Civil Rights: The “Black Predicament”

• America has a poor track record in dealing with minorities;

slavery, Trail of Tears, civil rights implementation
• Whites often felt threatened when blacks moved into
neighborhoods and schools; they responded by trying to quash
black suffrage and with intimidation.
• Two reasons why restrictions of African Americans continued
for so long:
• 1)The perceived cost of granting civil rights seemed to fall on
lower-class whites 2) Majoritarian politics worked to the
disadvantage of blacks.
• People often place greater importance on intangible costs
• White allies were few and far between, although civil
disobedience was helping the cause
• As a result, blacks had to take their case to the Courts
 Gibbons v. Ogden (1824)

– Aaron Ogden had filed suit in New York against

Thomas Gibbons for operating a rival steamboat
service between NY and NJ.
– Ogden had exclusive rights to operate steamboats in
New York under a state law, while Gibbons held a
federal license.
– Gibbons lost the case and appealed to the U.S.
Supreme Court, which reversed the decision.
– The Court held that the New York law was
unconstitutional, since the power to regulate
interstate commerce, which extended to the regulation
of navigation, belonged exclusively to Congress.
– In the 20th century, Chief Justice John Marshall's
broad definition of commerce was used to uphold
legislation protecting civil rights.
 The Promise of the 14th Amendment

• 2 ways of interpreting 14th—broadly or narrowly

• Broadly interpreted, Constitution is color blind; no
state law could treat Blacks and Whites differently
• Narrowly interpreted, blacks and whites were equal
only in contract law, serving on juries, but were
otherwise differentiable
• SC took the narrow view. It banned white-only juries,
but said hotels could remain segregated
 Plessy v. Ferguson (1896)
• On June 7, 1892, Homer Plessy was jailed for sitting in the "White"
car of the East Louisiana Railroad. Plessy was only one-eighths
black and seven-eighths white, but under Louisiana law, he was
considered black and therefore required to sit in the "Colored" car.
He refused and was arrested.
• Plessy went to court and argued, in Plessy v. The State of
Louisiana, that the Separate Car Act violated the Thirteenth and
Fourteenth Amendments to the Constitution. The judge at the trial
was John Howard Ferguson, a lawyer from Massachusetts who had
previously declared the Separate Car Act "unconstitutional on
trains that traveled through several states."
• In Plessy's case, however, he decided that the state could choose
to regulate railroad companies that operated only within LA.
• The Plessy decision set the precedent that "separate" facilities for
blacks and whites were constitutional as long as they were
"equal." The "separate but equal" doctrine was quickly extended to
cover many areas of public life, such as restaurants, theaters,
restrooms, and public schools.
• Not until 1954, in the equally important Brown v. Board of Education
decision, would the "separate but equal" doctrine be struck down.
 1896-1954 Civil Rights Movement

• NAACP forms in 1909—lobbied, publicized black

grievances, published newsletter, The Crisis, led by
DuBois
• Some nonviolent civil disobedience
• Congress conservative, no help there
• Courts were the battlefield
• Strategy:
1) Go after unequal schools
2) Go after not-obviously unequal schools
3) Get all school segregation banned
 Brown v. Board of Education of Topeka (1954)

• Facts: A series of cases went to the Supreme Court from the states
of Kansas, South Carolina, Virginia, and Delaware. Since all of the
cases involved the same basic problem-black minors, through their
legal representatives, seeking the aid of the courts in obtaining
admission to the public schools of their respective communities on
a nonsegregated basis-all were determined by one decision of the
Court. In the various states, the black children were of elementary
or high school age or both. Segregation requirements were on a
statutory and state constitutional basis except in Kansas where
only statutory provisions were involved.
• Issue: Does segregation of children in public schools solely on the
basis of race, even though the physical facilities and other
"tangible" factors may be equal, deprive the children of the
minority group of equal educational opportunities?
• Decision: 9-0, ignores Stare Decisis from Plessy case. Separate but
equal is NOT CONSTITUTIONAL
 Desegregation v. Integration

• Eisenhower used troops to enforce Brown

• But much segregation was not by law (de jure), but
rather was by fact (de facto) because of where
blacks and whites lived
• Integration only possible by bussing
• Big majority oppose bussing; also, “white flight”
because of bussing may result in schools becoming
even more segregated
• Congress has not followed public opinion; has been
contradictory and unable to pass legislation though
 Swann v. Charlotte-Mecklenburg (1971)
• Set guidelines for all subsequent cases involving school
segregation.
• Charlotte schools were segregated; District Court ordered
steps be taken. Supremes
• New guidelines:
• To violate the law, a school system, must, by law, practice,
or regulation, have shown an intent to discriminate
• The presence of all-white or all-black schools in an area with
a history of segregation is considered intent
• Remedy not limited to freedom of choice; racial quotas in
pupils or teachers, court ordered bussing is ok
• Not every school must reflect racial composition of a
community
 Congress Comes Around on
Civil Rights

• 4 Reasons why Congress finally changed its stance:

• Public Opinion changed
• Violent reactions to demonstrations portrayed by media
(firehoses, dogs, murders)
• JFK Assassination led to LBJ’s calls for a “Civil Rights Memorial”
to JFK
• 1964 elections gave Democrats complete control of Presidency
and Congress
• 19 southern Senators filibustered, but cloture was invoked, and
then came the Acts….
 Major Civil Rights Legislation

• 1957 Civil Rights Act: Set up Civil Rights Commission,

gave Atty General the power to seek injunctions—
federal court orders that tell someone to do something
or not do something
• 1960 Act: Federal Voting Referees, outlawed threats to
use interstate commerce to bomb
• 1964 Act: Outlaws discrimination (PERIOD) in public
and private accommodations—with certain exceptions.
Also made literacy tests tougher to sustain, gave
Attorney General the power to bring suit, outlawed pay
and hiring discrimination, and barred discrimination in
any activity receiving federal assistance
 Major Civil Rights Legislation

• Voting Rights Act of 1965: States must clear new laws with DOJ if
they are listed as potentially civil rights violators, must print
ballots in local minority languages. Also authorized appointment of
voting examiners who would require registration of all eligible
voters in areas where discrimination was found or less than 50%
of voting age residents were registered. Finally, it banned literacy
tests. Congress extended law to 2007.
• 1968 Civil Rights Act: a.k.a Housing Act, banned discrimination in
most housing (except private sales not using brokers). Also made
it a federal crime to use interstate commerce to incite a riot.
• 1972: Prohibited Sex Discrimination in education programs
receiving federal aid
• 1988 Discrimination: Changed Grove City College ruling…if any
part of a federally funded program gets aid, all parts must comply
• 1991: Easier to sue over job discrimination; government cannot
norm scores by race
 What about Sex Discrimination?
• By 1970s, Court had a choice between 2 standards:
Reasonableness and Strict Scrutiny. Currently Court is between
the 2.
• Civil Rights Acts of 1964 and 1972 apply to women and also to
private companies
• Men and women must become adults at the same age, be able to
buy beer at same age
• Laws providing different guidelines for statutory rape, widow
tax exemptions, military regulations, female draft exemptions
OK
• VMI case (1996): Women must be admitted
 Sexual Harassment
Two forms:

Quid pro quo makes an employer “strictly

liable”—liable even if they don’t know
about it

Hostile, intimidating work environment: Only

negligent employers are liable
 Affirmative Action
• Debate: Equality of Opportunity v. Results
• Courts subject any quota system created by state/local governments to “Strict
scrutiny” and require “compelling justification” for it
• The courts have said that classifying people on the basis of their race or
ethnicity is unreasonable. These are suspect classifications, and are subject to
strict scrutiny
• Quotas cannot be used without showing actual discrimination
• Statistics are not enough; must prove practices led to discrimination and identify
them
• Quotas under federal law given more deference (Section 5, 14 th Amendment
gives power to Congress to correct discrimination)
• Voluntary systems (in contracts) easier to justify
• Court not likely to permit racial preferences to allow whites to get laid off before
blacks
 Regents of the University of California v. Bakke (1976)

• Alan Bakke applied to Med School at UC-Davis.

Admission was denied.
• UC-Davis had set aside 16/100 slots for minorities
• Bakke’s test scores higher than some minority
applicants. He sued, claiming that UC-Davis’s policy
violated Title VI of the Civil Rights Act of 1964 and the
Equal Protection Clause.
• State courts ruled to admit him; university appealed
• State Supreme Court ruled policy was illegal but did not
admit Bakke
• Supreme Court ruled narrowly, granting admission to
Bakke, but not throwing out AA entirely.
 Adarand v. Pena (1995)

• In a 5-4 vote, SC eliminated differences between state

and national affirmative action
• Adarand claimed that the Federal government’s practice
of giving contractors a financial incentive to hire
economically disadvantaged subcontractors. Adarand
lost out on a contract.
• Adarand sued on basis of 5th Amendment’s Due Process
clause, “no arbitrary treatment”
• Classifications based on race must serve a “compelling
government interest.”
• Case remanded; new rule: strict scrutiny
 U-M Affirmative Action Cases

• 2 cases: Undergrad and Law School

• Gratz v. Bollinger and Grutter v. Bollinger
• Summary:
• Supreme Court upheld Bakke, but threw out undergrad point
system.
• Law School policy OK—diversity an acceptable goal.
• Standard: For governement to treat races differently, the policy
must pass a “strict scrutiny” test--and show a compelling
governmental interest that is narrowly tailored and
accomplished through the least restrictive means
 Gratz v. Bollinger (2003)
• In 1995, Jennifer Gratz applied to the University of Michigan's
College of Literature, Science and the Arts with an adjusted
GPA of 3.8 and ACT score of 25. In 1997, Patrick Hamacher
applied to the University with an adjusted GPA of 3.0, and an
ACT score of 28. Both were denied admission.
• The University uses race in making admissions decisions
because it serves a "compelling interest in achieving diversity."
• In addition, the University has a policy to admit virtually all
qualified applicants who are members of one of three select
racial minority groups - African Americans, Hispanics, and
Native Americans - that are considered to be
"underrepresented" on the campus.
• Concluding that diversity was a compelling interest, the District
Court held that the admissions policies for years 1995-1998
were not narrowly tailored, but that the policies in effect in
1999 and 2000 were narrowly tailored.
• Gratz and Hamacher petitioned the U.S. Supreme Court for a
writ of certiorari before Appeals Court judgment, which was
granted.
 The Decision in Gratz: Out of the
SC’s Mouth….
• We conclude, therefore, that because the
University's use of race in its current freshman
admissions policy is not narrowly tailored to achieve
respondents' asserted compelling interest in
diversity, the admissions policy violates the Equal
Protection Clause of the Fourteenth Amendment.
• We further find that the admissions policy also
violates Title VI and 42 U. S. C. § 1981.
• Accordingly, we reverse that portion of the District
Court's decision granting respondents summary
judgment with respect to liability and remand the
case for proceedings consistent with this opinion.
 The Law School Case: Grutter v. Bollinger (2003)

• In 1997, Barbara Grutter, a white resident of Michigan, applied

for admission to the University of Michigan Law School. Grutter
applied with a 3.8 undergraduate GPA and an LSAT score of
161. She was denied admission. The Law School admits that it
uses race as a factor in making admissions decisions because it
serves a "compelling interest in achieving diversity among its
student body."
• The Law School's admissions policy explains that "[t]here are
many possible bases for diversity admissions." For example, the
policy states that particular weight might be given to "an
Olympic gold medal, a Ph.D. in physics, the attainment of age
50 in a class that otherwise lacked anyone over 30, or the
experience of having been a Vietnamese boat person."
 Law School Case
• A trial on the specifics of the Law School admissions
process was held in early 2001. The District Court
concluded that the Law School's stated interest in
achieving diversity in the student body was not a
compelling one and enjoined its use of race in the
admissions process.
• On March 27th, Judge Friedman issued a decision finding
that the educational benefits of diversity were not a
compelling interest and that the specifics of the Law
School's policy were not "narrowly tailored" to that
interest. He issued an order that the Law School cease
considering race in its admissions process. University of
Michigan appealed
• On April 5th, the Court of Appeals issued a stay of the
District Court order while the appeal proceeded.
 The Court of Appeals……
• On December 13, 2000, Judge Duggan of the Court of Appelas
ruled without a trial and granted summary judgment in the
University's favor in the Gratz case. He found that the pursuit
of the educational benefits of diversity is a compelling
governmental interest, and that the University's current
admissions policy is fully constitutional.
• In reversing, the Court of Appeals held that Justice Powell's
opinion in Regents of the University of California v. Bakke, 438
U.S. 265 (1978), constituted a binding precedent establishing
diversity as a compelling governmental interest sufficient under
strict scrutiny review to justify the use of racial preferences in
admissions. The appellate court also rejected the district court's
finding that the Law School's "critical mass" was the functional
equivalent of a quota
• In a separate opinion, Duggan rejected the intervenors'
alternative defense of the policy.
• Supreme Court agrees to hear case on appeal—and undergrad
 The Law School Decision
• The unsuccessful applicants' statistical expert
testified that the relative odds of acceptance for
Native American, African-American, Mexican-
American and Puerto Rican applicants were
many times greater than for Caucasian
applicants and concluded that members of
these groups were "given an extremely large
allowance for admission."
• But Supreme Court upholds policy: Goals ok,
compelling governmental interest
 Shaw v. Reno (1993)
• To comply with §5 of the Voting Rights Act of 1965--
which prohibits a covered jurisdiction from
implementing changes in a "standard, practice, or
procedure with respect to voting" without federal
authorization--North Carolina submitted to the
Attorney General a congressional reapportionment
plan with one majority black district.
• The Attorney General objected to the plan on the
ground that a second district could have been created.
The State's revised plan contained a second majority
black district in the north central region. The new
district stretched approximately 160 miles along I-85
and, for much of its length, was no wider than I-85.
 More Shaw…………

• Five North Carolina residents, filed this action against state and
federal officials, claiming that the State had created an
unconstitutional racial gerrymander in violation of the Equal
Protection Clause.
• They alleged that the two districts concentrated a majority of
black voters arbitrarily, in order to create congressional districts
along racial lines. Supreme Court agreed and remanded the
case.
• Issue returned; justices still not satisfied that “compelling
interest” was met….districts were unlawful
• A covered jurisdiction's interest in creating majority minority
districts in order to comply with the non-retrogression rule
under §5 of the Voting Rights Act does not give it carte blanche
to engage in racial gerrymandering.
 Abrams v. Johnson (1997)

• Georgia legislature created 2 majority-black

districts
• Justice Department pressured, -> 3
• District Court declared that plan
unconstitutional
• GA legislature couldn’t agree on new plan;
District Court stepped in and drew its own
districts under Voting Rights Act of 1965
• Supreme Court upheld this action
 Disabled Americans
• More Americans are now classified as “disabled”
than ever before. Why?
• Identification
• Legal Benefits of being declared disabled
• Stigma gone
• Easier to be classified as disabled
• Legal battles began with Section 504 of the
Rehabilitation Act of 1972: No person may be
discriminated against because of handicap in any
program or activity receiving federal assistance
 1990 Americans with
Disabilities Act (ADA)
• Addresses 4 main areas: Employment, Public
Services, Public Accommodations,
Telecommunications
• Makes it illegal to discriminate in hiring, with
some exceptions (if you’re a paraplegic, you’re
not going to be a police officer)
• Requires businesses that serve the public to install
ramps, widen doorways, provides handicapped
parking spaces
• Critics: law costly, impedes business
 Homosexuals and the Supreme Court

• Supreme Court affirmed Georgia law that

banned homosexuality
• Supreme Court struck down a Colorado state
constitutional amendment that prevented
municipalities from passing laws giving
protection to people based on their sexual
orientation
• Supreme Court ruled that Boy Scouts may
ban homosexuals