Principles of democracy and the Constitution, all the way to civil liberties and equal protection
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Powerpoint_Chapter16_14thAmendmentEqualProtection.pptx14th Amendment and Equal Protection
The Evolution of Civil Rights
Civil Rights
Legal provisions emanating from the concept of equality
Issues involving the status of persons with shared characteristics who have historically been disadvantaged in some way
Fourteenth Amendment
Equal Protection Clause: “Nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.”
Congress (who drafted the amendment) was concerned primarily with the danger of the states (esp. in the South) imposing discriminatory laws.
Fourteenth Amendment cont…
Outlaws a denial of equal protection of the laws
Prohibits discrimination: any person within a state’s jurisdiction is entitled to be treated equitable, to be free from arbitrary and unreasonable treatment at the hands of state government
Equal Protection: General Observations
COMPETING VALUES in SOCIETY: FREEDOM, ORDER, LIBERTY
Does not forbid ALL discrimination. ALL law discriminates—certain interests over other interests --classifies you and favors certain people over others
Goal is to stamp out certain classifications—must have a rational basis at minimum
Equal Protection -2
Considerable philosophical disagreement about proper interpretation
Liberals= equality of results. Gov’t responsibility
Conservatives= equality of opportunity at the starting line
Equal Protection -3
Two elements to a violation
Must prove some form of unequal treatment
Not all discrimination is unconstitutional (ex. college admissions based on grades)
Must not be arbitrary and capricious, without a rational basis
There must be a state action
Three Tests of Equal Protection #1 STRICT SCRUTINY
Race is a “suspect classification”
a history of discrimination and immutable characteristics (discrete and insular minorities that have experienced a history of unequal treatment and lack of political power)
Any law or governmental action that uses race as a classification is presumed unconstitutional
Compelling government interest in the GOAL
Must show the regulation/law least restrictive way (means) to achieve the compelling government interest
Strict Scrutiny cont…
The burden is on the state to prove the law should be upheld.
The court has concluded that compelling state interest are rarely (if ever) served by treating people differently according to race.
Exception—Korematsu war time
Religion and nationality are also included in this category.
History of Racial Discrimination
Strauder v. West Virginia (1880)
“Separate but equal” era
Plessy v. Ferguson (1896)
According to the Court, separation did not constitute inequality under the 14h am.
Ushered in full-scale segregation in the southern and border states
Gong Lum v. Rice (1927): Chinese and school
Missouri v Gaines (1938): higher education
Skinner v. Oklahoma (1942): sterilization
Korematsu v. U.S. (1944)
History -2
Sipuel v. Board of Regents, OK (1948)
Shelly v. Kramer (1948)
Swett v. Painter (1950): A black man was allowed into the Texas Law School, but the Court refused to overturn Plessy
McLaurin v. Oklahoma State Regents (1950)
Hernandez v. Texas (1954): that the Fourteenth Amendment protects those beyond the two classes of white or Negro, and extends to other racial groups in communities
Basic Questions -2
Civil rights cases of 1883. The Court said only related to acts of government based on the language of the 14th Amendment.
Shelly v. Kramer (1948): “Restricted covenant.” Only sell to white people
WHO’S perpetuating the discrimination? The private individual is not reachable. Restrictive covenants are legal per se. BUT needed the court to intervene to carry out the order. State courts are now involved in enforcing the discrimination. May not do so. Turned private discrimination into public discrimination.
Racial Discrimination -2
Brown v. Board of Education (1954)
Most significant decisions of the 20th Century
Challenged official racial segregation in the nation’s primary and secondary public schools
The Court considered more than just physical inequality but weighed the psychological effect of racial segregation
Overturned Plessy doctrine
Brown v. Board -2
Asked attorneys to return the next year and argue the issue of remedy
Brown II
“with all deliberate speed”
Not too much impact but spurred the Civil Rights movement
School Desegregation
The Supreme Court gave district courts the broad power to implement desegregation
Teacher Placement
School construction and maintenance
Staff assignment
Funding equalization
Limits on District Court authority
The court must determine that a particular district has violated the Constitution (meaning no blanket policies for all school districts, such as bussing)
The remedy must be narrowly tailored to compensate for the violation
Basic Questions of Equal Protection
Who may not discriminate?
14th Amendment applies to the STATES
5th Amendment Due Process Clause applies to the federal government.
Any discriminatory action by a state found to be in violation of the Equal Protection Clause would also be a violation of the Fifth Amendment if engaged in by the federal government
Who may not discriminate? -3
Burton v. Wilmington Parking Authority (1961): The city rented some space in a parking garage and an adjacent coffee shop refuses to serve blacks. Involves the state.
Moose Lodge #107 v. Irvis (1972): Irvis was a black member of the Pennsylvania legislature and the Lodge refused to serve him because he was black.
Argued that the state issued liquor licenses and therefore the state was involved in enforcing the discrimination.
The Supreme Court rejected that argument because the involvement to the state was too remote.
Civil Rights Act of 1964
The most comprehensive civil rights statute ever.
Regulating discrimination in employment, education, and public accommodations
Placed restrictions on federal $ to ensure non-discrm. was being followed
COMMERCE CLAUSE of Article I, Section8
What type of discrimination is illegal?
De Jure: discrimination in written law. The law specifies white superiority/segregation.
De Facto: in FACT—took it off the books but still discriminated in actions.
There must be a pattern.
ex. Washington v. Davis (1976): The D.C. police department hired police officers and gave a civil service exam. 4x the number of blacks failed as the number of whites.
Court said there must be there must be evidence of intent.
What are the Remedies?
Regents of UC Davis v. Bakke (1978)
Race may be a factor when accepting applications from students, but it may not be the sole consideration for setting aside seats based on race.
Overall, quotas established by the federal government and Congress are okay but less okay if coming from states and localities.
Adarand v Pena (1995)
Federal Highway contracts to be given to socially and economically disadvantaged individuals."
The clause declared that "the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities...."
Is the presumption of disadvantage based on race alone, and consequent allocation of favored treatment, a discriminatory practice that violates the equal protection principle embodied in the Due Process Clause of the Fifth Amendment?
Adarand cont…
Yes. Overruling Metro Broadcasting (497 US 547), the Court held that all racial classifications, whether imposed by federal, state, or local authorities, must pass strict scrutiny review.
In other words, they "must serve a compelling government interest, and must be narrowly tailored to further that interest."
The Court added that compensation programs that are truly based on disadvantage, rather than race, would be evaluated under lower equal protection standards. However, since race is not a sufficient condition for a presumption of disadvantage and the award of favored treatment, all race-based classifications must be judged under the strict scrutiny standard.
Moreover, even proof of past injury does not in itself establish the suffering of present or future injury.
The Court remanded for a determination of whether the Transportation Department's program satisfied strict scrutiny
Richmond v. Croson (1989)
In 1983, the City Council of Richmond, Virginia adopted regulations that required companies awarded city construction contracts to subcontract 30 percent of their business to minority business enterprises.
The J.A. Croson Company, which lost its contract because of the 30 percent set-aside, sued the city.
Question: Did the Richmond law violate the Equal Protection Clause of the Fourteenth Amendment?
Croson cont…
YES. In a 6-to-3 decision, the Court held that "generalized assertions" of past racial discrimination could not justify "rigid" racial quotas for the awarding of public contracts.
Justice O'Connor's opinion noted that the 30 percent quota could not be tied to "any injury suffered by anyone," and was an impermissible employment of a suspect classification.
O'Connor further held that allowing claims of past discrimination to serve as the basis for racial quotas would actually subvert constitutional values: "The dream of a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs."
Gratz v. Bollinger (2003)
Did the University of Michigan’s use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964?
Gratz v. Bollinger -2
Yes. Chief Justice William H. Rehnquist delivered the opinion for the 6-3 majority.
The Court held that the OUA’s policies were not sufficiently narrowly tailored to meet the strict scrutiny standard. Because the policy did not provide individual consideration but rather resulted in the admission of nearly every applicant of “underrepresented minority” status, it was not narrowly tailored in the manner required by previous jurisprudence on the issue.
Gratz v. Bollinger -3
NOTE: Justice Clarence Thomas wrote a separate concurring opinion in which he argued that the Equal Protection Clause prohibits any racial discrimination for the purposes of higher education admission
Equal Protection and Gender Discrimination
History of Sex-Based Categorizations
Bradwell v. Illinois (1873)
Bradwell was denied a license to practice law solely because of her sex.
The Supreme Court upheld the state’s action
“The natural power and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”
Minor v. Happersett (1875): denied women the right to vote
Muller v Oregon (1908): state law limiting the # of hours women can work.
History of Sex-Based Categorizations -2
Goesaert v. Cleary (1948)
Declared a Michigan law valid that barred a woman from becoming bartender, unless her family owned the bar.
Reed v. Reed (1971)
Idaho law: In the competing interest over estate inheritances, “males must be preferred to females”
The S.Ct. ruled that laws containing overbroad, sex-based assumptions violate the equal protection clause.
Rational basis test was used rather than strict scrutiny.
Three Tests of Equal Protection #2 Important justification
History -3
Craig v. Boren in 1976.
Oklahoma law= males had to be 21 years old to drink and females only 18 yrs. old.
The state argued that women mature faster, and men have a higher rate of drinking and driving.
The Court was not persuaded by the statistics and gave heightened scrutiny to a gender classification.
Craig v. Boren cont.…
The government must show an important (more than rational and less than compelling) interest. The burden is on the shoulders of the state to demonstrate a strong interest in writing such a law based on a gender distinction
Ruth Bader Ginsburg as attorney for Craig
This case motivated the movement for the ERA: Equal Rights Amendment
Craig v. Boren -2
Problem: males had no history of discrimination therefore no strict scrutiny
The strict scrutiny advocates had to compromise.
Under the Court’s Equal Protection jurisprudence, which requires “an exceedingly persuasive justification” for a gender-based classification, it remains an open question whether “classification based on gender is inherently suspect.”
Frontiero v. Richardson (1973):
Did a federal law, requiring different qualification criteria for male and female military spousal dependency, unconstitutionally discriminate against women thereby violating the Fifth Amendment's Due Process Clause?
Federal law provided that the wives of members of the military automatically became dependents; husbands of female members of the military, however, were not accepted as dependents unless they were dependent on their wives for over one-half of their support. Frontiero's request for dependent status for her husband was turned down.
US v. Virginia (1996)
VMI or the “Citadel” was a publicly funded institution of higher learning with a single-sex admissions policy.
Virginia tried to create a parallel women-only institution, but the courts concluded that VWIL was not equal
SCOTUS, while not wanting to compare sex discrimination to racial discrimination, said the burden is on the state to give an “exceedingly persuasive” reasoning for the classification
The concurring and dissenting opinions pointed out that “exceedingly persuasive is beyond the intermediate scrutiny
Rostker v. Goldberg (1981)
Whether drafting men into the armed forces and not women violates Equal Protection
Congress’s power to raise and maintain a military is very clear in the Constitution
Not only is their power in this area broad but clearly their expertise far surpasses that of the courts (“lack of competence on the part of the Court is marked.”)
Rostker v. Goldberg cont…
Congress debated extensively on this issue and determined that there was a compelling reason; it wasn’t based on a traditional, stereotypical notion of women
Women are ineligible for combat and therefore are not drafted
Dissent: The heightened scrutiny test should be used. The government's task in this case is to show that excluding women from registration substantially furthers the goal of preparing for a draft of combat troops.
Sexual Harassment
Meritor Savings Bank v. Vinson (1986)
Vinson claimed that she had been sexually harassed by her boss who continually demanded sexual favors for her
The Court unanimously supported Vinson’s claim
Ruling: The Ct. held that sexual harassment is actionable under the Civil rights Act of 1964. Do not have to prove loss of any tangible or econ. benefits.
Hostile work environment
Employer may be responsible as well
Harris v. Forklift (1993)
Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from April 1985 until October 1987. Charles Hardy was Forklift's president.
The Magistrate found that, throughout Harris' time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendos.
Hardy told Harris on several occasions, in the presence of other employees, "You're a woman, what do you know" and "We need a man as the rental manager"; at least once, he told her she was "a dumb ass woman."
Again in front of others, he suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise."
Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up
He made sexual innuendos about Harris' and other women's clothing
Lower court in Harris
The court found that some of Hardy's comments "offended [Harris], and would offend the reasonable woman," but that they were not "so severe as to be expected to seriously affect [Harris'] psychological well being.
A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person's work performance.
Required PROOF of Severe Psychological Damage
Harris: Supreme Court conclusions
There is a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.
Discrimination and Sexual Orientation
Different than discrimination based on race and/or sex
There is no law that explicitly protects homosexuals.
The US govt. itself has laws that discriminate against gays (Defense of Marriage Act, 1996)
Also refuse to prohibit job discriminate on the basis of sexual orientation
Broadening Civil Rights: Sexual Orientation
Bowers v. Hardwick (1986)
Gains in high culture and mass entertainment
Increasing tolerance in public attitudes
Little national legislative success
Some success at the state and local levels
The biggest advances have been in the courts
Romer v. Evans (1996): State laws designed to deny rights to homosexuals are unconstitutional (Colorado amendment)
Lawrence v. Texas (2003): overturned Bowers
Discrimination & Sexual Orientation cont…
Romer v. Evans (1996)
Challenged the Colorado State statute, which made sexual orientation an impermissible ground for discrimination claims
The Court ruled (6-3) that this was a violation of the Equal Protection Clause of the 14th Amendment.
A strong statement against laws that single out homosexuals for discriminatory treatment. RATIONAL BASIS
Three Tests of Equal Protection #3 Reasonableness/Rational Basis Test
Rational Basis Test
Law must not be capricious or arbitrary
Law is presumed CONSTITUTIONAL
The test is reasonableness.
Burden of proof is on the petitioner who is challenging the law.
Rational Basis Test -2
Deference to legislature—assume constitutional. The plaintiff must prove that the age classification/regulation based on age is capricious and arbitrary. Burden of Proof
What about insurance? Not a state but a business. Only public discrimination is restricted, not private.
Other Forms of Discrimination
Economic Status
Economic disadvantage is no longer a justification for denying a person full political and social rights
The Court’s test depends on which right is being violated
Shapiro v. Thompson (1969), a law that required welfare recipients to have lived in the state for one year.
The Court rejected this stipulation (rational basis test)
Other forms of Discrimination: Poverty
Polling taxes struck down
San Antonio Indep. School District v. Rodriguez (1973): The way some districts are funded disadvantages the poor
The Court ruled that the disparities are not invidious discrimination
Poor are not a suspect class=Rational basis test and education is not a fundamental right under the Constitution
Broadening the Civil Rights: The Elderly and Disabled
Several federal and state laws now bar mandatory retirement, and the courts have begun to strike down hiring practices based on age unless a compelling reason can be demonstrated
Americans with Disabilities Act (1990)
prohibits discrimination and requires reasonable efforts to increase accessibility in public facilities and places of employment
PGA Tour v. Martin 2001
Casey Martin has a degenerative circulatory disorder that prevents him from walking golf courses and constitutes a disability under the Americans with Disabilities Act of 1990 (ADA).
When Martin made a request to use a golf cart for the duration of the qualification tournament onto the professional tours sponsored by PGA Tour, Inc., PGA refused.
1) Does the Americans with Disabilities Act of 1990 provide access to professional golf tournaments by a qualified entrant with a disability? YES
2) May a disabled contestant be denied the use of a golf cart because it would "fundamentally alter the nature" of the tournaments to allow him to ride when all other contestants must walk? NO
Disabled -3
ADA was dramatically narrowed by the Supreme Court in 2001 in Toyota Manufacturing, Kentucky, Inc. v. Williams
SCOTUS unanimously agreed that Ms. Williams continuing ability to perform such tasks as brushing her teeth, bathing and some household chores disqualified her from fitting within the ADA’s definition of disability, and therefore precluded her from claiming a right to reasonable accommodation from her employer.
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