Equal protection?. From Civil War to Affirmative Action by Claudia Hartmann, Kerstin Ohler, Caroline Rupp and Rebecca Walz. Equal Protection. Background:. part of the 14 th Amendment to the United States Constitution. enacted in 1868 , shortly after the American Civil War.
From Civil War to Affirmative Action
by Claudia Hartmann, Kerstin Ohler, Caroline Rupp and Rebecca Walz
But: Due Process Clause of the 5th Amendment.
It’s required for any classification that
involves a suspect class:
the right to vote
to be a political candidate
to have access to the courts
to migrate interstate
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.
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.
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.
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
It is not applied in every social and legal sector
and doesn’t abolish every kind of discrimination.
national origin and gender etc.
occupation and conditions of employment,
working conditions and conditions of layoff,
education and sexual harassment.
everybody ignores it.
Spiritual: “Free at last”
“[…] 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 to
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
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. […]
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.”
same voting right for citizens of the United States regardless of their color, race and previous condition of servitude.
Segregation that occurs without
state authority, usually on the basis of
(Black`s Law Dictionary)
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
(e.g. Ohio 1804, Indiana 1851)
The Black Codes were repealed by the
(„Jump Jim Crow“).
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.
The Jim Crow laws
separated people of color
- jobs, and
They required black and white people to use separate water fountains, restaurants,public libraries, buses.
the case was disputed in front of the Supreme Court of the United States.
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.
This decision became the legal basis for the legitimation of the Jim Crow laws, which already existed.
Segregation of students in
public schools violates the
Equal Protection Clause of
the Fourteenth Amendment, because separate facilities are
This case overturned the
legal doctrine of "separate
but equal“ declaring the
establishment of separate
public schools for black and
white students inherently
Some of the different forms of civil disobedience
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.
(Black’s Law Dictionary, p. 64)
or specialprograms directed at redressing wrongs
To what extent?
somebody who feels unfairly treated
Regents of the University of California
v. Bakke, 438 U.S. 265 (1978)
“[…] 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)
“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. [...]
“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)
Which definition should be followed?
How to “prove” discrimination, especially historical discrimination?
Does preference of minorities
lead to discrimination against the majority?
differentiation between cases necessary
affirmative action discriminates and is
situations where conditions are not equal
due to past discrimination
e.g. minority quota in college admissions
(Regents of the University of California
v. Bakke, 438 U.S. 265 (1978))
e.g. employment policies that actively
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)
Taxman v. Board of Education, 91 F.3d 1547 (3rd Cir. 1996)