Chapter 14: Civil Rights
In 1957, the U.S. Commission on Civil Rights was established to investigate acts
of discrimination regarding race, color, religion, sex, age, disability, or national
origin. Subsequent civil rights legislation was generally grounded in the equal
protection clause of the Fourteenth Amendment and more specifically laid out in
laws passed by Congress, such as the 1964 Civil Rights Act.
The Context of Civil Rights
Civil liberties refer to the freedoms guaranteed in the Bill of Rights, such as
the freedom of speech or religion. Civil rights protect all persons from discrimination
both by the government and other individuals.
- African Americans
- The most divisive civil rights issue with the greatest long-term impact has been
slavery and its legacy. The 1860 census shows that there were 2.3 million slaves
in the Deep South (47 percent of the population), and 4 million slaves overall.
- The Missouri Compromise of 1820 was an agreement passed by Congress
in an attempt to ease tensions by limiting the expansion of slavery while also maintaining
the balance between slave states and free states. The Compromise of 1850 overturned
the Missouri Compromise and allowed each new state to decide for itself whether
to be a slave state or a free state. All possibility of further compromise was killed
by the Dred Scott v. Sanford decision in 1857, in which the Supreme Court
ruled that states could not be prevented from allowing slavery, and that slaves
were property with no legal rights.
- When Lincoln became president in 1860, southern states feared the criminalization
of slavery, so they seceded from the Union to create the Confederacy.
- The Civil War restored national unity and ended slavery. The Civil War amendments
ensured progress for African Americans: the Thirteenth banned slavery, the Fourteenth
guaranteed that states could not deny the newly freed slaves equal protection under
the law, and the Fifteenth gave African Americans the right to vote.
- Despite the passing of these amendments, blacks were almost completely disenfranchised,
or denied the ability to exercise a right (in this case, to vote).
- The grandfather clause was enacted in several southern states to
allow those who had been able to vote before the Civil War, and their descendents,
to bypass literacy tests and other obstacles to voting, thereby exempting whites
from these tests while continuing to disenfranchise African Americas and other people
- The Civil Rights Acts of 1866 and 1875 were supposed to outlaw segregation and provide
equal opportunity for blacks, but there were not enforcement provisions.
- When Reconstruction ended in 1877, southern states enacted “black codes” or
Jim Crow laws, state and local laws that mandated racial segregation in
all public facilities in the South, many border states, and some northern communities
between 1876 and 1964.
- The Supreme Court validated these practice in Plessy v. Ferguson (1896)
in establishing the “separate but equal” doctrine, the idea that
racial segregation was acceptable as long as the separate facilities were of equal
- In the several decades that followed Reconstruction, the rest of the nation ignored
the plight of blacks because 90 percent of all African Americans lived in the South.
As blacks began to migrate northward, racial politics changed.
- Progress was slow, but it began in the 1940s. Brown v. Board of Education
(1954) rejected “separate but equal” and Brown II (1955) ordered that public
schools be desegregated.
- Latinos, Asians, and Native Americans
- One way to gauge the awareness of different racial and ethnic groups (if not their
acceptance) is to track the addition of racial categories in the U.S. Census: Native
Americans (1860), Chinese (1870), Japanese (1890), Asian and Pacific Islander (1910),
- The method for collecting information about race has changed over the years. Before
1960, the census taker identified a person’s race according to Census Bureau guidelines.
Since 1980, people have identified their own race on census forms. In 2000, people
were first allowed to check more than one racial category to reflect the growing
reality of a multiracial United States.
- Each racial and ethnic group in the United States has a different history of interactions
with the majority white population. The majority population has done some awful
things to minorities in addition to the civil rights abuses of African Americans,
from the systematic eradication and removal of Native Americans from the East and
Midwest, to battles with and discrimination against Mexicans in the Southwest, to
the poor treatment of Asian Americans on the West coast and then their internment
during World War II.
- Women and Civil Rights
- Women were not given the right to vote until 1920, when the Nineteenth Amendment
was ratified. The fact that women held very few rights was rationalized through
protectionism, the idea that some groups, like women or African
Americans, should be denied certain rights for their own safety or well-being.
A Color-Blind Society?
Civil rights issues remain important today because: (1) the effects of slavery and
the Jim Crow laws are still quite evident, and (2) active discrimination is still
evident in our society today.
Those who take the position that we must “move beyond race” argue that we already
have achieved a level playing field on which people of different races have equal
opportunities to succeed. They argue that efforts to make up for past discrimination
only perpetuate racial discrimination by classifying people based on race.
Others see race as central in everyday life for racial minorities. Discrimination
is far too common in the United States and clearly indicates that we have not reached
the color-blind (or gender- and sexual orientation–neutral) society desired by advocates
of civil rights.
The Racial Divide Today
The political, social, and economic condition of racial minorities is not as good
as it is for whites. The political divide is mostly evident in lower levels of voter
turnout among racial minorities relative to whites. While different ranges of voter
turnout can by accounted for by education and income, there are many examples of
practices and institutions designed to depress minority turnout.
The racial divide is also evident in social and economic terms. Nearly three times
as many black families are below the poverty line as white families. The average
white household has nearly six times the assets of a typical nonwhite family. Poverty
is not distributed equally throughout the United States, but rather is concentrated
in areas where the minority population is the highest.
The rate of black, adult male unemployment has been about twice as high as that
of white adult males for the past forty-five years. Furthermore, on every measure
of health--life expectancy, infectious diseases, infant mortality, cancer rates,
heart disease, and strokes--the gaps between whites and blacks are large, and in
many cases, they are growing.
The greatest disparity between racial minorities and whites may be in the criminal
justice system. Blacks are not only more likely than whites to be convicted for
the same crimes, but blacks also serve longer sentences than whites for committing
the same crime. African Americans and minorities are also subjected to hate crimes
much more frequently than whites.
The Policy-Making Process and Civil Rights
Our system of separated and shared powers almost ensures that each of the three
branches has some say in making policy. The policy-making process in the area of
civil rights provides insight into the importance of federalism. While the national
government was instrumental in winning equality for blacks, state and local governments
have taken the lead role in fighting for gay rights.
- Social Movements
Activists have been instrumental in pressuring the political system to change its
civil rights policies. The civil rights movement of the 1950s and 1960s, aimed at
ending segregation and gaining equal political and social rights for blacks, is
the most famous example of a successful social movement.
- Nonviolent Protest
- During the civil rights movement of the 1950s and 1960s, the Student Nonviolent
Coordinating Committee (SNCC) was created to coordinate protests. Sit-ins marked
an important shift in the tactics of the civil rights movement away from the court-based
approach and toward the nonviolent civil disobedience that had been successful in
- The Letter from the Birmingham Jail
- King wrote his famous “Letter from the Birmingham Jail,” an eloquent statement of
the principles of nonviolent civil disobedience. King presented the justification
for civil disobedience, writing that everyone had an obligation to follow just laws,
but an equal obligation to break unjust laws.
- The Judicial Arena
In the early years of the civil rights movement in the 1930s and 1940s, the Supreme
Court provided most of the successes, especially in voting rights and desegregation.
- Challenging “Separate but Equal” in Education
- The National Association for the Advancement of Colored People (NAACP) decided to
fight segregation by pointing out the various ways in which states kept blacks out
of all-white law schools. In 1950, Texas had a separate law school for blacks, but
it was not equal to that for whites. Even though the schools had the same number
of faculty, books, and so on, the court ruled that this was not good enough.
There were intangible aspects of the quality of law school that made the school
for blacks inferior. The court stopped just short of striking down “separate but
- In a landmark decision, the application of the Fourteenth Amendment was expanded
in Brown v. Board of Education (1954), which required all public schools
in the United States to desegregate.
- The Push to Desegregate Schools
- In 1955, Brown v. Board of Education II addressed the implementation of
desegregation and required the states to “desegregate with all deliberate speed.”
- Eight years after Brown I, little had changed in the Deep South. In 1971,
the Court shifted its focus from de jure segregation—segregation
mandated by law—to de facto segregation—segregation that existed
because of housing patterns—and approved school busing as a tool to integrate schools.
- In 2007, the Court invalidated voluntary desegregation plans implemented by public
school districts. Endorsing the color-blind approach, the majority opinion said,
“The way to stop discrimination on the basis of race is to stop discriminating on
the basis of race.” In this case, the discrimination was against whites who wanted
to be in school with few minorities rather than blacks who wanted to be in integrated
- Expanding Civil Rights
- Other central cases during the civil rights era ruled Congress had the power to
eliminate segregation in public places, such as restaurants and hotels, under the
commerce clause of the Constitution.
- In 1971, the Court ruled that employment tests not related to job performance and
that discriminate against blacks violate the 1964 Civil Rights Act.
- Many cases upheld the disparate impact standard, the idea that
discrimination exists if a practice has a negative effect on a specific group, whether
or not this effect was intentional.
- The Color-Blind Court and Judicial Activism
- The Roberts and Rehnquist Courts of the past two decades have been gradually imposing
a “color-blind jurisprudence” over a broad range of issues. For example, in 1992,
districts were specifically drawn to help elect African Americans and Latinos. But,
under Roberts and Rehnquist, the legislative redistricting process had to avoid
discriminatory results rather than being concerned only with discriminatory
intent. Thus, if race is the predominant factor in drawing district lines,
the districts are unconstitutional because they violate the equal protection clause
of the Fourteenth Amendment.
- The Supreme Court is increasingly activist in civil rights. The Court is unwilling
to defer to any other part of government if that branch disagrees with its view
of discrimination and equal protection.
- Women’s Rights
- At one time discrimination between men and women was identified using the
reasonable basis test, the use of evidence to suggest that differences
in the behavior of two groups can rationalize unequal treatment of these groups.
- In 1976 the Court established a new intermediate scrutiny standard,
the middle level of scrutiny the courts use when determining whether unequal treatment
is justified by the effect of a law; this is the standard used for gender-based
discrimination cases and for many cases based on sexual orientation.
- The strict scrutiny standard is the highest level of scrutiny the
courts use when determining whether unequal treatment is justified by the effects
of a law. It is applied in all cases involving race. Laws rarely pass the strict
scrutiny standard; a law that discriminates based on race must be shown to serve
some “compelling state interest” in order to be upheld.
- Two other areas where the Supreme Court helped advance women’s rights were affirmative
action and protection against sexual harassment.
- Gay Rights
- In the first endorsement of civil rights for gays, the Supreme Court struck down
an amendment to the Colorado state constitution that would have prevented gays from
suing for discrimination in employment or housing.
- The Supreme Court also ruled that the liberty guaranteed by the Fourteenth Amendment’s
due process clause allows homosexuals to have sexual relations. The reasoning is
rooted in the substantive due process doctrine, one interpretation
of the due process clause of the Fourteenth Amendment under which the Supreme Court
has the power to overturn laws that infringe on individual liberties.
In general, the courts have a limited independent impact on policy. It must rely
on other braches of government to carry out its policy decisions.
- The Legislative Arena
The bedrock of equal protection that exists today stems from landmark legislation
passed by Congress in the 1960s.
- The Civil Rights Act barred discrimination in employment based on race, sex, religion,
or national origin, banned segregation in public places, and set up the Equal Employment
Opportunity Commission as the Enforcement agency for the legislation.
- The Voting Rights Act of 1965 (VRA) eliminated direct obstacles to minority voting
in the South such as discriminatory literacy tests and other voter registration
tests and also provided means to enforce the law. Several amendments proved very
important to civil rights progress:
- 1975: Coverage was extended to language minorities.
- 1982: Certain provisions of the law were extended for twenty-five years and it was
made easier to bring a lawsuit under the act.
- 1991: A new Civil Rights Act was passed which increased the cost to employers for
intentional, illegal discrimination. Furthermore, if an employee sues for discrimination,
the burden of proof is on the employer to show that the practice is “job related
for the position in question and consistent with business necessity.”
- 2006: The VRA was extended for another twenty-five years.
- The Fair Housing Act of 1968 barred discrimination in the rental or sale of a house.
- Title VII of the Civil Rights Act, which barred discrimination based on gender,
began to be enforced in 1970.
- In 1972, Title IX of the Higher Education Act prohibited sex discrimination in institutions
that receive federal funds. In 1994, the Violence Against Women Act allowed women
who were the victims of physical abuse and violence to sue in federal court.
- The 1990 Americans with Disabilities Act provided strong federal protections for
the 45 million disabled Americans.
- Congress’s track record in protecting gay rights is not quite as strong. It passed
the Defense of Marriage Act in 1996, which says that if gay marriages are allowed
in one state, they must be recognized in all other states, with the idea of suppressing
gay marriage. Congress recently proposed an amendment to the Constitution to ban
- The Executive Arena
- President Truman integrated the armed forces in 1948.
- President Eisenhower used the National Guard to enforce a court order to integrate
Central High School in Little Rock, Arkansas in 1957.
- Executive orders by Kennedy and Johnson in 1961 and 1965, respectively, established
- Clinton attempted to end the ban on gays in the military. Because of strong resistance,
a “don’t ask, don’t tell” compromise was met.
- It is less likely that significant and dramatic change will come from unilateral
action by the president. Instead, attention to civil rights concerns in the executive
branch has primarily been in two areas in the past fifteen years: racial diversity
in presidential appointments and use of the bully pulpit to promote racial concerns
- Clinton promised, and delivered, a government that “looks like America.” Bush was
not as successful in that regard, but his administration was more diverse than that
of other Republican presidents.
- Obama’s victory may signal the beginning of a new “post-racial politics” that places
less emphasis on race and devotes more attention to issues that concern all Americans,
such as the economy, education, and health care.
Continuing and Future Civil Rights Issues
There are three main perspectives regarding the future direction of the civil rights
movement: (1) Our nation must move beyond race. The Supreme Court endorses this
perspective with “color-blind” jurisprudence. (2) The civil rights movement must
continue to fight for the equality of opportunity by enforcing existing laws and
pushing for equality of outcomes by protecting and expanding racially targeted affirmative
action programs and other policies that address racial inequality. (3) Integration
is not a realistic goal. African Americans can never gain equality within what they
see as the repressive, white-dominated economic and political system.
- Affirmative Action
- The Civil Rights Act of 1964 ensured that, at least on paper, all Americans would
be equal. Even after the act was passed, however, blacks still lagged behind whites
in socioeconomic status; there was still a gap in the equality of opportunity and
the equality of outcomes.
- Beginning in 1965, President Johnson tried to address these inequalities with a
policy of affirmative action. All federal agencies and government contractors were
required to submit written proposals to hire a certain number of blacks, women,
Asian Americans, and Native Americans. Special opportunities were given to minorities
and women, either to make up for past patterns of discrimination or to pursue the
general goals of diversity.
- Affirmative action takes different forms. The most passive form is extra effort
to recruit women and minorities. A more active form is to include race or gender
as a “plus factor” in the admissions or hiring decision. The strongest form is the
use of strict quotas to admit or hire a specific number of applicants from underrepresented
- Affirmative action has been a controversial policy. Many whites view is as “preferential
treatment” and “reverse discrimination.”
- The Supreme Court helped define the boundaries of this policy debate. In early cases,
preferential treatment and even rigid quotas were upheld when the policies were
needed to make up for past discrimination. As the Court moved toward a color-blind
approach, however, “generalized assertions” of past discrimination were not enough
to justify rigid quotas.
- In the landmark decision of University of California Regents v. Bakke (1978),
the Court ruled that rigid racial quotas were unconstitutional, but allowed race
to be a “plus factor” used in admissions decisions.
- Multicultural Issues
- White people in the United States will no longer constitute a majority of the population
by the middle of the twenty-first century.
- In Alexander v. Sandoval (2001), the Court ruled that individuals may not
sue federally funded state agencies over policies that have a discriminatory effect
on minorities under Title VI.
- After the September 11 Terrorist Attacks, the government made it clear that it would
not engage in racial profiling of Arab Americans, but many commentators argued that
such profiling would be justified.
- In 1994, voters in California adopted Proposition 187, which denied most public
benefits to illegal immigrants but was viewed by critics as discriminatory to Mexican
Americans. Republicans favored the proposition, while Democrats opposed it. Democrats
won the 1998 gubernatorial race in California with the strong support of Hispanics.
Subsequently, Republicans softened their position on immigration, with President
George W. Bush leading the party’s movement in this direction.