ch 16

CHAPTER 16: EQUALITY AND CIVIL RIGHTS

LEARNING OBJECTIVES:
Define key terms
Explain why the civil war amendments proved ineffective in ensuring racial equality
Outline the NAACP’s strategy for ending school segregation
Distinguish between de jure and de facto segregation
Describe the tactics of the civil rights movement and the passage of the 1964 Civil Rights Act
Show how protectionist legislation discriminated against women
List the major legislative milestones in the struggle for equal rights for women
Explain why women’s rights advocates favored the Equal Rights Amendment (ERA) as a way to extend equal rights to women
Discuss how affirmative action programs have led to charges of reverse discrimination
Distinguish between equality of opportunity and equality of outcome

EQUALITY and CIVIL RIGHTS and THE CHALLENGE of DEMOCRACY

Based on a 2000 US State Dept. report, racial discrimination still persists in the US. In the past, the advocates of social, political, and economic equality have relied on legal, moral, political, and spiritual authority to abolish racial discrimination. Under the new treaty, advocates of racial equality may appeal to an international authority to end racial or other forms of discrimination.

Over the past few decades, however, the government’s priorities have shifted. With the separate-but-equal decision in Plessy v Ferguson, in 1896, the national government tried to sweep the conflict between equality and freedom under the rug. By announcing in Brown v Board of Education in 1954 that “separate is inherently unequal”, the national government faced the tension between freedom and equality and the fact that more of one usually means less of the other. The meaning of equality also creates difficulties. Many who agree on the need for equality of opportunity will not support measures they think are geared to produce equality of outcome.

The struggle for civil rights also illustrates the conflict between pluralism and majoritarianism. In accepting the demands of African-American citizens, the national government acts in a way that is more pluralist than majoritarian. As chapter 1 pointed out, majoritarian democracy does what the majority wants and thus may allow discrimination against minorities, even though the substantive outcome (inequality) seems undemocratic.

Thus, questions about what kind of public policies should be adopted to achieve equality are often highly controversial. If the nation wants to promote racial and gender equality among doctors or sheet-metal workers, for example, it may design policies to help previously disadvantaged and underrepresented groups gain jobs in these areas. This practice, however, may lead to charges of reverse discrimination.

African-Americans seeking civil rights not only had to contend with being members of a minority group, they were also largely excluded from the electoral process. Under the leadership of the National Association for the Advancement of Colored People (NAACP), they adopted the strategies of lobbying legislators and pressing claims before the judiciary, the branch of government least susceptible to majoritarian influences. Later, as the civil rights movement grew, (and as majority opinion became more hospitable to their cause), they emphasized the importance of legislation as a method of achieving equality and also used the technique of civil disobedience to challenge laws they believed to be unjust.

The women’s movement offers an interesting contrast. Women are not actually a minority group; they are a majority of the population. Yet, in the struggle to pass the Equal Rights Amendment (ERA), pluralism prevailed! Although a majority of Americans favored the amendment, it failed. The amending process, by requiring extraordinary majorities, gives enormous power to minorities bent on thwarting a particular cause.

CHAPETR OVERVIEW

TWO CONCEPTIONS OF EQUALITY
Throughout much of American history, civil rights – the powers and privileges supposedly guaranteed to individuals and protected from arbitrary removal at the hand of the government – have often been denied to certain individuals based on their race or sex. The pursuit of civil rights in America has been a story of the search for social and economic equality. But people differ on what equality means. Most Americans support equal opportunity, but many are less committed to equality of outcome.

The Civil War Amendments

After the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were passed to ensure freedom and equality for African-Americans. In addition, as a response to the black codes, Congress passed Civil Rights Acts in 1866 and 1875 to guarantee civil rights and access to public accommodations. While the legislative branch was attempting to strengthen African-American civil rights, the judicial branch seemed intent on weakening them through a number of decisions that gave states room to maneuver around civil rights laws. States responded with a variety of measures limiting the rights of African-Americans, including poll taxes, grandfather clauses that prevented them from voting, and Jim Crow laws that restricted their use of public facilities. These restrictions were upheld in Plessy v Ferguson, which justified them under the separate-but-equal doctrine. By the end of the 19th century, segregation was firmly and legally entrenched in the South.


The Dismantling of School Segregation

The NAACP led the campaign for African-American civil rights. Its activists used the mechanism of the courts to press for equal facilities fro African-Americans and then to challenge the constitutionality of the separate-but-equal doctrine itself. In 1954, in Brown v Board of Education, a class-action suit, the Supreme Court reversed its earlier decision in the Plessy case. It ruled that “separate educational facilities are inherently unequal” and that segregated schools must integrated “with all deliberate speed” under the direction of the federal courts. The Court thus ordered an end to school segregation that had been imposed by law (de jure segregation), but in many parts of the country segregation persisted, because African-Americans and whites lived in different areas and sent their children to local schools (de facto segregation). This problem led the courts to require the unpopular remedy of bussing African-American and white children as a means of integrating schools. By 1974, however, the Supreme Court began to limit bussing as ordered by the judicial branch.

The Civil Rights Movement

The NAACP’s use of the legal system ended school segregation and achieved some other, more limited goals, but additional pressure for desegregation in all aspects of American life grew out of the civil rights movement. The first salvo in the civil rights movement came when African-Americans in Montgomery, Alabama, boycotted the city’s bus system to protest Rosa Parks’ arrest and the law that prohibited African-Americans from sitting in the front of buses. Under the leadership of Martin Luther King, Jr., the movement grew, and civil rights activities, including nonviolent civil disobedience, spread.

In the early 1960’s, President Kennedy was gradually won over to supporting the civil rights movement. In 1963, he asked Congress to outlaw segregation in public accommodations. Following Kennedy’s death, President Lyndon Johnson made passage of the Civil Rights Act of 1964 his top legislative priority, and the bill passed despite a long debate and filibuster in the Senate. More civil rights legislation followed in 1965 and 1968. This time, the legality of civil rights acts was upheld by the Supreme Court.

Having civil rights laws on the books does not mean discrimination will end once and for all, however. For one thing, the courts must interpret the laws and apply them to individual cases. In the Grove City College case, the Supreme Court offered a very narrow interpretation of a civil rights law, in effect taking the teeth out of the legislation. Congress reasserted its original, more sweeping intent in the Civil Rights Restoration Act of 1988.

Meanwhile, the Court, with a new conservative majority in the ascendancy, continued to issue decisions limiting the scope of previous civil rights rulings. Civil Rights groups looked to Congress to restore rights previously recognized, but presidential vetoes scuttled such measures until 1991.

Despite Dr. King’s commitment to nonviolence, the struggle for civil rights was not always a peaceful one. White violence against civil rights workers included murders and bombings. By the late 1960’s racial violence had increased as African-Americans demanded their rights but many whites remained unwilling to recognize them. The African-American nationalist movements, often militant, promoted “black power” and helped instill racial pride in African-Americans.

CIVIL RIGHTS for OTHER MINORITIES

Civil rights legislation won through the struggles of African-Americans also protects other minorities. Native Americans, Latinos, and disabled Americans were also victims of discrimination. Native Americans were not even considered citizens until 1924. The Indian reservations established by the US government were poverty stricken. In the late 1960’s and early 1970’s, the frustrations of Native Americans erupted into militancy. By the mid 1970’s and early 1980’s, they began to win important legal victories, including compensation for land taken by the US government. Recently, new entrepreneurial tribal leadership of Indian tribes has capitalized on the special status of their tribes and enjoyed economic success by sponsoring casino gambling ventures.

Latinos who migrated to the US seeking economic opportunities found poverty and discrimination instead. This problem was compounded by the language barrier and the inattention of public officials to their needs. Latinos, too, have used the courts to gain greater representation on governing bodies. Recently, they have begun to be successful in obtaining elected and appointed political offices.

Building on the model of existing civil rights laws, disabled Americans managed to gain recognition of a right of access to employment and facilities.

HOMOSEXUAL AMERICANS

Though gays and lesbians have made significant progress, they have not yet succeeded in passing a complete civil rights law protecting their rights. The 2000 Supreme Court decision in Boy Scouts of America v Dale illustrated the continued struggles of gays and lesbians for civil rights.

GENDER and EQUAL RIGHTS: The Women’s Movement

Civil rights have long been denied to women, partly as a result of policies designed to protect women from ill treatment. Only after a long struggle did women win the right to vote under the 19th amendment that was passed in 1920. But gaining the vote did not automatically bring equality for women. Discrimination continued in the workplace and elsewhere. It took legislation such as the 1963 Equal Pay Act, the 1964 Civil Rights Act, Adarand,and Title IX of the Education Amendments Act of 1972 to prohibit some of the other forms of discrimination against women. In the early 1970’s, the court began to strike down gender-based discriminations that could not be justified as serving an important government purpose. In 1996, the court applied a new standard of “skeptical scrutiny” to acts denying rights based on sex. This new standard makes distinctions based on sex almost as suspect as those based on race.

For many years, the Court proved reluctant to use the 14th Amendment as the basis for guaranteeing women’s rights. As a result, proponents of equal rights for women sought an amendment to ensure that women’s rights stood on a clear constitutional footing. Although the ERA was ratified by 35 states, it fell 3 states short of the minimum required for adoption and did not become the law of the land, although many states adopted their own ERA’s. Some scholars argue that, in practice, the Supreme Court has since implemented the equivalent of the ERA through its decisions.

Affirmative Action: Equal Opportunity or Equal Outcome

The Johnson Administration started a number of programs to overcome the effects of past discrimination by extending opportunities to groups previously denied rights. These affirmative action programs involved positive or active steps taken to assist members of groups formerly denied equality of opportunity.

These programs soon led to charges of reverse discrimination. The Court, however, has found some role for affirmative action programs. In the Bakke decision, a split court held that race could be one of several constitutionally permissible admissions criteria. In other cases, the Court has allowed the use of quotas to correct past discriminatory practices. In the Adarand case, however, the Court decided that programs that award benefits based on race must themselves be help up to a strict scrutiny standard – a test few could pass. Based on the Adarand case, a federal court in 1996 rejected the use of race or ethnicity as a condition for admission to the University of Texas law school.