Discrimination Law:

Not all discrimination is illegal: allowed forms include discrimination based on academic skill, attractiveness, athletic ability, etc. .

Other forms of discrimination are illegal either under the 14th amendment’s equal protection clause or Congressional law – groups that are protected from such discrimination are called “protected classes”

There are two dominant standards when we look at discrimination law under the 14th amendment (ie under common law):

Rational basis: Difference in treatment must be reasonable and not arbitrary – traditional rules of evidence apply with the burden of proof on the plaintiff (protected classes include age, disability)

Strict Scrutiny: Drawing distinctions between different groups is inherently suspect and the court will subject any law to strict scrutiny to ensure that they are clearly necessary to obtain a legitimate state goal – defendant has to show a compelling interest, that the rule is narrowly tailored, and the least restrictive means to satisfy the need (protected classes include race, national origin, religion) – can’t ban interracial marriage (Loving v Virginia, 1967) or allow a Texas law that allows state school districts to refuse enrollment for the children of illegal immigrants (Plyler v Doe, 1982)

When it comes the gender the court has so far established precedent somewhere in between or an “intermediate standard”

Gender

Congress 

 

Civil Rights Act of 1964 (yes, that same Civil Rights Act of 1964 ) – prohibits sex discrimination in hiring, firing, and compensation of employees

1972 amendment to the Civil Rights Act of 1964 – introduces the controversial title IX which bans sex discrimination in any educational program that received federal funds

Supreme Court follows up with Franklin v. Gwinnett County Public Schools (1992) – monetary damages could be awarded for gender discrimination (like for Title IX) – leads to an increase in complaints

Supreme Court  

n      most court actions center on the “equal protection of the law” that is guaranteed by the 14th amendment

Prior to 1971, court had traditional view of gender allowing women to be excluded from jury duty (1961) or blocked from being a bartender (1948)

1971 – Reed v Reed – court struck down state law that stated probate courts should give preference to men in determining who should administer estates.

1981 – Mississippi University for Women v Hogan – exclusion of men from nursing program was unconstitutional – heralds an end to publicly funded single-sex education

1996 – Sup. Court orders that women must be admitted to the Virginia Military Institute (a publicly funded military school) US v Virginia

Rostker v. Goldberg (1981) – Congress may require men but not women to register for the draft

Lehr v Robertson (1983) mothers, but not fathers, of children born out of wedlock required to be notified prior to adoption proceedings for their children

Sexual harassment – based on discrimination law – is a tort claim

Two forms of sexual harassment:

quid pro quo – illegal to request sexual favors in return for promotion or as a condition of employment – strict liability: employer can be found liable even if they didn’t hear about it

Hostile work place – pattern of offensive sexual teasing, jokes, or obscenity – Negligence: they knew about the hostile environment but did nothing about it

 

Sexual orientation – not a protected class under the 14th

 1993 -- "Don't Ask, Don't tell" -- compromise policy change in the us military that had previously banned all gays and lesbian in the military -- the Congressional compromise allows gays and lesbians to serve so long as they tell no one of their sexual orientation, in return their commanding officers are not allowed to enquire about someone's sexual orientation -- as a result some colleges and high schools begin to exclude military recruiters from the campuses (including the Portland Public Schools)

1994 Congress passes the Solomon Amendment that allows the federal government to withdraw federal grant money to educational institutions that bar or prevent military recruitment on campus.

1996 – Romer v Evans – blocked a Colorado state constitutional amendment that repealed any state or local policies that blocked discrimination for sexual orientation (basically giving permission to discriminate) – the court ruled it a violation of the equal protection clause to specifically target a group for discrimination, but did not extend protected status for gays and lesbians

2000- Boy Scouts of America v  James Dale -- Supreme Court rules that the Boy Scouts can exclude a gay scout leader because of the group's right to free association 

2003 – Lawrence v Texas – Sodomy statutes struck as a violation of privacy rights  

2006 - Rumsfeld v Forum for Academic and Institutional Rights (FAIR) -- Unless colleges want to forego federal funds they need to allow military recruiters on campus

2008 -- Oregon Equality Act – flat-out ban (because it statutory law and not common law) on discrimination of employment/housing for gays and lesbians -- Oregon was joining 20 other states, DC and more than 100 cities have similar laws on employment discrimination -- 13 other states regarding housing discrimination

Affirmative Action:

Compensatory action to overcome the consequences of past discrimination and to encourage greater diversity (possible practices have included different admission or hiring standards and quotas)

 

1965 – President Johnson implements affirmative action by a series of executive orders directing federal agencies to pursue a policy of minority employment in federal civil service and in companies doing business with the federal government – becomes a goal in the 1970s for colleges and some private employers (especially if looking for federal and state contracts)

 

Regents of the University of California v. Bakke (1978) – a rigid quota system is a violation but the goal of having “a diverse student body” is a compelling purpose (so race can be taken into account but not as part of a rigid formula)

 

Court in 1979 and 1980 upholds Affirmative Action plans

 

Adarand Constructors v Pena  (1995) – race-based policies (such as preferring to give federal contacts to minority-owned businesses) must be examined under a strict scrutiny standard (ie must be a compelling state interest)

Hopwood v. State of Texas (1996) – the fifth circuit finds that race could never be used in the admissions process – Sup. Court refuses to hear the case so only applies to Texas, Louisiana, and Mississippi – Texas responds by saying that top 10 percent of classes automatically get admission

Proposition 209 in 1996 – Californians ban race and gender preferences in state programs and university admissions – 54 percent passage rate, including 27 percent of the black vote, 30 percent of the Latino vote, 45 percent of the Asian American vote – Sup. Court refuses to hear challenge of the law

1998 the supreme court agrees to hear a case of a white teacher who claims she was laid off because of race, a black colleague hired on the same day was not laid off – before the court could issue a ruling a collation of civil rights groups arranged to pay for a settlement, fearing a sweeping negative decision

Grutter v. Bollinger (2003) – 5-4 – The affirmative action policy at the University of Michigan’s law school is upheld that takes race into account. The justices ruled that a diverse student body is a compelling state interest. The law school took race into account in considering admissions, looking for a “critical mass” of minority members, but looked at applicants at a case-by-case basis. This case did not affect California and Washington initiatives that banned affirmative action at the state level. The majority opinion (written by O’Connor) noted that some day affirmative action may not be necessary.

Gratz v Bollinger (2003) – 6-3 – The court struck down the affirmative action policy for undergraduate admissions for the University of Michigan, which awards 20 points for blacks, Hispanics and Native Americans on an admissions rating scale. This system was seen as too mechanized, with race often the only distinction that determined admission or rejection.

Parents v. Seattle (2006) -- 5 - 4, rejected diversity plan from Seattle and in which minority transfer students were given a greater likelihood to get into high-demand schools in their race was underrepresented. The court rejected the policy because failed to meet the “heavy burden” of justifying “the extreme means they have chosen — discriminating among individual students based on race by relying upon racial classifications in making school assignments. “