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Lecture: Civil Liberties and Civil Rights
1. Civil liberties are protections from improper government action. Some of
these restraints are
substantive liberties, which put limits on what government shall and shall
not have the power to
do. Other restraints are procedural liberties, which deal with how the
government is supposed
to act.
2. A Brief History of the Bill of Rights. The inclusion of the Bill of Rights
in the Constitution was a
concession by the Federalists in order to guarantee ratification of the
Constitution. The
Philadelphia convention declined to include a bill of rights in the
Constitution. Federalists
argued that including a bill of rights was unnecessary and dangerous.
Antifederalists argued
that the Constitution would have to include a bill of rights with a provision
of reserving states’
rights. The House approved seventeen amendments, the Senate adopted twelve,
and ten were
ratified by the necessary three quarters of the states. The ten amendments
ratified by the
states were called the Bill of Rights.
A. Nationalizing the Bill of Rights. The First Amendment is the only
amendment with language
specifically limiting the national government. Therefore, some people
question whether the
Bill of Rights sets limits on only the national government or whether it also
limits the states.
Initially, the Supreme Court interpreted the Bill of Rights to limit only the
national
government. Yet over time, the Court ruled to impose the Bill of Rights on
the states and to
extend it to all citizens. For example, in 1891, the Court interpreted the
14th Amendment as
prohibiting the states from taking property without due process. Also, in
1925, the Court
ruled that freedom of speech for all cannot be suspended without due process.
Even so, it
took until 1937 for the Supreme Court to nationalize civil liberties beyond
the 1st
Amendment. In Palko v. Connecticut the Supreme Court established selective
incorporation,
the process by which different protections in the Bill of Rights were
considered one by one
and selectively applied as limits on the states through the 14th Amendment,
thus
guaranteeing citizens’ protection from state as well as national governments.
Until 1961,
only the 1st Amendment and the 5th had been incorporated – held clearly to
bind both states
and the national government. From the 1960s on, however, most but not all
Bill provisions
were incorporated into the 14th Amendment and applied to the states.
3. The First Amendment and Freedom of Religion. The First Amendment
guarantees freedom in
the establishment and free exercise clauses.
A. Separation between Church and State. The establishment clause says
“Congress shall make
no law respecting an establishment of religion.” This law means that a “wall
of separation”
exists between church and state. The “wall of separation” concept is subject
to
interpretation.
1. Regarding prayer in public places, the Court is very strict about
maintaining the
prohibition against religious establishment. Yet the Court has been tolerant
about the
public display of religious objects.
2. Funding of religious schools was also a controversial item on the
Supreme’s Court
docket until the Lemon v. Kurtzman case was decided. In it, the Court
established
criteria for funding religious schools in what is called the Lemon test. This
rule
articulates that government action toward religion is permissible if 1. It is
secular in
purpose, 2. Its effect is not inhibit or to advance religion, and 3. It does
not entangle
government and religious institutions in one another’s affairs. The Lemon
test is
difficult to pass, but the Court has ruled that universities may not practice
“viewpoint
discrimination” against a student club espousing a particular viewpoint about
a diety. It
has also approved the practice of sending public school teachers into
religious schools to
provide remedial education to disadvantaged children.
3. Also, despite the establishment clause, the Court and the nation use the
motto in “In
God We Trust” on national coins and “one nation under God” in the Pledge of
Allegiance. The “under God” provision of the Pledge of Allegiance was
challenged as a
violation of the establishment clause before the Supreme Court in 2004. The
Court
found other legal grounds on which to resolve the case and therefore never
addressed
the “under God” issue, leaving that issue for possible resolution in a future
case.
B. The Free Exercise of Religion. The free exercise clause protects a
citizen’s right to believe
and practice whatever religion he or she chooses or to be a nonbeliever. The
Supreme
Court has been consistent and strict in protecting free exercise. Still, for
the Court the
difficulty is distinguishing denied a religious claim by two Native Americans
who had been
fired from their jobs for smoking peyote, an illegal drug. However, Congress
reversed the
Court’s decision with the Religious Freedom Restoration Act (RFRA) and
expanded religious
rights. In a later case, the Supreme Court declared the RFRA
unconstitutional, arguing that
Congress has violated separation of powers by expanding the scope of
religious rights
instead of playing its constitutional role of enforcing the 1st Amendment.
4. The First Amendment and Freedom of Speech and of the Press. Freedom of
speech
and of the press are fundamental values in the democratic process. The
judicial review
standard used when individuals allege that their freedom of speech has been
violated is
called strict scrutiny. Americans are assumed to have the right to speak and
to
broadcast their ideas unless some compelling reason can be identified to stop
them.
Strict scrutiny places the burden of proof on the government to show that
such a reason
exists. This means that some kinds of speech will be absolutely protected,
but others
will be conditionally protected.
A. Absolutely Protected Speech. The truth is protected absolutely even if it
can be
damaging. Political speech is the most consistently protected. However, some
Americans argue that freedom of speech as it exists today is freedom from
government punishment, but not from media owners’ restrictions.
1. Political Speech. It is difficult to think of a functioning democracy in
which
people do not have the freedom to say what they honestly think about
government. Sind the Founding, political speech has been protected to advance
democracy, but at times it can be put at risk. The first modern speech case
involved person convicted under the Espionage Act of 1917, for opposing U.S.
involvement in World War I. The Court refused to protect their free speech –
urging draftees to resist the draft – because it found it constituted a
“clear and
present danger.” (Speech is protected or unprotected depending on its
capacity
to present a “clear and present danger” to society’s security.) Only after
the
1920s was real progress made toward broad 1st Amendment protection. Since
then, political speech has been consistently protected by the courts even
when
it is deemed “insulting” or “outrageous.” For example, a Ku Klux Klan leader
was charged with advocating violence against the branches of government. The
Supreme Court reversed the state court’s decisions and freed the Klan leader.
Also, the court found the Ohio’s Criminal Syndicalism Act unconstitutional,
because it punished people who advocated the duty of violence to bring
industrial or political reform. In the 1970s, the Court held that limits of
campaign contributions of individuals were unconstitutional, because spending
money on candidates is a form of speech protected by the 1st Amendment. In
2003, however, the Court ruled that Congress had the power to limit soft and
hard campaign contributions to curb corruption or the appearance thereof.
2. Symbolic Speech, Speech Plus, and the Rights of Assembly and Petition.
Freedom of assembly and freedom to petition are closely related to freedom of
speech, but they go beyond it, because they involve action to send a
political
message. The protection of such action is broad and it can be limited. For
example, criminal punishment for draft card burning was upheld by the Court
during the Vietnam War, but wearing black armbands to school was protected.
The Court also declared a Texas law prohibiting the desecration of a
venerated
object unconstitutional, when the American flag was burned as a protest
symbol. Congress opposed this this ruling but was unable to reverse it.
“Speech
Plus” (speech accompanied by conduct such as sit-ins, picketing, and
demonstrations) is conditionally protected by the First Amendment.
Restrictions imposed on it by state or local authorities are acceptable if
properly
balanced by public order considerations. Speech plus is closer to the
original
intent of the assembly and petition clauses but can also be regulated. An
example is restricting abortion protesters’ access to clinics on the basis
that they
can potentially jeopardize the health, safety, and rights of others.
B. Freedom of the Press. The press is protected under the doctrine against
prior
restraint (an effort by a governmental agency to block the publication of
materials it
deems libelous or harmful in some other way, or censorship). In America, the
courts
forbid prior restraint except under the most extraordinary circumstances,
allowing
the media to publish what they wish. Another press freedom issue which the
courts
have been asked to decide is the questions of whether journalists can be
compelled
to reveal their sources. There is no federal law shielding reporters from
revealing
C.
D.
E.
F.
their sources. The Court has held that the press has no constitutional right
to
withhold information in court.
Libel and Slander. Some speech is not protected at all. For example, libel (a
written
statement made in “reckless disregard of the truth” that is considered
damaging to
a victim because it is “malicious, scandalous, and defamatory”) can be
punished.
Also, slander (an oral statement, made in “reckless disregard of the truth”
that is
considered damaging to a victim because it is “malicious, scandalous, and
defamatory”) can be punished by law.
Obscenity and Pornography. These cases fall outside the realm of protected
speech. However, it is difficult to draw a clear line defining the end of
protected
speech and the beginning of unprotected speech. The Court defined obscenity
as
speech and writing that appeals to “prurient interest” and whose purpose is
to
excite lust as it appears “to the average person” and is “without redeeming
social
importance.” Still, the definition did not help clarify the ban of
pornography and
obscenity. The battle to ban these two forms of speech from printed and
online
material remains unsettled today.
Fighting Words and Hate Speech. Speech can lose its protection when it moves
from ideas to action. Fighting words are defined as speech that directly
incited
damaging conduct and is not in the realm of protected speech. Words that “are
no
essential exposition of ideas” and that by their utterance inflict injury and
incite the
breach of peace are banned by the Supreme Court. Yet they can be protected as
“expressive speech.” Hate speech is defined as speech that is threatening or
offensive to members of a particular group. Although many organizations and
universities have experimented with speech codes designed to eliminate hate
speech, these codes have not fared well in federal courts, where they have
been
found to be unconstitutional infringements of speech.
Commercial Speech. This type of speech does not have full protection because
it is
not considered political. Commercial speech has, however, become increasingly
protected as part of the “free flow of information necessary for informed
choice and
democratic participation.”
5. The Second Amendment and the Right to Bear Arms. The Second Amendment’s
purpose was to establish a militia to maintain the public order. This
“militia” was
intended to be a police force. Therefore, the people’s right “to keep and
bear arms”
was associated with participation in state militias. Since the states failed
to provide the
arms, citizens were expected to keep their own arms ready. Current
controversy over
gun control has divided those who favor limitations on private ownership of
guns and
those who argue that such ownership is a liberty protected by the Second
Amendment.
6. Rights of the Criminally Accused. The Fourth, Fifth, Sixth, and Eighth
Amendments are
the essence of due process of law. Due process helps define the limits of
government
action against the personal liberty of citizens.
A. The Fourth Amendment and Searches and Seizures. The purpose of the Fourth
Amendment is to protect citizens against unreasonable searches and seizures.
The
Supreme Court asserted that searches and seizures deprive individuals of
their own
property or person, compromising American constitutional principles. As a
result,
the amendment advanced the exclusionary rule (the ability of the courts to
exclude
evidence obtained in violation of the Fourth Amendment). This is the
strictest rule
that the courts have placed on the police, because it rules out the evidence
that
proves the guilt of a criminal if the procedure violates the Constitution.
Recently,
the courts have used the rule discreetly to make a judgment on the “nature
and
quality of the intrusion.”
B. The Fifth Amendment. The Fifth Amendment grants the following rights:
1. Right to a grand jury (a jury that determines whether sufficient evidence
is
available to justify a trial, grand juries do not rule on the accused’s guilt
or
innocence).
2. The amendment also provides the individual protection against double
jeopardy. A Fifth Amendment clause provides that a person cannot be tried
twice for the same crime.
3. It also protects against self incrimination (no citizen shall be forced to
be a
witness against himself). The well known Miranda warnings, which are intended
to prevent coerced confessions, derive from this clause.
4. The last clause in the Fifth Amendment is the “takings clause,” which
extends to
individuals a protection against the “taking” of private property “without
just
compensation.” Although this provision does not talk about the rights of the
accused, it elucidates an important instance where the government and
citizens
are adversaries. The power of a sovereign government to take private property
for public use is called eminent domain.
C. The Sixth Amendment and the Right to Counsel. The Sixth Amendment provides
for the right to counsel. It also provides for the right to a speedy trial
and the right
to an impartial jury.
D. The Eighth Amendment and Cruel and Unusual Punishment. The Eighth
Amendment prohibits “excessive bail, fines, and cruel and unusual
punishment.”
Most controversy is over what is considered “cruel and unusual” punishment,
particularly whether the United States should use the death penalty. Critics
charge
that racial and class variations in the way the death penalty is applied
constitute
“cruel and unusual punishment” and are violations of equal protection for
all.
7. The Right to Privacy. The right to privacy is not mentioned in the
Constitution or the Bill
of Rights. The Supreme Court has defined the right of privacy as the right to
be left
alone and to have one’s own private domain, into which no one else has a
right to enter
without permission. The Supreme Court has held that the right to privacy
protects
several controversial issues such as access to birth control, abortions,
homosexuality,
and the right to die.
A. Birth Control. The sphere of privacy was formally recognized in a case
that held that
the right to marital privacy protects a couple’s decision about whether to
use birth
control. This right of privacy was later extended to single individuals.
B. Abortion. The right to privacy was confirmed and extended is Roe v. Wade,
the
Supreme Court’s decision establishing a woman’s right to seek abortion
legally. This
decision not only dramatically changed abortion practices in America, but
also
galvanized the national abortion debate. This debate, polarized between pro
life
and pro choice positions, continues to occupy electoral politics and the
Supreme
Court’s caseload.
C. Homosexuality. In the last two decades, the Court has held that the right
to be left
alone includes the controversial rights of homosexuals. In the 2003 Supreme
Court
ruling Lawrence v. Texas, the states lost their ability to make private
consensual
sexual behavior a crime.
D. The Right to Die. The right of people to choose their own death and to
receive
assistance for that end remains a controversial issue in the public’s eyes.
The
Supreme Court has not definitely answered the question of whether the right
to
privacy extends to a right to die.
The War on Terrorism
Since the terrorist attacks of September 11th, the Supreme Court has heard
repeated challenges to
attempts to curtail civil liberties. The USA PATRIOT Act opened the door for
government to eavesdrop
on domestic communications, and expansion of presidential authority allowed
for those deemed
“enemy combatments” to be detained in ways that critics argue subvert
constitutional protections for
those accused of criminal actions.
In some cases, the court has ruled to protect civil liberties by contrasting
presidential power. Yet in
others, the court has ruled in favor of a more expansive definition of
presidential authority in times of
war.
Week 4 Lecture – Part 2 – Civil Rights
1. The Struggle for Civil Rights. For most of American history, full
citizenship rights were denied to
African Americans, women, and other groups as well. Civil rights are
obligations imposed on the
government to take positive action to protect citizens from any illegal
action of government
agencies as well as of other private citizens.
A. Slavery and the Abolitionist Movement. Slavery and abolition divided the
nation deeply.
Slavery dated back to the origin of the nation and had helped build the
southern plantation
economy. Therefore, slavery became an essential part of southern culture, and
any
movement to abolish it was met with resistance. Abolitionist movements
originated in the
northern states, with two antislavery parties and various other formal and
informal
organizations, including the Underground Railroad. The South organized to
stop the
antislavery movement. The slavery issue resulted in the Civil War. From the
Civil War came
the 13th, 14th, and 15th Amendments, which redefine civil rights to this day.
B. The Link to the Women’s Rights Movement. Women’s exclusion from political
participation
in the antislavery movement gave birth to the modern women’s movement.
Leaders of this
movement held their first meeting at Seneca Falls in 1848. The convention
drafted a
“Declaration of Sentiments and Resolutions,” which controversially called for
women’s legal
and social independence from men and for women’s right to vote.
C. The Civil War Amendments to the Constitution. Full citizenship seemed to
be granted to
African Americans when the Civil War concluded in the following amendments:
1. The 13th Amendment abolished slavery.
2. The 14th Amendment guaranteed equal protection and due process.
3. The 15th Amendment guaranteed voting rights for African American males.
4. However, hopes for political equality died shortly after the Civil War.
Democrats allowed
the Republican Rutherford B. Hayes to become president under the condition
that the
North would withdraw support for black civil liberties. After that,
southerners erected a
“Jim Crow” system. This was a system of laws adopted in the 1870s by the
southern
states to criminalize racial intermarriage, to expand segregation of public
places, and to
discriminate against African Americans. Meanwhile, women all over the nation
were
pressing for the right to vote. Note that the 15th Amendment only extends
voting rights
to black men. For example, in Rodchester, New York, Susan B. Anthony was
arrested for
illegally registering to vote in a national election.
D. Civil Rights and the Supreme Court: Separate but Equal. Discrimination
against African
Americans in the South led Congress to adopt the Civil Rights Act of 1875,
but the Court
declared it unconstitutional. The Court went further in the case of Plessy v.
Ferguson, when
it ruled that the 14th Amendment “equal protection of the laws” was not
violated by racial
distinction if facilities were equal. This established the doctrine of
“separate but equal
rule,” under which public accommodations could be segregated by race but
still be
considered constitutional. This rule prevailed through the mid 20th century.
E. Organizing for Equality.
1. The National Association for the Advancement of Colored People (NAACP).
The “Jim
Crow” system and lack of “equal protection under the law” for African
Americans
prompted African Americans to establish organizations to assert their
constitutional
rights. The NAACP was one of these organizations and sought to win political
rights
through political pressure and litigation. The NAACP would be critical to the
1950s civil
rights movement and shifting political party allegiances.
2. Women’s Organizations and the Right to Suffrage. Movement toward women’s
suffrage was launched in 1878 with the introduction in Congress of a
constitutional
amendment. Many states granted women the right to vote before the national
government. As a result, suffrage organizations grew; the National American
Woman
Suffrage Association (NAWSA) claimed 2 million members in 1917. NAWSA staged
mass
meetings, parades, petition drives, and protests. Members of the more
militant
National Women’s party picketed and gained publicity by getting arrested in
front of the
White House. The efforts of women’s organizations resulted in the 1920
ratification of
the 19th Amendment, guaranteeing women the right to vote.
F. Litigating for Equality after World War II. The shame of discrimination
against blacks in the
service during World War II, plus revelations of Nazi racial atrocities,
moved President Harry
Truman to create a Commission on Civil Rights. The commission produced a
report, To
Secure These Rights, explaining the problems and consequences of racial
discrimination.
Meanwhile, the Supreme Court had begun to change its position on racial
discrimination.
The Court anticipated its future civil rights rulings by opening the question
of whether any
segregated facilities could be truly equal. It took much litigation for
segregationists to
understand that legal support for racial segregation in public places would
end at the Court.
The 1954 Supreme Court decision in Brown v. Board of Education struck down
the “separate
but equal” doctrine as fundamentally unequal. This case withdrew
constitutional authority
for states to use race as a criterion for exclusion in law. Also, it provided
the national
government with the power to intervene by exercising strict regulatory
policies against
discriminatory actions.
G. Civil Rights after Brown v. Board of Education. After Brown, the Court
signaled
determination to use strict scrutiny (a test that places the burden of proof
on the
government rather than on the challengers to show that the law in question is
unconstitutional) in cases related to discrimination. Although the test gave
the legal
advantage to those attacking discrimination, Brown was only the start of
legal
desegregation. Many states did not want to cooperate with the Court’s ruling
and created
strategies to continue segregation. And although southern school boards began
to
cooperate by eliminating de jure segregation (literally, “by law” – legally
enforced practices,
such as segregation in the South before the 1960s), extensive actual (de
facto) segregation
remained in both the North and South. De facto practices are those that occur
even when
there is no legal enforcement, such as school segregation in America today.
1. School Desegregation, Phase One. Some school districts abided by
desegregation laws
immediately. Still, the South did not comply and instead practiced “massive
resistance.”
It declared that the Court’s decisions were null or without effect
(“nullification”) and
state legislatures coerced school districts into supporting the local
resistance. The
federal government ended massive resistance by deploying federal troops to
the area.
The South delayed desegregation a while longer through supposedly racially
neutral
“pupil placement” laws.
2. Social Protest and Congressional Action. A decade after Brown, no real
desegregation
progress had been made. It became clear that federal adjunction was
insufficient to
affirm the principle of “equal protection;” and affirmative action with wellorganized
support and demonstrations for civil rights was required. Martin Luther King
Jr.’s “I
Have a Dream” speech and press coverage of the sometimes violent southern
response
to civil rights demonstrations gained broad sympathy for black civil rights.
The federal
government responded to this pressure and took a more assertive role in
defending
black rights.
H. The Civil Rights Acts. As it became evident that the courts were
inadequate desegregation
agents, Congress decided legislative and administrative actions were needed.
Congress
responded with a series of acts, most notably the Civil Rights Act of 1964.
The 1964 act
covered desegregation efforts in voting, employment, public accommodations,
and
education. It also declared discrimination in the workplace (private or
public) illegal.
1. Public Accommodations. Following the 1964 Civil Rights Act, public
accommodations
removed visible racial discrimination. However, discrimination did not end.
Lawsuits
against discrimination followed – and some continue today.
2. School Desegregation, Phase Two. Title IV of the 1964 Civil Rights Act
gave the
executive branch the power to desegregate schools. Title IV became the most
effective
tool for desegregation because it provided the executive and legislative with
monetary
and legal means of enforcing integration. Title IV also allowed the
government to
suspend federal education aid to school systems practicing racial
segregation. This
allowed the federal government to address both de jure and de facto
segregation in
both the South and the North.
3. Busing. In 1971, the Supreme Court held that desegregation could be
brought about by
busing children from poor districts to wealthy ones. The Court went further
in efforts to
desegregate by allowing racial quotas to be used as starting remedies for
schools that
had desegregated de jure. The Supreme Court and federal courts have generally
retreated from this position, starting with a high court determination that
only cities
found guilty of deliberate and de jure racial segregation would have to
desegregate. In
1991, the Supreme Court abandoned efforts to desegregate schools. It ruled
that
schools showing compliance in “good faith” are free from court orders. Recent
cases
have further diminished the power of local authorities to institute de facto
segregation.
4. Outlawing Discrimination in Employment. Political and educational
desegregation had
advanced during the 1960s and 1970s. However, the economic domain continued
to
show little or no progress. Title VII of the 1964 Civil Rights Act outlawed
employment
discrimination on the basis of color, sex, national origin, or race. It also
established the
Equal Employment Opportunity Commission (EEOC), charged with the power to
revoke
public contracts for goods and services with companies not guaranteeing fair
hiring,
promotion, and firing policies. The EEOC could also initiate suits in
discriminatory cases,
but those cases can be proven only with difficulty. The Court has held that a
showing of
disparate racial impact of formally race neutral employment requirements
could shift
the burden of justification to employers to demonstrate the requirements were
a
“business necessity” that bore “a demonstrable relationship to successful
performance.”
5. Voting Rights. From 1965 to 1975, Congress significantly expanded civil
rights
legislation by barring literacy and other tests as a condition of voting in
all 50 states. In
1964, the poll tax was abolished by the 24th Amendment. The Voting Rights Act
proved
to be the most effective civil rights and integration legislation. It changed
the shape of
American politics. By 1972, most of the black population eligible was
registered to vote.
Still, some white leaders sought unsuccessfully to dilute the black vote
influence by
Gerry-mandering (apportionment of voters in districts in such a way as to
give unfair
disadvantage to one racial or ethnic group or political party). In the 2000
presidential
election in Florida, extensive racial discrimination was found. Several
provisions of the
1965 Voting Rights Act were set to expire in 2007, but were renewed by
Congress on the
basis of evidence that black voters still faced discrimination at the polls.
6. Housing. In 1968, Congress passed the Fair Housing Act to outlaw housing
discrimination. However, it was not until 1988 that Congress amended the act
to make
it more effective and allowed the Department of Housing and Urban Development
to
initiate legal action in discrimination cases. However, many communities were
resistant
to change. Lending institutions laws were passed to prevent redlining (a
practice in
which banks refuse to make loans to people living in certain poor
neighborhoods or
areas). Even so, racial discrimination in home mortgage lending remains a
significant
issue and was on display again in recent years when lenders were accused of
predatory
lending toward minority homebuyers.
Point 2. The Universalization of Civil Rights. Groups covered under Title VII
of the Civil Rights Act
defined by sex, religion, and national origin claimed there are not to be
discriminated against. This
universalization, or extension of application, of civil rights is the new
frontier of the civil rights struggle.
A. Women and Gender Discrimination. Title VII fostered the growth of women’s
movements.
Groups such as the National Organization for Women (NOW) and the Women’s
Equity Action
League (WEAL) campaigned to stop sex discrimination. Congress passed the
Equal Rights
Amendment (ERA), the constitutional amendment providing for equality under
the law at state
and national levels regardless of sex in 1972. This amendment was quickly
ratified by many
states. Ultimately the amendment fell three states short of the 38 needed for
ratification when
deadline expired in 1982. Despite the ERA’s failure, gender discrimination
lawsuits advanced
women’s civil rights by applying intermediate scrutiny (a test by the Supreme
Court in gender
discrimination cases, which places the burden of proof partly on the
government and partly on
the challengers to show that the law in question is unconstitutional) to
these cases. In addition
to the equal protection clause, women’s rights advocates had several
statutory resources. Title
B.
C.
D.
E.
IX of the Education Act forbade gender discrimination in education by
awarding monetary
damages as a remedy. Sexual harassment cases also advanced civil rights in
education, such as
the right to equal treatment for women’s athletic programs. Through the
interpretation of Title
VII of the Civil Rights Act, the Court recognized two types of sexual
discrimination in the
workplace: 1. “Quid pro quo” involves the explicit threat that submission is
a condition for
continued employment; and 2. The second harassment creates an offensive or
intimidating
employment condition amounting to a “hostile environment.” As a result of
gender
discrimination prevention, women’s politics became influential in
governmental action.
Women’s rights advocates have also been handed several significant defeats by
the Court,
including a 2000 case that declared the Violence Against Women Act
unconstitutional and a
2007 pay equity case that requires workers to challenge pay differentials
within 180 days of
when the pay decision is made. However, it is important to note passage of
the Lilly Ledbetter
Fair Pay Act of 2009, which gives victims of pay discrimination more time to
pursue litigation
against their employer.
Latinos. These labels encompass a wide range of national origins and
cultures. As a result, civil
rights issues have varied when considered by group and place.
Mexican Americans. In 1898, Mexican Americans were officially given the right
to vote.
Nevertheless, they were segregated and prevented from voting by practices
such as white
primaries and the poll tax. Independent political organizations for these
groups, such as the
League of United Latin American Citizens (LULAC) and the GI Forum, worked to
ban ethnic
discrimination against Mexican Americans after World War II. LULAC, similar
to the NAACP,
pursued a successful litigation campaign to eliminate the segregation of
Mexican American
students. By the 1960s, Mexican Americans had elected five congressmen and
were on their
way to funding Mexican American protest movements. Since then, the Mexican
American
strategy has consisted of voting along ethnic lines and using legal venues
for access to the
political system.
Immigration and Civil Rights. The 1965 Immigration Act lifted discriminatory
quotas. Still, lack
of English proficiency barred foreign language minorities such as Asians and
Latinos from
participating. To resolve the problem, the Supreme Court, with the Lau
decision, and Congress
established that schools have to provide education for students with limited
English, and
outlawed the literacy test for voting in all states. Minority groups have
also been concerned
with discrimination at the workplace originating from immigration laws. The
Supreme Court has
held that unauthorized immigrants are eligible for education and medical care
but can be denied
other benefits. Rising immigration and the unstable economy have undermined
these practices.
Efforts to deny benefits to non citizens have been made, particularly at
points of economic
distress. President Bush attempted in 2004 and 2006 to overhaul the nation’s
immigration laws.
Opposition from both the left and right in Congress led to the defeat led to
the defeat of both
bills. Several states have enacted immigration policies; some of these seek
to frustrate federal
efforts, whereas others contend that federal efforts are not strong enough.
Asian Americans. The Asian experience was formed by a series laws resisting
naturalization.
Attracted by the gold rush in the West, Chinese began arriving in California
in the 1850s. They
were ineligible for citizenship, which was awarded only to white immigrants.
The 1882 Chinese
Exclusion Act suspended Chinese laborers’ entry until 1943, at which time
China had become a
key wartime ally of the United States. Early Japanese immigrants faced
similar discrimination to
that faced by the Chinese. The denial of civil rights to Japanese Americans
culminated with the
decision to remove all people of Japanese descent, citizens and noncitizens
alike, from their
homes and confine them in internment camps during World War II, a decision
that was upheld
by the Supreme Court. It was not until 1988 that the federal government
acknowledged this
action as wrong, apologized, and paid reparations to each person interned.
F. Native Americans. The Constitution made no mention of Native Americans. In
the 1800s, the
courts defined each tribe as a nation. Thus, tribe members were not American
citizens. In 1924,
Congress granted them citizenship. During the late 1960s and 1970s, the
American Indian
Movement won more control over Native American lands from the federal
government. The
Lau v. Nichols (1974) decision established for Native Americans the right to
be taught in their
native languages. Finally, the tribes have been successful at winning federal
recognition of their
sovereignty, which allows them more economic freedom and determination to
bring income
into very poor reservations by way of businesses such as casino gambling.
G. Disabled Americans. The Civil Rights Act and the civil rights movements
helped to establish
rights for the disabled. By 1990, the disabled movement achieved its greatest
success with the
passage of the Americans with Disabilities Act of 1990. This law guaranteed
the disabled equal
employment rights and access to public businesses. Later, the Supreme Court
interpreted the
act to cover people with HIV and AIDS as well.
H. The Aged. The 1967 federal Age Discrimination in Employment Act (ADEA)
determined that age
discrimination in employment is illegal, although a 2009 Supreme Court ruling
reversed the
practice of putting the burden on the employer for demonstrating that an
employee’s
termination was based on something other than age. The major lobbyist
supporting these laws
for seniors is the American Association of Retired Persons (AARP).
I. Gays and Lesbians. The gay rights movement is one of the largest civil
rights movements in
contemporary America. The Human Rights Campaign Political Action Committee
(HRC PAC) is
the primary committee focused on gay rights. Gay rights drew national
attention in 1993 with
President Bill Clinton’s “Don’t Ask, Don’t Tell” policy, allowing gays to
serve in the military as
long as they do not openly proclaim or practice their sexual orientation. In
1996, the Supreme
Court declared discrimination against gay people unconstitutional and
extended their
fundamental civil rights protections. In that same year, the Court ruled
against privacy that
would protect consensual homosexual activity in Bowes. Yet, in 2003, the
Court overturned that
decision in Lawrence v. Texas, thus extending gays’ right to privacy. The
most significant victory
come in 2004, when the Massachusetts Supreme Court ruled that under the
state’s constitution
gays were entitled to marry. The Massachusetts State Senate questioned
whether a civil union
statute would suffice. The Court ruled negatively, asserting that civil
unions were like the
“separate but equal” legalization of racial segregation. Despite some public
support for gay
marriages, many state legislatures have banned same sex marriages. Campaigns
to legalize gay
marriage in other states have not been widely successful, although a handful
of states and the
District of Columbia do have laws that provide gay partners with a range of
spousal benefits.
Point 3. Affirmative Action. The goal of rights politics has expanded from
eliminating discrimination to
affirmative action (government policies or programs that seek to redress past
injustices against specified
groups by making special efforts to provide members of these groups with
access to educational and
employment opportunities). This type of compensatory action policy involved
two approaches: 1.
Benign discrimination for compensatory action; and 2. Compensatory action to
favor minorities never
victimized by discrimination. Affirmative action goals were to promote
preferential treatment of
minorities to foster equal opportunity and to shift national focus from
desegregation to integration.
Affirmative action efforts by the three branches of government were applied
to the areas of health,
education, welfare, and employment.
A. The Supreme Court and the Burden of Proof. Debate centers on whether
affirmative action is
similar to the race based laws that the civil rights movement sought to
defeat and which side of
the case, plaintiffs or defendants (those using affirmative action plans),
should have the burden
or proving that the programs violate or comply with equal protection. The
Adarand ruling in the
1990s required that affirmative action programs be subject to strict
scrutiny. The University of
Michigan cases in 2003 affirmed Bakke’s prohibition on racial quotas, but
also Bakke’s
prohibition on racial quotas, but also Bakke’s recognition of diversity in
higher education as a
compelling state interest, as long as admissions procedures are “highly
individualized, holistic
reviews of each applicant’s file.”
B. Referenda on Affirmative Action. Several states have considered popular
referenda on issues
of affirmative action. The most notable is California’s Proposition 209,
which outlawed
affirmative action in state and local government programs. Different wording
can produce
different outcomes on how these proposals fare with voters.
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