Chapter 5: Civil Rights and Public Policy The phrase “all men are created equal” is part of the...

AP GOVERNMENTChapter 5: Civil Rights and Public Policy

The phrase “all men are created equal” is part of the Declaration of Independence. The phrase is at the heart of American political culture; yet implementing this principle has proved to be one of our nation’s most enduring struggles.

Throughout our history, issues involving African-Americans, women, and other minorities have raised constitutional questions about slavery, segregation, equal pay, and a host of other issues.

The rallying cry has been civil rights, which are policies designed to protect people against arbitrary or discriminatory treatment by government officials or individuals.

The resulting controversies have been fought in the courts, Congress, and the bureaucracy, but the meaning of equality remains as elusive as it is divisive.

Today’s equality debates center on these types of inequality in America: Racial discrimination. Gender discrimination. Discrimination based on age, disability,

sexual orientation, and other factors.

RACIAL EQUALITY: TWO CENTURIES OF STRUGGLE

The struggle for equality has been a persistent theme in our nation’s history.

Slaves sought freedom, free African-Americans fought for the right to vote and to be treated as equals, women pursued equal participation in society, and the economically disadvantaged called for better treatment and economic opportunities.

This fight for equality affects all Americans.

Philosophically, the struggle involves defining the term equality.

Constitutionally, it involves interpreting laws.

Politically, it often involves power.

CONCEPTIONS OF EQUALITY

What does equality mean?

Jefferson’s statement in the Declaration of Independence that “all me are created equal” did not mean that there were no differences among human beings.

Jefferson insisted throughout his life that African Americans were genetically inferior to whites.

The Declaration went on to speak, however, of “inalienable rights” to which all were equally entitled.

A belief in equal rights has often led to a belief in equality of opportunity; in other words, everyone should have the same chance.

What individuals make of that chance depends on their abilities and efforts.

American society does not emphasize equal results or equal rewards; few Americans argue that everyone should earn the same salary or have the same amount of property.

EARLY AMERICAN VIEWS OF EQUALITY

Few colonists were eager to defend slavery.

The delegates to the Constitutional Convention did their best to avoid facing the tension between slavery and the principles of the Declaration of Independence.

Women’s rights got even less attention than slavery at the Convention.

THE CONSTITUTION AND INEQUALITY

Perhaps the presence of conflicting views of equality in 18th century America explains why the word equality does not appear in the original Constitution.

In addition, America in 1787 was a far different place from contemporary America, with far different values.

The privileged delegates to the Constitutional Convention would have been baffled, if not appalled, at the discussions of equal rights for 12 year olds, deaf students, gay soldiers, or female road dispatchers.

The delegates created a plan for government, not guarantees of individual rights.

Not even the Bill of Rights mentions equality.

It does, however, have implications for equality in that it does not limit the scope of its guarantees to specified groups within society.

The First Amendment guarantees of freedom of expression, in particular, are important because they allow those who are discriminated against to work toward achieving equality.

This kind of political activism, for instance, led to the constitutional amendment that enacted a guarantee of equality, the 14th Amendment.

The first and only place in which the idea of equality appears in the Constitution is in the 14th Amendment, one of the three amendments passed after the Civil War.

The 14th Amendment states, “ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Equal protection of the laws: part of the 14th Amendment emphasizing that the laws must provide equivalent “protection” to all people.

Those five words represent the only reference to the idea of equality in the entire Constitution, yet within them was enough force to begin ensuring equal rights for all Americans.

The full force of the amendment was not felt for nearly 100 years, for it was not until the mid-twentieth century that the 14th Amendment was used as an instrument for unshackling disadvantaged groups.

Once dismissed as “the traditional last resort of constitutional arguments,” the equal protection clause now has few rivals in generating legal business for the Supreme Court.

But what does equal protection of the laws mean?

The 14th Amendment does not say that “states must treat everybody exactly alike,” or that “every state must promote equality among all its people.”

Presumably, it means, as one member of Congress said during the debate on the amendment, ”equal protection of life, liberty, and property” for all.

Thus, a state cannot confiscate an African American’s property under the law while letting Whites keep theirs, or otherwise give Whites privileges denied to African Americans.

Some members of Congress interpreted the clause to be a much more lavish protection of rights than this interpretation.

Over the last 100 years, however, the equal protection clause has become the vehicle for more expansive constitutional interpretations.

In order to determine whether a particular form of discrimination is permissible, the Supreme Court developed three levels of scrutiny, or analysis, called standards of review.

The Court has rule that most classifications that are reasonable-that bear a rational relationship to some legitimate governmental purpose-are constitutional.

The person who challenges these classifications has the burden of proving that they are arbitrary.

A classification that is arbitrary-a law singling out, say, people with red hair or blue eyes for inferior treatment-is invalid

The Court has also ruled that racial and ethnic classifications are inherently suspect.

These classifications are presumed to be invalid and are upheld only if they serve a “compelling public interest” and there is no other way to accomplish the purpose of the law.

In this case, the burden of proof is on the state.

Classifications by race and ethnicity, such as for college admissions, may be acceptable if they are made in laws seeking to remedy previous discrimination.

Classifications based on gender fit somewhere between these two extremes; they are presumed neither to be constitutional nor to be unconstitutional.

A law that discriminates on the basis of gender must bear a substantial relationship to an important legislative purpose.

If these three levels of judicial scrutiny (reasonable, inherently suspect, and somewhere in between) appear confusing, they are-even judges and legal scholars struggle to interpret these standards.

Today the equal protection clause is interpreted broadly enough to forbid racial segregation in public schools, prohibit job discrimination, reapportion state legislatures, and permit court-ordered busing, and affirmative action.

Conditions for women an minorities would be radically different if it were not for the “equal protection” clause.

RACE, THE CONSTITUTION, AND PUBLIC POLICY

Throughout American history, African Americans have been the most visible minority group in the United States.

The individuals have blazed the constitutional trail for securing equal rights for all Americans.

THE ERA OF SLAVERY

The first African immigrants to America were kidnapped.

African Americans lived in slavery for the first of 250 years of American settlement.

Slaves were the property of their masters.

They could be bought and sold, and they could neither vote nor own property. The Southern States, whose plantations required large numbers of unpaid workers, were the primary market for slave labor.

During the slavery era, any public policy of the slave states or the federal government had to accommodate the property interests of slave owners, who were often wealthy and enjoyed substantial political influence.

The Supreme Court got into the act, too, along with the legislative and executive branches.

In 1857 under Dred Scott v. Sandford, the Supreme Court decision ruled that a slave who had escaped to a free state enjoyed no rights as a citizen and that Congress had no authority to ban slavery in the territories.

This decision invalidated the Missouri Compromise, which allowed Missouri to become a slave state on the condition that Northern territories would remain free of slavery.

As a result, the Scott decision was an important milestone on the road to the Civil War.

The Union victory in the Civil War and the ratification of the 13th Amendment ended slavery. It also ended involuntary servitude.

The promises implicit in the 13th Amendment and the other two Civil War Amendments introduced the era of reconstruction and resegregation in which these promises were first honored and then broken.

THE ERA OF RECONSTRUCTION AND RESEGREGATION

After the Civil War ended, Congress imposed strict conditions on the former confederate states before they could be readmitted to the Union.

Many African Americans held state and federal offices during the 10 years following the war because no one who had served in the Confederate army or the state secessionists governments could hold state office.

Some government agencies, such as the Freedman’s Bureau, provided assistance to former slaves who were making the difficult transition to independence.

To ensure his election in 1876, Rutherford B. Hayes promised to pull the troops out of the South and let the old slave states resume business as usual.

This done, Southerners lost little time reclaiming power and imposing a code of Jim Crow laws, or segregational laws, on African Americans.

These laws relegated African Americans to separate school systems, and even separate restrooms.

Most Whites lost interest in helping former slaves.

And what Jim Crow laws mandated in the South was also common practice in the North.

In this era, racial segregation affected every part of life, from cradle to the grave. Groups such as the Ku Klux Klan terrorized African Americans who violated the norms of segregation, lynching hundreds of them during this era.

The Supreme Court provided a constitutional justification for segregation in the 1896 case of Plessy v. Ferguson. The Court ruled that a Louisiana law requiring “equal but separate accommodations for White and colored races “ was constitutional.

THE ERA OF CIVIL RIGHTS

After searching for the perfect case to challenge school segregation, the NAACP selected the case of Linda Brown. In Brown v. Board of Education, 1954, the Supreme Court held that school segregation in Topeka, Kansas was inherently unconstitutional because it violated the 14th Amendment’s guarantee of equal protection. This case marked the end of legal segregation in the U.S.

A year after its decision in Brown, the Court ordered lower courts to proceed with “all deliberate speed” to desegregate public schools. Desegregation began, and proceeded slowly in the South, however.

A few counties threatened to close their public schools; enrollment in private schools by Whites soared.

In 1957, President Eisenhower had to send troops to desegregate Central High School in Little Rock, Arkansas.

Congress prohibited federal aid to schools that remained segregated.

Some federal judges ordered the busing of students to achieve racial balanced schools, a practice upheld in by the Supreme Court in Swann v. Charlotte-Mecklenberg Schools, 1971.

Not all racial segregation is what is called de jure (by law) segregation.

De facto (“in reality”) segregation results, for example, when children are assigned to schools near their homes, and those homes are in neighborhoods that are racially segregated for social and economic reasons.

Sometimes the distinction between de jure and de facto segregation has been blurred by past official practices.

Because minority groups and federal lawyers demonstrated that Northern schools, too, had purposely drawn district lines to promote segregation, school busing came to the North as well.

The civil rights movement organized both African Americans and Whites to end the policies and practices of segregation.

The movement began in 1955 when Rosa Parks, an African American woman, refused to give up her seat in a Montgomery, Alabama bus to a White man.

This incident prompted a bus boycott led by a local minister, Martin Luther King, Jr. who became the best known civil rights activist.

As a result of national conscience, the courts, the civil rights movement, and the increased importance of African-American voters, the 1950s and 1960s saw a marked increase in public policies to promote voting rights, access to public accommodations, open housing, and nondiscrimination in many other areas of social and economic life.

The Civil Rights Act of 1964: Made racial discrimination illegal in hotels,

motels, restaurants, and other places of public accommodation

Forbade discrimination in employment on the basis of race, color, national origin, religion, or gender

Created the Equal Employment Opportunity Commission (EEOC) to monitor and enforce protections against job discrimination

The Civil Rights Act of 1964: Provided for withholding federal grants

from state and local governments and other institutions that practiced racial discrimination

Strengthened voting rights legislation Authorized the U.S. Justice Department to

initiate lawsuits to desegregate public schools and facilities

The Voting Rights Act of 1965 was the most extensive federal effort to crack century-old barriers to African-American voting in the South.

So many congressional and judicial policies were instituted after 1954 that virtually every type of segregation was attacked by legislative or judicial policy.

GETTING AND USING THE RIGHT TO VOTE

When the Constitution was written, no one thought of extending the right to vote to African Americans or to women.

The early Republic limited suffrage, the legal right to vote, to a handful of the population-mostly property-holding White males.

Only after the Civil War was the right to vote extended, slowly and painfully, to African-American males and the to other minority groups.

The 15th Amendment, adopted in 1870, extended suffrage to African American males (at least in principle).

The gap between these words and their implementations, however, remained wide for a full century.

States seemed to outdo one another in developing ingenious methods of circumventing the 15th Amendment.

Many states required potential voters to complete literacy tests before registering to vote.

These test typically required potential voters to read, write, and understand their state constitution or the U.S. Constitution.

In practice, however, the literacy test was rarely administered to Whites, yet the standard of literacy required of blacks was so high that few were able to pass the test.

Some state also used the grandfather clause, that exempted persons whose grandfathers were eligible to vote in 1860. This exemption did not apply to the grandchildren of slaves, but did allow illiterate Whites to vote. The law was unfair and the Supreme Court overruled it in Guinn v. United States, 1915.

To exclude African Americans from registering to vote, most southern states also relied on poll taxes, which were taxes levied on the right to vote that often fell due at the time of the year when poor sharecroppers had the least cash on hand.

To render African-American votes ineffective, most Southern states also used the White primary, a device that permitted political parties in the heavily Democratic South to exclude African Americans from voting in primary elections, thus depriving them of a voice in the most important contests and letting them vote only when it mattered least.

The Supreme Court declared White primaries unconstitutional in 1944 in Smith v. Allwright.

The civil rights movement put suffrage high on its political agenda; one by one, the barriers to African-American voting fell during the 1960s.

Poll taxes in federal elections were prohibited by the 24th Amendment, which was ratified in 1964.

The Voting Rights Act of 1965 prohibited any government from using voting procedures that denied a person the vote on the basis of race or color and abolished the use of literacy requirements for anyone who had completed the 6th grade.

As a result of these provisions, hundreds of thousands of African Americans registered to vote in Southern States.

By the early 1980s, more than 2,500 African Americans held elected offices and the number has continued to grow.

The Voting Rights Act of 1965 not only secured the right to vote for African Americans but also ensured that their votes would not be diluted through racial gerrymandering.

Officials in the Justice Department, which was responsible for enforcing the Votings Right Act, and state legislatures that drew new district lines interpreted these actions as a mandate to create minority-majority districts.

Later, the Court gave legal standing to challenges to any congressional map with an oddly shaped minority-majority district that may not be defensible on grounds other than race.

We can expect continued legislation concerning this question after each census is taken.

OTHER MINORITY GROUPS

America is headed toward a minority majority: a situation in which minority groups will outnumber Whites.

As of 2001, African Americans were no longer the largest minority group in the U.S.

The civil rights laws for which African Americans fought have benefited members of other groups as well.

NATIVE AMERICANS

The Native Americans are the oldest minority. The history of poverty, discrimination, and exploitation experienced by Native Americans is a long one.

Native Americans were first isolated on reservations, losing their lands and their rights in the process.

After the Dawes Act of 1887, the federal government switched strategies and focused on assimilation into mainstream American life.

In 1924, American Indians were made citizens of the U.S. Not until 1964 did Congress establish the Indian Claims Act to settle financial disputes arising from lands taken from the American Indians.

Today, most Native Americans still live in poverty and ill health, almost half on or near a reservation.

As in other areas of civil rights, the preservation of Native American culture and the exercise of Native American rights sometimes conflict with the interests of the majority.

Native American rights to run businesses denied to others by state law and to avoid taxation on tribal lands have made running gambling casinos a lucrative option for Native Americans.

This has irritated both those who oppose gambling and those who are offended by the free-tax competition.

HISPANIC AMERICANS

Hispanic Americans have replaced African Americans as the largest minority group.

The first major efforts on behalf of civil rights for Hispanics date only from the mid-1960s.

An early example was the United Farm Workers, led by Cesar Chavez, who publicized the plight of migrant workers, a large proportion of whom are Hispanic.

Like Native Americans, Hispanic Americans benefit from the nondiscrimination policies originally passed to protect African Americans.

ASIAN AMERICANS

Asian Americans are the fastest growing minority group.

Asian americans suffered discrimination in education, jobs, and housing, as well as restrictions on immigration and naturalization for more than one hundred years prior to the civil rights acts of the 1960s.

In 1944 The Supreme Court decided that it was constitutional to intern more than 100,000 Americans of Japanese descent in encampments during WWII. The decision was called Korematsu v. United States, 1944.

Congress has since then authorized benefits to former internees.

Today, Americans of Chinese, Japanese, Korean, Vietnamese, and other Asian cultures have assumed prominent positions in U.S. society.

WOMEN, THE CONSTITUTION, AND PUBLIC POLICY

The first women’s rights activists were products of the abolitionist movement, where they often encountered sexist opposition.

THE BATTLE FOR THE VOTE

In 1848, 100 men and women signed the Seneca Falls Declaration of Sentiments and Resolutions.

It was patterned after the Declaration of Independence. Thus began the movement that would culminate in the ratification of the 19th Amendment.

The 19th Amendment was the constitutional amendment adopted in 1920 that guarantees women the right to vote.

From 1920-1960, the feminist movement seemed to lose rather than gain momentum after winning the vote, perhaps because the vote was about the only goal on which all feminists agreed.

The Equal Rights Amendment (ERA), was a constitutional amendment originally introduced in Congress in 1923 and passed by Congress in 1972.

Despite public support, the amendment failed to acquire the necessary support from three-fourths of state legislatures.

THE SECOND FEMINIST WAVE

The civil rights movement of the 1950s and 1960s attracted many female activists, some of whom also joined student and antiwar movements.

Before the advent of the contemporary feminist movement, the Supreme Court upheld virtually any instance of gender-based discrimination. The state and federal governments could discriminate against women-and, indeed, men- as they chose.

In Reed v. Reed, 1971, the Supreme Court for the first time upheld a claim of gender discrimination.

In Craig v. Boren, 1976, the Supreme Court established the “medium scrutiny” standard for determining gender discrimination

Gender discrimination would be presumed to be neither valid or invalid. The courts were to show less deference to gender classifications than to more routine classifications, but more deference than to racial classifications.

WOMEN IN THE WORKPLACE

Congress has made some important progress, especially in the area of employment. The Civil Rights Act of 1964 banned gender discrimination in employment.

Title IX of the Education Act of 1972 forbade gender discrimination in federally subsidized education programs, including athletics.

WAGE DISCRIMINATION AND COMPARABLE WORTH

Traditional women’s jobs often pay much less than men’s jobs that demand comparable skill.

Medium annual earnings for full-time workers are only about three-fourths of those of men.

In 1983, the Washington Supreme Court ruled that its state government had discriminated against women for years by denying them equal pay for jobs of comparable worth.

The U.S. Supreme Court has remained silent so far on the merits of this issue.

WOMEN IN THE MILITARY

Military service is another controversial aspect of gender equality.

Now women are part of the regular service. They make up 15 percent of the armed forces.

Congress opened all the service academies to women in 1975.

Only men must register for the draft when they turn 18.

Statutes and regulations also prohibit women from serving in combat.

SEXUAL HARASSMENT

Whether in the military, on the assembly line, or in public office, women have voiced concern about sexual harassment for years.

Sexual harassment can occur anywhere but may be especially prevalent in male dominated occupations such as the military.

A 1991 convention of the Tailhook Association, an organization of naval aviators, made news after reports surfaced of sexual harassment directed toward female guests, including naval officers.

Behavior that was once considered as male high jinks is now recognized as intolerable.

NEWLY ACTIVE GROUPS UNDER THE CIVIL RIGHTS UMBRELLA

Three current entrants into the civil rights area are aging Americans, people with disabilities, and homosexuals.

CIVIL RIGHTS AND THE GRAYING OF AMERICA

America is aging rapidly.

Although many elderly people want to work, employers routinely refused to hire people over a certain age.

As early as 1967, Congress banned some kinds of age discrimination.

In 1975, civil rights law denied federal funds to any institution discriminating against people over the age of 40 because of their age.

Compulsory retirement has been phased out altogether. No one knows what other directions the gray liberation movement may take as its members approach the status of a minority majority.

CIVIL RIGHTS AND PEOPLE WITH DISABILITIES

Americans with disabilities have suffered from both direct and indirect discrimination

The Americans with Disabilities Act of 1990 (ADA) requires employers and public facilities to make “reasonable accommodations” for people with disabilities and prohibits discrimination against these individuals in employment.

GAY AND LESBIAN RIGHTS

Gay and lesbian activists may face the toughest battle for equality.

Homophobia-fear and hatred of homosexuals has many causes; some are very powerful.

AFFIRMATIVE ACTION

Affirmative Action involves efforts to bring about increased employment, promotion, or admission for women and minorities.

The goal is to move beyond equal opportunity toward equal results.

This goal might be accomplished through special rules in the public and private sectors that recruit or otherwise give preferential treatment to previously disadvantaged groups.

The constitutional status of affirmative action is not clear.

New state and federal laws have discriminated in favor of those previously disadvantaged groups.

Eventually, the federal government mandated that all state and local governments, as well as each institution receiving aid from or contracting with the federal government, adopt an affirmative action program.

In Regents of the University of California v. Bakke, 1978, the Supreme Court held that a state university could not admit less qualified individuals solely because of their race.

In Adarand Constructors v. Pena, 1995, the Supreme Court decided that federal programs that classify people by race, even for ostensibly benign purpose such as expanding opportunities for minorities, should be presumed to be unconstitutional.

25 years of distortion and political warfare over affirmative action have made it difficult for most people to speak clearly on the subject or even to recognize affirmative action when they see it.

Loaded terms such as “quotas and “reverse discrimination” have made it all but impossible to see affirmative action as a constructive and vitally important policy for the United States.

UNDERSTANDING CIVIL RIGHTS AND PUBLIC POLICY

The original Constitution is silent on equality. The only direct reference is in the 14th Amendment.

CIVIL RIGHTS AND DEMOCRACY

Equality is a basic principle of democracy. Every citizen has one vote. Individual liberty is an equally important democratic principle, one that can conflict with equality.

Equality tends to favor majority rule. Thus, the principle of equality can invite the denial of minority rights, whereas the principle of liberty condemns such action.

CIVIL RIGHTS AND THE SCOPE OF GOVERNMENT

Civil rights laws increase the scope and power of government. These laws regulate the behavior of individuals and institutions.

The Founders might be greatly perturbed if they knew about all the civil rights laws the government has enacted; these policies do not conform to the 18th century idea of limited government.

But the Founders would expect the national government to do whatever is necessary to hold the nation together.

However, civil rights, like civil liberties, is an area in which increased government activity in protecting basic rights can lead to greater checks on government by those who benefit from such protections.

The question of where to draw the line in the government’s efforts to protect civil rights has received different answers at different points in American history, but few Americans want to turn back the clock to the days of Plessy v. Ferguson and Jim Crow laws or to the exclusion of women from the workplace.