GOVT 2301

Civil Rights and the Equal Protection Clause

In the previous four sets of slides we discussed four principles written

within the original (U.S.) Constitution.

This set details a fifth principle that was added to the Constitution as a

consequence of the 14th Amendment: equality before the law.

The term civil rights is used to refer to policies related to equality

before the law.

In order to become familiar with civil rights issues in general click here for past blog

posts related to civil rights.

In this section we explore the concept of civil rights (and equality in general),

its development over history, and especially as it evolved in the United States upon the ratification on of the

Equal Protection Clause in the 14th Amendment.

Let’s begin with a definition.

Civil Rights: A Definition

The legal guarantees that citizens are entitled to make on

government, generally these claims are based on the accusation that an individual has been treated

unequally by the laws.

Here are sources for more detailed information about the topic:

- Legal Information Institute: Civil Rights.- Wikipedia: Civil and Political Rights.

- Findlaw: Civil Rights Basics and Background.

As we will see, this is a controversial principle. People like

to treat others unequally – or to gain an advantage over others by

influencing how the law is applied. Arguments are often presented to

justify unequal treatment.

The original Constitution says little about equality.

In fact, the 3/5th compromise makes unequal representation part

of the original design.

The closest the document comes to establishing equality is in the Due

Process Clause of the 5th Amendment. This states that people cant be

deprived of liberty without the due process of the law, which is taken to

mean that this applies to “all” people.

Click here for background on due process.

But as we know from the previous slides, this applied only to the national

government. Until the 14th Amendment each state was able to determine for itself

how different groups in society were treated by the law.

Many created a secondary status for some groups: ethnic groups, women, religious

groups, etc . . .

This changed as a consequence of the Civil War. In its aftermath 3 amendments were added to the

Constitution which began do address inequality.

In addition to the 14th, the 13th Amendment outlawed slavery and involuntary servitude and the 15th

Amendment prevented states from denying voting rights to citizen’s based on race, color or previous

condition of servitude.”

The 14th Amendment had the biggest impact of these three.

Once ratified, people – at least in theory – could not be treated differently before the law. A

process was put in place where people could claim that they were

being treated unequally.

In many ways it transformed the meaning of the original

Constitution. For that reason it may be the most consequential of

all the amendments.

Click here for past blog posts on the 14th Amendment.

The amendment has four sections – this is the one that contains the

meat:

Fourteenth Amendment. Section 1. All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

The highlighted portion is the equal protection clause: “. . . 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.”

This gives the national government the power to force the states to

provide equal protection for their citizens.

Many states and individuals resisted, and many continue to.

We will explore this conflict below.

Let’s review a key point made in the previous section on civil

liberties:

Civil Rights are distinct from Civil Liberties

Each concerns the relationship between government ands the

individual, but civil liberties limit government power, civil rights

require its usage.

If you recall from previous slides, civil liberties are protections from the arbitrary use of governmental

power. They limit governments substantive and procedural

powers.

That was the purpose of the Bill of Rights.

The protection of civil rights often involves the proactive use of

government power to address claims of discrimination either from a private organization or another governmental entity.

These claims generally involve accusations that an individual or

groups’ race, gender, age, physical disabilities, sexual orientation, or

other factor was used to deny them a position or job that they

were otherwise qualified for.

Civil Rights legislation is enforced primarily through lawsuits

individuals are allowed to take forward to the courts.

Findlaw: The Government’s Role in Civil Rights Enforcement.

Government agencies also exist to assist in the investigation of

alleged civil rights violations.

Here’s a useful site from Findlaw if you want information about how

to address a suspected violation of your civil rights.

Each has been authorized by legislation passed by Congress.

The two most important are the Equal Employment Opportunity Commission (Wikipedia), which is an independent

agency that enforces laws against discrimination in the workplace. It was established due to Title VII of the Civil

Rights Act of 1964 (Wikipedia). For further information on these, click

here.

The second is the U.S. Department of Justice’s Civil Rights Division

(Wikipedia), which was established in order to enforce the Civil Rights

Act of 1957.

Certain crimes involving “the violent interference with liberties

and rights defined in the Constitution or federal law” can be prosecuted by the Criminal Section

of the Civil Rights Division.

In addition, some agencies contain within them offices that focus on civil rights complaints within their

jurisdiction.

The U.S. Department of Education's Office for Civil Rights

(Wikipedia) is charged with ensuring compliance with several

federal laws related to discrimination in education. Click for more information about the

office here.

The U.S. Department of Health and Human Services also has an Office

of Civil Rights that investigates claims of discrimination in the

provision of health care, among other things.

Office of Federal Contract Compliance Programs

The Agency responsible for ensuring that employers doing business with the Federal

government comply with the laws and regulations requiring nondiscrimination.

- wikipedia

Similar agencies exist on the state level. Relevant information for

Texas can be found here. You can also find additional info here: Health and Human Services

Commission: Civil Rights Office

Now for some historical background:

Claims of unequal protection have been common throughout Anglo-

American history.

One could argue that many major documents in Anglo-American

history (the ones we have covered in previous sections) are based on claims that basic civil rights – for

some anyway - have been violated.

In case you want to review:

Magna CartaPetition of Right

English Bill of RightsDeclaration of Independence

In Britain, the landed gentry (the people that opposed absolute monarchic rule)

would sometimes complain that they were being denied “ancient rights and liberties” guaranteed by the Magna Carta and other

ancient documents.

This gave weight to their complaints against the monarchy.

The founders claimed they were being denied the rights they were

guaranteed as Englishmen.

The British chose to treat them as second class citizens. They lacked,

for example, the right to sit in Parliament.

If you recall, a key early dispute concerned the source of rights.

Were rights innate in the individual or where they granted by a

governmental authority (which made them subject to removal)?

The Charter of Liberties, which we discussed earlier, was granted by Henry I to calm the fears of the

nobility that he would deny their property rights among other

things.

But since rights were granted by the monarch, not considered to be innate in the individual, he could –

and would - later revoke them.

Later documents would claim these rights were innate.

You should recall this text from the Declaration of Independence

“We hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain unalienable

Rights, that among these are Life, Liberty and the pursuit of Happiness.”

But this is a philosophic guarantee not a legal guarantee.

There was no legal guarantee of civil rights until

the 14th Amendment, and even then a legal guarantee doesn’t

really matter until an enforcement mechanism is established.

This is a very important point. Its one thing to say that people have

rights. Its another, and more consequential thing to have a means by which rights can be

obtained, enforced and maintained.

It commonly pointed out that early in America’s history, political and civil rights and liberties were held

only by a privileged class.

A variety of factors were used to exclude groups from full participation in society.

Again, the Constitution, as originally written, contains no clear

language stipulating the right of individuals to be treated equally

before the laws.

States were free to treat their citizens before the law as they saw

fit. This was often articulated as states rights.

For example: Article One allows states to determine who was able

to vote.

A variety of limitations on rights existed for those not in the

privileged classes.

Property ownershipAccess to educationAccess to the courts

The right to sign contracts

For an example read through Wikipedia’s entry on Women’s

Property Rights.

But early political movements developed which pushed for the inclusion of previously excluded

groups. These efforts are ongoing.

- Civil Rights Movements.

First to crack through were non-property owners in the late 1820s. The right to participate politically was often based on whether an

individual owned property.

Note that civil rights and voting rights are very similar. We will hit some of these same points when

we cover suffrage in the section on elections.

Property owners claimed that only they had the ability to govern.

Here’s a famous quote:

“The people who own America ought to govern it” – John Jay

The Jacksonian Revolution was driven by non-property owners

who wanted to participate politically. It’s objectives were achieved primarily through the

states – initially the newer states to the west that they were able to

control.

We covered this material before when we discussed state constitutions. Many – including Texas’ – were

written after this period of history.

But restrictions continued to exist of course. Women and ethnic minorities

were still in place. Movements developed to redress both these

issues.

The Women’s Movement and the Abolition Movement both began prior

to the Civil War (the abolition movement helped spur the war of

course).

Each would evolve into powerful political movements after the war,

though it would take years for each to be successful.

Here’s a link to a timeline of the African American civil rights

movement.

And here is a link to a timeline of the expansion of women’s rights.

While those two are the most noteworthy civil rights

movements, other groups have also pursued equal rights:

- People with Disabilities (Deaf Empowerment)- Sexual Orientation

For further information, here are links to past blog posts related to

discrimination based on age, gender, race, and sexual

orientation.

Civil Rights Policymaking

How have various groups over American history had their

grievances redressed?

Each branch of government has had its own role to play in

advancing civil rights.

Each has had its own unique impact.

The Legislature by the passage of a series of civil rights laws.

The Executive in the implementation of civil rights

policies.

The Judiciary in how it interprets statutory and constitutional

language.

Most importantly the term “equal protection.”

Let’s look at each in turn

First

Legislative Action

Congress has been involved in two ways:

1 - The Passage of Civil Rights Legislation, including proposing

amendments to the Constitution.

2 - The Oversight of Civil Rights Agencies and the implementation of

civil rights legislation.

A variety of Civil Rights Acts have been passed over American

history. Most dating back to the 19th Century were weak and

unenforceable. Some were found unconstitutional or were watered

down by the Supreme Court.

For background, look through this list of major civil rights legislation

from Findlaw.com.

Here is a separate list – with links – of major civil rights legislation from

Wikipedia:

Civil Rights Acts: A List from Wikipedia:

Civil Rights Act of 1866, extended the rights of emancipated slaves

Civil Rights Act of 1871, also known as the Ku Klux Klan Act, prohibited ethnic violence against blacks

Civil Rights Act of 1875, prohibited discrimination in "public accommodations.“ It was found unconstitutional in 1883 as Congress could not regulate conduct of individuals

Civil Rights Act of 1957, established the Civil Rights Commission.

Civil Rights Act of 1960, established federal inspection of local voter registration polls

Civil Rights Act of 1964, prohibited discrimination based on race, color, religion, sex, and national origin by federal and state governments as well as some public places

Civil Rights Act of 1968, also known as the Fair Housing Act

Civil Rights Act of 1991, provided the right to trial by jury on discrimination claims and introducing the possibility of emotional distress damages, while limiting the amount that a jury could award.

As a result of the Civil Rights Act of 1957, the U.S. Commission on Civil

Rights (Wikipedia) was established. It is “an independent, bipartisan, fact-

finding federal agency,” with a mission “to inform the development of

national civil rights policy and enhance enforcement of federal civil rights

laws.”

Civil Rights Act of 1964

This is the most significant piece of civil rights legislation. It outlawed racial

segregation in schools, public places, and employment and established institutions

strong enough to enforce its mandate.. Its constitutionality was established by its

basis on the Commerce Clause.

For more background on the act click on these:

- National Archives.- Our Documents.

- CongressLink.- Filibuster Ended.

It contained eleven separate sections.

Convenient Links to them here.

A few important ones:

Title I: Voting Rights

Barred unequal application of voter registration requirements.

Title II: Discrimination

Outlawed discrimination in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; exempted private clubs without

defining the term "private."

It establishes Civil Remedies (Legal Remedies)– essentially this refers

to lawsuits – as the preferred means of addressing allegations of

illegal discrimination.

Example: Civil Remedies for Victims of Sexual Abuse.

It authorized the Attorney General to file lawsuits to protect

individuals against the deprivation of any rights secured by the

Constitution or U.S. law. Lawsuits could also be filed by private

individuals.

Controversy: This placed limitations on state sovereignty,

the federal government was allowing states to be sued in

federal courts. This led to opposition by the states that claim

to be immune from such suits.

State Sovereign Immunity

States do not like to be sued in federal court. States tend to push back when mandated to address

civil rights issues. We also covered this dispute in the section on

federalism

The conflict is perhaps inevitable. Recall that Madison, in Federalist #10, argued that tyranny of the

majority – violations of the rights of the minority – is more likely to

occur on the local level.

Title VII: Employment Discrimination

Prohibits discrimination by covered employers on the basis of race, color, religion, sex or national

origin.

This led to the creation of the Equal Employment Opportunity

Commission to investigate claims of discrimination.

The Legislature also impacts civil rights policy through its power of

congressional oversight.

This happens in congressional committees with jurisdiction over

civil rights and the executive agencies with authority over them.

They can conduct investigations, propose legislation, and oversee executive implementation of civil

rights laws.

In the House of Representatives the appropriate committee is the

House Judiciary Committee’s Subcommittee on the Constitution,

Civil Rights, and Civil Liberties

- website.

IN the Senate the appropriate committee is the Senate Judiciary Committee’s, Subcommittee on

the Constitution

- website.- an example of an oversight

hearing.

Next:

Executive Action

Three types of activities matter:

1 – The issuance of executive orders establishing the hiring practices of executive agencies and their

contractors.

2 – The creation of civil rights commissions which investigate the status of various groups in society and

propose legislative remedies

3 – The manner in which presidents chooses to oversee the actions of agencies like the EEOC.

What is an Executive Order?

An order issued by the President, the head of the executive branch

of the federal government. usually to help direct the operation of

executive officers.

Since the Federal Government has a large workforce, the executive

branch has been able to influence civil rights policy by adjusting and monitoring its hiring practices, as

well as those of private contractors it uses on occasion.

The origins of these orders can be traced back to President Franklin

D. Roosevelt and World War II when he signed Executive Order 8802, preventing discrimination based on race by government

contractors.

From the document:

All departments and agencies of the Government of the United States concerned with vocational and training programs for defense production shall take special measures appropriate to assure that such programs are administered without discrimination because of race, creed, color, or national origin;

All contracting agencies of the Government of the United States shall include in all defense contracts hereafter negotiated by them a provision obligating the contractor not to discriminate against any worker because of race, creed, color, or national origin;

There is established in the Office of Production Management a Committee on Fair Employment Practice, which shall consist of a chairman and four other members to be appointed by the President.

A variety of other executive orders were issued afterwards concerning

hiring practices. (Click here for a list, look at the bottom of the page).

The most significant of these was Executive Order 10925, which was

signed by John F. Kennedy. It did two things:

First, it created the “President's Committee on Equal Employment Opportunity, which later became the Equal Employment Opportunity Commission (EEOC) in the Civil Rights Act of

1964.”

Second, it required that “affirmative action” be taken to ensure that people are employed and

treated “without regard to their race, creed, color, or national origin.” This introduced the

concept of affirmative action.

Executive Orders ceased being used to prevent discrimination in

hiring in the late 1970s. Conservative Republican

Presidents beginning with Reagan were less likely to agree that there

was a need for such orders.

A series of Supreme Court cases have made enforcement of these orders

more difficult – we will touch on this issue below. As we will see, the

Supreme Court became increasingly skeptical about the justifications for

affirmative action programs and made it more difficult for people claiming discrimination to make their cases.

Internal Contradiction:

In order to address racial disparity, race is often taken into

consideration. This violates the Equal Protection Clause.

This is an example of checks and balances.

In March 2009, President Obama issued an executive order

authorizing the creation of the White House Council on Women

and Girls (Wikipedia).

Presidential Civil Rights Commissions

Presidents, it they choose, can raise awareness of any issue – including civil

rights – by hosting presidential commission which often produce documents calling for legislative action on whatever subject they

choose.

Presidents – as we cover in 2302 – are better able than other

branches of government to bring attention to certain issues they

find important. Some have highlighted civil rights. Perhaps the most important president to do so

in the modern age was Harry Truman.

While President, Truman established the President’s

Committee on Civil Rights, which issued an influential report titled: To Secure These Rights. It helped

create a blue print for further action. Future civil rights legislation

was spurred by this report.

The report claimed that Americans possessed four essential rights:

1 – The right to safety and security of the person.

2 – The right to citizenship and its privileges.

3 – The right to freedom of conscience and expression.

4 – The right to equality of opportunity

As a consequence of the report Truman desegregated the federal workforce (Executive Order 9980) and the armed services (Executive

Order 9981).

He gave a message to Congress requesting that the proposals in

the report be passed as law.

As we will see when we look at political parties in an upcoming section, this had consequences.

Southern states, which had been solidly Democratic began pulling away

from the party and after a period of time when they supported

independent candidates, began to switch to the Republican Party.

Since presidents serve as chief executive, they have the ability to oversee how agencies will carry our their legislative mandates.

We have already mentioned the existence of the U.S. Department

of Justice’s Civil Rights Division and the Equal Employment

Opportunity Commission.

Controversy: The strength of the each agency varies depending on

how much a given president wishes to enforce its mandate. A weak staff can easily water down

its effectiveness.

The EEOC for example can only be effective if it has the funds to

investigate complaints made to it and whether it is headed by

individuals who wish to aggressively investigate them.

Some related stories:

- NYT- Congressional hearings on the topic- Employment Lawsuits: EEOC Backlog

On The Rise

Judicial Action

The most flexible and ongoing influence on civil rights policy is in how the courts – most notably the

Supreme Court - interpret the phrase “equal protection of the laws”, and how they determine

whether the clause has been unreasonably violated.

This involves using the power of judicial review which we covered

in the section on separated powers and the checks and balances.

The courts can consider arguments that laws and executive

orders violate the Constitution.

As we will see, overtime the courts have developed a variety of rules

to determine whether a discriminatory act – a denial of

equal protection – was justified.

We tend not to complain that students who score poorly in biology and

chemistry are denied admittance to medical school (we kind of like that).

That type of discrimination is generally considered to be OK. The question is,

what other types of discrimination might also be OK and why?

Some historical background:

In early cases dating back to the 19th Century the Supreme Court

tended to vote against equal protection. Click here for a list of

major civil rights cases from Findlaw.com.

The most notorious early case was Scott v. Sanford in 1857. The court refused to rule on a case where a slave claimed to be free (having

spent time in a free state) because African-Americans – slave of free –

could not be citizens and did not have standing to bring cases to the

court.

[African-Americans] were “beings of an inferior order, and altogether

unfit to associate with the white race, either in social or political

relations, and so far inferior that they had no rights which the white

man was bound to respect.”

To grant Scott freedom would mean that he could claim all the other rights a citizen could claim (speech, assembly, the right to

bear arms), which the court refused to allow.

“The Chief Justice also added that the Missouri Compromise, which

prohibited slavery and involuntary servitude in certain parts of the

Louisiana Territory, violated the Fifth Amendment because it deprived

slaveowners of their property without the due process of law.” – Findlaw.

This was only the second time the Supreme Court declared a law

passed by Congress to be unconstitutional.

The first was Marbury v Madison which established precedence for

the power.

The case was seen as leading to the expansion of slavery across the

country – no free state could prevent it – and was argued to have led to an inevitable war to

reconcile the issue.

As mentioned above, the 14th Amendment was written and ratified after the Civil War,

which made its passage possible. It was intended to overturn the decision by stating constitutionally what the Dred

Scott decision had denied, that birth in the U.S. guaranteed citizenship.

This is another example of checks and balances by the way. Constitutional amendments can negate court

decisions.

The amendment – as well as the civil rights bills passed at that time

- was also a response to Black Codes created in various states after the Civil War. These were intended to retain a secondary

status for the recently freed slaves.

The amendment was intended to provide general protections for

groups unlikely to be supported in the states.

Background from Findlaw

Passage of the amendment was driven by Radical Republicans in

the Congress over the objections of President Andrew Johnson.

John BinghamCharles Sumner

Thaddeus Stevens

It was passed only because southern states had not been

readmitted to Congress at the time of the vote, and ratification was made a condition of re-entry.

Despite ratification, the amendment was not accepted by southern states. Jim Crow laws –

including legally mandated segregation - negate the

amendment’s impact. But the language of the amendment

provided a basis for constitutional challenge to these laws.

Here’s section one of the amendment again:

Fourteenth Amendment. Section 1. All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

Key Phrase: Equal Protection of the Laws

But what does this actually mean?And what all does this apply to?

As mentioned previously, might there be areas where the greater

interest of society might be met by allowing for discrimination in certain areas based on certain

criteria? And are there factors that make it permissible to treat people

unequally?

The Supreme Court in the 19th Century was not always sympathetic to civil

rights.

It would not begin supporting Civil Rights laws until the mid 20th Century when it began to accept an expansive

reading of the equal protection clause.

In 1883 the Supreme Court would rule against the constitutionality of

the 1875 Civil Rights Act in The Civil Rights Cases.

The bill outlawed segregation in “inns, public conveyances on land or water, theatres, and other places of public

amusement.” It was found to be unconstitutional because the court ruled that the Fourteenth Amendment did not apply to private entities. Private people

have the right to discriminate by deciding who they wish to allow into their

businesses.

The decision itself involved five consolidated cases coming from different lower courts in which

African-Americans had sued theaters, hotels and transit

companies that had refused them admittance or excluded them from "white only" facilities. - Wikipedia

The dissent argued that these were quasi-public establishments often

sanctioned by state licenses.

“The Court, in a decision by Justice Joseph P. Bradley, held that the language of the 14th Amendment, which prohibited denial of equal protection by a state, did not give Congress power to regulate these private acts. The Court also acknowledged that the 13th Amendment does apply to private actors, but only to

the extent that it prohibits people from owning slaves, not exhibiting discriminatory behavior. The Court said that "it would

be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit

to make as to guests he will entertain, or as to the people he will take into his coach or cab or car; or admit to his concert or

theatre, or deal with in other matters of intercourse or business.“- Wikipedia

Public and private facilities are viewed differently. But what if a private entity provides a public

service, or is a public accommodation? What is a fully

private entity?

It should be noted that this is almost the same as what was

passed in the Civil Rights Act of 1964, but by then it was accepted

that private business that provided public accommodations were

subject to federal legislation under the Commerce Clause.

It should be noted that some Supreme Court decisions did support equal protection:

Example: Strauder v. West Virginia (1880), soon after the end of Reconstruction. A black man

convicted of murder by an all-white jury challenged a West Virginia statute excluding

blacks from serving on juries. Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of

[the defendant's] race."

The point is that the Supreme Court did not always interpret the

Equal Protection Clause as its authors intended. Ongoing

disputes over its meaning led some to develop strategies to force the

Supreme Court to consider whether a particular law violates

the equal protection clause.

They used a strategy where they deliberately violated a law (or filed a lawsuit) with the intent that the court would be forced to test the

law against the constitution.

These cases are called “test cases.”

An early challenge to segregated facilities, the test case Plessy v.

Ferguson.

A group in New Orleans challenged racial segregation in public

transportation, claiming it violated the equal protection clause.

They lost.

Racial Segregation in public transportation upheld. It promotes public order and the facilities are

fundamentally equal.

This led to the establishment of the Separate but Equal Doctrine.

It was ruled that as long as a service or facility is fundamentally equal, it does not violate the 14th Amendment. But

then the question became, how do we demonstrate that a facility is or is not

equal?

Post Plessy

A legal strategy was developed by the NAACP to overturn the

doctrine. A variety of cases were taken to the court with the intent

of demonstrating that the Separate but Equal Doctrine was not

practical.

This involved a large number of cases challenging whether segregated facilities were in fact equal. One noteworthy case was local, Sweatt v Painter. In order to maintain segregated law schools but comply with the separate but equal

doctrine, the state of Texas established a law school for black students at TSU. But the Supreme Court decided that the TSU

Law School not equal to UT Law School so it did not meet the standard.

Other cases made the point, and many won. This set the stage for

Brown v Board of Education which challenged de jure (legally

mandated) racial segregation in local schools. The Supreme Court concluded that racial separation inevitably led to inequality. This

overturned the Plessy decision.

Neat Trivia: The lead lawyer in these cases was Thurgood

Marshall, who would later become a member of the Supreme Court.

The Brown decision introduced the concept of “strict scrutiny” and the view that different standards could be used depending on what factor

was being used to differentiate between people.

- Note: Brown did this loosely, it would be more fully defined in Loving v. Virginia.

There are three general standards used by the court, plus a handful of

minor adjustments of each of these.

Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.

Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest.

Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.

These categories reflect the idea that there may be reasons why

unequal protection might be merited depending on what

categories might be used and why.

1 – Are there certain distinctions between people that justify

unequal treatment?

2 – Are there certain activities that warrant unequal treatment? That require additional qualifications?

Here’s a repeat of an earlier slide to make the point:

We tend not to complain that students who score poorly in biology and

chemistry are denied admittance to medical school (we kind of like that).

That type of discrimination is generally considered to be OK. The question is,

what other types of discrimination might also be OK and why?

We all discriminate, the question is whether there is a justifiable

reason to discriminate, one that does not violate the principle of

equal protection of the laws.

In the example of the medical school, the need to ensure we have qualified doctors and the

reasonable expectation that poor science grades likely indicate that

one will likely not be qualified, justifies discrimination in this case.

Discrimination based on intelligence and merit seems

warranted.

A key dispute:

When is unequal protection warranted and when is it not? Not all discriminatory acts violate the

14th Amendment.

Is there a strong reason why a distinction can be made, by law, between people based on some

criteria?

What justifies unequal treatment?

Would it be unconstitutional to require older drivers (but not

younger) to retake drivers tests in order to ensure that they still have

the physical capacity to drive safely?

Areas of discrimination:

transportationaccess to public accommodations

educationhousing

employment / paymarriage

What can justify unequal treatment in each area?

Note that Plessy concerned discrimination in access to public transportation while Brown was

concerned discrimination in access to quality education.

This difference mattered.

When the court rules on civil rights issues it tends to take into

consideration the context of the discrimination.

Why is a particular group being discriminated against?

Not all criteria are considered in the same way.

What does it take to justify making distinctions along each of those

criteria? Are some easier to justify than others? For example, Is it

easier to discriminate based on age than race?

Discrimination by TypeLaws, regulations and policy guidance, and also fact sheets,

Q&As, best practices, and other information organized by basis of discrimination.

AgeDisability

Equal Pay/CompensationGenetic Information

National OriginPregnancyRace/Color

ReligionRetaliation

SexSexual Harassment

Here is a link to the EEOC’s enforcement page – law and

guidance. Notice the list “discrimination by type.”

So there are examples of people being denied equal protection of the laws fro various reasons, the question is whether the denial is

justifiable. What standard must be used to justify it?

As mentioned above, the Supreme Court has developed three categories

to determine how to address complaints of discrimination.

Strict ScrutinyIntermediate Review

Rational Basis Review

Again, to repeat a point made above, here are brief definitions of

each.

Strict Scrutiny

To survive strict scrutiny, a law must first, be justified by a compelling governmental interest. Second, the law or policy must be narrowly tailored to achieve that goal or interest. Finally, the law or policy must be the least restrictive means for achieving

that interest.

Applied to suspect classifications, of which there are two: race and citizenship.

Intermediate Scrutiny

Intermediate scrutiny is met if a regulation or law furthers

important governmental interests that are furthered by substantially

related means.

This applies primarily to laws making distinctions based on gender.

Rational Basis

The governmental action, the law or regulation at issue, must be a reasonable means to an end that may be legitimately pursued by

government.

This applies to distinctions based on age for example.

All of these have been developed in various court cases in recent

history.

The origins for this distinction comes from the Supreme Court

case United States v. Carolene Products Co.

Footnote Four outlines factors allowing for a higher level of

judicial scrutiny for legislation that met certain conditions.

1 – The rule, on its face, violates a provision of the Constitution

(facial challenge).

2 – The rule attempts to distort or rig the political process.

3 – The rule discriminates against minorities, particularly those who lack sufficient numbers or power

to seek redress through the political process.

It creates the concept of a suspect classification.

A status that makes a law that categorizes on that basis suspect,

and therefore deserving of greater judicial scrutiny.

This distinction matters. The higher the level of scrutiny, the more

difficult it is to legally make distinctions along a given criteria.

Here are specific demonstrating the application of strict and

intermediate and the rational basis test.

Strict Scrutiny

This is applied to suspect categories. Only two categories

have been designated recognized as suspect classifications.

Race and Citizenship

Click here for blog posts about stories related to strict scrutiny.

A key case involving race: Loving v. Virginia

The case was a challenge to Virginia’s Racial Integrity Act,

which outlawed interracial marriage.

It was found to violate the Equal Protection Clause under strict scrutiny. The state refused to

demonstrate a compelling governmental purpose for the law.

Separation creates a feeling of inferiority

In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment. – Oyez Project

Brewing controversy: will race always be subject to strict

scrutiny?

Recent backlashes against affirmative action – specifically the

use of race to create integrated schools – have challenged the idea

that there is a compelling governmental interest to do so.

In a recent case, the Supreme Court agreed with this idea:

Parents Involved in Community Schools v. Seattle School District

No. 1

The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became

oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. If the racial demographics of any

school's student body deviated by more than a predetermined number of percentage points from those of Seattle's total

student population (approximately 40% white and 60% non-white), the racial tiebreaker went into effect. At a particular

school either whites or non-whites could be favored for admission depending on which race would bring the racial

balance closer to the goal.

Is racial diversity a compelling interest that can justify the use of

race in selecting students for admission to public high schools?

No. By a 5-4 vote, the Court applied a "strict scrutiny" framework and found the District's racial tiebreaker plan unconstitutional under the Equal Protection Clause of the

Fourteenth Amendment . . . The District's goal of preventing racial imbalance did not meet the Court's standards for a

constitutionally legitimate use of race: "Racial balancing is not transformed from 'patently unconstitutional' to a compelling

state interest simply by relabeling it 'racial diversity.'" The plans also lacked the narrow tailoring that is necessary for race-

conscious programs. The Court held that the District's tiebreaker plan was actually targeted toward demographic goals and not

toward any demonstrable educational benefit from racial diversity. The District also failed to show that its objectives could

not have been met with non-race-conscious means.

Intermediate Scrutiny

Cases involving gender are decided under intermediate rules, although women’s rights advocates regularly attempt to increase the level up to

strict scrutiny. Many cases are brought before the courts with this intent none have been successful

so far.

As with the Brown decision, major cases about gender discrimination involved education, for example:

United States v. Virginia

The Virginia Military Institute’s male only admissions policy was determined to violate the equal

protection clause.

But in other cases, distinctions based on gender have been

maintained.

Many of these deal with paternity and the unique relationships

fathers and mothers are assumed to have with their children.

A major recent case in this regard was Nguyen v. INS.

Fathers have to prove paternity when brining a foreign born child to the US. Mothers simply have to show a birth

certificate. This was upheld, meaning that gender based distinctions are

constitutional when it comes to birthright based citizenship.

Question posed: Is 8 USC section 1409(a)'s statutory distinction, which imposes different requirements for a

child's acquisition of citizenship depending upon whether the citizen parent is the mother or the father,

consistent with the equal protection guarantee embedded in the Due

Process Clause of the Fifth Amendment?

Answer: Yes. In a 5-4 opinion delivered by Justice Anthony M. Kennedy, the Court held that

"[section 1409(a)] is consistent with the constitutional guarantee of equal protection." "For a gender-based classification to withstand

equal protection scrutiny, it must be established 'at least that the [challenged] classification

serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of

those objectives,'

The first such interest is the importance of assuring that a biological parent-child

relationship exists. The mother’s relation is verifiable from the birth itself and is

documented by the birth certificate or hospital records and the witnesses to the

birth. However, a father need not be present at the birth, and his presence is

not incontrovertible proof of fatherhood.

Rational Basis Test

This is the lowest level of review, and it is granted to distinctions like

age. But first we will look at discrimination based on disabilities

to see a controversy concerning what level of review ought to be

granted to certain disputes.

City of Cleburne v. Cleburne Living Center, Inc.

In 1980, Cleburne Living Center, Inc. submitted a permit application to operate a home for the mentally

retarded. The city council of Cleburne voted to deny the special

use permit, acting pursuant to a municipal zoning ordinance.

The question posed was whether the denial of the permit violate the Equal Protection rights of Cleburne Living Center, Inc. and its potential

residents?

In a unanimous judgment, the Court held that the denial of the special use permit to Cleburne

Living Centers, Inc. was premised on an irrational prejudice against the mentally

retarded, and hence unconstitutional under the Equal Protection Clause of the Fourteenth

Amendment. While the Court declined to grant the mentally retarded the status of a "quasi-suspect class," it nevertheless found that the "rational relation" test for legislative action

provided sufficient protection against invidious discrimination.

Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc. held mentally

retarded persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions,

many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and

instead to balance the community's needs against the needs of the disabled.

So the court refused to grant those with mental disabilities the strict scrutiny, it judged that rational basis review was insufficient.

It is not rational to discriminate against the mentally handicapped.

Age discrimination cases are also considered under the Rational

Basis Test.

Example:

Vance v. Bradley

Section 632 of the Foreign Service Act of 1946 required that members of the

Foreign Service retirement system retire at 60. No mandatory retirement age was

specified for employees covered by the Civil Service retirement system. Holbrook Bradley, a member of the Foreign Service retirement system, challenged the statute

in United States District Court for the District of Columbia and prevailed. The government appealed to the Supreme

Court.

Question: Did Section 632 of the Foreign Service Act of 1946 violate the Equal Protection component of the Due Process clause of the Fifth

Amendment?

No. In an 8-1 opinion written by Justice Byron R. White, the Court emphasized the distinction between the Civil Service and Foreign Service, and the "special attention"

paid to the Foreign Service by Congress. The Court interpreted the purpose of Section 632 to be the

encouragement of the "highest performance in the ranks of the Foreign Service by assuring that

opportunities for promotion would be available," a legitimate interest that justified the distinction. The

Court also recognized the possibility that service in the Foreign Service would be more rigorous than service in the Civil Service. Given that possibility, Congress had a

"reasonable basis" for enacting the statute,

The status of some classifications are still subject to dispute, most

notably: Sexual Orientation

Question: If and when a case involving the constitutionality of

anti gay marriage laws reaches the Supreme Court, what standard will

it use to determine if there is a legitimate reason to uphold them?

This is a huge issue. The answer to this question will likely determine whether those laws will be found

constitutional or not.

In other words, the decision may hinge simply on what level of review the court grants the

distinction.

In previous cases involving sexual orientation – mostly concerning

the constitutionality of anti-sodomy laws – the court has avoided ruling on the equal

protection clause, which means that the status of this distinction is

still unclear. A key example is in the case of Lawrence v. Texas.

A final point regarding the judiciary and civil rights policies.

There are two factors which complicate the types of decisions

the court is likely to make.

The first concerns how one proves unlawful discrimination occurred? How do we know if a law is in fact

discriminatory?

There are two ways:

- Disparate Treatment- Disparate Impact

Disparate Treatment or (Discriminatory Intent) refers to

actions taken with an intent to treat a group adversely affected differently. It signifies an intention to treat people differently based on membership in a particular group ahead of time. This is

clearly judged to violate the equal protection clause.

Cases involving disparate impact are more problematic because there is no intent ahead of time to discriminate, but the

result (for example, the ratio of men to women hired for a particular job) is unbalanced and demonstrates that

discrimination has occurred, even if it was unintentional. These are policies that do not intend to discriminate but results in

outcomes that have “disparate racial consequences.”

The courts have ruled that policies with a disparate impact can be treated the same as those with

discriminatory intent.

The Supreme Court ruled in Griggs v. Duke Power Co. (1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable

justification for such a policy on grounds of "business necessity,"

then the employer's policy violates Title VII

Problem: How to determine whether disparate impact reveals a

clever way to disguise discriminatory intent?

A second complicating factor concerns whether discrimination has occurred because of a law, or because of the collective decisions

of groups of people.

Discrimination can be de jure (in law) or de facto (in fact). Only segregation based on de jure

discrimination can be dealt with through court decisions.

Segregation based on residential decisions are not remedial through

the courts.

This has complicates the issues surrounding segregated schools.

While legal segregation has been overturned, schools are still racially segregated because of residential

patterns.

Schools placed in areas that are dominantly Anglo, or African

American or Latino tend to be dominated by that group.

While they are in fact segregated, this type of segregation is not

considered to be illegal.

Consequence: Schools are as segregated now as they were

when Brown was decided.

Study Guide

- Be able to define civil rights and explain how they are distinct from civil liberties.- Be very familiar with the 14th Amendment and especially the content and issues associated with the equal protection clause.- How are civil rights policies influenced by each branch of government?- What different classifications has the Supreme Court developed in order to deal with questions regarding equal protection before the law.- What is the difference between disparate treatment and disparate impact? Why does this matter?

- Be able to describe what executive agencies are charged with doing regarding civil rights. Which types exist?- Be familiar with the historical role equal treatment before the law has played. - Be able to answer questions about major civil rights laws over history and what they were and were not able to accomplish. Be fully familiar with the Civil Rights Act of 1964.- Understand the impact various court cases have had on the evolving definition of “equal protection.” What have been the consequences of these decisions?