I. Race and “Strict Scrutiny”
A. The “Separate But Equal” Doctrine
1. 1875 Civil Rights Act—the last gasp of the Radical Republicans, the 1875 Civil Rights Act was introduced by Senator Charles Sumner in an effort to protect the civil rights of African Americans, which were coming under increasing attack as the Republican Party determination to protect those rights was waning.
2. 1883 Civil Rights Cases—the Supreme Court, in a series of decisions that have become known as the Civil Rights Cases, declared that major portions of the 1875 Civil Rights Act were unconstitutional, because they attempted to police not only state actions, but individual actions, as well. This opened the way for a series of discriminatory practices to come into use, from restrictive covenants (restricting certain parcels of property from being sold to certain groups), to permitting owners of hotels, theaters, and restaurants to refuse service to groups they didn’t like (mainly African Americans).
3. 1896 Plessy v. Ferguson—the state of Louisiana passed a law that required railroads operating in the state had to provide separate railcars for white and African American passengers. This upset a number of Creoles near New Orleans, especially since the state had also enacted a “One-Drop Rule” to determine who would be considered African American for the purposes of these new restrictive laws. Homer Plessy, an “octoroon” (that is, a person who was 1/8th black), agreed to take part in this test case, funded in part by railroad companies who objected to the expenses they would incur to follow this Louisiana law. The Supreme Court in 1896, in its most infamous decision after Scott v. Sandford, held that as long as accommodations were “equal,” they could be “separate.” This decision, as well as that handed down in the Civil Rights Cases, opened the floodgates for similar legislation to be passed throughout the South (as well as the North), and permitted the institution of Jim Crow—the American version of apartheid. This largely remained the law of the land until 1954.
4. 1954 Brown v. Topeka Board of Education—in this momentous decision, a result of several decades of work by the NAACP’s Legal Defense Team, led by Thurgood Marshall, overturned most of the previous 75 years worth of legal precedent. The Court found that African Americans could not be discriminated against in educational institutions. This led to the Court later deciding to extend these protections to other realms of life, later striking down restrictive covenants. The outlawing of private discrimination—including employment—would await the passage of the 1964 Civil Rights Act
B. Race as a Suspect Classification—after handing down the Brown decision, any law passed that made a racial distinction was subject to strict scrutiny by the courts.
1. Suspect Classification—this does not mean that the government cannot treat the races differently; the Court has not held that the Constitution is “color-blind.” The law may still make racial distinctions as long as the purpose for those distinctions is to remedy the consequences of past discrimination.
a. 1968 Green v. New Kent County—the Court banned a “freedom-of-choice” desegregation plan, and decided that blacks and white had to actually attend the same school.
b. 1972 Swann v. Charlotte-Mecklenburg Board of Education—the Court decreed that students may be bused in order to achieve a better racial balance in desegregated schools.
2. Affirmative Action—today, we associate the term “affirmative action” with other terms, like “set-aside” or “quotas”; that is, actions taken to “guarantee” a certain number of positions or contracts will go to members of minority groups. When the Civil Rights Act was passed in 1964, however, it only required companies to implement plans of their own devising to address past wrongs that their discriminatory practices had caused.
a. 1970 Philadelphia Plan—suggested to President Richard M. Nixon by his Secretary of Labor George Schultz, the policy was meant to serve a dual purpose: to appease some of the critics of the administration on the issue of race, and to drive a wedge between Democrats on one of its core constituencies—trade union members. The Philadelphia Plan required jobs on projects funded by the federal government to go to workers from minority groups in proportion to their share of the local population.
b. Education—one of the hottest of the hot-button issued in the late 1960s and early 1970s was the court-ordered busing of school children to achieve an integrated school system. The Court found, in several decisions (for example, see Swan v. Charlotte and Mecklenburg above) that permitting families to “choose” a school was not good enough, largely because whites would choose to maintain the status quo, and no change would happen. The Court in a number of instances, including in Detroit and in Boston, ordered that school children be bused in order to reach a standard that approximated what they judged to be “integrated.” In places like Louisville, Kentucky, that included busing children to and from the surrounding suburbs, when it was proven to the Court’s satisfaction that those suburbs had participated in discriminatory practices. These decisions have been greatly amended in the recent past, as we will discuss in greater detail below.
i. University of California Regents v. Bakke—Allan Bakke, a Vietnam War veteran, applied to the medical school at the University of California-Davis in 1973 and 1974, but was rejected both years in favor of candidates from minority groups with lower test scored than Bakke. Bakke sued in court, and won judgment in his favor. The California Regents, who had recently passed a state-mandated plan to encourage a larger minority enrollment, countersued, and it is this countersuit that made its way to the Supreme Court.
c. “Reverse discrimination”—with this new interpretation of what “affirmative action” meant, white litigants began to argue that using race as a criteria in school admissions or job applications—even to address the wrongs done to African Americans by past discrimination—was “reverse discrimination.”
i. 1995 Adarand Constructors v. Pena—a construction company in Colorado that lost out on a subcontract bid to build guardrails on a highway to a minority-owned firm, sued the contractor, claiming violation of 5th and 14th Amendment rights—in effect, that they had been victims of reverse discrimination
ii. 2003 University of Michigan Admissions cases—in a mixed decision, the Court found that, while universities can use race as one consideration when deciding who to admit, it has to be tailored to only seek to create greater diversity on campus.
II. Sex and “Reasonable Classification”
A. “Suspect” v. “Reasonable” Classification—the Court has held that laws that put women in a special category were made for different purposes than those which put African Americans in special categories.
1. 1908 Muller v. Oregon—Oregon passed a law that limited the number of hours a day a woman could work outside the home to 10 hours (men were permitted to “choose” to work longer each day) Curt Muller, who owned a laundry that employed large numbers of women, sued, since he would have to employ more women to comply with the law, and his costs would appreciate. Louis Brandeis, future Associate Justice of the Supreme Court, argued that the state had a compelling interest in limiting the workday of women, because of their importance to raising future generations. The Court accepted Brandeis’ argument, and this decision remained largely unchallenged into the 1970s.
2. 1964 Civil Rights Act—not only outlawed discrimination on the basis of race, but also on the basis of color, religion, national origin—or sex. This final clause was inserted by Virginia senator Harry Smith, an ardent segregationist. His detractors argued that he did so in the hope of killing the bill; he insisted it was because of his close relationship with feminist Alice Paul. At any rate, it was because of the work of Michigan senator Martha Griffith that the clause remained in the act. With the advent of Title IX, the field of education was added to the list of places where discrimination was outlawed.
B. Privacy and Sex—regulating sexual matters has traditionally been left to the states, which regulate them using their police powers (making certain acts illegal, and enforcing them with police).
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