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Government By the People

Twenty-sixth Edition, 2018 Elections and Updates Edition

Chapter 15

Civil Rights

Learning Objectives

15.1 Explain why the concept of equality is integral to our understanding of civil rights (Structure).

15.2 Explain the concept of citizenship and the rights of U.S. citizens (Structure).

15.3 Compare and contrast the efforts of various groups to obtain equal protection of the law (Action).

15.4 Evaluate the standards by which civil rights are protected today (Structure and Impact).

15.5 Trace the evolution of voting rights and analyze the protections provided by the 1965 Voting Rights Act (Structure).

15.6 Describe congressional legislation forbidding discrimination in housing, employment, and accommodations (Structure).

15.7 Evaluate the history of school integration and the current state of affirmative action (Impact).

15.1 Equality and Equal Rights (Structure)

Civil rights

The right to be free from irrational discrimination

U.S. Constitution

Ensures that government does not discriminate against us

Grants the national and state governments powers to protect civil rights

Different views on equality

Equal opportunity

Equality between groups

Affirmative action

In contemporary American society, the phrase “all men are created equal” has many interpretations, one of which is the concept of equality of opportunity for all citizens, regardless of race, ethnic origin, religion, sex, or sexual orientation. While individualism is very much a part of the American creed, more recently attention has focused on the equality between groups. A great deal of political attention is focused on eliminating existing inequalities between both ethnic groups and the sexes.

15.2 Citizenship and the Rights It Affords (Structure)

Naturalized Citizens

Rights of U.S. Citizens

Rights of Lawful Permanent Residents

In this first section we will consider the rights of U.S. citizens and lawful permanent residents.

Naturalized Citizens

Naturalization

Congress determines requirements

State or federal court (as well as the U.S. Citizenship and Immigration Service) can grant U.S. citizenship

Dual citizenship

Each country has its own citizenship criteria

For children born abroad to U.S. citizens

Right of expatriation

To be eligible for naturalization, a person must be over 18, lawfully admitted for permanent residence, and have resided in the United States for at least five years and in the state for at least six months. Also any state or federal court (as well as the U.S. Citizenship and Immigration Service) can grant U.S. citizenship.

Each nation determines its own criteria for citizenship. It’s quite possible (and not at all uncommon) for a person to hold citizenship in more than one country. Dual citizenship is not unusual, especially for people from nations that do not recognize the right of individuals to renounce their citizenship, called the right of expatriation.

TABLE 15.1 Official Wording of U.S. Citizenship and Immigration Services Requirements for Naturalization

An applicant for naturalization must:

1. Be at least age 18.

2. Be lawfully admitted to the United States for permanent residence and have resided in the United States for at least five years and in the state for the previous three months.

3. File a petition of naturalization with a clerk of a court of record (federal or state) verified by two witnesses.

4. Be able to read, write, and speak English.

5. Possess a good moral character.

6. Understand the fundamentals of U.S. history and the form and principles of the U.S. government.

7. Assert support for the U.S. Constitution.

8. Take an oath of allegiance to the United States.

Here we can see a full list of requirements for citizenship. In addition to the residency requirements we just mentioned, some less tangible requirements focus on character.

Naturalization Ceremony

During this 2010 naturalization ceremony sponsored by U.S. Forces-Iraq, in which 50 service members took the oath of allegiance, U.S. Army Pfc. Yiraldy Aloma, a native of Panama City, Panama, wipes a tear from her eye.

Rights of U.S. Citizens

States confer most important rights

Residency requirements

Rights of national citizenship

Freedoms to

Travel

Petition the government

Vote

War-time rights can be restricted

World War II internment of Japanese Americans

Status of “enemy combatants” in war against international terrorism

Most rights come from state citizenship. The rights of national citizenship have never been clearly specified other than to state that citizens have the freedoms to travel, petition the government, and vote. State citizenship confers the most important rights.

Rights during wartime can be restricted. The Supreme Court upheld the World War II internment of Japanese Americans and has approved the use of military tribunals to try captured foreign saboteurs who were held abroad. The civil liberties guaranteed by the Bill of Rights, however, cannot be abridged.

In the war against international terrorism, President George W. Bush issued orders declaring U.S. citizens “enemy combatants” for plotting with the Al-Qaeda network and authorized their detention, along with that of captured foreign nationals, in military compounds without counsel or access to a court of law. However, even in these cases, prisoners have a right to have their detention reviewed, and the Court’s decision in Boumediene v. Bush (2008) reinforced this right.

Rights of Lawful Permanent Residents

Noncitizens may be expelled or detained

Noncitizens enjoy fundamental freedoms

Speech, religion, due process, etc.

Noncitizens can be denied benefits and employment

Noncitizens may expelled from the country for minor infractions or detained during deportation hearings. However, all people are protected under the Constitution and have the right to due process of law, freedoms of speech and religion, and equal protection under the laws.

Both Congress and the states are empowered to withhold certain benefits, such as welfare or other federal assistance to noncitizens. While the Supreme Court has approved laws barring noncitizens from certain jobs, it has held that children of illegal immigrants have the right to attend public schools.

15.3 The Quest for Equal Justice (Action)

Racial Equality

Women’s Rights

Hispanics

Asian Americans

Native Americans

At the time of the nations’ founding, the rights of citizenship pertained only to a certain segment of society. Over time, citizenship rights have expanded to include most of the groups discussed in this section. The struggle for these rights involved the entire American political and social system, and evolved through demonstrations, legal challenges, and occasionally, violent confrontations.

Racial Equality

Segregation and white supremacy

Post-Civil War era: discrimination and violence against African Americans

Slow government response

1930s: Court challenges to segregation began

1940s-1950s: executive actions

A turning point

1950s-1960s: the civil rights movement

Civil Rights Act (1964)

Despite the passage of the 13th Amendment, which ended slavery, and the guarantees of due process and voting rights established in the 14th and 15th amendments, it took almost 90 years for civil rights legislation to have any palpable social effect.

The end of Reconstruction and an apathetic Supreme Court left many southern African-Americans with rights in name only. For most of the late 19th and early 20th centuries, a white supremacy dominated the South, barring African-Americans from voting, holding certain jobs, or attending certain schools. Segregated public facilities were the norm, and lynching was not uncommon.

The years from 1920 to 1940 were marked by a migration of many African-Americans from the South to urban centers in the North. In these cities, African-Americans found political power in the ballot box and were able to create a middle class of citizens opposed to segregationist policies.

Legal challenges began in the 1930s, but it was not until 1957 and Brown v. the Board of Education that segregation in public schools was deemed unlawful. The Armed Forces and federal government were desegregated during the Truman administration, and during the Eisenhower administration, Congress passed the 1957 Federal Civil Rights Act, which made it a crime to intimidate or threaten African Americans exercising their right to vote.

President Lyndon B. Johnson made civil rights legislation his highest priority, eventually signing into law the Civil Rights Act of 1964, which forbids discrimination on the basis of race, color, religion, sex, or nationality

Congressman John Lewis, then the chair of the Student Nonviolent Coordinating Committee, walked with other civil rights activists in a 1965 march across the Edmund Pettus Bridge in Selma, Alabama. When Obama was elected president in 2008, Lewis remarked, “Barack Obama is what comes at the end of that bridge in Selma.”

Civil Rights Protestors

In May 1963, Birmingham, Alabama law enforcement officers used police dogs and fire hoses to attack protesters seeking to desegregate the city.

Women’s Rights

Suffrage movement

Started as a state-by-state movement

19th Amendment (1920)

Equal Rights Amendment (ERA)

Failed to be ratified

Civil Rights Act

Prohibits sex discrimination

Expanded to include workplace sexual harassment

Glass ceiling still exists

The fight for women’s suffrage was launched at the Seneca Falls Women’s Rights Convention in 1848. The movement came to a halt with the Civil War, but in the decades that followed, the women’s suffrage movement was well underway. Success at the state level led to a more concerted effort in Washington, and by 1920, the 19th Amendment was ratified, allowing qualified women to vote, although many state (and federal) laws still denied equal pay, rights, or benefits.

Many of these inequities were dealt with through interpretations of the Civil Rights Act, which bars sex discrimination. The Equal Rights Amendment was a controversial outgrowth of the women’ s movement in the 1960s; it failed to garner enough support for ratification.

In the 1980s, the Court expanded definitions of sex discrimination to include sexual harassment in the workplace. While evidence of a “glass ceiling” preventing women’s advancement in large corporations still exists, women have made major progress in education and employment in the last half-century.

FIGURE 15.1 Percentage of Bachelor’s Degrees Awarded by Sex

Source: Digest of Education Statistics, 2012, Table 310. National Center for Education Statistics. Data updated by the authors using Table 301.10 in the 2013, 2014, and 2015 reports. https://nces.ed.gov/programs/digest/d12/tables/dt12_310.asp.

What factors might affect the variation in men’s college attendance from the 1920s through the 1950s?

Hispanics

Suspicion of Hispanic immigrants

1954 “Operation Wetback”

Deportations at record highs in recent years

Immigration legislation in the states

Arizona

California

Difficulty translating population numbers in political clout

Throughout U.S. history, new waves of immigrants, especially those not white or English speaking, have been met with suspicion by many native-born citizens. Such is the case with many Hispanic-Americans, especially those from Mexico. Obstacles such as law and custom have often combined to deny these groups equal rights.

The illegal immigration issue is decidedly more complex. Mexicans crossing the border illegally have created problems for both the Mexican and American governments. In 2010 the U.S. Supreme Court struck down an Arizona law’s provision making it a crime to fail to carry immigration documentation, but in 2012, the Court upheld the same law’s provision requiring state law enforcement officers to check the immigration status of individuals they stop for a legitimate purpose.

Hispanics have not always been able to translate their numbers into comparable political clout because of political differences among them and because many are not citizens or registered to vote.

Asian Americans

Chinese Americans

Chinese Exclusion Act (1882)

Immigration and Nationality Act (1965)

Japanese Americans

Early 20th century laws against owning land, attending school

Internment during WWII

Asian immigrants (and Asian Americans) have encountered discrimination since mid-19th century America. Laws like the Chinese Exclusion Act and the Naturalization Act decreased the immigration and rate of citizenship for most Asians. The former was not repealed until World War II, and the latter was replaced by amendments to the Immigration and Nationality Act, which equalized immigration criteria and opportunities for naturalization across race. Most Chinese-Americans today have been incorporated into greater American society.

Japanese Americans have also faced discrimination. In 1906, San Francisco excluded all Chinese, Japanese, and Koreans from public schools. When the Japanese attacked Pearl Harbor in 1941, Japanese Americans on the West coast were sent to internment camps. The Supreme Court dismissed legal challenges to the internment on the basis of national security interests in Korematsu v. United States.

Native Americans

Forcibly moved to reservations

Indian Removal Act

American Indian Movement

Poverty and high unemployment

Discrimination against Native Americans predates U.S. history in North America to the colonial period. Under the Indian Removal Act in 1830, Native Americans were pushed off their lands as whites migrated west.

Following the end of the Indian Wars at the end of the 19th century, most Native Americans were forced to live on reservations. It was not until the early 20th century that Native Americans achieved U.S. citizenship. Most Native Americans possess dual citizenship, both that of the United States and of their respective tribe.

Beginning in the late 1960s and early 1970s, activists and organizations, such as the American Indian Movement, have protested discrimination against Native Americans in housing, employment, and health care.

While many circumstances for Native Americans have not yet changed, some progress has been made in addressing the glaring inequities which exist through public awareness and court action. However, Native Americans continue to face discrimination, and poverty and unemployment rates on the reservations remain high.

15.4 Equal Protection of the Laws: What Does It Mean? (Structure and Impact)

Constitutional Clauses

Constitutional Classifications and Tests

Constitutional Clauses

Equal protection clause

14th Amendment

Limits state governments

Due process clause

5th amendment

Limits the national government

Prohibition on unreasonable classifications

The two instruments that establish many of the civil rights at the federal and state levels are, respectively, the 5th and 14th Amendments to the U.S. Constitution. Specifically, the “due process” clause of the 5th Amendment prohibits the federal government from depriving any person of life, liberty, or property without the due process of law. The “equal protection” clause of the 14th Amendment forbids any state from denying anyone the equal protection of its laws.

In its interpretations of the Constitution, the Supreme Court has acknowledged the need to differentiate between levels of discrimination, or classifications, which are considered “reasonable” and “unreasonable.” In general, a classification is unreasonable when there is no relationship between the classes it creates and permissible governmental goals.

We will examine these classifications, and the tests that the Court uses to determine the constitutionality of laws, in this section.

Constitutional Classifications and Tests (1 of 2)

The rational basis test

Suspect classifications and strict scrutiny

Quasi-suspect classification and heightened scrutiny

The rational basis test is a standard test to determine whether a law is constitutional. A law is considered constitutional as long as it meets a reasonable government interest. In these occasions, it falls to the challenger to prove the law’s unreasonableness.

The strict scrutiny test shifts the onus to the government, which must provide a “compelling governmental interest” for a discriminatory classification and indicate that there are no other options to achieve the goals of the act.

A suspect classification is a form of discriminatory separation which subjects victims to extremely unequal treatment, such as those that leave an individual or group politically powerless. The Court applies the strict scrutiny test to suspect classifications.

Similarly, the heightened scrutiny test, which was first used in 1971, requires the government to indicate that the classification serves “important governmental objectives.”

Constitutional Classifications and Tests (2 of 2)

Poverty and age

Sexual orientation

Fundamental rights and strict scrutiny

There has been a considerable amount of legal debate regarding the classifications of poverty and age. The issue of poverty classification often arises in the context of equality in school spending, while age classification, in general, has been deemed a state, rather than federal, issue.

Recent cases before the Supreme Court have raised the profile of the discrimination of sexual orientation. In 2013, the U.S. Supreme Court struck down the federal Defense of Marriage Act (DOMA) on the basis that states are responsible for defining marriage. Thus, if the state recognized same-sex marriage, the federal government would do so as well.

Following this decision, proponents of marriage equality began challenging a number of state same-sex marriage bans in federal district courts. In Obergefell v. Hodges, the Court ruled that the due process and equal protection clauses of the 14th Amendment require states to allow same-sex couples to marry and to recognize same-sex marriages performed in other states.

Fundamental rights are those which are explicitly or implicitly guaranteed by the Constitution, such as the right to travel or vote; discrimination of these rights is held to strict scrutiny before the Court.

15.5 Voting Rights (Structure)

Protecting Voting Rights

The Voting Rights Act of 1965

While the individual states are charged with determining voting qualifications and the manner in which elections are carried out, the federal government has considerable say as to certain aspects of federal elections, such as establishing a uniform day for all states to hold elections for members of Congress and presidential electors.

The discrimination of voting rights, especially against African Americans in the South, was a major issue of the civil rights movement in the 20th century. Literacy tests and “white-only” primaries were two ways used to disenfranchise African Americans.

In this section, we will learn how the voting rights of African Americans were eventually protected a century after the Civil War.

Protecting Voting Rights

Changes in the 1940s

White primaries struck down

Changes in the 1960s

Prohibition on racial gerrymandering

Elimination of the poll tax

Circumstances began to change during the 1940s as the result of growing political power of African Americans in the cities (and due to a looming labor shortage in the coming war), as well as the attitudes of the Roosevelt administration and an increasingly liberal Supreme Court.

In Smith v. Allwright (1944), the Court declared the white primary unconstitutional. Later, it struck down other methods of vote suppression.

Racial gerrymandering, the drawing of election districts to ensure that African Americans would be a minority in all districts, was declared unconstitutional in 1960, followed by the 24th Amendment (and subsequent rulings on the 14th) that prohibited the use of poll taxes.

The Voting Rights Act of 1965

Codified Supreme Court decisions of the 1950s

Prohibition on denial of voting rights based on race or color

Forbids threats or intimidation

Preclearance provision

Department of Justice must review changes in voting practices that may dilute minority voting power

Supreme Court decision in 2013 invalidated section related to preclearance

The major piece of legislation that codified Court activity regarding discrimination of voting rights was the landmark 1965 Voting Rights Act, which was subsequently renewed in 1982 and 2006. This act prohibits voting qualifications or standards that result in a denial of the right of any citizen to vote on account of race or color. Individuals are also protected from threats or intimidation to dissuade voting.

In 2009, the Supreme Court upheld the preclearance provision, but signaled that the requirement must be justified based not on historical evidence of discrimination, but on current needs. Then, in 2013, the Court invalidated Section 4 of the Act, which contained the formula used to identify states and localities required to undergo preclearance.

Until Congress develops a new formula, the prospects for which are dim, no states or localities are required to get Justice Department pre-approval for changes that might well dilute minority voting power.

Table 15.2 Major Civil Rights Laws (1 of 2)

Civil Rights Act, 1957	Makes it a federal crime to prevent persons from voting in federal elections
Civil Rights Act, 1964	Bans discrimination in employment or in public accommodations on the basis of race, color, religion, sex, or national origin; created the Equal Employment Opportunity Commission
Voting Rights Act, 1965	Authorizes the appointment of federal examiners to register voters in areas with a history of discrimination
Age Discrimination in Employment Act, 1967	Prohibits job discrimination against workers or job applicants ages 40 through 65 and prohibits mandatory retirement
Fair Housing Act, 1968	Prohibits discrimination on the basis of race, color, religion, or national origin in the sale or rental of most housing

Table 15.2 Major Civil Rights Laws (2 of 2)

Title IX, Education Amendment of 1972	Prohibits discrimination on the basis of sex in any educational program receiving federal financial assistance
Rehabilitation Act, 1973	Requires that recipients of federal grants greater than $2,500 hire and promote qualified handicapped individuals
Fair Housing Act Amendments, 1988	Gives the Department of Housing and Urban Development authority to prohibit housing bias against the handicapped and families with children
Americans with Disabilities Act, 1990	Prohibits discrimination based on disability and requires that facilities be made accessible to those with disabilities
Civil Rights Act, 1991	Requires that employers justify practices that negatively affect the working conditions of women and minorities or show that no alternative practices would have a lesser impact; also established a commission to examine the “glass ceiling” that keeps women from becoming executives and to recommend how to increase the number of women and minorities in management positions.

Which civil rights laws protect against age discrimination? Are there protections against gender discrimination?

15.6 Rights to Equal Access: Accommodations, Jobs, and Homes (Structure)

Civil Rights Act of 1964 and Places of Public Accommodation

Civil Rights Act of 1964 and Employment

Equal Employment Opportunity Commission (EEOC)

The Fair Housing Act and Amendments

Following the Reconstruction period, the Supreme Court made several decisions upholding legalized segregation and Jim Crow laws, most famously in Plessy v. Ferguson. This decision gave birth to the “separate, but equal” doctrine, which, in practical terms and conditions, was highly discriminatory and unequal toward African Americans.

In the 1960s, congressional action and the Court’s interpretation of the commerce clause of the U.S. Constitution to legitimize legislation, culminated in the 1964 Civil Rights Act, which made public discrimination based on color, religion, or national origin a federal crime.

Discrimination in employment practices (with a few exceptions) was also banned under the Act; this protection was extended to include sexual discrimination or harassment, as well. The body that enforces this part of the act is the Equal Employment Opportunity Commission (EEOC).

Segregation in housing continues to be an issue. Beginning in the 1940s and culminating with the 1968 Fair Housing Act, discrimination in housing was forbidden. Several states reinforce this act with anti-discriminatory legislation, which extends protection to sexual orientation. However, the Justice and Housing and Urban Development departments still investigate allegations of housing discrimination toward African Americans and Hispanics.

15.7 Education Rights (Impact)

The End of “Separate but Equal”: Brown v. Board of Education

From Segregation to Desegregation—But Not Yet Integration

The Affirmative Action Controversy

African Americans, most prominently the National Association for the Advancement of Colored People’s (NAACP) Legal Defense Fund (LDF), began filing lawsuits challenging the “separate but equal” doctrine in the late 1930s. The LDF was integral in proving the inequalities which existed throughout the educational system, particularly at the higher levels.

In this section, we will trace the demise of discrimination from Brown through today’s affirmative action programs in higher education.

The End of “Separate But Equal”: Brown v. Board of Education

Brown v. Board of Education

Decision based on the 14th Amendment

Instigated school desegregation

Title VI enforcement

Authority to withhold all federal funding to schools, school districts, or states practicing discrimination

In 1954, the LDF’s efforts were instrumental in the reversal of Plessy v. Ferguson. The Supreme Court in Brown v. the Board of Education found that separate facilities for education were inherently unequal. The Court based their unanimous opinion on the equal protection clause of the 14th Amendment and, a year later, ordered the desegregation of schools.

Reluctance to comply with the Court’s order led the president and Congress to seek stricter enforcement of anti-discriminatory policy through Title VI of the Civil Rights Act of 1964. This provision gave the government the authority to withhold all federal funding to schools, school districts, or states practicing discrimination.

Brown v. Board of Education

Thurgood Marshall (center), George C. E. Hayes (left), and James Nabrit Jr. (right) argued and won Brown v. Board of Education of Topeka before the Supreme Court in 1954.

From Segregation to Desegregation—But Not Yet Integration

Court-ordered busing

De jure vs. de facto segregation

1990s: Return of school controls to states

The process of integrating the schools was monitored under court supervision to comply with legal standards. Busing students to abide by court desegregation orders proved to be unpopular and, in many cities, such as Boston, triggered violent protests.

The Court regularly qualified its decisions by acknowledging the distinction between de jure segregation, segregation imposed by law, and de facto segregation, segregation that arises as a result of social and economic conditions.

Supreme Court enthusiasm for school desegregation programs waned in the 1990s, and significant control over school systems was returned to the states; this mirrored public opinion at the time. While this has resulted in the loss of progress in terms of desegregation, some communities have attempted to increase integration through assignment plans based on socio-economic factors, rather than race.

The Affirmative Action Controversy (1 of 2)

Affirmative action programs

Target consequences of discrimination

Critics call reverse discrimination

University of California Regents v. Bakke

Supreme Court declared racial quotas unconstitutional

Affirmative action programs are designed to combat the consequences of discrimination. They have proven to be extremely controversial. In 1978, the Court ruled in University of California Regents v. Bakke that special admissions programs for minorities were unconstitutional because they created a quota, a set number of admissions from which whites were excluded solely because of race.

However, it did qualify the decision by stating that in the “compelling interest” of maintaining student diversity, certain attributes, such as race or ethnic background, could be considered among several other factors in determining acceptance standards.

The Affirmative Action Controversy (2 of 2)

2003 re-affirmation of Bakke

State policies in flux

2015 University of Texas case

Court narrowly upheld affirmative action

Importance of diversity in education

The Bakke decision went unchallenged for several years. The Court re-emphasized its opinion in 2003 through two cases in which the University of Michigan and its law school were attempting to diversify its student population.

In 2014, the Court upheld the Michigan constitutional amendment barring affirmative action in university admissions. That decision went a step further and illustrates that the Court is willing to defer to a political determination not to use affirmative action to increase diversity.

In 2015, the Court reviewed the affirmative action policy at the University of Texas. With only seven justices participating (due to Justice Scalia’s death and Justice Kagan’s recusal in the case), the Court narrowly upheld the university’s affirmative action policy.

Affirmative Action Protest

Americans debate whether affirmative action is the best way to address the issue of past racial and ethnic quotas.

Photo Credits

423: Bob Andres/Atlanta Journal‑Constitution/TNS/Newscom; 427: 615 collection/Alamy Stock Photo; 430: National Archives/Hulton Archive/Getty Images; 431: Bill Hudson/AP Images; 432: Francis Miller/The LIFE Picture Collection/Getty Images; 436: Carl Mydans/The LIFE Picture Collection/Getty Images; 440: Andrew Harnik/AP Images; 445: AP Images; 447: Danny Moloshok/AP Images; Melanie Maxwell/The Ann Arbor News/AP Images

HW HELP DUE FRIDAY

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