Civil rights issues in state and local government

1. Civil rights issues in state and local government

2. Civil Rights issues • Election of minority/women officials • Disparities in criminal sentencing • Minority hiring and contracting • Affirmative action in employment and college admissions • Abortion • Gay rights/gay marriage • Immigration • Public K-12 education: methods of integration and issues of funding equity

3. Affirmative action • To what extent may race/gender be taken into account in formulating policies to erase the effects of previous discrimination on the basis of race? • Does any race-conscious policy, even one designed to correct previous discrimination, violate the 14th Amendment’s guarantee of equal protection of the laws? • Courts have ruled that “narrowly tailored” remedies are permissible and subject to “strict scrutiny” by the courts

4. Minority hiring and contracting • Effort to ensure that economic development benefits all segments of the community • Minority “set-asides” are a guarantee that a certain percentage of state/local business (construction contracts, subcontracts, purchasing, etc.) is done with companies owned or controlled by minorities or women.

5. Richmond v. J.A. Croson Co. (1988) • The city of Richmond, VA, required companies granted city contracts to subcontract 30% of the work to minority-owned firms. • This was intended to correct for past discrimination against minority-owned businesses. • This was challenged and the US Supreme Court struck it down as a quota. • Subsequent decisions have held that “goals” are permissible but quotas are not.

6. Minority hiring and contracting • Adarand Constructors v. Pena (1995): A minority-owned company, identified as a “disadvantaged” business, was given a highway contract despite the fact that Adarand made a lower bid. • This practice was declared unconstitutional on the grounds that “race” was automatically assumed to constitute a “disadvantage.” This established the legal standard that race-based programs must be narrowly tailored and subject to strict scrutiny.

7. Bakke v. Regents of the University of California (1978) • The medical school at the University of California at Davis reserved 16% of the seats in each class for black applicants. • Allan Bakke, a white man, was rejected for admission. • Black candidates with lower grades and test scores than Bakke were admitted because of the 16% quota. • The Supreme Court ruled that affirmative action as a means of correcting previous discrimination is constitutional, but quotas are not.

8. Grutter v. Bollinger andGratz v. Bollinger (2003) • Two cases from the University of Michigan • The law school had an admissions policy which took race into account but did not have a quota. Barbara Grutter, a white woman who was not admitted, challenged this. • The undergraduate program had a policy where an applicant would be admitted if they scored 100 of a possible 150 points on a scale. • Points were earned for high school grades, test scores, extracurricular activities, and other factors. • Members of underrepresented ethnic groups were given 20 extra points. • Jennifer Gratz, a white woman, was not admitted and argued that her rights were violated by the race-based point system. • The Supreme Court held that race may be taken into consideration, but that the point system was the equivalent of a quota. • Grutter lost her case, Gratz won.

9. Fisher v. University of Texas at Austin • Argued before the US Supreme Court, Oct. 2012. • The University of Texas automatically admits any student who finishes in the top 10% of their high school class. • This makes up about 85% of their undergraduate student body. • Race may be considered in admissions to the remaining slots, in order to achieve a “critical mass” of minority students, where the student body is diverse enough that affirmative action is no longer necessary.

10. Fisher v. University of Texas at Austin • Abigail Fisher, a white woman, did not finish in the top 10% of her class and was not admitted. • She claims that minority students whose credentials were less than hers were admitted to the remaining slots, and that this violates her 14th Amendment right to equal protection under the laws. • The University won at the lower court level, but the US Supreme Court (2013) vacated this decision and sent it back to the lower courts for further review.

11. Affirmative action and women • Women earn 77 cents for every dollar that men earn in the US (but not for doing the same jobs). • Traditional discrimination both in pay and in career advancement opportunities • Many professions are still overwhelmingly dominated by one gender (women are 10% of engineers and 73% of public school teachers). • Affirmative action for women appears to have been more successful in educational settings than in the workplace (women are now a majority of college students and earn a majority of degrees). • Should there be affirmative action programs for women in areas like engineering? What can state and local governments do about this?

12. School integration • Brown v. Board of Education of Topeka (1954): Segregated schools are unconstitutional • Alexander v. Holmes County Board of Education (1969) ordered immediate end to segregated schools • De jure segregation vs. de facto segregation: what’s the difference and how are they dealt with differently? • Desegregation vs. integration: how far do you have to go? • Swann v. Charlotte-Mecklenburg Board of Education (1971): Busing is constitutional as a means of integration, upheld policy where each school in the district had to be within a certain percentage of the district as a whole • The busing policy was overturned by a court decision in 2001 • Charlotte-Mecklenburg schools have largely re-segregated; with white flight to the suburbs and to private schools, black children are now a majority of students in CMS.

13. Civil rights in state and local government • Gender discrimination has been outlawed in most, but not all, cases • Women earn 77 cents for every dollar that men earn in the US (but not for doing the same jobs). • Traditional discrimination both in pay and in career advancement opportunities • Many professions are still overwhelmingly dominated by one gender (women are 10% of engineers and 73% of public school teachers). • Affirmative action for women appears to have been more successful in educational settings than in the workplace (women are now a majority of college students and earn a majority of degrees). • Should there be affirmative action programs for women in areas like engineering? What can state and local governments do about this?

14. Same-sex marriage 1993: Hawaii Supreme Court rules that forbidding same-sex couples to marry is unconstitutional sex discrimination under the state constitution. This did not explicitly legalize same-sex marriage. 1998: Hawaii voters amend the state constitution to explicitly prohibit same-sex marriage.

15. SAME-SEX MARRIAGE • 1996: Congress passes the Defense of Marriage Act, prohibiting federal recognition of same-sex marriages and allowing states to refuse to recognize same-sex marriages which were legal elsewhere (although no state had actually legalized it yet) • What about the Full Faith and Credit Clause? • The US District Court in MA and the First Circuit Court of Appeals have found the federal provisions of DOMA unconstitutional; the Supreme Court agreed in 2013.

16. SAME-SEX MARRIAGE • 2004: Massachusetts Supreme Judicial Court rules that restricting marriage to heterosexual couples violates the state constitution. This makes same-sex marriage legal in MA, the first jurisdiction in the country to do so. • 2008, 2009: Supreme Courts of Connecticut and Iowa make the same determination. • 2009: Vermont and New Hampshire become the first states to legalize it by passing a law (as opposed to a court decision). • 2010, 2011: Washington, DC, and New York do so. • 2012: Washington State and Maryland legalize it by statutes which will be challenged by referenda in next week’s election. Maine has an initiative to legalize it on the ballot next week.

17. SAME-SEX MARRIAGECalifornia • 2000: CA bans same-sex marriage by initiative. • 2008: State Supreme Court rules this law unconstitutional. Same-sex marriage is now legal. • November 2008: An initiative (Proposition 8) overturning the Supreme Court’s decision passes. Same-sex marriage is now illegal, but marriages performed during the period between the Supreme Court’s decision and the passage of Prop 8 are still valid. • 2010/2012: A federal district court and appeals court find Prop 8 unconstitutional. • 2013: US Supreme Court declined to hear appeal, thus permanently legalizing same-sex marriage in the state.

18. SAME-SEX MARRIAGE • Currently legal in 13 states and DC. • 19 states ban any recognition of same-sex relationships. • Seven states permit same-sex civil unions or domestic partnerships but not marriage. • New Mexico has no law on the issue one way or the other; some counties have issued marriage licenses to same-sex couples while others have declined to do so.

19. SAME-SEX MARRIAGE • Issues: • Impact on society? • Constitutionality of DOMA? Should states be required to recognize each other’s same-sex marriages under the Full Faith and Credit Clause? • Should a majority be able to deprive the minority of a right by popular vote? • Should basic rights be different from state to state?

20. ABORTION • Roe v. Wade (1973): US Supreme Court rules that bans on abortion early in pregnancy violate a constitutional right to privacy. The state had an increasing right to prohibit abortion as the pregnancy progressed. • Webster v. Reproductive Health Services (1989): Supreme Court upholds right to abortion while upholding some state restrictions on it and allowing states to enact further restrictions. • Planned Parenthood v. Casey (1992): The Court again upholds basic right to abortion but upholds some state restrictions on it. • Gonzalez v. Carhart (2007): The court upholds a Nebraska state ban on “partial-birth abortion” even though it includes no exception for cases in which the woman’s health is endangered by continuation of the pregnancy.

21. ABORTION • State restrictions/requirements which have been upheld: • Parental notification requirements for minors (with a judicial bypass) • Late-term (third trimester) bans • Informed consent requirements • Waiting period • Fetal viability testing after 20 weeks • Bans on public funding and abortion in public facilities or by public employees (state/county hospitals) • Ban on specific procedure

22. ABORTION • State restrictions/requirements which have been struck down: • Spousal notification requirements • Any ban that does not include exceptions for cases when the abortion is necessary to protect the woman’s life or health.