govt 2301 civil rights and the equal protection clause
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GOVT 2301
Civil Rights and the Equal Protection Clause
In the previous four sets of slides we discussed four principles written
within the original (U.S.) Constitution.
This set details a fifth principle that was added to the Constitution as a
consequence of the 14th Amendment: equality before the law.
The term civil rights is used to refer to policies related to equality
before the law.
In order to become familiar with civil rights issues in general click here for past blog
posts related to civil rights.
In this section we explore the concept of civil rights (and equality in general),
its development over history, and especially as it evolved in the United States upon the ratification on of the
Equal Protection Clause in the 14th Amendment.
Let’s begin with a definition.
Civil Rights: A Definition
The legal guarantees that citizens are entitled to make on
government, generally these claims are based on the accusation that an individual has been treated
unequally by the laws.
Here are sources for more detailed information about the topic:
- Legal Information Institute: Civil Rights.- Wikipedia: Civil and Political Rights.
- Findlaw: Civil Rights Basics and Background.
As we will see, this is a controversial principle. People like
to treat others unequally – or to gain an advantage over others by
influencing how the law is applied. Arguments are often presented to
justify unequal treatment.
The original Constitution says little about equality.
In fact, the 3/5th compromise makes unequal representation part
of the original design.
The closest the document comes to establishing equality is in the Due
Process Clause of the 5th Amendment. This states that people cant be
deprived of liberty without the due process of the law, which is taken to
mean that this applies to “all” people.
Click here for background on due process.
But as we know from the previous slides, this applied only to the national
government. Until the 14th Amendment each state was able to determine for itself
how different groups in society were treated by the law.
Many created a secondary status for some groups: ethnic groups, women, religious
groups, etc . . .
This changed as a consequence of the Civil War. In its aftermath 3 amendments were added to the
Constitution which began do address inequality.
In addition to the 14th, the 13th Amendment outlawed slavery and involuntary servitude and the 15th
Amendment prevented states from denying voting rights to citizen’s based on race, color or previous
condition of servitude.”
The 14th Amendment had the biggest impact of these three.
Once ratified, people – at least in theory – could not be treated differently before the law. A
process was put in place where people could claim that they were
being treated unequally.
In many ways it transformed the meaning of the original
Constitution. For that reason it may be the most consequential of
all the amendments.
Click here for past blog posts on the 14th Amendment.
The amendment has four sections – this is the one that contains the
meat:
Fourteenth Amendment. Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
The highlighted portion is the equal protection clause: “. . . nor shall any
State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”
This gives the national government the power to force the states to
provide equal protection for their citizens.
Many states and individuals resisted, and many continue to.
We will explore this conflict below.
Let’s review a key point made in the previous section on civil
liberties:
Civil Rights are distinct from Civil Liberties
Each concerns the relationship between government ands the
individual, but civil liberties limit government power, civil rights
require its usage.
If you recall from previous slides, civil liberties are protections from the arbitrary use of governmental
power. They limit governments substantive and procedural
powers.
That was the purpose of the Bill of Rights.
The protection of civil rights often involves the proactive use of
government power to address claims of discrimination either from a private organization or another governmental entity.
These claims generally involve accusations that an individual or
groups’ race, gender, age, physical disabilities, sexual orientation, or
other factor was used to deny them a position or job that they
were otherwise qualified for.
Civil Rights legislation is enforced primarily through lawsuits
individuals are allowed to take forward to the courts.
Findlaw: The Government’s Role in Civil Rights Enforcement.
Government agencies also exist to assist in the investigation of
alleged civil rights violations.
Here’s a useful site from Findlaw if you want information about how
to address a suspected violation of your civil rights.
Each has been authorized by legislation passed by Congress.
The two most important are the Equal Employment Opportunity Commission (Wikipedia), which is an independent
agency that enforces laws against discrimination in the workplace. It was established due to Title VII of the Civil
Rights Act of 1964 (Wikipedia). For further information on these, click
here.
The second is the U.S. Department of Justice’s Civil Rights Division
(Wikipedia), which was established in order to enforce the Civil Rights
Act of 1957.
Certain crimes involving “the violent interference with liberties
and rights defined in the Constitution or federal law” can be prosecuted by the Criminal Section
of the Civil Rights Division.
In addition, some agencies contain within them offices that focus on civil rights complaints within their
jurisdiction.
The U.S. Department of Education's Office for Civil Rights
(Wikipedia) is charged with ensuring compliance with several
federal laws related to discrimination in education. Click for more information about the
office here.
The U.S. Department of Health and Human Services also has an Office
of Civil Rights that investigates claims of discrimination in the
provision of health care, among other things.
Office of Federal Contract Compliance Programs
The Agency responsible for ensuring that employers doing business with the Federal
government comply with the laws and regulations requiring nondiscrimination.
- wikipedia
Similar agencies exist on the state level. Relevant information for
Texas can be found here. You can also find additional info here: Health and Human Services
Commission: Civil Rights Office
Now for some historical background:
Claims of unequal protection have been common throughout Anglo-
American history.
One could argue that many major documents in Anglo-American
history (the ones we have covered in previous sections) are based on claims that basic civil rights – for
some anyway - have been violated.
In case you want to review:
Magna CartaPetition of Right
English Bill of RightsDeclaration of Independence
In Britain, the landed gentry (the people that opposed absolute monarchic rule)
would sometimes complain that they were being denied “ancient rights and liberties” guaranteed by the Magna Carta and other
ancient documents.
This gave weight to their complaints against the monarchy.
The founders claimed they were being denied the rights they were
guaranteed as Englishmen.
The British chose to treat them as second class citizens. They lacked,
for example, the right to sit in Parliament.
If you recall, a key early dispute concerned the source of rights.
Were rights innate in the individual or where they granted by a
governmental authority (which made them subject to removal)?
The Charter of Liberties, which we discussed earlier, was granted by Henry I to calm the fears of the
nobility that he would deny their property rights among other
things.
But since rights were granted by the monarch, not considered to be innate in the individual, he could –
and would - later revoke them.
Later documents would claim these rights were innate.
You should recall this text from the Declaration of Independence
“We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness.”
But this is a philosophic guarantee not a legal guarantee.
There was no legal guarantee of civil rights until
the 14th Amendment, and even then a legal guarantee doesn’t
really matter until an enforcement mechanism is established.
This is a very important point. Its one thing to say that people have
rights. Its another, and more consequential thing to have a means by which rights can be
obtained, enforced and maintained.
It commonly pointed out that early in America’s history, political and civil rights and liberties were held
only by a privileged class.
A variety of factors were used to exclude groups from full participation in society.
Again, the Constitution, as originally written, contains no clear
language stipulating the right of individuals to be treated equally
before the laws.
States were free to treat their citizens before the law as they saw
fit. This was often articulated as states rights.
For example: Article One allows states to determine who was able
to vote.
A variety of limitations on rights existed for those not in the
privileged classes.
Property ownershipAccess to educationAccess to the courts
The right to sign contracts
For an example read through Wikipedia’s entry on Women’s
Property Rights.
But early political movements developed which pushed for the inclusion of previously excluded
groups. These efforts are ongoing.
- Civil Rights Movements.
First to crack through were non-property owners in the late 1820s. The right to participate politically was often based on whether an
individual owned property.
Note that civil rights and voting rights are very similar. We will hit some of these same points when
we cover suffrage in the section on elections.
Property owners claimed that only they had the ability to govern.
Here’s a famous quote:
“The people who own America ought to govern it” – John Jay
The Jacksonian Revolution was driven by non-property owners
who wanted to participate politically. It’s objectives were achieved primarily through the
states – initially the newer states to the west that they were able to
control.
We covered this material before when we discussed state constitutions. Many – including Texas’ – were
written after this period of history.
But restrictions continued to exist of course. Women and ethnic minorities
were still in place. Movements developed to redress both these
issues.
The Women’s Movement and the Abolition Movement both began prior
to the Civil War (the abolition movement helped spur the war of
course).
Each would evolve into powerful political movements after the war,
though it would take years for each to be successful.
Here’s a link to a timeline of the African American civil rights
movement.
And here is a link to a timeline of the expansion of women’s rights.
While those two are the most noteworthy civil rights
movements, other groups have also pursued equal rights:
- People with Disabilities (Deaf Empowerment)- Sexual Orientation
For further information, here are links to past blog posts related to
discrimination based on age, gender, race, and sexual
orientation.
Civil Rights Policymaking
How have various groups over American history had their
grievances redressed?
Each branch of government has had its own role to play in
advancing civil rights.
Each has had its own unique impact.
The Legislature by the passage of a series of civil rights laws.
The Executive in the implementation of civil rights
policies.
The Judiciary in how it interprets statutory and constitutional
language.
Most importantly the term “equal protection.”
Let’s look at each in turn
First
Legislative Action
Congress has been involved in two ways:
1 - The Passage of Civil Rights Legislation, including proposing
amendments to the Constitution.
2 - The Oversight of Civil Rights Agencies and the implementation of
civil rights legislation.
A variety of Civil Rights Acts have been passed over American
history. Most dating back to the 19th Century were weak and
unenforceable. Some were found unconstitutional or were watered
down by the Supreme Court.
For background, look through this list of major civil rights legislation
from Findlaw.com.
Here is a separate list – with links – of major civil rights legislation from
Wikipedia:
Civil Rights Acts: A List from Wikipedia:
Civil Rights Act of 1866, extended the rights of emancipated slaves
Civil Rights Act of 1871, also known as the Ku Klux Klan Act, prohibited ethnic violence against blacks
Civil Rights Act of 1875, prohibited discrimination in "public accommodations.“ It was found unconstitutional in 1883 as Congress could not regulate conduct of individuals
Civil Rights Act of 1957, established the Civil Rights Commission.
Civil Rights Act of 1960, established federal inspection of local voter registration polls
Civil Rights Act of 1964, prohibited discrimination based on race, color, religion, sex, and national origin by federal and state governments as well as some public places
Civil Rights Act of 1968, also known as the Fair Housing Act
Civil Rights Act of 1991, provided the right to trial by jury on discrimination claims and introducing the possibility of emotional distress damages, while limiting the amount that a jury could award.
As a result of the Civil Rights Act of 1957, the U.S. Commission on Civil
Rights (Wikipedia) was established. It is “an independent, bipartisan, fact-
finding federal agency,” with a mission “to inform the development of
national civil rights policy and enhance enforcement of federal civil rights
laws.”
Civil Rights Act of 1964
This is the most significant piece of civil rights legislation. It outlawed racial
segregation in schools, public places, and employment and established institutions
strong enough to enforce its mandate.. Its constitutionality was established by its
basis on the Commerce Clause.
For more background on the act click on these:
- National Archives.- Our Documents.
- CongressLink.- Filibuster Ended.
It contained eleven separate sections.
Convenient Links to them here.
A few important ones:
Title I: Voting Rights
Barred unequal application of voter registration requirements.
Title II: Discrimination
Outlawed discrimination in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; exempted private clubs without
defining the term "private."
It establishes Civil Remedies (Legal Remedies)– essentially this refers
to lawsuits – as the preferred means of addressing allegations of
illegal discrimination.
Example: Civil Remedies for Victims of Sexual Abuse.
It authorized the Attorney General to file lawsuits to protect
individuals against the deprivation of any rights secured by the
Constitution or U.S. law. Lawsuits could also be filed by private
individuals.
Controversy: This placed limitations on state sovereignty,
the federal government was allowing states to be sued in
federal courts. This led to opposition by the states that claim
to be immune from such suits.
State Sovereign Immunity
States do not like to be sued in federal court. States tend to push back when mandated to address
civil rights issues. We also covered this dispute in the section on
federalism
The conflict is perhaps inevitable. Recall that Madison, in Federalist #10, argued that tyranny of the
majority – violations of the rights of the minority – is more likely to
occur on the local level.
Title VII: Employment Discrimination
Prohibits discrimination by covered employers on the basis of race, color, religion, sex or national
origin.
This led to the creation of the Equal Employment Opportunity
Commission to investigate claims of discrimination.
The Legislature also impacts civil rights policy through its power of
congressional oversight.
This happens in congressional committees with jurisdiction over
civil rights and the executive agencies with authority over them.
They can conduct investigations, propose legislation, and oversee executive implementation of civil
rights laws.
In the House of Representatives the appropriate committee is the
House Judiciary Committee’s Subcommittee on the Constitution,
Civil Rights, and Civil Liberties
- website.
IN the Senate the appropriate committee is the Senate Judiciary Committee’s, Subcommittee on
the Constitution
- website.- an example of an oversight
hearing.
Next:
Executive Action
Three types of activities matter:
1 – The issuance of executive orders establishing the hiring practices of executive agencies and their
contractors.
2 – The creation of civil rights commissions which investigate the status of various groups in society and
propose legislative remedies
3 – The manner in which presidents chooses to oversee the actions of agencies like the EEOC.
What is an Executive Order?
An order issued by the President, the head of the executive branch
of the federal government. usually to help direct the operation of
executive officers.
Since the Federal Government has a large workforce, the executive
branch has been able to influence civil rights policy by adjusting and monitoring its hiring practices, as
well as those of private contractors it uses on occasion.
The origins of these orders can be traced back to President Franklin
D. Roosevelt and World War II when he signed Executive Order 8802, preventing discrimination based on race by government
contractors.
From the document:
All departments and agencies of the Government of the United States concerned with vocational and training programs for defense production shall take special measures appropriate to assure that such programs are administered without discrimination because of race, creed, color, or national origin;
All contracting agencies of the Government of the United States shall include in all defense contracts hereafter negotiated by them a provision obligating the contractor not to discriminate against any worker because of race, creed, color, or national origin;
There is established in the Office of Production Management a Committee on Fair Employment Practice, which shall consist of a chairman and four other members to be appointed by the President.
A variety of other executive orders were issued afterwards concerning
hiring practices. (Click here for a list, look at the bottom of the page).
The most significant of these was Executive Order 10925, which was
signed by John F. Kennedy. It did two things:
First, it created the “President's Committee on Equal Employment Opportunity, which later became the Equal Employment Opportunity Commission (EEOC) in the Civil Rights Act of
1964.”
Second, it required that “affirmative action” be taken to ensure that people are employed and
treated “without regard to their race, creed, color, or national origin.” This introduced the
concept of affirmative action.
Executive Orders ceased being used to prevent discrimination in
hiring in the late 1970s. Conservative Republican
Presidents beginning with Reagan were less likely to agree that there
was a need for such orders.
A series of Supreme Court cases have made enforcement of these orders
more difficult – we will touch on this issue below. As we will see, the
Supreme Court became increasingly skeptical about the justifications for
affirmative action programs and made it more difficult for people claiming discrimination to make their cases.
Internal Contradiction:
In order to address racial disparity, race is often taken into
consideration. This violates the Equal Protection Clause.
This is an example of checks and balances.
In March 2009, President Obama issued an executive order
authorizing the creation of the White House Council on Women
and Girls (Wikipedia).
Presidential Civil Rights Commissions
Presidents, it they choose, can raise awareness of any issue – including civil
rights – by hosting presidential commission which often produce documents calling for legislative action on whatever subject they
choose.
Presidents – as we cover in 2302 – are better able than other
branches of government to bring attention to certain issues they
find important. Some have highlighted civil rights. Perhaps the most important president to do so
in the modern age was Harry Truman.
While President, Truman established the President’s
Committee on Civil Rights, which issued an influential report titled: To Secure These Rights. It helped
create a blue print for further action. Future civil rights legislation
was spurred by this report.
The report claimed that Americans possessed four essential rights:
1 – The right to safety and security of the person.
2 – The right to citizenship and its privileges.
3 – The right to freedom of conscience and expression.
4 – The right to equality of opportunity
As a consequence of the report Truman desegregated the federal workforce (Executive Order 9980) and the armed services (Executive
Order 9981).
He gave a message to Congress requesting that the proposals in
the report be passed as law.
As we will see when we look at political parties in an upcoming section, this had consequences.
Southern states, which had been solidly Democratic began pulling away
from the party and after a period of time when they supported
independent candidates, began to switch to the Republican Party.
Since presidents serve as chief executive, they have the ability to oversee how agencies will carry our their legislative mandates.
We have already mentioned the existence of the U.S. Department
of Justice’s Civil Rights Division and the Equal Employment
Opportunity Commission.
Controversy: The strength of the each agency varies depending on
how much a given president wishes to enforce its mandate. A weak staff can easily water down
its effectiveness.
The EEOC for example can only be effective if it has the funds to
investigate complaints made to it and whether it is headed by
individuals who wish to aggressively investigate them.
Some related stories:
- NYT- Congressional hearings on the topic- Employment Lawsuits: EEOC Backlog
On The Rise
Judicial Action
The most flexible and ongoing influence on civil rights policy is in how the courts – most notably the
Supreme Court - interpret the phrase “equal protection of the laws”, and how they determine
whether the clause has been unreasonably violated.
This involves using the power of judicial review which we covered
in the section on separated powers and the checks and balances.
The courts can consider arguments that laws and executive
orders violate the Constitution.
As we will see, overtime the courts have developed a variety of rules
to determine whether a discriminatory act – a denial of
equal protection – was justified.
We tend not to complain that students who score poorly in biology and
chemistry are denied admittance to medical school (we kind of like that).
That type of discrimination is generally considered to be OK. The question is,
what other types of discrimination might also be OK and why?
Some historical background:
In early cases dating back to the 19th Century the Supreme Court
tended to vote against equal protection. Click here for a list of
major civil rights cases from Findlaw.com.
The most notorious early case was Scott v. Sanford in 1857. The court refused to rule on a case where a slave claimed to be free (having
spent time in a free state) because African-Americans – slave of free –
could not be citizens and did not have standing to bring cases to the
court.
[African-Americans] were “beings of an inferior order, and altogether
unfit to associate with the white race, either in social or political
relations, and so far inferior that they had no rights which the white
man was bound to respect.”
To grant Scott freedom would mean that he could claim all the other rights a citizen could claim (speech, assembly, the right to
bear arms), which the court refused to allow.
“The Chief Justice also added that the Missouri Compromise, which
prohibited slavery and involuntary servitude in certain parts of the
Louisiana Territory, violated the Fifth Amendment because it deprived
slaveowners of their property without the due process of law.” – Findlaw.
This was only the second time the Supreme Court declared a law
passed by Congress to be unconstitutional.
The first was Marbury v Madison which established precedence for
the power.
The case was seen as leading to the expansion of slavery across the
country – no free state could prevent it – and was argued to have led to an inevitable war to
reconcile the issue.
As mentioned above, the 14th Amendment was written and ratified after the Civil War,
which made its passage possible. It was intended to overturn the decision by stating constitutionally what the Dred
Scott decision had denied, that birth in the U.S. guaranteed citizenship.
This is another example of checks and balances by the way. Constitutional amendments can negate court
decisions.
The amendment – as well as the civil rights bills passed at that time
- was also a response to Black Codes created in various states after the Civil War. These were intended to retain a secondary
status for the recently freed slaves.
The amendment was intended to provide general protections for
groups unlikely to be supported in the states.
Background from Findlaw
Passage of the amendment was driven by Radical Republicans in
the Congress over the objections of President Andrew Johnson.
John BinghamCharles Sumner
Thaddeus Stevens
It was passed only because southern states had not been
readmitted to Congress at the time of the vote, and ratification was made a condition of re-entry.
Despite ratification, the amendment was not accepted by southern states. Jim Crow laws –
including legally mandated segregation - negate the
amendment’s impact. But the language of the amendment
provided a basis for constitutional challenge to these laws.
Here’s section one of the amendment again:
Fourteenth Amendment. Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Key Phrase: Equal Protection of the Laws
But what does this actually mean?And what all does this apply to?
As mentioned previously, might there be areas where the greater
interest of society might be met by allowing for discrimination in certain areas based on certain
criteria? And are there factors that make it permissible to treat people
unequally?
The Supreme Court in the 19th Century was not always sympathetic to civil
rights.
It would not begin supporting Civil Rights laws until the mid 20th Century when it began to accept an expansive
reading of the equal protection clause.
In 1883 the Supreme Court would rule against the constitutionality of
the 1875 Civil Rights Act in The Civil Rights Cases.
The bill outlawed segregation in “inns, public conveyances on land or water, theatres, and other places of public
amusement.” It was found to be unconstitutional because the court ruled that the Fourteenth Amendment did not apply to private entities. Private people
have the right to discriminate by deciding who they wish to allow into their
businesses.
The decision itself involved five consolidated cases coming from different lower courts in which
African-Americans had sued theaters, hotels and transit
companies that had refused them admittance or excluded them from "white only" facilities. - Wikipedia
The dissent argued that these were quasi-public establishments often
sanctioned by state licenses.
“The Court, in a decision by Justice Joseph P. Bradley, held that the language of the 14th Amendment, which prohibited denial of equal protection by a state, did not give Congress power to regulate these private acts. The Court also acknowledged that the 13th Amendment does apply to private actors, but only to
the extent that it prohibits people from owning slaves, not exhibiting discriminatory behavior. The Court said that "it would
be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit
to make as to guests he will entertain, or as to the people he will take into his coach or cab or car; or admit to his concert or
theatre, or deal with in other matters of intercourse or business.“- Wikipedia
Public and private facilities are viewed differently. But what if a private entity provides a public
service, or is a public accommodation? What is a fully
private entity?
It should be noted that this is almost the same as what was
passed in the Civil Rights Act of 1964, but by then it was accepted
that private business that provided public accommodations were
subject to federal legislation under the Commerce Clause.
It should be noted that some Supreme Court decisions did support equal protection:
Example: Strauder v. West Virginia (1880), soon after the end of Reconstruction. A black man
convicted of murder by an all-white jury challenged a West Virginia statute excluding
blacks from serving on juries. Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of
[the defendant's] race."
The point is that the Supreme Court did not always interpret the
Equal Protection Clause as its authors intended. Ongoing
disputes over its meaning led some to develop strategies to force the
Supreme Court to consider whether a particular law violates
the equal protection clause.
They used a strategy where they deliberately violated a law (or filed a lawsuit) with the intent that the court would be forced to test the
law against the constitution.
These cases are called “test cases.”
An early challenge to segregated facilities, the test case Plessy v.
Ferguson.
A group in New Orleans challenged racial segregation in public
transportation, claiming it violated the equal protection clause.
They lost.
Racial Segregation in public transportation upheld. It promotes public order and the facilities are
fundamentally equal.
This led to the establishment of the Separate but Equal Doctrine.
It was ruled that as long as a service or facility is fundamentally equal, it does not violate the 14th Amendment. But
then the question became, how do we demonstrate that a facility is or is not
equal?
Post Plessy
A legal strategy was developed by the NAACP to overturn the
doctrine. A variety of cases were taken to the court with the intent
of demonstrating that the Separate but Equal Doctrine was not
practical.
This involved a large number of cases challenging whether segregated facilities were in fact equal. One noteworthy case was local, Sweatt v Painter. In order to maintain segregated law schools but comply with the separate but equal
doctrine, the state of Texas established a law school for black students at TSU. But the Supreme Court decided that the TSU
Law School not equal to UT Law School so it did not meet the standard.
Other cases made the point, and many won. This set the stage for
Brown v Board of Education which challenged de jure (legally
mandated) racial segregation in local schools. The Supreme Court concluded that racial separation inevitably led to inequality. This
overturned the Plessy decision.
Neat Trivia: The lead lawyer in these cases was Thurgood
Marshall, who would later become a member of the Supreme Court.
The Brown decision introduced the concept of “strict scrutiny” and the view that different standards could be used depending on what factor
was being used to differentiate between people.
- Note: Brown did this loosely, it would be more fully defined in Loving v. Virginia.
There are three general standards used by the court, plus a handful of
minor adjustments of each of these.
Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest.
Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.
These categories reflect the idea that there may be reasons why
unequal protection might be merited depending on what
categories might be used and why.
1 – Are there certain distinctions between people that justify
unequal treatment?
2 – Are there certain activities that warrant unequal treatment? That require additional qualifications?
Here’s a repeat of an earlier slide to make the point:
We tend not to complain that students who score poorly in biology and
chemistry are denied admittance to medical school (we kind of like that).
That type of discrimination is generally considered to be OK. The question is,
what other types of discrimination might also be OK and why?
We all discriminate, the question is whether there is a justifiable
reason to discriminate, one that does not violate the principle of
equal protection of the laws.
In the example of the medical school, the need to ensure we have qualified doctors and the
reasonable expectation that poor science grades likely indicate that
one will likely not be qualified, justifies discrimination in this case.
Discrimination based on intelligence and merit seems
warranted.
A key dispute:
When is unequal protection warranted and when is it not? Not all discriminatory acts violate the
14th Amendment.
Is there a strong reason why a distinction can be made, by law, between people based on some
criteria?
What justifies unequal treatment?
Would it be unconstitutional to require older drivers (but not
younger) to retake drivers tests in order to ensure that they still have
the physical capacity to drive safely?
Areas of discrimination:
transportationaccess to public accommodations
educationhousing
employment / paymarriage
What can justify unequal treatment in each area?
Note that Plessy concerned discrimination in access to public transportation while Brown was
concerned discrimination in access to quality education.
This difference mattered.
When the court rules on civil rights issues it tends to take into
consideration the context of the discrimination.
Why is a particular group being discriminated against?
Not all criteria are considered in the same way.
What does it take to justify making distinctions along each of those
criteria? Are some easier to justify than others? For example, Is it
easier to discriminate based on age than race?
Discrimination by TypeLaws, regulations and policy guidance, and also fact sheets,
Q&As, best practices, and other information organized by basis of discrimination.
AgeDisability
Equal Pay/CompensationGenetic Information
National OriginPregnancyRace/Color
ReligionRetaliation
SexSexual Harassment
Here is a link to the EEOC’s enforcement page – law and
guidance. Notice the list “discrimination by type.”
So there are examples of people being denied equal protection of the laws fro various reasons, the question is whether the denial is
justifiable. What standard must be used to justify it?
As mentioned above, the Supreme Court has developed three categories
to determine how to address complaints of discrimination.
Strict ScrutinyIntermediate Review
Rational Basis Review
Again, to repeat a point made above, here are brief definitions of
each.
Strict Scrutiny
To survive strict scrutiny, a law must first, be justified by a compelling governmental interest. Second, the law or policy must be narrowly tailored to achieve that goal or interest. Finally, the law or policy must be the least restrictive means for achieving
that interest.
Applied to suspect classifications, of which there are two: race and citizenship.
Intermediate Scrutiny
Intermediate scrutiny is met if a regulation or law furthers
important governmental interests that are furthered by substantially
related means.
This applies primarily to laws making distinctions based on gender.
Rational Basis
The governmental action, the law or regulation at issue, must be a reasonable means to an end that may be legitimately pursued by
government.
This applies to distinctions based on age for example.
All of these have been developed in various court cases in recent
history.
The origins for this distinction comes from the Supreme Court
case United States v. Carolene Products Co.
Footnote Four outlines factors allowing for a higher level of
judicial scrutiny for legislation that met certain conditions.
1 – The rule, on its face, violates a provision of the Constitution
(facial challenge).
2 – The rule attempts to distort or rig the political process.
3 – The rule discriminates against minorities, particularly those who lack sufficient numbers or power
to seek redress through the political process.
It creates the concept of a suspect classification.
A status that makes a law that categorizes on that basis suspect,
and therefore deserving of greater judicial scrutiny.
This distinction matters. The higher the level of scrutiny, the more
difficult it is to legally make distinctions along a given criteria.
Here are specific demonstrating the application of strict and
intermediate and the rational basis test.
Strict Scrutiny
This is applied to suspect categories. Only two categories
have been designated recognized as suspect classifications.
Race and Citizenship
Click here for blog posts about stories related to strict scrutiny.
A key case involving race: Loving v. Virginia
The case was a challenge to Virginia’s Racial Integrity Act,
which outlawed interracial marriage.
It was found to violate the Equal Protection Clause under strict scrutiny. The state refused to
demonstrate a compelling governmental purpose for the law.
Separation creates a feeling of inferiority
In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment. – Oyez Project
Brewing controversy: will race always be subject to strict
scrutiny?
Recent backlashes against affirmative action – specifically the
use of race to create integrated schools – have challenged the idea
that there is a compelling governmental interest to do so.
In a recent case, the Supreme Court agreed with this idea:
Parents Involved in Community Schools v. Seattle School District
No. 1
The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became
oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. If the racial demographics of any
school's student body deviated by more than a predetermined number of percentage points from those of Seattle's total
student population (approximately 40% white and 60% non-white), the racial tiebreaker went into effect. At a particular
school either whites or non-whites could be favored for admission depending on which race would bring the racial
balance closer to the goal.
Is racial diversity a compelling interest that can justify the use of
race in selecting students for admission to public high schools?
No. By a 5-4 vote, the Court applied a "strict scrutiny" framework and found the District's racial tiebreaker plan unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment . . . The District's goal of preventing racial imbalance did not meet the Court's standards for a
constitutionally legitimate use of race: "Racial balancing is not transformed from 'patently unconstitutional' to a compelling
state interest simply by relabeling it 'racial diversity.'" The plans also lacked the narrow tailoring that is necessary for race-
conscious programs. The Court held that the District's tiebreaker plan was actually targeted toward demographic goals and not
toward any demonstrable educational benefit from racial diversity. The District also failed to show that its objectives could
not have been met with non-race-conscious means.
Intermediate Scrutiny
Cases involving gender are decided under intermediate rules, although women’s rights advocates regularly attempt to increase the level up to
strict scrutiny. Many cases are brought before the courts with this intent none have been successful
so far.
As with the Brown decision, major cases about gender discrimination involved education, for example:
United States v. Virginia
The Virginia Military Institute’s male only admissions policy was determined to violate the equal
protection clause.
But in other cases, distinctions based on gender have been
maintained.
Many of these deal with paternity and the unique relationships
fathers and mothers are assumed to have with their children.
A major recent case in this regard was Nguyen v. INS.
Fathers have to prove paternity when brining a foreign born child to the US. Mothers simply have to show a birth
certificate. This was upheld, meaning that gender based distinctions are
constitutional when it comes to birthright based citizenship.
Question posed: Is 8 USC section 1409(a)'s statutory distinction, which imposes different requirements for a
child's acquisition of citizenship depending upon whether the citizen parent is the mother or the father,
consistent with the equal protection guarantee embedded in the Due
Process Clause of the Fifth Amendment?
Answer: Yes. In a 5-4 opinion delivered by Justice Anthony M. Kennedy, the Court held that
"[section 1409(a)] is consistent with the constitutional guarantee of equal protection." "For a gender-based classification to withstand
equal protection scrutiny, it must be established 'at least that the [challenged] classification
serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of
those objectives,'
The first such interest is the importance of assuring that a biological parent-child
relationship exists. The mother’s relation is verifiable from the birth itself and is
documented by the birth certificate or hospital records and the witnesses to the
birth. However, a father need not be present at the birth, and his presence is
not incontrovertible proof of fatherhood.
Rational Basis Test
This is the lowest level of review, and it is granted to distinctions like
age. But first we will look at discrimination based on disabilities
to see a controversy concerning what level of review ought to be
granted to certain disputes.
City of Cleburne v. Cleburne Living Center, Inc.
In 1980, Cleburne Living Center, Inc. submitted a permit application to operate a home for the mentally
retarded. The city council of Cleburne voted to deny the special
use permit, acting pursuant to a municipal zoning ordinance.
The question posed was whether the denial of the permit violate the Equal Protection rights of Cleburne Living Center, Inc. and its potential
residents?
In a unanimous judgment, the Court held that the denial of the special use permit to Cleburne
Living Centers, Inc. was premised on an irrational prejudice against the mentally
retarded, and hence unconstitutional under the Equal Protection Clause of the Fourteenth
Amendment. While the Court declined to grant the mentally retarded the status of a "quasi-suspect class," it nevertheless found that the "rational relation" test for legislative action
provided sufficient protection against invidious discrimination.
Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc. held mentally
retarded persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions,
many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and
instead to balance the community's needs against the needs of the disabled.
So the court refused to grant those with mental disabilities the strict scrutiny, it judged that rational basis review was insufficient.
It is not rational to discriminate against the mentally handicapped.
Age discrimination cases are also considered under the Rational
Basis Test.
Example:
Vance v. Bradley
Section 632 of the Foreign Service Act of 1946 required that members of the
Foreign Service retirement system retire at 60. No mandatory retirement age was
specified for employees covered by the Civil Service retirement system. Holbrook Bradley, a member of the Foreign Service retirement system, challenged the statute
in United States District Court for the District of Columbia and prevailed. The government appealed to the Supreme
Court.
Question: Did Section 632 of the Foreign Service Act of 1946 violate the Equal Protection component of the Due Process clause of the Fifth
Amendment?
No. In an 8-1 opinion written by Justice Byron R. White, the Court emphasized the distinction between the Civil Service and Foreign Service, and the "special attention"
paid to the Foreign Service by Congress. The Court interpreted the purpose of Section 632 to be the
encouragement of the "highest performance in the ranks of the Foreign Service by assuring that
opportunities for promotion would be available," a legitimate interest that justified the distinction. The
Court also recognized the possibility that service in the Foreign Service would be more rigorous than service in the Civil Service. Given that possibility, Congress had a
"reasonable basis" for enacting the statute,
The status of some classifications are still subject to dispute, most
notably: Sexual Orientation
Question: If and when a case involving the constitutionality of
anti gay marriage laws reaches the Supreme Court, what standard will
it use to determine if there is a legitimate reason to uphold them?
This is a huge issue. The answer to this question will likely determine whether those laws will be found
constitutional or not.
In other words, the decision may hinge simply on what level of review the court grants the
distinction.
In previous cases involving sexual orientation – mostly concerning
the constitutionality of anti-sodomy laws – the court has avoided ruling on the equal
protection clause, which means that the status of this distinction is
still unclear. A key example is in the case of Lawrence v. Texas.
A final point regarding the judiciary and civil rights policies.
There are two factors which complicate the types of decisions
the court is likely to make.
The first concerns how one proves unlawful discrimination occurred? How do we know if a law is in fact
discriminatory?
There are two ways:
- Disparate Treatment- Disparate Impact
Disparate Treatment or (Discriminatory Intent) refers to
actions taken with an intent to treat a group adversely affected differently. It signifies an intention to treat people differently based on membership in a particular group ahead of time. This is
clearly judged to violate the equal protection clause.
Cases involving disparate impact are more problematic because there is no intent ahead of time to discriminate, but the
result (for example, the ratio of men to women hired for a particular job) is unbalanced and demonstrates that
discrimination has occurred, even if it was unintentional. These are policies that do not intend to discriminate but results in
outcomes that have “disparate racial consequences.”
The courts have ruled that policies with a disparate impact can be treated the same as those with
discriminatory intent.
The Supreme Court ruled in Griggs v. Duke Power Co. (1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable
justification for such a policy on grounds of "business necessity,"
then the employer's policy violates Title VII
Problem: How to determine whether disparate impact reveals a
clever way to disguise discriminatory intent?
A second complicating factor concerns whether discrimination has occurred because of a law, or because of the collective decisions
of groups of people.
Discrimination can be de jure (in law) or de facto (in fact). Only segregation based on de jure
discrimination can be dealt with through court decisions.
Segregation based on residential decisions are not remedial through
the courts.
This has complicates the issues surrounding segregated schools.
While legal segregation has been overturned, schools are still racially segregated because of residential
patterns.
Schools placed in areas that are dominantly Anglo, or African
American or Latino tend to be dominated by that group.
While they are in fact segregated, this type of segregation is not
considered to be illegal.
Consequence: Schools are as segregated now as they were
when Brown was decided.
Study Guide
- Be able to define civil rights and explain how they are distinct from civil liberties.- Be very familiar with the 14th Amendment and especially the content and issues associated with the equal protection clause.- How are civil rights policies influenced by each branch of government?- What different classifications has the Supreme Court developed in order to deal with questions regarding equal protection before the law.- What is the difference between disparate treatment and disparate impact? Why does this matter?
- Be able to describe what executive agencies are charged with doing regarding civil rights. Which types exist?- Be familiar with the historical role equal treatment before the law has played. - Be able to answer questions about major civil rights laws over history and what they were and were not able to accomplish. Be fully familiar with the Civil Rights Act of 1964.- Understand the impact various court cases have had on the evolving definition of “equal protection.” What have been the consequences of these decisions?
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