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Chapter 5

Equal Rights: Struggling toward Fairness

Learning Objectives

Having read the chapter, the students should be able to do each of the following:

1. Distinguish between civil liberties and civil rights, and determine whether constitutional devices intended to provide equality under the law have been successful.

2. Describe the impact and evolving interpretation of the Fourteenth Amendment on individual equality.

3. Detail the provisions of the Civil Rights Acts of 1964 and 1968, and the Voting Rights Act of 1964, and describe the debate over and current state of affirmative action.

4. Distinguish among reasonable basis, strict scrutiny, and intermediate (or almost suspect) scrutiny, and comment on the implicit assumptions about appropriate means and ends that underlie each.

5. Trace the development of measures to promote racial equality in America, concentrating on the most significant milestones and analyzing the actions that proved necessary in order to achieve them.

6. Discuss the similarities and differences among the dilemmas faced, strategies implemented, and rewards gained by the respective struggles for African Americans, women, and other historically disadvantaged groups in the United States.

Chapter Outline

I. Equality through Law

A. The Fourteenth Amendment: Equal Protection

1. Segregation in the Schools

2. Judicial Tests of Equal Protection

B. The Civil Rights Act of 1964

1. The Black Civil Rights Movement

2. The Movement for Women’s Rights

3. Hispanic Americans and the Farm Workers’ Strikes

4. Native Americans and Their Long-Delayed Rights

5. Asian Americans and Immigration

C. The Voting Rights Act of 1965

D. The Civil Rights Act of 1968

E. Affirmative Action

II. The Continuing Struggle for Equality

A. African Americans

B. Women

C. Native Americans

D. Hispanic Americans

E. Asian Americans

F. Gays and Lesbians

G. Other Disadvantaged Groups

III. Discrimination: Surface Differences, Deep Divisions

Focus and Main Points

The focus of this chapter is on civil rights and equality. All individuals have the right of equal protection of the laws and equal access to society’s opportunities and public facilities. This chapter examines the major laws relating to equality, and the conditions that led to their adoption. The chapter concludes with a brief look at some of the continuing challenges facing America’s historically disadvantaged groups. The chapter emphasizes these points:

• Americans have attained substantial equality under the law. In purely legal terms, although not always in practice, they have equal protection under the laws, equal access to accommodations and housing, and an equal right to vote. Discrimination by law against persons because of race, sex, religion, or ethnicity has been virtually eliminated

• Legal equality for all Americans has not resulted in de facto equality. African Americans, women, Hispanic Americans, and other traditionally disadvantaged groups have a disproportionately small share of America’s opportunities and benefits. However, the issue of what, if anything, government should do to deal with this problem is a major source of contention.

• Disadvantaged groups have had to struggle for equal rights. African Americans, women, Native Americans, Hispanic Americans, Asian Americans, and a number of other groups have had to fight for their rights in order to achieve a fuller measure of equality.

Chapter Summary

During the past half-century, the United States has undergone a revolution in the legal status of its traditionally disadvantaged groups, including African Americans, women, Native Americans, Hispanic Americans, and Asian Americans. Such groups are now provided equal protection under the law in areas such as education, employment, and voting. Discrimination by race, sex, and ethnicity has not been eliminated from American life, but it is no longer substantially backed by the force of law. This advance was achieved against strong resistance from established interests, which only begrudgingly and slowly responded to demands for equality in law.

Traditionally disadvantaged Americans have achieved fuller equality primarily as a result of

their struggle for greater rights. The Supreme Court has been an instrument of change for disadvantaged groups. Its ruling in Brown v. Board of Education (1954), in which racial segregation in public schools was declared a violation of the Fourteenth Amendment’s equal-protection clause, was a major breakthrough in equal rights. Through its affirmative action and other rulings, such as those providing equal access to the vote, the Court has also mandated the active promotion of social, political, and economic equality. However, because civil rights policy involves large issues concerned with social values and the distribution of society’s opportunities and benefits, questions of civil rights are inherently contentious. For this reason, legislatures and executives have been deeply involved in such issues. The history of civil rights includes landmark legislation, such as the 1964 Civil Rights Act and 1965 Voting Rights Act.

In more recent decades, civil rights issues have receded from the prominence they enjoyed during the 1960s. The scope of affirmative action programs has narrowed, and the use of forced busing to achieve racial integration in America’s public schools has been nearly eliminated. At the same time, new issues have emerged, including the question of whether same-sex couples will have the same rights as opposite-sex couples.

The legal gains of disadvantaged groups over the past half-century have not been matched by material gains. Although progress in areas such as education, income, and health care have been made, it has been slow. Tradition, prejudice, and the sheer difficulty of social, economic, and political progress stand as formidable obstacles to achieving a more equal America.

Major Concepts

equal rights, or civil rights

The right of every person to equal protection under the laws and equal access to society’s opportunities and public facilities.

equal-protection clause

A clause of the Fourteenth Amendment that forbids any state to deny equal protection of the laws to any individual within its jurisdiction.

reasonable-basis test

A test applied by courts to laws that treat individuals unequally. Such a law may be deemed constitutional if its purpose is held to be “reasonably” related to a legitimate government interest.

strict-scrutiny test

A test applied by courts to laws that attempt a racial or ethnic classification. In effect, the strict-scrutiny test eliminates race or ethnicity as a legal classification when it places minority-group members at a disadvantage.

suspect classifications

Legal classifications, such as race and national origin, that have invidious discrimination as their purpose and therefore are unconstitutional.

affirmative action

Refers to programs designed to ensure that women, minorities, and other traditionally disadvantaged groups have full and equal opportunities in employment, education, and other areas of life.

de jure discrimination

Discrimination on the basis of race, sex, religion, ethnicity, and the like that results from a law.

de facto discrimination

Discrimination on the basis of race, sex, religion, ethnicity, and the like that results from social, economic, and cultural biases and conditions.

Lecture Outline

This lecture outline closely follows the text in its organization. The instructor can use this outline as a lecture aid.

• In recent years some television shows and civil rights groups have conducted experiments documenting widespread racial discrimination. The focus of this chapter is on equal rights, or civil rights.

I. Equality through Law

The Fourteenth Amendment’s equal protection clause is used by the courts to protect minorities from discrimination by government. The Brown v. Board of Education of Topeka ruling invoked the equal protection clause to bring about equality of schooling. There are three judicial tests associated with government actions that treat classes of individuals (e.g. African Americans and whites) differently.

• The reasonable basis test allows inequality under the law if it is legitimately related to a governmental interest. For example, the courts have upheld laws that impose higher taxes on individuals of higher income.

• The strict scrutiny test holds that laws discriminating on the basis of racial and ethnic categories create suspect classifications, which are of dubious constitutionality.

• There is a third “intermediate” category (for “almost suspect” classifications) that falls between the two above tests in rigor, and has been applied in sex discrimination cases.

The Civil Rights Acts of 1964 and 1968 and the Voting Rights Act of 1965 have greatly aided the struggle of minorities for equal rights, particularly in accommodations, jobs, and housing.

• The black civil rights movement created the momentum for the passage of the Civil Rights Act of 1964.

Other disadvantaged groups have fought long battles to achieve greater rights.

• Women achieved passage of the Nineteenth Amendment in 1920, gaining the right to vote. Attempts to pass the Equal Rights Amendment were successful in Congress, but the required number of states failed to ratify.

• Hispanic Americans also fought for rights; the centerpiece of their struggle was the farm workers’ strikes of the late 1960s and the 1970s, which sought labor rights for migrant workers.

• Native Americans were not made full citizens until 1924, and it was not until the 1968 Indian Bill of Rights that they were provided the same constitutional guarantees as other Americans. After protests in the 1970s, Native Americans were granted greater control over the federal programs that affect them.

• Restrictions on Asian immigration were lifted in 1964, and Asian Americans benefitted from the Civil Rights Act of 1964. Asian Americans have benefitted from Supreme Court action that improved education for students that do not speak English as a first language.

The Voting Rights Act of 1968 has greatly improved the equality of voting opportunity, and had been renewed three times by Congress.

The Civil Rights Act of 1968 made illegal discrimination in housing policy or practices.

Practical implementation of this concept holds that it is not enough to fight de jure discrimination, but that de facto discrimination must be fought as well.

• Affirmative action aims to convert legal rights (for example, equal job access) into reality. Affirmative action has helped minorities to some degree, but has been resisted by some interests for reasons of prejudice, politics, or philosophy (for example, it is claimed to discriminate substantially against white men). The Bakke case approved affirmative action, but the Supreme Court ruled racial quotas impermissible. The Court, in Adarand v. Pena, continued to narrow and restrict government affirmative action programs. Some states are limiting affirmative action in college admissions.

• The policy of busing attempts to compensate for decades of racial discrimination and to overcome patterns of residential segregation; however, busing (the transporting of students to enhance racial balance) is not popular with many Americans.

• In the past decade or so, the U.S. government has undertaken no large-scale new efforts to eradicate de facto discrimination from American society.

II. The Continuing Struggle for Equality

All disadvantaged minorities have had to fight for legal equality.

• The dream of equal society for African Americans remains elusive. Poverty is a persistent problem, as is the disintegration of the black family. Studies show that the legal rights of blacks are unequal as well, particularly with regard to treatment by the criminal justice system.

• Women have long been victims of discrimination. Their recent legal gains have been substantial, despite the fact that the ERA was not ratified; there has also been substantial progress in electoral representation. Even so, they have not achieved equality of pay with men, and are far more often saddled with the burden of running single-parent families.

• Native Americans have been badly discriminated against since the first European settlers arrived in the New World. Recent federal policy has been aimed at giving Native Americans more control over their affairs on treaty lands, and Native Americans have won a few legal challenges to reclamation of ancestral lands. Even with gains, Native American incomes and health levels remain far below the national average.

• Hispanic Americans have become the largest racial-ethnic minority and are becoming increasingly important politically; however, the illegal alien status of many Hispanics remains a complicating factor.

• Asian Americans have been discriminated against since they first came to America due to immigration and language issues. Today they are marked as an upwardly mobile group that emphasizes education, though they remain underrepresented politically.

• Gays and lesbians have achieved legislative victories that guarantee equality and have ended laws prohibiting sexual relations between same-sex partners. There have also been legal setbacks, and the issue of gay marriage continues to be a highly controversial one.

• Current discrimination issues are also the concern of the disabled and the elderly.

III. Discrimination: Superficial Differences, Deep Divisions

• Persistent discrimination continues in America.

• The Swedish sociologist Gunnar Myrdal has called discrimination “America’s curse.”

Complementary Lecture Topics

Below are suggestions for lectures or lecture topics that will complement the text. In general, these topics assume that students have read the chapter beforehand.

• The concept of equality of result calls for active government intervention, not just to remove legal discriminatory barriers, but to compensate for past injustices. At the same time, the traditional American concept of individualism calls for equality of opportunity, which implies that certain individuals will fail, while others will succeed. Are these notions of equality incompatible?

• The reasonable basis test and the strict scrutiny test are standards that apply to laws that treat individuals differently based on the groups to which they belong. Evaluate the assumptions underlying each test and the usefulness of each test in promoting social goals.

• Use the different experiences of men and women, African Americans and whites, and so on to assess the foundations of discrimination and the need for laws to address the problem.

Class Discussion Topics

1. Ask the class if they believe the equal-protection clause is too broad, given the persistent need throughout American history for the Supreme Court to enforce it by ruling on a variety of discriminatory practices. Has the equal protection clause of the Fourteenth Amendment lived up to its promise, or will further action by bodies like the Supreme Court be necessary?

2. Acquaint your class with the differences between the civil rights movement of the 1950s and 1960s (racial equality) and the equal rights movement of the 1970s (gender equality). Look at the dynamics of the two movements that affected their comparative successes and shortcomings. You might apply the dynamics for change in status to current efforts to prevent discrimination against gays, lesbians, and bisexuals.

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