U.S. GOVERNMENT & POLITICS, SPRING 2011

 

CIVIL RIGHTS ISSUES

 

OSY chapter 5; Woll 21 (Plessy v. Ferguson), 22 (Brown v. Board of Education, 1954), 23 (Brown II, 1955)

Wednesday, April 6

 

Terms from OSY chapter 5:  civil rights; Missouri Compromise; Seneca Falls convention; 13th, 14th, 15th Amendments; equal protection clause of 14th Amendment; Black Codes, Jim Crow laws; Civil Rights Cases; poll tax; grandfather clause; Plessy v. Ferguson; NAACP, tactics in working to end segregation; suffrage movement, 19th Amendment; Brown v. Board of Education; Brown II, “all deliberate speed”; Civil Rights Act of 1964; Equal Employment Opportunity Commission; Equal Rights Amendment, why it failed; suspect classification, strict scrutiny, intermediate standard, minimum rationality standard (chart on p. 149); Title IX; civil rights issues pressed and tactics used by Hispanic Americans, American Indians, Asian and Pacific Americans, gays and lesbians, Americans with Disabilities; Romer v. Evans; Americans with Disabilities Act (ADA); current controversies with affirmative action

 

 

COMMON THEMES IN CIVIL RIGHTS ADVANCEMENT

 

The general pattern of U.S. political history concerning civil rights has two themes:  first, long periods in which rights have not been uniformly given to all citizens (sometimes but not always including protests about denial of such rights); second, the extension of rights to more and more groups of people.

 

Five factors seem to almost always be present when rights advances occur, and the absence of one or more factors helps explain why some groups are less successful than others:

 

1.      POLICY WINDOW EXISTS – it definitely helps to advance civil rights for more Americans when a spirit of reform is present that includes a well developed sense that injustices must be corrected. This is the idea of the policy window (see March 2 class handout).  Best examples – early 20th century (Progressive era – right to vote for women) and the 1960s (civil rights movement and most advances of the women’s equality movement).  The failure of the ERA in the late 1970s/early 1980s is an example of a policy window that closed before a major goal could be achieved; today, we are witnessing a policy window opening for gays and lesbians on same-sex marriage (but it’s not clear how ‘open’ the window is).

 

2.      INTEREST GROUP ACTIVISM – one never finds significant civil rights reform without interest group activity.  A major point to keep in mind – it is normally NOT one big group but rather several small ones that tend to be effective.  The NAACP appears to be a counterexample during the struggle for civil rights for African Americans.  In actuality, state chapters of the NAACP pursued their own strategies and did not always coordinate efforts with the national NAACP.  The women’s movement is an even better example of decentralized, independent interest groups pursuing what they wanted (excellent book on this – Jo Freeman, The Politics of Women’s Liberation).  Most of the political successes of Hispanic Americans, American Indians, disabled Americans, and gays and lesbians have come through local/state-level (or tribal) efforts, not through the work of large national associations (the large associations tend to follow and become recognized spokespersons for causes, rather than leading such causes in the first place).

 

3.      STRENGTH (AND VISIBILITY) IN NUMBERS – more people within a group/category seeking civil rights does not necessarily mean success (example: women in the U.S., 1776-1919) but it helps.  Hispanic Americans comprise a large and growing share of the overall population, and their political strength grows alongside population growth (but Hispanic/Latino Americans are not all of one mind when it comes to politics). Asian and Pacific Americans have always constituted a small number compared to most other ethnic/racial groups, hence have had some difficulty gaining recognition; American Indians face similar issues (and are governed differently), whereas the relative high socioeconomic status (education, income) of gays and lesbians makes them politically active and thus visible (despite being a small share of the population).  In addition, groups scattered throughout the U.S. (hence without a geographic base, which translates into potential political power) tend to have a somewhat harder time organizing and gaining attention for their grievances (the disabled fall in this category, as did women for a long time).

 

4.      RELIGIOUS MOTIVATIONS – this one is a bit less obvious, but most major American movements for social change have had a religious component (or in the case of ERA, opposition to the change was often grounded in religion).  Examples include abolitionism, temperance (resulting in Prohibition), women’s suffrage and civil rights.  It would be impossible to fully understand Martin Luther King’s political activism without remembering that he was a minister; and black churches usually served as the foundation of organizing efforts.  Groups advocating today for and against abortion and same-sex marriage often/usually have religious motives; Hispanic Americans and African Americans tend to be active churchgoers, hence churches are focal points for political organizing efforts within these ethnic/racial groups on most political issues.

 

5.      COURTS FIRST, THEN LEGISLATURES – the groundwork for reform and rights expansion is often established in courts, especially federal courts.  Legislatures tend to react to civil rights-related court decisions, and disadvantaged groups almost always win in court before they are able to win in elected bodies at the state or national level.  Not all scholars perceive courts as having this much significance in the reform process.

 

 

            CONNECTIONS WITH COURTS MATERIAL:  Disputes about civil rights are usually determined by the Supreme Court’s application of due process (found in the 5th and 14th amendments).  There are two forms, procedural and substantive due process:

 

Procedural due process:  was the law in question passed using proper procedures?  Does it specify procedures that guarantee due process to all? Are the procedures spelled out clearly (not arbitrarily determined)?  Are rights respected?  Focus on steps taken in any process where claims about rights infringement are made

 

Substantive due process:  is the law reasonable?  Legislature/any decision making body has ability to decide what is reasonable. The question is whether government actions constitute a valid exercise of their power, and whether the outcomes of the law are also fair and do not violate people’s rights in some manner

 

            EXAMPLE: voter registration laws.  Procedural due process includes a review of how states establish systems for voters to register, including the forms and ease of completion, due dates and residency requirements.  States cannot have arbitrary procedures nor can they discriminate against specific sets of voters.  Substantive due process would include reviewing statistics on who is registered and who is not; a procedurally fair voter registration system might still fail to achieve substantive due process if it discriminates against some set of people who for some reason are less likely to register (e.g. language barriers, difficulty re-registering after moving).

 

 

Supreme Court Constitutional standards of review

see Table 5.1 (OSY p. 149) for full details

 

Minimum rationality standard (also called rational basis):  those charging discrimination must prove the violation (lowest standard of review, presumes constitutionality)

 

Intermediate standard: a middle ground – gender is considered with this standard; weighs government objectives versus past history and methods used to address objectives; harder to determine the outcome since different objectives are being weighed against each other

 

Strict scrutiny (heightened standard): government must show a compelling reason to make classifications, burden lies with the government showing a "compelling public interest" – fundamental freedoms, suspect classifications such as race, national origin (presumes unconstitutionality)

 

 

QUESTIONS: Why has gender been placed in the “intermediate standard” and treated differently than race in court decisions and civil rights legislation? Do Native Americans, gays and lesbians, and/or disabled Americans also have claims to fundamental freedoms and thus more protection under anti-discrimination laws?

 

 

 

Woll 21, Plessy v. Ferguson and 22/23, Brown v. Board of Education (1954) and Brown II (1955)

 

These cases reach opposite conclusions about separate public facilities for whites and non-whites (colored or Negro, in the language used when these decisions were written).  Note the dissent by Justice Harlan in the Plessy case and how it echoes the unanimous opinion of Chief Justice Warren in Brown.  The key conclusion in Brown:  “Separate educational facilities are inherently unequal” (132).  The Brown II decision called for desegregation “with all deliberate speed” (134), which meant very slowly or not at all (10 years later, less than 1 percent of Southern schools were integrated).

 

QUESTIONS: How do these decisions differ in considering whether segregation has a negative impact on black self-esteem and achievement?  What form of constitutional interpretation is being used here – by the majority in Plessy, the dissent in Plessy, and the majority in Brown?  Could the Supreme Court have sped up the process of desegregation, rather than allowing it to proceed slowly or not at all with the Brown II decision? What kinds of problems would such a ruling have faced?