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CHAPTER 5: CIVIL RIGHTS
Civil Rights • Civil Rights refer to those things that the government must do to provide equal protection and freedom from discrimination for all citizens. Traditionally, we think of civil rights as those rights rooted in the 14 th Amendment to the Constitution. While the term “civil rights” goes back in history, early attempts at true protection were unsuccessful because the Supreme Court believed that it was not within its purview to stop non-governmental discrimination. Since the 1950’s, the Supreme Court has held the opposite view, thus enabling the government to offer broader protections of citizens’ equality in various aspects of social and economic life.
African Americans and the Consequences of Slavery in the United States • Article I, Section 9 states, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year on thousand eight hundred and eight. . . ” The phrase “such Persons” refers to slaves. The only other vague reference to slavery in the original Constitution is Article I, Section 2, which mentions “other persons. ” Why did the founding fathers choose to not directly address the issue of slavery? One of the major reasons concerned the adoption of the Constitution by the states. If slavery had been a major controversy within the Constitution, it is doubtful the document would have been ratified. By not addressing this issue in the Constitution, the national government was allowed time to become a powerful political force. The issue of slavery was not resolved until after the Civil War some 70 years later. With the passage of the Civil War amendments, slavery and some of the problems slavery had created were abolished. – The Thirteenth Amendment (1865) prohibits slavery within the United States. – The Fourteenth Amendment (1868) establishes that all persons born in the United States are citizens and no state shall deprive citizens of their rights under the Constitution. – The Fifteenth Amendment (1870) establishes the right of citizens to vote.
African Americans and the Consequences of Slavery in the United States • • After passing the Civil War Amendments, Congress enacted the Civil Rights Acts of 1865 – 1875, which were aimed at Southern states. These laws attempted to prevent states from passing laws that would circumvent the ideas put forth in the amendments. Not all of the reasoning for this type of legislation was altruistic. Partisan political reasons and economic interests were major concerns that helped build the support necessary to gain a majority in Congress, for the passage of Civil Rights laws. The United States Supreme Court invalidated some of the civil rights legislation in the Civil Rights cases (1883). Enforcement of the Fourteenth Amendment was limited to correcting actions by states in their official acts. This would mean that private citizens could practice discrimination without interference from the national government.
African Americans and the Consequences of Slavery in the United States • • The Supreme Court went further in this direction in 1892 in the case of Plessy v. Ferguson where the Court held that separate but equal treatment of people of different racial origins by state government is not a violation of the Fourteenth Amendment. Plessy v. Ferguson was eventually overturned by the Supreme Court but not until 1954. In the case of Brown v. Board of Education of Topeka, the separate but equal doctrine was reversed. States were ordered to eliminate segregation policies with all deliberate speed. Reaction to school integration was mixed. States that already had integrated schools prior to Brown hailed the decision as an end to inequality. States that still mandated segregation were outraged at interference in state issues by the national government. Many southern school systems were still segregated ten years after the Brown decision.
African Americans and the Consequences of Slavery in the United States • • Some states are still attempting to end policies and actions which are remnants from segregational attitudes. In late 1992, the state of Louisiana was ordered to fully integrate two institutions of higher education which have been traditionally African American schools. Nonetheless, there is some evidence that courts are allowing public schools systems to abandon strategies designed to eliminate de facto segregation. The cases of board of education v. Dowell (1991), Freeman v. Pitts (1992) and Missouri v. Jenkins (1995) the Supreme Court ruled that school districts did not have to engage in certain efforts to attract multi-racial students to public schools.
The Civil Rights Movement • • The elimination of segregational policies and racial intolerance would not have occurred without a strong civil rights movement. This movement began in the South and grew to a national scale. Although this movement included thousands and had many leaders, the most famous leader was Dr. Martin Luther King, Jr. One of the major reasons Dr. King was so successful was his philosophy and action of non-violence. Peaceful civil disobedience became the hallmark of the civil rights movement. This approach gained the support and respect of millions of Americans. What began as a small movement in the South quickly became a national mission.
The Civil Rights Movement • Technology also had an important role in the integration of society. Television allowed for the contrast between the violent opposition to civil rights and integration and the nonviolent civil rights actions. Also, television brought the problems of racial inequality into the living rooms of Americans on the nightly news. As racial barriers fell in national institutions like baseball, movies, television, and the music industry began to offer major roles for African Americans. A new generation became admirers of athletes like Jackie Robinson (baseball), actors like Sidney Poitier (movies) and Bill Cosby (television) and recording artists like Diana Ross and James Brown. These very popular stars helped to eliminate racial prejudice by becoming role models for a new generation regardless of race.
The Climax of the Civil Rights Movement • The civil rights movement led to pressure on the national government to take action to end racial discrimination. In 1957 Congress established the Civil Rights Commission, which is responsible for investigating claims of racial bias. Because of the large number of claims that many southern states were denying African Americans the right to vote, Congress passed the Civil Rights Act of 1960, which was intended to stop this type of action by state governments. The actual impact of these laws was not very substantial.
The Climax of the Civil Rights Movement • • In response to public demands for stronger action congress passed the Civil Rights Act of 1964. This law prohibited discrimination in the areas of: – voter registration – public accommodations – public schools – employment The Equal Employment Opportunity Commission (EEOC), which was established by this law, was assigned the task of ending racial discrimination in the work place. In 1965, affirmative action, remedial action to improve employment opportunities for groups that had been the victims of past discrimination, was added to the powers of the EEOC.
The Climax of the Civil Rights Movement • Political power, through the ballot box, has been very difficult for many ethnic minorities. The Fifteenth Amendment attempted to establish voting rights for all citizens, except females and some Native Americans. However, some state governments enacted laws that circumvented the right to vote. The effect of these laws virtually prohibited African American males from voting in many southern states. The enactment of the Twenty-fourth Amendment in 1964, which eliminated any tax for the purpose of voting, was the modern beginning for the end to racial discrimination at the ballot box. The Voting Rights Act of 1965 made state laws restricting political participation by minorities through tactics like voter registration test illegal. The Voting Rights Act of 1965 also authorized federally administered voting procedures in counties (mostly in the South) where less than 50 percent of the eligible population was registered to vote. The result was a massive voter registration drive focused mainly on African American voters in the South.
The Climax of the Civil Rights Movement • One of the major omissions of the 1964 act was discrimination in housing. In 1968, days after the assassination of Dr. King, the Civil Rights Act of 1968 became law. Part of this legislation prohibited racial discrimination in the area of housing.
Women’s Struggle for Equal Rights • • The early struggle for equal rights for women began in the 1840’s with the women’s suffrage movement. This struggle would continue for more than 70 years until the ratification of the 19 th Amendment to the Constitution that states “The right of citizens of the United States to vote shall not be denied or abridged by the United states or by any State on account of sex. ” The modern Women’s Movement started in the 1960 s as a result of the awareness of rights caused by the Civil Rights Movement as well as the publication of Betty Friedan’s The Feminine Mystique and the formation of the National Organization for Women.
Women’s Struggle for Equal Rights • The goals of the modern women’s movement have included the ratification of the Equal Rights Amendment, which states, “Equality of rights under law shall not be denied or abridged by the United States or by any state on account of sex. ” The ERA was sent to the state legislatures for ratification on March 22, 1972. It failed to win the necessary 38 states’ approvals in the traditional seven-year limit. The Congress extended the time limit, but the states again failed to support the ratification of the ERA.
Women’s Struggle for Equal Rights • Part of the opposition to the ERA came from an anti-feminist backlash. This conservative backlash asserted that the passage of the ERA would significantly alter social relations in the United States, and that men and women would be the “same” under law (rather than equal).
Women’s Struggle for Equal Rights • Since the failure of the ERA, the women’s movement has changed focus to include challenging gender discrimination in the Courts and expanding women’s political opportunities. – Challenging gender discrimination in the Courts -suits filed include those that establish arbitrary height and weight requirements that would, in effect, exclude women. – Expanding women’s political activities -organizations have been formed to promote greater representation of women in government. These include interest groups, like the National Women’s Political Caucus, and political action committees, like EMILY’s List.
Gender-Based Discrimination in the Workplace • • Title VII of the Civil Rights Act of 1964 prohibits gender discrimination in employment. This has been used to protect women from workplace discrimination. In 1978, Title VII was amended to include the condition of pregnancy. The Supreme Court also has held that Title VII includes prohibitions on sexual harassment. One problem with addressing sexual harassment complaints is associated with defining a “hostile environment. ” The Court has attempted to address this concern, but with little clarity offered.
Gender-Based Discrimination in the Workplace • • Sexual harassment became front-page news during the Senate confirmation hearing of Supreme Court Justice Clarence Thomas. Law professor Anita Hill alleged that Thomas had sexually harassed her while they were employed at the Equal Employment Opportunity Commission. The topic of gender-based discrimination in the work place promises to continue to be an important civil rights concern, as more and more women enter the workplace of position of increasing responsibility. In addition, the role of the Internet will continue to challenge the Courts and legislators as they attempt equal protection.
Affirmative Action • Affirmative action describes those policies that give special preferences in educational admissions and employment decisions to groups that have been discriminated against in the past. As originally intended, affirmative action policies were an attempt by the federal government to “level the playing field” for women and African Americans in particular. The policy of affirmative action goes beyond a strict interpretation of the equal protection clause.
Affirmative Action • Special consideration for various groups is not limited to women and racial minorities. Rather, Congress has passed legislation that goes beyond the equal protection clause to benefit non-English speaking immigrants, people with disabilities and older Americans. Indeed, current attempts by gay and lesbian activists and children’s rights activist represent attempts by these groups to get their rights affirmed beyond the 14 th Amendment protections, which are afforded to all citizens.
Affirmative Action • Affirmative action remains a controversial issue for several reasons. Some people argue that racial and gender-based discrimination in employment and school admissions decisions is now so infrequent that affirmative action is no longer warranted. Others argue that the “backlash” created hurts race relations. Some women and African Americans argue that the presence of affirmative action discredits their achievements. On the other side of the argument are the economic realities. There is no doubt that women and African Americans lack economic parity in the U. S. Affirmative action represents one attempt to remedy this. Popular support of affirmative action programs seems to be based somewhat on racial identity, with majorities of African Americans and Hispanics supportive of affirmative action, and whites widely divided on the issue.
Affirmative Action • One U. S. Supreme Court case challenged affirmative action programs, claiming that they injured non-minority applicants for schools because they promoted reverse discrimination. In Regents of the University of California v. Bakke n(1978) the Supreme Court ruled that quota systems that only considered the race of an applicant were unconstitutional. The court’s decision applied only to situations where race was the sole factor being used.
Affirmative Action • • In another decision, Adarand Constructors, Inc. v. Peña, U. S. Supreme Court ruled that when governments use affirmative action programs, it must do so under the “strict scrutiny” rule. This means that governments typically cannot use quota systems, and once a program has been deemed successful, it must be eliminated. One form of backlash against affirmative action has been California’s Proposition 209, which, through a ballot measure, ended all state-sponsored affirmative action programs. Similar ballot measures currently are under consideration in other states.
Special Protection for Older Americans • The projected population trends reveal that the number of people over the age of 65 is growing dramatically. This growth of the number of older people will present some difficult questions for society in the next century. The decisions made now will have a major impact on every member of society well into the twenty-first century. As the baby boom generation nears retirement it is increasingly important to make decisions that will take effect prior to this massive number of individuals retiring within a short time frame.
Special Protection for Older Americans • During this century, the following areas concerning the status of older Americans will have to be addressed by the national and state governments: – Age discrimination in employment -- Many individuals do not desire retirement when they reach the age that a company or government has set as the retirement age. In some companies and in some governmental positions there are mandatory retirement policies. The Supreme Court has upheld such policies providing there was a physical requirement relating to age. A less conspicuous type of age discrimination occurs when an employer does not have a formal policy concerning older employees but has an informal policy of replacing older workers (over the age of 40 to 50) with younger workers. Such a policy reduces payroll and benefit expenses. While such informal policies are discriminatory, they are also difficult to prove in a court.
Special Protection for Older Americans • During this century, the following areas concerning the status of older Americans will have to be addressed by the national and state governments: – Mandatory Retirement – One form of age discrimination prevalent in years past was a mandatory retirement age. Amendments to the Age Discrimination in Employment Act of 1967 and other legislation have succeeded in eliminating mandatory retirement in all but a limited number of occupations where age is considered important to job responsibilities (like fire fighting).
Special Protection for Older Americans • All of these problems of age must be addressed by the political system. Individuals who are active in the political process are more likely to influence these policy decisions. In regard to age, people over the age of 65 tend to be actively involved in the political process. – Voting Over 60% of the people 65 and older report they voted in the 1988 election, the highest figure in any age group. – Members of Congress -- In the 103 rd and 104 th Congresses over 75 percent of the Senate was over the age of 50, and over 60% of the House was age 50 or older. Not all members of Congress have the same amount of power, those who have been in Congress longer tend to have significantly more power. Although there are some exceptions, most of the influential members of Congress are over the age of 50.
Special Protection for Older Americans – – Activists --As with voting, individuals tend to be more politically active as they age. Membership in interest groups representing the elderly has been growing steadily and will be likely to increase even more as more people reach the age of retirement. AARP, formerly the American Association of Retired Persons, has succeeded in channeling the opinions of older Americans. AARP is one of the most effective lobbying organizations in the country. It advocates for policies that benefit older Americans on the federal and state levels.
Securing Rights for Persons with Disabilities • • Disabled Americans have only recently been able to have a political impact. One of the first areas that received national legislation concerned educational requirements. State governments were required to provide “appropriate” educational opportunities for children with disabilities, many of whom had been denied access to public educational facilities. The most significant development for the disabled to date was the passage of the Americans with Disabilities Act of 1990. This legislation prohibits job discrimination against individuals with physical or mental disabilities. Furthermore, it requires physical access to public buildings and public services. In 1998, the Supreme Court ruled that persons infected with the HIV virus are protected by the ADA. This means that employers must be accommodated.
The Rights and Status of Gay Males and Lesbians • • In the 1960’s every state except Illinois had laws that banned the practice of sodomy. During the 1970’s and early 1980’s there was a trend where many states began to repeal such laws that banned homosexual practices. The repealing of such laws halted in 1986, with the case Bowers v. Hardwick. The Supreme Court upheld a Georgia law that banned homosexual conduct between adults.
The Rights and Status of Gay Males and Lesbians • • In the 1996 case Romer v. Evans, the Supreme Court ruled that a Colorado constitutional amendment that invalidated state and local laws that protected gay males and lesbians from discrimination. The court ruled that the amendment violated the equal protection clause of the U. S. Constitution. Since Romer, many states and cities have passed measures that afford special protection to homosexuals in housing, employment, public accommodation and credit.
The Rights and Status of Gay Males and Lesbians • In 1996 the state of Hawaii became the focal point of same sex-marriages. An appeals court held that the state constitution protected the rights of individuals who sought a marriage license regardless of their gender. Congress responded with legislation that would allow states to refuse to recognize same-sex marriages. Can Congress pass such legislation without violating Article IV of the Constitution? Should states be allowed to not recognize a legal marriage from another state? (In Hawaii, voters failed to pass a referendum that would have allowed same-sex marriages).
The Rights and Status of Gay Males and Lesbians • • In Vermont, the state Supreme Court ruled that gay men and lesbians are entitled to the same benefits of marriage that opposite-sex couples enjoy. The Vermont legislature has passed a law permitting “civil unions” between homosexual couples. What rights individuals have in the area of sexual preference will continue to vary from city to city and state to state, as long as the federal courts do not establish some national standard of protected right for sexual preference. Does the Fourteenth Amendment provide for the equal protection of individuals based on sexual orientation? If the majority of the people in a state are opposed to same sex marriages should they have the power to deny such marriages? What would James Madison, the author of Federalist #10, have to say on this issue?
The Rights and Status of Juveniles • The rights of children are different from those of adults. This does not mean that children do not have rights, for children do have rights, but these rights are not identical to adult rights. While there are some exceptions, the age separating children from adults is eighteen. People under the age of eighteen are usually treated for legal purposes as minors. In the past many states considered minors as people under the age of twenty-one. However, with passage of the Twenty-sixth Amendment, which lowered the voting age to eighteen, states began to consider minors as people under the age of eighteen.
The Rights and Status of Juveniles • The rights of children in civil and criminal proceedings is significantly different from the rights of adults. If a person is a minor, he or she is not usually held responsible for contracts they have entered into. Because of this it is very difficult for minors to enter into a contract without an adult who is willing to co-sign the contract. In criminal law, minors do not always have the right to trial by jury or to bail, but according to the Supreme Court, the Fourteenth Amendment does provide certain rights for minors including the right to counsel. Minors cannot be tried as adults in most type of cases. With the increasing number of crimes committed by minors, the issue of the rights of minors will continue to be a problem for society to cope with.