Fourteenth Amendment and Race Discrimination

1. Fourteenth Amendment and Race Discrimination POLS 4131: Civil Liberties and Rights B. Fairbanks 5/23/2017

2. Major Points for Today’s Class • Provide background on the Constitution and Civil Rights • Discuss discrimination and the 14th Amendment generally, and racial discrimination specifically • Analyze and discuss the assigned cases on this topic

3. Historical Perspective • The Constitution was designed such that basic rights would apply equally to everyone • However, ‘everyone’ at the time the Constitution was written was only a select group of people • In most states, voting and other political and civil rights were limited to white males that owned property • Exacerbating this inequality was the institution of slavery which impacted civil rights even in areas where slavery did not exist

4. Dred Scott, the Civil War, and Change • Dred Scott v. Sanford (1857) – Persons of African descent are not (and were never intended to be) citizens under the U.S. Constitution. • Prior to this decision, President Buchanan stated that the issue of slavery would “be speedily and finally settled” (I don’t think the Civil War was what he had in mind) • Emancipation Proclamation – Executive order issued by Lincoln that freed the slaves in the 10 Southern states. Did not officially end slavery in the Union. • 13th Amendment – added to the Constitution to end slavery in all of the states • 14thAmendment – Equal Protection, Due Process, and Privileges and Immunities Clauses • 15th Amendment – Right to vote regardless of race (gender not yet a factor)

5. Civil War and Change? • Court almost immediately took up the chance to interpret the new Constitutional amendments • Slaughterhouse Cases (1873) – Court guts the Privileges and Immunities Clause as a means of incorporation of rights to the states • United States v. Harris (1883) and Civil Rights Cases (1883) - Equal Protection guarantees under the 14th amendment does not apply to actions of private individuals. • Around the same time, Reconstruction was ending and the Southern states began introducing Jim Crow Laws

6. Jim Crow Laws • Jim Crow Laws – State and local ordinances that enforced standards of segregation and racial inequality in the South. • Examples: • Intermarriage or Cohabitation • Separation of restrooms, water fountains, etc. • Transportation Segregation • Educational and Medical Facilities • Georgia specifically prevented: • Separate mental hospitals, burial facilities/grounds, sporting and recreation facilities (including parks), and liquor stores. • Also, no female nurse (white) is required to provide medical assistance to a black man. No, colored barber/hairdresser can serve white women or girls

7. Plessy v. Ferguson (1896) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

8. Standards of Review • Rational Basis– the loosest of standards concerning judicial scrutiny. The constitutionality of the law in question is tested to see whether it has a reasonable relationship to a legitimate state interest. • Ex. Doctors are required by state law to have licenses, because the government has an interest in ensuring the health of its citizens • Intermediate Scrutiny – the law in question is required to be substantially related to an important government interest. Often used to evaluate laws about gender (a “quasi-suspect” classification) regulations. • Ex. Women or men cannot be explicitly excluded from admission into traditionally male or female colleges or universities. • Strict Scrutiny– the law in question is required to be narrowly tailored to address a compelling state interest. Laws concerning race (a “suspect” classification) are always evaluated on this standard. • Ex. Prisons can segregate populations by race, because they have a compelling state interest to prevent gang violence and hate crimes

9. Suspect Class • Any classification of groups meeting a series of criteria suggesting that they are likely the subject of discrimination. These groups generally have strict or intermediate (if considered quasi-suspect) scrutiny applied to them. • Criteria: • The group has a history of being discriminated against or has been subject to prejudice, stigma, or genuine hostility • They are powerless to protect themselves via the political process. • They possess a highly visible trait, that does not inhibit them from contributing meaningfully to society • Race, Color, Religion, National Origin, Age (40 and over), Sex (orientation and gender identity), Pregnancy, Citizenship, Familial Status, Disability, Veteran, and Genetic Information (pre-existing medical conditions)

10. Civil Rights Movement and the Court • In the early 1900’s a growing movement to bring about greater equality began to develop • The NAACP and the Legal Defense Fund were two major organizations involved in that movement, with the latter specifically focusing on change through litigation • One of the earliest area of success was in higher education, but they also found success in other areas as well

11. Equality in Education • Higher education was the vehicle used for the first several major successes in civil rights litigation • Missouri ex rel. Gaines v. Canada (1938) — cannot deny admission to public law school on basis of race if there is no public in-state law school alternative • McLaurin v. Oklahoma Board of Regents (1950) — Allowing admission of Black grad students but segregating areas in classrooms, libraries, and dining facilities not allowed • Sweatt v. Painter (1950) - Law students have a right to admission and to legal education that is equal to white students

12. Brown v. Board of Education I and II (1954-1955) • Brown I: ACLU “test case” and the issue of standing ; Combination of 5 different cases of segregation in public school facilities • Issue: Does the Kansas law allowing cities to segregate schools violate the Equal Protection Clause of the 14thAmendment? • Yes, in the field of education the doctrine of “separate but equal” has no place. Integration is at the hands of the states and should be performed with ”All Deliberate Speed”. • Brown II: Segregation isn’t happening at the behest of the states. • Issue: Who is responsible for desegregation of schools after Brown I decision? What is the time frame? • School districts are responsible for making a “prompt and reasonable start” to integrate. Lower courts are then responsible for insuring compliance and speed given the equality of conditions in educational facilities

13. Impact of Brown • To prevent these potential problems, the Court gave federal district courts oversight • Logic: elected school boards will not follow ruling (especially in South) but life tenured judges will be less pressured but still understand local conditions • Problems: • Cultural bias • Legitimacy • Violence and threats of violence • Lack of clarity in Brown I and II

14. Progress? • The Court got several early cases dealing with attempts by states and localities to avoid desegregating • Griffin v. Prince Edward County School Board (1964) — Court strikes down a Virginia plan to close public schools rather than integrate • Green v. School Board of New Kent County (1968) — “freedom of choice” plan struck down • Black in Griffin, “ there has been too much deliberation and not enough speed” • Swann v. Charlotte –Mecklenburg Board of Education (1971) – plans for integration were to be judged for “effectiveness” and racial quotas or ratios were viable for integration “starting points”

15. A Retreat from Brown? • In the decades after Brown, the Court tended to closely scrutinize school districts in areas with a history of segregation • In the 1990s, however, the Court began to move in the opposite direction • Board of Education of Oklahoma City Public Schools v. Dowell (1991) — Re-segregation due to shifts in residential patterns not state sanctioned and doesn’t require judicial supervision • Freeman v. Pitts (1992) — Allows incremental release of districts from judicial supervision as desegregation goals for various parts of their programs are met • PICS v. Seattle School District No. 1 (2007) - Inequality of facilities was not the basis of the constitutional violation but rather the legal separation of children based on race. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

16. Discrimination Pre-Brown • Racial discrimination in the pre-Brown era was common in all areas of life • Even under the separate but equal standard, direct de jure discrimination was unconstitutional • However, private discrimination was allowed as long as there was no state action (actively participating in the discrimination) • Shelley v. Kraemer (1948) – Judicial enforcement of the neighborhood covenant preventing black families owning homes was unconstitutional. The state was actively engaging in discrimination.

17. Impact of Brown Outside Education • The Court in Brown did not directly overturn Plessy nor did it state that separate but equal could not continue outside education • However, civil rights groups seized the opportunity provided and began to bring cases asking the Court to extend the logic in Brown to other contexts • One of the of these cases challenged laws banning miscegenation • Miscegenation – interbreeding or marrying of people considered to be of different racial types • As of 1967 such laws were in place in 16 states, and as late as 2009, state officials have attempted to enforce those laws

18. Loving v. Virginia (1967) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

19. What if there is No Direct State Action? • How direct must that state involvement or action be? Where is the line between purely private action and state involvement? • Cleburn v. Cleburne Living Center (1985) - the denial of a permit to operate a home for the “mentally impaired” is unconstitutional. There is a rational relationship between the legislative action (denial of the permit) and the obvious discrimination of a “quasi-suspect” class. • Burton v. Wilmington Parking Authority (1961) - the parking garage (city authorized) that was leased by the restaurant that refused a black patron is complicit in the discrimination. Thus if the restaurant uses the services of the parking authority they must comply with state and city ordinances that prevent those discriminatory actions. • Moose Lodge No. 107 v. Irvis (1972) – a private social club can still refuse service even if they are receiving services from the government (i.e liquor licenses, water, and electricity). The club is a private in a privately owned building, and thus is not subject to state regulation.

20. Correcting Past Discrimination • In dealing with equality issues, sometimes simply ending the discriminatory practice is sufficient, but other times, more positive actions are required • In an attempt to correct for past injustices, Congress and state legislatures have relied in part on affirmative actions programs • Affirmative Action –an action or policy that favors those who tend to suffer or have suffered from discrimination. These policies are especially important in employment and education.

21. Types of Affirmative Action • Affirmative action programs designed to remedy these past effects of discrimination generally take one of two forms: • Preferences given to historically underrepresented groups (racial minorities or women) in a variety of contexts such as employment and education • Set aside programs — where a set proportion government contracts or benefits are reserved for minorities

23. U.C-Davis v. Bakke (1978) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

24. Impact of Bakke • In Bakke,a badly divided Court announced that the strict scrutiny standard would apply to claims of race discrimination even in this context • It did hold that creating diversity was a compelling state interest • However, it held that the use of racial “quotas” was an impermissible solution

25. Grutter v. Bollinger (2003) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

26. Racial Discrimination and Voting • Civil Rights Act of 1964 – signed in by President Johnson, it outlawed discrimination based on race, color, sex, religion, or national origin. It prohibited any unequal applications of voting registration and segregation in public facilities. • Voting Rights Act of 1965 – signed in by President Johnson, it outlawed any state or local barriers that prevented blacks from being able to exercise their right to vote. Also , it created the “Coverage Formula”. • Prevents the use of: • Literacy Tests • Political Education Tests • Grandfather Clauses • Character and Fitness Tests • Poll Taxes • Voter Intimidation or Harassment (qualifies as voter fraud)

27. What is the Coverage Formula? • Restrictions placed on specific state and local governments that had a history of the most persuasively discriminatory behaviors. • Initially localities were added if they had any kind of voting test or if less than ½ of their eligible citizens were registered to vote in the 1964-1972 elections. • If the state was included it was required to submit all changes to voting laws for approval to the federal government.

28. Supreme Court and Voting Restrictions • Reynolds v. Sims (1964) –Representative government depends of the ability for the majority of individuals to be represented and help elect those representatives. As such, any redistricting or voting scheme that prevents that is unconstitutional. • S.C v. Katzenbach(1966) –Congress has the power to create appropriate measures to prevent racial or color discrimination. • Miller v. Johnson (1995) – States cannot segregate based on race for any purpose (i.e. redistricting). • Bush v. Gore (2000) – Voter recounts must have uniform standards to comply with Federal Election Regulations. • Crawford v. Marion County Election Board (2008) – Laws requiring the showing of photo ids are not a substantial burden on voters nor does it create voter disenfranchisement.

29. Shelby County v. Holder (2012) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?