Chapter 5. Civil Rights & Public Policy As Americans, we all believe in the phrase “all men are created equal.”
However, how does one implement “equality” without causing controversy?
Because we have had to deal with issues of slavery, segregation, inequalities in pay … there has been a strong movement for civil rights.
Civil Rights = policies designed to protect people from arbitrary or discriminatory treatment by government officials or other individuals.
Today, there are three major types of discrimination:
Racial Discrimination: though we have been dealing with the issue of racial discrimination against minorities for over two centuries, attempts to eradicate racial discrimination are still controversial. For instance, issues of Affirmative Action and Equal Employment Opportunity continue to be debated.
Gender Discrimination: since the 1970s, the role of women in society has seen significant changes. However, equal rights for women have not been constitutionally granted. Nonetheless, Congress has significantly impacted rights for women – Equal Pay Act 1963, Title VII of the 1964 Civil Rights Act, 1991 Civil Rights Act … Discrimination based on Age, Disability, and even Sexual Orientation: Title VII of the 1964 Civil Rights Act originally created protected classes which protected certain individuals from discrimination based on race, sex, color, religion, and national origin; however, since its inception, protected classes have significantly increased.
AGE: 1967 Age Discrimination in Employment Act (individuals between the ages of 40-65 cannot be discriminated against); 1986 Amendment removes age cap; 1990 Older Workers Benefit Protection Act (prohibits age discrimination in employment benefits); 1996 Amendments – can discriminate against age for firefighters and law enforcement officers.
DISABILITY: 1990 American w/ Disability Act
SEXUAL ORIENTATION: Executive Order 13160 (Clinton 2000) protects homosexuals from discrimination in the workplace.
Racial Equality: Two Centuries of Struggle The struggle for equality has been a persistent theme in American history.
Although the word equality did not appear in the original Constitution or in the Bill of Rights, the Civil War Amendments brought the issue of equality to the political forefront.
Although the 13th Amendment abolished slavery, and the 15th Amendment extended the right to vote to African Americans, the 14th Amendment is the only place where the idea of equality actually appears in the Constitution.
14th Amendment = no state shall make or enforce any law which shall abridge the privileges and immunities of US citizens; 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 law.
This Amendment also nationalized the Bill of Rights for the States
But what does equal protection of the law really mean?
Race, the Constitution, and Public Policy Although it may no longer be the case, throughout American history, African Americans have been the most visible minority group in the US.
African Americans efforts have fueled the emergence of equality in America.
Three eras illustrate African American struggles for equality:
The Era of Slavery (beginnings of colonization – end of Civil War in 1865) – the first African immigrants to America were kidnapped; most African Americans lived in slavery for almost 250 years. They could be bought and sold; they could not vote or own property; and they were viewed as unpaid labor.
Scott v Sandford (1857) – the Supreme Court ruled that a slave who escaped to a free state was not entitled to rights as a citizen, and Congress could not ban slavery.
However, the Union victory during the Civil War, and the ratification of the 13th Amendment ended slavery.
The Era of Reconstruction and Resegregation (1866-1953) –Congress imposed strict conditions on the former Confederate states before they would be readmitted to the Union, these conditions were designed to ensure equality for African Americans.
However, these steps in the right direction were thwarted by Rutherford Hayes. To ensure a victory during his presidential campaign in 1876, Hayes promised to pull troops out of the South and let the old slave states resume business as usual.
Winning his bid for the Presidency, Southerners immediately imposed Jim Crowe Laws / Segregation Laws.
These laws required separate public facilities, separate school systems, and even separate restrooms. Most Whites lost interest in helping former slaves; and even Northern states practiced Jim Crowe laws. During this era, racial segregation affected every part of your life, from birth to death. The KKK surfaced to terrorize and punish African Americans who violated the norms of segregation.
Even the Supreme Court fueled the separate but equal doctrine by justifying segregation in Plessy v. Ferguson (1896). In subsequent decisions, the Courts focused on the separate, but not the equal principle.
The Era of Civil Rights (1954 to present) – in Brown v Board of Education (1954) the Supreme Court reversed its ruling in Plessy v. Ferguson. They held that school segregation was inherently unconstitutional because it violated the equal protection clause of the 14th Amendment. This case marked the end of legal segregation in the US.
Although segregation was ruled unconstitutional and banned, desegregation was slow. Many counties even threatened to close public schools rather than integrate them, while private school enrollment by Whites increased. 15 years after Brown’s ruling that school segregation was unconstitutional, the Supreme Court ruled that delaying desegregation was no longer tolerable.
Federalism proved to be the key for Congress to force desegregation. Under the 1964 Civil Rights Act, Congress prohibited federal aid to schools that remained segregated. Consequently, after nearly a generation of modest progress, Southern schools were suddenly integrated.
(See Overhead Figure 5.1 Percentage of Black Students Attending School With Any Whites in the Southern States)
As a result of national awareness, the courts, civil rights movements, and the increasing importance of African American voters, the 1950s and 1960s saw a marked increase in public policies seeking racial equality.
A landmark legislation in the battle for equality was the 1964 Civil Rights Act.
The 1964 Civil Rights Act:
Made racial discrimination illegal in hotels, motels, restaurants, and other public accommodations (Title II)
Forbade discrimination in employment on the basis of race, color, national origin, religion, or gender (Title VII) – however, gender was added to help kill the bill.
Created the Equal Employment Opportunity Commission to monitor and enforce protections against job discrimination (Title VII) – however, it did not give them any enforcement mechanisms or litigation power until 1972; and, it had limited resources – a staff of 190 with a budget of $12,857 in one central office.
Provided for withholding federal grants from state and local governments and other institutions that practiced racial discrimination (Title IV)
Strengthened voting rights legislations (Title I)
Authorized the US Justice Department to initiate lawsuits to desegregate public schools and facilities (Title III)
The Policymaking System & the 1964 Civil Rights Act How did the 1964 Civil Rights Act emerge in the policymaking system?
(See Figure 1.3 The Policy Making System)
People: Minorities have been struggling to attain social, political, and economic equality for decades. By the 1960s, social unrest in America had reached its high point. Not only were African Americans and Latinos demanding equality, but women were also mobilizing and mounting protests against discrimination. To add to this turmoil, many Americans were demonstrating against the US involvement in the Vietnam War.
Linkage Institutions: During this period of social unrest, efforts made by civil rights leaders such as Martin Luther King Jr and Cesar Chavez resulted in the mobilization of African Americans and Latinos in bringing an end to discrimination. Civil rights groups – such as the NAACP, MALDEF, and even the National Urban League – further strengthened the efforts of Chavez and King.
Policy Agenda: The social movements were so persistent and pronounced that the government could no longer ignore them. Therefore, after years of ignoring Civil Rights legislations, the government was forced to acknowledge discrimination by placing the issue on the political agenda.
Policymaking Institutions: although the civil rights legislation had tremendous support from President John F Kennedy, the support in Congress reflected that of society – some supported civil rights (House Judiciary Committee Chair Emanuel Celler, Republican Judiciary Committee Member William M McCulloch, Attorney General Robert Kennedy, Democratic Representative Martha W. Griffith, and Senators Hubert H. Humphrey, Mike Mansfield, and Everett McKinley Dirksen) and others didn’t (House Rules Committee Chairman Howard W. Smith, Democratic Senator Richard Russell, and Republican Senator John Tower).
To guarantee the passage of the Civil Rights Act, Dirksen began working with civil rights group “to fashion a strategy that would secure passage of the bill.” These groups included – AFL-CIO, NAACP, ACLU, the Congress on Racial Equality, National Urban League, and Americans for Democratic Action. He also called in Senate Democrats and Republicans who were civil rights advocates, and Justice Department officials to “achieve an acceptable packed of civil rights legislations.”
After the longest debate in history (534 hours) and over 500 amendments to the bill, President Lyndon B Johnson signed the 1964 Civil Rights Act on July 2, 1964.
Title VII of the 1964 Civil Rights Act &
The Equal Employment Opportunity Commission Policy: The 1964 Civil Rights Act produced many policies which strengthened voting rights (Title I), prohibited racial discrimination in public accommodations (Title II) and public school facilities (Title III), and it provided provisions for the withdrawal of federal grants to institutions which practice racial discrimination (Title IV). However, this Act also gave us Title VII.
Title VII forbids discrimination in employment on the basis of race, color, national origin, religion, or gender – equal employment opportunity policy.
Title VII also created the Equal Employment Opportunity Commission (EEOC) to monitor and enforce protections against job discrimination (Title VII)
The Equal Employment Opportunity has grown in size and scope since its creation. Its personnel has grown from 190 in 1965 to 2,800 in 2003; its field office have increased from four regional offices in 1966, to over 53 Tribal Employment Rights Offices (TERO’s) and 93 state and local Fair Employment Practice Agencies (FEPA’s) in 1989; and its caseload has increased from 8,854 charges filed in 1966 to 80,027 charges filed in 2002.
Not only does the EEOC implement Title VII of the 1964 Civil Rights Act, it also oversees the implementation of the 1963 Equal Pay Act, the 1967 Age Discrimination in Employment Act (1986, 1988, 1990), the 1978 Pregnancy Discrimination Act (reversing Supreme Court ruling in GE v Gilbert, 1976), and the 1990 American with Disability Act.
Through its bureaucratic role, the EEOC also established discrimination guidelines, affirmative action guidelines, sexual harassment guidelines, and even guidelines on remedies available for undocumented workers.
People: through Title VII, the 1964 Civil Rights Act not only established EEO policy, but it also established an organization which would eventually become the major institution charged with fostering equal employment opportunity.
As the power of the EEOC increases, and as the scope of EEO policy increases, so do the benefits provided to the people. For instance, the 1991 Civil Rights Act provides monetary benefits in cases of blatant discrimination, while Executive Order 13152 prohibits discrimination based on sexual orientation.
Today, the EEOC ensures the rights of not only racial minorities and women, but of the elderly, disabled, and even the undocumented workers.
Concluding Comments: Though Title VII of the 1964 Civil Rights Act provided us with EEO policy and the EEOC as a regulatory institution, EEO policy has come under significant attack. Many white males began to see this policy as reverse discrimination, and actually brought discrimination charges against the EEOC. Bakke v. Board of Regents illustrates this point (see Affirmative Action debate).
Is there discrimination taking place as a result of EEO policies?
(See Text, p. 161
You are the Judge: Is Male Only Draft Registration Gender Discrimination?)
The Affirmative Action Debate In an effort to foster equality, and overcome the effects of past discrimination, numerous affirmative action policies were created.
Affirmative Action = a policy designed to give special attention to or compensatory treatment for members of some previously disadvantaged group.
The goal is to move beyond equal opportunity to equal results.
Though affirmative action policies intend to foster equality, they are not very popular.
At times, it appears as though minorities themselves are against these measures.
(See Overhead Figure 16.1 Attitudes on Affirmative Action)
The Case of Bakke
An example of a college student who took matters into his own hands….
This case is known as Regents of the University of California v. Bakke (1978)
University of California at Davis began operating in 1968
First two years, only three minority students were admitted – all Asian
The school began to develop admissions programs which addressed a social need – compensation for victims of unjust societal discrimination – and – because there were too few doctors to deal with minority communities.
To improve minority participation, the school developed two admissions programs to fill 100 seats.
Regular (84 seats): applicants evaluated by undergraduate grades, standardized test scores, letters of recommendation, extracurricular activities, and an interview
Special (16 seats): for applicants who were economically or educationally disadvantaged – or – were African American, Chicano, Asian, or Native American. They were evaluated on the same basis as those for regular admission, but they competed against each other.
Problem: although whites who were economically or educationally disadvantaged applied for the special admissions program, none were accepted. All specially admitted students were members of the designated minority groups.
Allan Bakke was a white male of Scandinavian descent.
Graduated with honors in engineering from the University of Minnesota
Received almost a straight A average in engineering.
Went through Naval Reserves Officers Corp Program
Marine Combat Officer in Vietnam.
Worked for NASA – Ames Research Center as a research engineer
Received a Master’s Degree in Mechanical Engineering from Stanford
Became interested in a medical career, and began taking science classes (part-time) and volunteering to work at a local hospital
At age 33, he applied for admissions to the 1973 entering class of University of California at Davis medical school.
Since he applied late and most of the seats where full, he was rejected.
He also did not meet the required the admission’s score requirement of 470 (he had 468).
He appealed to the university, even challenging their special admissions program, and was told to hold off on a lawsuit and to reapply following year.
In 1974 he applied again and was rejected again.
During his personal interview, he appeared unsympathetic to the concept of recruiting minority students, and the committee chairman believed this would impact the way he would practice medicine.
Because applicants under the Special Admissions Program were admitted, even though he was better qualified, he sued for admission “claiming that the schools dual admission policy violated the Equal Protection Clause of the 14th Amendment.”
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any State deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the law.
1973 SGPA OGPA 1997 SPGA OGPA
Bakke 3.44 3.46 Bakke 3.44 3.46
Reg. Adm. 3.51 3.49 Reg. Adm. 3.36 3.29
Spec. Adm. 2.62 2.88 Spec. Adm. 2.42 2.62
State trial struck down special program declaring race could not be constitutionally taken into account in admissions process
Racial quotas, part of affirmative action programs, were unconstitutional. You cannot make up for past discrimination, by creating new programs which discriminate… giving seats to those who are not qualified.
Courts did not force University to take Bakke
California Supreme Court found that the special admissions program was unconstitutional – stating that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standard application without regard to race.”
Supreme Court forced university to admit Bakke.
Case went to the U.S. Supreme Court.
High profile decision – 5 to 4 vote in favor of Bakke – improperly established quotas violated the equal protections clause of the 14th amendment
6 Separate opinions were written to explain individual positions.
Although you cannot use racial quotas in admission policies, yet race can be used as a criterion for admission. In 2003, the University of Michigan was sued an admission policy which gave minorities extra points in their efforts to diversity the University. In a 5-4 decision, the Court ruled that points were unconstitutional, but they could still consider race and ethnicity.