PSCI Jim Battista. Civil Rights. University of North Texas

Transcription

1 PSCI University of North Texas

2 Civil rights Voting rights Governmental segregation Private segregation Combination of court cases and statue laws to deal with them Cases mostly based on 14th Amendment nor shall any State... deny to any person within its jurisdiction the equal protection of the laws Equal protection clause

3 Voting Several aspects: Districting and apportionment Voting Rights Acts

4 Districting and apportionment Malapportionment: Drawing district lines so that districts have unequal population You want to be in a small district Common by 1960s US House State legislatures Some of which had equal rep. by county

5 Malapportionment examples State Smallest Largest Ratio CA :1 CT :1 ID :1 NV :1 NH :1 UT :1 VT :1

6 Malapportionment cases: the beginning Originally, cases fell afoul of political question doctrine Courts said, This is not the kind of decision we make. Go talk to your legislature for redress of grievances. But the problem is with the legislature itself! Eventually we get to Baker v. Carr

7 Baker v. Carr (1962) TN had not drawn new district lines since 1900 TN Constitution required it to; it just didn t anyway By 1960, gross malapportionment Baker in Shelby County (Memphis) District has 10 times population of rural districts

8 Baker v. Carr (1962) Baker: Court, help me! I have a problem my vote is diluted And I can t go to the legislature The legislature is the problem! The legislature is who s corrupt here! Court decides districting is justicible Prescient warning that Court will have to do more of this Decision doesn t itself undo malapportionment

9 Reynolds v. Sims (1964) Based on Baker, Sims sues AL Representation is unequal! In state House bad districting (15:1) In state Senate bad principle (63:1) Court delivers classic smackdown Legislators represent people, not trees or acres Legislators are elected by voters, not farms or cities or economic interests One person, one vote, now

10 Reynolds v. Sims (1964) Decision applies to both chambers of state legislatures Why can t states do like the federal Senate? Not the same thing Counties aren t states States have independent right to exist, counties don t States can abolish / merge counties, Congress can t with states US is union of states, states are not unions of counties

11 Wesberry v. Sanders (1964) Based on Baker, Wesberry sues GA 5th US House district is 2 3 times bigger than smaller ones Wesberry: this dilutes my vote! This is unequal protection! I am the victim of illegal discrimination in favor of rural voters Court agrees At time: US House districts must be about same size Now: routinely just about equal (± 1 common)

12 Voting and discrimination States tried to prevent non-anglos from voting Part of Jim Crow Tactics: White primary Literacy test Poll tax Grandfather clause Attacked through court cases, amendments, law

13 Voting discrimination in the courts Guinn v. US 1915 OK s grandfather clause void Smith v. Allwright 1944 TX white primary void King v. Chapman 1946 GA white primary void Gomillion v. Lightfoot 1960 AL can t redraw city limits to exclude black population

14 Voting and constitutional amendments Several amendments deal with voting rights 15: Race, color, previous condition of servitude 19: Sex 23: DC 24: Tax payment 26: Age (over 18)

15 Voting Rights Act Initially passed 1965 Extended 1970,75,82 Enforces 14th Amendment equal protection Plain old law

16 Voting Rights Act Bans some electoral practices Literacy tests Anything with discriminatory intent / effect Prohibited everywhere

17 Voting Rights Act Requires preclearance in parts of US Places with history of discrimination or low registration Extended/modified 1970, 75, 82 Most ex-confederacy, AZ, AK Parts of CA, SD, MI, NY, NH Expires 2007

18 Voting Rights Act preclearance Changes in electoral law / practice frozen US (DoJ or DC Dist Ct) must approve changes before take effect State / locality must prove no discriminatory intent or effect Burden of proof is on state

19 Voting Rights Act Other provisions Federal examiners Can conduct registration Federal observers

20 VRA & maj-min DoJ began to insist on seeing some majority-minority districts We think if you were districting in a race-blind way, you would have 2 majority-minority districts. So make them. Main proponents: Black/Latino interest groups, Republicans Why Republicans? Maj-min districts have effect of packing Democrats increase Republicans elected Ruled unconstitutional (sort of) 1995 Shaw v. Reno

21 Governmental segregation Segregation legally required by the state Law says, thou shalt not integrate Firm beginnings: Plessy v. Ferguson (1896)

22 Plessy v. Ferguson LA law requires segregation on trains Plessy violated law Pre-arranged test case betw. railroad, citizen group Segregation cost RR money SC: Law is fine Can require separation so long as facilities equal

23 Plessy Set in place separate but equal Harlan s dissent But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

24 Separate-but-equal era States began to pass laws requiring segregation Of public facilities Of public and private facilities The unpleasant bit Jim Crow not about water fountains Threats, life, and death

25 Separate-but-equal era Generally created separate but equal institutions for black citizens Usually actually grossly inferior, at least in resources Not always though, esp. outside deep-south Sometimes no relevant [whatever] For Negroes Law schools, med schools, etc State would often pay to send students to other states Sweatt in this context

26 Separate-but-equal era Era not without bright spots 1947: Truman integrates military Done with simple executive order It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. Military takes to it with convert s zeal, mostly

27 Sweatt v. Painter Decided 1950 Heman Sweatt denied admission to UT Law School because of race Sues, state creates law school for black citizens At first, theoretical entity carved out of UT law school Then its own physical school Sweatt says this isn t good enough, this isn t equal Amicus brief from US (Truman) sides with Sweatt

28 Sweatt v. Painter Court s decision: TX plan is unconstitutional School is unequal School is actually, physically, objectively unequal Not even accredited (yet) School is not potentially equal Intangibles, unmeasurables Reputation, alumni network, prestige Major step on road to separate means unequal But doesn t overturn Plessy

29 Setting the stage Brown v. Board of Education of Topeka Linda Brown has to walk 1 mile to school But white-only school just a couple blocks away Topeka? Not Birmingham or Montgomery or Atlanta? Important to the case Earlier rulings Topeka segregated schools basically equal At least as far as measurable things go Basically equal funding, facilities, etc (marginally inferior) Not the stereotypical picture from the South

30 Setting the stage Topeka schools semi/sort-of equal Why does this matter? If the test case were in one of the horror-show areas Court s response would have to be Make these equal! But courts had already held that schools were equal Only question left: can separate ever be really equal? Had to be in a relatively equal system in order to throw out the idea of segregation

31 Brown v. Board of Ed. The plaintiffs contend that segregated public schools are not equal and cannot be made equal, These school systems are equal, or equalizing, but segregated So... can separate be equal? NO Segregation implies inferiority A sense of legally-sanctioned inferiority harms learning segregated schools are unequal

32 Brown v. Board of Ed. Overturns Plessy WRT public schools 9 0 decision NOT just a court s opinion No dissent, no concurrence Signal to segregated states: no chance of overturning

33 Brown v. Board II 1954 Court already ruled segregation must end But by when? In what timeframe? By what process? Ruling: School districts, lower courts work out details To be done with all deliberate speed Court meant: as fast as you can without messing up people s lives States read it as: as slow as possible

34 Reaction Massive resistance Do everything possible to avoid desegregation Close schools before desegregation Replace with tuition grants to private schools Abolish mandatory attendance requirement Prince Ed. Cty, VA: no public schools at all 195x 1964 Segregation now, segregation forever

35 Little Rock 1957 LR schools began to desegregate as slowly as possible 3 Sept nine black students try to attend LRCHS Stopped by mob, state militia (there to protect order ) No progress by 23 Sept.; DDE issues exec order AR militia brought into federal control (ordered to stay home) Military called in 101st Airborne show up 25 Sept.: students attend school School system then shut down entirely until 1959

36 Little Rock and afterwords After Little Rock, resistance shifts Before: MOL outright defiance After: exploitation of uncertainty, delaying tactics Do whatever possible to avoid desegregating until no alternative After: some aspects of Massive Resistance continue

37 After Brown Schools still de facto segregated Swann v. Charlotte-Mecklenburg, others Busing rules everyone goes to integrated schools Even if school attendance lines crossed Even if don t attend nearest school Attempt to overcome segregation in housing Progress slow generally (Durham NC merger 1992)

38 Aside: levels of scrutiny Courts apply different levels of scrutiny to different kinds of cases Different degrees of suspicion about laws Different ways to answer question Is this constitutional? Different hurdles that laws have to jump over to be okay

39 Levels of scrutiny Suspect classifications / fundamental liberties State makes distinction on basis of race, religion, origin Laws receive strict scrutiny Must serve compelling state purpose Must be narrowly tailored means Must be no less restrictive means Goal must be extremely important, means must be most friendly possible

40 Levels of scrutiny Intermediate scrutiny Classification by sex, legitimacy, some affirmative action State must show important purpose (not compelling) Means must be substantially related to goal (not least-restrictive) Rational purpose Other classifications, usually incl. sexual orientation Legitimate state objective (goal is not forbidden) Minimally rational link between means and end Not arbitrary and irrational, not obviously crazy

41 Segregation by sex Public schools can t be segregated by race How about by sex? Main case: MUW v. Hogan Hogan wants to attend MS Univ for Women s nursing program It is MU for Women. He is male. Oops. Court applies intermediate scrutiny MUW: this is AA, defense against discrimination against women Court: in nursing? State is reinforcing discrimination against women.

42 Segregation by sex Many schools still have for women in their name Routinely they admit men as well (ie, TWU) Mostly now historically single-sex schools Similar in idea to historically black college Last rigidly single-sex holdouts Virginia Military Inst. state school of VA The Citadel, state school of SC

43 US v. Virginia 1996 Filed by US Dept of Justice While case is working through system, VA creates VWIL VA Women s Inst. for Leadership Ostensibly analogous program Nope! Not good enough. VWIL program is a pale shadow of VMI Women seeking and fit for a VMI-quality education cannot be offered anything less Leaves intermediate scrutiny in place Thomas recused

44 Other civil rights decisions Miscegenation: interracial marriage 1967: banned in 16 states VA: interracial marriages automatically void VA: felony punishable with 1 5 yrs in prison 1967 Loving v. Virginia NO! Applies strict scrutiny No overriding purpose here, seem intended to preserve white supremacy Not likely to link to qns of gay marriage Different levels of scrutiny Those cases, where they happened, based on state constitutions

45 Affirmative action Drawing some sort of racial distinction now to remedy past discrimination Generally permissible by state Limits

46 Bakke 1978 Bakke (Anglo) applied to UC-Davis med school, rej. Might have been admissible under standards of special admissions process SC: No. This sets up a rigid quota system by race That s not permissible But: Not strict scrutiny, intermediate General principle is permissible, rigid quota is not Revisited 2003 WRT Michigan universities Undergrad: 20 point bonus too rigid Law school: one of many factors okay

47 Other AA limits State / gov t must show past discrimination Richmond had AA scheme for contractors Long history of discriminating against black-owned businesses Program used boilerplate language Included Spanish-speaking persons, Orientals, Indians, Eskimos, or Aleuts When did Richmond discriminate against Aleuts? General societal discrimination not enough Must find past active discrimination by gov t

48 Private segregation Segregation without government involvement No law that says you must segregate Just your own wish to do so Several areas where common Housing markets Public accommodations Hiring and promotion

49 Private seg. housing Restrictive covenants Agreement not to do certain things with a home Keep things neat and tidy, etc Common: agree not to sell to non-anglo 1948 Shelley v. Kraemer Racially restrictive covenants are legal but unenforceable Can t use power of the state to do this (eq. prot.) Still on the records of many homes

50 Public accommodations Restaurants, hotels, etc Seems small, but not Without access to hotels and restaurants, travel difficult

51 Act Not first attempt to limit private seg. CRA of 1875 Required equal treatment in inns, public conveyances, etc Based on 14th Amendment Struck down by Supreme Court

52 Act of Congress tries again Law based on interstate commerce clause Outlaws discrimination in public accommodations Exception for private club Outlaws discrimination in employment All if your business does IC or affects IC All businesses affect IC Doesn t mean it doesn t happen, does mean victims can sue

53 Testing the CRA Easy case Heart of Atlanta Motel v. US 1964 Motel sits near junction of I-75, I-85 in downtown Atlanta 75% of business is with out-of-state travelers Motel: We have right to choose our customers US: we have power to aid interstate travel for black citizens Court: US is right Not really hard heavily into IC

54 Testing the CRA Harder case Katzenbach v. McClung 1964 Deals with Ollie s BBQ, Mongomery AL Local establishment No claim of significant # s of interstate customers Buys food from local supplier BUT Supplier buys some food from out of state Enough to activate the CRA

55 Katzenbach v. McClung Constitutional use of IC clause? Yep.

56 CRA of 1968 Extends civil-rights protections to housing markets AKA Fair Housing Act, ext. 1988, 1990 Prohibits discrimination in sale, rental, financing On bases of race, color, national origin, religion, family status, sex, handicap Small penalties possible, usually orders to comply Some active investigation, sometimes using testers Still continues, usually by proxy (redlining)

57 ADA Americans with Disabilities Act 1990 Extends protections to people with various disabilities, conditions Employment Exceptions for business necessity, ability to do work Illegal to fire someone because they re diabetic Req d to extent reasonable accommodation Public accommodations Cannot bar people with disabilities New construction, alterations must be accessible

58 Sexual orientation GBLT not protected class by federal Acts Some states, localities bar discrimination in employment Some fewer also in housing, public accom.