Chapter 5

1. Chapter 5 Civil Rights

2. The Struggle for Civil Rights

3. The Struggle for Civil Rights: Guaranteed Rights • Civil rights: rights guaranteed to all American citizens by law; usually refers to social freedoms and equal treatment under the law. • All American citizens have civil rights (not merely minority groups). • Often understood in terms of groups whose civil rights were recognized by the U.S. government only after legal and political actions secured them.

4. The Struggle for Civil Rights: Inequalities • Formal, legal inequalities existed uncomfortably with America’s value of equality for all held since the nation’s founding. • Full benefits of citizenship were limited. • Race, sex, age, wealth, national origin most clearly

5. The Struggle for Civil Rights: Equal Rights • The concept of “equal rights” poses complicated legal and policy questions. • Does treating people in the exact same manner mean we are treating them equally? • How do we address real differences, as with biological distinctions between men and women, and preserve fairness? • How do we address past legally mandated discrimination in policy?

6. The Struggle for Civil Rights: Discrimination • Discrimination: use of any unreasonable and unjust criterion of exclusion • Formal, legal discrimination against blacks and women was contested, but persisted. • Abolitionist movement • Suffrage movement

7. The Struggle for Civil Rights: Blacks and Women • The subjugation of blacks and women was political, economic, and social in nature. • Voting, property ownership, employment, and social and public opportunities were sharply limited compared to white and male counterparts. • White women had significantly more legal rights than black men or black women. • Supreme Court held that a white women’s rights existed through her father, husband, or trustee.

8. The Civil War Amendments to the Constitution • Thirteenth Amendment: abolished slavery • Fourteenth Amendment: guaranteed equal protection under the law • Fifteenth Amendment: guaranteed voting rights for black men

9. Separate But Equal

10. Separate But Equal: Fourteenth Amendment • The Supreme Court initially interpreted the Fourteenth Amendment very narrowly. • Ruled the Civil Rights Act of 1875 unconstitutional for targeting private actions. • Plessy v. Ferguson (1896) upheld the concept of separate but equal.

11. Organizing for Equality: NAACP and NAWSA • NAACP • Sought to win political rights through political pressure and litigation • Helped bring northern blacks into political system • NAWSA and National Women’s Party • Brought suffrage onto the public agenda • Securing formal rights required over 100 years of challenges to discriminatory laws. • Organizational, strategic efforts • Courts, public opinion, and lawmakers at all levels

12. Litigating for Equality Attitudes on racial discrimination start to change. • President Harry Truman brings issue of racial discrimination to national attention through the 1946 President’s Commission on Civil Rights. • Commission’s report, To Secure These Rights, laid out the problems with racial discrimination and the success of racial integration in the military. • The Supreme Court, beginning in 1938, sets stricter criteria for separate facilities under “separate but equal.” • After small victories by the Legal Defense and Education Fund of the NAACP, the Legal Defense Fund in 1948 begins filing federal lawsuits to enact constitutional change. • NAACP helps bring Brown v. Board of Education to the Supreme Court

13. Brown v. Board of Education (1954) • Unanimous Supreme Court decision • Landmark because overturns Plessy separate but equal doctrine that sanctioned segregation • Determined separate but equal in schooling inherently unequal because predicated on the idea of racial superiority

14. Civil Rights after Brown • Government discrimination on the basis of race must pass strict scrutiny legal standard. • Is the program a compelling state interest? • Is it as narrowly tailored as possible?

15. Social Protest and Congressional Action

16. Peaceful Civil Rights Demonstrations, 1954–68

17. Civil Rights after Brown: Disobedience States refused to cooperate until sued, and they employed various methods to delay obedience. • Deep southern states refused to obey court-ordered desegregation of schools and declared Supreme Court’s decisions and orders had no effect. • In 1957, Governor Orval Faubus ordered the Arkansas National Guard to block the federal government’s order to integrate Little Rock High School. • Discrimination still remained in voting, employment, public accommodations ,and other areas of social and economic activity. • Adjudication alone would not succeed in changing discriminatory laws. • Progress would need not just courts and federal agencies, but also intense support. • Organized demonstrations began to mount after the Brown decision, including the Montgomery boycott of the bus system and the March on Washington.

18. Civil Rights after Brown: Strict Scrutiny • Government discrimination on the basis of race must pass the strict scrutiny legal standard. • Is the program a compelling state interest? • Is it as narrowly tailored as possible?

19. Cause and Effect in the Civil Rights Movement

20. Modern Civil Rights Legislation • Civil Rights Act of 1964 • forbade discrimination on the basis of race, color, religion, gender and national origin in • voter registration • public accommodations • public schools • expanded the power of the Civil Rights Commission • withheld funds from programs administered in a discriminatory way • established the right to equality of opportunity in employment (created the EEOC)

21. School Desegregation, Phase 2 • Outlawed discrimination by private employers and state governments! • Created administrative agencies to aid enforcement: • Title IV: Justice Dept. could seek federal court orders to desegregate schools and do so w/o waiting for parental complaints

22. Discrimination in Employment • Outlawed in all employment, including gov. agencies • Used Interstate commerce clause • Title VII: EEOC • 1972 EEOC can start suits. • Problem: who has to show proof. • Statistical evidence…. • Even apparently “neutral” standards which had the impact of exclusion were suspect • Had to show that a test or standard had a demonstrable connection to job performance.

23. Title VI • Title VI: federal grants in aid must be withheld from state and local governments if they are guilty of discrimination. • For school year 1999–2000, local and intermediate sources made up 43 cents of every dollar in revenue, state revenues comprised 50 cents, and the remaining 7 cents came from federal sources. • This was most significant outside the South…. • The political equation outside the south.. • Thus : • The president could, through Office for CR of JD withhold funds • Off of AG initiate suits wherever a “pattern or practice” was of discrimination discovered.

24. The Burden of Proof • Title VII: EEOC • 1972 EEOC can start suits. • Problem: who has to show proof. • Statistical evidence…. • Even apparently “neutral” standards which had the impact of exclusion were suspect • Had to show that a test or standard had a demonstrable connection to job performance.

25. Modern Civil Rights Legislation (cont.) • Civil Rights Act of 1968 • forbade discrimination in housing • Voting Rights Act of 1965 • outlawed discriminatory voter registration tests • authorized federal registration and administration of voting where discrimination took place • resulted in massive voter registration drives of African Americans in the South

26. Voting Rights • Set criminal penalties • Replacement of local registrars in selected counties designated by the AG. • 24th amendment in 1964 • 1975: no literacy tests • Also bilingual ballots • Racial Gerrymandering

27. Voting Rights Act of 1965 • Made interference with the right to vote on the basis of race a federal issue • Bans literacy tests • Pre-clearance requirements for specific states and regions due to extensive record of disenfranchisement policies and/or attempts

28. Impact of Voting Rights Act on Registration

29. On June 25, 2013, the U.S. Supreme Court overturned a key provision of the Voting Rights Act, removing a critical tool to combat racial discrimination in voting. Under Section 5 of the landmark civil rights law, jurisdictions with a history of discrimination must seek pre-approval of changes in voting rules that could affect minorities. This process, known as “preclearance,” blocks discrimination before it occurs. In Shelby County v. Holder, the Court invalidated Section 4 — which determines the states and localities covered by Section 5 — arguing that current conditions require a new coverage formula.

30. Housing • 1968: Fair Housing Act • Discrimination in housing not a matter of law, but of thousands of individual decisions AND local government policies involving public housing, federal guidelines out of the FHA and mortgage lenders • Had the impact of preventing blacks form joining move to suburbs in 50’s and 60’s. • Still hard to prove. • 1988: Fair Housing Amendments Act • HUD could initiate legal actions in cases of discrimination. • Other efforts: mixed results • Open communities effort • Lending efforts: more success? • Redlining

31. Women and Gender Discrimination

32. VMI Cadets

33. Women and Gender Discrimination: Key Cases • Women and Gender Discrimination • Equal Rights Amendment • Franklin v. Gwinnett County Public Schools (1992) • United States v. Virginia (1996) • Meritor Savings Bank v. Vinson (1986)

34. CASE: Franklin v Grinnett County Public Schools • (1992 ) Monetary damages…. • Sexual harassment and equal treatment of women’s athletic programs… • Universities are sued (complaints x 3 after Franklin) • NO strict equality in athletic programs • 1996- VMI – and all male public schools

35. Standards of proof: • Strict scrutiny • Intermediate scrutiny • Rational basis • Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous). • In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.[1][2] This should be contrasted with strict scrutiny, the higher standard of review which requires narrowly tailored and least restrictive means to further a compelling governmental interest. • http://en.wikipedia.org/wiki/Mississippi_University_for_Women_v._Hogan

36. Title VII • Title VII of the Act, codified as Subchapter VI of Chapter 21 of 42 U.S.C.§ 2000e [2] et seq., prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin (see 42 U.S.C.§ 2000e-2[21]). • Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin. An employer cannot discriminate against a person because of his interracial association with another, such as by an interracial marriage.[22] • In very narrow defined situations an employer is permitted to discriminate on the basis of a protected trait where the trait is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. To prove the Bona Fide Occupational Qualifications defense, an employer must prove three elements: a direct relationship between sex and the ability to perform the duties of the job, the BFOQ relates to the "essence" or "central mission of the employer's business," and there is no less-restrictive or reasonable alternative (Automobile Workers v. Johnson Controls, Inc., 499 U.S.187 (1991) 111 S.Ct. 1196). The Bona Fide Occupational Qualification exception is an extremely narrow exception to the general prohibition of discrimination based on sex (Dothard v. Rawlinson, 433 U.S.321 (1977) 97 S.Ct. 2720). An employer or customer's preference for an individual of a particular religion is not sufficient to establish a Bona Fide Occupational Qualification (Equal Employment Opportunity Commission v. Kamehameha School — Bishop Estate, 990 F.2d 458 (9th Cir. 1993)).

37. Recent Case on Point • Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), is an employment discrimination decision of the Supreme Court of the United States. Justice Alito held for the five-justice majority that employers cannot be sued under Title VII of the Civil Rights Act over race or gender pay discrimination if the claims are based on decisions made by the employer 180 days ago or more. The decision did not prevent plaintiffs from suing under other laws, like the Equal Pay Act, which has a three-year deadline for most sex discrimination claims,[1] or 42 U.S.C. 1981, which has a four-year deadline for suing over race discrimination.[2] • This was a case of statutory rather than constitutional interpretation. The plaintiff in this case, Lilly Ledbetter, characterized her situation as one where "disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period." In rejecting Ledbetter's appeal, the Supreme Court said that "she could have, and should have, sued" when the pay decisions were made, instead of waiting beyond the 180-day statutory charging period. The Court did leave open the possibility that a plaintiff could sue beyond the 180-day period if she did not, and could not, have discovered the discrimination earlier.[3] The effect of the Court's holding was reversed by the passage of the Lilly Ledbetter Fair Pay Act in 2009.

38. Women and Gender Discrimination • Title VII of the CRA of 64 – the law fostered the growth of rights groups • Fight for ERA out of first victories • Burger: gender NOT equal to racial discrimination – intermediate scrutiny

39. Women’s Struggle for Equal Rights • Women’s Suffrage Movement • was connected to the abolition movement • suffragists organized the first women’s right convention at Seneca Falls, NY in 1848 • established women’s suffrage associations • finally won passage of the Nineteenth Amendment in 1920

40. Women’s Struggle for Equal Rights (cont.) • The Modern Women’s Movement • spurred in by the publication of Betty Friedan’s The Feminine Mystique ( 1963) • connected to the Civil Rights Movement of the 1960’s • argued for ratification of the Equal Rights Amendment • failed to win the necessary states for ratification • has targeted gender discrimination by challenging policies and laws in federal courts • has advocated and encouraged an increasingly prominent role for women in government and politics

41. Have Women Achieved Equal Rights?

42. Education

43. Politics

44. Median Weekly Earnings by Race and Gender

45. Latinos and Civil Rights • Education • Mendez v. Westminster (1947) • Bilingual education • Immigration as Civil Rights Issue • California Proposition 187 (1994) • Arizona SB 1070 (2010) • American citizens of Latino origin suspect class claims • Supreme Court upholds but strikes down parts (2012)

46. Asian Americans

47. Asian Americans and Civil Rights • Asian Americans • 1870, Congress declares Chinese ineligible for citizenship • 1882, Chinese Exclusion Act • Japanese Internment • 1942–1945, over 110,000 Japanese Americans (and authorized residents) forcibly relocated and held • Presidents Ronald Reagan and George H. W. Bush authorized reparations payments to survivors and descendants.

48. American Indians and Civil Rights • Native Americans • Tribe members are both American citizens and members of sovereign tribal nations. • They may reside on reservations that may have different laws than states where they are located. • Many state, federal, and even private programs require proof of Native American ancestry. • Such authentication is not asked of any other group.

49. Ability, Age, and Civil Rights • Disabled Americans: • 1973 Rehabilitation Act (outlawed discrimination against individuals on the basis of disabilities). • Americans with Disabilities Act of 1990 (guarantees equal employment; access to public businesses; and prohibits discrimination in employment, housing, and health care).

50. Gays and Lesbians