Unit 5 Notes
Civil Rights and Liberties
Connects to AP Topics Correlations:
VI:
A.
B.
C.
Civil Rights and Liberties
The development of civil liberties and civil rights by judicial interpretation
Knowledge of substantive rights and liberties
The impact of the Fourteenth Amendment on the constitutional development of rights and liberties
Chapter 15-16 in textbook
Chapter 15: Order and Civil Liberties
I.
The Bill of Rights
A.
The failure to include a bill of rights was the most important obstacle to the adoption of the Constitution.
B.
1.
Imposed limits on the national government, but not on the state governments
2.
Adoption of Fourteenth Amendment (1868) began process of extending restraints to the states
The Constitution guarantees Americans numerous liberties and rights.
1.
2.
Civil liberties: freedoms guaranteed to the individual.
a)
Declare what the government cannot do
b)
“Negative rights”
Civil rights: powers and privileges guaranteed to the individual and protected against arbitrary removal
at the hands of government or individuals.
3.
a)
Examples: right to vote, right to a jury trial
b)
“Positive rights”
“The rights and liberties of the Constitution”: the Bill of Rights and the first section of the Fourteenth
Amendment.
C.
Additional distinctions
1.
Persons possess rights.
2.
Governments possess powers.
3.
Privilege: a behavior that government may lawfully regulate.
4.
No right is absolute.
5.
Government limitations on rights require a higher burden of proof and must be minimal in scope.
Questions to consider from study guide 1. Know how to differentiate between civil rights and civil liberties
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II.
Freedom of religion
A.
The First Amendment prevents government from interfering with religion.
1.
Establishment clause: the first clause in the First Amendment, which forbids government establishment
of religion.
2.
Free-exercise clause: the second clause in the First Amendment, which prevents the government from
interfering with the exercise of religion.
3.
B.
Supreme Court has refused to interpret these causes definitively
a)
Freedom to believe is unlimited; freedom to practice a belief may be limited.
b)
Religion cannot benefit directly from government actions, but may benefit indirectly.
The establishment clause
1.
The Supreme Court has consistently held that the establishment clause requires government to maintain
religious neutrality, but does not bar all assistance that incidentally aids religious institutions.
2.
Government support of religion
a)
1879: Court contended establishment clause erected “wall of separation between church and State”
b)
Wall breached (1947): Court upheld program that provided free transportation to parochial school
students
c)
Further breach (1968): Court upheld program allowing parochial school students to borrow statepurchased textbooks
d)
Lemon v. Kurtzman (1971) struck down state program to pay salaries of parochial school teachers
teaching secular subjects.
(1)
(2)
e)
Three-pronged test for determining constitutionality under establishment clause:
(a)
Program must have a secular purpose
(b)
Primary effect should not be to advance or inhibit religion
(c)
Must not excessively entangle government and religion
Lemon test governed Court’s interpretation of such programs for twenty-five years
Agostini v. Felton (1997) loosened application of the “Lemon Test.”
(1)
New York public school teachers could teach remedial education to disadvantaged students in
New York parochial schools at taxpayer expense.
f)
(2)
Only government neutrality toward religion was required.
(3)
Only excessive entanglements violated the establishment clause.
Zelman v. Simmons-Harris (2002) upheld school voucher program in which secular and sectarian
schools could participate.
3.
Display of religious artifacts on public property
a)
Lynch v. Donnelly (1984)
(1)
Nativity scene displayed with commercial Christmas symbols had secular purpose: celebration
of national holiday.
(2)
Display of nativity scene did not have primary effect of benefiting religion.
(3)
b)
Display led to no excessive entanglement of religion and government.
Proliferation of closely decided cases testing limits of government-sponsored religious displays
since Lynch
4.
5.
School prayer
a)
Court has consistently equated prayer in public schools with government support of religion.
b)
Religious training as after-school activity now constitutional (2001)
The problem of the establishment clause
a)
Support for all religions come at the expense of nonreligion—but poses the least risk to social order.
b)
Tolerance of dominant religion at expense of other religions risks minority discontent.
c)
Support for no religion risks majority discontent.
Questions to consider from study guide 2. Explain how the establishment clause of the First Amendment has been interpreted in cases
involving the separation of church and state.
C.
The free exercise clause
1.
Inherent tension between establishment clause and free exercise clause
a)
Does the free exercise clause require government to grant exemptions from legal duties that conflict
with religious obligations?
b)
Does the free exercise clause guarantee only that the law will be applicable to religious believers
with discrimination or preference?
2.
Justices have distinguished between religious beliefs and actions based on those beliefs.
3.
Working on the Sabbath
a)
Sherbert v. Verner (1963): First Amendment protects religious observance as well as belief.
b)
Strict scrutiny: a standard used by the Supreme Court in deciding whether a law or policy is to be
adjudged constitutional; the law or policy must be justified by a “compelling governmental
interest,” as well as being the least restrictive means for achieving that interest.
4.
Using drugs as sacraments
a)
Clash between religious freedom and social order
b)
Employment Division v. Smith (1990)
(1)
Change in reasoning from “compelling government interest”
(2)
Argued that Court has never held that an individual’s religious beliefs excuse him or her from
compliance with an otherwise valid law prohibiting conduct that government is free to
regulate
c)
(3)
Rejected strict scrutiny standard
(4)
Only laws aimed at religious groups are constitutionally prohibited.
Employment Davison v. Smith allowed for scores of government actions infringing on religious
exercise.
(1)
Resulted in creation of a coalition of religious and non-religious groups to restore the strict
scrutiny test
(2)
Group pressed for Religious Freedom Restoration Act (1994) that required state and local
governments to satisfy strict scrutiny standards
d)
City of Boerne v. Flores (1997)
(1)
Declared federal enforcement of RFRA over state and local governments unconstitutional
(2)
RFRA still binding in federal law
Questions to consider from study guide 3. Show how the free-exercise clause of the First Amendment has been applied to the issues of
compulsory saluting of the flag and the use of drugs as a sacrament.
III.
Freedom of expression
A.
Free expression clauses: the press and speech clauses of the First Amendment.
1.
Dominant view: clauses confer a right to unrestricted discussion of public affairs.
2.
Alternative views
a)
Few, if any, of the framers clearly understood the clauses.
b)
First Amendment does not rule out prosecution for seditious statements
3.
Subtle restriction on the clauses: social pressure
4.
Clauses bar prior restraint: censorship before publication
5.
Approaches to resolution of claims based on free-expression clauses
a)
Government may only regulate or punish advocacy of ideas if it can prove an intent to promote
lawless action and demonstrate a high probability that such action will occur.
b)
Government may impose reasonable restrictions on the means for communicating ideas that may
incidentally discourage free expression.
Questions to consider from study guide 4. Describe the two approaches developed by the Supreme Court for dealing with cases involving the
free-expression clause of the First Amendment.
B.
Freedom of speech
1.
Clear and present danger test: a means by which the Supreme Court has distinguished between speech
as the advocacy of ideas, which is protected by the First Amendment, and speech as incitement, which is
not protected.
a)
Develop in Schenck v. United States (1919)
b)
Gitlow v. New York (1925): the Court assumed First Amendment speech and press provisions
applied to the states through the due process clause of the Fourteenth Amendment.
c)
“Clear and present danger” broadened to “grave and probable danger” in 1951
d)
Brandenburg v. Ohio (1969): the Court offered wider latitude for expression of political ideas by
declaring that threatening speech is protected by the Constitution.
Questions to consider from study guide 5. Outline the evolution of the clear and present danger test.
2.
Symbolic expression
a)
Symbolic expression: nonverbal communication.
b)
Generally receives less protection than pure speech
c)
Courts have upheld certain types of symbolic expression
d)
Tinker v. Des Moines Independent County School District (1969)
(1)
Court overturned the suspension of three high school students
(2)
Principal failed to show how forbidden conduct would substantially interfere with school
discipline
3.
Order versus free speech: fighting words and threatening expression
a)
Chaplinsky v. New Hampshire (1942)
(1)
Chaplinsky convicted for calling a city marshal a “damned fascist”; Supreme Court upheld
conviction
(2)
Fighting words: speech that is not protected by the First Amendment because it inflicts injury
or tends to incite an immediate disturbance of the peace.
b)
Court narrowed definition of fighting words in Terminiello case (1949)
c)
Cohen v. California (1971)
d)
(1)
Court recognized “one man’s vulgarity is another’s lyric”
(2)
Protected two elements of speech
(a)
Expression of emotion
(b)
Expression of ideas
Free speech and the Web
(1)
Communications Decency Act (1996)
(a)
Made it a crime for person to circulate “patently offensive” sexual material to websites
accessible to minors
(b)
(2)
4.
Act was declared unconstitutional
Reno v. ACLU (1997)
(a)
Court argued that the Internet was more analogous to print media than to television
(b)
Deserved broad First Amendment protection
Free speech versus order: obscenity
a)
Obscene material is outside the bounds of constitutional protection.
b)
Difficulties arise in determining what is obscene.
c)
In Miller v. California (1973), the Court declared that a work is obscene if:
(1)
Taken as a whole, it appeals to prurient interest
(2)
It portrays sexual conduct in a patently offensive way
(3)
Taken as a whole, it lacks serious literary, artistic, political, or scientific value
Questions to consider from study guide 6. List the major exceptions to the First Amendment’s protection of freedom of speech.
C.
Freedom of the press
1.
The First Amendment guarantees that government will not interfere with the freedom of the press.
2.
Defamation of character
a)
Libel: written defamation of character.
b)
New York Times Co. v. Sullivan (1964)
(1)
Supreme Court declared that freedom of the press takes precedence over the rights of public
officials suing for libel
(2)
First Amendment protects publication of all statements about the conduct of public officials,
except statements made with actual malice
3.
The Court has extended the concept of freedom of the press to protect publishers against suits from any
public figures.
a)
Public figures: people who assume roles of prominence in society or thrust themselves to the
forefront of public controversy.
4.
b)
All public figures must show actual malice on the part of the publication.
c)
Free speech protects even outrageous and offensive criticism of public figures
Prior Restraint and the press
a)
Near v. Minnesota (1931)
(1)
Declared that prior restraint places unacceptable burden on free press
(2)
Acknowledged that prior restraint may be permissible in exceptional circumstances, but did
not specify those circumstance
b)
New York Times v. United States (The Pentagon Papers) (1971)
(1)
Daniel Ellsberg delivered portions of classified U.S. Department of Defense documents to the
New York Times and the Washington Post.
(2)
Department of Justice sought to restrain publication
(3)
Court concluded that government had not met the burden of proving immediate, inevitable,
and irreparable harm would follow publication of documents
Questions to consider from study guide 7. Discuss how prior restraint, libel, censorship, and shield laws affect freedom of the press in the
United States.
5.
Freedom of expression versus maintaining order
a)
Courts have consistently held that freedom of the press does not override the requirements of law
enforcement.
b)
Educators may limit speech within the confines of the school curriculum if their actions serve any
“valid educational purpose.”
D.
The rights to assemble peaceably and to petition the government
1.
Framers meant that people have the right to assemble peacefully in order to petition the government
2.
Government cannot prohibit peaceful political meetings.
3.
Government cannot criminalize those who organize, lead, and attend peaceful political meetings.
IV. The right to bear arms
A.
V.
Based in the Second Amendment
1.
Gun control advocates: amendment protects rights of states to maintain collective militias.
2.
Gun use advocates: amendment protects the rights of individuals to own and use guns.
B.
Restrictions on gun ownership have passed constitutional muster.
C.
Prohibitions on gun ownership may infringe on the Second Amendment.
Applying the Bill of Rights to the states
A.
Constitution as it was originally written prohibited both the national and the state governments from impinging
on citizens’ rights in certain ways
1.
Bill of attainder: law that makes an individual guilty of a crime without a trial.
2.
Ex post facto law: declares an action a crime after it has been performed.
3.
Obligation of contracts: obligation of the parties to a contract to carry out its terms; neither nation nor
states may impair.
B.
Bill of Rights originally only limited national—not state—authority
C.
The Fourteenth Amendment: due process of law
1.
The Supreme Court’s interpretation of the due process clause in the Fourteenth Amendment has allowed
individuals to contest state violations of their liberties.
2.
D.
Clause has two meanings
a)
Requires government to adhere to appropriate procedures
b)
Forbids unreasonable government action
The fundamental freedoms
1.
1897: the Supreme Court declared that states are subject to Fifth Amendment’s prohibition against taking
private property without providing just compensation.
2.
1925: the Court assumed due process clause protected First Amendment speech and press liberties from
impairment by states.
3.
Palko v. Connecticut (1937): the Court determined that double jeopardy and trial by jury were not
fundamental rights to be protected by the states.
4.
By 1969 (when Palko was overturned) the Court had found that most of the guarantees in the Bill of
Rights were indeed “fundamental.”
E.
Criminal procedure: the meaning of constitutional guarantees
1.
2.
3.
Criminal procedural safeguards have been applied to the states in two stages:
a)
Judgment that a guarantee in the Bill of Rights also applies to the states
b)
National judiciary gives specific meaning to the guarantee (to insure some measure of uniformity)
Defendants’ right to a jury trial in criminal cases is “fundamental”
a)
Nothing regulates jury size (beyond a minimum of six jurors).
b)
Nothing regulates whether judgments should be unanimous.
Court left no room for variation in its definition of fundamental right to an attorney
a)
Gideon v. Wainwright (1963): the Supreme Court determined that defendants in criminal
proceedings were entitled to a lawyer.
b)
Court subsequently specified at which point in criminal proceedings a defendant is entitled to a
lawyer
4.
Court also determined when suspects must be informed of their constitutional rights
a)
Miranda v. Arizona (1966): the Supreme Court instituted Miranda warnings to ensure protection
against self-incrimination.
b)
Miranda warnings: statement concerning rights that police are required to make to a person before
he or she is subjected to in-custody questioning.
5.
Protection against unreasonable searches and seizures
a)
Wolf v. Colorado (1949)
(1)
Made Fourth Amendment applicable to states
(2)
Did not apply exclusionary rule to state courts
(a)
Exclusionary rule: the judicial rule that states that evidence obtained in an illegal search
and seizure cannot be used in trial.
(b)
b)
Allowed states to fashion their own rules of evidence
Mapp v. Ohio (1961)
(1)
Supreme Court determined that the exclusionary rule applied to all levels of government
(2)
Rule appears to handicap to police and offer freedom to people whose guilt has been
established by illegally-obtained evidence
c)
United States v. Leon (1984)
(1)
Supreme Court created the “good faith exception” to the exclusionary rule
(a)
Good faith exception: an exception to the Supreme Court exclusionary rule, holding
that evidence seized on the basis of mistakenly issued search warrants can be introduced
at trial if the mistake was made in good faith—that is, if all the parties involved had
reason at the time to believe that the warrant was proper.
(b)
(2)
F.
Exclusionary rule is not a right but a remedy against illegal police conduct.
Exclusionary rule is costly to society
The USA-Patriot Act
1.
Law expanded the ability of law enforcement and intelligence agencies to tap phones, monitor Internet
traffic, and conduct other forms of surveillance
G.
2.
Shift toward order worries civil libertarians
3.
Section 215
a)
Rules for searching private records (e.g., library, video store, doctor’s office)
b)
Government need only certify without substantiation that search protects against terrorism
c)
Turns judicial oversight into a rubber stamp
d)
Gag order bars person turning over the records from disclosing the search to anyone
Detainees and the war on terrorism
1.
President maintained that detainees (“enemy combatants”) were not entitled to basic legal requirements
and that presidential actions could not be reviewed in court.
2.
Court said detainees were entitled to challenge “enemy combatants” designation before a federal judge or
other neutral decision maker
3.
U.S. citizen detained as “enemy combatant” entitled by due process clause to a “meaningful opportunity”
to contest basis for detention
Questions to consider from study guide 8. Explain how the Fourteenth Amendment has been used to extend the protections of the Bill of
Rights to citizens in cases involving the states.
VI. The Ninth Amendment and personal autonomy
A.
B.
Two different views of the Ninth Amendment
1.
Amendment may protect rights that are not enumerated
2.
Amendment may protect state governments against assumption by national government
Controversy: from privacy to abortion
1.
Griswold v. Connecticut (1965)
a)
Court struck down a seldom-enforced statute that made use of birth control devices a crime
b)
Court asserted that specific guarantees in the First, Third, Fourth, and Fifth Amendments create a
“zone of privacy”
(1)
Zone of privacy is protected by the Ninth Amendment
(2)
Zone of privacy is applicable to the states by due process clause of Fourteenth Amendment
c)
Established principle that Bill of Rights as a whole creates a right to make certain intimate, personal
choices
2.
3.
Roe v. Wade (1973)
a)
Declared unconstitutional a Texas law making it a crime to obtain an abortion
b)
Based decision on the right to privacy protected by the Fourteenth Amendment
c)
Dissenters argued that the majority opinion in Roe v. Wade had no basis in the Constitution.
Webster v. Reproductive Health Services (1989)
a)
Court upheld the constitutionality of a Missouri law that denied the use of public employees or
facilities in the performance of an abortion unless the mother’s life was in danger
b)
4.
No single position held a majority
Court has moved cautiously toward greater government control of abortion
a)
Court struck down state requirement that compelled unwed minors to notify both parents before
having an abortion
b)
Court upheld state requirement that physician notify one parent of a pregnant minor of her intention
to have an abortion
C.
5.
Court has cast the politically divisive issue into the state legislatures
6.
Shifting balance on the Supreme Court will likely affect future decisions
Personal autonomy and sexual orientation
1.
Does the right to privacy embrace homosexual acts between consenting adults?
2.
Bowers v. Hardwick (1986)
a)
State’s argument: “Constitutional law must not become an instrument for change in the social
order.”
b)
c)
3.
Hardwick’s argument: case involves two freedoms
(1)
Right to engage in private sexual relations
(2)
Right to be free from government intrusion in one’s home
Court held that Constitution does not protect homosexual relations between consenting adults
Lawrence and Garner v. Texas (2003)
a)
Voided Texas law criminalizing homosexual (but not heterosexual) sodomy
b)
Law furthered legitimate state interest but intruded into intimate personal choices of individuals
c)
Explicitly stated that Bowers decision was wrong and should be overturned
d)
Scalia and members of the minority argued that decision took the issue out of the democratic
process
4.
Issues around sexual orientation have shifted toward the states.
a)
Congress moved to bar the effects of state-approved same sex unions with the Defense of Marriage
Act (1996).
b)
Thirty-five states now bar recognition of same-sex marriages.
c)
Eighteen states have state constitutional clauses banning gay marriage.
d)
Some states have been innovators in legitimizing homosexuality.
(1)
Vermont approved same-sex “unions” but not same-sex marriages.
(2)
Massachusetts
(a)
2003: highest court mandated state legislature to acknowledge gay marriage as a
fundamental right under the state constitution
(b) 2006: court ruled that gay couples who live in states where marriages are prohibited
cannot marry in Massachusetts
Questions to consider from study guide 9. Discuss where the Supreme Court found the right to privacy in the Constitution, and explain how
this right has been applied in cases involving medical, sexual, and legal confidentiality
Chapter 16: Equality and Civil Rights
VII. Two conceptions of equality
A.
B.
Equality of opportunity: the idea that each person is guaranteed the same chance to succeed in life.
1.
Glorifies personal achievement and free competition
2.
Allows everyone to play on a level field where the same rules apply to all
3.
Example: low bid contracting
Equality of outcome: the concept that society must ensure that people are equal, and governments must design
policies to redistribute wealth and status so that economic and social equality is actually achieved.
C.
1.
Example: allocating admissions or jobs based race, gender, or disability
2.
Quota: requires a specified proportional share of some benefit go to a favored group
3.
Goal: aims for proportional allocation of benefits, without requiring it
4.
Recent surveys show significant decline in support for egalitarian policies
a)
Quota policies generate the most opposition.
b)
Quotas seem to be at odds with individual initiative.
The history of civil rights in the United States
1.
Search for social and economic equality
2.
Has involved black citizens, Native Americans, immigrant groups, women, the disabled, and
homosexuals
3.
Each group has faced invidious discrimination: discrimination against persons or groups that works to
their harm and is based on animosity.
4.
Each group has achieved a measure of success by pressing its interests on government.
5.
Civil rights: powers or privileges guaranteed to individuals and protected from arbitrary removal at the
hands of government or individuals.
Questions to consider from study guide 1. Distinguish between equality of opportunity and equality of outcome.
VIII. The Civil War amendments
A.
Adopted to provide black Americans with civil and political rights
1.
Thirteenth Amendment: eradicated slavery
2.
Fourteenth Amendment
3.
B.
a)
Declares freed slaves are citizens
b)
Prohibits states from abridging privileges
c)
Guarantees due process
d)
Guarantees equal protection
Fifteenth Amendment: adds a measure of political equality
Congress and the Supreme Court: lawmaking versus law interpreting
1.
Congress worked to protect the rights of black citizens immediately after the Civil War
a)
Black codes: legislation enacted by former slave states to restrict the freedom of blacks.
b)
1866: Congress passed civil rights act that gave some national authority over state courts to
counteract black codes
c)
2.
Civil Rights Act of 1875: attempted to guarantee blacks equal access to public accommodations
The Supreme Court weakened some of these rights.
a)
1873: Court ruled that state and national citizenship remained distinct
b)
Held that the right to peaceable assembly was not nationally protected
c)
Held that the Fifteenth Amendment did not guarantee the right to vote; it merely listed grounds that
could not be used to deny voting
d)
e)
1883: Court struck down the public accommodations section of the Civil Rights Act of 1875
(1)
The federal government could not prohibit discrimination by private citizens.
(2)
The federal government could not prohibit acts of omission by a state.
Abetted racism: a belief that human races have distinct characteristics such that one’s own race is
superior to, and has a right to rule, others.
3.
The voting rights of blacks were weakened.
a)
Poll tax: a tax of one or two dollars on every citizen who wished to vote, first instituted in Georgia
in 1877; although it was no burden on most whites, it effectively disenfranchised blacks.
b)
Literacy tests
c)
Grandfather clause limiting voters to those who could establish that their grandfathers were eligible
to before 1867.
C.
The roots of racial segregation
1.
2.
Racial segregation: separation from society because of race.
a)
Jim Crow laws reinforced segregation after the war.
b)
With the nullification of the Civil Rights Act of 1875, state segregation laws proliferated.
Plessy v. Ferguson (1896)
a)
Supreme Court upheld state-imposed racial segregation based on the separate-but-equal doctrine.
b)
Separate-but-equal doctrine: the concept that providing separate but equivalent facilities for
blacks and whites satisfies the equal protection clause of the Fourteenth Amendment.
3.
1899: Supreme Court extended the separate-but-equal doctrine to schools
Questions to consider from study guide 2. Explain why the Civil War amendments proved ineffective in ensuring racial equality.
IX. The dismantling of school segregation
A.
Black Americans began to seek access to the courts in order to challenge racial segregation in education.
1.
The National Association for the Advancement of Colored People (NAACP) took the lead in the
campaign for civil rights.
2.
B.
a)
Pressing for fully equal facilities for blacks
b)
Proving the unconstitutionality of segregation
Pressure for equality…
1.
2.
C.
Two-pronged legal and lobbying attack on separate-but-equal doctrine
Gaines (1938)
a)
Court said black person must be admitted to University of Missouri law school
b)
Missouri could not shift its responsibility to provide equal education to other states.
Sweatt (1950): justices unanimously found black “law school” facilities inadequate
… and pressure for desegregation
1.
2.
Desegregation: the ending of authorized segregation, or separation by race.
a)
Blacks and whites were working together in unions and in service and religious organizations.
b)
President Truman had ordered desegregation of the armed forces.
c)
1947: Department of Justice began to submit briefs to the courts in support of civil rights
Brown v. Board of Education of Topeka, KS (1954)
a)
Class action suit supported by NAACP and coordinated by Thurgood Marshall
b)
Direct challenge to separate-but-equal doctrine
c)
From the decision: “In the field of public education, the doctrine of ‘separate but equal’ has no
place. Separate facilities are inherently unequal.”
d)
State-imposed public school segregation violated the equal protection clause of the Fourteenth
Amendment
3.
Implementation: Brown v. Board of Education II (1956)
a)
School systems must desegregate “with all deliberate speed.”
b)
Task of supervising desegregation fell to lower courts
c)
Some communities violently resisted the demand that school desegregation be implemented; some
school systems closed rather than desegregate.
4.
5.
d)
Heavy burden fell to federal judges
e)
In 1969, Supreme Court issued order that operation of segregated school systems stop “at once”
Court-approved segregation remedies
a)
Busing (approved in Swann v. Charlotte-Mecklenburg County Schools)
b)
Racial quotas
c)
Pairing or grouping of non-contiguous school zones
d)
Remedies applied only to de jure segregation, not de facto segregation.
(1)
De jure segregation: government-imposed segregation.
(2)
De facto segregation: segregation that is not the result of government influence.
Court limited busing to cases where both school districts had practiced discrimination in 1974; ended
large-scale desegregation in northern cities.
Questions to consider from study guide 3. Outline the NAACP’s strategy for ending school segregation.
4. Distinguish between de jure and de facto segregation.
X.
The civil rights movement
A.
Civil rights movement: the mass mobilization during the 1960s that sought to gain equality of rights and
opportunities for blacks in the South and to a lesser extent in the north, mainly through nonviolent,
unconventional means of participation.
B.
Civil disobedience
1.
Rosa Parks
a)
Rosa Parks refused to vacate a seat in the front of a bus in Montgomery, AL, when told to do so by
the driver.
b)
She was arrested and fined ten dollars
c)
Black community responded with boycott of bus system
(1)
Boycott: a refusal to do business with a firm, individual, or nation as an expression or
disapproval or as a means of coercion.
(2)
2.
C.
Martin Luther King, Jr., became the leader of the boycott.
Martin Luther King, Jr.
a)
Helped organize Southern Christian Leadership Conference to coordinate civil rights activities
b)
Advocated civil disobedience: the willful but nonviolent breach of laws that are regarded as unjust
The Civil Rights Act of 1964
1.
The Kennedy Era (1960–1963)
a)
Kennedy became more committed to civil rights as more whites became aware of abuse that
demonstrators suffered under.
b)
Ordered federal troops to insure safety of James Meredith, first black student at the University of
Mississippi (1962)
c)
Enforced desegregation at the University of Alabama (1963)
d)
Kennedy asked Congress for legislation outlawing segregation in public places (June 1963).
e)
“March for Jobs and Freedom” took place in August, 1963; Martin Luther King delivered “I Have a
Dream” speech at Lincoln Memorial
f)
Kennedy was assassinated on November 22, 1963.
2.
Lyndon Johnson considered civil rights his top legislative priority.
3.
Civil Rights Act of 1964 is the most comprehensive legislation to address racial discrimination
4.
a)
“Full and equal enjoyment” of places of public accommodation
b)
Established right to equality in employment opportunities
c)
Strengthened voting rights legislation
d)
Created Equal Employment Opportunity Commission
e)
Allowed funds to be withheld from federal programs administered in a discriminatory manner
Civil Rights Act was enhanced by Elementary and Secondary Education Act, which furthered school
desegregation with threatened loss of funds
5.
The Civil Rights Act of 1964 was upheld by the Supreme Court.
a)
Argued discrimination places substantial burdens on interstate commerce and thus can be regulated
by Congress
b)
6.
Did not justify on basis of Fourteenth Amendment
Other civil rights legislation was implemented through the Great Society programs.
a)
The Twenty-fourth Amendment: banned poll taxes in primary and general elections
b)
The Voting Rights Act of 1965: empowered “freedom riders” to go into areas where fewer than half
the eligible minority voters had been registered, and to assist with voter registrations
D.
c)
The Economic Opportunity Act of 1964: provided education and training
d)
The Fair Housing Act of 1968: banned discrimination in housing
The continuing struggle over civil rights
1.
Grove City College v. Bell (1984)
a)
Only specific educational programs receiving funds, not the institution as a whole, are barred from
discrimination.
b)
Important implications because three other pieces of legislation were worded similarly
c)
Frustrated enforcement of civil rights laws.
2.
Congress acted to restore civil rights enforcement with the Civil Rights Restoration Act (1988).
3.
The Court demonstrated its continued interest in dismantling civil rights enforcement.
a)
Court restricted minority contractor set-asides of state public works funding.
(1)
Set-aside: a purchasing or contracting provision that reserves a certain percentage of funds for
minority-owned contractors.
(2)
b)
4.
Held that past societal discrimination alone cannot serve as basis for quotas
New conservative majority was more concerned with freedom than equality
The Civil Rights Act of 1991 reversed or altered twelve Court decisions that had narrowed civil rights
protections.
E.
Racial violence and black nationalism
1.
The middle and late 1960s were marked by increased violence between those who demanded their civil
rights and those who refused to honor them.
a)
Violence against civil rights workers was confined primarily to the South.
b)
Violence in the northern inner cities took the form of rioting.
(1)
Inner city segregation was not sanctioned by law, but was very real.
(2)
There was rioting in 168 cities in town in the wake of Martin Luther King’s assassination in
1968.
2.
3.
The rise of the black nationalist movement
a)
Fueled by lack of progress toward equality for northern blacks
b)
The Nation of Islam (black Muslims)
(1)
Called for separation from whites and violence in return for violence
(2)
Led by Malcolm X until his assassination in 1965
c)
Black Panther Party generated fear with its denunciation of white American values
d)
Stokely Carmichael called for black power in 1966
Positive effects of the black nationalist movement
a)
Instilled and promoted pride and black history and culture
b)
Catalyzed creation of black studies programs
c)
Encouraged black citizens to vote
d)
Increased number of black elected officials and catalyzed creation of Congressional Black Caucus
Questions to consider from study guide 5. Describe the tactics of the civil rights movement in general and for the passage of the 1964 Civil
Rights Act.
XI. Civil rights for other minorities
A.
Supreme Court ruled (in 1987) that the Civil Rights Act of 1866 (known as Section 1981) offers broad
protection against discrimination to all minorities
1.
Members of any ethnic group can recover monetary damages if they can prove they have been the victim
of a form of discrimination prohibited by law.
2.
Litigants are also allowed to seek punitive damages (damages awarded as additional punishment for a
serious wrong).
B.
Native Americans
1.
Government policy toward Native Americans in the eighteenth and nineteenth centuries
2.
3.
4.
a)
Appropriation of their lands
b)
Isolation on reservations
c)
Denial of social and political rights
d)
Violence and broken promises
e)
Agencies that administered reservations have kept people poor and dependent.
Government policy toward Native Americans in the twentieth century
a)
Promotion of assimilation instead of separation
b)
Banned use of native languages and religious rituals
c)
Sent children to boarding schools and changed their names
d)
Native Americans were granted citizenship in 1924
e)
Land holdings continued to shrink through the 1960s
Native Americans have engaged in militant action
a)
Seizure of Alcatraz Island in 1969
b)
Seized eleven hostages at Wounded Knee, South Dakota, in 1973
The Native American Rights Fund and other group have used legislation to win important land victories
and compensation.
5.
a)
Have won the return of lands in the Midwest, Oklahoma, New Mexico, and Washington
b)
National government owed the Sioux $117 million plus interest for the Black Hills of South Dakota
c)
Other cases are pending
Casino gambling
a)
Special status issued to tribes has allowed institution of casino gambling on reservations, even when
the state opposes
C.
b)
Tribes pay no taxes on profits.
c)
Gambling is a powerful engine of economic growth.
Immigrant groups
1.
Laws that covered immigration were rooted in invidious discrimination until 1965.
a)
Strict quota system that gave advantage to northern and western Europeans
b)
Guaranteed that few southern or eastern Europeans, Asians, Africans, or Jews would be legal
immigrants
2.
New immigration law (1965)
a)
Law reunited families: gave preference to relatives of immigrants already here
b)
Gave preference to immigrants with needed skills (such as doctors and engineers)
(1)
Encouraged migration of professionals from South America, Africa, and Asia
(2)
These professionals then petitioned for family members: chain migration encouraged entire
extended families to immigrate.
3.
Illegal immigration
a)
Strong demand in United States for cheap labor in agriculture and manufacturing enticed poor with
access to U.S. southern border
b)
c)
4.
(1)
Strong gain in employment
(2)
No risk of imprisonment for illegal immigration
Law changed in 1986
(1)
Imposed enforcement burden on employers (imposition of fines for hiring illegals)
(2)
Offered amnesty to illegals residing in United States for at least five years
(3)
Lax enforcement and falsified documents doomed enforcement.
More reform in 2006
(1)
More than eleven million illegal immigrants in United States
(2)
Border states and localities have been hit hard by cost of public services
(3)
Threat to national security post-9/11
(4)
Illegals paid $463 billion in Social Security taxes with little or nothing in return.
Latinos
a)
Large numbers of Mexican immigrants came to the United States in search of employment in the
1920s.
b)
Most found poverty and discrimination, and suffered disproportionately during the Depression.
c)
Farm labor
(1)
Mexicans were recruited to work farms during World War II in California.
(2)
Most farm workers were living in poverty by the 1950s.
(3)
In 1965, Cesar Chavez led a strike against farmers in California; the strike eventually resulted
in better pay, working conditions, and housing.
d)
e)
The Latino population continued to grow in the 1970s and 1980s
(1)
No longer limited to Puerto Ricans and Mexican Americans
(2)
Latinos have continued to be among the poorest and least-educated groups.
(3)
Most have also had to overcome the language barrier.
(a)
Language issues have made voter registration and turnout lower than for other groups.
(b)
Creation of nine Hispanic-majority congressional districts ensured some representation
Latinos are nearly 13 percent of the population.
(1)
Latinos are 4 percent of Congress (109th Congress: twenty-four in the House, two in the
Senate).
(2)
D.
National Hispanic Caucus of State Legislators has over three hundred members.
Disabled Americans
1.
Forty-three million disabled Americans
2.
The Americans with Disabilities Act (1990) recognized disabled people as a protected minority.
a)
People with physical or mental disabilities, including people with AIDS, alcoholism, and drug
addiction
b)
3.
4.
5.
Guarantees access to employment, transportation, public accommodations, and communications
Roots of the disabled rights movement begin in the period after World War II
a)
Disabled veterans found that society was insensitive to their needs.
b)
Disabled and their families increasingly sought care at home.
Enactment set off avalanche of job discrimination complaints with EEOC
a)
Almost two hundred and twenty thousand ADA-related complaints by 2005
b)
Most complaints come from already employed people, either previously or recently disabled.
c)
Charged their employers failed to provide reasonable accommodations
Central question in most ADA suits: what is the meaning of disability?
a)
Deliberately vague definition of disability in the statute: “a physical or mental impairment that
substantially limits one or more major life activities”
b)
E.
Has forced the courts into providing specificity
Homosexual Americans
1.
The gay rights movement officially began in June 1969 with the Stonewall Riots.
2.
Gay/Lesbian interest groups
a)
The National Gay and Lesbian Task Force
(1)
Successfully lobbied the Civil Service Commission in 1973 to allow gay people to serve in
public employment
(2)
Founded the Legislative Lawyering Program (1999) to work for progressive legislation at
federal and state levels
b)
3.
4.
5.
Human Rights Campaign
(1)
Founded 1980; membership over three hundred and sixty thousand
(2)
Currently seeking passage of employment non-discrimination act
Gay community now maintains a significant presence in national politics
a)
Currently three gay members of the House (two men, one woman; two Democrats, one Republican)
b)
Gay and lesbian issues still less important to voters than other issues
Gay and lesbian citizens are still denied protection under laws that protect other minority groups.
a)
Unable to serve openly in the U.S. military
b)
Same-sex partners are not able to take advantage of estate planning laws.
c)
Most gay couples cannot sign on to their partner’s health plans.
Gay marriage
a)
Highest court in Massachusetts held same-sex couples have a state constitutional right to benefits
and obligations of civil marriage (2003)
b)
Only residents of states that recognize validity of homosexual marriage may legally marry in
Massachusetts (thirty-seven states prohibit recognition of gay marriage).
6.
Boy Scouts of America v. Dale (2000)
a)
The Boy Scouts sought to revoke the membership of longtime scout (and assistant scoutmaster)
James Dale when they learned that he had become active in his university’s gay/lesbian student
group.
b)
The Boy Scouts argued homosexual conduct was inconsistent with its mission and could revoke
Dale’s membership.
c)
Dale argued Scouts’ action violated New Jersey law that prohibited discrimination on basis of
sexual orientation in places of public accommodation
d)
The Supreme Court narrowly (5–4) sided with the Scouts.
(1)
Majority argued that the state’s public accommodations law violated the Boy Scouts’ freedom
of association
(2)
Dissenters argued equal treatment outweighed free association, and did not impose serious
burdens on the Scouts
Questions to consider from study guide 6. Discuss the struggle for equality of Native Americans, minorities, and the disabled
XII. Gender and equal rights: the women’s movement
A.
Protectionism
1.
Protectionism: the notion that women should be spared from life’s cruelties; until the 1970s, the basis
for laws affecting women’s civil rights.
a)
Supreme Court upheld an Illinois statute prohibiting women from practicing law (1873)
b)
Supreme Court upheld Oregon work laws limiting the number of hours that women could work
(1908)
2.
B.
(1)
Effectively locked women out of jobs that called for substantial overtime—and overtime pay
(2)
Shunted to jobs men believed suited their abilities
Supreme Court struck down a company’s fetal protection policy (1991)
(1)
Relied on amendments to 1964 Civil Rights Act
(2)
Women should not be forced to choose between having a child and having a job.
Political equality
1.
Supreme Court held that the Fourteenth Amendment’s privileges did not confer right to vote on all
citizens or require states to allow women to vote (1875).
2.
Susan B. Anthony convinced a California senator to introduce constitutional amendment to allow women
to vote (1878).
3.
Amendment was introduced and voted down several times over twenty years
4.
Women gained limited suffrage in several states in West and Midwest
5.
Women picketed the White House in 1917.
a)
Police arrested 218 women from twenty-six states.
b)
6.
Nearly one hundred went to jail.
th
19 Amendment: the amendment to the Constitution, adopted in 1920, that ensures women of the right
to vote
C.
Prohibiting sex-based discrimination
1.
The Equal Pay Act of 1963:
a)
Required equal pay for men and women doing similar work
b)
Did not account for stratification of work by gender
2.
Title VII of the Civil Rights Act of 1964: barred employment discrimination on the basis of sex
3.
President Johnson issued executive order requiring federal contractors to take affirmative action and
practice nondiscrimination in 1965; this was extended to gender in 1968.
4.
Title IX of the Education Amendments of 1972 prohibited sex discrimination in education (and fostered
many sports programs for girls).
5.
Revenue Act of 1972 provided tax credits for child care expenses, allowing women to enter or remain in
the workforce
D.
Stereotypes under scrutiny
1.
Supreme Court struck down state law that gave men preference over women as administrators in estates
without named administrators (1971)
2.
Court determined that paternalism “put women not on a pedestal, but in a cage” (1973)
3.
The Court determined that gender distinctions could be justified only if they served some important
government purpose (1976).
a)
Intention of gender-related Court decisions is to end sexual stereotyping while acknowledging
relevant differences between men and women
b)
Comparable worth requires employers to pay comparable wages for different jobs filled
predominantly by one sex or the other that are of about the same worth to the employer.
4.
Justices held it unconstitutional to use gender (or race) as a criterion for determining juror competence
and impartiality (1994)
5.
United States v. Virginia (1996)
a)
Qualified women must be allowed admission to the Virginia Military Institute (a state-supported
military college in Virginia).
b)
Developed “skeptical scrutiny” test: requires parties who seek to defend gender-based action to
demonstrate an “exceeding persuasive justification”
Questions to consider from study guide 7. List the major legislative and judicial milestones in the struggle for equal rights for women.
E.
The Equal Rights Amendment
1.
Equal Rights Amendment (ERA): a failed constitutional amendment introduced by the National
Women’s Party in 1923, declaring that “equality of rights under the law shall not be denied or abridged
by the United States or any state on account of sex.”
2.
3.
a)
The ERA passed the proposal stage in 1972.
b)
Its proponents failed to obtain ratification by the 1982 deadline.
Why the ERA failed
a)
Proponents mounted national campaign; opponents organized state-based campaigns
b)
Proponents exaggerated amendment’s effects, giving the opponents ammunition
c)
Strong opposition from women who wanted to maintain their traditional role
Benefits of the movement to ratify the ERA
a)
Raised consciousness of women about their social position
b)
Spurred formation of National Organization for Women (NOW) and other organizations
c)
Contributed to women’s participation in politics
d)
Generated important legislation
4.
Many of the goals of the ERA have already been realized by various actions of the Supreme Court.
5.
Because the Court could reverse those decisions, an ERA may still be necessary.
Questions to consider from study guide 8. Explain why women’s rights advocates favored the Equal Rights Amendment (ERA) as a way to
extend equal rights to women.
XIII. Affirmative action: equal opportunity or equal outcome
A.
Affirmative action: any of a wide range of programs, from special recruitment efforts to numerical quotas,
aimed at expanding opportunities for women and minority groups.
1.
Aims to overcome effects of present and past discrimination
a)
Proponents of affirmative action: to eliminate lasting effects of invidious discrimination, public and
private sectors must take steps to provide access to good education and jobs.
b)
Opponents of affirmative action
(1)
Quotas create invidious discrimination against individuals who are blameless.
(2)
Quotas also lead to giving opportunity to less qualified over more qualified.
2.
May impact education, employment, and the awarding of government contracts
3.
Preferential policies are generally the result of administrative regulations and judicial rulings, not
legislation.
B.
Reverse discrimination
1.
Regents of the University of California v. Bakke (1978)
a)
White male Bakke contended he held superior academic qualifications to all minority applicants
who had been admitted to University of California at Davis Medical School
b)
Argued he had been denied admission solely on the basis of race
c)
Supreme Court agreed Bakke had been discriminated against and ordered his admission
d)
But reaffirmed the use of affirmative action programs that use race as a plus factor, but not the sole
factor
2.
3.
Gratz v. Bollinger (2003)
a)
Considered University of Michigan’s undergraduate admissions policy
b)
Policy gave 20 points for minority group status (100 points guaranteed admission)
c)
Court argued that policy violated equal protection
(1)
Lacked narrow tailoring
(2)
Failed to provide for individualized consideration of each candidate
Grutter v. Bollinger (2003)
a)
Considered University of Michigan Law School admission policy
(1)
Policy gave preference to minority applicants with lower GPA and test scores of white
applicants
(2)
School defended policy on grounds it served “a compelling interest in achieving diversity
among its student body”
b)
Court upheld policy, stating that school’s narrowly tailored use of preferences further a compelling
interest
C.
The politics of affirmative action
1.
2.
Blacks tend to favor affirmative action programs; whites do not.
a)
Moderation between the two groups since the 1970s is a result of shifts among blacks.
b)
Whites’ views have remained essentially unchanged.
The persistence of equal outcomes policies
a)
Encourage unprotected groups to work toward being included as protected groups
b)
List of protected groups has expanded over the years
c)
Votes of the members of these groups matter to elected officials.
Questions to consider from study guide 9. Discuss how affirmative action programs have led to charges of reverse discrimination.