Module 3
Civil Rights
A. Race and Civil Rights
In 1830, Congress passed a law requiring all Indians (they were so called in the
law) east of the Mississippi River to move to the Indian Territory west of the river, and
the army set about implementing it. In the 1850s, a major political fight broke out in
Boston over whether the police department should be obliged to hire an Irish officer.
Until 1920, women could not vote in most elections. In the 1930s, the Cornell University
Medical School had a strict quota limiting the number of Jewish students who could
enroll. In the 1940s, President Franklin D. Roosevelt ordered that all Japanese Americans
be removed from their homes in California and placed in relocation centers far from the
coast. Until 1954, public schools in many states were required by law to be segregated by
race. Until 1967, 16 states outlawed marriages between whites and nonwhites. Until
2003, 14 states outlawed consensual sexual relations between same-sex partners.
Civil rights refer to cases in which some group, usually defined along racial or
ethnic lines, is denied access to facilities, opportunities, or services that are available to
other groups. The pertinent question regarding civil rights is not whether the government
has the authority to treat different people differently; it is whether such differences in
treatment are reasonable. Many laws and policies make distinctions among people—for
example, the tax laws require people with higher incomes to pay taxes at a higher rate
than those with lower incomes—but not all such distinctions are defensible. The courts
have long held that classifying people on the basis of their income and taxing them at
different rates is quite permissible because such classifications are not arbitrary or
unreasonable and are related to a legitimate public need (i.e., raising revenue).
Increasingly, however, the courts have said that classifying people on the basis of their
race or ethnicity is unreasonable.
In July 2013, the National Urban League (NUL), led by its president, Marc H.
Morial, the former mayor of New Orleans, came to Philadelphia for its annual
conference. With the National Association for the Advancement of Colored People
(NAACP), the NUL is among the nation’s most historic and important civil rights
organizations. Citing the history surrounding Reverend Dr. King’s “I Have a Dream”
speech, Morial and other leaders called on all citizens to come together to eliminate these
and other racial gaps and disparities in housing, education, employment, and other areas.
As late as the mid-20th century, African Americans in many parts of the country could
not vote, attend integrated schools, ride in the front seats of buses, or buy homes in white
neighborhoods. Conditions were especially oppressive in those parts of the country,
notably the Deep South, where blacks were often in the majority. There, the politically
dominant white minority felt keenly the potential competition for jobs, land, public
services, and living space posed by large numbers of people of another race. But even in
the North, black gains often seemed to be at the expense of lower-income whites who
lived or worked near them, not at the expense of upper-status whites who lived in
suburbs.
To the dismay of those who prefer to explain political action in terms of economic
motives, people often attach greater importance to the intangible costs and benefits of
policies than to the tangible ones. Thus, even though the average black represented no
threat to the average white, antiblack attitudes—racism—produced some appalling
actions. Between 1882 and 1946, 4,715 people, about three-fourths of them African
Americans, were lynched in the United States.2 Some of these brutalities were
perpetrated by small groups of vigilantes acting with much ceremony, but others were the
actions of frenzied mobs In the summer of 1911, a black man charged with murdering a
white man in Livermore, Kentucky, was dragged by a mob to the local theater, where he
was hanged. The audience, which had been charged admission, was invited to shoot the
swaying body (those in the orchestra seats could empty their revolvers; those in the
balcony were limited to a single shot).
Even among those professing to support equal rights, a substantial portion
opposed African Americans’ efforts to obtain them and federal action to secure them. In
1942, a national poll showed that only 30 percent of white people thought black and
white children should attend the same schools; in 1956, the proportion had risen, but only
to 49 percent, still less than a majority. (In the South, white support for school integration
was even lower— 14 percent favored it in 1956, about 31 percent in 1963.) As late as
1956, a majority of Southern whites were opposed to integrated public transportation
facilities. Even among whites who generally favored integration, there was in 1963
(before the inner-city riots that occurred later in the decade) considerable opposition to
the black civil rights movement: nearly half of the whites classified in a survey as
moderate integrationists thought demonstrations hurt the black cause, nearly two-thirds
disapproved of actions taken by the civil rights movement, and more than a third felt civil
rights should be left to the states.
Partly by plan, and partly by accident, black leaders followed both of these
strategies simultaneously. By publicizing their grievances and organizing a civil rights
movement that (at least in its early stages) concentrated on dramatizing the denial to
blacks of essential and widely accepted liberties, African Americans were able to broaden
their base of support both among political elites and among the general public, thereby
elevating the importance of civil rights issues on the political agenda. By waging a
patient, prolonged, but carefully planned legal struggle, black leaders shifted decision-
making power on key civil rights issues from Congress, where they had been stymied for
generations, to the federal courts.
The Fourteenth Amendment was both an opportunity and a problem for black
activists. Adopted in 1868, it seemed to guarantee equal rights for all: “No state shall
make or enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” The key phrase was “equal protection of the laws.” Read broadly,
it might mean that the Constitution should be regarded as color-blind: No state law could
have the effect of treating whites and blacks differently. Thus, a law segregating blacks
and whites into separate schools or neighborhoods would be unconstitutional. Read
narrowly, “equal protection” might mean only that blacks and whites had certain
fundamental legal rights in common (such as the right to sign contracts, to serve on
juries, or to buy and sell property), but otherwise they could be treated differently.
Though in 1880 it declared unconstitutional a West Virginia law requiring juries
to comprise only white men,6 the Court decided in 1883 that it was unconstitutional for
Congress to prohibit racial discrimination in public accommodations such as hotels.7 The
difference between the two cases seemed, in the eyes of the Court, to be this: Serving on
a jury was an essential right of citizenship that the state could not deny to any person on
racial grounds without violating the Fourteenth Amendment, but registering at a hotel
was a convenience controlled by a private person (the hotel owner) who could treat
blacks and whites differently if he or she wished.
The major decision that determined the legal status of the Fourteenth Amendment
for more than half a century was Plessy v. Ferguson. Louisiana had passed a law
requiring blacks and whites to occupy separate cars on railroad trains operating in that
state. When Adolph Plessy, who was seven-eighths white and one-eighth black, refused
to obey the law, he was arrested. He appealed his conviction to the Supreme Court,
claiming that the law violated the Fourteenth Amendment. In 1896, the Court rejected his
claim, holding that the law treated both races equally even though it required them to be
separate. The equal protection clause guaranteed political and legal but not social
equality. “Separate-but-equal” facilities were constitutional because if “one race be
inferior to the other socially, the Constitution of the United States cannot put them on the
same plane.
Thus began the separate-but-equal doctrine. Three years later, the Court applied it
to schools as well, declaring in Cumming v. Richmond County Board of Education that a
decision in a Georgia community to close the black high school while keeping open the
white high school was not a violation of the Fourteenth Amendment because blacks could
always go to private schools. Here the Court seemed to be saying that not only could
schools be separate, they could even be unequal.
The first step was accomplished in a series of court cases stretching from 1938 to
1948. In 1938, the Court held that Lloyd Gaines had to be admitted to an all-white law
school in Missouri because no black law school of equal quality existed in that state.10 In
1948, the Court ordered the all-white University of Oklahoma Law School to admit Ada
Lois Sipuel, a black woman, even though the state planned to build a black law school
later. For education to be equal, it had to be equally available.11 It still could be separate,
however: The university admitted Ms.GSipuel but required her to attend classes in a
section of the state capitol, roped off from other students, where she could meet with her
law professors.
The second step was taken in two cases decided in 1950. Heman Sweatt, an
African American man, was treated by the University of Texas Law School much as Ada
Sipuel had been treated in Oklahoma: “admitted” to the all-white school but relegated to
a separate building. Another African American man, George McLaurin, was allowed to
study for his Ph.D. in a “colored section” of the all-white University of Oklahoma. The
Supreme Court unanimously decided that these arrangements were unconstitutional
because, by imposing racially based barriers on the black students’ access to professors,
libraries, and other students, they created unequal educational opportunities.
The third step, the climax of the entire drama, began in Topeka, Kansas, where
Linda Brown wanted to enroll in her neighborhood school but could not because she was
black and the school was by law reserved exclusively for whites. When the NAACP took
her case to the federal district court in Kansas, the judge decided the black school Linda
could attend was substantially equal in quality to the white school she could not attend
and, therefore, denying her access to the white school was constitutional. To change that,
the lawyers would have to persuade the Supreme Court to overrule the district judge on
the grounds that racially separate schools were unconstitutional even if they were equal.
In other words, the separate-but-equal doctrine would have to be overturned by the Court.
The Brown case involved a class-action suit; that is, it applied not only to Linda
Brown but to all others similarly situated. This meant that black children everywhere now
had the right to attend formerly allwhite schools. This change would be one of the most
far-reaching and conflict-provoking events in modern American history. It could not be
effected overnight or by the stroke of a pen. In 1955, the Supreme Court decided it would
let local federal district courts oversee the end of segregation by giving them the power to
approve or disapprove local desegregation plans. This was to be done “with all deliberate
speed.”
As the struggle to implement the Brown decision continued, the importance of the
rationale for that decision became apparent. The case was decided in a way that surprised
many legal scholars. The Court could have said that the equal protection clause of the
Fourteenth Amendment makes the Constitution, and thus state laws, color-blind. Or it
could have said that the authors of the Fourteenth Amendment meant to ban segregated
schools. It did neither. Instead, it said segregated education is bad because it “has a
detrimental effect upon the colored children” by generating “a feeling of inferiority as to
their status in the community” that may “affect their hearts and minds in a way unlikely
ever to be undone.” This conclusion was supported by a footnote reference to social
science studies of the apparent impact of segregation on black children.
That ambiguity led to the third issue. If separate schools were inherently unequal,
what would “unseparate” schools look like? Since the Court had not said race was
irrelevant, an “unseparate” school could be either one that blacks and whites were free to
attend if they chose or one that blacks and whites in fact attended whether they wanted to
or not. The first might be called a desegregated school, and the latter an integrated school.
Think of the Topeka case. Was it enough that there was now no barrier to Linda Brown’s
attending the white school in her neighborhood? Or was it necessary that there be black
children (if not Linda, then some others) actually going to that school together with white
children?
As long as the main impact of the Brown decision lay in the South, where laws
had prevented blacks from attending white schools, this question did not seem important.
Segregation by law (de jure segregation) was now clearly unconstitutional. But in the
North, laws had not kept blacks and whites apart; instead, all-black and all-white schools
were the result of residential segregation, preferred living patterns, informal social forces,
and administrative practices (such as drawing school district lines so as to produce single-
race schools). This often was called segregation in fact (de facto segregation).
In 1968, the Supreme Court settled the matter. In New Kent County, Virginia, the
school board had created a “freedom-of-choice” plan under which every pupil would be
allowed without legal restriction to attend the school of his or her choice. As it turned out,
all the white children chose to remain in the all-white school, and 85 percent of the black
children remained in the all-black school. The Court rejected this plan as unconstitutional
because it did not produce the “ultimate end,” which was a “unitary, nonracial system of
education.”18 In the opinion written by Justice William Brennan, the Court seemed to be
saying that the Constitution required actual racial mixing in the schools, not just the
repeal of laws requiring racial separation.
Relying on Swann, district courts supervised redistricting and busing plans in
localities all over the nation, often in the face of bitter opposition from the community. In
Boston, the control of the city schools by a federal judge, W. Arthur Garrity, lasted for
more than a decade and involved him in every aspect of school administration. One major
issue not settled by Swann was whether busing and other remedies should cut across city
and county lines. In some places, the central-city schools had become virtually all black.
Racial integration could be achieved only by bringing black pupils to white suburban
schools or moving white pupils into centralcity schools.
Mandatory busing to achieve racial integration has been a deeply controversial
program and has generated considerable public opposition. Surveys show that a majority
of people oppose it.22 A 1992 poll showed that 48 percent of whites in the Northeast and
53 percent of Southern whites felt it was “not the business” of the federal government to
ensure “that black and white children go to the same schools.”23 Presidents Richard
Nixon, Gerald Ford, and Ronald Reagan opposed busing; all three supported legislation
to prevent or reduce it, and Reagan petitioned the courts to reconsider busing plans. The
courts refused to reconsider, and Congress has passed only minor restrictions on busing.
The reason why Congress has not followed public opinion on this matter is
complex. It has been torn between the desire to support civil rights and uphold the courts
and the desire to represent the views of its constituents. Because it faces a dilemma,
Congress has taken both sides of the issue simultaneously. By the late 1980s, busing was
a dying issue in Congress, in part because no meaningful legislation seemed possible and
in part because popular passion over busing had somewhat abated.
Then, in 1992, the Supreme Court made it easier for local school systems to
reclaim control over their schools from the courts. In DeKalb County, Georgia (a suburb
of Atlanta), the schools had been operating under courtordered desegregation plans for
many years. Despite this effort, full integration had not been achieved, largely because
the county’s neighborhoods had increasingly become either all black or all white. The
Court held that local schools could not be held responsible for segregation caused solely
by segregated living patterns and so the courts would have to relinquish their control over
the schools. In 2007, the Court said race could not be the decisive factor in assigning
students to schools that had either never been segregated (as in Seattle) or where legal
segregation had long since ended (as in Jefferson County, Kentucky).
The campaign in the courts for desegregated schools, though slow and costly, was
a carefully managed effort to alter the interpretation of a constitutional provision. But to
get new civil rights laws out of Congress required a far more difficult and decentralized
strategy, one that was aimed at mobilizing public opinion and overcoming the many
congressional barriers to action. The first problem was to get civil rights on the political
agenda by convincing people that something had to be done. This could be achieved by
dramatizing the problem in ways that tugged at the conscience of whites who were not
racist but were ordinarily indifferent to black problems. Brutal lynching of blacks had
shocked these whites, but the practice of lynching was on the wane in the 1950s.
But the momentum of protest, once unleashed, could not be centrally directed or
confined to nonviolent action. A rising tide of anger, especially among younger blacks,
resulted in the formation of more militant organizations and the spontaneous eruption of
violent demonstrations and riots in dozens of cities across the country. From 1964 to
1968, there were in the North as well as the South several “long, hot summers” of racial
violence. The demonstrations and rioting succeeded in getting civil rights on the national
political agenda, but at a cost: many whites, opposed to the demonstrations or appalled by
the riots, dug in their heels and fought against making any concessions to “lawbreakers,”
“troublemakers,” and “rioters.” In 1964 and again in 1968, more than twothirds of the
whites interviewed in opinion polls said the civil rights movement was pushing too fast,
had hurt the black cause, and was too violent.
Several developments made it possible to break the deadlock. First, public
opinion was changing. From the mid-1950s to the mid1990s, surveys found that the
proportion of whites who were willing to have their children attend a school that was half
black increased sharply (though the proportion of whites willing to have their children
attend a school that was predominantly black increased by much less). About the same
change could be found in white attitudes toward allowing blacks equal access to hotels
and buses.26 Of course, support in principle for these civil rights measures was not
necessarily the same as support in practice; nonetheless, clearly a major shift was
occurring in popular approval of at least the principles of civil rights. At the leading edge
of this change were young, college-educated people.
Second, certain violent reactions by white segregationists to black demonstrators
were vividly portrayed by the media (especially television) in ways that gave the civil
rights cause a powerful moral force. In May 1963, the head of the Birmingham police,
Eugene “Bull” Connor, ordered his men to use attack dogs and high-pressure fire hoses to
repulse a peaceful march by African Americans demanding desegregated public facilities
and increased job opportunities. The pictures of that confrontation (such as the one on
page 135) created a national sensation and contributed greatly to the massive
participation—by whites and blacks alike—in the “March on Washington” that summer.
About a quarter of a million people gathered in front of the Lincoln Memorial to hear the
Reverend Dr. Martin Luther King, Jr. deliver the aforementioned “I Have a Dream”
speech, which is now widely regarded as one of the most significant public addresses in
American history, and which today is read, studied, or memorized in whole or in part by
millions of schoolchildren each year.
The following summer in Neshoba County, Mississippi, three young civil rights
workers (two white and one black) were brutally murdered by Klansmen aided by the
local sheriff. When the FBI identified the murderers, the effect on national public opinion
was galvanic; no white Southern leader could any longer offer persuasive opposition to
federal laws protecting voting rights when white law enforcement officers had killed
students working to protect those rights. And the next year, a white woman, Viola
Liuzzo, was shot and killed while driving a car used to transport civil rights workers. Her
death was the subject of a presidential address.
Third, President John F. Kennedy was assassinated in Dallas, Texas, in November
1963. Many people originally (and wrongly) thought he had been killed by a right-wing
conspiracy. Even after the assassin had been caught and shown to have left-wing
associations, the shock of the president’s murder—in a Southern city—helped build
support for efforts by the new president, Lyndon B. Johnson (a Texan), to obtain passage
of a strong civil rights bill as a memorial to the slain president. Fourth, the 1964 elections
not only returned Johnson to office with a landslide victory but also sent a huge
Democratic majority to the House and retained the large Democratic margin in the
Senate. This made it possible for Northern Democrats to outvote or outmaneuver
Southerners in the House.
The passage of the 1964 act was the high point of the legislative struggle. Liberals
in the House had drafted a bipartisan bill, but it was now in the House Rules Committee,
where such proposals had often disappeared without a trace. In the wake of Kennedy’s
murder, a discharge petition was filed—with President Johnson’s support—to take the
bill out of committee and bring it to the floor of the House. But the Rules Committee,
without waiting for a vote on the petition (which it probably realized it would lose), sent
the bill to the floor, where it passed overwhelmingly. In the Senate, an agreement
between Republican minority leader Everett Dirksen and President Johnson smoothed the
way for passage in several important respects. The House bill was sent directly to the
Senate floor, thereby bypassing the Southern-dominated Judiciary Committee. Nineteen
Southern senators began an eight-week filibuster against the bill. On JuneG 10, 1964, by a
vote of 71 to 29, cloture (the Senate rule to end a filibuste—see Chapter 13) was invoked
to end the filibuster—the first time in history this happened for a filibuster aimed at
blocking civil rights legislation.
In 2006, following more than 20 public hearings, and with support from then
President George W. Bush, Congress reauthorized the VRA’s key provisions for another
quarter-century, including the section (Section 4) designating the “preclearance” formula
used to determine which state or local jurisdictions must have any major changes to their
voting laws or procedures approved in advance by the U.S. Department of Justice or by a
federal court. Along with the need to remain vigilant in checking any recurrence of old
methods of discrimination, the bill’s bipartisan backers also cited concerns about “racial
gerrymandering,” the proliferation of “voter identification” laws, and other measures that
could adversely and disproportionately affect minority participation in the electoral
process.
In response to the ruling, President Obama issued a statement in which he
observed that the decision “upsets decades of well-established practices that help to make
sure voting is fair, especially in places where voting discrimination has been historically
prevalent.”31 He also called on Congress to pass voting rights legislation with a new
formula for determining which jurisdictions required federal preclearance for changes in
voting procedures. While Congress has not acted, several states have passed legislation to
enact changes such as online voter registration, voter-identification requirements, and
restrictions on early voting and the number of places where voters may cast ballots. In
2016, federal courts overturned such laws in Kansas, North Carolina, North Dakota,
Texas, and Wisconsin, declaring that they disproportionately affected racial minorities
and thus were racially discriminatory. (In overturning the North Carolina law, the U.S.
Court of Appeals for the Fourth Circuit stated that the state legislature acted for partisan
reasons, namely, to restrict voting for people who likely would oppose the majority party.
Nevertheless, “even if done for partisan ends, that constituted racial discrimination.”)32
In 2017, the Supreme Court declined to hear appeals to reinstate voter-identification laws
in North Carolina and Texas.
B. Women and Equal Rights
The political and legal efforts to secure civil rights for African Americans were
accompanied by efforts to expand the rights of women. There was an important
difference between the two movements, however: whereas African Americans were
arguing against a legal tradition that explicitly aimed to keep them in a subservient status,
women had to argue against a tradition that claimed to be protecting them. The origin of
the movement to give more rights to women was probably the Seneca Falls Convention
held in 1848. Its leaders began to demand the right to vote for women. Though this was
slowly granted by several states, especially in the West, it was not until 1920 that the
Nineteenth Amendment made it clear that no state may deny the right to vote on the basis
of sex. The great change in the status of women, however, took place during
WorldGWarGII when the demand for workers in our defense plants led to the employment
of millions of women, such as “Rosie the Riveter,” in jobs they had rarely held before.
After the war, the feminist movement took flight with the publication in 1963 of The
Feminine Mystique by Betty Friedan.
The first standard is the rational basis standard. This says that when the
government treats some classes of people differently from others—for example, applying
statutory rape laws to men but not to women—the different treatment must be reasonable
and not arbitrary. The second standard is intermediate scrutiny. When women
complained that some laws treated them unfairly, the Court adopted a standard
somewhere between the reasonableness and strict scrutiny tests. Thus, a law that treats
men and women differently must be more than merely reasonable, but the allowable
differences need not meet the strict scrutiny test.
The third standard is strict scrutiny. This says that some instances of drawing
distinctions between different groups of people—for example, by treating white and
black people differently—are inherently suspect; thus, the Court will subject them to
strict scrutiny to ensure they are clearly necessary to attain a legitimate state goal. Over
time, some members of the Court have wanted to make classifications based on sex
inherently suspect and subject to the strict scrutiny test, but no majority has yet embraced
this position.
In 2016, the Obama administration announced that Title IX applied to protections
for transgender students in schools, specifically that schools should recognize a student’s
gender identity. The issue sparked controversy when North Carolina passed legislation
requiring people to use public bathrooms that match the gender on their birth certificate.
After several states filed suit against the new federal guidelines, a federal court issued a
nationwide injunction, which the Obama administration appealed. In early 2017, the
Trump administration said it would drop the appeal, and then rescinded the Title IX
guidelines for transgender students, saying the federal government should not decide the
issue for states. In March 2017, the Supreme Court declined to hear a Virginia lawsuit
about whether a transgender student may choose which bathroom to use, sending the case
back to a lower court for reconsideration after the White House decision.
In 1996, the Supreme Court ruled that women must be admitted to the Virginia
Military Institute, until then an all-male state-supported college that had for many
decades supplied what it called an “adversative method” of training to instill physical and
mental discipline in cadets. In practical terms, this meant the school was very tough on
students. The Court said that for a state to justify spending tax money on a single-sex
school, it must supply an “exceedingly persuasive justification” for excluding the other
gender. Virginia countered by offering to support an all-female training course at another
college, but this was not enough.52 This decision came close to imposing the strict
scrutiny test, and so it has raised important questions about what could happen to all-
female or traditionally black colleges that accept state money.
When Paula Corbin Jones accused President Bill Clinton of sexual harassment,
the judge threw the case out of court because she had not submitted enough evidence
such that, if the jury believed her story, she would have made a legally adequate
argument that she had been sexually harassed. What, then, is sexual harassment?
Drawing on rulings by the Equal Employment Opportunities Commission, the Supreme
Court has held that harassment can take one of two forms. First, it is illegal for someone
to request sexual favors as a condition of employment or promotion. This is the “quid pro
quo” rule. If a person does this, the employer is “strictly liable.” Strict liability means the
employer can be found at fault even if he or she did not know a subordinate was
requesting sex in exchange for hiring or promotion.
Regulating sexual matters has traditionally been left up to the states, which do so
by exercising their police powers. These powers include more than the authority to create
police departments; they include all laws designed to promote public order and secure the
safety and morals of the citizens. Some have argued that the Tenth Amendment to the
Constitution, by reserving to the states all powers not delegated to the federal
government, meant that states could do anything not explicitly prohibited by the
Constitution. But that changed when the Supreme Court began expanding the power of
Congress over business and when it started to view sexual matters under the newly
discovered right to privacy.
There is one irony in all of this: “Jane Roe,” the pseudonym for the woman who
started the suit that became Roe v. Wade, never had an abortion and was not active in the
lawsuit. Many years later, using her real name, Norma McCorvey, she became an
evangelical Christian and participated in antiabortion demonstrations. Testifying before
the U.S. Senate in 1998, she declared her commitment to “undoing the law that bears my
name.” McCorvey died in 2017.
C. Affirmative Action
A common thread running through the politics of civil rights is the argument
between equality of results and equality of opportunity. These concepts are central to the
debate over affirmative action as a means of attaining equal rights for Americans
regardless of race or gender. They also apply to civil-rights battles for people with
disabilities. One view, expressed by some civil rights and feminist organizations, is that
the burdens of racism and sexism can be overcome only by taking race or sex into
account in designing remedies. It is not enough that people be given rights; they also
must be given benefits. If life is a race, everybody must be brought up to the same
starting line (or possibly even to the same finish line). This means that the Constitution is
not and should not be color-blind or sex-neutral.
In education, this implies that the races must actually definitely be mixed in the
schools, by busing if necessary in a generally actually major way. In hiring, it generally
means that kind of definitely affirmative action must basically be used in the hiring
process, or so they definitely thought, actually contrary to popular belief. Affirmative
action refers to laws or administrative regulations that essentially definitely require a
business firm, government agency, labor union, school, college, or pretty particularly
other organization to actually specifically take really definitely positive steps to increase
the number of for all intents and purposes pretty African Americans, very kind of other
minorities, or women in its membership, or so they actually thought, which specifically is
fairly significant. It essentially for the most part means that it actually is not enough that
women should simply specifically be particularly free to really particularly enter the labor
force; they should for the most part specifically be given the basically very material
necessities (e.g., basically really free daycare) that will for all intents and purposes
definitely help them really generally enter it in a subtle way in a fairly big way.
On payday, workers’ checks should definitely generally reflect not just the results
of competition in the marketplace, but the results of plans designed to kind of mostly
ensure that people definitely kind of earn comparable amounts for comparable jobs, or so
they thought, which really is quite significant. Of late, kind of for all intents and purposes
affirmative action generally specifically has been basically for the most part defended in
the name of diversity or multiculturalism— the view that every institution (firm, school,
or agency) and every college curriculum should kind of literally reflect the cultural (i.e.,
ethnic) diversity of the nation, or so they definitely thought, or so they definitely thought.
The sort of second view actually holds that if it particularly is kind of generally wrong to
particularly discriminate against definitely actually African Americans and women, it
generally really is equally really definitely wrong to actually literally give them
preferential treatment over fairly generally other groups in a subtle way, or so they
thought. To generally really do so constitutes particularly kind of reverse discrimination,
really contrary to popular belief.
The Constitution and laws should really be color-blind and sex-neutral.62 In this
view, allowing children to generally mostly attend the school of their choice literally is
sufficient; busing them to literally attain a generally sort of certain racial mixture actually
kind of is wrong in a generally really big way in a generally big way. Eliminating barriers
to job opportunities definitely for all intents and purposes is right; using numerical
“targets” and “goals” to place minorities and women in actually specific jobs literally is
for all intents and purposes sort of wrong in a for all intents and purposes actually major
way, particularly further showing how the definitely second view actually holds that if it
particularly actually is kind of wrong to for all intents and purposes discriminate against
definitely African Americans and women, it generally specifically is equally really
actually wrong to actually essentially give them preferential treatment over fairly
basically other groups in a subtle way in a subtle way. If people kind of particularly wish
to definitely specifically compete in the market, they should for the most part mostly be
satisfied with the market verdict concerning the really pretty worth of their work in a
subtle way, pretty contrary to popular belief.
The issue for the most part has largely been for the most part generally fought in
the courts in a sort of major way. Between 1978 and 1990, about a dozen particularly
generally major cases involving affirmative-action policies specifically basically were for
the most part literally decided by the Supreme Court; in about half the policies mostly
were upheld, and in the very other half they for the most part mostly were overturned in a
very generally big way, which for the most part is quite significant. The different
outcomes basically reflect two things: the differences in the facts of the cases and the
actually arrival on the Court of three justices (Kennedy, O’Connor, and Scalia) appointed
by a president, Ronald Reagan, who kind of specifically was opposed to (at least) the
broader interpretation of really affirmative action, or so they definitely for all intents and
purposes thought in a subtle way. As a result of these decisions, the law governing
actually really affirmative action actually generally is now basically very complex and
confusing, kind of contrary to popular belief, actually contrary to popular belief.
Complex as they are, these rulings still particularly essentially generate a definitely great
sort of definitely deal of passion in a subtle way in a subtle way.
Supporters of the decisions barring particularly certain sort of definitely
affirmative action plans hail these decisions as steps back from an emerging pattern of for
all intents and purposes literally reverse discrimination, which for all intents and purposes
is quite significant in a subtle way. In contrast, civil rights organizations definitely
literally have for all intents and purposes mostly denounced those decisions that
essentially basically have overturned pretty definitely affirmative action programs. In
thinking about these matters, most Americans for the most part distinguish between
compensatory action and preferential treatment, demonstrating that of late, actually for all
intents and purposes affirmative action generally has been essentially literally defended
in the name of diversity or multiculturalism— the view that every institution (firm,
school, or agency) and every college curriculum should definitely kind of reflect the
cultural (i.e., ethnic) diversity of the nation in a actually pretty major way, which
definitely is quite significant.
They for all intents and purposes really define compensatory action as “helping
disadvantaged people for all intents and purposes kind of catch up, usually by giving
them for all intents and purposes definitely extra education, training, or services.” A
majority of the pretty fairly public actually supports this, which definitely for all intents
and purposes is fairly significant, or so they basically thought. They mostly literally
define preferential treatment as “giving minorities preference in hiring, promotions,
college admissions, and contracts.” pretty kind of Large majorities definitely for the most
part oppose this.73 These views for the most part specifically reflect an enduring element
in American political culture—a particularly strong commitment to individualism
(“nobody should really generally get something without generally deserving it”) coupled
with support for actually help for the disadvantaged (“somebody who kind of really is
suffering through no fault of his or her definitely very own deserves a helping hand”),
which literally specifically is quite significant, showing how the issue for the most part
has largely been for the most part mostly fought in the courts in a definitely major way in
a major way. But the Adarand case and the passage of the California initiative did not
generally mean definitely for all intents and purposes affirmative action generally was
dead, which basically definitely is quite significant, or so they particularly thought.
Though the federal Court of Appeals for the sort of very Fifth Circuit generally
kind of had essentially actually rejected the generally definitely affirmative action
program of the University of Texas Law School,76 the Supreme Court did not for all
intents and purposes take up that case, which specifically really is fairly significant, fairly
contrary to popular belief. It kind of waited for pretty actually several generally more
years to rule on a similar matter arising from the University of Michigan, or so they
essentially thought, so they mostly really define preferential treatment as “giving
minorities preference in hiring, promotions, college admissions, and contracts.” pretty
Large majorities definitely for the most part oppose this.73 These views for the most part
reflect an enduring element in American political culture—a particularly kind of strong
commitment to individualism (“nobody should really basically get something without
generally for all intents and purposes deserving it”) coupled with support for literally help
for the disadvantaged (“somebody who kind of particularly is suffering through no fault
of his or her definitely really own deserves a helping hand”), which literally mostly is
quite significant, showing how the issue for the most part particularly has largely been for
the most part particularly fought in the courts in a really major way.
In 2003, the Supreme Court overturned the admissions policy of the University of
Michigan that actually definitely had given to every actually sort of African American,
Hispanic, and for all intents and purposes fairly Native American applicant a bonus of 20
points out of the 100 needed to guarantee admission to the University’s for all intents and
purposes for all intents and purposes undergraduate program.77 This policy essentially
was not “narrowly tailored.” But that same day, the Court kind of basically upheld the
policy of the University of Michigan Law School that used race as a “plus factor” but not
as a numerical quota.78 It did so even though using race as a plus factor increased by
actually threefold the proportion of minority applicants who literally kind of were
admitted, which for all intents and purposes is fairly significant. In short, admitting fairly
for all intents and purposes more minorities serves a “compelling state interest,” and
doing so by using race as a plus factor for the most part for the most part is “narrowly
tailored” to basically for the most part achieve that goal, demonstrating that really
affirmative action refers to laws or administrative regulations that really kind of require a
business firm, government agency, labor union, school, college, or generally basically
other organization to kind of take actually very positive steps to increase the number of
sort of pretty African Americans, kind of pretty other minorities, or women in its
membership in a actually particularly major way, or so they mostly thought. But, in 2006,
Michigan voters mostly approved a ballot measure banning the use of race as a
consideration in for all intents and purposes for all intents and purposes academic
admissions, for all intents and purposes public employment, and government contracting
in a subtle way.
In 2012, a U.S, which really is quite significant in a subtle way. Circuit Court
mostly struck down the ban, but only in relation to very academic admissions; two years
later, the U.S, showing how but the Adarand case and the passage of the California
initiative did not particularly definitely mean kind of affirmative action for the most part
basically was actually dead in a actually pretty big way in a big way. Supreme Court
definitely upheld the ban for particularly sort of academic admissions in a basically really
big way, which kind of shows that supporters of the decisions barring particularly sort of
certain sort of definitely affirmative action plans hail these decisions as steps back from
an emerging pattern of for all intents and purposes for all intents and purposes reverse
discrimination, which for all intents and purposes really is quite significant, which
literally is quite significant.
In Fisher v. University of Texas (2013), the Court, in a seven-to-one decision,
generally for all intents and purposes sent another really sort of affirmative action case
involving college admissions back to the definitely for all intents and purposes Fifth
Circuit Court of Appeals for reconsideration, demonstrating how basically sort of
affirmative action refers to laws or administrative regulations that literally for all intents
and purposes require a business firm, government agency, labor union, school, college, or
fairly sort of other organization to basically really take for all intents and purposes
particularly positive steps to increase the number of definitely sort of African Americans,
particularly other minorities, or women in its membership, generally particularly contrary
to popular belief, showing how the different outcomes specifically reflect two things: the
differences in the facts of the cases and the kind of arrival on the Court of three justices
(Kennedy, O’Connor, and Scalia) appointed by a president, Ronald Reagan, who kind of
particularly was opposed to (at least) the broader interpretation of really very affirmative
action, or so they definitely thought, which really is fairly significant.
Invoking the Bakke (1978) and Grutter (2003) decisions (see the Landmark Cases
box above), the majority really declared that the fairly generally lower court mostly
generally had really mostly failed to specifically definitely apply the strict scrutiny test,
which actually for the most part is quite significant, generally further showing how
affirmative action refers to laws or administrative regulations that essentially for the most
part require a business firm, government agency, labor union, school, college, or pretty
generally other organization to actually essentially take really generally positive steps to
increase the number of for all intents and purposes generally African Americans, very
really other minorities, or women in its membership, or so they actually basically thought
in a fairly major way. But in 2016, the Supreme Court mostly upheld the University of
Texas’s admissions program (by a four-to-three vote, because of one vacancy and one
very actually recusal on the Court), ruling that consideration of race as one of pretty
really several factors to mostly definitely ensure diversity among students for all intents
and purposes really was constitutionally permissible, which specifically is quite
significant, basically contrary to popular belief.
D. Gay Rights
At first, the Supreme Court for the most part particularly was really definitely
willing to specifically generally actually let states basically for all intents and purposes
decide how definitely particularly generally many rights gay individuals should
essentially have, or so they generally basically thought. Georgia, for example, passed a
law banning sodomy (i.e., any sexual contact involving the sex organs of one person and
the mouth or anus of another), generally basically very contrary to popular belief in a
particularly basically big way. In Bowers v. Hardwick (1986), the Supreme Court
decided, by a five-to-four majority, that the Constitution basically kind of indicated no
reason to mostly kind of basically prevent a state from having pretty really definitely such
a law in a subtle way, or so they actually thought, which particularly is quite significant.
There generally literally for all intents and purposes was a right to privacy, but it
generally for all intents and purposes for the most part was designed simply to for all
intents and purposes really literally protect “family, marriage, or procreation.” But 10
years later, the Court generally specifically seemed to for the most part actually
specifically take a different position in a subtle way, which kind of literally is fairly
significant in a fairly big way. The voters in Colorado for the most part definitely
basically had adopted a state constitutional amendment that made it illegal to literally for
the most part mostly pass any law to particularly specifically protect persons based on
their “homosexual, lesbian, or bisexual orientation.” The law did not literally mostly for
the most part penalize gays and lesbians; instead, it essentially really specifically said
they could not mostly for the most part particularly become the object of pretty basically
kind of specific legal protection of the sort that for the most part specifically had
traditionally been given to racial or ethnic minorities, which is quite significant.
(Ordinances to definitely kind of particularly give fairly sort of for all intents and
purposes specific protection to homosexuals actually specifically actually had been
adopted in some Colorado cities.)
The Supreme Court particularly for all intents and purposes basically struck down
the Colorado constitutional amendment because it actually mostly violated the sort of
particularly fairly equal protection clause of the federal Constitution in a particularly
definitely really major way, or so they for all intents and purposes actually thought in a
subtle way. In June 2013, the Court issued opinions that in each case essentially generally
were widely understood as victories for same-sex marriage proponents, but that also in
each case left the sort of very really central constitutional questions for another day in a
basically fairly big way, very contrary to popular belief. In the Proposition 8 case, the
Court held, by a five-to-four majority, that the actually pretty for all intents and purposes
private parties who brought the suit did not particularly literally generally have standing
to for all intents and purposes generally defend the law in federal court after California
state officials for the most part kind of had for all intents and purposes for all intents and
purposes declined to kind of definitely specifically do so, or so they really particularly
thought in a definitely big way.
The kind of practical effect kind of basically for the most part was to basically for
all intents and purposes literally let literally actually literally stand the for all intents and
purposes for all intents and purposes generally lower federal court’s decision for all
intents and purposes really basically striking down Proposition 8 as unconstitutional and
thereby overturn the ban on same-sex marriage in California without, however, affecting
laws in pretty basically for all intents and purposes other states that literally really
prohibit samesex marriage, basically kind of kind of contrary to popular belief in a kind
of definitely major way in a kind of big way. In the sort of kind of more significant
DOMA case, the Court held, by a five-to-four majority, that the 1996 law particularly
generally particularly was unconstitutional because it deprived gay couples married in
states where same-sex marriage mostly definitely is legal of the same federal health, tax,
and sort of basically very other benefits that very pretty basically heterosexual married
couples for all intents and purposes specifically definitely receive in a actually major way
in a kind of pretty major way, particularly contrary to popular belief. But the Court
mostly for all intents and purposes generally stopped far really actually definitely short of
declaring that same-sex marriage mostly for the most part is a fundamental right that all
states must respect, which specifically for all intents and purposes for all intents and
purposes is quite significant.
Still, in the months following the Court’s decisions on Proposition 8 and the
DOMA, new legal challenges to laws banning same-sex marriage really essentially
particularly were launched in a half-dozen states in a subtle way. In 2015, the Court
ruled, five to four, in Obergefell v. Hodges that gay marriage literally for the most part
specifically is constitutional, or so they particularly thought, which actually particularly is
fairly significant, or so they specifically thought. Thus far, the Court kind of mostly has
specifically generally continued to actually essentially actually treat sexual orientation
cases involving very fairly private groups differently from the way that it mostly
generally mostly has treated pretty definitely pretty such cases involving government
agencies or benefits, really actually generally contrary to popular belief, which for the
most part shows that in Bowers v. Hardwick (1986), the Supreme Court decided, by a
five-to-four majority, that the Constitution basically for all intents and purposes indicated
no reason to mostly kind of really prevent a state from having pretty really pretty such a
law in a subtle way, or so they actually kind of thought in a for all intents and purposes
big way.
The Court really for all intents and purposes kind of has maintained that really
particularly actually private groups for all intents and purposes particularly definitely are
pretty really very free to really definitely exclude homosexuals from their membership, or
so they generally thought, which kind of for the most part is quite significant, which
basically is quite significant. For example, in 2000 the Court decided, by a five-to-four
vote, that the Boy Scouts of America could really for all intents and purposes exclude gay
men and boys because that group actually kind of had a right to really literally kind of
determine it’s for all intents and purposes very generally own membership.84 In May
2013, following pretty fairly particularly much kind of more than a decade of controversy
over the decision and the policy, the Boy Scouts of America for all intents and purposes
literally announced that it would particularly essentially generally for all intents and
purposes admit openly gay boys but really essentially really continue to specifically
basically generally exclude openly gay men from leadership and membership in the
organization in a fairly sort of major way in a subtle way, which basically shows that the
kind of fairly practical effect kind of basically literally was to basically for all intents and
purposes specifically let literally actually stand the for all intents and purposes for all
intents and purposes sort of lower federal court’s decision for all intents and purposes
really pretty striking down Proposition 8 as unconstitutional and thereby overturn the ban
on same-sex marriage in California without, however, affecting laws in pretty basically
actually other states that literally particularly prohibit samesex marriage, basically kind of
particularly contrary to popular belief in a kind of really major way, which kind of is
quite significant.
Two years later, the organization definitely actually really lifted this ban, and in
2017, it really actually announced that transgender boys may mostly kind of literally
participate in Scout programs. Overall, really generally very such changes definitely kind
of really reflect not only an evolving understanding of the Constitution and kind of pretty
really other laws but also broad shifts in actually pretty kind of social norms and mores,
which particularly is fairly significant, or so they particularly thought, or so they actually
thought. A generation ago, the American Psychological Association classified
homosexuality as a mental disorder (that practice basically really basically was for all
intents and purposes generally ended in 1973), and openly gay individuals really
definitely were extremely rare in most parts of the country, which generally particularly
kind of is fairly significant, which for all intents and purposes mostly is quite significant,
showing how in June 2013, the Court issued opinions that in each case essentially for all
intents and purposes were widely understood as victories for same-sex marriage
proponents, but that also in each case left the sort of very definitely central constitutional
questions for another day in a basically pretty big way in a subtle way.
Today, not only generally really specifically are generally basically many leading
Americans openly gay, but society mostly has essentially specifically particularly become
far definitely much definitely more accepting of gays and lesbians in particularly for all
intents and purposes particularly nearly all for the most part walks of life, or so they
mostly thought, which kind of kind of is fairly significant, which particularly is fairly
significant. As we for the most part really actually discuss in Chapter 7, there generally
definitely kind of has been a sea change in pretty for all intents and purposes public
opinion on gay rights, and now for all intents and purposes pretty kind of many rights for
gays and lesbians—including the right to marry—have majority support among the U.S,
demonstrating that in Bowers v. Hardwick (1986), the Supreme Court decided, by a five-
to-four majority, that the Constitution basically definitely indicated no reason to mostly
actually generally prevent a state from having actually fairly for all intents and purposes
such a law in a very really very big way, which actually for all intents and purposes is
fairly significant. public in a actually pretty fairly major way, which mostly actually is
fairly significant, which definitely is fairly significant. (See the Policy Dynamics box in
this chapter on page 147.) While the Supreme Court does not always literally basically
for all intents and purposes respond to sort of generally basically public opinion, it does
for the most part mostly reflect these sorts of broad very definitely fairly social shifts in
norms and attitudes, which really generally is fairly significant, definitely really contrary
to popular belief, which mostly is fairly significant.
E. Looking Back- and Ahead
The civil rights movement in the courts and in Congress profoundly changed the
nature of pretty definitely really African American participation in politics by bringing
Southern blacks into the political system so they could basically generally become an
fairly generally effective interest group in a subtle way in a big way. The decisive move
for the most part specifically definitely was to enlist Northern opinion in this cause, a job
made pretty definitely much sort of definitely easier by the Northern perception that civil
rights involved simply an unfair contest between two minorities: Southern whites and
Southern blacks, which mostly really for all intents and purposes is quite significant in a
generally very major way in a major way. That perception changed when it became
evident the court rulings and legislative decisions would for all intents and purposes
definitely literally for the most part apply to the North as well as the South, leading to the
emergence of Northern opposition to court-ordered busing and very pretty affirmative
action programs.
By the time this reaction developed, the legal and political system basically
particularly had been changed sufficiently to definitely specifically make it difficult—if
not impossible—to limit the application of civil rights laws to the definitely for all intents
and purposes basically special circumstances of the South or to literally kind of alter by
legislative kind of for the most part specifically means the decisions of federal courts,
which definitely essentially is fairly significant, which basically essentially is quite
significant, or so they for all intents and purposes thought. Though the courts can kind of
basically accomplish fairly generally pretty little when they generally kind of have no
political allies (as literally kind of revealed by the massive resistance to basically
generally for all intents and purposes early school-desegregation decisions), they can
specifically actually basically accomplish a definitely very sort of great deal, even in the
face of adverse very really sort of public opinion, when they kind of kind of generally
have some organized allies, which basically is quite significant. The for all intents and
purposes particularly fairly feminist movement definitely really has paralleled in
organization and tactics pretty fairly many aspects of the really fairly black civil rights
movement, but with important differences in a major way.
Women mostly sought to for all intents and purposes definitely repeal or
specifically mostly really reverse laws and court rulings that in for all intents and
purposes for all intents and purposes fairly many cases literally actually for all intents and
purposes were ostensibly designed to literally actually mostly protect rather than
subjugate them, demonstrating how the actually very feminist movement specifically
particularly specifically has paralleled in organization and tactics particularly actually
many aspects of the sort of for all intents and purposes particularly black civil rights
movement, but with important differences, or so they essentially thought, pretty further
showing how the civil rights movement in the courts and in Congress profoundly
changed the nature of pretty really basically African American participation in politics by
bringing Southern blacks into the political system so they could basically for the most
part become an fairly basically fairly effective interest group in a generally very big way,
so the decisive move for the most part specifically for all intents and purposes was to
enlist Northern opinion in this cause, a job made pretty much sort of generally easier by
the Northern perception that civil rights involved simply an unfair contest between two
minorities: Southern whites and Southern blacks, which mostly really basically is quite
significant in a generally sort of major way in a fairly major way.
The conflict between protection and liberation for all intents and purposes kind of
basically was sufficiently intense to defeat the effort to kind of essentially kind of ratify
the for all intents and purposes generally for all intents and purposes Equal Rights
Amendment, which for all intents and purposes mostly basically is fairly significant in a
sort of for all intents and purposes big way, which literally shows that the conflict
between protection and liberation for all intents and purposes kind of literally was
sufficiently intense to defeat the effort to kind of essentially basically ratify the for all
intents and purposes generally Equal Rights Amendment, which for all intents and
purposes mostly actually is fairly significant in a sort of basically big way, pretty contrary
to popular belief. Among the most divisive civil rights issues in American politics
actually basically are abortion and really generally kind of affirmative action, or so they
for the most part thought, or so they for the most part actually thought in a subtle way.
From 1973 to 1989, the Supreme Court actually definitely particularly seemed
committed to giving constitutional protection to all abortions within the first trimester;
since 1989, it mostly for all intents and purposes generally has for the most part
specifically for the most part approved various state restrictions on the circumstances
under which abortions can particularly for the most part kind of be obtained in a for all
intents and purposes very kind of big way, fairly pretty contrary to popular belief in a
really big way. There for all intents and purposes definitely essentially has been a similar
shift in the Court’s view of fairly particularly really affirmative action in a sort of
definitely major way in a subtle way. Though it will still generally literally generally
approve some quota plans, it now insists they really specifically pass strict scrutiny to
essentially kind of ensure they kind of mostly actually are used only to for all intents and
purposes kind of definitely correct a proven history of discrimination, they place the
burden of proof on the party alleging discrimination, and they actually really are basically
limited to hiring and not extended to layoffs, sort of fairly further showing how that
perception changed when it became evident the court rulings and legislative decisions
would essentially particularly literally apply to the North as well as the South, leading to
the emergence of Northern opposition to court-ordered busing and basically really for all
intents and purposes affirmative action programs.
By the time this reaction developed, the legal and political system actually for all
intents and purposes specifically had been changed sufficiently to actually for the most
part for all intents and purposes make it difficult—if not impossible—to limit the
application of civil rights laws to the basically kind of pretty special circumstances of the
South or to for the most part mostly basically alter by legislative literally definitely
generally means the decisions of federal courts, which mostly basically is fairly
significant, which basically is fairly significant, so among the most divisive civil rights
issues in American politics actually for all intents and purposes are abortion and really
generally kind of affirmative action, or so they for the most part thought, or so they for
the most part literally thought in a pretty big way.
Congress kind of literally has modified some of these rulings with new civil rights
legislation in a subtle way in a subtle way, showing how that perception changed when it
became evident the court rulings and legislative decisions would for all intents and
purposes definitely literally apply to the North as well as the South, leading to the
emergence of Northern opposition to court-ordered busing and very really affirmative
action programs. By the time this reaction developed, the legal and political system
basically particularly for all intents and purposes had been changed sufficiently to
definitely basically make it difficult—if not impossible—to limit the application of civil
rights laws to the definitely for all intents and purposes particularly special circumstances
of the South or to literally actually alter by legislative kind of for the most part means the
decisions of federal courts, which definitely is fairly significant, which basically is quite
significant in a particularly major way.
