Civil Rights, Civil Liberties, and the Judiciary
Civil Rights, Civil Liberties, and the Judiciary
I. Civil Rights
A. What forms of discrimination are illegal?
1. Race / Ethnicity
2. Gender
3. Age
4. Disability
5. Legitimacy of Birth
6. Sexual Orientation???
B. Issues that Determine the Level of Scrutiny (The Test) from the Court
1. Minority Group Status
2. Is the discrimination based upon an unchangeable characteristic or upon a behavior?
3. Do the job qualifications require certain physical attributes or skills?
4. Is the person applying for future gain or is the person being deprived of something already in possession?
C. Federal Civil Rights Legislation
1. Executed through Department of Justice Civil Rights Division and EEOC
2. Civil Rights Acts, Americans with Disabilities Act, Affirmative Action
3. Regulation of Public Accommodations
a. Interstate Commerce Clause
b. Spending Power and State Compliance Grants
c. Rational Basis Test
D. 14th Amendment Cases
1. “Equal Protection” Clause Applies to State Statutes
2. Does the law create a suspect classification?
3. Does the “Equal Protection” Clause Apply to the Federal Government?
4. What level of scrutiny will the Court give to a law that is non-discriminatory on its face but has a discriminatory intent or impact?
5. Is segregation discriminatory?
6. What is the difference between defacto and dejure segregation and/or discrimination?
II. Civil Liberties
A. Individual, Fundamental Rights Protected in Bill of Rights and other Amendments
B. Applied to States through 14th Amendment “Due Process” Clause
on a Case-by-Case Basis
C. Does the Law Violate a Fundamental Right?
D. Should the Court elevate “Privacy” to the status of Fundamental Right?
III. Role of the Judiciary
A. Protect the Minority / Individual from the Tyranny of the Majority
B. Protect the “Democratic Process” in the Political Arena
C. Post-World War II – Actively Promote Civil Rights and Civil Liberties from the Bench
1. Philosophical Crisis of Judicial Activism
2. Promotion of Federal Authority and Ignorance of the 10th Amendment
3. Creation of Political and Economic “Red Tape”
IV. Legal Discrimination of Pre-World War II America
A. Christian White Male Hegemony
B. Economic Suppression of Women and Minorities
C. Psychological Suppression of Women and Minorities
D. Court Inconsistent in Interpretation of “Equal Protection” Clause
E. No Enforcement of Court Decisions that Promoted Civil Rights
1. Congress and State Legislatures Silent
2. Vigilante Groups Intimidation Tactics
F. Impact of the New Deal
1. Direct Federal Economic Aid to Individuals
2. Role of First Lady Eleanor Roosevelt
G. Impact of World War II
1. Nazi Acts of Inhumanity
2. Women – “Rosie the Riveter”
3. Black Soldiers’ Experience in War
4. Race Riots at Home
5. FDR’s Promises of a “Better Day” Post-War
V. Ascertaining the Existence of a Racial Classification (Pre-WW2)
A. No Classification on its Face
B. Segregation Legal as Long as it Applies Equally
C. Plessy v. Ferguson (1896)*****
1. Majority Opinion
2. Harlan’s Dissent
D. Impact of the Plessy Decision
VI. Post WW2 Action
A. NAACP “Test Cases” – Focus on Public Schools
1. Sponsor Litigation
2. Find Willing Clients with Standing
3. Thurgood Marshall
4. Sweatt v. Painter
5. Brown v. Board of Education (1954)*****
6. Bolling v. Sharpe (1954)
7. Brown II (1955)
a. Court Dictum
b. “All Deliberate Speed”
B. Integration of Little Rock Central High School (1957)
C. Martin Luther King, Jr. and Lyndon Johnson
D. MLK – Letter from Birmingham Jail (1963)
1. Defends Non-Violent Protest against Unjust Laws
2. Civil Rights Act of 1964
3. Voting Rights Act of 1965
4. 24th Amendment (1964) Ends Poll Taxes
E. Swann v. Charlotte-Meckenburg (1971)
1. Majority Opinion
2. Impact of Swann Decision
a. Court-Ordered Busing
b. “White Flight” to Private Schools and Suburban School Districts
c. Court Clarifies Remedy to Dejure Segregation only
d. Office of Civil Rights in Department of Justice Created to Oversee School Districts Placed Under Desegregation Orders
i. Use of Spending Power – States Must Provide Remedy to Gain Federal Funds
ii. State of Arizona Defers to School Districts to Raise their Own Funds as Part of the Plan of
Compliance
e. Desegregation cases on Equal Access to Curriculum and Language Acquisition in 1970s and 1980s
E. Bakke v. University of California Board of Regents (1978)
1. No Overt Racial Quotas Permitted
2. “Reverse Discrimination”
F. Desegregation, TUSD, and UHS
1. Creation of UHS
2. Entrance Exam and OCR Oversight
G. Political Issue Today
1. Bush Administration Push to Lift Desegregation Orders
2. Impact on Desegregation Districts
a. Deseg Monies
b. Impact of state Open Enrollment Statutes
c. Charter Schools and Vouchers
H. Overall Impact of Desegregation of Public Facilities
1. Sets Precendents for Legal Action for Women, Persons with Disabilities, Age Discrimination Suits, and Gay Rights Activists
2. Greater Cultural Sensitivity but also a Backlash
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