EQUALITY AND CIVIL RIGHTS AND THE CHALLENGE OF DEMOCRACY

With the separate-but-equal decision of Plessy v. Ferguson in 1876, the national government tried to sweep the conflict between equality and freedom under the rug. By announcing in Brown v. Board of Education in 1954 that “separate is inherently unequal,” the national government faced the tension between freedom and equality and the fact that more of one usually means less of the other. The meaning of equality also creates difficulties. Many who agree on the need for equality of opportunity will not support measures they think are geared to produce equality of outcome. The struggle for civil rights also illustrates the conflict between pluralism and majoritarianism. In accepting the demands of African American citizens, the national government acts in a way that is more pluralist than majoritarian. As Chapter 1 pointed out, majoritarian democracy does what the majority wants and thus may allow discrimination against minorities, even though the substantive outcome (inequality) seems undemocratic.

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Thus, questions about what kind of public policies should be adopted to achieve equality are often highly controversial. If the nation wants to promote racial and gender equality among doctors or sheet metal workers, for example, it may design policies to help previously disadvantaged and underrepresented groups gain jobs in these areas. This practice, however, may lead to charges of reverse discrimination.

African Americans seeking civil rights not only had to contend with being members of a minority group, but they also were largely excluded from the electoral process. Under the leadership of the National Association for the Advancement of Colored People (NAACP), they adopted the strategies of lobbying legislators and pressing claims before the judiciary, the branch of government least susceptible to majoritarian influences. Later, as the civil rights movement grew (and as majority opinion became more hospitable to their cause), they emphasized the importance of legislation as a method of achieving equality and also used the techniques of civil disobedience to challenge laws they believed to be unjust. This quest for racial equality remains incomplete. A part of a mandatory response to a new UN treaty, the U.S. State Department reported in 2000 that racial discrimination still persists in the United States. Under the same treaty, advocates of racial equality may appeal to an international authority to end racial or other forms of discrimination.

The women’s movement offers an interesting contrast to the case of African Americans. Women are not actually a minority group; they are a majority of the population. Yet, in the struggle to pass the Equal Rights Amendment (ERA), pluralism prevailed! Although a majority of Americans favored the amendment, it failed. The amending process, by requiring extraordinary majorities, gives enormous power to minorities bent on thwarting a particular cause.

Two Conceptions of Equality

Throughout much of American history, civil rights—the powers and privileges supposedly guaranteed to individuals and protected from arbitrary removal at the hand of government—have often been denied to certain citizens on the basis of their race or sex. The pursuit of civil rights in America has been a story of the search for social and economic equality. But people differ on what equality means. Most Americans support equal opportunity, but many are less committed to equality of outcome.

The Civil War Amendments

After the Civil War, the Thirteenth, Fourteen, and Fifteenth amendments were passed to ensure freedom and equality for African Americans. In addition, as a response to the black codes, Congress passed civil rights acts in 1866 and 1875 to guarantee civil rights and access to public accommodations. While the legislative branch was attempting to strengthen African American civil rights, the judicial branch seemed intent on weakening them through a number of decisions that gave states room to maneuver around civil rights laws. States responded with a variety of measures limiting the rights of African Americans, including poll taxes, grandfather clauses that prevented them from voting, and Jim Crow laws that restricted their use of public facilities. These restrictions were upheld in Plessy v. Ferguson, which justified them under the separate-but-equal doctrine. By the end of the nineteenth century, segregation was firmly and legally entrenched in the South.

The Dismantling of School Segregation

The NAACP led the campaign for African American civil rights. Its activists used the mechanism of the courts to press for equal facilities for African Americans and then to challenge the constitutionality of the separate-but-equal doctrine itself. In 1954, in Brown v. Board of Education, a class-action suit, the Supreme Court reversed its earlier decision in the Plessy case. It ruled that “separate educational facilities are inherently unequal” and that segregated schools must be integrated “with all deliberate speed” under the direction of the federal courts. The Court thus ordered an end to school segregation that had been imposed by law (de jure segregation), but in many parts of the country segregation persisted, because African Americans and whites lived in different areas and sent their children to local schools (de facto segregation). This problem led the courts to require the unpopular remedy of bussing African American and white children as a means of integrating schools. By 1974, however, the Supreme Court began to limit bussing as ordered by the judicial branch.

The Civil Rights Movement

The NAACP’s use of the legal system ended school segregation and achieved some other, more limited, goals, but additional pressure for desegregation in all aspects of American life grew out of the civil rights movement. The first salvo in the civil rights movement came when African Americans in Montgomery, Alabama, boycotted the city’s bus system to protest Rosa Parks’s arrest and the law that prohibited African Americans from sitting in the front of buses. Under the leadership of Martin Luther King, Jr., the movement grew, and civil rights activities, including nonviolent civil disobedience, spread.

In the early 1960s, President Kennedy was gradually won over to supporting the civil rights movement. In 1963, he asked Congress to outlaw segregation in public accommodations. Following Kennedy’s death, President Lyndon Johnson made passage of the Civil Rights Act of 1964 his top legislative priority, and the bill passed despite a long debate and filibuster in the Senate. More civil rights legislation followed in 1965 and 1968. This time, the legality of civil rights acts was upheld by the Supreme Court.

Having civil rights laws on the books does not mean discrimination will end once and for all, however. For one thing, the courts must interpret the laws and apply them to individual cases. In the Grove City College case, the Supreme Court offered a very narrow interpretation of a civil rights law, in effect taking the teeth out of the legislation. Congress reasserted its original, more sweeping intent in the Civil Rights Restoration Act of 1988.

Meanwhile, the Court, with a new conservative majority in the ascendancy, continued to issue decisions limiting the scope of previous civil rights rulings. Civil rights groups looked to Congress to restore rights previously recognized, but presidential vetoes scuttled such measures until 1991.

Despite Dr. King’s commitment to nonviolence, the struggle for civil rights was not always a peaceful one. White violence against civil rights workers included murders and bombings. By the late 1960s, racial violence had increased as African Americans demanded their rights, but many whites remained unwilling to recognize them. The African American nationalist movements, often militant, promoted “black power” and helped instill racial pride in African Americans.

Civil Rights for Other Minorities

Civil rights legislation won through the struggles of African Americans also protects other minorities. Native Americans, Latinos, and disabled Americans were also often victims of discrimination. Native Americans were not even considered citizens until 1924. The Indian reservations established by the U.S. government were poverty-stricken. In the late 1960s and early 1970s, the frustrations of Native Americans erupted into militancy. By the mid-1970s and early 1980s, they began to win important legal victories, including compensation for land taken by the U.S. government. Recently, new entrepreneurial tribal leadership of Indian tribes has capitalized on the special status of their tribes and enjoyed economic success by sponsoring casino gambling ventures.

Latinos who migrated to the United States seeking economic opportunities found poverty and discrimination instead. This problem was compounded by the language barrier and the inattention of public officials to their needs. Latinos, too, have used the courts to gain greater representation on governing bodies. Recently, they have begun to be successful in obtaining elected and appointed political offices.

Building on the model of existing civil rights laws, disabled Americans managed to gain recognition as an oppressed minority and, through the 1990 Americans with Disabilities Act, receive the protection of a right of access to employment and facilities.

Homosexual Americans

Though gays and lesbians have made significant progress, they have not yet succeeded in passing a complete civil rights law protecting their rights. The 2000 Supreme Court decision in Boy Scouts of America v. Dale illustrated the continued struggles of gays and lesbians for civil rights. The court ruled that homosexuals could be excluded from leadership positions in the organization.

The demand for equality has recently been extended to the institution of marriage. In 2003, the State of Massachusetts recognized same-sex marriages.

Gender and Equal Rights: The Women’s Movement

Civil rights have long been denied to women, partly as a result of policies designed to protect women from ill-treatment. Only after a long struggle did women win the right to vote under the Nineteenth Amendment that was passed in 1920. Yet gaining the right to vote did not bring the equality that women hoped for. Discrimination continued in the workplace and elsewhere. It took legislation such as the 1963 Equal Pay Act, the 1964 Civil Rights Act, and Title IX of the Education Amendments Act of 1972 to prohibit these other forms of discrimination against women. In the early 1970s, the Court began to strike down gender-based discriminations that could not be justified as serving an important government purpose. In 1996, the Court applied a new standard of “skeptical scrutiny” to acts denying rights based on sex. This new standard makes distinctions based on sex almost as suspect as those based on race.

For many years, the Court proved reluctant to use the Fourteenth Amendment as the basis for guaranteeing women’s rights. As a result, proponents of equal rights for women sought an amendment to ensure that women’s rights stood on a clear constitutional footing. Although the ERA was ratified by 35 states, it fell three states short of the minimum number required for adoption and did not become the law of the land, although many states eventually adopted their own ERAs. Some scholars argue that, in practice, the Supreme Court has since implemented the equivalent of the ERA through its decisions. Affirmative Action: Equal Opportunity or Equal Outcome?

The Johnson administration started a number of programs to overcome the effects of past discrimination by extending opportunities to groups previously denied rights. These affirmative action programs involved positive or active steps taken to assist members of groups formerly denied equality of opportunity.

These programs soon led to charges of reverse discrimination. The Court, however, has found some role for affirmative action programs. In the Bakke decision, a split court held that race could be one of several constitutionally permissible admissions criteria. In other cases, the Court has allowed the use of quotas to correct past discriminatory practices. In the Adarand case, however, the Court decided that programs that award benefits based on race must themselves be held up to a strict scrutiny standard—a test few could pass. Based on the Adarand case, a federal court in 1996 rejected the use of race or ethnicity as a condition for admission to the University of Texas law school. The Supreme Court sent a mixed message in its review of the University of Michigan affirmative action policies in 2003. The court ruled that an undergraduate affirmative action formula was unconstitutional, but that a law school admissions standard that included a racial preference was acceptable.

Essential Facts and Information-for assignments and tests

1. Civil Rights-Laws are found in the constitution under the 14th amendment and within a series of civil rights acts.See the link on the major civil rights acts

In addition to this chart there is also legislation protecting the disabled and the aged. Civil rights became legal and enforceable under the equal protection clause of the 14th amendment Even though this provision passed it was interpreted by the conservative courts to still retain discrimination . The 14th amendment states the states cannot deny equal protections in their laws to favor one racial group over another. The post civil war amendments took control over the states in terms of what laws they can pass that are discriminatory in nature. This is another reason why and how federalism changed in America.

2. These rights are positive freedom rights where the government must enforce these rights using the agencies of government.
3. Parties can sue the government and private businesses that engage in discriminatory practices, unlike civil liberties where you can only sue governmental institutions. See the Civil Rights Act of 1964

The Civil Rights Act of 1964

President Lyndon B. Johnson considered civil rights his top legislative priority. Within months after he assumed office, Congress passed the Civil Rights Act of 1964, the most comprehensive legislative attempt ever to erase racial discrimination in the United States. Among its many provisions, the act:

• Entitled all persons to “the full and equal enjoyment” of goods, services, and privileges in places of public accommodation without discrimination on the grounds of race, color, religion, or national origin
• Established the right to equality in employment opportunities
• Strengthened voting rights legislation
• Created the Equal Employment Opportunity Commission (EEOC) and charged it with hearing and investigating complaints of job discrimination
• Provided that funds could be withheld from federally assisted programs that were administered in a discriminatory manner

President Johnson’s goal was a “great society.” Soon a constitutional amendment and a series of civil rights laws were in place to help him meet his goal:

• The Twenty-fourth Amendment, ratified in 1964, banned poll taxes in primary and general elections for national office.
• The Economic Opportunity Act of 1964 focused on education and training to combat poverty.
• The Voting Rights Act of 1965 empowered the attorney general to send voter registration supervisors to areas in which fewer than half the eligible minority voters had been registered. This act has been credited with doubling black voter registration in the South in only five years.
• The Fair Housing Act of 1968 banned discrimination in the rental or sale of most housing.

4. These rights protect certain groups from discrimination. The protected groups are as follows- race, color, creed, women, the elderly, sexual orientation, and the disabled. These groups can sue under various civil rights acts by going first to the Equal Employment Opportunities Commission ( a regulatory agency) to submit a complaint free of charge if they think they have been discriminated against. This is one manifestation of the value of positive freedom.
5. Equality is now part of our legal structure starting in 1868 onward. The federal government has an affirmative action program for federal employees and for government contracts. Some states under federalism have affirmative action programs. California in the 2020 elections still bans affirmative action programs.
6. The Civil Rights Movement is responsible for producing a greater degree of equality in schools, employment and housing. School segregation was banned by the supreme court in 1954. history of the Brown Decision of 1964
7. Plessy v. Ferguson Case- The supreme court was very conservative in 1896 they stated that equal protection means that segregation can exist as long as governments provide facilities equal in quality or about the same. What did equal protection mean in 1896?

This ruling was in effect until the Brown Decision, some 58 years. This meant that the states could legally practice segregation in public accommodations , housing, schools, and employment. The south had black codes and Jim Crow laws that were considered perfectly legal until the famous katzenbach v. McClung decision that we already looked at in an earlier module.(1964)

8 see all major civil rights laws in this linkMajor civil rights laws

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Use the lecture, links, and textbook to answer these questions.

1. Civil Rights are different than Civil Liberties. Explain positive and negative freedom as they apply to these different set of rights.
2. Define what a civil right is? Where do these rights appear in the constitution?
3. Can you sue private businesses for civil rights violations?
4. Copy the portions of the 14th amendment that prohibit the states from violating civil rights?

5 Go to the link on the Brown Decision and summarize the facts, laws, and ruling in this case?

6. The Civil Rights Act of 1964 prohibited specific forms of discrimination. What forms of discrimination were prohibited and what groups are protected under this law?
7. The equal protection clause of the 14th amendment provides that all laws must be applied equally regardless of race or ethnicity etc. What was the old equal protection standard as defined in the Plessy case? see the link or textbook for the answer.

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Discussion (need 200 words)

A controversial area involving civil rights v. religious liberty comes into play when these rights conflict with one another. Should a devoutly religious bakery owner be allowed to assert the religious liberty right when denying gay customers service? There is a supreme court ruling on this case. Read it and comment explaining your personal opinion.