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Chapter 15 |
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Although Americans believe in equality in the abstract, they mean equality of opportunity, not equality of results. As issues shift toward actual results such as the distribution of jobs, the politics of equality becomes much more heated. A related issue is whether equality is to be defined as a group right and not just in terms of fair treatment of individuals.
Slavery, Segregation, and the Constitution
The original Constitution recognized and protected slavery. Article I provided slaves be counted as three-fifths of a person for purposes of representation and taxation. The importation of slaves was permitted until 1808. Article VI even provided for the forcible return of escaped slaves to their owners, a practice upheld by the notorious Supreme Court case of Dred Scott v. Sanford (1857).
The slavery issue and the abolition movement were central to the forces leading to the Civil War. During the war, as casualties mounted, Lincoln came under pressure to free slaves as a way of undermining the Southern war cause. The Emancipation Proclamation was a political and military action by the president intended to help preserve the Union. The Thirteenth Amendment outlawed slavery, the Fourteenth guaranteed equal protection under the laws, and the Fifteenth guaranteed to the right to vote. The Reconstruction Congress also passed civil rights legislation that for a while improved conditions and rights for African Americans. However, in the Compromise of 1877 the federal government ended military occupation of the South and a long period of re-consolidation and even extension of segregation followed, enforced by Jim Crow laws. In Plessy v. Ferguson (1896) the Court upheld the practice of separate but equal facilities. In practice, white facilities were routinely superior. It was not until the 1954 case of Brown v. Board of Education of Topeka that the principle of separate but equal was held to be unconstitutional.
Equal Protection of the Laws
The initial goal of the civil rights movement was to end legalized segregation particularly in the public schools. Led by Thurgood Marshall, later a Supreme Court justice, the National Association for the Advancement of Colored People (NAACP) conducted a long legal battle against the separate-but-equal doctrine, culminating in Brown v. Board of Education of Topeka (1954). Actual integration of public schools was slow in coming, in spite of this decision. It was not until 1969 that the Supreme Court, fed up with state resistance to implementation, dropped its "deliberate speed" standard in favor of one requiring integration "at once." This led to a period in which federal district judges mandated school redistricting, busing, and other measures aimed at ending racial separation. "White flight" from urban areas and other factors meant de facto segregation remained or even increased. Moreover, the courts upheld cross-district busing only when past official action could be shown to have brought about segregated education. Swann vs. Charlotte-Mecklenberg County Board of Education (1971) upheld court-ordered busing, assigning pupils to schools based upon race to achieve racial balance, and gerrymandering school districts to achieve racial balance.
The Civil Rights Acts
As the civil rights movement moved to remove discrimination in the private sector, it had to turn to Congress. Leadership in this new phase of the movement was provided by Martin Luther King, Jr., a young African American minister. From 1957 until his assassination in 1968, Reverend Martin Luther King led a nonviolent civil rights movement, which had great impact on the nation. Nationally televised beatings of civil rights demonstrators at the hands of Birmingham, Alabama, police set off demonstrations across the country, symbolized by the massive March on Washington by a quarter of a million people in 1963. Subsequently, Congress passed the Civil Rights Act of 1964 by over a two-thirds majority, with the following provisions:
The Civil Rights Act of 1968, passed partly in sympathy with the death of Martin Luther King, extended anti-discrimination policy to the area of housing.
Equality: Opportunity Versus Results
In spite of the civil rights movement and civil rights legislation, inequality among the races persists. Compared to whites, African American incomes today are only at 62 percent. Over 20 percent of all African American families live below the poverty line compared to 10 percent of whites. Black unemployment is twice as high as whites. While both blacks and Hispanics have improved their economic conditions, the disparity between whites and minorities remains the same. Even taking in educational improvements, minority and white college and high school graduates incomes are widely separated. Because of persisting problems, some advocate continuing affirmative action, giving hiring or other preferences to minorities. While avoiding formal quotas, the federal government measured the success of its programs in terms of changes in proportions of minorities hired, admitted, or housed. Over time, affirmative action became increasingly unpopular among whites, who saw in affirmative action a disregard of merit principles and a form of reverse discrimination.
Affirmative Action in the Courts
In University of California Regents v. Bakke (1978), the Supreme Court heard a "reverse discrimination" case and ordered the University of California to admit to its medical school a white applicant with credentials superior to some minority students admitted under an affirmative action program. Still, early court cases often supported affirmative action (for example, United Steelworkers of America v. Weber, 1979) but more recent decisions indicate a shift. In City of Richmond v. Crosen Co. (1989) the Supreme Court held unconstitutional a minority set-aside program reserving 30 percent of city construction contracts for minorities.
The meaning of this shift is far from clear, however, except in so far as it indicates affirmative action plans will undergo strict court scrutiny. General tendencies of recent court opinions make affirmative action more likely to be upheld if it is exercised in response to a past proven history of discrimination, if there is no absolute bar to men or whites competing or participating, if there is a "compelling governmental interest," and if it is "narrowly tailored" to achieve this interest, and uses the "least restrictive" means available. In Wards Cove Packing Company v. Antonio (1989) the Supreme Court held by 5 to 4 that statistical evidence of racial or gender differences in the workplace were not sufficient by themselves to prove discrimination. The Court placed the burden of additional proof upon the plaintiffs. The Civil Rights and Women's Equity Act of 1991 reversed this, requiring employers to bear the burden of proof that statistical differences associated with disparate impact by race or gender were necessary. Nonetheless, white public opinion continued to turn more and more against affirmative action.
Affirmative Action and "Diversity" in Higher Education
Most colleges and universities in America believe diversity among its student body is an intellectually enriching environment. However, how to achieve this diversity has created problems and lawsuits. Here again, the Supreme Court has held that racially favorable treatment must be found necessary to advance a "compelling government interest" and must be "narrowly tailored." In 2003 the Court held that diversity may be a compelling government interest, but that race may not be the decisive factor in undergraduate admissions but may play a "plus" factor. The three largest population states -- Texas, California and Florida -- offer preference to students who finish near the top of their high school graduating class.
While the Court has failed to establish a clear Constitutional principle in regards to affirmative action, there are general tendencies that can be drawn. Programs are likely to be found constitutional when:
Passage of the California Civil Rights Initiative of 1996 added a ban on preferential treatment to the state's constitution. This initiative was later declared constitutional by the Supreme Court. Washington State passed similar legislation in 1998, and in 2000, Florida Governor Jeb Bush used an executive order to ban racial preferences in state contracts and university admissions.
Hispanics in America
The largest minority group in the U.S. is now Hispanics, who comprise 12.5 percent of the U.S. population, with the largest subgroup being Mexican-Americans, many of whom recently migrated to the United States. As a group, they are lower in income and education than whites, and higher in unemployment. Note that Puerto Ricans have a special status, since the Commonwealth of Puerto Rico is a U.S. territory, Puerto Ricans are U.S. citizens. New York has attracted many Puerto Ricans, who, as a group, have fared less well than other Hispanic groups. Cuban Americans comprise the third largest subgroup of Hispanics and mainly reside in south Florida. Each group has its own unique history and political goals.
Hispanic Politics
Politically, Hispanic groups vary greatly, from higher-education, higher-income, more Republican Cuban Americans to lower-education, lower-income, more Democratic Mexican Americans. Hispanic influence is greatest in the Southwestern states on California, Texas, Arizona, New Mexico, and Colorado. Hispanic civil rights activities began in the 1960s under Cesar Chavez and his United Farm Workers union. His La Raza movement inspired Mexican Americans to become politically active. The Immigration Reform Act of 1986 gave amnesty to undocumented workers who had entered the U.S. prior to 1982. However, voter turnout among Hispanics remains weak. Low voter turnout may possibly be due to language barriers or the presence of low education and income levels. Nonetheless, Hispanic voting has been increasing and candidates from both parties are well aware of the importance of the Hispanic vote.
Overall Hispanics identify with the Democratic Party although Cuban Americans have tended to vote Republican. The Voting Rights Act extends protection to language minorities.
Native Americans: Trail of Tears
From the time Columbus incorrectly identified the natives of the Western Hemisphere as Indians, the Native American peoples have been devastated. Their population fell by 90 percent after the arrival of Europeans and today comprises less than 1 percent of the U.S. population. The Northwest Ordinance of 1787 declared "The utmost good faith shall always be observed toward the Indians. Their lands and property shall never be taken from them without their consent." The Intercourse Act of 1790 said Indian land could only be taken by treaty. In spite of numerous treaties, however, Indian lands were routinely invaded and taken by whites, often by use of force to overcome Native American resistance.
In 1854, pressured by railroad interests, the federal government abolished much of the former Indian Territory to create the Kansas and Nebraska Territories. In the "Indian Wars" between 1864 and 1890, the U.S. Army ousted remaining Native Americans, relocating them on much-reduced reservations administered by the new Bureau of Indian Affairs. The last battle was that at Wounded Knee Creek in 1890, when the last tribe of Sioux were wiped out.
The Dawes Act of 1887 set Native American policy for decades, breaking up their lands, encouraging farming rather than hunting, replacing native languages with English, and in general promoting assimilation and destruction of traditional life. Native Americans became the poorest racial group in the United States.
The Indian Reorganization Act of 1934 was FDR's effort to restore Native American tribal structures. Tribal councils were recognized as legal governments, land ownership was restored, and assimilation efforts were largely abandoned. The Bureau of Indian Affairs remained interventionist, however, and in the 1950s Congress initiated a policy of paying tribes to terminate their sovereignty rights.
Few Indian tribes chose termination in the 1950s, and those who did saw impoverishment follow. In the 1960s the American Indian Movement (AIM) helped revitalize Native American culture. Some were able to sue successfully for compensation and return of lands under old treaties. The Supreme Court upheld various sovereignty rights of the tribes. Symbolic victories were achieved, such as the election of Ben Nighthorse Campbell to the U.S. Senate, the first Native American to serve. Native Americans, however, remain the poorest and least healthy racial group in the country. Gambling on Indian reservations is a controversial contemporary issue.
The Rights of Disabled Americans
Disabled Americans were not protected under the Civil Rights Act of 1964. The Americans with Disabilities Act of 1990 prohibited discrimination against the disabled in employment, government programs, accommodations, and telecommunications. Although progress has been made, its vague wording has undercut enforcement. Mental and learning disabilities are also covered under the ADA, and this has led to a dramatic increase in the number of college students claiming "learning disabilities."
Gender Equality and the Fourteenth Amendment
Although the text of the Fourteenth Amendment implies its intent to guarantee equality for newly freed slaves, its wording does not clearly bar gender differences in the law. The feminist movement grew out of the pre-Civil War anti-slavery movement. Early activism pushed for protection on women in families. In the 20th century the movement worked for women's suffrage. The U.S. Constitution does not currently contain an Equal Rights Amendment that would specifically prohibit gender discrimination. However, the Supreme Court has become responsive to arguments that sex discrimination might violate the Equal Protection Clause of the Fourteenth Amendment, and many important guarantees of equality for women have been implemented with federal legislation rather than the Constitution.
Gender Equality in the Economy
Women have increasingly participated in the labor force. This movement into the labor force precipitated a shift in feminist political activity toward a concern with economic issues, specifically gender equality in education, employment, pay, promotion, and credit. To address these issues, Title VII of the Civil Rights Act of 1964 prevented sexual (and racial) discrimination in hiring, pay, and promotions; the Federal Equal Credit Opportunity Act of 1974 prohibited sex discrimination in credit transactions; and, Title IX of the Education Act Amendment of 1972 prohibited sex discrimination in education. Despite protections under federal laws, on average women continue to earn about 76 percent of what men do. This disparity has been attributed to the existence of wage gaps in traditionally male versus traditionally female jobs, and has led to the argument that comparable worth should be the determinant of pay, rather than the labor market. This disparity can also be understood with reference to invisible, subtle barriers in the workplace known as glass ceilings that inhibit advancement for women.
Inequality and the Constitution
Governments in the U.S. are not under any constitutional requirement to eliminate inequalities in income or wealth. The Founders, themselves members of the elite of their day, opposed "dangerous leveling" and strongly supported property rights. There was and is no legal right to jobs, health care, education, or other economic results that is guaranteed by the U.S. Constitution. Moreover, the Supreme Court has upheld disparities that arise in funding for education and other services that are based on local property tax revenue. At the national level, federalism has allowed great disparities to exist between the states.
Governments are required by the Equal Protection Clause to treat all persons "similarly situated" equally, yet the Supreme Court has also upheld "reasonable classifications" along income, age, illness, and other categories. When government establishes reasonable eligibility standards for a federal benefit, all qualified persons may enjoy these benefits, but they are not Constitutional rights. Nor can one demand that government provide what is necessary to exercise rights: poor women, for example, have no Constitutional right to Medicaid funds to exercise the right to an abortion. The Supreme Court thus far has held that policies flowing from income disparities, as between what rich and poor school districts may do in providing educational benefits, do not constitute a violation of the Equal Protection Clause. However, some state supreme courts have ruled the same disparities violate state constitutional guarantees.
Chapter Objectives
After mastering the concepts in this chapter, you will be able to
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