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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.

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equal protection

Equal protection?

From Civil War to Affirmative Action

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

equal protection1
Equal Protection


  • part of the 14th Amendment to the
  • United States Constitution
  • enacted in 1868, shortly after
  • the American Civil War
  • enacted in response to the BlackCodes
  • 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.
  • It has no counterpart in the Constitution
  • applicable to the federal government.

But: Due Process Clause of the 5th Amendment.

  • It applies only to government action, not to
  • action by private citizens.
  • government action only
  • It is only involved where the government
  • makes a
  • classification
  • in a discriminatory
  • manner
  • in applying law.
three levels of review
Three Levels of Review:
  • Strict Scrutiny
  • Middle Level Review
  • Mere Rationality Test
strict scrutiny
Strict scrutiny:

It’s required for any classification that

involves a suspect class:

  • race: segregation = physical separation
  • between the races
  • affirmativeaction = aid for minorities
  • alienage = non U.S. citizenship
strict scrutiny1
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
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
Mere Rationality Test:
  • age
  • mental condition
  • sexual orientation
an example for racial discrimination 1984
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
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
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 equivalents1
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 equivalents2
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 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 war
Civil War


  • 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
"Fugitive Slave Acts”


  • of escaped slaves
fugitive slave acts1
"Fugitive Slave Acts”
  • heavy punishments
  • professional “catchers”

becomes President

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

vote. […]

i have a dream today1
“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


i have a dream today2
“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 today3
“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.”

  • 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
  • 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
Amendment 13
  • 1865
  • ban on slavery
  • and involuntary
  • servitude
amendent 14
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
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
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


what is segregation1
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
Where does segregation haveits seeds?
  • Black codes
  • Jim Crow Laws
  • Plessy v. Ferguson
black codes 1804 1868
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


black codes
Black Codes

for example:

  • African-Americans werenot allowed to hold property or to enter into contracts or even to settle down

(e.g. Ohio 1804, Indiana 1851)

black codes1
Black Codes
  • anti-miscegenation statute (e.g. Indiana 1845)
  • reduction of choice of


  • (e.g. black people were not
  • allowed to teach)
black codes2
Black Codes
  • prohibition of pleading in court

The Black Codes were repealed by the

14th Amendment.

jim crow laws
Jim Crow Laws
  • a character in an old


(„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
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 19651
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 19652
Jim Crow Laws (1876-1965)
  • public gathering places.

- jobs, and

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

plessy v ferguson
Plessy v. Ferguson
  • In 1892, Homer Plessy entered a compartment for white peoplein Louisiana. He was asked to sit in a compartment for colored people. Because he declined the offer, he was arrested.
plessy v ferguson1
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 inthis court was
  • John Howard Ferguson.
plessy v ferguson2
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 ferguson3
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 ferguson4
Plessy v. Ferguson

This decision became the legal basis for the legitimation of the Jim Crow laws, which already existed.

civil rights movement brown v board of education
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 education1
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


civil rights movement
Civil Rights Movement
  • from 1955 until 1968
  • by 1955 black citizens
  • became frustrated
civil rights movement1
Civil Rights Movement
  • In defiance, these citizens
  • adopted a combined
  • strategy of direct action
  • with nonviolent resistance
  • known as civil
  • disobedience.
  • Civil Rights Marchers
civil rights movement2
Civil Rights Movement

Some 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 movement3
Civil Rights Movement
  • Rosa Parks


  • 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 movement4
Civil Rights Movement
  • Martin Luther King Jr.


  • For over 13 months the
  • Afro-American
  • population boycotts the
  • buses.
civil rights movement5
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.

affirmative action
Affirmative action
  • 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 action1
Affirmative Action
  • imposed by Congress, a state, or an organization (e.g. school board)
  • either minority quota,

or specialprograms directed at redressing wrongs

affirmative action and the constitution
Affirmative Action and the Constitution
  • constitutionality is hotly debated and often questioned
  • Is the preference of a special group


To what extent?

affirmative action and the constitution1
Affirmative Action and the Constitution
  • plaintiff:

somebody who feels unfairly treated

  • decisions are made on a case-by-case basis
example case
Example Case

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)

  • African Americans
  • Native Americans, Mexican Americans
  • Inuit? Asian Americans?
  • all members vs. only a few?

“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?

reverse 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


reverse discrimination1
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 discrimination2
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
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 problems1
Political and Social Problems
  • leads to decisions on an individual level
  • may create feelings of hatred and prejudice
major case groups
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 groups1
Major Case Groups
  • employment:

e.g. employment policies that actively

prefer minorities

major case groups2
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 case1
Example Case

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