Individual Liberties

Unit 3: Civil Liberties and Civil Rights

 MUST KNOW SUPREME COURT CASES AND RELEVANT AMENDMENTS

Must-Know Supreme
Ruling Amenment
Court Cases
Schenck v. United States Speech representing “a clear and present danger” is not
predicted
First
(1919)
Tinker v. Des Moines Independent
Students in public schools are allowed to wear armbands
Community School District
as symbolic speech
First
(1969)
New York Times Co. v. The government cannot exercise prior restraint (forbid
publication ahead of time)
First
United States (1971)
School-sponsored religious activities violate the
Engel v. Vitale (1962) establishment clause
First

Requirements that Amish students attend school past

Wisconsin v. Yoder (1972) the eighth grade violates the free exercise clause. First

The right to keep and bear arms for self-defense in one’s

McDonald v. Chicago (2010) home applies to the states Second

States must provide poor defendants an attorney to

Gideon v. Wainwright (1963) guarantee a fair trial. Sixth

The First, Third, Fourth, Fifth,

Roe v. Wade (1973)
The right to privacy extends to a woman’s decision to have an
and Ninth amendments have
abortion, though the state has a legitimate interest in protecting
been interpreted as creating
the unborn after a certain point and protecting mother’s health “zones of privacy”
A Culture of Civil
Liberties
 Civil Liberties
• Civil liberties - personal freedoms protected from arbitrary
governmental interference or deprivations

• When civil liberties violations have occurred, individuals and

groups such as the American Civil Liberties Union (ACLU)
have challenged them in court.

• Both liberals and conservatives hold civil liberties dear,

although they view them somewhat differently

• Public interest - welfare or well-being of the general public

• Civil liberties are limited when they infringe on the public

interest
 Selective Incorporation
• The Bill of Rights was ratified to protect the people from the
federal government

• Many states had already developed bills of rights with

similar provisions

• States did not originally have to follow the national Bill of

Rights because it was understood that the federal
Constitution refereed only to federal laws

• Selective incorporation - SCOTUS ruled that state laws

must also adhere to selective Bill of Rights provisions
through the Fourteenth Amendment’s due process clause
 Due Process and the
Fourteenth Amendment
• Due process - ensures fair procedures when the government
burdens or deprives an individual
• Prevents arbitrary government decisions from taking of life, liberty,
or property (including money) without legal cause
• Ensures accused persons a fair trial
• Due process clause in the Fifth Amendment establishes these ideals

• The ratification of the Fourteenth Amendment after the Civil War

strengthened due process

• Drafted to ensure that Southern States followed the commonly

accepted principles in the federal Bill of Rights for all people
 Early Incorporation
• The first incorporation case used due process to evaluate issues of
property seizure

• 1880s, Chicago rail line sued the city for constructing a street across
its tracks—Court held that Chicago had to award just compensation
through the Fifth Amendment

• Gitlow v. New York (1925) - Gitlow was arrested for writing, publishing,
and distributing thousands of pamphlets that called for a violent
overthrow of the government

• Courts upheld conviction because Gitlow’s activities represented a

threat to public safety—not protected

• The Court has required states to guarantee free speech, freedom of

religion, fair and impartial juries, and rights against self-incrimination
 Rights Not Yet Incorporated
• A few rights in the Bill of Rights remain denied exclusively
to the federal government but not yet denied to the states

• Third Amendment protections against quartering troops

in homes

• Fifth Amendment right to a grand jury indictment in

misdemeanor cases

• Seventh Amendment right to jury trials in civil cases

• Eighth Amendment protection against excessive bail

 Protections in the Bill of
Rights - First Amendment
 Provisions in the Bill of
Rights
• The original Constitution lacked many fundamental
protections, so critics and Anti-Federalists pushed for a bill
of rights—designed to specifically to guarantee individual
liberties and rights

• When the Supreme Court makes a civil liberties ruling, it

sets a general standard, or precedent, shaping policy—the
provisions in the Bill of Rights have been interpreted by
the Supreme Court in an effort to balance individual rights
and public safety
 First Amendment: Free Speech
and Free Press
• Free speech is not absolute, but both federal and state governments
have to show substantial interest to curb it

• Compelling governmental interest - a purpose important enough

to justify the infringement of personal liberties

• “speech” - includes an array of expressions—actual words, lack of

words, pictures, and actions

• An average citizen has as much right to free press as does a

professional journalist

• First Amendment does not protect all speech—especially speech

that invites danger, this is obscene, or that violates an existing law
 Balancing National Security and
Individual Freedoms
• Schenck v. United States (1919) - helped establish that
limitations on free speech may be warranted during wartime

• Smith Act (1940) - made advocating the overthrow of any

government in the United States a criminal act
• Truman’s justice department arrested and convicted 11
Communist Party leaders under the act
• Court did not throw out the Smith Act but overturned the
convictions

• United States v. O’Brien (1968) - Court upheld O’Brien’s

conviction of violating the Selective Service Act when he
burned his draft card stating that O’Brien was disrupting the
draft effort and publicly encouraging others to do the same
 Symbolic Speech
• Symbolic speech - used to defend an act that might otherwise be illegal
• Symbolic speech is not an absolute defense in a free speech conflict

• Cohen v. California (1971) - Court overturned Cohen’s conviction when

he was arrested for wearing a jacket that read “F—the Draft”

• Texas v. Johnson (1989) and United States v. Eichman (1990) - Court

struck down both state and federal laws meant to prevent desecrating or
burning the U.S. flag

• The Court looks at whether the government is ultimately suppressing

what was being said, or the time, place, and manner in which it was
expressed?
• Time, place, and manner regulations must be tested against a set of
four criteria
 Obscenity
• Obscene speech - language and images that are so offensive to the average citizen
that governments have banned them
• First Amendment does not protect it
• No national standard defines what it is
• Roth v. United States (1957) - Samuel Roth prosecuted under the Comstock Act

• Miller v. California (1973) - Marvin Miller prosecuted under California’s obscenity laws

• On appeal, justices reaffirmed that obscene material was no constitutionally

protected, but a local judge or jury should not define obscenity by applying local
community standards

• Miller test has served as the standard in obscenity cases

• The average person applying contemporary community standards finds it appeals
to the prurient interest.
• It depicts or describes, in a patently offensive way, sexual conduct specifically
defined by state law
• It lacks serious literary, artistic, political, or scientific value
 Free Press
• Libel - false statements in print that defame someone, hurting their
reputation

• New York Times v. Sullivan (1964) - Alabama city commissioner L. B.

Sullivan sued for libel against the New York Times after the publication of
an article—SCOTUS sided with the Newspaper

• Standards to prove libel are high

• Suing party must prove that they were damaged
• Offending party knowingly printed the falsehood and did so maliciously
with intent to defame

• Public officials and celebrities cannot receive damages for defamatory

falsehoods pelting to their official conduct unless they can prove malice—
reckless disregard for the truth

• The government can’t prevent something true from being published, even it
it was obtained illegally and conveys government secrets that could possibly
endanger national security
First Amendment: Church and State
• SCOTUS constructed a “wall of separation” between Church and State

• Establishment clause - prevents the federal government from

establishing a national religion

• Governing institutions cannot sanction, recognize, favor, or disregard

any religion

• Free exercise clause - prevents governments from stopping religious

practices

• 1879 - President Grant and the federal government pushed to end

Mormon polygamy—George Reynolds argued the free exercise
clause prevented the congressional anti-polygamy law
• Court ruled the federal government could limit religious practices
that impaired the public interest
 The Lemon Test
• Justices in the case of Lemon v. Kurtzman developed the
lemon test to determine excessive entanglement

• To avoid an excessive entanglement, a policy must

• Have a secular purpose that neither endorses nor

disapproves of religion

• Have an effect that neither advances nor prohibits religion

• Avoid creating a relationship between religion and

government that entangles either in the internal affairs of
the other
 Education and Establishment
and Free Exercise
• Engel v. Vitale (1962) - Court outlawed the practice of a
morning prayer in public schools

• School District of Abington Township, Pennsylvania v.

Schempp (1963) - Court outlawed a daily Bible reading in
all public schools

• 1972, Court ruled that a Wisconsin high school attendance

law violated Amish parents’ right to teach their own
children under the free exercise clause violated the basic
tenets of the Amish faith
 Contemporary First Amendment Issues
• Court has struck down virtually every establishment case addressing whether
or not state governments can contribute funds to religious institutions

• Court upheld a voucher program in Cleveland, Ohio that offered tuition

reimbursement for low-income families sending their children to private
schools
• The policy did not make a distinction between religious and nonreligious
private schools
• Money did not go directly to the schools bur rather to the parents for
educating their children

• Any formal prayer in public schools are violations of the establishment

clause—Court ruled against student-led prayer at official public school events
• Students can operate extracurricular activities of a religious nature (must be
after school and no tax dollars)
• Guarantees students’ rights to say private prayer, wear religious T-shirts,a
nd discus religion
 Religious Symbols in the Public
Square
• Lynch v. Donnelly (1984) - Court upheld the city’s right to include the nativity scene in
Christmas decorations because it served a legitimate secular purpose of depicting the
historical origins of the Christmas holiday

• 1989 - Court found the display of the manger scene on public property alone violates
the Establishment clause

• In 2005, the Court rule two different ways on the issue of displaying the Ten
Commandments on government property

• Texas - large outdoor display at the Texas state capital among 17 other
monuments—Court ruled acceptable because monument was not in a location that
anyone would be compelled to be in and it was a passive use of the religious text

• Kentucky - Ten Commandments were hanging in two courthouses, accompanied by

several historical American documents—Court ruled not acceptable because an
objective observe would perceive the displays as having a predominantly relies
purpose in state courtrooms (meant to be free from prejudice)
 BY THE NUMBES
SUPREME COURT VOTES IN DUE PROCESS DECISIONS

Mapp v. Ohio (1961) States must follow the exclusionary rule. 6:3

Gideon v. Wainwright States must supply defense attorneys to

(1963) 9:0
indigent defendants.

Miranda v. Arizona (1966) States must inform the accused of their rights. 5:4

Griswold v. Connecticut Privacy rights prevent state anti-birth control

(1965) 7:2
law.
States cannot outlaw abortion in the first trimester
Roe v. Wade (1973) and must adhere to the trimester standard established 7:2
by the court.

The U.S. cannot hold terror suspects without

Hamdi v. Rumsfeld (2004) 6:3
following habeas corpus rights.
The U.S. must follow Geneva Convention and cannot
Hamden v. Rumsfeld
rely strictly on military commissions in prosecuting 5:3
(2006)
terror suspects.
Protection in the Bill of
Rights: Second and
Fourth Amendments
 The Second Amendment
• The Second Amendment strongly tied to the gun debate

• Gun control advocates point out that the state militias

mentioned in the amendment were “well regulated” and
thus subject to state requirements such as training,
occasional military exercises, and limitations on the type of
gun possessed.

• Gun advocates argue that the amendment guarantees the

personal right to own and bear arms because each
citizen’s right to own a firearm guaranteed the state’s
ability to have a militia.
 Federalism and Gun Policy
• Gun laws fall within the police power of the state

• 1934 - National Firearms Act: national statute that required registration of certain
weapons, imposed a tax on the sale and manufacture of certain guns, and restricted the
sale and ownership of high-risk weapons
• SCOTUS upheld the law
• Gun Control Act of 1968: ended mail-order sales of all firearms and ammunition and
banned the sale of guns to felons, fugitives from justice, illegal drug users, people with
mental illness and those dishonorably discharged from the military

• Brady Handgun Violence Prevention Act 1993: established a five-day waiting period for
purchases of handguns to allow for a background check and for a potential cooling-off
period—expired in 1998
• Private gun collectors avoid background checks at private gun shows and internet
• Still allows juveniles to purchase long guns (rifles and shotguns) from unlicensed
dealers
• National check system no database on non-felon criminals, domestic violence
offenders, and mental health patients.
 State and Localities
• States have increasingly passed laws to allow for ease in gun possession

• National Rifle Association (NRA) and Republican-controlled legislatures

have worked to pass state laws that enable citizens to carry guns

• NRA has fought in court against laws restricting gun ownership

• District of Columbia v. Heller (2008): Heller sued based on his Second

Amendment right to keep a functional firearm in his home without a
license—Court reversed and held that the 2nd Amendment protects the
right to keep firearms in the home for the purpose of self-defense

• McDonald v. Chicago (2010)—because of Heller, the Second

Amendment applied to the states, right to individual self-defense
 After Heller and McDonald
• The Court has done little to define guns rights and limits since Heller and
McDonald

• After each nationally notable homicide or massacre, the discussion about

the Second Amendment becomes loud and intense

• Republicans tend to fiercely defend citizens’ rights to own and carry guns

• Democrats tend to seek stronger restrictions on sale, ownership, and

public possession

• After Sandy Hook, President Obama issued an executive order to keep guns
out of the hands of the mentally disabled Social Security recipients

• President Donald Trump reversed the order in 2017

 Due Process
• Procedural due process - addresses the manner in which the law is
carried out

• Substantive due process - addresses the essence of the law—whether

the point of the law violates a basic right to life, liberty, or property

• Both types apply to the federal and state governments through the Fifth
and Fourteenth Amendments

• Legislatures must define criminal offenses before they are committed

• Government must follow prescribed procedures to ensure

defendants’ right en route a legitimate prosecution
 Procedural Due Process and the Fourth
Amendment
• Fourth Amendment prevents law enforcement from conducting unreasonable search
and seizures
• Courts must issue search warrants and arrest warrants only “upon probable cause”
supported by a witness on record and under oath—must list the place(s) to be
searched and the persons or items to be seized

• Exclusionary Rule - evidence the government finds or takes in violation of the Fourth
Amendment can be excluded from trial—Weeks v. United States
• “fruit of the poisonous tree”
• Mapp v. Ohio (1961) - police broke into Mapp’s Cleveland house in search of a
fugitive suspect and gambling paraphernalia; found no evidence of either but found
some obscene books—Mapp convicted on obscenity charges; Court ruled police had
violated her rights and should have never discovered the illegal contraband
• Exceptions - probable cause searches, consent of the person being searched,
searches in airports
• Inevitable discovery - police find evidence in an unlawful search but would have
eventually made the same discovery in a later, lawful search
• Good faith - police conducted search under the good faith that they were following
the law and thus have not abused or violated the Fourth Amendment
Searches in Schools and the
Digital Age
• New Jersey v. TLO (1985) - Student reported to principal that
another student had been smoking in the restroom—student
was searched and arrested for marijuana, rolling papers,
plastic bags

• Court ruled the search was reasonable

• NSA collecting Metadata is constitutional because it does not

spy on the actual conversation, but collects the cell phone
communication information

• 2015 USA FREEDOM ACT - requires the Executive

Branch to acquire a warrant to examine metadata
Procedural Due Process and the Rights of
the Accused
• Self-incrimination
• Miranda v. Arizona - Miranda arrested for the kidnapping and rape of a girl, impoverished and
uneducated, Miranda confessed after a two hour interrogation—Court declared that Fifth
Amendment applies once a suspect is in custody, police must inform the suspect of his or her
rights
• Public safety exception - questioning an assailant before Mirandizing for the purpose of
neutralizing a dangerous situation and a suspect responds voluntarily, the statement can be
used as evidence

• Right to Counsel
• Betts v. Brady - state did not have to provide counsel in noncapital cases, but did have to when
the defendants were incompetent or illiterate

• Gideon v. Wainwright - every defendant should have an equal chance at a fair trial, and without
an attorney, a defendant does not have an equal chance
• Death Penalty
• Furman v. Georgia (1972) - Court put the death penalty on hold nationally; disproportionate
application of the death penalty to the socially disadvantaged, the poor, and racial minorities
• Gregg v. Georgie (1976) - Court began reinstating the death penalty; No state can make the
death penalty mandatory by law, second phase of trial following a guilty verdict aggravating
and mitigating circumstances must be taken into account—Court has outlawed the death
penalty for mentally handicapped and under 18 at the time of the murder
 Substantive Due Process
• Griswold v. Connecticut (1965) - Court ruled an old anti-birth control state
statute in violation of the Constitution—overturned law even barred
married couples from receiving birth control literature

• Court emphasized right to privacy

• Roe v. Wade (1973) - abortion was a private decision between her and
her doctor—states could not ban abortion for a women during the first
trimester (first three months)

• States passed statutes to prevent abortions at state-funded hospitals

• Adjusted laws to prevent late-term abortions

• Hyde Amendment (1976) - prevents federal funding that might

contribute to an abortion
Civil Liberties and
National Security
 Governmental Restrictions
During Times of War
• Korematsu v. United States - government had exceeded
its proper war powers and internment camps violated the
equal protection clause of the Fourteenth Amendment—
Court applied strict scrutiny and upheld the ability to limit
individual liberties even of a selected group during wartime

• Congress curtailed First Amendment liberties during the

Cold War and during the Vietnam War
September 11 and Executive Branch
Initiatives
• USA PATRIOT ACT intensified government surveillance after 9/11 attacks

• Authorized trials of captured terrorists to take place via military tribunals

rather than civilian courts

• Two options about handling terrorist

• Criminals who violated federal law under the established criminal justice
system—government arrest terrorist and tries them in U.S. district courts
to put them away in prison if convicted

• War against an outside adversary—federal government has fewer

restrictions but still must recognize U.S. law and international treaties

• Depending on the circumstances, the government currently acts in both

ways and employs tactics that critics declare violate the Constitution and
international law
Guantanamo Bay and Interrogations
• U.S. military set up a detention camp at its naval base in Guantanamo Bay, Cuba to
hold terror suspects
• Provided strong security
• Minimal press contact
• Less prisoner access to legal aid

• The right of habeas corpus guarantees that the government cannot arbitrarily
imprison or detain someone without formal charges

• Rasul v. Bush (2004) - because the United States exercises complete authority
over the base in Cuba, it must follow the Constitution

• Hamdi v. Rumsfeld (2204) - Court ruled that the U.S. could not detain a U.S.
citizen without a minimal hearing to determine the suspect’s charge

• Hamdan v. Rumsfeld (2006) - Court found Bush’s declaration that these detainees
should be tried in military tribunals violated the United Staes Code of Military
Justice
 RECONSTRUCTION AMENDMENTS
THIRTEENTH AMENDMENT (1865) abolished slavery
FOURTEENTH (1868) guaranteed citizenship, privileges, and
AMENDMENT immunities, due process, and equal protection

(1870) prevented state denial of suffrage on account

FIFTEENTH AMENDMENT of race

KEY PROVISIONS OF THE CIVIL RIGHTS ACT OF 1964

• Required equal application of voter registration rules (Title I)

• Banned discrimination in public accommodations and public facilities (Titles II and III)
• Empowered the Attorney General to initiate suits against noncompliant schools
(Title IV)
• Cut off federal funding for discriminating government agencies (Title VI)
• Outlawed discrimination in hiring based on race, color, religion, se, or national origin
(Title VII)
Constitutional Provisions
Supporting Equality
 Civil Rights
• Civil Rights - protections from discrimination based on
characteristics of race, national origin, religion, and sex

• They are guaranteed to all citizens under the due process

and equal protection clauses in the Constitution

• A complex body of law shaped by constitutional

provisions, Supreme Court decisions, federal statutes,
executive directives, and citizen-state interactions defines
civil rights in America.
Civil Rights and Slavery
• In the United States, federal and state governments
generally ignored civil rights policy before the Civil War

• The framers left the legal question of slavery up to the states

• Abolitionists, religious leaders, and progressives sought to

outlaw slavery and advocated for African Americans in the
mid-1800s

• Dred Scott v. Sandford ignited support for abolition on a

national level and helped to bring about the Civil War and the
Reconstruction Era
Reconstruction Amendments
• During the Civil War, a Republican-dominated Congress
outlawed slavery and passed legislation to reconstruct the
Union the to protect the freed slaves

• The amendments were ratified by the states, sometimes as a

condition of Southern Staes resuming their delegations in
Congress.

• Thirteenth Amendment

• Fourteenth Amendment

• Fifteenth Amendment
 Fourteenth Amendment and the
Civil Rights Act of 1875
• The Fourteenth Amendment had a host of provisions to protect freed slaves
• Promised U.S. citizenship to anyone born or naturalized in the United
States
• Required states to guarantee privileges and immunities to its own citizens
as well as those from other states
• Due process clause ensured all citizens would be afforded due process in
court as criminal defendants or in other areas of law
• Equal protection clause prohibited state governments from denying
persons within their jurisdiction equal protection of the laws

• Civil Rights Act of 1875

• Made it illegal for privately owned places of public accommodation to
make distinctions between black and white patrons
• Outlawed discrimination in jury selection, public schools, churches,
cemeteries, and transportation
 Restrictions from the
Supreme Court
• Civil Rights Cases (1883) - Court ruled that the equal
protection clause was meant to protect African Americans
against unfair state action and not to guide a shopkeeper’s
service policy

• Jim Crow laws - body of law that segregated the races in

the public sphere

• Plessy v. Ferguson - Homer Adolph Plessy was arrested

and convicted; Supreme Court sided with the state’s right
to segregate the races in public spheres—“separate but
equal”
 Circumventing the Fifth Amendment
• Disenfranchisement - withholding the right to vote

• The South began requiring property or literacy qualifications to vote

• Literacy test - a test of reading skills required before one could vote

• Poll taxes - simple fee required of votes

• Grandfather clause - allowed states to recognize a registering voter as it would

have recognized his grandfather

• Prevented thousands of blacks from voting while allowing illiterate and poor
white to be exempt from the literacy test and poll tax

• White primary - primary in which only white men could vote

• These loopholes did not violate the absolute letter of the Constitution because
they never prevented blacks from voting “on account of race, color, or previous
condition of servitude” as the Fifteenth Amendment prohibits.
The Fourteenth Amendment
and the Social Movement
for Equality
 Citizen Action
• National Association for the Advancement of Colored People (NAACP) -
civil rights organization found in 1909 to promote equal rights for African
Americans

• NAACP filed a case to challenge the grandfather clause—Supreme

Court ruled the practice a violation of the Fifteenth Amendment

• NAACP added a legal team led by Charles Hamilton Houston and

Thurgood Marshall—Legal Defense Fund

• Argued for the Scottsboro Nine—nine black youths falsely accused

of rape—to have the right to counsel in a death penalty case

• Successfully convinced the Supreme Court to outlaw the white

primary
 Desegregating Schools
• The NAACP filed suits to integrate college and graduate schools first and
then k-12 schools

• Missouri ex. Rel. Gaines v. Canada (1938) - NAACP won Llyod Gaines’s
entrance into the University of Missouri’s Law School

• 1950s, the NAACP won decisions against graduate and law schools in
Oklahoma and Texas

• NAACP argued that segregation was morally wrong and that separate
schools were psychologically damaging to black children

• Kenneth and Mamie Clark, sociologist from New York, ran experiments
where black children were shown two dolls identical except for their skin
color. The children chose the white doll when prompted to choose the
“nice doll” and chose the dark-skinned doll when prompted with “looks
bad”
 Outlawing Discrimination
• Martin Luther King Jr. assisted the protests in Birmingham
in 1963

• 200,000 people gathered in the nation’s capital for the

March on Washington

• Mississippi’s NAACP leader Medgar Eves was killed in his

front yard in Jackson

• Birmingham police chief Bull Connor turned fire hoses and

police dogs on peaceful African American protestors
 Presidential Leadership
• President John F. Kennedy became a strong ally for civil
rights leaders

• June 11, 1963 President Kennedy addressed Congress with

a bill proposal that would become the center of controversy
and the most sweeping piece of civil rights legislation to date
• barred unequal voter registration requirements
• prevented discrimination in public accommodations
• empowered the attorney general to file suits against
discriminating institutions
• withhold federal funds from noncompliant programs
• Outlawed discriminatory employment practices
 Public Opinion
• The national media had vividly presented the civil rights
struggle to otherwise unaffected people

• New York Times, Time, and Life published shocking

images of racial violence

• Television news broadcasts showed violence at Little

Rock, slain civil rights workers, and Bull Connor’s
aggressive Birmingham police
 Johnson Takes Over
• Five days after Kennedy’s assassination, Johnson addressed Congress
to pass Kennedy’s civil rights bill as tribute to the slain leader

• On February 10, after the House debated for less than two weeks and
with a handful of amendments, the House passed the bill 290 to 130

• The fight in the Senate was much more difficult

• 42 senators added their name as sponsors to the bill
• After a 14 hour filibuster by West Virginia’s Robert C. Byrd, a cloture
vote was called
• June 19, the civil rights bill passed by 73 to 27, with 21 Democrats and
six Republicans in dissent

• The law was challenged immediately by a Georgia motel owner refusing

service to African Americans—Heart of Atlanta Motel v. United States
(1964): 9:0 vote for Congress
Impact of the Civil Rights Act
of 1964
• Laid the foundation for a new era of equal opportunity, not
just for African Americans but for other groups as well

• Immigration reform bill in 1965 - did away with national-

origin quotas and increased diversity of the U.S. population

• Americans with Disabilities Act 1990 - forbade

discrimination in public accommodation on the basis of
disability

• Cases in today’s news from transgender use of bathrooms

to baking a wedding cake for a same-sex couple
Focus on the Franchise
• 1964 Civil Rights Act addressed discrimination in voting
registration but lacked the necessary provisions to fully
guarantee African Americans the vote

• Twenty-Fourth Amendment: outlaws the poll tax in any

federal, primary, or general election

• March from Selma to Montgomery protested the 1% African

American voter registration in the town with a 50% African
American population

• Voting Rights Act 1965 - empowered Congress and the

federal government to oversee state elections in Southern
states—ended the literacy test
 Provisions in the Voting
Rights Act
• Preclearance - permission from the U.S. Justice Department before enacting
new registration policies

• Federal government could stop new creative loopholes to diminish black

suffrage

• Voting districts could not be drawn to dilute minorities’ voting power

• Majority-minority districts - voting districts in which a minority or group of

minorities make up a majority—Court ruled constitutional to redress
situations where African Americans were not allowed to participate fully

• Shaw v. Reno - ruled redistricting based on race must meet strict

scrutiny—must be a compelling state interest for the law and is necessary
to protect that interest and designed to be as narrow as possible
 Voting Rights Today
• Shelby County v. Holder (2013) - Court struck down formulas
that determines which districts are covered for
preclearance—imposes burdens that must be justified by
current needs

• Since 2011, 13 mostly Republican-dominated states have

introduced voter ID laws

• Conservatives cite very rare instances of voter fraud

• Liberals say the law creates another voting impediment an

unfairly disenfranchise lower socioeconomic groups—
minorities, workers, the poor, immigrants—who typically
vote democrat
Fulfilling the Spirit of
Brown
 Reactions to Brown
• Freedom-of-choice plans - placid the transfer burden on black students
seeking a move to more modern white schools

• Intimidation prevented otherwise willing students to ask for a transfer

• By 1964, only about one-fifth of the schools districts previously

segregated taught whites and blacks in the same buildings

• From 1958 until the mid 1970s, a series of lawsuits—mostly filed by the
NAACP and most resulting in unanimous pro-integration decisions—
brought greater levels of integration in the South and North

• In 1968, Court ruled the freedom-of-choice plans, by themselves, were

not a satisfactory remedy for integration
 Balancing Enrollments
• Swann v. Charlotte-Mecklenburg (1971): Supreme Court approved the
decision of a mathematical ratio as a goal to achieve high levels

• Protesters in Indianapolis, Dayton, Buffalo, Detroit, and Denver

sabotaged buses and used legal means to stop busing

• White flight - white parents transferred there children from city pubic
schools to either private schools or suburban schools—inner cities
became blacker and the surrounding suburbs became whiter

• Milliken v. Bradley - NAACP argued for a multi-school integration

order that assigned racial enrollments and interdistrict busing of
students for racial balance and to combat white flight—Court ruled
that the district boundaries were not drawn for the purpose of racial
segregation, interdistrict busing is not justified by the Brown decision
Women’s Rights
Seeking Women’s Suffrage
• Women’s quest for equal rights began formally at the Seneca Falls
Convention in 1848

• Susan B. Anthony, in direct violation of New York law, walked into a

polling place and cast a vote

• An all-male jury later convicted her

• By 1914, 11 states allowed women to vote

• 1916 election, both major political parties endorsed the concept of

women’s suffrage in their platforms, and Jeanette Rankin of Montana
became the first women elected to Congress

• Nineteenth Amendment guaranteeing women the right to vote was ratified

in 1920
 From Suffrage to Action
• In the early 1920s, an in-depth study of a Chicago election found that 65%
of potential women voters stayed home, responding that either:

• it wasn’t a woman’s place to engage in politics

• that the act would offend their husbands

• Equal Pay Act (1963) - required employers to pay men and women the
same wage for the same job opportunities

• 1964 Civil Rights Act protected women from discrimination in employment

• National Organization for Women (NOW) formed in 1966 by Berry Friedan

—encouraged women to speak their minds, apply to male-dominated jobs,
and organize for equality in the public sphere
 Women and Equality
• 1970s Congress passed legislation to give equal
opportunities to women in schools and on college campuses

• Title IX of the Education Amendments Act of 1972 -

guaranteed that women have the same educational
opportunities as men in programs receiving federal
government funding

• Colleges must make opportunities available based on their

respective full-time undergraduate enrollment

• Schools must try to expand opportunities and

accommodate the interest of the underrepresented sex
Strict Scrutiny and the Equal
Protection Clause
• Women pressed the Supreme Court to give gender-based
laws the same level of scrutiny it required of laws that
distinguish classes of citizens based on race or national origin

• Heightened scrutiny test - law must further an important

government interest and must do so by means that are
substantially related to that interest

• Reasonableness standard - allowing gender bias in certain

situations

• Men are required to register for selective service while

women cannot register
 Equal Rights Amendment
• The amendment was introduced into Congress in 1923 and was
introduced every session of Congress with various degrees of support
until 1972, when it passed both the House and Senate

• 30 of the 38 states necessary to ratify the amendment approved the ERA

within one year

• 35 states had ratified the proposal by the 1982 deadline—the ERA failed

• Traditionalist concerned over the military draft, coed bunking of men

with women, and other potentially delicate matters

• Opponents argued the amendment might hurt women in cases

involving assault, alimony, and child custody
Gay Rights and
Equality
 Seeking Legal Intimacy
• Anti-sodomy laws had been around for more than a century

• 1970s, state laws were passed that specifically criminalized

same-sex relations and behaviors

• Bowers v. Hardwick (1986) - no constitutional protection for

acts of sodomy, and that states could outlaw those practices

• Lawrence v. Texas (2003) - police entered John Lawrence’s

home on a reported weapons disturbance; discovered
homosexual activity which violated Texas’ anti-sodomy law—
Court ruled in favor of Lawrence stating that the law violated
the equal protection clause
 Culture Wars of the 1990s -
Military
• 1990s saw battles over who should serve in the military, to what degree gays
and lesbians should be protected, and which organizations can lawfully
exclude gays

• Military

• In 1917, the Articles of War passed by Congress in 1916 were implemented,

making sodomy illegal

• 1949 - military banned any “homosexual personnel”

• “don’t ask don’t tell” - prevented the military from asking about the private
sexual status of its personnel but also prevented gays and lesbians from
acknowledging or revealing it

• 2010 - Obama administration and Congress removed “don’t ask don’t tell”
 Culture Wars of the 1990s -
DOMA and Discrimination
• DOMA

• Defense of Marriage Act (DOMA) : 1996 law defined marriage at the

national level and declared that states did not have to accept same-sex
marriages recognized in other states

• Barred federal recognition of same-sex marriage for purposes of Social

Security, federal income tax filings, and federal employee benefits

• Discrimination

• 1970s and 1980s, states and cities began passing laws to prevent
discrimination against homosexuals

• SCOTUS did not stop private organizations from discriminating against

gays—Dale v. Boy Scouts of America (1990)
 Same-Sex Marriage
• Since their founding, states have defined and regulated marriage
• Set age limits
• Marriage license requirements
• Divorce law

• If members of the LBGT community could legally marry, they could enjoy the practical tangible
benefits granted to heterosexual couples
• Purchasing a home together
• Inheriting a deceased partner’s estate
• Qualifying for spousal employee benefits

• The first notable litigation occurred in 1971 when Minnesota’s highest court heard a challenge to
the state’s refusal to issue a marriage license to a same-sex couple

• Vermont created the “civil unions” law - declared same-sex couples have all the same benefits,
protections, and responsibilities under law

• November 2004, 11 conservative states proposed ballot measures that a distinct definition of
traditional marriage be added to their state constitutions

• President George W. Bush supported the movement and called for a national amendment
 The Push and Pull for
Marriage Equality
• A coalition of gay rights advocates and legal teams sought to overturn “traditional marriage” laws

• In 2011, polls showed that more than half of the public consistently favored legalizing same-sex
marriage

• President Obama had publicly opposed same-sex marriage during his 2008 presidential campaign
and after

• In May 2012, he publicly supported same-sex marriage—NAACP offered their official

endorsement after Obama and black support for same-sex marriage went from 41 to 59 percent

• Two SCOTUS rulings secured same-sex marriage nationally

• United States v. Windsor - Court saw the injustice of Windsor being required to pay inheritance
tax on her partner’s estate after she passed—DOMA created a disadvantage on same-sex
marriage

• Obergefell v. Hodges (2015) - Court ruled 5:4 that Staes preventing same-sex marriage violated
the Fourteenth Amendment in the Constitution
 Contemporary Issues Since
Obergefell
• The Court has ruled that states cannot deny gays the right to
marry, but not all Americans have accepted the ruling

• Some public officials refused to carry out their duties to issue

marriage licenses—claiming it violated their personal or
religious beliefs

• 2016, about 200 state-level anti-LGBT bills were introduced

• No federal statute has passed protecting LGBT members from

workplace discrimination

• 22 states and the District of Columbia bar refusing

employment or firing employees for being LGBT
 Refusal to Serve and
Religious Freedom
• Depending on the state, businesses might the legal right to refuse service,
especially products or services directly tied to a LGBT wedding

• After Obergefell, a movement sprang up to enshrine in state constitutions

wording that would protect merchants or employees for refusal, particularly if
it is based on the merchant’s religious views

• About 45 of these bills were introduced in 22 states in the first half of 2017

• Masterpiece Cakeshop v. Colorado Civil Rights Commission - Court ruled

in favor of Jack Phillips because of actions seen as wrongdoing by the
Colorado Civil Rights Commission

• Klein v. Oregon Bureau of Labor and Industries - Supreme Court refused

to hear the case that required Klein to pay a $135,000 fine and sent the
case back to the lower courts for review
 Transgender Issues
• Where transgender citizens go to the restroom or what locker room they use
in schools and other government institutions is one unresolved issue

• President Obama’s Department of Education issued a directive after

interpreting language from Title IX that matched their gender identity

• President Donald Trump’s administration has rescinded that interpretation

• The reversal won’t change policy everywhere, but it returns to the states and
localities the prerogative to shape policy on student bathroom use

• U.S. District Judge Arena Wright Allen in Virginia’s district court wrote that
Gavin Grimm’s rights were violated under the U.S. Constitution’s equal
protection clause as well as Title IX when the school board policy required
Grimm to use the girls’ restrooms or private bathrooms
Affirmative Action
 Seeking Diversity
• Affirmative Action - label placed on institutional efforts to diversify by race or gender

• President Kennedy issued an executive order to create the Committee on Equal

Employment Opportunity

• Mandated that federal projects “take affirmative action” to ensure hiring free of
racial bias

• President Johnson required federal contractors to “take affirmative action” in hiring

prospective minority contractors and employees

• Two current schools of thought generally follow a pro- or anti-affirmative action line

• Government institutions and society should follow Brown and later decisions and
be blind to issues of race and gender

• Ask government and the private sector to develop policies that will create parity
by elevating those individuals and groups who have been discriminated against
the past
 Supreme Court and
Affirmative Action
• Colleges and companies have set aside spots for applicants with efforts to accept or hire
roughly the same percent of minorities that exist in a locality or in the nation

• Targets - positive term used for this numeric standard

• Quotas - negative term used for this numeric standard

• Regents of the University of California v. Bakke (1978) - UC-Davis medical school took in
100 applicants annually and reserved 16 spots for minorities and women

• Allan Bakke, a white student, was denied admission and sued arguing that the university
violated the equal protection clause and denied him based on his race—Court sided with
Bakke stating government institutions could not be bound by numerical quotas

• Quotas have a hard time passing the strict scrutiny test

• The Court has ruled different ways in Grutter v. Bollinger and Gratz v. Bollinger on race
based numeric point system at the University of Michigan