One
of the most influential Constitutional clauses during the mid to late 20th
century has been the equal protection clause of the Fourteenth Amendment that
forbids any state to "deny to any person within its jurisdiction the equal
protection of the laws.ä This
clause has not been interpreted to mean that everyone is to be treated the same,
but that certain divisions in society, such as sex, race, and ethnicity are
suspect categories, and that laws that make distinctions that affect these
groups will be subjected to especially strict scrutiny. In recent years, these
suspect categories have been expanded to include discrimination based on age,
disability, and sexual preference.
The
United States has always been home to many different racial and ethnic groups
that have experienced varying degrees of acceptance into American society.
Today major racial and ethnic minorities include African Americans,
Latinos, Asians, and Native Americans.
The
history of African Americans includes 250 years of slavery followed by almost a
century of widespread discrimination. Their
efforts to secure equal rights and eliminate segregation have led the way for
others.
After
the Civil War, civil rights were guaranteed for former slaves in the Fourteenth
and Fifteenth Amendments. However, many discriminatory laws remained in states
across the country, and the states of the defeated Confederacy passed Jim
Crow laws, which segregated blacks from whites in virtually all public
facilities including schools, restaurants, hotels, and bathrooms. In addition to
this de jure (by law) segregation, strict de facto
(in reality) segregation existed in neighborhoods in the South and the North.
The
1896 court decision Plessy v. Ferguson supported the segregation
laws. Homer Plessy sued the state
of Louisiana for arresting him for riding in a ãwhites onlyä railroad car.
The Court ruled that the law did not violate the equal protection clause
of the 14th Amendment, as Plessy claimed.
The majority opinion stated that segregation is not unconstitutional as
long as the facilities were substantially equal.
This ãseparate but equal" doctrine remained the Courtâs
policies until the 1950s.
In
1909 the National Association for the Advancement of Colored People (NAACP)
was founded to promote the enforcement of civil rights guaranteed by the
Fourteenth and Fifteenth Amendments. The
NAACP struggled for years to convince white-dominated state and national
legislatures to pass laws protecting black civil rights, but they made little
progress until they turned their attentions to the courts. The NAACP decided
that the courts were the best place to bring about change, and they assembled a
legal team that began to slowly chip away at the ãseparate but equalä
doctrine.
From
the mid-1930s to about 1950, they focused their attention on requiring that
separate black schools actually be equal to white schools.
Finding little success with this approach, Thurgood Marshall, an
NAACP lawyer for Linda Brown in Brown v. Board of Education of Topeka
in 1954, argued that separate but equal facilities are "inherently
unequal" and that separation had "a detrimental effect upon the
colored children." The Court overturned the earlier Plessy decision
and ruled that "separate but equal" facilities are unconstitutional.
Following this landmark case was over a decade of massive resistance to
desegregation in the South, but organized protests, demonstrations, marches, and
sit-ins led to massive de jure desegregation by the early 1970s.
De
jure desegregation was insured by the Civil Rights Act of 1964, the 24th
Amendment, and the Voting Rights Act of 1965. The 1964 act banned
discrimination in public facilities and voter registration and allowed the
government to withhold federal funds from states and local areas not complying
with the law. The 24th Amendment banned paying a tax to vote (the
poll tax) ö a practice intended to keep blacks from voting. The 1965 act
outlawed literacy tests and allowed federal officials to register new voters. As
a result, the number of registered black voters increased dramatically, and
today registration rates of African Americans are about equal to those of
whites. The Johnson Administration
also set up as part of the "Great Society" an Office of Economic
Opportunity that set guidelines for equal hiring and education practices. To
comply with the new guidelines, many schools and businesses set up quotas (a
minimum number of minorities) for admission or employment.
School Integration
Schools
were not integrated overnight after the Brown decision, and active
resistance continued through the early 1960s.
In 1957 Arkansas Governor Orville Faubus used the stateâs National
Guard to block the integration of Central High School in Little Rock.
President Dwight Eisenhower responded by federalizing the Arkansas
National Guard and sending in 500 soldiers to enforce integration.
In 1962 James Meredith, an African American student, was not allowed to
enroll at the University of Mississippi, prompting President John F. Kennedy to
send federal marshals to protect Meredith.
To
break down de facto school segregation caused by residential patterns,
courts ordered many school districts to use busing to integrate schools.
Students were transported from areas where they lived to schools in other
areas to achieve school diversity. The
practice proved to be controversial, but the courts upheld busing plans for many
years. However, by the late 1990s
and early 2000s federal courts had become increasingly unwilling to uphold
busing or any other policies designed to further integration.
For example, in 2001 a federal court determined that the Charlotte-Mechlenburg
school district in North Carolina no longer had to use race-based admission
quotas because they had already achieved integration.
Today de facto
school segregation still exists, especially in cities, where most African
American and Hispanic students go to schools with almost no non-Hispanic whites.
So by the early years of the 21st century, the goal of
integration expressed in Brown v. Topeka in 1954 has not been realized.
Of
all the minorities in the United States, Native Americans are one of the most
diverse. Almost half of the nearly 2 million people live on reservations,
or land given to them as tribes by treaties with the U.S. government. 308
different tribes are formally registered with the government, and among them,
almost 200 languages are spoken. Enrolled members of tribes are entitled to
certain benefits (such as preferred employment or acceptance to college)
administered by the Bureau of Indian Affairs of the Department of the Interior.
The benefits are upheld by the Supreme Court as grants not to a "discrete
racial group, but rather, as members of quasi-sovereign tribal entities."
Poor
living conditions and job opportunities on reservations have been the source of
growing Native American militancy. Tribes have demanded more autonomy and fewer
government regulations on reservations. Some recent cases have involved the
right of tribes on reservations to run and benefit from gambling operations that
the government has regulated. Some tribes are demanding better health care
facilities, educational opportunities, decent housing, and jobs.
Under
Article I, Section 8, Congress has full power under the commerce clause to
regulate Indian tribes. Congress abolished making treaties with the tribes in
1871, but until recent times tribal governments were weak, many reservations
were dissolved, and many tribes severed their relationship with the U.S.
government. During the past twenty years, both the tribes and the government
have shown revived interest in interpreting earlier treaties in a way to protect
the independence and authority of the tribes. With the backing of the Native
American Rights Fund (funded in part by the Ford Foundation), more Indian
law cases have been brought in the last two decades than at any time in our
history. Colorado elected the first Native American (Ben Nighthorse Campbell) to
Congress in 1992.
Latinos
compose the fastest growing minority group in the United States today. The
approximately 35 million Latinos (an increase of about 60 percent since 1980)
may be divided into several large subgroups:
A major issue for Latinos centers on English as a Second
Language education in U.S. public schools.
Latino children often find language a barrier to success in school, and
schools have struggled to find the best ways to educate them.
Supporters of ESL education believe that Spanish instruction should be
provided and encouraged, whereas critics claim that such education hampers the
learning of English, a necessary skill for success in the United States.
In recent years, bilingual programs established in the 1960s have come
under increasing attack. In 1998,
California residents passed a ballot initiative that called for the end of
bilingual education in the state. After
the courts backed the initiative, the states of Arizona and Massachusetts also
banned bilingual education.
Latinos,
like blacks, have become increasingly involved in politics, and by the 1998
election 19 Latinos were members of the House of Representatives. Two Latinos
were elected to the Senate in 2004.
About
8 million Americans are of Asian origin, a number that is rapidly increasing.
Asian Americans come from many different countries with different
languages and customs. About 40 per cent of our immigrants now are from Asia,
mostly from the Philippines, China, Taiwan, Korea, Vietnam, Cambodia, Pakistan,
and India. The Chinese were the
first major group of Asians to come to the United States, attracted by expansion
in California and the opportunities to work in mines.
Until
recently, Asians were severely limited by U.S. immigration policies.
Discriminatory immigration and naturalization restrictions were placed on the
Chinese in 1882, and remained in place until after World War II.
In 1906 The San Francisco Board of Education excluded al Chinese,
Japanese, and Korean children from neighborhood schools. During World War II,
Japanese Americans on the West Coast were placed in internment camps because of
the fear that they would conspire with a Japanese attack from the Pacific Ocean.
A major influx of Asians began in response to new U.S. immigration laws passed
in the 1960s, which based immigration quotas more on occupation and education
than on region of origin. Immigration
policies now favor many Asians, especially those with high educational and
professional qualifications enforced by current immigration laws.
A number of groups have come at least partly as a result
of Cold War politics since World War II. Koreans are a growing group,
concentrated in southern California, Hawaii, Colorado, and New York City.
Korean businesses have been the object of violent attacks, such as in the
1992 Los Angeles riots and separate, more recent incidents in New York City. The
most recent arrivals are refugees from the political upheavals in Vietnam, Laos,
and Cambodia.
Some estimates suggest that by 2050 as many as 10 percent
of all Americans will be of Asian-Pacific Islands origins.
Before
the 1970s the Court interpreted the equal protection clause of the Fourteenth
Amendment very differently for women than it did for blacks. Whereas the legal
tradition clearly intended to keep blacks in a subservient position, the legal
system claimed to be protecting women by treating them differently.
In
the late eighteenth century, not only were women denied the right to vote, but
they had few legal rights, little education, and almost no choices regarding
work. The legal doctrine known as coverture
deprived married women of any identity separate from that of their husbands.
Circumstances began to change in the mid-nineteenth century.
A
meeting in Seneca Falls, New York in 1848 is often seen as the beginning of the
womenâs suffrage (right to vote) movement.
The meeting produced a Document of Sentiments modeled after
the Declaration of Independence signed by 100 men and women that endorsed the
movement.
It
took 72 years till the goal of voting rights was reached.
With the passage of the Nineteenth Amendment in 1920, the suffrage
movement that had begun in the early 1800s came to a successful end.
The Amendment was brief and to the point: "The right of citizens of
the United States to vote shall not be denied or abridged by the United States
or by any State on account of sex."
However, other legal rights were not achieved until the
late 20th century, partly because the Courts sought to protect women
from injustice. In 1908 the Court
upheld an Oregon law that limited female (but not male) laundry workers to a
ten-hour workday. The Court claimed that "The two sexes differ in structure
of body, in the functions to be performed by each, in the amount of physical
strength, in the capacity for long-continued, labor, particularly when done
standing...." So biological differences justified differences in legal
status, an attitude reflecting protective paternalism.
Other
legal rights were not addressed until the 1970s, when the women's movement
questioned the Court's justification for different treatment of the sexes under
the law. A unanimous Court responded by setting down a new test, the
reasonableness standard: a law that endorses different treatment "must
be reasonable, not arbitrary, and must rest on some ground of difference having
a fair and substantial relation to the object of the legislation so that all
persons similarly circumstances shall be treated alike."
The
"reasonableness" standard was much looser than the "suspect"
standard used to judge racial classifications: some distinctions based on
sex are permitted and some are not. For example, a state cannot set different
ages at which men and women are allowed to buy beer, nor can girls be barred
from Little League baseball teams, and public taverns may not cater to men only.
However, a law that punishes males but not females for statutory rape is
permissible, and states can give widows a property-tax exemption not given to
widowers. Other practices generally endorsed by the court but now being
challenged are the acceptability of all-boy and all-girl public schools and the
different rates of military officer promotions (men generally have been promoted
earlier than women).
Women and the Military Draft
One
of the most controversial issues defining women's rights is the implication of
equal rights for the military draft. Should
women be treated differently than men regarding military service? The Supreme Court decided in Rostker v. Goldberg
(1981) that Congress may require men but not women to register for the draft
without violating the due-process clause of the Fifth Amendment. However, other
laws passed by Congress regarding differential treatment in the military have
recently been challenged. For many years Congress barred women from combat
roles, but in 1993, the secretary of defense opened air and sea combat positions
to all persons regardless of sex. Only ground-troop combat positions are still
reserved for men.
The Equal Rights Amendment
The
controversial issues surrounding the military draft contributed to the ultimate
failure of the Equal Rights Amendment, which read "Equality of
rights under the law shall not be denied or abridged by the United States or any
State on account of sex." Congress passed this amendment in 1972, but it
ran into trouble in the ratification process. By 1978, thirty-five states had
ratified, three short of the necessary three-fourths. Many legislators and
voters worried that the ERA would require women to be drafted for combat duty.
Meanwhile, the time limit for ratification ran out, the Republican Party
withdrew its endorsement, and Congress has not produced the two-thirds majority
needed to resubmit it to the states.
Abortion Rights
Roe
v. Wade
(1973) broke the tradition of allowing states to decide the availability of
abortions within state boundaries. In this case the Court struck down a Texas
law that banned abortion except in cases when the mother's life was threatened.
The Court argued that the due-process clause of the Fourteenth Amendment implies
a "right to privacy" that protects a woman's freedom to
"choose" abortion or not during the first three months (trimester) of
pregnancy. States were allowed freedoms to regulate during the second and third
trimesters.
The
decision almost immediately became controversial, with those supporting the
decision calling themselves "pro-choice" and those opposing
"pro life." Although the Roe decision still holds, its critics
still fight for its reversal. The Court has declared unconstitutional laws that
require a woman to have the consent of her husband, but it has allowed states to
require underage girls to have the consent of her parents. In the 1989 Webster
v. Reproductive Health Services case, the Court upheld some state
restrictions on abortions (such as a twenty-four hour waiting period between
request for and the performance of an abortion), but the Court has since refused
to overturn Roe.
Discrimination
in the Workplace
Since the 1960s
laws have been passed that protect women against discrimination in the
workplace. Title VII of the
Civil Rights Act of 1964 prohibits gender discrimination in employment, and has
been used to strike down many previous work policies. In 1978, Congress amended Title VII to expand the definition
of gender discrimination to include discrimination based on pregnancy.
The Supreme Court later extended Title VII to include sexual
harassment, which occurs when job opportunities, promotions, and salary
increases are given in return for sexual favors.
One
of the most important recent issues regarding womenâs rights is ãequal
pay for equal work.ä In 1983,
the state Supreme Court of Washington ruled that its government had
discriminated for years against women by not giving them equal pay for jobs of
ãcomparable worthä to those that men held.
This doctrine of comparable worth requires that a worker be paid
by the ãworthä of his or her work, not by what employers are willing to pay.
Although the system is difficult to implement, many large companies have
adopted sophisticated job evaluation systems to determine pay scales for jobs
within their structures.
The gains made by
racial groups, ethnic groups, and women have motivated others to organize
efforts to work for equal rights. Three
of the most active are older Americans, the disabled, and homosexuals.
All three groups have organized powerful interest groups, and all have
made some progress toward ensuring their rights.
The baby boomers
born after World War II are now swelling the ranks of Americans over 50, and
with their numbers, discrimination against older Americans has gained the
spotlight. A major concern is
discrimination in the workplace.
Congress
has passed several age discrimination laws, including one is 1975 that denied
federal funds to any institution discriminating against people over 40.
The Age Discrimination in Employment Act raised the general compulsory
retirement age to 70. Since then, retirement has become more flexible, and in some
areas compulsory retirement has been phased out entirely.
One
of the most influential interest groups in Washington is the American
Association of Retired Persons (AARP).
With more than 30 million members, the organization successfully lobbies
Congress to consider the rights of older Americans in policy areas such as
health, housing, taxes, and transportation.
Disabled
Americans make up about 17 percent of the population, and they have organized to
fight discrimination in education, employment, rehabilitation services, and
equal public access.
The
first rehabilitation laws were passed in the late 1920s, but the most important
changes came when the Rehabilitation Act of 1973 added disabled people to the
list of groups protected from discrimination.
Two
important anti-discrimination laws are:
These laws have
been widely criticized because they require expensive programs and alterations
to public buildings. Activists for
the movement criticize the owners of public buildings and the government for not
enforcing the laws consistently.
In
the last two decades, homosexuals have become much more active in their attempt
to gain equal rights in employment, education, housing, and acceptance by the
general public. In recent years
several well-organized, active interest groups have worked to promote the rights
of homosexuals and lobby for issues such as AIDS research funding.
Many cities have banned discrimination, and many colleges and
universities have gay rights organizations on campus.
Despite,
these changes, civil rights for homosexuals is still a controversial issue, as
reflected in 1993 by the resistance to the Clinton administrationâs proposals
to protect gay rights in the military. The
resulting ãdonât ask, donât tellä policy has not resolved the ambiguous
status of gays in the military, and the Supreme Court has not yet ruled on its
constitutionality.
The
Supreme Court first addressed homosexual rights in 1986 when it ruled in Hardwick
v. Georgia that Georgiaâs law forbidding homosexual relations was
constitutional. The Court based its
decision on original intent (the intent of the founders), noting that all
13 colonies had laws against homosexual relations, as did all 50 states until
1961. Most recently, in Romer v. Evans (1996) the Court provided some support to homosexuals when it
struck down a Colorado amendment to the state constitution that banned laws
protecting homosexuals. In the
majority opinion, Justice Anthony Kennedy wrote that ãa bare desire to harm a
politically unpopular group cannot constitute a legitimate governmental
interest.ä The Court reversed Hardwick v. Georgia in 2003 with Lawrence
v. Texas, when it held that laws against sodomy violate the due process
clause of the 14th amendment. In
the word of the Court,
ãThe liberty protected by the Constitution allows homosexual persons
the
right to choose to enter
upon relationships in the confines of their homes
and
their own private lives and still retain their dignity as free persons.ä
Currently,
a controversial topic is state recognition of homosexual marriages and ãcivil
unions.ä After courts in
Massachusetts upheld the right in that state in 2004, a number of homosexual
marriages were conducted in other areas of the country, including San Francisco
and New York City. In reaction,
several states passed initiatives in the election of 2004 that banned
recognition of homosexual marriages.
By
the 1970s the focus of concern turned to racial balance as opposed to mere
nondiscrimination, or equality of opportunity vs. equality of result. Do
civil rights required merely the absence of discrimination, or do they required
that steps be taken to insure that blacks and whites enroll in the same schools,
work in the same jobs, and live in the same housing?
The
Courts helped define the issue in the 1978 Bakke v. California case
that questioned the quota practices of the University of California medical
school at Davis. Bakke, a white student denied admission to the school, sued the
state, claiming reverse discrimination, since minorities with lesser
qualifications were admitted to the medical school. In a divided decision, the
court ruled in Bakke's favor, declaring quotas unconstitutional although
allowing race as one criterion for admission to a public institution.
Many cases followed that further defined reverse
discrimination. Two examples
are:
In
2003 in two cases involving policies at the University of Michigan, the Supreme
Courtâs ruling supported the constitutionality of affirmative action programs
and the goals of diversity. The
Court struck down the universityâs plan for undergraduate admission, saying
that it amounted to a quota system. However,
they upheld the plan used by the law school, which took race into consideration
as part of a broad consideration of applicantsâ backgrounds.
As
the United States continues to become a more and more diverse country, the
nature of civil rights issues for minority groups certainly will change.
Despite the changes, the pursuit of equality undoubtedly will remain a
constant in the American political culture.
IMPORTANT
DEFINITIONS AND IDENTIFICATIONS:
AARP
Bakke v. California
Brown v. Board of Education of Topeka
Civil
Rights Act of 1964
Comparable
worth
coverture
De
facto segregation
De
jure segregation
Declaration of
Sentiments
Equal Rights
Amendment
Equality of
opportunity
Equality of result
Hardwick v.
Georgia
Jim Crow laws
Lawrence v. Texas
NAACP
Native American Rights Fund
Nineteenth Amendment
Office of Economic
Opportunity
Original intent
Plessy v. Ferguson
Pro-choice v.
pro-life
Reasonableness
standard
Reservations
Reverse discrimination
Richmond v.
Croson
Roe v. Wade
Roster v. Goldberg
Separate but equal
doctrine
Sexual harassment
Suffrage movement
Suspect categories
Thurgood Marshall
Title VII
United
Steelworkers v. Weber
Voting Rights Act of
1965
24th
Amendment