Civil+Rights+and+The+Equal+Protection+Clause


 * Civil Rights and the Equal Protection Clause**




 * Study Guide Questions**

- What is a civil right? - What groups were initially successful in becoming equal members of the political community? - Describe the Dred Scott decision and how the Fourteenth Amendment reacted to it. - Fully explain the impact of the Equal Protection Clause. - Plessy v. Ferguson has been argued to have negated the intent of the Fourteenth Amendment. How? - Describe the steps between Plessy v. Ferguson and Brown v. Board of Education. What is the current status of Brown? - What was the impact of the Civil Rights and Voting Rights Acts? - What is the difference between Strict Scrutiny, Intermediate Scrutiny and the Rational Basis test? - What controversies exist surrounding the use of race, gender, age, physical disabilities, and sexual orientation as ways to distinguish between individuals? - What lingering disputes exist concerning affirmative action?


 * Questions for Spring 2010 Online Students:**

1. What is a civil right? How does the equal protection clause establish civil rights? How is a civil right different from a civil liberty? 2. Detail the controversies associated with the passage and ratification of the 14th Amendment. How might these controversies help explain the problems associated with its implementation over the years? 3. As thoroughly as possible explain the differences between strict scrutiny, intermediate scrutiny and rational basis review. Explain how each seems to allow for a degree of discrimination (unequal treatment) to be allowed in law. As an example, it is easier to treat people unequally on the basis of age rather than race. Explain why. 4. Review recent activity on the Supreme Court. What civil rights disputes has it dealt with? How has it ruled on them? The [|web site for the Oyez Project] should help you get the necessary information to answer the question.

Due on the due date: Write at least 150 words for each - you know the drill.

The concept of a civil right is closely connected to that of a civil liberty, but in a simplistic sense can be seen as being its complete opposite. Where civil liberties protect one from the interference of government, civil rights involve the use of government to ensure that individuals are equally protected. Historically, people have not been treated equally. Feudalism and slavery have been used to ensure that people occupy distinct strata in society. It has been held that societies run more smoothly that way, but of course this is not fun if you happen to be on the bottom. One can consider the march of human history to be one long civil rights struggle where political distinctions between different classes of people are removed bit by bit.

In a broad sense, this places the establishment of the United States on this historical track. The principle complaint that the colonists had (the one's that could participate anyway) was that they were not treated the same as those in Britain. They were not treated equally under British law.


 * What are Civil Rights?**

A variety of definitions are used for the term civil rights, for example the following from dictionary.com: "//The rights belonging to an individual by virtue of citizenship, especially the fundamental freedoms and privileges guaranteed by the 13th and 14th Amendments to the U.S. Constitution and by subsequent acts of Congress, including civil liberties, due process, equal protection of the laws, and freedom from discrimination."// Much of this is identical to civil liberties, so its not especially helpful. Recall that civil liberties refer to the freedoms that individuals have from governmental interference. The essence of a freedom is protection from the arbitrary power of government.

But civil rights are different, they often require governmental activity in order to ensure that individuals are able to acquire rights, and do so in a manner that is equal to those held by others. If the heart of civil liberties is freedom, then the heart of civil rights is equality. So a better definition involves this requirement. Civil rights are a guarantees that individual posses certain basic rights and are equally protected by the law. Conveniently, these are the two key components of the Fourteenth Amendment, which can be considered to be the part of the Constitution that establishes the concept of civil rights nationally.

A word on "equality:" The concept of equality is complex. It can refer to a group's political, economic and social status. One might be equal in one area, but not necessarily equal in another. It can also refer to equal opportunity, meaning that everyone is equal in the chances they are given to succeed in life. But it can also refer to equality of condition, meaning what in fact people have. The former is a looser standard for equality, and therefore one that more people can agree with, but critics argue that if in fact people are not substantively equal (in terms of income, wealth, status, etc...) then they are not truly equal.

For further reading:

- dictionary.com: [|Civil Rights]. - Cornell Law School: [|Civil Rights - An Overview]. - Stanford Encyclopedia of Philosophy: [|Equality]. - [|Equality of Opportunity]. - [|Equality of Condition].


 * Feudalism, Class Systems, and Privilege**.

As we have discussed before, the idea that all men are created equal and that each has an equal status before the law is relatively new in recorded history. Previously, the accepted state of affairs -- if we remember [|Robert Filmer] -- was subservience. Man is born in subservience, within a class system. Societies work best is people understand the role they are to play based on the positions they were born into. [|The Noble Lie] is a famous example of an attempt to justify [|hierarchy] in society.

Over the course of history, various means have been used to justify the right of one category of people to rule over others, and to have special privileges not available to others.

Types of privilege (a very brief list): - Possession of one's life - Right to own property - Right to representation in government - Right to vote - Right to sign a contract - Right to use the courts (to sue and testify) - Right to defend oneself in court - Access to education.

But the arc of history has also undermined this notion and led to the gradual eradication of these caterious as mechanisms for distinguishing between people.Still, unequal treatment exists in many areas. Not everyone can drive cars on streets and highways for example, or become a medical doctor or lawyer. It may well be that there are certain things we want restricted to people who have certain requisite skills. As with restrictions on civil liberties, the question is whether the greater interest of society has an interest in restricting access to certain positions or the right to perform certain activities. While we want to ensure that skilled positions in society are held by individuals that have proper skills, controversies exist since people compete in the U.S. on an uneven playing field.

While America rests on the concept of political equality, it is hardly materially equal -- which is a consequence of living in a free society. In fact it is increasingly unequal, with larger gaps between the rich, middle class and poor. As a result certain possibilities in life are more likely to be attainable to some and not to others. Those born into families with educational and business connections have advantages other do not. The controversy arises if these advantages compromise the ability of people to be treated equally in terms of fundamental rights, and if they are not, if there is a role for government to play in redressing it.

It is one thing to say that people have the same rights to do certain things -- to be educated, to use the courts, to petition for grievances -- that others have. But it is another to say that they are able to do so equally in fact due to broader inequalities. The poor, for example are far less able to effectively lobby elected representatives than the wealthy. Further controversies arise, however, when government actually attempts to address these inequalities because the mechanisms for doing so, notably affirmative action, redistributes educational opportunities and jobs from those who traditionally have enjoyed them to those that have not. It is argued that these mechanisms are a form of reverse discrimination, and violate the rights of those who are actually more qualified for the position.

Additional Readings:

- [|Feudalism]. - [|Privilege]. - Wikipedia: [|Social Class]. - [|Thoughts About Political Equality]. - [|Plato on Classes in Society]. - [|Slavery]. - Wikipedia: [|White Privilege].


 * The Expansion of Rights In America**.

The decision to declare independence from Britain can actually be though of as part of the broader civil rights movement since a key complaint made by the colonists was that they were not being granted the rights of Englishmen. The phrase "taxation without representation" was an expression of the refusal of the British government to allow the colonists the right to represent themselves in Parliament. As wealthy and powerful as an American colonist might be, they were still secondary to a British citizen.

- [|The Declaration of Independence].

But the newly minted Americans also placed various restrictions on participation. During the colonial era, some colonies placed restrictions on participation based on religion. The possession of property was also used to restrict participation, in addition to gender, race, poverty and various and others. Early America retained many of the aristocratic restrictions and attitudes developed over the colonial era. Recall that the design of the Constitution was meant to limit the increased impact that the democratic multitudes had on government under the Articles of Confederation. [|Clinton Rossiter] has argued that perhaps as little as 2% of the population could participate politically in the early years of the republic.

Over time, various excluded groups have mobilized to earn equal status in society. This actually is a controversial point, because many groups would argue that they have yet to be fully equal in society. Equality can be measured in various ways. For example, though women have been granted full equality in terms of political representation, they have yet to become equal economically. Women on average continue to earn less than men in the workplace, which critics is a consequence of continued discrimination. So the statement that certain groups have become equal in society, might be rejected by many, nevertheless, with many groups there is a unique process in place for remedying the secondary status many had once been held in.

As it stands, it is held that Americans -- and people in general -- have certain [|fundamental rights], and the denial of these rights requires governmental action in order to ensure that they are attained or preserved. Since there is no authoritative list of these rights in the Constitution (though there are three mentioned in the Declaration of Independence), it is a subject of debate just what these rights are.

Here are some links with histories of the various groups in society that have worked to achieve equal status.

Religion: - The Puritans and the Star Chamber - Roger Williams: [|A Plea for Religious Liberty]. - William Penn: [|Timeline for Religious Freedom]. - [|The Puritans and Religious Freedom.] - [|Religion in Colonial America].

Race: - Wikipedia: [|Racism]. - Wikipedia: [|Black Codes]. - Wikipedia: [|Jim Crow Laws]. - [|African American Civil Rights Movement]. - [|brownvboard.org]. - [|Brown v. Board Timeline].

Women: - [|History of Women's Suffrage in the United States]. - [|Timeline of the Suffragist Movement]. - [|Women's Fight for the Vote]. - [|Like Race, Like Gender]?

Disabilities: - Wikipedia: [|Americans with Disabilities Act].

Age: - Wikipedia: [|Ageism]. - [|The Age Discrimination in Employment Act of 1967].

Sexual Orientation: - Exploring Constitutional Conflicts: [|The Gay Rights Controversy].


 * Abolition, Dred Scott, and the Civil War Amendments**.

Generally when most people think about civil rights they tend to think about African American struggle for equality and place it on a continuum going back to the [|abolition] movement. That struggle culminated, following the Civil War, with the passage of the three Civil War Amendment that abolished slavery and indentured servitude ( [|the Thirteenth Amendment]), established that the protections individuals had from the national government in the Bill of Rights also protected them from the state government and that states could not deny the equal protection of the laws to persons in their jurisdiction ([|the Fourteenth Amendment]), and prevented the states from restricting the right to vote based on race, ethnicity and previous condition of servitude ([|the Fifteenth Amendment]).

These, especially the Fourteenth, were meant to reverse the decision made Dred Scott that Americans of African descent had no status before the courts because they were neither members of the political community not citizens. The nationalization of citizenship was a deliberate means of overturning this argument.

- [|The Dred Scott Decision]. - [|The 14th Amendment].

The Equal Protection Clause

We already covered the 14th Amendment in the discussion of civil liberties and the process by which the freedoms people had from the national government were made applicable to the states as well. The last part of section one of the amendment states " nor [shall any state] deny to persons within its jurisdiction the equal protection of the laws." This phrase is the heart of civil rights in America, But it grew in strength slowly. This is party due to the circumstances of its creation. As a consequence of the establishment of black codes in the South following the end of the Civil War, efforts were made to overturn them. Several civil rights bills were actually passed enhancing the rights of the Freedmen, but there were questions about the constitutionality of these laws, since the national government did not have the delegated powers to interfere with the states in regards to its treatment of its citizens.

The 14th Amendment effectively settled this issue. But it was able to do pass largely because the southern states were not able to vote on the amendment and had to ratify it as a condition of reinstatement. It is easy to understand the tension that existed between the national government, and its promotion of the rights of the freedmen, and the state and local governments of the south that wished to resist these rights. Challenges to the civil rights acts and the amendments led then being limited, especially by noting a distinction between discrimination by legal entities -- such as a legislature, court or executive agency -- and that of a private actor, even if that actor was providing a public good or benefit.

- Findlaw: [|Equal Protection Clause]. - [|The Equal Protection Clause].


 * Plessy v. Ferguson, Brown v. Topeka Board of Education, and Beyond**.

Perhaps the most famous example of the Supreme Court watering down the intent of the Equal Protection Clause was [|Plessy v. Ferguson]. Plessy was a great example of a test case, a court case deliberately designed to challenge a law based on the argument that it violates the constitution. In this case the law in question established racial segregation in railroad transportation in Louisiana. Since this treated passengers unequally, it was argued that this violated the equal protection clause. But the Supreme Court would ultimately disagree, holding that the purpose of the law was to maintain public order and that this was a legitimate governmental interest, and besides, the fact that everyone was assigned a seat of some type meant that they were all being treated equally despite the fact that they were separated. This led to the development of the [|Separate but Equal Doctrine], and to an acceptance of racial segregation generally.

The reaction to the ruling included the development of the [|NAACP], an interest group dedicated to overturning the doctrine and addressing racial discrimination. A legal strategy was developed with the intent of demonstrating that the separate but equal doctrine was impractical and that whenever it was attempted it inevitably led to the creation of unequal institutions. One of the more important of these cases, [|Sweatt v. Painter], comes from our general area and involved whether the state of Texas had complied successfully with the separate but equal doctrine when it created a separate law school for and African American student (what is now the TSU Law School) in order to not have to admit him to the whites only UT Law School.

The NAACP won the case, as it did many others. This set the stage for a series of cases argued collectively as Brown v. Board of Education which used the results of the previous cases as a justification for the argument that the separate but equal doctrine is unrealistic. Separation is inherently unequal, so legally mandated racially segregated school violate the equal protection clause. The key issue in the case, as with previous similar cases, was that racially segregated schools were unequal in quality, and this unevenness distorted the life chances that white and minority students had. A good education -- not just education -- was a right. But in a related decision, when the courts ruled that public schools had to desegregate with "deliberate speed" the weakness of the court, plus the continued resistance to desegregation, became apparent. States that did not wish to comply with the decision found ways around it, including simply shutting down public schooling altogether.

Some of the remedies approved by the courts became controversial. [|Forced busing], being the most noteworthy. This was a way to ensure that schools had a racial mix within them, and could not be considered racially segregated. But challenges to these policies were upheld on the idea that forced desegregation was only appropriate when there was a history of de jure (in law) segregation. De facto (in fact) legislation was not remediable by court orders. Nevertheless, some schools, colleges, and universities want a racially mixed student body, and have used recognition of race -- affirmative action -- to achieve it.

The most recent controversy concerns whether the idea of racially mixed schools is a "compelling public interest" that allows a city to take race into consideration when assigning students to K-12 schools, or a factor universities can consider when deciding who to admit and who to reject. In 2003, affirmative action in university admissions narrowly survived a challenge, some argue that the recently decided case of Parents v Seattle has effectively overturned Brown by denying that race could be used as a compelling state interest in achieving racial balance in public schools in the city.

- [|Brown v. Board of Education]. - [|Parents v. Seattle].


 * The Civil Rights Act**.

- [|The Civil Rights Act of 1964].


 * The Voting Rights Act**.

- [|The Voting Rights Act of 1965]. - [|The White Primary].


 * Defining Discrimination: Strict Scrutiny, Intermediate Scrutiny and the Rational Basis Test**.

A few words are in order about the word "discrimination" because it is central to our discussion of civil rights as equal protection under the law. Discrimination is of course at root unequal protection, either under the law or otherwise. Discriminatory decisions are made all the time. We engage in them whenever we decide to spend time with one person rather than another. The question is whether the discrimination is justifiable, and whether the nature of the discriminatory act is such that it can be reviewed by the court.

Types of discrimination - education. - housing. - employment.

One distinction the court has struck is between de facto and de jure segregation. Racial segregation can be the result of laws which mandate separation, or the result of individual decisions to reside near people of their own ethnicity. De jure segregation is usually successfully challenged, but not de facto segregation.

Over the course of the Supreme Court's history, the court has developed different ways of determining whether or not a discriminatory acts are justifiable.

Strict scrutiny is the most stringent standard applied to discriminatory laws, for example affirmative action. It requires that a compelling public purpose must be met by the law in question. Intermediate scrutiny is slightly less stringent. The law in question must met an important governmental interest to be upheld. The rational basis test is the lowest standard. It justifies discrimination if it fulfills a legitimate public interest.

- Wikipedia: [|Discrimination]. - Wikipedia: [|Strict Scrutiny]. - Wikipedia: [|Intermediate Scrutiny]. - Wikipedia: [|Rational Basis Review]. - Exploring Constitutional Conflicts: [|Levels of Scrutiny].

in order to implement affirmative action, "affirmative steps" had to be taken in order to counter past acts of discrimination. These affirmative steps can take many forms. These can include set asides, or quotas, or adjusted formulas for members of discriminated groups in educational or employment opportunities. Obviously this is where problems can begin because a position that is set aside for a member of a minority group is taken from a member of a majority group. This creates conflict. The member of the majority group may claim, legitimately, that they were not individually responsible for any of the discrimination that harmed the member of the minority group so should not be punished for it. They can also claim that enough time has passed since de jure discrimination was ruled illegal that the group based discrimination has had enough time to work itself out, and that affirmative action is no longer needed.

There is of course at the heart of affirmative action, a contradiction. In order to eradicate the consequences of past acts of racial segregation, race has to be taken into consideration. Race of course is subject to strict scrutiny, meaning that government has to demonstrate a compelling public interest in order to justify the policy. The eradication of past acts of discrimination has been sufficient to justify affirmative action, but this has been less and less the case recently. The Supreme Court has been composed of individuals less likely to agree with need for affirmative action and recent rulings have reflected this suspicion.

The most important two have been: - [|Parents v. Seattle]. - [|Meredith v. Jefferson County].

Additional readings: - America.gov: [|Brown - The Law, the Legacy]. - [|Affirmative Action].

Civil Rights and Governmental Organizations. - The Committee on Equal Employment Opportunity

Civil Rights Interest Groups.


 * Quiz Questions for Online Students**
 * Summer 2009**

1. What is a civil right and how is it distinct from a civil liberty? 2. What impact has the Equal Protection Clause of the 14th Amendment had on the expansion of civil rights in America? 3. Not all distinctions between groups are given equal status. It is easier to treat people unequally in according to certain criteria (like age) easier than others (like gender). List the various ways that people can be treated unequally (discriminated against) and describe what level of protection is given each and why. In order to answer this question well, you should get comfortable with the concepts of strict scrutiny, intermediate scrutiny and rational basis review below. 4. Since the Senate is considering a new nominee to the Supreme Court -- Sonia Sotomayor, and since the Supreme Court is the final arbiter of civil rights in fact are, it is worth considering what commentators are saying about her positions on civil rights and how that might impact future court decisions. Review news sources and find out.

150 words each, at least. Email your answers to me by midnight August 18.

Assignments: Spring 2009

Internet Students:

Answer each of the following in 150 words:

1. Define "Civil Rights" and detail how the Equal Protection Clause establishes it nationally. 2. Detail the argument in Brown v. Board of Education and state how it overturned Plessy v. Ferguson. Some argued that the recent case Parents v. Seattle effectively overturned Brown. Is this true? 3. Perhaps the most topical current civic righst issue concerns gay marriage and whether it is a right under the equal protection clause. [|The focus of the current controversy is in California]. Review the nature of the dispute and look at the governmental processes used to address the issue. Pay special attention to the use of the courts. Do the courts have a unique role to play in establishing civil rights for certain groups in society?

Due March 13th

Lecture Students:

Expect a multiple choice test this week--Wednesday or Thursday depending on your class.