Civil Rights & the Constitution

2. Civil Rights = Providing equality to groups that have historically been subject to discrimination. The question is NOT whether government can treat people of different races, ethnicities, genders differently. . . But it is whether such differences in treatment areREASONABLE. Historical examples: a. Native Americans b. Japanese-Americans d. Women entering med school in the ‘20’s e. Rich people get taxed more than poor people. Generally, classifying people on the basis of race or ethnicity is deemed unreasonable - “SUSPECT CLASSIFICATIONS”

3. Civil Rights & the Constitution Who was included in our early views of equality? The original Constitution is a plan of government, not a guarantee of individual rights. It does ensure that: 1) Gov’t does not discriminate against us 2) Gov’t protects us from interference by private individuals. The Framers referred to these rights as “NATURAL RIGHTS”– the rights of all people to dignity & worth. Today they are called HUMAN RIGHTS.

4. Equality ….What is it exactly? Equality OF: Freedom “to” and Freedom “from” unless it compromises someone else’s rights Equality of opportunity – all can go for it…..this, of course, also means competition will exist. Equality of Outcome - i.e., Affirmative Action- not just a boost but Gov’t has an obligation to promote minority development….blacks, Hispanics, females, etc. Discrimination is opposite of affirmative action.

5. “Equality” is not even mentioned in the original Constitution. The first mention is in the 14th Amend. - All will have “equal protection” under the law unless there is a “compelling public interest” to discriminate. So….. . . to right a past wrong, you may have to discriminate! Equality ….What is it exactly? Equal Justice - not equal results or equal rewards. . . the Constitution does NOT intend to provide equal condition. . . just equal opportunity

6. JUDICIAL STANDARDS OF REVIEW: • Reasonable classifications are okay. • There is some rational relationship to a legitimate government purpose. (e.g., retirement age) • Racial & ethnic classifications are inherently suspect. • Presumed invalid & upheld ONLY if there is a compelling government interest • Gender classifications – medium scrutiny • Must be a “substantial” relationship with a legitimate government purpose

7. AFRICAN AMERICAN ISSUESERA OF SLAVERY / ERA OF RECONSTRUCTION • 13th Amendment prohibits slavery – 1865 • overturned Dred Scott v. Sanford • 14th Amendment–1868 • Equal protection; citizenship • 15th Amendment - Right to vote • for MEN (1870) • FREE MEN VOTE! • BUT, society did not transform as quickly. • Civil War economic issues were resolved more quickly than the racial conflict issues. • Segregation and White Supremacy prevailed. • Reconstruction ended in 1877 w/ Whites in control of the “New South,” and blacks were left to Jim Crow Laws that preached a separate society.

8. AFRICAN AMERICAN ISSUESERA OF RECONSTRUCTION…… • Segregation andWhite Supremacy prevailed: • Plessy v. Ferguson – separate but equal doctrine • Voting discrimination – how? • Housing discrimination • Job discrimination • Discrimination in accessibility to public accommodations • NAACP formed in 1910 – how does it work? • During WWI & WWII eras, Great Migration - Blacks migrated north to the cities and their sheer numbers (6 million) became a political force as middle class became accessible • During WWII. . . judicial relief sought • Truman started integration of the military • Ike integrated Fed Bureaucracy

9. AFRICAN AMERICAN ISSUESERA OF CIVIL RIGHTS • 1950’S - BLACKS SEEK POLITICAL MUSCLE: • MLK, Jr., using the First Amendment - freedom of petition • sought relief via civil disobedience • white supremacists responded with fire hoses and police brutality • Congress dragged its feet w/ a Southern Senatorial block, so Executive and Judicial branches responded. • Brown v. Board of Education (1954).

10. AFRICAN AMERICAN ISSUES • Segregation by law - “de jure segregation” was unconstitutional. • But “de facto segregation”-segregation by choice or reality- still prevailed … • until Swann v. Charlotte Mecklenburg Board of Education 1971 • where the SC ruled that schools will re-district to end segregation via BUSING, a very unpopular device to integrate

11. WHAT WERE SOME EVENTS/STRATEGIES IN THE CRM? • Rosa Parks & Montgomery Bus Boycott (1955) • Little Rock 9 school integration ’57 • Lunch counter sit-ins ’60; Freedom Riders ‘61 • Birmingham March/riots 1963: • JFK FINALLY promoted civil rights legislation • March on Washington 1964 • Civil Rights Act of 1964 • TRIBUTE to JFK; enacted after death • No discrimination in schools, workplace, public accommodations • Selma March; Voting Rights Act of 1965 • The “New Direction” by the mid-60’s • SNCC, Black Power, Malcolm X, Black Panthers • Long, Hot Summers of 1965-1967: Watts, Detroit, Harlem

13. Only 70 blacks held elected office in 1965 Sent federal registrars into South to register blacks Voting Rights Act outlawed methods used by states to deny the vote to blacks: poll taxes (24th Amendment) white primaries grandfather clauses literacy tests gerrymandered districts. Still not enough minorities getting elected so legislature encouraged “minority v. majority” districts that promoted minority electorates . . . But Shaw v. Reno, Bush v. Vera and other cases have condemned the design of districts using race as the predominant factor. Voting Rights Act of 1965

14. OTHER MINORITIES • African Americans’ push for civil rights benefited other minorities • Native Americans – citizenship; right to vote in 1924 • Hispanic Americans – largest minority • Over 400 million; over half are Mexican-Am. • 3 million Cubans; 1 million Puerto Ricans • Political clout rising • Asian Americans – fastest growing minority • Internment camps WWII; Korematsu v. U.S.

15. WOMEN’S ISSUES Equality > Privacy > Harassment > Choice Push for the Vote: Seneca Falls Convention, 1848 Lucretia Mott, Elizabeth Cady Stanton Gain political equality - 19th Amendment (1920) Period of the “Doldrums” from 1920-60; why? Tried to get an ERA; unsuccessful Will fall short in 1987 as well Second Feminist Wave – 1960’s & 70’s Betty Freidan, The Feminine Mystique NOW organized Gloria Steinem

16. JUDICIAL DEVELOPMENT: A “paternal” court protected women until the 1970’s, but the feminist movement went from a social to political to judicial movement and the courts responded. Reed v. Reed 1971- 1st time SCOTUS applied 14th Amendment to a classification by gender. SCOTUS overrules Idaho holding that men are preferable as administrators of estates. “Medium scrutiny” standard – gender discrimination will be presumed to be neither valid nor invalid WOMEN’S ISSUES

17. Can women be drafted? No. . . Rostker v. Goldberg 1981- SCOTUS will give “great deference” to Congressional policy. SCOTUS said that women not “similarly situated” for purposes of draft since not allowed to serve in combat. BUT…..as of Jan. 2013, women ARE now allowed to serve in combat so……???? COMPARABLE WORTH: Equal work / equal pay. Civil Rights Act of ‘64 + ‘72 banned gender discrimination in hiring, firing and compensation But, courts still quiet on this issue Women still earn as much as 70% less than their male counterparts in the private sector. WOMEN’S ISSUES

18. WOMEN’S ISSUES Legislative Victories in the work place: Civil Rights Act of 1964 EEOC – power to sue employers suspected of illegal discrimination Title IX of Ed. Act of ’72: no gender discrimination in federally subsidized programs…including athletics More than 2/3 of American mothers with children below school age are in the work force today.

19. As women have moved into the workplace, women's issues now have evolved into sexual harassment cases SEXUAL HARASSMENT guidelines: Laws violated when workplace environment would be “reasonably perceived as ashostile or abusive.” Employers can even be held liable for harassing acts of their supervisory employees that violate clear policies and of which top management has no knowledge at all. Faragher v. City of Boca Raton (1998) WOMEN’S ISSUES SEXUAL HARASSMENT

20. WOMEN’S ISSUESCHOICE • Pro-life v. pro choice: • ROE V. WADE was, according to SCOTUS, a privacy issue, not when life begins. Opponents say No • Hyde Amendment followed, restricted fed funds to lower income women if mother not in danger. • SCOTUS has given states leeway in controlling/regulating abortions so long as there is no undue burden….

21. Affirmative Action • Affirmative action is moving beyond equal opportunity to equal results--providing compensation to a discriminated group. • Efforts to bring about increased employment, promotion, or admission for members of discriminated groups • Federal government mandate to all state and local governments, and all institutions that received aid from or contracted with the federal government • Results have provoked reverse discriminationcharges: • Regents of U of California v. Bakke. • Bakke denied admittance on race although he had higher test scores. • SCOTUS favored Bakke, no more quotas, but race can be a factor in the selection process.

22. Affirmative Action University of Michigan Cases • In both U of MI cases, merit was not deciding factor • Both applicants rejected for minorities with lower GPA’s and test scores • Gratz v. Bollinger, 2003 • Undergrad admissions process automatically gave 20 out of 100 points to minorities….even more points than they gave for academic excellence, leadership, etc. • 6-3 ruling that Gratz’s rejection was result of race based quota policy prohibited by 14th Amendment • Grutter v. Bollinger, 2003 • U of MI law school used race as one of many factors for determining admission • This practice upheld; Grutter’s rejection upheld

23. Civil Rights Quests Civil Rights has moved into a variety of arenas: a. Age discrimination + mandatory retirements. Rationale basis test. b. Youth Tests-- Can you divorce your parents. . .Can you pick your legal guardians? c. Disabled Americans - Americans w/ Disabilities Act of 1990 (ADA) - prohibits discrimination - requires “reasonable accommodations” (federal mandate) - but…who is disabled? AIDS victims? Eye glass wearers. . d. Gay + Lesbian Rights – from right of privacy to hate crimes to the Boys’ Scouts ….