Transcript Equal protection? - uni

Equal
protection?
From Civil War to Affirmative Action
by Claudia Hartmann, Kerstin Ohler, Caroline Rupp and Rebecca Walz
Equal Protection
Background:
• part of the 14th Amendment to the
United States Constitution
• enacted in 1868, shortly after
the American Civil War
• enacted in response to the Black Codes
Meaning:
• It provides that
"no state shall…
deny to any person
within its jurisdiction
the equal protection
of the laws."
• The Clause restrains only state governments.
Meaning:
• It has no counterpart in the Constitution
applicable to the federal government.
But: Due Process Clause of the 5th Amendment.
Meaning:
• It applies only to government action, not to
action by private citizens.
government action only
Meaning:
• It is only involved where the government
makes a
classification
in a discriminatory
manner
in applying law.
Three Levels of Review:
• Strict Scrutiny
• Middle Level Review
• Mere Rationality Test
Strict scrutiny:
It’s required for any classification that
involves a suspect class:
• race: segregation = physical separation
between the races
• affirmative action = aid for minorities
• alienage
= non U.S. citizenship
Strict Scrutiny:
Fundamental Rights
the right to vote
to be a political candidate
to have access to the courts
to migrate interstate
Middle Level Review:
• It’s easier to satisfy than strict scrutiny
but tougher than mere rationality.
• gender
• illegitimacy = children being born of parents
who are not married to each other
Mere Rationality Test:
• age
• mental condition
• sexual orientation
An example for racial
discrimination:
(1984)
A divorced white woman was awarded custody of her
child until she remarried a black man. The trial court
awarded custody to the father based on the idea that
it was in the best interest of the child to protect the
child from the discrimination and prejudice that would
accompany her remaining with her mother in an
interracial family.
The Supreme Court decided that the Clause was
violated.
An example for alienage:
(1978)
In New York there exists a New York statute in which
people who are legally admitted resident alien of New
York are not allowed to become a part of the police.
The Supreme Court decided that this statute did not
violate the Equal Protection Clause.
German equivalents:
Art. 3 GG – equal treatment
It is only applied to governmental action, not to action
by private citizens.
But the Federal Labour Court has often applied
this article to the rapport of employers and employees.
German equivalents:
Allgemeines Gleichbehandlungsgesetz (AGG)
It’s a federal law which was enacted in August 2006.
It should prevent and abolish unjustified discrimination
because of race, national origin, gender, religion,
view of life, mental condition, age and
sexual orientation.
German equivalents:
It is not applied in every social and legal sector
and doesn’t abolish every kind of discrimination.
• Firstly, it only prohibits discrimination
because of specially named conditions.
• Secondly, the AGG distinguishes between
personal and objective scopes:
Personal and objective
scopes:

Personal scopes are race,
national origin and gender etc.
 Objective scopes include access to
occupation and conditions of employment,
working conditions and conditions of layoff,
education and sexual harassment.
Civil War
1861-1865
Congress
• 1808: It is illegal to import slaves. But
everybody ignores it.
• 1820: Slavery is legal in the South,
but illegal in the rest of the states.
"Fugitive Slave Acts”
1793-1850:
• REPATRIATION
of escaped slaves
"Fugitive Slave Acts”
• professional “catchers”
• heavy punishments
Changes
• Abraham Lincoln
becomes President
• Slaves - a “vital part of the economy”?
Changes
• Southern states leave the Union.
Civil War
• 1865: The North defeats
the South,
slaves are set free.
Spiritual: “Free at last”
“I have a dream today“
“[…] We cannot be satisfied as long as the
Negro's basic mobility is from a smaller ghetto to
a larger one. […]
We cannot be satisfied as long as
a Negro in Mississippi cannot vote and a Negro
in New York believes he has nothing for which to
vote. […]
“I have a dream today“
I have a dream that one day on the red hills of Georgia
the sons of former slaves
and the sons of former slave owners
will be able to sit down together at the table of
brotherhood. […]
“I have a dream today“
I have a dream that my four little children
will one day live in a nation
where they will not be judged by the color of their skin
but by the content of their character.
I have a dream today. […]
“I have a dream today“
And when this happens, […] we will be able
to speed up that day when all of God's children,
black men and white men, […]
Protestants and Catholics,
will be able to join hands and sing in the words
of the old negro spiritual,
Free at last, free at last.
Thank God Almighty, we are free at last.”
Reconstruction
• the attempts from 1865 to 1877 to resolve the
issues of the American Civil War, when both the
Confederation and slavery were destroyed
• addressed the return of the Southern states
that had seceded into the Union, the status of
ex-Confederate leaders, and the Constitutional
and legal status of the African-American Freedmen
Reconstruction
• Violent controversy arose over how to
accomplish those tasks, and by the late 1870s
Reconstruction had failed to equally integrate
the Freedmen into the legal, political, economic
and social system.
• "Reconstruction" is also the common name
for the entire history of the era 1865 to 1877.
Amendment 13
• 1865
• ban on slavery
and involuntary
servitude
Amendent 14
• 1868
• All persons born in the United States are
citizens of the United States and of the
state wherein they reside.
• Every state has to notice the basic rights
of the Bill of Rights.
Amendment 15
• 1870
same voting right for citizens of the United
States regardless of their color, race and
previous condition of servitude.
What is segregation?
• the policy or practice of imposing the social
segregation of races, as in schools, housing,
and industry especially discriminating practices
against nonwhites in a predominantly white
society
(northbysouth.kenyon.edu)
What is segregation?
• de facto segregation:
Segregation that occurs without
state authority, usually on the basis of
socioeconomic factors.
• de jure segregation:
Segregation that is permitted by law.
(Black`s Law Dictionary)
Where does segregation have
its seeds?
• Black codes
• Jim Crow Laws
• Plessy v. Ferguson
Black Codes 1804-1868
The Black Codes were laws passed on the state
and local level in the United States to restrict the
civil rights and civil liberties of black people,
particularly former slaves in former Confederate
states.
Black Codes
for example:
 African-Americans
were not allowed to hold
property or to enter into
contracts or even to
settle down
(e.g. Ohio 1804, Indiana 1851)
Black Codes
 anti-miscegenation
statute (e.g. Indiana 1845)
 reduction of choice of
employment
(e.g. black people were not
allowed to teach)
Black Codes
 prohibition of pleading in
court
The Black Codes were
repealed by the
14th Amendment.
Jim Crow Laws
• a character in an old
song
(„Jump Jim Crow“).
• the term came to be
used as an insult against
black people
• the systematic practice
of promoting the
segregation of Negro
people
Jim Crow Laws (1876-1965)
In a bid to stop black Americans from being
equal, the southern states passed a series
of laws known as Jim Crow laws which
discriminated against blacks.
Jim Crow Laws (1876-1965)
The Jim Crow laws
separated people of color
from whites
• in schools,
• housing,
• public bath houses
Jim Crow Laws (1876-1965)
- jobs, and
• public gathering places.
They required black and white people to use
separate water fountains, restaurants,public
libraries, buses.
Jim Crow Laws (1876-1965)
Plessy v. Ferguson
• In 1892, Homer Plessy
entered a compartment for
white people in Louisiana.
He was asked to sit in a
compartment for colored
people. Because he
declined the offer, he was
arrested.
Plessy v. Ferguson
• A month later he was was found guilty of
breaching the law by the district criminal court
of New Orleans.
• The chief judge in this court was
John Howard Ferguson.
Plessy v. Ferguson
• 1896, Louisiana:
the case was disputed in front of the Supreme
Court of the United States.
• The court had to decide whether the law in Louisiana,
the Separate Car Act, which stated that white and
black had to have seperate compartments, offended
against the Constitution (14th Amendment).
Plessy v. Ferguson
• Decision: (18.05.1896)
The judge said that the spatial separation
between white and black would be matter of fact
and did not offend against the 14th Amendment,
as long as the dispositions were equal.
Plessy v. Ferguson
This decision became the legal basis
for the legitimation of the Jim Crow
laws, which already existed.
"Separate but equal“
"Separate but equal“
Civil Rights Movement
Brown v. Board of Education
• Holding:
Segregation of students in
public schools violates the
Equal Protection Clause of
the Fourteenth Amendment,
because separate facilities are
inherently unequal.
Civil Rights Movement
Brown v. Board of Education
This case overturned the
legal doctrine of "separate
but equal“ declaring the
establishment of separate
public schools for black and
white students inherently
unequal.
Civil Rights Movement
• from 1955 until 1968
• by 1955 black citizens
became frustrated
Civil Rights Movement
• In defiance, these citizens
adopted a combined
strategy of direct action
• with nonviolent resistance
known as civil
disobedience.
• Civil Rights Marchers
Civil Rights Movement
Some of the different forms of civil disobedience
employed included
• boycotts- which began after the
Montgomery Bus Boycott (1955-1956)
in Alabama,
• "sit-ins" as demonstrated by the influential
Greensboro sit-in (1960) in North Carolina, and
• marches,
Civil Rights Movement
• Rosa Parks
(1913-2005)
• In 1955 Rosa Parks
refused to sit in the back
of a segregated bus.
• She got arrested.
• "Mother of the
Modern-Day Civil Rights
Movement".
Civil Rights Movement
• Martin Luther King Jr.
(1929-1968)
• For over 13 months the
Afro-American
population boycotts the
buses.
Civil Rights Movement
bus boycott
The success and influence of the
Montgomery Bus Boycott
also led to Martin Luther King Jr. being one of
the top leaders of the Civil Rights Movement, too.
Affirmative action
• set of actions
designed to eliminate
existing and continuing
discrimination
• to remedy lingering effects of past discrimination
• to create systems and procedures to prevent
future discrimination.
(Black’s Law Dictionary, p. 64)
Affirmative Action
• imposed by Congress, a state, or an
organization (e.g. school board)
• either minority quota,
or special programs directed at
redressing wrongs
Affirmative Action
and the Constitution
• constitutionality is hotly debated and
often questioned
• Is the preference of a special group
constitutional?
To what extent?
Affirmative Action
and the Constitution
• plaintiff:
somebody who feels unfairly treated
• decisions are made on a case-by-case basis
Example Case
Regents of the University of California
v. Bakke, 438 U.S. 265 (1978)
Minorities
“[…] group that is different in some respect […]
from the majority and that is […] treated differently
as a result; […]
It may also be applied to a group that has been
traditionally discriminated against
or socially suppressed, even if its members are
in the numerical majority in an area.”
(Black’s Law Dictionary, p. 1017)
Minorities
• African Americans
• Native Americans, Mexican Americans
• Inuit? Asian Americans?
• all members vs. only a few?
Discrimination
“1. The effect of a law or established
practice that confers privileges on a
certain class or that denies privileges to
a certain class because of race, age,
sex, nationality, religion, or handicap. [...]
Discrimination
“2. Differential treatment; esp., a failure to treat
all persons equally when no reasonable
distinction can be found between those
favored and those not favored.”
(Black’s Law Dictionary, p. 500)
Discrimination
Which definition should be followed?
How to “prove” discrimination, especially historical
discrimination?
Reverse Discrimination?
Does preference of minorities
lead to discrimination against the majority?
differentiation between cases necessary
• situations where except for the race or
ethnic background, all conditions are equal
affirmative action discriminates and is
unconstitutional
Reverse Discrimination?
situations where conditions are not equal
due to past discrimination
if no other remedial measures are available,
affirmative action within limits is constitutional
Reverse Discrimination?
• Facially neutral
affirmative action?
• Arbitrary application of neutral rules?
• “Punishing” individuals
by making them bear the burden
of affirmative action without
their fault?
Political and Social Problems
• no proof that affirmative action attains its goals
• may lead to feelings of inferiority
• disadvantages those who live
in the same conditions but do not fall under the
criteria of affirmative action
Political and Social Problems
• leads to decisions on an individual level
• may create feelings of hatred and prejudice
Major Case Groups
• educational:
e.g. minority quota in college admissions
(Regents of the University of California
v. Bakke, 438 U.S. 265 (1978))
Major Case Groups
• employment:
e.g. employment policies that actively
prefer minorities
Major Case Groups
• building contracts from federal money which
stipulate that a certain percentage has to be
contracted to
Minority Business Enterprises (MBEs)
(City of Richmont v. J.A. Croson Co., 488 U.S. 469,
1989; Adarand Constructors, Inc. v. Pena, 515 U.S.
200, 1995)
Example Case
Taxman v. Board of Education, 91 F.3d
1547 (3rd Cir. 1996)
Any
questions
?