215-14th Equality - Civil Rights: A Focus on Race and...

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Unformatted text preview: Civil Rights: A Focus on Race and Consideration of other Issues Equality What is Equality Substantive Equal Resources Legal Equal Process Positive Freedom to Have Negative Freedom from Restraint What is Liberty Answers are Difficult and Evolving What is the 14th Amendment? It is a set of vague(ish) principles Nothing absolute Absolute Equality v. Legal Equality? Substantive v. Procedural Not automatically recognized: may have to assert--political struggle & battle Civil War Civil Rights Movement Political Struggle - Pro life & Pro Choice Litigation in Court An Uneasy History Growing Pains Declaration of Independence Natural and Human Rights for All Slavery v. Religion and Human Rights Slavery and Federalism - Dred Scott v. Sandford (1857) The 14th Amendment: Equal Protection and Due Process Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside (Overrules Dred Scott). 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 Amendment requires states to: Refrain from taking life, liberty and property without treating people fairly (due process); and Provides people with equal treatment under the law (equal protection) Question becomes: Who is Protected under this Amendment For the most part, Race and Ethnicity get the most protection under this Amendment? What about Gender Age Religion Disabilities Sexual Preference Weight Looks In the end, protection depends on expansive interpretations of the 14th and Congressional Legislation (i.e., civil rights acts and Americans with Disabilities Act) The Equal Protection Clause Different Levels of Protection against Governmental Discrimination depends on Basis of Discrimination Strict Scrutiny (Racial Discrimination) Race is a Suspect Classification - Governmental Classifications based on race are subject to strict scrutiny by the courts. As a result, if the classification or discrimination is justified, it must fulfill a compelling state interest and the discrimination must be narrowly tailored to promote that compelling interest. Very High Standard Government must make a very strong argument. Adarand Constructors v. Pena (1995) [93-1841] Intermediate Scrutiny or Exceedingly Pervasive Interests (Gender) Laws based on gender classifications are permissible if they are related to an achievement of a vital government objective. Standard is something less than Strict Scrutiny United States v. Virginia (1996) [94-1941] used Exceedingly Pervasive Interests in VMI case (not the same as Strict?) The Rational Basis Test or Ordinary Scrutiny (Age, Religion, Disability) Court asks if the discrimination is based on the rational interest of the state Government's burden is less than strict and intermediate scrutiny A Constitutional and Legal History of Race in the United States Constitutional Amendments, Congressional Statutes, and Court Decisions trace the history of race in the US 13, 14, & 15 Amendments were adopted after the Civil War during the Reconstruction of the South 13th: No slavery or involuntary servitude 14th: Due Process and Equal Protection States cannot abridge privileges and immunities of US citizens No state can deprive life, liberty, or property w/o due process, Nor deny equal protection of the law. No more 3/5ths Universal male suffrage over 21 15th: Right to vote cannot be denied or abridged on account of Race or Previous Servitude. Gender is not an issue at this point. Reconstruction and Initial Success Radical Republican Congress also passes Civil Rights Acts against discrimination. Public accommodations Political and social equality (Some of this legislation is stronger than legislation passed in the 1960's 100 years later. The Civil Rights Act of 1866 Civil Rights Act of 1875 Many of these laws worked and many former slaves were elected to office in the South African Americans in Congress Changes worked until federal troops left the South For the North, Issues of Race gave way to other interests and State based discrimination grew through laws like those known as "Jim Crow" laws. Slaughter House Case We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth. We do not say that no one else but the engro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it. The Problem? Separation of Powers/Checks and Balances Federalism Pluralism Constitutional Provisions Jim Crow: De Jure and De Facto Discrimination Some laws in the North and the South discriminated on the basis of race. Some discrimination was caused by the nature of society at the time In short there are two types of discrimination. Defacto: Private Actions outside of the 14th Amendment Defacto (i.e., individuals choose to hire one race or buy houses in a neighborhood dominated by one race) Dejure: State Laws that discriminate and segregate. Behavior that is covered by the 14th Amendment Dejure discrimination (i.e., Laws that require separate hotels, trains, drinking fountains, and Bibles in Court) African Americans: Jim Crow and Return of De Jure Discrimination Supreme Court overturns parts of Civil Rights Acts in 1870's and it limits the application of the 14th Amendment Supreme Court decision of Plessy v. Ferguson (1896) [210] (1896) establishes the principle that separate but equal is consistent with the 14th Amendment. Case creates a "legal fiction" (i.e., the emphasis was placed on separate but NOT equal) Plessy's Teaching We consider the u derlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: 'This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.' Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly Overcoming De Jure Discrimination in the Right to Vote 14th & 15th Amendment Protect the Right to Vote Once Reconstruction ended Voting violations grew KKK terror was used to intimidate Southern States were controlled by one political party and that party only allowed whites to participate in selection of party candidates. Even if blacks could vote in general election, their candidates could not win Racial Gerrymandering: Draw representative districts to limit minority votes Poll Tax: Charge people to vote (Overturned by 24th Amendment) Literacy Test: very subjective Some black lawyers failed Constitution Test Number of bubbles in a bar of soap? Meaning of Obscure passage in State Constitution Define concept of Habeas Corpus In one area, 49,607 illiterate whites "passed" the test and only two blacks Result: 1961 less than 10% of blacks able to vote in 126 Fixing Voting Discrimination Civil Rights Act of 1964 No literacy test or minor errors on registration can be used to refuse people the right to vote The Voting Rights Act of 1965 began to dismantle discrimination in voting Federally Employed Registrars and poll watchers Use of courts to sue states who do not comply 24th Amendment: Ends Poll Tax Slow Process of Change over the last 50 years The Big Picture: Understanding the Constitutional Structure and its Impact on Policy Change The Case of School Discrimination School Desegregation and the Constitutional System The Players NAACP Supreme Court President/Bureaucracy Congress States Categorical Grants Political Parties Public Opinion The Story Plessy v. Ferguson (1896) Separate But equal NAACP bring cases: Professional Schools and Colleges--Separate but equal is inherently Unequal Gains v. Canada (1938) Mo. Pay out of state tuition for law school no must provide equal school Created Law School at Lincoln University (MO. All AA school) Sweatt v. Painter (1950) University of Texas Law School creates "Law School for Negros" Are the two schools "Substantially Significant"? No Full time Faculty (5), Small Library (16,500) Small Student Body (23) Non-Objective Alumni/Political Connections Overcoming De Jure Discrimination in Education Slowly, the Supreme Court began to undo its decision in Plessy Plessy is overturned in the Brown Decisions Brown v. Board of Education of Topeka (1954) [1] overturned the separate but equal doctrine. Brown v. Board of Education II (1955) [1] States must desegregate with "All Deliberate Speed". Implementation of Brown was very slow see end of the Chapter Lecture Busing was used to integrate school classrooms. Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) [281] Brown, Continued Brown v. Bd. (1954) Separate but equal is inherently unequal in elementary education Thurgood Marshall: If decisions are violated we will have them in court by the afternoon Many believed that discrimination in schools would phase itself out in a few years Court did not announce time table or how in Brown I Brown II (1956) desegregate with all deliberate speed Between 1955 & 1964 Supreme Court hears only 3 Cases dealing schools with School Discrimination Lower court federal judges in the South are deemed to be the 58 lonely men President Eisenhower has to call out troops in Little Rock to desegregate the Immediate Movement in South to Stop desegregation Impeach Chief Justice Earl Warren Southern Gov: I draw the line in the dust and throw the gauntlet down before the feet of tyranny and say segregation now, segregation tomorrow, and segregation forever Southern Manifesto: Signed by 96 Senators and Members of House Violence and Riots Close public schools & reopen as private Louisiana denied promotion or graduation to anyone from desegregated school. Civil Rights Movement Protests in the South Civil Disobedience Northern whites see Dogs and Water Cannon Congress: Civil Rights Act of 1964 & 1965 President and Executive Branch Justice Department brings 73 cases in 1966, huge increase from 1 in 1963 The Beginnings of Change: Civil Rights Act of 1964 Civil Rights Act of 1964: Title VI-Discrimination & Government Funds Civil Rights Act 1964 Voting Rights Act of 1965 Place federal officials in the South to enforce The Voting Rights Act Of 1965 Elementary & Secondary Education Act of 1965: Big Carrot The Aftermath - "With an Even Hand": Brown v. Fifty(Library of Congress Exhibition) A Story in Pictures and Documents The Aftermath - "With an Even Hand": Brown v. Bo Fifty(Library of Congress Exhibition) Desegregation: Lessons Learned Protests and other actions by interest groups (Pluralism) Use of Courts to enforce rights (Individual Rights) Cooperation of the three branches of the federal government (Separation of Powers and Checks and Balances) Cooperation of the States (Federalism) Back to Basics Tyranny of the Majority? Federalist 10 Tyranny of the Minority? Tyranny of the Government Federalist 51 Separation of Powers Checks and Balances Federalism Constitutional Rights Nothing Absolute Nothing Self-Enforced ...
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