chapter 5

5

Civil Rights

Civil Rights Although the Declaration of Independence declared that “All men are created equal,” the 1787 Constitution had little to say about equality, at least as the concept is understood today. Civil rights are rights related to the duties of citizenship and the opportunities for participation in civic life that the government is obliged to protect. These rights are based on the expectation of equality under the law.

Civil Rights vs. Civil Liberties Civil rights differ from civil liberties in that while government is the only authority that could suppress liberties, for example by suppressing freedom of speech or forbidding a certain religious belief, both government and individuals have the capacity to engage in discrimination by treating people unequally: the government through laws that discriminate and individuals or businesses through actions that discriminate.

The Government and Civil Rights The government can take three different roles when it comes to civil rights. • It can engage in state-sponsored or public discrimination by actively discriminating against people. • It can treat people equally but permit private discrimination by allowing individuals or businesses to discriminate. • It can try, as it has since the 1960s, both to treat people equally and to prevent individuals or businesses from discriminating.

The Constitution and Civil Rights The Founders were not much concerned with equality as it is understood today. • Many owned slaves • The words “slave” and “slavery” do not appear in the Constitution, but states were required to return runaway slaves and the importation of slavery was allowed until 1808. • The states had authority over voting, and most states restricted the right to vote to free males with a certain amount of property.

Introducing Civil Rights into the Constitution Civil War Amendments • 13th Amendment – Ended Slavery

• 14th Amendment – Makes people born in the United States Citizens – Equal protection under the law

• 15th Amendment – Universal adult male suffrage

• 19th Amendment – Women’s suffrage

• 26th Amendment – Universal adult suffrage

Racial Segregation and Discrimination

Legal Restrictions on Civil Rights Slavery • Missouri Compromise (1820) - Banned slavery in the territories that were north of the southern border of Missouri, thus keeping most of the vast lands in the Louisiana Purchase free. • Compromise of 1850 - Allowed territories captured in the Mexican War to decide for themselves whether to be free or slave and denied alleged fugitive slaves the right to a jury trial.

Legal Restrictions on Civil Rights continued • Kansas-Nebraska Act (1854) - Undid the Missouri Compromise by allowing each territory to vote as to whether to allow slavery or not • Dred Scott v. Sandford (1857) - No black—slave or free—could be an American citizen, and thus could not sue in a federal court. - Blacks were “beings of an inferior order” who had “no rights which the white man was bound to respect.” - The Declaration’s statement that “all men are created equal” did not include those of African heritage.

Dred Scott v. Sandford (1857) In 1846 Dred Scott, a black slave pictured here with his family, sued for his freedom, claiming that since his owner had taken him to a free territory, he should be free. The Supreme Court said no, and went further to say that Scott, as an African American, had no standing to sue, and that Congress could not prohibit slavery in any territory. The 1857 ruling pleased southerners but infuriated northerners.

Racial Segregation and Discrimination The Emancipation Proclamation did not end discrimination. • Black Codes – Prevented freedmen from voting, owning land, or leaving their plantations.

• Reconstruction – Civil Rights Act of 1866 guaranteed the right of freedmen to make contracts, sue in court if those contracts were violated, and own property. – Congress also established military rule over the former Confederate states, which would end when a state passed a new state constitution that guaranteed black suffrage and when it ratified the Fourteenth Amendment.

Ku Klux Klan Founded by Confederate veterans in 1866, the Klan was a terrorist organization aimed at restoring white supremacy. • Congress responded by passing: - Civil Rights Act of 1871 » enforce 14th Amendment » protection from Klan violence - Civil Rights Act of 1875 » equality in public accommodation – All declared unconstitutional by Supreme Court

After Reconstruction Reconstruction ends in 1876 and the South is no longer under military occupation. • Mississippi never ratifies the 13th Amendment until 1995. • Klan violence increases and the presence of the Klan is evident in private and government agencies throughout the South and even in some Northern states like Indiana.

Denial of Rights by the States Despite the 15th Amendment, states denied freed men the right to vote through a variety of laws. • Poll taxes limited the voting of poor blacks (as well as poor whites). • The white primary excluded blacks from Democratic primaries meaning that blacks had no effective vote at all. • Literacy Tests involved reading and interpreting difficult passages, sometimes in foreign languages • Grandfather clauses gave exemptions to those whose grandfathers had been eligible to vote.

Jim Crow Laws Jim Crow laws enforced segregation of whites and blacks in all public places. • Plessey v. Ferguson (1896) – Separate but equal doctrine

Woman’s Suffrage Neither the Declaration nor the Constitution made any provision for women’s rights. Rather, the states continued the English policy of coverture. • In 1848, leaders of the women’s suffrage movement met in Seneca Falls, New York, to organize for the right to vote. • The 19th Amendment to the Constitution would not be passed until 1920.

Woman’s Suffrage by States

Women’s Rights Even after the passage of the 19th Amendment, women found themselves restricted by law and discriminated against in a variety of areas. • • • • •

Right to own property Right to divorce Access to birth control and abortion Right to equal access to higher education Right to equal work and equal pay

Equal Rights Amendment First introduced in 1921 by Alice Paul, and passed by Congress in 1972, the Equal Rights Amendment (ERA) said: “Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.” • Failed to be ratified by 3 states • Title IX of the Education Amendments – “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . .”

Equal Rights Amendment

Other Forms of Discrimination • Chinese Exclusion Act of 1882

– Barred immigration of Chinese to America.

• Public segregation of Hispanics in the south and west • Exclusion of Native Americans as citizens (ends with the passage of the Indian Citizenship Act of 1924 )

– In 1823, the Supreme Court declared that Native Americans were merely inhabitants, “an inferior race of people, without the privileges of citizens.”

• Immigration Quotas

– The Immigration Act of 1924 placed quotas for ethnic groups based on the proportion of Americans from each nationality resident in 1890, thereby severely limiting the number of whites considered to be of “lower race,” that is, those from southern and eastern Europe.

• Japanese Interment during World Ward II

– In Korematsu v. United States (1944) the Supreme Court decision upholding the detention of Japanese Americans during World War II.

Other Forms of Discrimination

The End of Legal Restrictions on Civil Rights Brown v. Board of Education (1954) • Separate schools were inherently unequal, even should facilities be essentially similar. • Segregation in schools violated the equal protection clause of the Fourteenth Amendment.

Brown II (1955) • Gave the oversight of desegregation to Federal Courts, taking the power away from the states.

End of Civil Rights Restrictions continued Civil Rights Act of 1957 • Established U.S. Commission on Civil Rights to investigate civil rights violations • Created Civil Rights division of Department of Justice to enforce the 15th Amendment

Civil Rights Act of 1960 • Renewal of 1957 act • Criminal laws against racially motivated bombings and burnings

The Civil Rights Act of 1964 Civil Rights Act of 1964 • 11 titles • 2, 6, & 7 most important - 2 – bars discrimination in places of public accommodation - 6 – bars racial discrimination in any federally funded program - 7 – bars discrimination in hiring, firing, or any other disc. by business or labor orgs. on account of race, religion, sex or national origins, outlawed poll taxes and literacy tests and created the EEOC.

The Voting Rights Act of 1965 The Voting Rights Act of 1965 • Banned literacy, interpretation, and other such tests for voting. • It required states with low voter registration levels to receive Justice Department approval for any changes to its voting laws.

• It also established new criminal penalties for those who sought to keep people from voting on account of race.

Ending Anti-Miscegenation Laws Also known as Miscegenation Laws, banned the marriage of and sometimes sexual relations between people of different races. • Loving v. Virginia (1967)

Affirmative Action Even after the passage of Civil Rights laws, minorities and women continued to face discrimination in hiring and in access to educational institutions. In an attempt to redress these historical wrongs, the government created programs known as Affirmative Action. • Affirmative action is a term coined in the 1960s to describe programs that were intended to remove “artificial barriers” to employment and education for people who had been historically prevented access because of discrimination. – Seek out and hire/admit qualified minority and female candidates

Affirmative Action vs. Quotas Because the government requires that public educational institutions and businesses seeking government contracts conform to affirmative action programs, some believed that this meant the government required them to employ/admit a certain number or “quota” of women and minorities. • The Supreme Court has consistently held that quotas are unconstitutional while upholding affirmative action programs. – Businesses that are required to employ a certain number of women or minorities can avoid the requirements if they can show that there was a shortage of reasonably qualified female or minority applicants – Colleges and universities cannot set aside a number or percentage of seats for minority or female candidates, but may use race as one of many factors in admissions. • Legacy

Sexual Identity The Stonewall riots became the signature event of a growing gay rights movement. Activists soon formed the Gay Liberation Front, which established branch organizations around the world. • Many states passed laws that specifically targeted gay sex. – Bowers v. Hardwick (1986) – Lawrence v. Texas (2003)

Sexual Identity and the Loss of Civil Rights Don’t Ask, Don’t Tell • Prior to this policy, simply being a gay or lesbian citizen, without any evidence of homosexual activities, was sufficient grounds for discharge from the armed forces. • Under “Don’t Ask, Don’t Tell,” sexual identity alone is not a ground for discharge, but lesbians, gays, or bisexuals can still be discharged for engaging in homosexual relationships or for discussing their sexual orientation. – It is estimated that over 15,000 service men and women have been discharged under this policy. Some served in strategic positions, like languages, where the military already faces a shortage.

The Right to Marry Congress passed and President Clinton signed the Defense of Marriage Act in 1996. • Defines marriage, for the purpose of federal law, as between a man and a woman and declares that states do not have to recognize same-sex marriages performed in other states. • Violates the “full faith and credit” clause of the Constitution • Denies states that allow gay marriage the historical right of having those marriages recognized by other states. • Violation of the 14th Amendment’s “equal protection clause”.

States Approving Same Sex Marriage

Views on Same-Sex Marriage

The Employment Non-Discrimination Act Members of the LGBT community are not protected under the 1964 civil rights acts. • The Employment Non-Discrimination Act (ENDA) would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity. - Extend federal employment discrimination protections to sexual orientation and gender identity. - Prohibit public and private employers, and labor unions from using an individual's sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion or compensation . - Provide for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII and the Americans with Disabilities Act - Applies to Congress and the federal government, as well as employees of state and local governments

Disability Rights • The landmark Americans with Disabilities Act (ADA) (1990) requires public and private employers to make “reasonable accommodations” to known physical and mental limitations of employees with disabilities and, if possible, to modify performance standards to accommodate an employee’s disability.

Racial and Religious Profiling The use by police of certain racial, ethnic, or religious characteristics in determining whom to investigate for particular kinds of crimes, has become controversial because evidence has mounted that profiling entails unequal treatment under the law.

Voting Rights for Felons Voting rights for felons vary greatly from state to state, leaving some to conclude that inequality still exists within voting rights. • Maine and Vermont allow prison inmates to vote. • Thirteen states allow felons to vote upon release from prison. • Twenty-five more states allow them to vote upon completion of probation or parole. • Ten states do not automatically restore voting rights, with the specifics of restoration varying among those states.

Voting Rights for Felons

Illegal Immigrants The Fourteenth Amendment’s equal protection clause prohibits states from denying to any person—in other words, not just citizens—equal protection under the law. • Immigration Reform – Path to legal citizenship? – Increases in guest worker visas?

Illegal Immigrants

Sexual Harassment The problem of discrimination on account of sex can take many forms, and one of the most prevalent in the workplace is sexual harassment. • Survey data reveal that nearly 60 percent of women report potentially harassing behaviors at work. • The Supreme Court recognizes two distinct types of sexual harassment. – Quid pro quo, where supervisors link the benefits of employment to sexual favors. – Whenever one or more employees establish, on account of sex, a hostile work environment, one that interferes with a worker’s ability to do his or her job.

Gender Equality in the Workplace Unfortunately, true pay equity has not been achieved in the American workplace. • Census statistics from 2008 show that, in 2007, women earned only 77.8 percent of what men earned. • African American women earned only 68.7 percent, and Latinas earned only 59 percent, of what men made.

Lilly Ledbetter Fair Pay Act Ledbetter v. Goodyear Tire and Rubber Co. • In 2009 Congress reversed the court ruling by passing the Lilly Ledbetter Fair Pay Act, which President Obama signed into law. - The act restarts the clock each time an employee receives a paycheck that has been compromised by discriminatory practices. http://edlabor.house.gov/ lilly-ledbetter-fair-payact/index.shtml

Focus Questions • What is the meaning of equality? How has its meaning changed since the Constitution was written in 1787? • What role has government played with regard to equality in the past? What role does it assume today? • What means have various groups used to secure their civil rights? What means has government used to respond? • What is the effect on a democracy if some of its people lack civil rights? • Are civil rights a gate, or a gateway, to democracy? Explain.