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6 Civil Rights

LEARNING OBJECTIVES

WHAT YOU NEED TO KNOW


If both African Americans and women benet from civil rights, why do federal courts
allow them to be treated somewhat differently?
What is the difference between strict scrutiny and intermediate scrutiny?
Legally, what is meant by sexual harassment?
If sexual relations among gays cannot be banned, why is it that some organizations
can ban gay people from membership?

WHO GOVERNS?
1. Since Congress enacts our laws, why has it not made certain that all groups have the
same rights?
2. After the Supreme Court ended racial segregation in the schools, what did the president and
Congress do?

TO WHAT ENDS?
1. If the law supports equality of opportunity, why has afrmative action become so important?
2. Under what circumstances can men and women be treated differently?

THEN In 1830, Congress passed a law requiring all California and placed them in relocation centers far
Indians east of the Mississippi River to move to the from the coast.
Indian Territory west of the river, and the army set
about implementing it. In the 1850s, a major politi- NOW Things have changed since those days. Now it
cal ght broke out in Boston over whether the police would be inconceivable that the army would relocate Native
department should be obliged to hire an Irish ofcer. Americans. Today no one can be denied entry into a police
Until 1920, women could not vote in most elections. department by reason of race, ethnicity, or religion. And
In the 1930s, the Cornell University Medical School presently law enforcement is so preoccupied with treating
had a strict quota limiting the number of Jewish even suspected terrorists (never mind all Muslims) fairly
students who could enroll. In the 1940s, the army, that even a man who was caught trying to blow up an pas-
at the direction of President Franklin D. Roosevelt, senger plane approaching Detroit was not sent immedi-
removed all Japanese Americans from their homes in ately to a prison, but rather given the Miranda warning to

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131
Robert W. Kelley/Time Life Pictures/Getty Images

make it clear (as we saw in the last chapter) that he did not such distinctions are defensible. The courts have long
have to speak at all without a lawyer present. held that classifying people on the basis of their income
and taxing them at different rates is quite permissible
Civil rights is about cases in which some group, usu-
because such classications are not arbitrary or unrea-
ally dened along racial or ethnic lines, is denied access
sonable and are related to a legitimate public need
to facilities, opportunities, or services that are available
(that is, raising revenue). Increasingly, however, the
to other groups. The pertinent question regarding civil
courts have said that classifying people on the basis of
rights is not whether the government has the authority
their race or ethnicity is unreasonable.1 The tests the
to treat different people differently; it is whether such
courts use are summarized in the box on page 143.
differences in treatment are reasonable. All laws and
policies make distinctions among peoplefor example, To explain the victimization of certain groups and the
the tax laws require higher-income people to pay taxes methods by which they have begun to overcome it, we
at a higher rate than lower-income onesbut not all shall consider chiey the case of African Americans.

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
132 Chapter 6 Civil Rights

Black-white relations have in large African Americans were not allowed to vote at all
civil rights The measure dened the problem of in many areas; they could vote only with great dif-
rights of people to civil rights in this country. Most of culty in others; and even in those places where
be treated without the landmark laws and court deci- voting was easy, they often lacked the material and
unreasonable or sions have involved black claims. institutional support for effective political organi-
unconstitutional The strategies employed by or zation. If your opponent feels deeply threatened by
differences. on behalf of African Americans your demands and can deny you access to the politi-
have typically set the pattern for cal system that will decide the fate of those demands,
the strategies employed by other you are, to put it mildly, at a disadvantage. Yet from
groups. At the end of this chapter, the end of Reconstruction to the 1960sfor nearly
we shall look at the related but somewhat different a centurymany blacks in the South found them-
issues of womens rights and gay rights. selves in just such a position.
To the dismay of those who prefer to explain politi-
cal action in terms of economic motives, people often
The Black Predicament attach greater importance to the intangible costs
and benets of policies than to the tangible ones.
Though constituting more than 12 percent of the Thus, even though the average black represented no
population, African Americans until fairly recently threat to the average white, antiblack attitudes
could not in many parts of the country vote, attend racismproduced some appalling actions. Between
integrated schools, ride in the front seats of buses, 1882 and 1946, 4,715 people, about three-fourths of
or buy homes in white neighborhoods. them African Americans, were lynched in the United
States.2 Some lynchings were carried out by small
Although today white citizens generally do not feel
groups of vigilantes acting with much ceremony, but
threatened when a black family moves into Cicero,
others were the actions of frenzied mobs. In the sum-
Illinois, a black child goes to school at Little Rock
mer of 1911, a black man charged with murdering
Central High School, or a black group organizes
a white man in Livermore, Kentucky, was dragged
voters in Neshoba County, Mississippi, at one time
by a mob to the local theater, where he was hanged.
most whites in Cicero, Little Rock, and Neshoba
The audience, which had been charged admission,
County felt deeply threatened by these things (and
was invited to shoot the swaying body (those in the
some whites still do). This was especially the case in
orchestra seats could empty their revolvers; those
those parts of the country, notably the Deep South,
in the balcony were limited to a single shot).3
where blacks often were in the majority. There the
politically dominant white minority felt keenly the Though the public in other parts of the country was
potential competition for jobs, land, public services, shocked by such events, little was done: lynching
and living space posed by large numbers of peo- was a local, not a federal, crime. It obviously would
ple of another race. But even in the North, black not require many lynchings to convince African
gains often appeared to be at the expense of lower- Americans in these localities that it would be fool-
income whites who lived or worked near them, not hardy to try to vote or enroll in a white school. And
at the expense of upper-status whites who lived in even in those states where blacks did vote, popular
suburbs. attitudes were not conducive to blacks buying homes
or taking jobs on an equal basis with whites. 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 whites thought black and white children
Russell Lee/The Granger Collection, New York

should attend the same schools; in 1956, the propor-


tion had risen, but only to 49 percent, still less than
a majority. (In the South, white support for school
integration was even lower14 percent favored it
in 1956, about 31 percent in 1963.) As late as 1956,
a majority of southern whites were opposed to inte-
grated public transportation facilities. Even among
whites who generally favored integration, there was
in 1963 (before the ghetto riots) considerable oppo-
Segregated water fountain in Oklahoma City (1939). sition to the black civil rights movement: nearly

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
The Campaign in the Courts 133

half of the whites classied in a survey as moderate later the dominant issues were manpower develop-
integrationists thought demonstrations hurt the ment, economic progress, and the improvement of
black cause; nearly two-thirds disapproved of actions housing and neighborhoods.
taken by the civil rights movement; and more than
a third felt civil rights should be left to the states.4
In short, the political position in which African The Campaign
Americans found themselves until the 1960s
made it difcult for them to advance their inter- in the Courts
ests through a feasible legislative strategy; their The Fourteenth Amendment was both an opportu-
opponents were aroused, organized, and powerful. nity and a problem for black activists. Adopted in
Thus if black interests were to be championed in 1868, it seemed to guarantee equal rights for all:
Congress or state legislatures, blacks would have to No state shall make or enforce any law which shall
have white allies. Though some such allies could be abridge the privileges or immunities of citizens of
found, they were too few to make a difference in a the United States; nor shall any state deprive any
political system that gives a substantial advantage person of life, liberty, or property, without due pro-
to strongly motivated opponents of any new policy. cess of law; nor deny to any person within its juris-
For that to change, one or both of two things would diction the equal protection of the laws.
have to happen: additional allies would have to
be recruited (a delicate problem, given that many The key phrase was equal protection of the laws.
white integrationists disapproved of aspects of Read broadly, it might mean that the Constitution
the civil rights movement), or the struggle would should be regarded as color-blind: no state law could
haveto be shifted to a policy-making arena in which have the effect of treating whites and blacks differ-
the opposition enjoyed less of an advantage. ently. Thus, a law segregating blacks and whites
into separate schools or neighborhoods would be
Partly by plan, and partly by accident, black leaders unconstitutional. Read narrowly, equal protection
followed both of these strategies simultaneously. By might mean only that blacks and whites had cer-
publicizing their grievances and organizing a civil tain fundamental legal rights in common, among
rights movement that (at least in its early stages) them the right to sign contracts, to serve on juries,
concentrated on dramatizing the denial to blacks or to buy and sell property, but otherwise they could
of essential and widely accepted liberties, African be treated differently.
Americans were able to broaden their base of sup-
port both among political elites and among the Historians have long debated which view Congress
general public and thereby raise civil rights mat- held when it proposed the Fourteenth Amendment.
ters from a low to a high position on the political What forms of racial segregation, if any, were still
agenda. By waging a patient, prolonged, but care- permissible? Segregated trains? Hotels? Schools?
fully planned legal struggle, black leaders shifted Neighborhoods?
decision-making power on key civil rights issues The Supreme Court took the narrow view. Though
from Congress, where they had been stymied for in 1880 it declared unconstitutional a West Virginia
generations, to the federal courts. law requiring juries to be composed only of white
males,5 it decided in 1883 that it was unconstitu-
After this strategy had achieved some substantial
tional for Congress to prohibit racial discrimination
successesafter blacks had become enfranchised
in public accommodations such as hotels.6 The dif-
and legal barriers to equal participation in political
ference between the two cases seemed, in the eyes of
and economic affairs had been loweredthe politics
the Court, to be this: serving on a jury was an essen-
of civil rights became more conventional. African
tial right of citizenship that the state could not deny
Americans were able to assert their demands
to any person on racial grounds without violating
directly in the legislative and executive branches
the Fourteenth Amendment, but registering at a
of government with reasonable (though scarcely
hotel was a convenience controlled by a private per-
certain) prospects of success. Civil rights became
son (the hotel owner), who could treat blacks and
less a matter of gaining entry into the political sys-
whites differently if he or she wished.
tem and more one of waging interest group politics
within that system. At the same time, the goals of The major decision that determined the legal status
civil rights politics were broadened. The struggle of the Fourteenth Amendment for more than half
to gain entry into the system had focused on the a century was Plessy v. Ferguson. Louisiana had
denial of fundamental rights (to vote, to organize, to passed a law requiring blacks and whites to occupy
obtain equal access to schools and public facilities); separate cars on railroad trains operating in that

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
134 Chapter 6 Civil Rights

state. When Adolph Plessy, who was seven-eighths The steps in that strategy were these: First, per-
white and one-eighth black, refused to obey the law, suade the Court to declare unconstitutional laws
he was arrested. He appealed his conviction to the creating schools that were separate but obviously
Supreme Court, claiming that the law violated the unequal. Second, persuade it to declare unconstitu-
Fourteenth Amendment. In 1896, the Court rejected tional laws supporting schools that were separate
his claim, holding that the law treated both races but unequal in not-so-obvious ways. Third, persuade
equally even though it required them to be separate. it to rule that racially separate schools were inher-
The equal protection clause guaranteed political and ently unequal and hence unconstitutional.
legal but not social equality. Separate-but-equal
facilities were constitutional because if one race be CAN SEPARATE SCHOOLS
inferior to the other socially, the Constitution of the
United States cannot put them on the same plane.7
BE EQUAL?
The rst step was accomplished in a series of court
cases stretching from 1938 to 1948. In 1938, the
SEPARATE BUT EQUAL Court held that Lloyd Gaines had to be admitted to
Thus began the separate-but-equal doctrine. an all-white law school in Missouri because no black
Three years later, the Court applied it to schools law school of equal quality existed in that state.9
as well, declaring in Cumming In 1948, the Court ordered the all-white University
v. Richmond County Board of of Oklahoma Law School to admit Ada Lois Sipuel,
separate-but-
equal doctrine The Education that a decision in a a black, even though the state planned to build a
doctrine established Georgia community to close the black law school later. For education to be equal, it
in Plessy v. Ferguson black high school while keeping had to be equally available.10 It still could be sepa-
(1896) that African open the white high school was rate, however: the university admitted Ms. Sipuel
Americans could not a violation of the Fourteenth but required her to attend classes in a section of the
constitutionally be Amendment because blacks could state capitol, roped off from other students, where
kept in separate but always go to private schools. Here she could meet with her law professors.
equal facilities. the Court seemed to be saying that
The second step was taken in two cases decided in
not only could schools be separate,
1950. Heman Sweatt, an African American, was
they could even be unequal.8
treated by the University of Texas Law School much
What the Court has made, the Court can unmake. as Ada Sipuel had been treated in Oklahoma: admit-
But to get it to change its mind requires a long, ted to the all-white school but relegated to a separate
costly, and uncertain legal battle. The National building. Another African American, George McLaurin,
Association for the Advancement of Colored People was allowed to study for his Ph.D in a colored section
(NAACP) was the main organization that waged of the all-white University of Oklahoma. The Supreme
that battle. Formed in 1909 by a group of whites and Court unanimously decided that these arrangements
blacks in the aftermath of a race riot, the NAACP were unconstitutional because, by imposing racially
did many things, including lobbying in Washington based barriers on the black students access to pro-
and publicizing black grievances, especially in the fessors, libraries, and other students, they created
pages of The Crisis, a magazine edited by W.E.B. Du unequal educational opportunities.11
Bois. But its most inuential role was played in the
The third step, the climax of the entire drama,
courtroom.
began in Topeka, Kansas, where Linda Brown
It was a rational strategy. Fighting legal battles wanted to enroll in her neighborhood school but
does not require forming broad political alliances could not because she was black and the school was
or changing public opinion, tasks that would have by law reserved exclusively for whites. When the
been very difcult for a small and unpopular orga- NAACP took her case to the federal district court
nization. A court-based approach also enabled the in Kansas, the judge decided the black school Linda
organization to remain nonpartisan. But it was could attend was substantially equal in quality to
a slow and difcult strategy. The Court had adopted a the white school she could not attend and, therefore,
narrow interpretation of the Fourteenth Amendment. denying her access to the white school was consti-
To get the Court to change its mind would require the tutional. To change that, the lawyers would have to
NAACP to bring before it cases involving the stron- persuade the Supreme Court to overrule the district
gest possible claims that a black had been unfairly judge on the grounds that racially separate schools
treatedand under circumstances sufciently differ- were unconstitutional even if they were equal. In
ent from those of earlier cases that the Court could other words, the separate-but-equal doctrine would
nd some grounds for changing its mind. have to be overturned by the Court.

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The Campaign in the Courts 135

AP Images
Dorothy Counts, the rst black student to attend Harding High School in Charlotte, N.C., tries to
maintain her poise as shes taunted by shouting, gesticulating white students in September 1957.

It was a risky and controversial step to take. Many itself. There were at least three issues. First, how
states, Kansas among them, were trying to make their would the decision be implemented? Second, on
all-black schools equal to those of whites by launch- what grounds were racially separate schools uncon-
ing expensive building programs. If the NAACP stitutional? Third, what test would a school system
succeeded in getting separate schools declared have to meet in order to be in conformity with the
unconstitutional, the Court might well put a stop Constitution?
to the building of these new schools. Blacks could
win a moral and legal victory but suffer a practi- IMPLEMENTATION
cal defeatthe loss of these new facilities. Despite The Brown case involved a class-action suit; that is,
these risks, the NAACP decided to go ahead with it applied not only to Linda Brown but to all others
the appeal. similarly situated. This meant that black children
everywhere now had the right to attend formerly
BROWN V. BOARD OF EDUCATION all-white schools. This change would be one of the
On May 17, 1954, a unanimous Supreme Court, most far-reaching and conict-provoking events in
speaking through an opinion written and delivered modern American history. It could not be effected
by Chief Justice Earl Warren, found that in the overnight or by the stroke of a pen. In 1955, the
eld of public education the doctrine of separate Supreme Court decided it would let local federal
but equal has no place because separate educa- district courts oversee the end of segregation by giv-
tional facilities are inherently unequal.12 Plessy v. ing them the power to approve or disapprove local
Ferguson was overruled, and separate but equal desegregation plans. This was to be done with all
was dead. deliberate speed.13
The ruling was a landmark decision, but the reasons In the South, all deliberate speed turned out to be
for it and the means chosen to implement it were a snails pace. Massive resistance to desegregation
as important and as controversial as the decision broke out in many states. Some communities simply

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136 Chapter 6 Civil Rights

WHAT WOULD YOU DO?


MEMORANDUM
To: Justice Robert Gilbert News
From: Ella Fitzgerald, law clerk
Subject: State support for predominantly black colleges Court to Rule on Black
Until school segregation ended, southern blacks
Colleges
could attend only all-black colleges. Now they are free
to apply to previously all-white colleges, and these The Supreme Court has announced
schools are integrated. But the traditional black col-
leges still exist, and very few whites apply to them. In that it will decide whether all-black
1992, the Supreme Court held that the state could not colleges in the South can receive state
solve the problem by requiring a race-neutral admis- support if there are too few whites
sions policy.* Now the Court must decide whether a
predominantly black college can receive state support.
attending them.

Arguments for:
1. These schools have a long tradition that ought to
be preserved.
Arguments against:
2. Many black students will learn better in an all-
black environment. 1. If the state once required single-race schools, it
now has an obligation to dismantle them.
3. African American organizations, in particular the
United Negro College Fund, raise money for these 2. Race is a suspect classication, and no state pro-
schools. gram that chiey serves one race can be allowed.

Your decision:
Allow all-black colleges Ban all-black colleges
* United States v. Fordice, 505 U.S. 717 (1992).

deed the Court; some sought to evade its edict by politics and economy of the South convinced lead-
closing their public schools. In 1956, more than 100 ers that it was imprudent; and the voting power of
southern members of Congress signed a Southern blacks convinced politicians that it was suicidal. In
Manifesto that condemned the Brown decision as an addition, federal laws began providing nancial aid
abuse of judicial power and pledged to use all law- to integrated schools and withholding it from seg-
ful means to bring about a reversal of the decision. regated ones. By 1970, only 14 percent of southern
black schoolchildren still attended all-black schools.14
In the late 1950s and early 1960s, the National
Guard and regular army paratroopers were used to
escort black students into formerly all-white schools THE RATIONALE
and universities. It was not until the 1970s that As the struggle to implement the Brown deci-
resistance collapsed and most southern schools were sion continued, the importance of the rationale
integrated. The use of armed force convinced peo- for that decision became apparent. The case was
ple that resistance was futile; the disruption of the decided in a way that surprised many legal scholars.

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
The Campaign in the Courts 137

DESEGREGATION VERSUS INTEGRATION


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 rst might be called a desegregated school,
and the latter an integrated school. Think of the

Steve Shapiro/Black Star


Topeka case. Was it enough that there was now no
barrier to Linda Browns 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
In 1963, Governor George Wallace of Alabama stood children?
in the doorway of the University of Alabama to As long as the main impact of the Brown deci-
block the entry of black students. Facing him is U.S. sion lay in the South, where laws had prevented
Deputy Attorney General Nicholas Katzenbach. blacks from attending white schools, this ques-
tion did not seem important. Segregation by law
(de jure segregation) was now clearly uncon-
TheCourt could have said that the equal protection
stitutional. But in the North,
clause of the Fourteenth Amendment makes the
laws had not kept blacks and de jure segregation
Constitution, and thus state laws, color-blind. Or it
whites apart; instead, all-black Racial segregation that
could have said that the authors of the Fourteenth
and all-white schools were the is required by law.
Amendment meant to ban segregated schools. It
result of residential segrega-
didneither. Instead, it said segregated education is de facto segregation
tion, preferred living patterns,
bad because it has a detrimental effect upon the Racial segregation
informal social forces, and
colored children by generating a feeling of inferi- that occurs in schools,
administrative practices (such
ority as to their status in the community that may not as a result of the
as drawing school district lines
affect their hearts and minds in a way unlikely ever law, but as a result of
so as to produce single-race
to be undone.15 This conclusion was supported by patterns ofresidential
schools). This often was called
a footnote reference to social science studies of the settlement.
segregation in fact (de facto
apparent impact of segregation on black children.
segregation).
Why did the Court rely on social science as much as
In 1968, the Supreme Court settled the matter. In
or more than the Constitution in supporting its deci-
New Kent County, Virginia, the school board had
sion? Apparently for two reasons. One was the jus-
created a freedom-of-choice plan under which
tices realization that the authors of the Fourteenth
every pupil would be allowed without legal restric-
Amendment may not have intended to outlaw segre-
tion to attend the school of his or her choice. As it
gated schools. The schools in Washington, D.C., were
turned out, all the white children chose to remain
segregated when the amendment was proposed, and
in the all-white school, and 85 percent of the black
when this fact was mentioned during the debate, it
children remained in the all-black school. The Court
seems to have been made clear that the amendment
rejected this plan as unconstitutional because it did
was not designed to abolish this segregation. When
not produce the ultimate end, which was a uni-
Congress debated a civil rights act a few years later,
tary, nonracial system of education.17 In the opin-
it voted down provisions that would have ended
ion written by Justice William Brennan, the Court
segregation in schools.16 The Court could not easily
seemed to be saying that the Constitution required
base its decision on a constitutional provision that
actual racial mixing in the schools, not just the
had, at best, an uncertain application to schools.
repeal of laws requiring racial separation.
The other reason grew out of the rst. On so impor-
tant a matter the chief justice wanted to speak for a This impression was conrmed three years later
unanimous court. Some justices did not agree that when the Court considered a plan in North
the Fourteenth Amendment made the Constitution Carolina under which pupils in Mecklenburg
color-blind. In the interests of harmony, the Court County (which includes Charlotte) were assigned
found an ambiguous rationale for its decision. to the nearest neighborhood school without regard

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
138 Chapter 6 Civil Rights

to race. As a result, about half the black children The existence of all-white or all-black schools in
now attended formerly all-white schools, with the a district with a history of segregation creates a
other half attending all-black schools. The federal presumption of intent to discriminate.
district court held that this was inadequate and
The remedy for past discrimination will not be lim-
ordered some children to be bused into more dis-
ited to freedom of choice, or what the Court called
tant schools in order to achieve a greater degree of
the walk-in school. Remedies may include racial
integration. The Supreme Court, now led by Chief
quotas in the assignment of teachers and pupils,
Justice Warren Burger, upheld the district judge on
redrawn district lines, and court-ordered busing.
the grounds that the court plan was necessary to
achieve a unitary school system.18 Not every school must reect the social composi-
tion of the school system as a whole.
This caseSwann v. Charlotte-Mecklenburg Board
of Educationpretty much set the guidelines for all Relying on Swann, district courts have supervised
subsequent cases involving school segregation. The redistricting and busing plans in localities all over
essential features of those guidelines are as follows: the nation, often in the face of bitter opposition
from the community. In Boston, the control of the
To violate the Constitution, a school system, by
city schools by a federal judge, W. Arthur Garrity,
law, practice, or regulation, must have engaged in
lasted for more than a decade and involved him in
discrimination. Put another way, a plaintiff must
every aspect of school administration. One major
show an intent to discriminate on the part of the
issue not settled by Swann was whether bus-
public schools.
ing 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
central-city schools. In a series of split-vote deci-
sions, the Court ruled that court-ordered intercity
busing could be authorized only if it could be dem-
onstrated that the suburban areas as well as the
central city had in fact practiced school segrega-
tion. Where that could not be shown, such intercity
busing would not be required. The Court was not
persuaded that intent had been proved in Atlanta,
Detroit, Denver, Indianapolis, and Richmond, but it
was persuaded that it had been proved in Louisville
and Wilmington.19
The importance the Court attaches to intent means
that if a school system that was once integrated
becomes all black as a result of whites moving to
the suburbs, the Court will not require that district
lines constantly be redrawn or new busing plans
be adopted to adjust to the changing distribution
of the population.20 This in turn means that as long
as blacks and whites live in different neighborhoods
for whatever reason, there is a good chance that
some schools in both areas will be heavily of one
race. If mandatory busing or other integration mea-
sures cause whites to move out of a city at a faster
rate than they otherwise would (a process often
called white ight), then efforts to integrate the
Ted Crowell/Black Star

schools may in time create more single-race schools.


Ultimately, integrated schools will exist only in inte-
grated neighborhoods or where the quality of educa-
tion is so high that both blacks and whites want to
Antibusing protesters buried a school bus enroll in the school even at some cost in terms of
(unoccupied) to dramatize their cause. travel and inconvenience.

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The Campaign in Congress 139

Mandatory busing to achieve racial integration has


been a deeply controversial program and has gener-
ated considerable public opposition. Surveys show Landmark Cases
that a majority of people oppose it.21 As recently
as 1992, a poll showed that 48 percent of whites in
the Northeast and 53 percent of southern whites Civil Rights
felt it was not the business of the federal govern-
Dred Scott case, Scott v. Sanford (1857):
ment to ensure that black and white children go
Congress had no authority to ban slavery in a
to the same schools.22 Presidents Nixon, Ford, and
territory. A slave was considered a piece
Reagan opposed busing; all three supported legisla- of property.
tion to prevent or reduce it, and Reagan petitioned
the courts to reconsider busing plans. The courts Plessy v. Ferguson (1896): Upheld separate-but-
refused to reconsider, and Congress has passed only equal facilities for white and black people on
minor restrictions on busing. railroad cars.

The reason why Congress has not followed pub- Brown v. Board of Education (1954): Said
lic opinion on this matter is complex. It has been separate public schools are inherently unequal,
torn between the desire to support civil rights and thus starting racial desegregation.
uphold the courts and the desire to represent the Green v. County School Board of New Kent
views of its constituents. Because it faces a dilemma, County (1968): Banned a freedom-of-choice
Congress has taken both sides of the issue simulta- plan for integrating schools, suggesting
neously. By the late 1980s, busing was a dying issue blacks and whites must actually attend racially
in Congress, in part because no meaningful legisla- mixedschools.
tion seemed possible and in part because popular Swann v. Charlotte-Mecklenburg Board of
passion over busing had somewhat abated. Education (1971): Approved busing and
Then, in 1992, the Supreme Court made it easier redrawing district lines as ways of integrating
for local school systems to reclaim control over their public schools.
schools from the courts. In DeKalb County, Georgia
(a suburb of Atlanta), the schools had been operat-
ing under court-ordered desegregation plans for
many years. Despite this effort, full integration
had not been achieved, largely because the coun- The rst problem was to get civil rights on the politi-
tys neighborhoods had increasingly become either cal agenda by convincing people that something had
all black or all white. The Court held that local to be done. This could be achieved by dramatizing
schools could not be held responsible for segrega- the problem in ways that tugged at the conscience
tion caused solely by segregated living patterns and of whites who were not racist but were ordinar-
so the courts would have to relinquish their control ily indifferent to black problems. Brutal lynchings
over the schools. In 2007, the Court said race could of blacks had shocked these whites, but lynchings
not be the decisive factor in assigning students to were becoming less frequent in the 1950s.
schools that had either never been segregated (as in
Those leaders could, however, arrange for dramatic
Seattle) or where legal segregation had long since
confrontations between blacks claiming some obvi-
ended (as in Jefferson County, Kentucky).23
ous right and the whites who denied it to them.
Beginning in the late 1950s, these confrontations
began to occur in the form of sit-ins at segregated
The Campaign lunch counters and freedom rides on segregated
bus lines. At about the same time, efforts were made
in Congress to get blacks registered to vote in counties where
whites had used intimidation and harassment to
The campaign in the courts for desegregated schools,
prevent it.
though slow and costly, was a carefully managed
effort to alter the interpretation of a constitutional The best-known campaign occurred in 19551956 in
provision. But to get new civil rights laws out of Montgomery, Alabama, where blacks, led by a young
Congress required a far more difcult and decen- minister named Martin Luther King, Jr., boycotted
tralized strategy, one that was aimed at mobilizing the local bus system after it had a black woman,
public opinion and overcoming the many congres- Rosa Parks, arrested because she refused to surren-
sional barriers to action. der her seat on a bus to a white man.

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140 Chapter 6 Civil Rights

Bettman/Corbis

AP Images
In 1960, black students from North Carolina Agricultural and Technical College staged the rst sit-in when
they were refused service at a lunch counter in Greensboro (left). Twenty years later, graduates of the college
returned to the same lunch counter (right). Though prices had risen, the service had improved.

These early demonstrations were was under the control of a chairman hostile to civil
civil disobedience based on the philosophy of civil rights bills, Howard Smith of Virginia. Any bill that
Opposing a law one disobediencethat is, peacefully passed the House faced an almost certain libuster
considers unjust by violating a law, such as one requir- in the Senate. Finally, President John F. Kennedy
peacefully disobeying ing blacks to ride in a segregated was reluctant to submit strong civil rights bills to
it and accepting section of a bus, and allowing one- Congress.
the resultant self to be arrested as a result.
punishment. Four developments made it possible to break the
But the momentum of protest, deadlock. First, public opinion was changing. As
once unleashed, could not be cen- Figure 6.1 shows, the proportion of whites who
trally directed or conned to non- were willing to have their children attend a school
violent action. A rising tide of that was half black increased sharply (though the
anger, especially among younger blacks, resulted in proportion of whites willing to have their children
the formation of more militant organizations and attend a school that was predominantly black
the spontaneous eruption of violent demonstrations increased by much less). About the same change
and riots in dozens of cities across the country. From could be found in attitudes toward allowing blacks
1964 to 1968, there were in the North as well as the equal access to hotels and buses.25 Of course, sup-
South four long, hot summers of racial violence. port in principle for these civil rights measures
The demonstrations and rioting succeeded in get- was not necessarily the same as support in prac-
ting civil rights on the national political agenda, tice; nonetheless, clearly a major shift was occur-
but at a cost: many whites, opposed to the dem- ring in popular approval of at least the principles of
onstrations or appalled by the riots, dug in their civil rights. At the leading edge of this change were
heels and fought against making any concessions young, college-educated people.26
to lawbreakers, troublemakers, and rioters. In Second, certain violent reactions by white segrega-
1964 and again in 1968, more than two-thirds of the tionists to black demonstrators were vividly por-
whites interviewed in opinion polls said the civil trayed by the media, especially television, in ways
rights movement was pushing too fast, had hurt the that gave to the civil rights cause a powerful moral
black cause, and was too violent.24 force. In May 1963, the head of the Birmingham
In short, a conict existed between the agenda-set- police, Eugene Bull Connor, ordered his men to use
ting and coalition-building aspects of the civil rights attack dogs and high-pressure re hoses to repulse
movement. This was especially a problem since con- a peaceful march by African Americans demand-
servative southern legislators still controlled many ing desegregated public facilities and increased job
key congressional committees that had for years opportunities. The pictures of that confrontation
been the graveyard of civil rights legislation. The (such as the one on page 142) created a national sen-
Senate Judiciary Committee was dominated by sation and contributed greatly to the massive par-
a coalition of southern Democrats and conserva- ticipation, by whites and blacks alike, in the March
tive Republicans, and the House Rules Committee on Washington that summer. About a quarter of

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The Campaign in Congress 141

Figure 6.1
Attitudes toward white childrens attending schools with different
proportions of blacks.
100

Few black
% accepting different degrees of integration

80

Half black

60

Majority black

40

20

0
1958 1961 1964 1967 1970 1973 1976 1979 1982 1985 1988 1991 1994 1997
Year
Source: Reprinted by permission of the publisher from Racial Attitudes in America by Howard Schuman,
Charlotte Steeh, and Lawrence Bobo, p. 145, Figure 3.12. Cambridge, Mass.: Harvard University Press.
Copyright 1985, 1997 by the Presidents and Fellows of Harvard College.

a million people gathered in front of the Lincoln Democratic majority to the House and retained the
Memorial to hear Martin Luther King, Jr., deliver a large Democratic margin in the Senate. This made
stirring and widely hailed address, often called the it possible for northern Democrats to outvote or out-
I Have a Dream speech. The following summer in maneuver southerners in the House.
Neshoba County, Mississippi, three young civil rights
The cumulative effect of these forces led to the enact-
workers (two white and one black) were brutally
ment of ve civil rights laws between 1957 and 1968.
murdered by Klansmen aided by the local sheriff.
Three (1957, 1960, and 1965) were chiey directed
When the FBI identied the murderers, the effect on
at protecting the right to vote; one (1968) was aimed
national public opinion was galvanic; no white south-
at preventing discrimination in housing; and one
ern leader could any longer offer persuasive opposi-
(1964), the most far-reaching of all, dealt with voting,
tion to federal laws protecting voting rights when
employment, schooling, and public accommodations.
white law enforcement ofcers had killed students
working to protect those rights. And the next year, a The passage of the 1964 act was the high point of
white woman, Viola Liuzzo, was shot and killed while the legislative struggle. Liberals in the House had
driving a car used to transport civil rights workers. drafted a bipartisan bill, but it was now in the
Her death was the subject of a presidential address. House Rules Committee, where such matters had
often disappeared without a trace. In the wake of
Third, President John F. Kennedy was assassinated
Kennedys murder, a discharge petition was led,
in Dallas, Texas, in November 1963. Many people
with President Johnsons support, to take the bill
originally (and wrongly) thought he had been killed
out of committee and bring it to the oor of the
by a right-wing conspiracy. Even after the assassin
House. But the Rules Committee, without waiting
had been caught and shown to have left-wing asso-
for a vote on the petition (which it probably real-
ciations, the shock of the presidents murderin a
ized it would lose), sent the bill to the oor, where
southern cityhelped build support for efforts by
it passed overwhelmingly. In the Senate, an agree-
the new president, Lyndon B. Johnson (a Texan),
ment between Republican minority leader Everett
to obtain passage of a strong civil rights bill as a
Dirksen and President Johnson smoothed the
memorial to the slain president.
way for passage in several important respects.
Fourth, the 1964 elections not only returned Johnson The House bill was sent directly to the Senate
to ofce with a landslide victory but also sent a huge oor, thereby bypassing the southern-dominated

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142 Chapter 6 Civil Rights

AFP/Getty Images
Martin Luther King, Jr., delivers his I have a Dream
speech on the Washington, D.C., mall in 1963.

in the Senate and almost 90 percent of those in


the House voted for the bill. This was a dramatic
change from 1964, when more than 80 percent of
AP Images

the southern Democrats in Congress voted against


the Civil Rights Act (see Figure 6.2).
This picture of a police dog lunging at a
black man during a racial demonstration in This change partly reected the growing politi-
Birmingham, Alabama, in May 1963 was one of cal strength of southern blacks. In 1960, less than
the most inuential photographs ever published. one-third of voting-age blacks in the South were
It was widely reprinted throughout the world registered to vote; by 1971 more than half were,
and was frequently referred to in congressional and by 1984 two-thirds were. In 2001, more than
debates on the civil rights bill of 1964. 9,000 blacks held elective ofce (see Table 6.1). But
this was only half of the story. Attitudes among
white political elites and members of Congress had
also changed. This was evident as early as 1968,
Judiciary Committee. Nineteen southern senators
began an eight-week libuster against the bill. On Figure 6.2
June 10, 1964, by a vote of 71 to 29, cloture was
invoked and the libuster endedthe rst time
Growing Support Among Southern
in history that a libuster aimed at blocking civil Democrats in Congress for Civil Rights Bills
rights legislation had beenbroken.
House Senate
Since the 1960s, congressional support for civil 100
rights legislation has grownso much so, indeed,
that labeling a bill a civil rights measure, once the
Percentage supporting bill

kiss of death, now almost guarantees its passage. 75


For example, in 1984 the Supreme Court decided the
federal ban on discrimination in education applied
only to the program or activity receiving federal 50
aid and not to the entire school or university.27 In
1988, Congress passed a bill to overturn this deci-
25
sion by making it clear that antidiscrimination rules
applied to the entire educational institution and not
just to that part (say, the physics lab) receiving fed-
eral money. When President Reagan vetoed the bill 1957 1960 1964 1965 1968 1970 1988 1991
(because, in his view, it would diminish the freedom Civil-rights bills
of church-afliated schools), Congress overrode the Source: Congressional Quarterly, Congress and the Nation, vols. 1,
veto. In the override vote, every southern Democrat 2, 3, 7, 8.

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The Campaign in Congress 143

Key Provisions of Major Civil Rights Laws


1957 Voting Made it a federal crime to try to prevent examiners who would require registration
a person from voting in a federal election. of all eligible voters in federal, state, and
Created the Civil Rights Commission. local elections, general or primary, in areas
where discrimination was found to be prac-
1960 Voting Authorized the attorney general to
ticed or where less than 50 percent of voting-
appoint federal referees to gather evidence
age residents were registered to vote in the
and make ndings about allegations that
1964election.
African Americans were deprived of their
right to vote. Made it a federal crime to use Literacy tests Suspended use of literacy tests
interstate commerce to threaten or carry out or other devices to prevent African Americans
a bombing. from voting.
1964 Voting Made it more difcult to use devices 1968 Housing Banned, by stages, discrimination
such as literacy tests to bar African Americans in sale or rental of most housing (exclud-
from voting. ing private owners who sell or rent their
homes without the services of a real-estate
Public accommodations Barred discrimina-
broker).
tion on grounds of race, color, religion, or
national origin in restaurants, hotels, lunch Riots Made it a federal crime to use interstate
counters, gasoline stations, movie theaters, commerce to organize or incite a riot.
stadiums, arenas, and lodging houses with
1972 Education Prohibited sex discrimination in
more than ve rooms.
education programs receiving federal aid.
Schools Authorized the attorney general to
1988 Discrimination If any part of an organization
bring suit to force the desegregation of public
receives federal aid, no part of that organiza-
schools on behalf of citizens.
tion may discriminate on the basis of race,
Employment Outlawed discriminationin hir- sex, age, or physical handicap.
ing, ring, or paying employees on grounds of
1991 Discrimination Made it easier to sue over job
race, color, religion, national origin, or sex.
discrimination and collect damages; over-
Federal funds Barred discrimination in any turned certain Supreme Court decisions.
activity receiving federal assistance. Made it illegal for the government to adjust,
or norm, test scores by race.
1965 Voter registration Authorized appointment
by the Civil Service Commission of voting

Table 6.1 Increase in Number of Black Elected when Congress passed a law barring discrimina-
Ofcials tion in housing even though polls showed that only
35percent of the public supported the measure.
Ofce 1970 1991 2001
Civil rights is not an issue easily conned to schools,
Congress and state 182 476 633 housing, and jobs. Sometimes it is extended to crime.
legislatures
When crack cocaine became a popular drug, it was
City and county ofces 715 4,493 5,456 cheap and easily sold on street corners. When the
Judges and sheriffs 213 847 1,044 public demanded that the police get tough on crack
Boards of education 362 1,629 1,928 dealers, arrests followed. Since the great majority
of arrested dealers were black, there was a sharp
Total 1,472 7,445 9,061
increase in black drug dealers going to prison. Some
Source: Statistical Abstract of the United States, 2003, table 417. blacks claimed they were being singled out by the

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144 Chapter 6 Civil Rights

RESEARCH FRONTIERS
Civil Rights: Are Guns a Public Nuisance?
Some ideas about public policy grab media attention, In the late 1990s, the mayors of New Orleans, Chicago,
garner political support, and go on to become public Philadelphia, and several dozen other cities, joined
laws; other ideas never even make it on to the public in some cases by civil rights groups, brought public
agenda. Political scientists have many different theo- nuisance lawsuits against handgun manufacturers.
ries, taxonomies, and models about the policy process; In response, many state legislatures passed new laws
and later in this book (Chapter 17) we offer our way of exempting the handgun industry from these lawsuits;
classifying and explaining the politics of issues ranging and, in 2005, the U.S. Congress enacted and President
from economic policy to environmental policy. George W. Bush signed a new federal law granting the
handgun industry broad legal immunity and rejecting
When it comes to present-day civil rights policy dynam-
related civil rights claims.
ics, however, new research frontiers are being charted,
not mainly by academic theorists, but by practitioner-
scholars who have not merely studied change but
helped to make it happen. Do you think that freedom from gun violence
ought to be counted among civil rights?
Take David Kairys, a Temple University law profes-
sor who was a full-time civil rights lawyer across Do you think that permitting public nuisance or
four decades. In his 2008 memoir, Kairys illustrates other lawsuits against otherwise law-abiding gun
how intricately intertwined with other issues civil manufacturers might violate their civil rights?
rights policies tend to be; how post-1980 civil rights Do you think that a certain minimum standard of
laws on racial discrimination and other matters have living, a certain minimum level of air quality, or
often shifted without any legislative changes; and how a certain minimum degree of privacy ought to be
novel applications of old legal theories can spark new considered a civil right?
debates about how to dene or enforce civil rights.
What, if any, contemporary issues do you think
For example, in the Anglo-American legal tradition, a fall outside the domain of civil rights, and why?
noisy blacksmith shop teeming with hot objects and
other dangers could be declared a public nuisance
and forced by local government authorities to shut
Source: David Kairys, Philadelphia Freedom: Memoir of a Civil
down or pay damages even if it was there before any-
Rights Lawyer (University of Michigan Press, 2008); John
body lived nearby, and even if it had always operated
W. Kingdon, Agendas, Alternatives, and Public Policies, 2nd
legally. But today, new questions arise: should other- ed. (Pearson, 1997); James Q. Wilson, ed., The Politics of
wise law-abiding handgun manufacturers be sued by Regulation (Basic Books, 1980); Theodore J. Lowi, American
city ofcials for creating a public nuisance, and do Business, Public Policy, Case Studies, and Political Theory,
citizens have a civil right to live free from violence World Politics 16 (July 1964), pp. 677715.
perpetrated with handguns?

police because of their race. The Supreme Court This complaint became a national issue in 1998
disagreed, holding that no evidence had been pre- when the governor of New Jersey red the head
sented to show that drug dealers of other races had of thestate police for saying blacks were stopped
not been prosecuted.28 more frequently than whites because they broke
the law more frequently. Soon President Clinton
RACIAL PROFILING and later President Bush made statements con-
demning racial proling.
If law enforcement authorities are more likely to
stop and question people because of their race or But there is another side to this issue. Perhaps peo-
ethnicity, racial proling occurs. At rst glance, ple of a certain race are more likely to break the
this would seem to be a bad idea. For example, speed limit or smuggle drugs in their cars; if that is
African Americans often complain that they are the case, then stopping them more frequently, even if
stopped by the police for driving while black. it means stopping more innocent people, may make

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Women and Equal Rights 145

sense. A study of police stops in Oakland, California, before. After the war, the feminist movement took
by the RAND Corporation showed that, at least in ight with the publication in 1963 of The Feminine
that city, ofcers stopped cars without knowing the Mystique by Betty Friedan.
race of the occupants because the share of blacks
Congress responded by passing laws that required
stopped at night, when the drivers could not been
equal pay for equal work, prohibited discrimination
seen, was the same as the share stopped during the
on the basis of sex in employment and among stu-
day when they could be seen.29
dents in any school or university receiving federal
The terrorist attacks of 9/11 added a new dimension funds, and banned discrimination against pregnant
to the issue. If young Middle Eastern men are more women on the job.31
likely to smuggle weapons onto airplanes, searching
At the same time, the Supreme Court was altering
them more carefully than one searches an elderly
the way it interpreted the Constitution. The key
white Caucasian woman may make sense. But fed-
passage was the Fourteenth Amendment, which
eral ofcials are leery of doing anything that might
prohibits any state from denying to any person the
get them labeled as racial prolers.
equal protection of the laws. For a long time the
traditional standard, as we saw in the 1908 case,
Women and Equal was a kind of protective paternalism. By the early
1970s, however, the Court had changed its mind. In
Rights deciding whether the Constitution bars all, some,
or no sexual discrimination, the Court had a choice
The political and legal efforts to secure civil among three standards.
rights for African Americans were accompanied
The rst standard is the reasonableness standard.
by efforts to expand the rights of women. There
This says that when the government treats some
was an important difference between the two
classes of people differently from othersfor exam-
movements, however: whereas African Americans
ple, applying statutory rape laws to men but not to
were arguing against a legal tradition that explic-
womenthe different treatment must be reason-
itly aimed to keep them in a subservient status,
able and not arbitrary.
women had to argue against a tradition that
claimed to be protecting them. For example, in The second standard is intermediate scrutiny. When
1908 the Supreme Court upheld an Oregon law women complained that some laws treated them
that limited female laundry workers to a 10-hour unfairly, the Court adopted a standard somewhere
workday against the claim that it violated the between the reasonableness and strict scrutiny
Fourteenth Amendment. The Court justied its tests. Thus, a law that treats men and women dif-
decision with this language: ferently must be more than merely reasonable, but
The two sexes differ in structure of body, in
the allowable differences need not meet the strict
the functions to be performed by each, in the scrutiny test.
amount of physical strength, in the capacity for And so in 1971, the Court held that an Idaho stat-
long-continued labor, particularly when done
ute was unconstitutional because it required that
standing. . . the self-reliance which enables one
to assert full rights, and in the capacity to main-
males be preferred over females when choosing peo-
tain the struggle for subsistence. This difference ple to administer the estates of deceased children.
justies a difference in legislation and upholds To satisfy the Constitution, a law treating men and
that which is designed to compensate for some of women differently must be reasonable, not arbi-
the burdens which rest upon her.30 trary, and must rest on some ground of difference
having a fair and substantial relation to the object
The origin of the movement to give more rights to
of legislation so that all persons similarly circum-
women was probably the Seneca Falls Convention
stanced shall be treated alike.32 In later decisions,
held in 1848. Its leaders began to demand the right
some members of the Court wanted to make classi-
to vote for women. Though this was slowly granted
cations based on sex inherently suspect and subject
by several states, especially in the West, it was not
to the strict scrutiny test, but no majority has yet
until 1920 that the Nineteenth Amendment made
embraced this position.33
it clear that no state may deny the right to vote on
the basis of sex. The great change in the status of The third standard is strict scrutiny. This says that
women, however, took place during World War II some instances of drawing distinctions between
when the demand for workers in our defense plants different groups of peoplefor example, by treat-
led to the employment of millions of women, such ing whites and blacks differentlyare inherently
as Rosie the Riveter, in jobs they had rarely held suspect; thus, the Court will subject them to strict

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146 Chapter 6 Civil Rights

How Things Work


How the Court Decides If You Discriminate
The Supreme Court has produced three different tests to decide if a government policy produces unconstitutional
discrimination. Dont be surprised if you nd it a bit hard to tell them apart.
1. Rational basis If the policy uses reasonable means men and women are not similarly situated. And
to achieve a legitimate government goal, it is men can be barred from entering hospital delivery
constitutional. roomseven though (obviously) women
are admitted.
Examples: If the government says you cant buy a
drink until you are 21, this meets the rational basis 3. Strict scrutiny To be constitutional, the
test: the government wants to prevent children discrimination must serve a compelling
from drinking, and age 21 is a reasonable means to government interest, it must be narrowly
dene when a person is an adult. And a state can tailored to attain that interest, and it must
ban advertising on trucks unless the ad is about use the least restrictive means to attain it.
the truck owners own business.
Examples: Distinctions based on race, ethnicity,
2. Intermediate scrutiny If the policy serves an religion, or voting must pass the strict scrutiny test.
important government interest and is substantially You cannot bar black children from a public school
related to serving that interest, it is constitutional. or black adults from voting, and you cannot prevent
one religion from knocking on your door to promote
Examples: Men can be punished for statutory
its views.
rape even if women are not punished because

scrutiny to ensure they are clearly necessary to


attain a legitimate state goal.
But sexual classifications can also be judged
Landmark Cases
by a different standard. The Civil Rights Act
of 1964 prohibits sex discrimination in the hir-
ing, firing, and compensation of employees. The
Womens Rights
1972 Civil Rights Act bans sex discrimination Reed v. Reed (1971): Gender discrimination
in local education programs receiving federal violates the equal protection clause of the
aid. These laws apply to private, and not just Constitution.
government, actions. Craig v. Boren (1976): Gender discrimination
Over the years, the Court has decided many cases can be justied only if it serves important
involving sexual classication. The following lists governmental objectives and is substantially
provide several examples of illegal sexual dis- related to those objectives.
crimination (violating either the Constitution Rostker v. Goldberg (1981): Congress can draft
or a civil rights act) and legal sexual distinctions men without drafting women.
(violating neither).
United States v. Virginia (1996): State may not
nance an all-male military school.
ILLEGAL DISCRIMINATION
A state cannot set different ages at which men
and women legally become adults.34
A state cannot set different ages at which men Employers cannot require women to take manda-
and women are allowed to buy beer.35 tory pregnancy leaves.37
Women cannot be barred from jobs by arbitrary Girls cannot be barred from Little League base-
height and weight requirements.36 ball teams.38

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Women and Equal Rights 147

Business and service clubs, such as the Junior process clause of the Fifth Amendment.48 In the
Chamber of Commerce and Rotary Club, cannot area of national defense, the Court will give great
exclude women from membership.39 deference to congressional policy (Congress had
already decided to bar women from combat roles).
Though women as a group live longer than men,
For many years, women could be pilots and sailors
an employer must pay them monthly retirement
but not on combat aircraft or combat ships. In 1993,
benets equal to those received by men.40
the secretary of defense opened air and sea combat
High schools must pay the coaches of girls sports positions to all persons regardless of gender; only
the same as they pay the coaches of boys sports.41 ground-troop combat positions are still reserved
for men. The issue played a role in preventing
the ratication of the Equal Rights Amendment
DECISIONS ALLOWING DIFFERENCES to the Constitution, because of fears that it would
BASED ON SEX reverse Rostker v. Goldberg.
A law that punishes males but not females for
statutory rape is permissible; men and women SEXUAL HARASSMENT
are not similarly situated with respect to sexual
When Paula Corbin Jones accused President Clinton
relations.42
of sexual harassment, the judge threw the case out
All-boy and all-girl public schools are permitted of court because she had not submitted enough evi-
if enrollment is voluntary and quality is equal.43 dence such that, if the jury believed her story, she
would have made a legally adequate argument that
States can give widows a property-tax exemption
she had been sexually harassed.
not given to widowers.44
What, then, is sexual harassment? Drawing on
The navy may allow women to remain ofcers
rulings by the Equal Employment Opportunities
longer than men without being promoted.45
Commission, the Supreme Court has held that
The lower federal courts have been especially busy harassment can take one of two forms. First, it is
in the area of sexual distinctions. They have said illegal for someone to request sexual favors as a con-
that public taverns may not cater to men only and dition of employment or promotion. This is the quid
that girls may not be prevented from competing pro quo rule. If a person does this, the employer is
against boys in noncontact high school sports; on strictly liable. Strict liability means the employer
the other hand, hospitals may bar fathers from the can be found at fault even if he or she did not know
delivery room. Women may continue to use their a subordinate was requesting sex in exchange for
maiden names after marriage.46 hiring or promotion.
In 1996, the Supreme Court ruled that women Second, it is illegal for an employee to experience
must be admitted to the Virginia Military Institute, a work environment that has been made hostile or
until then an all-male state-supported college that intimidating by a steady pattern of offensive sex-
had for many decades supplied what it called an ual teasing, jokes, or obscenity. But employers are
adversative method of training to instill physical not strictly liable in this case; they can be found
and mental discipline in cadets. In practical terms, at fault only if they were negligentthat is, they
this meant the school was very tough on students. knew about the hostile environment but did noth-
The Court said that for a state to justify spending ing about it.
tax money on a single-sex school, it must supply an
In 1998, the Supreme Court decided three cases that
exceedingly persuasive justication for excluding
made these rules either better or worse, depending
the other gender. Virginia countered by offering to
on your point of view. In one, it determined that a
support an all-female training course at another col-
school system was not liable for the conduct of a
lege, but this was not enough.47 This decision came
teacher who seduced a female student because the
close to imposing the strict scrutiny test, and so it
student never reported the actions. In a second,
has raised important questions about what could
it held that a city was liable for a sexually hostile
happen to all-female or traditionally black colleges
work environment confronting a female lifeguard
that accept state money.
even though she did not report this to her superiors.
Perhaps the most far-reaching cases dening the In the third, it decided that a female employee who
rights of women have involved the draft and abor- was not promoted after having rejected the sexual
tion. In 1981, the Court held in Rostker v. Goldberg advances of her boss could recover nancial dam-
that Congress may require men but not women ages from the rm. But, it added, the rm could
to register for the draft without violating the due have avoided paying this bill if it had put in place

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148 Chapter 6 Civil Rights

an afrmative defense against sexual exploita-


tion, although the Court never said what such a
policy might be.49 Landmark Cases
Sexual harassment is a serious matter, but because
there are almost no federal laws governing it, we
are left with somewhat vague and often inconsis-
Privacy and Abortion
tent court and bureaucratic rules to guide us. Griswold v. Connecticut (1965): Found a right to
privacy in the Constitution that would ban any
state law against selling contraceptives.
PRIVACY AND SEX
Roe v. Wade (1973): State laws against abortion
Regulating sexual matters has traditionally been were unconstitutional.
left up to the states, which do so by exercising their
police powers. These powers Webster v. Reproductive Health Services (1989):
include more than the authority Allowed states to ban abortions from public
police powers State to create police departments; they hospitals and permitted doctors to test to see
power to effect laws include all laws designed to pro- if fetuses were viable.
promoting health, mote public order and secure the Planned Parenthood v. Casey (1992): Reafrmed
safety, and morals.
safety and morals of the citizens. Roe v. Wade but upheld certain limits on its use.
Some have argued that the Tenth
Gonzales v. Carhart (2007): Federal law may ban
Amendment to the Constitution,
certain forms of partial-birth abortion.
by reserving to the states all pow-
ers not delegated to the federal government, meant
that states could do anything not explicitly prohib-
ited by the Constitution. But that changed when
the Supreme Court began expanding the power of
Congress over business and when it started to view
somewhere in between. But that is not how critics of
sexual matters under the newly discovered right
the decision saw things. To them, life begins at con-
toprivacy.
ception, and so the human fetus is a person enti-
Until that point, it had been left up to the states tled to the equal protection of the laws guaranteed
to decide whether and under what circumstances a by the Fourteenth Amendment. People feeling this
woman could obtain an abortion. For example, New way began to use the slogans right to life and pro-
York allowed abortions during the rst 24 weeks life. Supporters of the Courts action saw matters
of pregnancy, while Texas banned it except when differently. In their view, no one can say for certain
the mothers life was threatened. That began to when human life begins; what one can say, however,
change in 1965 when the Supreme Court held that is that a woman is entitled to choose whether or not
the states could not prevent the sale of contracep- to have a baby. These people took the slogans right
tives because by so doing it would invade a zone to choose and pro-choice.
of privacy. Privacy is nowhere mentioned in the
Almost immediately, the congressional allies of pro-
Constitution, but the Court argued that it could
life groups introduced constitutional amendments
be inferred from penumbras (literally, shadows)
to overturn Roe v. Wade, but none passed Congress.
cast off by various provisions of the Bill ofRights.50
Nevertheless, abortion foes did persuade Congress,
Eight years later the Court, in its famous Roe v. beginning in 1976, to bar the use of federal funds to
Wade decision, held that a right to privacy is broad pay for abortions except when the life of the mother
enough to encompass a womans decision whether is at stake. This provision is known as the Hyde
or not to terminate a pregnancy.51 The case, which Amendment, after its sponsor, Representative
began in Texas, produced this view: during the rst Henry Hyde. The chief effect of the amendment has
three months (or trimester) of pregnancy, a woman been to deny the use of Medicaid funds to pay for
has an unfettered right to an abortion. During the abortions for low-income women.
second trimester, states may regulate abortions but
Despite pro-life opposition, the Supreme Court for
only to protect the mothers health. In the third tri-
16 years steadfastly reafrmed and even broadened
mester, states might ban abortions.
its decision in Roe v. Wade. It struck down laws
In reaching this decision, the Court denied that it requiring, before an abortion could be performed,
was trying to decide when human life beganat the a woman to have the consent of her husband, an
moment of conception, at the moment of birth, or emancipated but underage girl to have the consent

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Afrmative Action 149

of her parents, or a woman to be advised by her doc- EQUALITY OF RESULTS


tor as to the facts about abortion.52
One view, expressed by most civil rights and femi-
But in 1989, under the inuence of justices appointed nist organizations, is that the burdens of racism and
by President Reagan, the Court began in the Webster sexism can be overcome only by taking race or sex
case to uphold some state restrictions on abortions. into account in designing remedies. It is not enough
When that happened, many people predicted that that people be given rights; they also mustbe given
in time Roe v. Wade would be overturned, espe- benets. If life is a race, everybody must be brought
cially if President George H.W. Bush was able to up to the same starting line (or possibly even to the
appoint more justices. He appointed two (Souter and same nish line). This means that the Constitution
Thomas), but Roe survived. The key votes were cast is not and should not be color-blind or sex-neutral.
by Justices OConnor, Souter, and Kennedy. In 1992, In education, this implies that the races must actu-
in its Casey decision, the Court by a vote of ve to ally be mixed in the schools, by busing if necessary.
four explicitly refused to overturn Roe, declaring that In hiring, it means that afrmative action
there was a right to abortion. At the same time, how- preferential hiring practicesmust be used to
ever, it upheld a variety of restrictions imposed by nd and hire women, African Americans, and
the state of Pennsylvania on women seeking abor- other minorities. Women should not simply be free
tions. These included a mandatory 24-hour wait- to enter the labor force; they should be given the
ing period between the request for an abortion and material necessities (for example, free daycare) that
the performance of it, the requirement that teenag- will help them enter it. On payday, workers checks
ers obtain the consent of one parent (or, in special should reect not just the results of peoples com-
circumstances, of a judge), and a requirement that peting in the marketplace but the results of plans
women contemplating an abortion be given pam- designed to ensure that people earn comparable
phlets about alternatives to it. Similar restrictions amounts for comparable jobs. Of late, afrmative
had been enacted in many other states, all of which action has been defended in the name of diversity
looked to the Pennsylvania case for guidance as to or multiculturalismthe view that every institu-
whether they could be enforced. In allowing these tion (rm, school, or agency) and every college cur-
restrictions, the Court overruled some of its own riculum should reect the cultural (that is, ethnic)
earlier decisions.53 On the other hand, the Court did diversity of the nation.
strike down a state law that would have required
married women to obtain the consent of their hus-
bands before having an abortion. EQUALITY OF OPPORTUNITY
The second view holds that if it is wrong to
After a long political and legal struggle, the Court
discriminate against African Americans and
in 2007 upheld a federal law that bans certain
women, it is equally wrong to give them prefer-
kinds of partial-birth abortions. The law does not
ential treatment over other
allow an abortion in which the fetus, still alive, is
groups. To do so constitutes
withdrawn until its head is outside the mother and afrmative action
reverse discrimination. The
then it is killed. But the law does not ban a late- Programs designed
Constitution and laws should
term abortion if it is necessary to protect the physi- 55 to increase minority
be color-blind and sex-neutral.
cal health of the mother or if it is performed on an participation in some
In this view, allowing children
already dead fetus, even if the doctor has already institutions (businesses,
to attend the school of their
killed it.54 schools, labor unions, or
choice is sufcient; busing
government agencies) by
There is one irony in all of this: Roe, the pseudonym them to attain a certain racial
taking positive steps to
for the woman who started the suit that became mixture is wrong. Eliminating appoint more minority-
Roe v. Wade, never had an abortion and many barriers to job opportunities is group members.
years later, using her real name, Norma McCorvey, right; using numerical targets
became an evangelical Christian who published a and goals to place minorities reverse discrimination
book and started a ministry to denounce abortions. and women in specic jobs is Using race or sex to give
wrong. If people wish to com- preferential treatment
pete in the market, they should to some people.
be satised with the market equality of results
Affirmative Action verdict concerning the worth of Making certain that
their work. people achieve the same
A common thread running through the politics of
result.
civil rights is the argument between equality of These two views are inter-
results and equality of opportunity. twined with other deep

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150 Chapter 6 Civil Rights

How Things Work


Becoming a Citizen
For persons born in the United States, the rights of Good moral character, which is loosely interpreted
U.S. citizenship have been ensured, in constitutional to mean no evidence of criminal activity.
theory if not in everyday practice, since the passage of Attachment to constitutional principles. This means
the Fourteenth Amendment in 1868 and the civil rights that potential citizens have to answer basic factual
laws of the 1960s. The Fourteenth Amendment con- questions about American government (e.g., Who
ferred citizenship upon all persons born in the United was the rst president of the United States?) and
States . . . and subject to the jurisdiction thereof. publicly denounce any and all allegiance to their
Subsequent laws also gave citizenship to children born native country and its leaders (e.g., Italy and the
outside the United States to parents who are American king of Italy), but devotion to constitutional prin-
citizens. ciples is now regarded as implicit in the act of
But immigrants, by denition, are not born with the applying for naturalization.
rights of U.S. citizenship. Instead, those seeking to Being favorably disposed to the good order and
become U.S. citizens must, in effect, assume certain happiness of the United States.*
responsibilities in order to become citizens. The statu-
tory requirements for naturalization, as they have been Today, about 97 percent of aliens who seek citizenship
broadly construed by the courts, are as follows: are successful in meeting these requirements and
becoming naturalized citizens of the United States.
Five years residency, or three years if married *8 U.S.C. 1423, 1427 (1970); Girouard v. United States, 328 U.S.
to a citizen. 61 (1946).
Continuous residency since ling of the naturaliza-
tion petition.

philosophical differences. Support- Americans or women, and both might press it to


equality of ers of equality of opportunity prove that its hiring policy is fair. Afrmative action
opportunity Giving tend to have orthodox beliefs; they in this case can mean either looking hard for quali-
people an equal favor letting private groups behave ed women and minorities and giving them a fair
chance to succeed. the way that they want (and so may shot at jobs or setting a numerical goal for the num-
defend the right of a mens club ber of women and minorities that should be hired
to exclude women). Supporters of and insisting that that goal be met. Persons who
the opposite view are likely to be defend the second course of action call these goals
progressive in their beliefs and insist that private targets; persons who criticize that course call
clubs meet the same standards as schools or busi- them quotas.
ness rms. Adherents to the equality-of-opportunity
The issue has largely been fought in the courts.
view often attach great importance to traditional
Between 1978 and 1990, about a dozen major cases
models of the family and so are skeptical of daycare
involving afrmative action were decided by the
and federally funded abortions. Adherents to the
Supreme Court; in about half it was upheld, and
equality-of-results view prefer greater freedom of
in the other half it was overturned. The different
choice in lifestyle questions and so take the opposite
outcomes reect two thingsthe differences in
position on daycare and abortion.
the facts of the cases and the arrival on the Court
Of course, the debate is more complex than this of three justices (Kennedy, OConnor, and Scalia)
simple contrast suggests. Take, for example, the appointed by a president, Ronald Reagan, who was
question of afrmative action. Both the advocates opposed to at least the broader interpretation of
of equality of opportunity and those of equality of afrmative action. As a result of these decisions,
results might agree that there is something odd the law governing afrmative action is now complex
about a factory or university that hires no African and confusing.

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Afrmative Action 151

How Things Work


The Rights of Aliens
America is a nation of immigrants. Some have Amendment protections against arbitrary arrest
arrived legally, others illegally. An illegal, or undocu- and prosecution extend to aliens as well as to
mented, alien is subject to deportation. With the pas- citizens.4
sage in 1986 of the Immigration Reform and Control
Aliens are entitled to own property.
Act, illegal aliens who have resided in this coun-
try continuously since before January 1, 1982, are The government can make rules that apply to aliens
entitled to amnestythat is, they can become legal only, but they must justify the reasonableness of the
residents. However, the same legislation stipulated rules. For example:
that employers (who once could hire undocumented
The Immigration and Naturalization Service has
aliens without fear of penalty) must now verify the
broader powers to arrest and search illegal aliens
legal status of all newly hired employees; if they
than police departments have to arrest and search
knowingly hire an illegal alien, they face civil and
citizens.5
criminal penalties.
States can limit certain jobs, such as police ofcer
Alienspeople residing in this country who are not
and schoolteacher, to citizens.6
citizenscannot vote or run for ofce. Nevertheless,
they must pay taxes just as if they were citizens. And The president or Congress can bar the employment
they are entitled to many constitutional rights, even of aliens by the federal government.7
iftheyare in this country illegally. This is because most
of the rights mentioned in the Constitution refer to States can bar aliens from serving on a jury.8
people or persons, not to citizens. For example, Illegal aliens are not entitled to obtain a Social
the Fourteenth Amendment bars a state from depriv- Security card.
ing any person of life, liberty, or property, without due 1
Plyler v. Doe, 457 U.S. 202 (1982).
process of law and from denying to any person within
its jurisdiction the equal protection of the laws [italics 2
Graham v. Richardson, 403 U.S. 365 (1971).
added]. As a result, the courts have held that: 3
Sure-Tan v. National Labor Relations Board, 467 U.S. 883 (1984).
The children of illegal aliens cannot be excluded 4
Chew v. Colding, 344 U.S. 590 (1953).
from the public school system.1
5
United States v. Brignoni-Ponce, 422 U.S. 873 (1975); INS v.
Legally admitted aliens are entitled to welfare Delgado, 466 U.S. 210 (1984); INS v. Lopez-Mendoza, 486 U.S. 1032
benets.2 (1984).
6
Illegal aliens cannot be the object of reprisals if they Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Foley v. Connelie, 435
attempt to form a labor union where they work.3 U.S. 291 (1978); Amblach v. Norwick, 441 U.S. 68 (1979).
7
Hampton v. Mow Sun Wong, 436 U.S. 67 (1976).
The First Amendment rights of free speech,
religion, press, and assembly and the Fourth 8
Schneider v. New Jersey, 308 U.S. 147 (1939).

Consider one issue: should the government be quotas cant be used in medical schools, but they can
allowed to use a quota system to select workers, be used in the construction industry. Not exactly. In
enroll students, award contracts, or grant licenses? 1989, the Court overturned a Richmond, Virginia,
In the Bakke decision in 1978, the Court said the law that set aside 30 percent of its construction con-
medical school of the University of California at tracts for minority-owned rms.58 Well, maybe the
Davis could not use an explicit numerical quota in Court just changed its mind between 1980 and 1989.
admitting minority students but could take race into No. One year later it upheld a federal rule that gave
account.56 So no numerical quotas, right? Wrong. preference to minority-owned rms in the awarding
Two years later, the Court upheld a federal rule that of broadcast licenses.59 Then in 1993, it upheld the
set aside 10 percent of all federal construction con- right of white contractors to challenge minority set-
tracts for minority-owned rms.57 All right, maybe aside laws in Jacksonville, Florida.60

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152 Chapter 6 Civil Rights

How Things Work


The Rights of the Disabled
In 1990, the federal government passed the Americans with Disabilities Act (ADA), a sweeping law that extended
many of the protections enjoyed by women and racial minorities to disabled persons.
Who Is a Disabled Person? restaurants, stores, schools, parks, museums,
auditoriums, and the like. To achieve equal access,
Anyone who has a physical or mental impairment that
substantially limits one or more major life activities owners of existing facilities must alter them to
(for example, holding a job), anyone who has a record the maximum extent feasible; builders of new
of such impairment, or anyone who is regarded as hav- facilities must ensure they are readily accessible
ing such an impairment is considered disabled. to disabled persons, unless this is structurally
What Rights Do Disabled Persons Have? impossible.

Employment Disabled persons may not be denied Telephones The ADA directs the Federal
employment or promotion if, with reasonable Communications Commission to issue regulations
accommodation, they can perform the duties of to ensure telecommunications devices for hearing-
that job. (Excluded from this protection are people and speech-impaired people are available to the
who currently use illegal drugs, gamble compul- extent possible and in the most efcient manner.
sively, or are homosexual or bisexual.) Reasonable Congress The rights under this law apply to
accommodation need not be made if this would employees of Congress.
cause undue hardship on the employer.
Rights Compared The ADA does not enforce
Government Programs and Transportation
the rights of disabled persons in the same way
Disabled persons may not be denied access to gov-
as the Civil Rights Act enforces the rights of
ernment programs or benets. New buses, taxis,
African Americans and women. Racial or gender
and trains must be accessible to disabled persons,
discrimination must end regardless of cost;
including those in wheelchairs.
denial of access to disabled persons must end
Public Accommodations Disabled persons unlessundue hardship or excessive costs
must enjoy full and equal access to hotels, wouldresult.

It is too early to try to make sense of these twists


and turns, especially since a deeply divided Court
is still wrestling with these issues and Congress (as
with the Civil Rights Act of 1991) is modifying or
superseding some earlier Court decisions. But a few
general standards seem to be emerging. In simpli-
ed form, they are as follows:
Erik Lesser/ZUMA Press/Corbis

The courts will subject any quota system created


by state or local governments to strict scrutiny
and will look for a compelling justication for it.
Quotas or preference systems cannot be used by
state or local governments without rst showing
that such rules are needed to correct an actual
past or present pattern of discrimination.61 A protest in Georgia over immigration laws.

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Afrmative Action 153

In proving there has been discrimination, it is for the disadvantaged (somebody who is suffering
not enough to show that African Americans (or through no fault of his or her own deserves a help-
other minorities) are statistically underrepre- ing hand).
sented among employees, contractors, or union
Where does afrmative action t into this culture?
members; you must identify the actual practices
Polls suggest that if afrmative action is dened as
that have had this discriminatory impact.62
helping, people will support it, but if it is dened
Quotas or preference systems created by fed- as using quotas, they will oppose it. On this mat-
eral law will be given greater deference, in part ter, blacks and whites see things differently. Blacks
because Section 5 of the Fourteenth Amendment think they should receive preferences in employ-
gives to Congress powers not given to the states ment to create a more diverse workforce and to
to correct the effects of racial discrimination.63 make up for past discrimination; whites oppose
using goals to create diversity or to remedy past
It may be easier to justify in court a voluntary ills. In sum, the controversy over afrmative action
preference system (for example, one agreed to in depends on what you mean by it and on your racial
a labor-management contract) than one that is identity.67
required by law.64
A small construction company named Adarand
Even when you can justify special preferences in tried to get a contract to build guardrails along a
hiring workers, the Supreme Court is not likely to highway in Colorado. Though it was the low bidder,
allow racial preferences to govern who gets laid it lost the contract because of a government policy
off. A worker laid off to make room for a minor- that favors small businesses owned by socially and
ity worker loses more than a worker not hired in economically disadvantaged individualsthat is,
preference to a minority applicant.65 by racial and ethnic minorities. In a ve-to-four
decision, the Court agreed with Adarand and sent
Complex as they are, these rulings still generate a
the case back to Colorado for a new trial.
great deal of passion. Supporters of the decisions
barring certain afrmative action plans hail these The essence of the Courts decision was that any dis-
decisions as steps back from an emerging pattern crimination based on race must be subject to strict
of reverse discrimination. In contrast, civil rights scrutiny, even if its purpose is to help, not hurt, a
organizations have denounced those decisions that racial minority. Strict scrutiny means two things:
have overturned afrmative action programs. In
Any racial preference must serve a compelling
1990, their congressional allies introduced legisla-
government interest.
tion that would reverse several decisions. In partic-
ular, this legislation would put the burden of proof The preference must be narrowly tailored to
on the employer, not the employee, to show that serve that interest.68
the underrepresentation of minorities in the rms
To serve a compelling governmental interest, it is
workforce was the result of legitimate and neces-
likely that any racial preference will have to rem-
sary business decisions and not the result of dis-
edy a clear pattern of past discrimination. No such
crimination. If the employer could not prove this,
pattern had been shown in Colorado.
the aggrieved employee would be able to collect
large damage awards. (In the past, he or she could This decision prompted a good deal of political
collect only back pay.) In 1991, the bill was passed debate about afrmative action. In California, an
and was signed by President Bush. initiative was put on the 1996 ballot to prevent state
authorities from using race, sex, color, ethnicity, or
In thinking about these matters, most Americans
national origin as a criterion for either discrimi-
distinguish between compensatory action and
nating against, or granting preferential treatment
preferential treatment. They dene compensa-
to, any individual or group in public employment,
tory action as helping disadvantaged people catch
public education, or public contracting. When the
up, usually by giving them extra education, train-
votes were counted, it passed. Michigan, Nebraska,
ing, or services. A majority of the public supports
and Washington have adopted similar measures,
this. They dene preferential treatment as giving
and other states may do so.
minorities preference in hiring, promotions, college
admissions, and contracts. Large majorities oppose But the Adarand case and the passage of the
this.66 These views reect an enduring element in California initiative did not mean afrmative action
American political culturea strong commitment was dead. Though the federal Court of Appeals for
to individualism (nobody should get something the Fifth Circuit had rejected the afrmative action
without deserving it) coupled with support for help program of the University of Texas Law School,69 the

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
154 Chapter 6 Civil Rights

increased by threefold the proportion of minority


applicants who were admitted. In short, admitting
Landmark Cases more minorities serves a compelling state inter-
est, and doing so by using race as a plus factor is
narrowly tailored to achieve that goal.
Affirmative Action
Regents of the University of California v. Bakke
(1978): In a confused set of rival opinions, the
decisive vote was cast by Justice Powell, who
Gays and the
said that a quota-like ban on Bakkes admission
was unconstitutional but that diversity was a
Constitution
legitimate goal that could be pursued by taking At rst, the Supreme Court was willing to let states
race into account. decide how many rights homosexuals should have.
Georgia, for example, passed a law banning sodomy
United Steelworkers v. Weber (1979): Despite
(that is, any sexual contact involving the sex organs
the ban on racial classications in the 1964
of one person and the mouth or anus of another).
Civil Rights Act, this case upheld the use of
Though the law applied to all persons, homosexu-
race in an employment agreement between the
steelworkers union and steel plant. als sued to overturn it. In Bowers v. Hardwick, the
Supreme Court decided, by a ve-to-four majority,
Richmond v. Croson (1989): Afrmative action that there was no reason in the Constitution to pre-
plans must be judged by the strict scrutiny vent a state from having such a law. There was a
standard that requires any race-conscious right to privacy, but it was designed simply to pro-
plan to be narrowly tailored to serve a tect family, marriage, or procreation.72
compelling interest.
But ten years later, the Court seemed to take a dif-
Grutter v. Bollinger and Gratz v. Bollinger (2003): ferent position. The voters in Colorado had adopted
Numerical benets cannot be used to admit
a state constitutional amendment that made it
minorities into college, but race can be a plus
illegal to pass any law to protect persons based
factor in making those decisions.
on their homosexual, lesbian, or bisexual orienta-
Parents v. Seattle School District (2007): Race tion. The law did not penalize gays and lesbians;
cannot be used to decide which students may instead it said they could not become the object of
attend especially popular high schools because specic legal protection of the sort that had tradi-
this was not narrowly tailored to achieve a tionally been given to racial or ethnic minorities.
compelling goal. (Ordinances to give specic protection to homosexu-
als had been adopted in some Colorado cities.) The
Supreme Court struck down the Colorado constitu-
tional amendment because it violated the equal pro-
tection clause of the federal Constitution.73
Supreme Court did not take up that case. It waited
for several more years to rule on a similar matter Now we faced a puzzle: a state can pass a law banning
arising from the University of Michigan. In 2003, the homosexual sex, as Georgia did, but a state cannot
Supreme Court overturned the admissions policy of
the University of Michigan that had given to every
African American, Hispanic, and Native American
applicant a bonus of 20 points out of the 100 needed
to guarantee admission to the Universitys under-
Landmark Cases
graduate program.70 This policy was not narrowly
tailored. In rejecting the bonus system, the Court Gay Rights
reafrmed its decision in the Bakke case made in
1978 in which it had rejected a university using a Lawrence v. Texas (2003): State law may not ban
xed quota or an exact numerical advantage to sexual relations between same-sex partners.
the exclusion of individual considerations. Boy Scouts of America v. Dale (2000): A
private organization may ban gays from
But that same day, the Court upheld the policy of
its membership.
the University of Michigan Law School that used
race as a plus factor but not as a numerical quota.71
It did so even though using race as a plus factor

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Gays and the Constitution 155

adopt a rule preventing cities from protecting homo- resulted from a court decision (Connecticut, Iowa,
sexuals, as Colorado did. The matter was nally and Massachusetts), while in the others (the District,
put to rest in 2003. In Lawrence v. Texas, the Court, New Hampshire, New York, and Vermont) it was by
again by a ve-to-four vote, overturned a Texas law vote of the legislature or city council. Several places
that banned sexual contact between persons of the have authorized civil unions for gays and lesbians.
same sex. The Court repeated the language it had
In 2008 the California Supreme Court ruled, ve
used earlier in cases involving contraception and
to four, that the states ban on same-sex marriage
abortion. If the right to privacy means anything, it
violated the states constitution. In November of
is the right of the individual, married or single, to
that year the voters were asked to decide whether
be free from unwanted governmental intrusion into
the constitution should be amended to ban such
sexual matters. The right of privacy means the right
marriages. The initiative (Proposition 8) passed.
to dene ones own concept of existence, of meaning,
When the state supreme court was asked to decide
of the universe, and of the mystery of human life. It
whether this popular vote was binding, it upheld
specically overruled Bowers v. Hardwick.74
it but at the same time allowed existing same-sex
The Lawrence decision had a benet and a cost. The marriages to remain in effect.
benet was to strike down a law that was rarely
Many states have passed laws banning same-sex
enforced and if introduced today probably could not
marriages, and in 1996 Congress enacted a bill,
be passed. The cost was to create the possibility that
signed by President Clinton, called the Defense
the Court, and not Congress or state legislatures,
of Marriage Act. Under it, no state would have to
might decide whether same-sex marriages were legal.
give legal status to a same-sex marriage performed
That same year, the Massachusetts Supreme in another state, and it would dene marriage as
Judicial Court decided, by a four-to-three vote, a lawful union of husband and wife. But state and
that gays and lesbians must be allowed to be mar- federal laws on this matter could be overturned if
ried in the state.75 The Massachusetts legislature the Supreme Court should decide in favor of same-
responded by passing a bill that, if it becomes a sex marriage, using language that appears in the
state constitutional amendment, will reverse the Lawrence case. That could be prevented by an
state courts decision. For that to happen, the legis- amendment to the Constitution, but Congress is not
lature would have to vote again on this matter, but willing to propose one and, if proposed, it is not clear
that did not happen. the states would ratify it.
By mid-2011, six states and the District of Columbia Private groups, however, can exclude homosexu-
had authorized same-sex marriages. In three it als from their membership. In another ve-to-four
decision, the Supreme Court decided that the Boy
Scouts of America could exclude gay men and boys
because that group had a right to determine its own
How We Compare membership.76

Same-Sex Marriages at
Home and Abroad
Same-sex marriages are legal in seven European
Paul Chinn/San Francisco Chronicle/Corbis

countries: Belgium, Iceland, Netherlands, Norway,


Portugal, Spain, and Sweden.
In the United States, they are legal in the District
of Columbia and six states: Connecticut, Iowa,
Massachusetts, New Hampshire, New York, and
Vermont.
In Europe and America, northern nations and
states are much more likely to legalize same-sex
marriages than southern ones. What do you think
People on both sides of the gay marriage issue
may explain this?
gather in front of a California court while it considers
arguments about a voter-backed ban on same-sex
marriage.

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156 Chapter 6 Civil Rights

The civil rights movement in the courts and in The feminist movement has paralleled in organi-
Congress profoundly changed the nature of African zation and tactics many aspects of the black civil
American participation in politics by bringing south- rights movement, but with important differences.
ern blacks into the political system so they could Women sought to repeal or reverse laws and court
become an effective interest group. The decisive rulings that in many cases were ostensibly designed
move was to enlist northern opinion in this cause, a to protect rather than subjugate them. The conict
job made easier by the northern perception that civil between protection and liberation was sufciently
rights involved simply an unfair contest between intense to defeat the effort to ratify the Equal
two minoritiessouthern whites and southern Rights Amendment.
blacks. That perception changed when it became
evident the court rulings and legislative decisions The most divisive civil rights issues in American
would apply to the North as well as the South, lead- politics are abortion and afrmative action. From
ing to the emergence of northern opposition to court- 1973 to 1989, the Supreme Court seemed commit-
ordered busing and afrmative action programs. ted to giving constitutional protection to all abor-
tions within the rst trimester; since 1989, it has
By the time this reaction developed, the legal and approved various state restrictions on the circum-
political system had been changed sufciently to stances under which abortions can be obtained.
make it difcult if not impossible to limit the applica-
tion of civil rights laws to the special circumstances There has been a similar shift in the Courts view of
of the South or to alter by legislative means the deci- afrmative action. Though it will still approve some
sions of federal courts. Though the courts can accom- quota plans, it now insists they pass strict scrutiny
plish little when they have no political allies (as to ensure they are used only to correct a proven
revealed by the massive resistance to early school- history of discrimination, they place the burden
desegregation decisions), they can accomplish a of proof on the party alleging discrimination, and
great deal, even in the face of adverse public opinion, they be limited to hiring and not extended to layoffs.
when they have some organized allies (as revealed Congress has modied some of these rulings with
by their ability to withstand antibusing moves). new civil rights legislation.

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Summary 157

LEARNING OBJECTIVES

WHAT YOU NEED TO KNOW


If both African Americans and women benet from civil rights, why do
federal courts allow them to be treated somewhat differently?
The Supreme Court allows blacks and women to be treated somewhat differently
because race is a skin color (and thus laws affecting it are subjected to strict
scrutiny) while gender is a different body type (and so laws affecting it are
subjected to intermediate scrutiny).
What is the difference between strict scrutiny and intermediate
scrutiny?
Strict scrutiny requires that a law be narrowly tailored and use the least
restrictive means to serve a compelling government interest. Intermediate
scrutiny means that a law must be substantially related to serving an important
government interest.
Legally, what is meant by sexual harassment?
Sexual harassment exists when an employer requests sexual favors in order to
obtain employment or promotions or when an employee experiences a hostile or
intimidating work environment that exists because of sexual teasing, jokes, or
obscenity.
If sexual relations among gays cannot be banned, why is it that some
organizations can ban gay people from membership?
A private organization can ban gays from membership.

RECONSIDERING WHO GOVERNS?


1. Since Congress enacts our laws, why has it not made certain that all groups have the
same rights?
Congress responds to public demands. During much of our history, people have
expected women, African Americans, Native Americans, and many other groups to be
treated differently than others. The Bill of Rights is a check on congressional and state
authority; to be effective, it must be enforced by independent courts.

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158 Chapter 6 Civil Rights

2. After the Supreme Court ended racial segregation in the schools, what did the president
and Congress do?
For a while, not much. But in time, these institutions began spending federal money
and using federal troops and law enforcement ofcials in ways that greatly increased
the rate of integration.

RECONSIDERING TO WHAT ENDS?


1. If the law supports equality of opportunity, why has afrmative action become so
important?
There are several reasons. If there has been active discrimination in the past,
afrmative action can be a way to help disadvantaged groups catch up. But the
Supreme Court has also held, though by narrow majorities, that even when there has
not been a legacy of discrimination, pursuing diversity is a compelling interest. The
real issue is what diversity means and how best to achieve it.
2. Under what circumstances can men and women be treated differently?
A difference in treatment can be justied constitutionally if the difference is fair,
reasonable, and not arbitrary. Sex differences need not meet the strict scrutiny
test. It is permissible to punish men for statutory rape and to bar them from hospital
delivery rooms; men are different from women in these respects. Congress may draft
men without drafting women.

QUESTIONS TO CONSIDER
1. How far should government be lessons can we learn from this for our
required to go or what obligation expectation of how different groups
does government have to ensure the may be treated in the future?
protection of the rights of the minority?
5. Given the numerical dominance of
Should government simply facilitate
women in American society, why has
citizens holding each other accountable
it taken them so long to achieve their
through the use of civil law or should
civil rights? What cultural beliefs
government be actively monitoring and
or expectations may still be at work
protecting the rights of the minority?
today that may affect the ability of
2. We know that discrimination has long- women to attain equality?
lasting negative effects for society.
6. What is the societal purpose of
What can government do to remedy
government recognition of the
this? List three ideas of yourown.
institution of marriage? Why does
3. Explain why the Civil Rights Act of government sanction this form of
1964 is considered the climax of the contract? How does the issue of
civil rights movement. Specically, the gender of each participant in a
what did it entail and how were these givenmarriage t into this discussion?
requirements groundbreaking?
7. Think of the young people you know.
4. Why do you think the civil rights At what age would you say they
experience of Latinos and Native should be able to be tried as adults
Americans has been so different from for serious crimes? On what basis are
that of African Americans? What you making this determination?

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Summary 159

TO LEARN MORE
Court cases: www.law.cornell.edu
Department of Justice: www.usdoj.gov
Civil rights organizations: National Association for the Advancement of Colored People:
www.naacp.org
National Organization for Women: www.now.org
National Gay and Lesbian Task Force: www.thetaskforce.org
National Council of La Raza: www.nclr.org
American Arab Anti-Discrimination Committee: www.adc.org
Anti-Defamation League: www.adl.org

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in the King Years. New York: Simon and school-desegregation issue, from the
Schuster, 1988. A vivid account of the civil Fourteenth Amendment to the Brown case.
rights struggle. Kull, Andrew. The Color-Blind Constitution.
Flexner, Eleanor. Century of Struggle: The Cambridge: Harvard University Press, 1992.
Womens Rights Movement in the United A history of efforts, none yet successful, to
States. Rev. ed. Cambridge: Harvard make the Constitution color-blind.
University Press, 1975. A historical account Mansbridge, Jane J. Why We Lost the ERA.
of the feminist movement and its political Chicago: University of Chicago Press, 1986.
strategies. Explains why the Equal Rights Amendment
Foreman, Christopher A. The African- did not become part of the Constitution.
American Predicament. Washington, D.C.: Thernstrom, Stephan, and Abigail Thernstrom.
Brookings Institution, 1999. Thoughtful America in Black and White. New York:
essays on problems faced by African Simon and Schuster, 1997. Detailed history
Americans today. and portrait of African Americans.
Franklin, John Hope. From Slavery to Wilhoit, Francis M. The Politics of Massive
Freedom, 5th ed. New York: Knopf, 1980. A Resistance. New York: George Braziller,
survey of black history in the United States. 1973. The methodsand ultimate collapse
Friedan, Betty. The Feminine Mystique. New of all-out southern resistance to school
York: Norton, 1963. Tenth anniversary desegregation.
edition, 1974. A well-known call for women to Woodward, C. Vann. The Strange Career of Jim
become socially and culturally independent. Crow. New York: Oxford University Press,
Kluger, Richard. Simple Justice. New York: 1957. Brief, lucid account of the evolution of
Random House/Vintage Books, 1977. Jim Crow practices in the South.

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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

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