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 BlackCodes
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 • affirmativeaction = 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 War 1861-1865
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” • heavy punishments • professional “catchers”
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 to vote. […]
“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 haveits 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 werenot 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) • public gathering places. - jobs, and They required black and white people to use separate water fountains, restaurants,public libraries, buses.
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. 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. 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.