Civil Rights: The “Black Predicament”

1. Civil Rights: The “Black Predicament” • America has a poor track record in dealing with minorities; slavery, Trail of Tears, civil rights implementation • Whites often felt threatened when blacks moved into neighborhoods and schools; they responded by trying to quash black suffrage and with intimidation. • Two reasons why restrictions of African Americans continued for so long: • 1)The perceived cost of granting civil rights seemed to fall on lower-class whites 2) Majoritarian politics worked to the disadvantage of blacks. • People often place greater importance on intangible costs • White allies were few and far between, although civil disobedience was helping the cause • As a result, blacks had to take their case to the Courts

2. Gibbons v. Ogden (1824) • Aaron Ogden had filed suit in New York against Thomas Gibbons for operating a rival steamboat service between NY and NJ. • Ogden had exclusive rights to operate steamboats in New York under a state law, while Gibbons held a federal license. • Gibbons lost the case and appealed to the U.S. Supreme Court, which reversed the decision. • The Court held that the New York law was unconstitutional, since the power to regulate interstate commerce, which extended to the regulation of navigation, belonged exclusively to Congress. • In the 20th century, Chief Justice John Marshall's broad definition of commerce was used to uphold legislation protecting civil rights.

3. The Promise of the 14th Amendment • 2 ways of interpreting 14th—broadly or narrowly • Broadly interpreted, Constitution is color blind; no state law could treat Blacks and Whites differently • Narrowly interpreted, blacks and whites were equal only in contract law, serving on juries, but were otherwise differentiable • SC took the narrow view. It banned white-only juries, but said hotels could remain segregated

4. Plessy v. Ferguson (1896) • On June 7, 1892, Homer Plessy was jailed for sitting in the "White" car of the East Louisiana Railroad. Plessy was only one-eighths black and seven-eighths white, but under Louisiana law, he was considered black and therefore required to sit in the "Colored" car. He refused and was arrested. • Plessy went to court and argued, in Plessy v. The State of Louisiana, that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution. The judge at the trial was John Howard Ferguson, a lawyer from Massachusetts who had previously declared the Separate Car Act "unconstitutional on trains that traveled through several states." • In Plessy's case, however, he decided that the state could choose to regulate railroad companies that operated only within LA. • The Plessy decision set the precedent that "separate" facilities for blacks and whites were constitutional as long as they were "equal." The "separate but equal" doctrine was quickly extended to cover many areas of public life, such as restaurants, theaters, restrooms, and public schools. • Not until 1954, in the equally important Brown v. Board of Education decision, would the "separate but equal" doctrine be struck down.

5. 1896-1954 Civil Rights Movement • NAACP forms in 1909—lobbied, publicized black grievances, published newsletter, The Crisis, led by DuBois • Some nonviolent civil disobedience • Congress conservative, no help there • Courts were the battlefield • Strategy: 1) Go after unequal schools 2) Go after not-obviously unequal schools 3) Get all school segregation banned

6. Brown v. Board of Education of Topeka (1954) • Facts: A series of cases went to the Supreme Court from the states of Kansas, South Carolina, Virginia, and Delaware. Since all of the cases involved the same basic problem-black minors, through their legal representatives, seeking the aid of the courts in obtaining admission to the public schools of their respective communities on a nonsegregated basis-all were determined by one decision of the Court. In the various states, the black children were of elementary or high school age or both. Segregation requirements were on a statutory and state constitutional basis except in Kansas where only statutory provisions were involved. • Issue: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? • Decision: 9-0, ignores Stare Decisis from Plessy case. Separate but equal is NOT CONSTITUTIONAL

7. Desegregation v. Integration • Eisenhower used troops to enforce Brown • But much segregation was not by law (de jure), but rather was by fact (de facto) because of where blacks and whites lived • Integration only possible by bussing • Big majority oppose bussing; also, “white flight” because of bussing may result in schools becoming even more segregated • Congress has not followed public opinion; has been contradictory and unable to pass legislation though

8. Swann v. Charlotte-Mecklenburg (1971) • Set guidelines for all subsequent cases involving school segregation. • Charlotte schools were segregated; District Court ordered steps be taken. Supremes • New guidelines: • To violate the law, a school system, must, by law, practice, or regulation, have shown an intent to discriminate • The presence of all-white or all-black schools in an area with a history of segregation is considered intent • Remedy not limited to freedom of choice; racial quotas in pupils or teachers, court ordered bussing is ok • Not every school must reflect racial composition of a community

9. Congress Comes Around on Civil Rights • 4 Reasons why Congress finally changed its stance: • Public Opinion changed • Violent reactions to demonstrations portrayed by media (firehoses, dogs, murders) • JFK Assassination led to LBJ’s calls for a “Civil Rights Memorial” to JFK • 1964 elections gave Democrats complete control of Presidency and Congress • 19 southern Senators filibustered, but cloture was invoked, and then came the Acts….

10. Major Civil Rights Legislation • 1957 Civil Rights Act: Set up Civil Rights Commission, gave Atty General the power to seek injunctions—federal court orders that tell someone to do something or not do something • 1960 Act: Federal Voting Referees, outlawed threats to use interstate commerce to bomb • 1964 Act: Outlaws discrimination (PERIOD) in public and private accommodations—with certain exceptions. Also made literacy tests tougher to sustain, gave Attorney General the power to bring suit, outlawed pay and hiring discrimination, and barred discrimination in any activity receiving federal assistance

11. Major Civil Rights Legislation • Voting Rights Act of 1965: States must clear new laws with DOJ if they are listed as potentially civil rights violators, must print ballots in local minority languages. Also authorized appointment of voting examiners who would require registration of all eligible voters in areas where discrimination was found or less than 50% of voting age residents were registered. Finally, it banned literacy tests. Congress extended law to 2007. • 1968 Civil Rights Act: a.k.a Housing Act, banned discrimination in most housing (except private sales not using brokers). Also made it a federal crime to use interstate commerce to incite a riot. • 1972: Prohibited Sex Discrimination in education programs receiving federal aid • 1988 Discrimination: Changed Grove City College ruling…if any part of a federally funded program gets aid, all parts must comply • 1991: Easier to sue over job discrimination; government cannot norm scores by race

12. What about Sex Discrimination? • By 1970s, Court had a choice between 2 standards: Reasonableness and Strict Scrutiny. Currently Court is between the 2. • Civil Rights Acts of 1964 and 1972 apply to women and also to private companies • Men and women must become adults at the same age, be able to buy beer at same age • Laws providing different guidelines for statutory rape, widow tax exemptions, military regulations, female draft exemptions OK • VMI case (1996): Women must be admitted

13. Sexual Harassment Two forms: Quid pro quo makes an employer “strictly liable”—liable even if they don’t know about it Hostile, intimidating work environment: Only negligent employers are liable

14. Affirmative Action • Debate: Equality of Opportunity v. Results • Courts subject any quota system created by state/local governments to “Strict scrutiny” and require “compelling justification” for it • The courts have said that classifying people on the basis of their race or ethnicity is unreasonable. These are suspect classifications, and are subject to strict scrutiny • Quotas cannot be used without showing actual discrimination • Statistics are not enough; must prove practices led to discrimination and identify them • Quotas under federal law given more deference (Section 5, 14th Amendment gives power to Congress to correct discrimination) • Voluntary systems (in contracts) easier to justify • Court not likely to permit racial preferences to allow whites to get laid off before blacks

15. Regents of the University of California v. Bakke (1976) • Alan Bakke applied to Med School at UC-Davis. Admission was denied. • UC-Davis had set aside 16/100 slots for minorities • Bakke’s test scores higher than some minority applicants. He sued, claiming that UC-Davis’s policy violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause. • State courts ruled to admit him; university appealed • State Supreme Court ruled policy was illegal but did not admit Bakke • Supreme Court ruled narrowly, granting admission to Bakke, but not throwing out AA entirely.

16. Adarand v. Pena (1995) • In a 5-4 vote, SC eliminated differences between state and national affirmative action • Adarand claimed that the Federal government’s practice of giving contractors a financial incentive to hire economically disadvantaged subcontractors. Adarand lost out on a contract. • Adarand sued on basis of 5th Amendment’s Due Process clause, “no arbitrary treatment” • Classifications based on race must serve a “compelling government interest.” • Case remanded; new rule: strict scrutiny

17. U-M Affirmative Action Cases • 2 cases: Undergrad and Law School • Gratz v. Bollinger and Grutter v. Bollinger • Summary: • Supreme Court upheld Bakke, but threw out undergrad point system. • Law School policy OK—diversity an acceptable goal. • Standard: For governement to treat races differently, the policy must pass a “strict scrutiny” test--and show a compelling governmental interest that is narrowly tailored and accomplished through the least restrictive means

18. Gratz v. Bollinger (2003) • In 1995, Jennifer Gratz applied to the University of Michigan's College of Literature, Science and the Arts with an adjusted GPA of 3.8 and ACT score of 25. In 1997, Patrick Hamacher applied to the University with an adjusted GPA of 3.0, and an ACT score of 28. Both were denied admission. • The University uses race in making admissions decisions because it serves a "compelling interest in achieving diversity." • In addition, the University has a policy to admit virtually all qualified applicants who are members of one of three select racial minority groups - African Americans, Hispanics, and Native Americans - that are considered to be "underrepresented" on the campus. • Concluding that diversity was a compelling interest, the District Court held that the admissions policies for years 1995-1998 were not narrowly tailored, but that the policies in effect in 1999 and 2000 were narrowly tailored. • Gratz and Hamacher petitioned the U.S. Supreme Court for a writ of certiorari before Appeals Court judgment, which was granted.

19. The Decision in Gratz: Out of the SC’s Mouth…. • We conclude, therefore, that because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. • We further find that the admissions policy also violates Title VI and 42 U. S. C. § 1981. • Accordingly, we reverse that portion of the District Court's decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion.

20. The Law School Case: Grutter v. Bollinger (2003) • In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission. The Law School admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body." • The Law School's admissions policy explains that "[t]here are many possible bases for diversity admissions." For example, the policy states that particular weight might be given to "an Olympic gold medal, a Ph.D. in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person."

21. Law School Case • A trial on the specifics of the Law School admissions process was held in early 2001. The District Court concluded that the Law School's stated interest in achieving diversity in the student body was not a compelling one and enjoined its use of race in the admissions process. • On March 27th, Judge Friedman issued a decision finding that the educational benefits of diversity were not a compelling interest and that the specifics of the Law School's policy were not "narrowly tailored" to that interest. He issued an order that the Law School cease considering race in its admissions process. University of Michigan appealed • On April 5th, the Court of Appeals issued a stay of the District Court order while the appeal proceeded.

22. The Court of Appeals…… • On December 13, 2000, Judge Duggan of the Court of Appelas ruled without a trial and granted summary judgment in the University's favor in the Gratz case. He found that the pursuit of the educational benefits of diversity is a compelling governmental interest, and that the University's current admissions policy is fully constitutional. • In reversing, the Court of Appeals held that Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), constituted a binding precedent establishing diversity as a compelling governmental interest sufficient under strict scrutiny review to justify the use of racial preferences in admissions. The appellate court also rejected the district court's finding that the Law School's "critical mass" was the functional equivalent of a quota • In a separate opinion, Duggan rejected the intervenors' alternative defense of the policy. • Supreme Court agrees to hear case on appeal—and undergrad

23. The Law School Decision • The unsuccessful applicants' statistical expert testified that the relative odds of acceptance for Native American, African-American, Mexican-American and Puerto Rican applicants were many times greater than for Caucasian applicants and concluded that members of these groups were "given an extremely large allowance for admission." • But Supreme Court upholds policy: Goals ok, compelling governmental interest

24. Shaw v. Reno (1993) • To comply with §5 of the Voting Rights Act of 1965--which prohibits a covered jurisdiction from implementing changes in a "standard, practice, or procedure with respect to voting" without federal authorization--North Carolina submitted to the Attorney General a congressional reapportionment plan with one majority black district. • The Attorney General objected to the plan on the ground that a second district could have been created. The State's revised plan contained a second majority black district in the north central region. The new district stretched approximately 160 miles along I-85 and, for much of its length, was no wider than I-85.

25. More Shaw………… • Five North Carolina residents, filed this action against state and federal officials, claiming that the State had created an unconstitutional racial gerrymander in violation of the Equal Protection Clause. • They alleged that the two districts concentrated a majority of black voters arbitrarily, in order to create congressional districts along racial lines. Supreme Court agreed and remanded the case. • Issue returned; justices still not satisfied that “compelling interest” was met….districts were unlawful • A covered jurisdiction's interest in creating majority minority districts in order to comply with the non-retrogression rule under §5 of the Voting Rights Act does not give it carte blanche to engage in racial gerrymandering.

26. Abrams v. Johnson (1997) • Georgia legislature created 2 majority-black districts • Justice Department pressured, -> 3 • District Court declared that plan unconstitutional • GA legislature couldn’t agree on new plan; District Court stepped in and drew its own districts under Voting Rights Act of 1965 • Supreme Court upheld this action

27. Disabled Americans • More Americans are now classified as “disabled” than ever before. Why? • Identification • Legal Benefits of being declared disabled • Stigma gone • Easier to be classified as disabled • Legal battles began with Section 504 of the Rehabilitation Act of 1972: No person may be discriminated against because of handicap in any program or activity receiving federal assistance

28. 1990 Americans with Disabilities Act (ADA) • Addresses 4 main areas: Employment, Public Services, Public Accommodations, Telecommunications • Makes it illegal to discriminate in hiring, with some exceptions (if you’re a paraplegic, you’re not going to be a police officer) • Requires businesses that serve the public to install ramps, widen doorways, provides handicapped parking spaces • Critics: law costly, impedes business

29. Homosexuals and the Supreme Court • Supreme Court affirmed Georgia law that banned homosexuality • Supreme Court struck down a Colorado state constitutional amendment that prevented municipalities from passing laws giving protection to people based on their sexual orientation • Supreme Court ruled that Boy Scouts may ban homosexuals