14 - CIVIL RIGHTS
One of the most influential Constitutional clauses during the mid to late 20th century has been the equal protection clause of the Fourteenth Amendment that forbids any state to "deny to any person within its jurisdiction the equal protection of the laws. This clause has not been interpreted to mean that everyone is to be treated the same, but that certain divisions in society, such as sex, race, and ethnicity are suspect categories, and that laws that make distinctions that affect these groups will be subjected to especially strict scrutiny. In recent years, these suspect categories have been expanded to include discrimination based on age, disability, and sexual preference.
The Black Civil Rights Movement
The modern civil rights movement first focused on rights for black Americans. After the Civil War, civil rights were guaranteed for former slaves in the Fourteenth and Fifteenth Amendments. However, many discriminatory laws remained in states across the country, and the states of the defeated Confederacy passed Jim Crow laws, which segregated blacks from whites in virtually all public facilities including schools, restaurants, hotels, and bathrooms. In addition to this de jure (by law) segregation, strict de facto (in reality) segregation existed in neighborhoods in the South and the North. The 1896 court decision Plessy v. Ferguson supported this segregation with the ruling that "separate but equal" facilities are constitutional. In 1909 the National Association for the Advancement of Colored People (NAACP) was founded to promote the enforcement of civil rights guaranteed by the Fourteenth and Fifteenth Amendments.
The NAACP struggled for years to convince white-dominated state and national legislatures to pass laws protecting black civil rights, but they made little progress until they turned their attentions to the courts. From the mid-1930s to about 1950, they focused their attention on requiring that separate black schools actually be equal to white schools. Finding little success with this approach, Thurgood Marshall, an NAACP lawyer for Linda Brown in Brown v. Topeka in 1954, argued that separate but equal facilities are "inherently unequal" and that separation had "a detrimental effect upon the colored children." The Court overturned the earlier Plessy decision and ruled that "separate but equal" facilities are unconstitutional. Following this landmark case was over a decade of massive resistance to desegregation in the South, but organized protests, demonstrations, marches, and sit-ins led to massive de jure desegregation by the early 1970s.
De jure desegregation was insured by the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The 1964 act banned discrimination in public facilities and voter registration and allowed the government to withhold federal funds from states and local areas not complying with the law. The 1965 act outlawed literacy tests and allowed federal officials to register new voters. The Johnson Administration set up as part of the "Great Society" an Office of Economic Opportunity that set guidelines for equal hiring and education practices. To comply with the new guidelines, many schools and businesses set up quotas (a minimum number of minorities) for admission or employment.
By the 1970s the focus of concern turned to racial balance as opposed to mere nondiscrimination, or equality of opportunity vs. equality of result. Do civil rights required merely the absence of discrimination, or do they required that steps be taken to insure that blacks and whites enroll in the same schools, work in the same jobs, and live in the same housing? The Courts again helped define the issue. In the 1978 Bakke v. California the quota practices of the University of California medical school at Davis were called in question by a white candidate who was denied admission. Bakke sued the state, claiming reverse discrimination, since minorities with lesser qualifications were admitted to the medical school. In a divided decision, the court ruled in Bakke's favor, declaring quotas unconstitutional although allowing race as one criterion for admission to a public institution. In the 1979 Kaiser Case, Kaiser Aluminum was sued for reverse discrimination in its hiring practices. This time the courts ruled that a private company could set its own policies, and the government could not forbid quotas in the case.
In the1989 Richmond v. Croson case, the court struck down the city of Richmond's plan to subcontract 30% of its business to minority companies, but the decision was bitterly opposed by three members of the Court.
Women and Equal Rights
Before the 1970s the Court interpreted the equal protection clause of the Fourteenth Amendment very differently for women than it did for blacks. Whereas the legal tradition clearly intended to keep blacks in a subservient position, the legal system claimed to be protecting women by treating them differently.
In 1908 the Court upheld an Oregon law that limited female (but not male) laundry workers to a ten-hour workday. The Court claimed that "The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued, labor, particularly when done standing...." So biological differences justified differences in legal status, an attitude reflecting protective paternalism.
With the passage of the Nineteenth Amendment in 1920, the suffrage (right to vote) movement that had begun in the early 1800s came to a successful end. "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."
Other legal rights were not addressed until the 1970s, when the women's movement questioned the Court's justification for different treatment of the sexes under the law. A unanimous Court responded by setting down a new test, the reasonableness standard: a law that endorses different treatment "must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstances shall be treated alike." The "reasonableness" standard was much looser than the "suspect" standard used to judge racial classifications: some distinctions based on sex are permitted and some are not.
For example, a state cannot set different ages at which men and women are allowed to buy beer, nor can girls be barred from Little League baseball teams, and public taverns may not cater to men only. However, a law that punishes males but not females for statutory rape is permissible, and states can give widows a property-tax exemption not given to widowers. Other practices generally endorsed by the court but now being challenged are the acceptability of all-boy and all-girl public schools and the different rates of military officer promotions (men generally have been promoted earlier than women).
The most controversial issues defining women's rights involve the military draft and abortion. Landmark Court cases still stand for each issue:
Rostker v. Goldberg (1981) allows Congress to require men but not women to register for the draft without violating the due-process clause of the Fifth Amendment. However, other laws passed by Congress regarding differential treatment in the military have recently been challenged. For many years Congress barred women from combat roles, but in 1993, the secretary of defense opened air and sea combat positions to all persons regardless of sex. Only ground-troop combat positions are still reserved for men. The issue of the draft was the primary reason for the ultimate failure of the Equal Rights Amendment, which read "Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex." Congress passed this amendment in 1972, but it ran into trouble in the ratification process. By 1978, thirty-five states had ratified, three short of the necessary three-fourths. Many legislators and voters worried that the ERA would require women to be drafted for combat duty. Meanwhile, the time limit for ratification ran out, the Republican party withdrew its endorsement, and Congress has not produced the two-thirds majority needed to resubmit it to the states.
Roe v. Wade (1973) broke the tradition of allowing states to decide the availability of abortions within state boundaries. In Roe the Court struck down a Texas law that banned abortion except in cases when the mother's life was threatened. The Court argued that the due-process clause of the Fourteenth Amendment implies a "right to privacy" that protects a woman's freedom to "choose" abortion or not during the first three months (trimester) of pregnancy. States were allowed freedoms to regulate during the second and third trimesters. The decision almost immediately became controversial, with those supporting the decision calling themselves "pro-choice" and those opposing "pro life." Although the Roe decision still holds, its critics still fight for its reversal. The Bush administration barred the use of federal funds for family-planning clinics that provided abortion counseling, but the policy was repealed by the Clinton administration. The Court has declared unconstitutional laws that require a woman to have the consent of her husband, but it has allowed states to require underage girls to have the consent of her parents. In 1989 in the Webster case, the Court upheld some state restrictions on abortions (such as a twenty-four hour waiting period between request for and the performance of an abortion), but the Court has since refused to overturn Roe.
Rights for Native Americans
Of all the minorities in the United States, Native Americans are almost certainly the most diverse. Almost half of the nearly 2 million people live on reservations, or land given to them as tribes by a treaty with the U.S. government. 308 different tribes are formally registered with the government, and among them, almost 200 languages are spoken. Enrolled members of tribes are entitled to certain benefits (such as preferred employment or acceptance to college) administered by the Bureau of Indian Affairs of the Department of the Interior. The benefits are upheld by the Supreme court as grants not to a "discrete racial group, but rather, as members of quasi-sovereign tribal entities."
Poor living conditions and job opportunities on reservations have been the source of growing Native American militancy. Tribes have demanded more autonomy and fewer government regulations on reservations. Some recent cases have involved the right of tribes on reservations to run and benefit from gambling operations that the government has regulated. Some tribes are demanding better health care facilities, educational opportunities, decent housing, and jobs.
Under Article I, Section 8, Congress has full power under the commerce clause to regulate Indian tribes. Congress abolished treaty-making with the Indians in 1871, but until recent times tribal governments were weak, many reservations were dissolved, and many tribes severed their relationship with the U.S. government. During the past twenty years, both the tribes and the government have shown revived interest in interpreting earlier treaties in a way to protect the independence and authority of the tribes. With the backing of the Native American Rights Fund (funded in part by the Ford Foundation), more Indian law cases have been brought in the last two decades than at any time in our history. Colorado elected the first Native American (Ben Nighthorse Campbell) to Congress in 1992.
Hispanics
Hispanics compose the largest, fastest growing minority group in the United States today. Of the approximately 23 million Hispanics (a 60 per cent growth since 1980), 14 million are Mexican Americans who live primarily in the Southwestern United States. The Second largest group consists of 2.7 million Puerto Ricans, living primarily in northern cities, such as New York and Chicago. A third group has come since the early 1960s from Cuba, many fleeing to Florida from Castro's regime. A rapidly growing number are emigrating from political upheaval in Central American countries, such as Nicaragua and Guatemala.
A major issue for Hispanics centers around English as a Second Language education in U.S. public schools. Hispanics have been handicapped because English is not their native tongue, and schools did not provide instruction in Spanish. Supporters of ESL education believe that Spanish instruction should be provided and encouraged, whereas critics claim that such education hampers the learning of English, a necessary skill for success in the United States.
Hispanics, like blacks, have become increasingly involved in politics, and by the 1994 election 19 Hispanics were members of the House of Representatives. Although no Hispanic senators have been elected, two members of Clinton's cabinet served during his first term: Secretary of Housing and Urban Development Henry Cisneros and Secretary of Transportation Federico Pena. Almost 2000 Hispanics hold elective office in Texas.
Asian Americans
Asian Americans come from many different countries with different languages and customs. About 40 per cent of our immigrants now are from Asia, with approximately 7.3 million counted in the 1990 census, an increase of almost 108 percent since 1980. Because Asians have often been successful in education and occupations, they are often not considered to be victims of discrimination. In 1992, however, the U.S. Civil Rights Commission reported the results of their fact-finding mission: "Asian Americans do face widespread prejudice, discrimination and barriers to equal opportunity."
Until recently, Asians were severely limited by U.S. immigration policies. Discriminatory immigration and naturalization restrictions were placed on the Chinese in 1882, and remained in place until after World War II. In 1906 The San Francisco Board of Education excluded al Chinese, Japanese, and Korean children from neighborhood schools. During World War II, Japanese Americans on the West Coast were placed in internment camps because of the fear that they would conspire with a Japanese attack from the Pacific Ocean. Immigration policies now favor many Asians, especially those with high educational and professional qualifications enforced by current immigration laws.
A number of groups have come at least partly as a result of Cold War politics since World War II. Koreans are a growing group, concentrated in southern California, Hawaii, Colorado, and New York City. Korean businesses have been the object of violent attacks, such as in the 1992 Lost Angeles riots and separate, more recent incidents in New York City. The most recent arrivals are refugees from the political upheavals in Vietnam, Laos, and Cambodia.