Distinguish between equality of opportunity and equality of outcome.
Explain why the Civil War amendments proved ineffective in ensuring racial equality.
Outline the NAACP’s strategy for ending school segregation.
Distinguish between de jure and de facto segregation.
Describe the tactics of the civil rights movement and the passage of the 1964 Civil Rights Act.
Show how protectionist legislation discriminated against women.
List the major legislative and judicial milestones in the struggle for equal rights for women.
Explain why women’s rights advocates favored the Equal Rights Amendment (ERA) as a way to extend equal rights to women.
Discuss how affirmative action programs have led to charges of reverse discrimination.
0Equality and Civil Rights and the Challenge of Democracy
With the separate-but-equal decision of Plessy v. Ferguson in 1876, the national government tried to sweep the conflict between equality and freedom under the rug. By announcing in Brown v. Board of Education in 1954 that “separate is inherently unequal,” the national government faced the tension between freedom and equality and the fact that more of one usually means less of the other. The meaning of equality also creates difficulties. Many who agree on the need for equality of opportunity will not support measures they think are geared to produce equality of outcome.
The struggle for civil rights also illustrates the conflict between pluralism and majoritarianism. In accepting the demands of African American citizens, the national government acts in a way that is more pluralist than majoritarian. As Chapter 1 pointed out, majoritarian democracy does what the majority wants and thus may allow discrimination against minorities, even though the substantive outcome (inequality) seems undemocratic.
Thus, questions about what kind of public policies should be adopted to achieve equality are often highly controversial. If the nation wants to promote racial and gender equality among doctors or sheet-metal workers, for example, it may design policies to help previously disadvantaged and underrepresented groups gain jobs in these areas. This practice, however, may lead to charges of reverse discrimination.
African Americans seeking civil rights not only had to contend with being members of a minority group, but they also were largely excluded from the electoral process. Under the leadership of the National Association for the Advancement of Colored People (NAACP), they adopted the strategies of lobbying legislators and pressing claims before the judiciary, the branch of government least susceptible to majoritarian influences. Later, as the civil rights movement grew (and as majority opinion became more hospitable to their cause), they emphasized the importance of legislation as a method of achieving equality and also used the techniques of civil disobedience to challenge laws they believed to be unjust. This quest for racial equality remains incomplete. A part of a mandatory response to a new UN treaty, the U.S. State Department reported in 2000 that racial discrimination still persists in the United States. Under the same treaty, advocates of racial equality may appeal to an international authority to end racial or other forms of discrimination.
The women’s movement offers an interesting contrast to the case of African Americans. Women are not actually a minority group; they are a majority of the population. Yet, in the struggle to pass the Equal Rights Amendment (ERA), pluralism prevailed! Although a majority of Americans favored the amendment, it failed. The amending process, by requiring extraordinary majorities, gives enormous power to minorities bent on thwarting a particular cause.
Throughout much of American history, civil rights—the powers and privileges supposedly guaranteed to individuals and protected from arbitrary removal at the hand of government—have often been denied to certain citizens on the basis of their race or sex. The pursuit of civil rights in America has been a story of the search for social and economic equality. But people differ on what equality means. Most Americans support equal opportunity, but many are less committed to equality of outcome.
0The Civil War Amendments
After the Civil War, the Thirteenth, Fourteen, and Fifteenth amendments were passed to ensure freedom and equality for African Americans. In addition, as a response to the black codes, Congress passed civil rights acts in 1866 and 1875 to guarantee civil rights and access to public accommodations. While the legislative branch was attempting to strengthen African American civil rights, the judicial branch seemed intent on weakening them through a number of decisions that gave states room to maneuver around civil rights laws. States responded with a variety of measures limiting the rights of African Americans, including poll taxes, grandfather clauses that prevented them from voting, and Jim Crow laws that restricted their use of public facilities. These restrictions were upheld in Plessy v. Ferguson, which justified them under the separate-but-equal doctrine. By the end of the nineteenth century, segregation was firmly and legally entrenched in the South.
0The Dismantling of School Segregation
The NAACP led the campaign for African American civil rights. Its activists used the mechanism of the courts to press for equal facilities for African Americans and then to challenge the constitutionality of the separate-but-equal doctrine itself. In 1954, in Brown v. Board of Education, a class-action suit, the Supreme Court reversed its earlier decision in the Plessy case. It ruled that “separate educational facilities are inherently unequal” and that segregated schools must be integrated “with all deliberate speed” under the direction of the federal courts. The Court thus ordered an end to school segregation that had been imposed by law (de jure segregation), but in many parts of the country segregation persisted, because African Americans and whites lived in different areas and sent their children to local schools (de facto segregation). This problem led the courts to require the unpopular remedy of bussing African American and white children as a means of integrating schools. By 1974, however, the Supreme Court began to limit bussing as ordered by the judicial branch.
0The Civil Rights Movement
The NAACP’s use of the legal system ended school segregation and achieved some other, more limited, goals, but additional pressure for desegregation in all aspects of American life grew out of the civil rights movement. The first salvo in the civil rights movement came when African Americans in Montgomery, Alabama, boycotted the city’s bus system to protest Rosa Parks’s arrest and the law that prohibited African Americans from sitting in the front of buses. Under the leadership of Martin Luther King, Jr., the movement grew, and civil rights activities, including nonviolent civil disobedience, spread.
In the early 1960s, President Kennedy was gradually won over to supporting the civil rights movement. In 1963, he asked Congress to outlaw segregation in public accommodations. Following Kennedy’s death, President Lyndon Johnson made passage of the Civil Rights Act of 1964 his top legislative priority, and the bill passed despite a long debate and filibuster in the Senate. More civil rights legislation followed in 1965 and 1968. This time, the legality of civil rights acts was upheld by the Supreme Court.
Having civil rights laws on the books does not mean discrimination will end once and for all, however. For one thing, the courts must interpret the laws and apply them to individual cases. In the Grove City College case, the Supreme Court offered a very narrow interpretation of a civil rights law, in effect taking the teeth out of the legislation. Congress reasserted its original, more sweeping intent in the Civil Rights Restoration Act of 1988.
Meanwhile, the Court, with a new conservative majority in the ascendancy, continued to issue decisions limiting the scope of previous civil rights rulings. Civil rights groups looked to Congress to restore rights previously recognized, but presidential vetoes scuttled such measures until 1991.
Despite Dr. King’s commitment to nonviolence, the struggle for civil rights was not always a peaceful one. White violence against civil rights workers included murders and bombings. By the late 1960s, racial violence had increased as African Americans demanded their rights, but many whites remained unwilling to recognize them. The African American nationalist movements, often militant, promoted “black power” and helped instill racial pride in African Americans.
0Civil Rights for Other Minorities
Civil rights legislation won through the struggles of African Americans also protects other minorities. Native Americans, Latinos, and disabled Americans were also often victims of discrimination. Native Americans were not even considered citizens until 1924. The Indian reservations established by the U.S. government were poverty-stricken. In the late 1960s and early 1970s, the frustrations of Native Americans erupted into militancy. By the mid-1970s and early 1980s, they began to win important legal victories, including compensation for land taken by the U.S. government. Recently, new entrepreneurial tribal leadership of Indian tribes has capitalized on the special status of their tribes and enjoyed economic success by sponsoring casino gambling ventures.
Latinos who migrated to the United States seeking economic opportunities found poverty and discrimination instead. This problem was compounded by the language barrier and the inattention of public officials to their needs. Latinos, too, have used the courts to gain greater representation on governing bodies. Recently, they have begun to be successful in obtaining elected and appointed political offices.
Building on the model of existing civil rights laws, disabled Americans managed to gain recognition as an oppressed minority and, through the 1990 Americans with Disabilities Act, receive the protection of a right of access to employment and facilities.
Though gays and lesbians have made significant progress, they have not yet succeeded in passing a complete civil rights law protecting their rights. The 2000 Supreme Court decision in Boy Scouts of America v. Dale illustrated the continued struggles of gays and lesbians for civil rights. The court ruled that homosexuals could be excluded from leadership positions in the organization.
The demand for equality has recently been extended to the institution of marriage. In 2003, the State of Massachusetts recognized same-sex marriages.
0Gender and Equal Rights: The Women’s Movement
Civil rights have long been denied to women, partly as a result of policies designed to protect women from ill-treatment. Only after a long struggle did women win the right to vote under the Nineteenth Amendment that was passed in 1920. Yet gaining the right to vote did not bring the equality that women hoped for. Discrimination continued in the workplace and elsewhere. It took legislation such as the 1963 Equal Pay Act, the 1964 Civil Rights Act, and Title IX of the Education Amendments Act of 1972 to prohibit these other forms of discrimination against women. In the early 1970s, the Court began to strike down gender-based discriminations that could not be justified as serving an important government purpose. In 1996, the Court applied a new standard of “skeptical scrutiny” to acts denying rights based on sex. This new standard makes distinctions based on sex almost as suspect as those based on race.
For many years, the Court proved reluctant to use the Fourteenth Amendment as the basis for guaranteeing women’s rights. As a result, proponents of equal rights for women sought an amendment to ensure that women’s rights stood on a clear constitutional footing. Although the ERA was ratified by 35 states, it fell three states short of the minimum number required for adoption and did not become the law of the land, although many states eventually adopted their own ERAs. Some scholars argue that, in practice, the Supreme Court has since implemented the equivalent of the ERA through its decisions.
0Affirmative Action: Equal Opportunity or Equal Outcome?
The Johnson administration started a number of programs to overcome the effects of past discrimination by extending opportunities to groups previously denied rights. These affirmative action programs involved positive or active steps taken to assist members of groups formerly denied equality of opportunity.
These programs soon led to charges of reverse discrimination. The Court, however, has found some role for affirmative action programs. In the Bakke decision, a split court held that race could be one of several constitutionally permissible admissions criteria. In other cases, the Court has allowed the use of quotas to correct past discriminatory practices. In the Adarand case, however, the Court decided that programs that award benefits based on race must themselves be held up to a strict scrutiny standard—a test few could pass. Based on the Adarand case, a federal court in 1996 rejected the use of race or ethnicity as a condition for admission to the University of Texas law school. The Supreme Court sent a mixed message in its review of University of Michigan affirmative action policies in 2003. The court ruled that an undergraduate affirmative action formula was unconstitutional, but that a law school admissions standard that included a racial preference was acceptable.
Johnson v. Transportation Agency, Santa Clara County
Adarand Constructors v. Peña
0Research and Resources
Chapter 14 in this guide explained how to find a Supreme Court opinion. Once you have located an opinion, however, you might still have some difficulty figuring out how to read it. Cases are reported beginning with a heading that gives the parties to the case, the docket number, the dates on which the argument was heard, and the date on which the decision was handed down. Next, in rather small print, comes the syllabus. This includes a summary of the facts of the case and the legal questions it raised, as well as a summary of what the Court decided, or held, in the case. Next comes a paragraph, also part of the syllabus, explaining how the justices divided on the opinion. This paragraph identifies (1) the author of the Court’s opinion, (2) the justices who joined in that opinion, (3) those who concurred with it, and (4) those who dissented.
Justices concur when they vote with the majority on the actual decision but do not fully agree with the reasoning behind the majority’s decision. Justices in this position often write separate opinions detailing their differences with the opinion of the Court and outlining the grounds on which they based their vote. Justices who are in the minority may choose to write dissenting opinions explaining the reasons for their disagreement with the majority. Writers of concurring and dissenting opinions all try to set out alternative views of the case, hoping that their views might influence and persuade Court members in future decisions.
After the syllabus comes the full text of the opinion of the Court. The opinion of the Court ends with the judgment—for example, “affirmed” or “denied.” This is followed by the full text of any concurring opinions and then by any dissenting opinions.
More Civil Rights Web Sites
Learn more about the NAACP, its role in the civil rights movement, and its current agenda by visiting its Web site at <http://www.naacp.org>. Take a virtual tour of the National Civil Rights Museum at. <http://www.civilrightsmuseum.org/gallery/movement.asp>. The site features material on topics including Brown v. Board of Education of Topeka, the Montgomery Bus Boycott, and the March on Washington. Numerous people contributed to the civil rights movement, and this website examines current trends and how leaders like Martin Luther King and Malcolm X influence people today. <http://www.voicesofcivilrights.org/>
The Human Rights Campaign lobbies for gay and lesbian rights can be visited at <http://www.hrc.org>. The Feminist Majority Foundation’s Web site has a wealth of information on women’s rights in the United States and worldwide. Their URL is <http://www.feminist.org>. For rights of the disabled, see the Disability Rights Education and Defense Fund <http://www.dredf.org>
0Using Your Knowledge0
10. Select three of the cases discussed in this chapter of the text. Look them up in U.S. Reports, or find them online. (See Chapter 14 of this guide.) For each case, note the vote tally, who authored the opinion of the Court, which justices joined in that opinion, which ones wrote concurring opinions, and which ones wrote dissents. Did any justices join in the concurring or dissenting opinions?
20. Visit the websites of at least two civil rights groups. You may want to start with some of those listed above. Compare the key issues facing each group and the strategies they are using to deal with those issues.
Students interested in civil rights work have internship opportunities available. The NOW Legal Defense and Educational Fund has internships in New York and Washington for undergraduates interested in policy projects on women’s rights. Contact Ms. Jackie Butler, Administrative Assistant, NOW Legal Defense and Educational Fund, 99 Hudson Street, New York, NY 10013. Check out NOW’s home page at <http://www.now.org>.
0Sample Exam Questions
10. Which part of the Constitution outlaws the institution of slavery?0
a0. First Amendment
b0. Thirteenth Amendment
c0. Fourteenth Amendment
d0. Fifteenth Amendment
e0. Nineteenth Amendment
20. Why are most people in America against equality of outcome?0
a0. The concept disagrees with Christianity.
b0. Many believe it would cost too much.
c0. Many believe that equality of outcome would sacrifice equal opportunity.
d0. Many believe we already have it, especially with capitalism.
e0. It goes against majoritarian beliefs of most Americans.
30. Which Court decision upheld separate-but-equal facilities for African Americans and whites?0
a0. Plessy v. Ferguson
b0. Brown v. Board of Education
c0. Sweatt v. Painter
d0. the McLaurin case
e0. the Dred Scott case
40. Which of the following was not a result of the civil rights movement?0
a0. increasing numbers of African Americans in public office
b0. more African American voters
c0. an immediate end to de facto and de jure segregation of schools
d0. an increase in African American nationalism
e0. legislation to reduce discrimination in employment
50. Which of the following is one of the more common methods of discrimination forcing poor blacks to pay $1 or $2 in order to vote?0
60. What do we call school segregation that results from the racial patterns of neighborhood housing?0
a0. de facto segregation
b0. de jure segregation
c0. government-imposed segregation
d0. separate-but-equal facilities
e0. reverse discrimination
70. In what state was the first test of the Brown v. Board of Education0 decision?
80. United States v. Virginia introduced what standard to cases of gender discrimination?0
a0. strict scrutiny
b0. skeptical scrutiny
c0. stare decisis
d0. gender gap
90. How has the Civil Rights Act of 1866 (Section 1981)0 been used in recent court decisions?
a0. to expand the scope of government protection of minorities
b0. to restrict the scope of government protection of minorities
c0. to reverse many gains of the civil rights movements
d0. to expand civil rights of the disabled
e0. to overturn affirmative action programs
100. What did the Voting Rights Act of 1965 accomplish?0
a0. Nothing; it was declared unconstitutional.
b0. It had little effect on African American registration, because of de facto segregation.
c0. It didn’t do much of anything in all regions of the country.
d0. It improved voter registration among minority groups.
e0. Over time, it resulted in a lower turnout of African Americans voters.
110. Which of the following were not a result President Johnson’s efforts to end discrimination?0
a0. Voting Rights Act of 1965
b0. Civil Rights Act of 1964
c0. Education Act of 1967
d0. Fair Housing Act of 1968
e0. Economic Opportunity Act of 1964
120. Which law prohibited sex discrimination in federally aided education programs?
a0. the Elementary and Secondary Education Act of 1965
b0. the Civil Rights Act of 1964
c0. the Education Amendments Act of 1972
d0. the Equal Rights Amendment
e0. the Civil Rights Act of 1866
130. Which of the following is true about the Court’s ruling in Grove City College v. Bell0?
a0. It broadly interpreted Title IX of the Education Amendments Act of 1972.
b0. It was the target of the Civil Rights Restoration Act of 1988.
c0. It was accepted by Congress as a faithful interpretation of legislative intent.
d0. It applied the law to entire institutions whenever any part of them discriminates against women or minorities.
e0. It was a major victory for proponents of gender equality.
140. Which of the following was not a success of the Black nationalist movement?0
a0. affirmative Action program
b0. instilled pride in black history and culture
c0. created black studies programs in U.S. colleges and universities
d0. encouraged blacks to vote in record numbers
e0. brought more blacks into elected office
150. Which case overturned the separate-but-equal doctrine in the U.S. Supreme Court?0
a0. Regents of the University of California v. Bakke.
b0. Boy Scouts of America v. Dale.
c0. Milliken v. Bradley.
d0. United States v. Virginia.
e0. Brown v. Board of Education.
160. Numerous frustrated Native Americans acted out against the American Government and took matters into their own hands after decades of inaction. Which of the following was the result of Native American frustration and anger towards the American government?0
a0. the bus boycott in Birmingham, Alabama
b0. 164 riots after the death of Martin Luther King, Jr.
c0. record high voter registration drives
d0. seizure of Alcatraz Island
e0. None of these
170. Johnson v. Santa Clara County reinforced the idea that what factor could be used in promotion decisions?0
d0. sexual orientation
e0. religious practice
180. Until 1965 the laws governing U.S. immigration policy were rooted in what?0
a0. outdated Civil War quota system
b0. separate but equal doctrine
c0. invidious discrimination
d0. Jim Crow laws
e0. All of these
190. The Supreme Court appealed to what element of the Constitution to support the Civil Rights Act of 1964?0