Terms in this set (55)

3 levels of scrutiny or analysis that allow the courts to determine whether a classification in a law or regulation is permissible or violates equal protection of the law
Reasonable, inherently suspect, & intermediate scrutiny
To pass constitutional muster, most classifications must only be reasonable (a classification must bear a rational relationship to some legitimate governmental purpose, for example, to educating students in colleges); courts defer to rule makers, typically legislatures, & anyone who challenges these classifications has burden of proving that they're not reasonable, but arbitrary
With some classifications, burden of proof is with rule maker; racial & ethnic classifications, such as those that would prohibit blacks from attending school with whites or that would deny a racial or ethnic group access to public services such as a park or swimming pool, are inherently suspect; these classifications are invalid & are upheld only if they serve a "compelling public interest" & there's no other way to accomplish the purpose of the law; in the case of racial or ethnic classification, burden of proof is on government that created it to prove that classification meets these criteria; it's virtually impossible to show that a classification by race or ethnicity that serves to disadvantage a minority group serves a compelling public interest; Court is reluctant to approve laws of classifications by race & ethnicity, such as for college admissions, that are designed to remedy previous discrimination
Classifications based on gender receive intermediate scrutiny: courts presume them to be neither constitutional nor unconstitutional; law that classifies by gender must bear a substantial relationship to an important governmental purpose, a lower threshold than serving a compelling public interest
After Civil War ended, Congress imposed strict conditions on former Confederate states before it would seat their representatives & senators; no one who served in secessionist state governments or in Confederate army could hold state office, legislatures had to ratify new amendments, & military would govern states like conquered provinces until they complied with tough federal plans for reconstruction; many black men held state & federal offices during 10 years following war; some government agencies like Freedmen's Bureau provided assistance to former slaves who were making difficult transition to independence
To ensure election in 1876, Rutherford Hayes promised to pull troops from South & let Southern states do what they want; Southerners reclaimed power & imposed code of Jim Crow laws (segregationist laws) on blacks (Jim Crow was name of stereotypical black in 19th-century minstrel song); these laws relegated blacks to separate public facilities, school systems, & even restrooms; most whites lost interest in helping former slaves, & what Jim Crow laws mandated in South was common in North; national government practiced segregation in armed forces, employment, housing programs, & prisons; in this era, racial segregation affected every part of life, from cradle to grave; blacks were delivered by black physicians or midwives & buried in black cemeteries; groups like KKK terrorized blacks who violated norms of segregation, lynching hundreds of people
Supreme Court voided law barring blacks from serving on juries (Strauder v. West Virginia, 1880), but in Civil Rights Cases (1883), it held that Fourteenth Amendment didn't prohibit racial discrimination by private businesses & individuals
In 1941, President Franklin D. Roosevelt issued executive order forbidding racial discrimination in defense industries, & in 1948, President Harry S. Truman ordered desegregation of armed services
University of Oklahoma admitted George McLaurin, a black person, as a graduate student, but forced him to use separate facilities, including special table in cafeteria, designated desk in library, & desk just outside classroom doorway; in McLaurin v. Oklahoma State Regents (1950), Court ruled that public institution of higher learning couldn't provide different treatment to a student solely because of their race; also in 1950, Court found separate but equal formula generally unacceptable for professional schools in Sweatt v. Painter
Legal Defense Fund of National Association for Advancement of Colored People (NAACP) searched for case to challenge legal public school segregation & chose case of Linda Brown, who was a black student in Topeka, Kansas, required by Kansas law to attend segregated school; in Topeka, black schools were fairly equivalent to white schools with regard to visible signs of educational equality -- teacher quality, facilities, & so on, so NAACP chose case in order to test Plessy v. Ferguson doctrine of separate but equal; it wanted to force Court to rule directly on whether school segregation was inherently unequal & thereby violated 14th Amendment's requirement that states guarantee equal protection of laws
President Eisenhower had just appointed Chief Justice Earl Warren; Court heard two rounds of arguments, one before Warren joined court; justices, after hearing oral arguments, met in Supreme Court's conference room; believing that unanimous decision would have most impact, justices negotiated broad agreement & then determined that Warren himself should write opinion
A year after Brown v. Board of Education, Court let lower courts proceed to desegregate public schools & it occurred slowly in South; some counties threatened to close their public schools, & white enrollment in private schools soared; in 1957, President Eisenhower had to send troops to desegregate Central High School in Little Rock, Arkansas; in 1969, Supreme Court stopped allowing time to delay (Alexander v. Holmes County Board of Education) & forced Southern schools to integrate
If schools were legally segregated before, authorities had obligation to overcome past discrimination, which could include assigning students to schools in a way that would promote racial balance; some federal judges ordered busing of students to achieve racially balanced schools, a practice upheld but not required by Supreme Court in Swann v. Charlotte-Mecklenberg County Schools (1971)
Not all racial segregation is de jure (by law) segregation; de facto (in reality) segregation results when children are assigned to schools near their homes & those homes are in neighborhoods that are racially segregated for social & economic reasons; because minority groups & federal lawyers demonstrated that Northern schools had purposely drawn district lines to promote segregation, school busing came to North as well
Majorities of both whites & blacks have opposed busing, which is one of least popular remedies for discrimination; in recent years, it has become less prominent as a judicial instrument
Courts don't have power to order busing between school districts, so school districts composed largely of minorities must rely on other means to integrate; Kansas City, Missouri, spent years & $1.5 billion under federal court orders to attract white students from city's suburbs, but with limited success; in 1995, in Missouri v. Jenkins, Supreme Court indicated it wouldn't look favorably on continued federal court control of district
Early Republic limited suffrage to a handful of the population (mostly property-holding white males); 15th Amendment guaranteed blacks right to vote, but states tried to circumvent amendment
Many states required potential voters to complete literacy tests before registering to vote; requirement was that they read, write, & understand state constitution or US Constitution; in practice, registrars rarely administered literacy tests to whites, while standard of literacy required of blacks was so high that few could ever pass test; in addition, Oklahoma & other Southern states used grandfather clause that exempted people whose grandfathers were eligible to vote in 1860 from taking these tests; exemption didn't apply to grandchildren of slaves but allowed illiterate whites to vote; law was blatantly unfair & unconstitutional, as Supreme Court said in 1915 decision Guinn v. United States
Southern states also used poll taxes, due at a time of year when poor sharecroppers had least cash on hand; Southern states also used white primaries
Barriers to black voting fell during 1960s; 24th Amendment, ratified in 1964, prohibited poll taxes in federal elections; in 1966, Supreme Court voided poll taxes in state elections in Harper v. Virginia State Board of Election
Voting Rights Act of 1965 was designed to combat use of discriminatory voter registration tests; prohibited any government from using voting procedures that denied a person the vote on the basis of race or color & abolished use of literary requirements for anyone who had completed 6th grade; federal government sent election registrars to areas with long histories of discrimination, & these areas had to submit proposed changes in their voting laws or practices to federal official for approval
When Voting Rights Act passed in 1965, only 70 blacks held public office in the 11 Southern states; by early 1980s, more than 2.5k blacks held elected offices in those states, & number has continued to grow: there are currently more than 9.4k black elected officials in US
Voting Rights Act of 1965 secured right to vote for blacks but also attempted to ensure that their votes wouldn't be diluted through racial gerrymandering (drawing district boundaries to advantage a specific group); for example, in many cities, residences of minorities were clustered in one part of the community; if members of city council were elected from districts within the city, minority candidates would have a better chance to win some seats; in response, some cities chose to elect all council members in at-large seats (in which council members were elected from the entire city), thereby reducing the chances of a geographically concentrated minority from electing a minority council member; when Congress amended Voting Rights Act in 1982, it further insisted minorities be able to "elect representatives of their choice" when their numbers & configuration permitted; thus, redrawing district boundaries was to avoid discriminatory results, not just discriminatory intent; in 1986, Supreme Court upheld this principle in Thornburg v. Gingles
Officials in Justice Department (responsible for enforcing Voting Rights Act), & state legislatures that drew new district lines interpreted amendment of Voting Rights Act & Thornburg decision as mandate to create minority-majority districts (districts in which a minority group accounted for a majority of the voters); consequently, when congressional district boundaries were redrawn following 1990 census, several states, including Florida, North Carolina, Texas, Illinois, NY, & Louisiana, created odd-shaped districts designed to give minority-group voters a numerical majority; 14 new US House districts were drawn specifically to help elect blacks to Congress, & 6 districts were drawn to elect new Hispanic members (efforts worked)
In 1993, Supreme Court heard challenge to North Carolina congressional district that in some places was cut no wider than a superhighway to create black majority winding snakelike for 160 miles; in its decision in Shaw v. Reno, Court decried creation of districts based solely on racial composition, as well as district drawers' abandonment of traditional redistricting standards such as compactness & contiguity; thus, Court gave legal standing to challenges to any congressional map with oddly shaped minority-majority district that may not be defensible on grounds other than race (such as shared community interest or geographical compactness)
In 1994, in Johnson v. DeGrandy, Court ruled that state legislative redistricting plan that doesn't create greatest possible number of minority-majority districts isn't in violation of Voting Rights Act; in 1995, in Miller v. Johnson, Court rejected efforts of Justice Department to achieve maximum possible number of minority districts; it held that use of race as predominant factor in drawing district lines should be presumed to be unconstitutional; next year, in Bush v. Vera & Shaw v. Hunt, Supreme Court voided three convoluted districts in Texas & one in NC on grounds that race had been primary reason for abandoning compact district lines & that state legislatures had crossed line into unconstitutional racial gerrymandering
In 1999, Court declared in Hunt v. Cromartie that conscious consideration of race isn't automatically unconstitutional if state's primary motivation was potentially political (blacks tend to be Democrats, for example); Court has decided that state legislatures may redraw district boundaries at any time, not only after a census
Earliest inhabitants of the continent are the oldest minority group; 4.5 million people are Native American or Native Alaskan, including 11% of Oklahomans & New Mexicans & 18% of Alaskans; for generations, US policy promoted westward expansion at expense of Native Amerians' lands; government isolated Native Americans on reservations, depriving them of their lands & their rights; with Dawes Act of 1887, federal government turned to strategy of forced assimilation, sending children to boarding schools off the reservations, often against will of their families, & banning tribal rituals & languages
In 1924, Congress made them citizens of US & gave them right to vote; not until 1946 did Congress establish Indian Claims Act to settle Indians' claims against government related to land that had been taken from them; most Native Americans today still live in poverty & ill health, almost half on or near reservation
Civil rights movement of 1960s created more favorable climate for Native Americans to secure guaranteed access to polls, to housing, & to jobs & to reassert their treaty rights; Indian Bill of Rights was adopted as Title II of Civil Rights Act of 1968, applying most provisions of Constitution's Bill of Rights to tribal governments; in Santa Clara Pueblo v. Martinez (1978), Supreme Court strengthened tribal power of individual tribe members & furthered self-government by Indian tribes
Progress came in part through activism of Indians such as Dennis Means of American Indian Movement (AIM), Vine Deloria, & Dee Brown, who drew attention to plight of American Indian tribes; in 1969, some Native Americans seized Alcatraz Island in San Francisco Bay to protest loss of Indian lands; in 1973, armed members of AIM seized 11 hostages at Wounded Knee, South Dakota (site of an 1890 massacre of 200 Sioux (Lakota) by US cavalry) & remained there for 71 days until federal government agreed to examine Indian treaty rights
Indians began to use courts to protect their rights; Native American Rights Fund (NARF), founded in 1970, has won important victories concerning hunting, fishing, & land rights; Native Americans are also retaining access to their sacred places & have had some success in stopping building of roads & buildings on ancient burial grounds or other sacred spots; several tribes have won court cases protecting them from taxation of tribal profits
Preservation of Native American culture & exercise of Native American rights sometimes conflict with interests of majority; for example, some tribes have gained special rights to fish or hunt whales; anglers concerned with depletion of fishing stock & environmentalists worried about loss of whale population have voiced protests; similarly, Native American rights to run businesses denied to others by state law & to avoid taxation on tribal lands have made running gambling casinos a lucrative option for Indians; this has irritated both those who oppose gambling & those who are offended by the tax-free competition
Also known as Latinos; chiefly from Mexico, Puerto Rico, & Cuba, but also from El Salvador, Honduras, & other countries in Central & South America; largest minority group; more than 47 million & 15% of US population; 45% of population of New Mexico & more than 1/3 of population of both California & Texas
In Texas & Southwestern US in 1st half of 20th century, people of Mexican origin were heavily discriminated against; forced to use segregated public restrooms & attend segregated schools; hundreds killed in lynchings; 500k Latinos served in US armed forces in World War II, but lots faced discrimination upon their return; Dr. Hector P. Garcia founded American GI Forum (country's first Latino veterans' advocacy group) in 1948 after he saw Naval Station at Corpus Christi refusing to treat sick Latino veterans; his organization received national attention when remains of Felix Longoria (Mexican American soldier killed on mission in Pacific), were returned to his relatives in Three Rivers, Texas, for final burial; only funeral parlor wouldn't allow his family to hold services for him because of his Mexican heritage; with help of Forum & sponsorship of then Senator Lyndon B. Johnson, Longoria was buried in Arlington National Cemetery
In Jackson County, Texas, where Mexican Americans made up 14% of population by early 1950s, no one with Spanish surname had been allowed to serve on jury in 25 years; 70 Texas counties had similar records of exclusion
Hispanic leaders used tactics of black civil rights movement, using sit-ins, boycotts, marches, & other activities to draw attention to their cause; inspired by NAACP's Legal Defense Fund, they created Mexican American Legal Defense & Education Fund (MALDEF), in 1968, to help argue their cause in court; in 1970s, MALDEF established Chicana Rights Project to challenge sex-discrimination against Mexican American women; in addition, Hispanic groups began mobilizing in other ways to protect their interests; early prominent example was United Farm Workers, led by César Chavez, who in 1960s publicized plight of migrant workers, large proportion of whom are Hispanic
In 1975, Texas revised its education laws to withhold state funds for educating children who hadn't been legally admitted to US & authorized local school districts to deny enrollment to such students; in Plyler v. Doe (1982), Supreme Court struck down law as a violation of 14th Amendment because illegal immigrant children are people & therefore had protection from discrimination against substantial state interest could be shown to justify it; Court found no substantial state interest that would be served by denying education to students who had no control over being brought to US, & observed that denying them education would likely contribute to "creation & perpetration of subclass of illiterates within our boundaries, surely adding to problems & costs of unemployment, welfare, & crime"
Using leverage of discrimination suits, MALDEF has won number of consent decrees with employers to increase opportunities for employment for Latinos
Hispanic Americans benefit from nondiscrimination policies originally passed to protect blacks; Provisions of Voting Rights Act of 1965 covered San Antonio, & thereby helped Hispanic voters to elect Henry Cisneros as mayor in 1981; there are now more than 5.2k elected Hispanic officials in US, & Hispanic Americans play prominent role in politics of such major cities as Houston, Miami, Los Angeles, & San Diego; in 1973, Supreme Court found that multimember electoral districts (in which more than one person represents a single district) in Texas discriminated against minority groups because they decreased probability of minority being elected; nevertheless, poverty, discrimination, & language barriers continue to depress Hispanic voter registration & turnout
Traditional family pattern is dying out; 72 million women in civilian labor force (83 million men), representing 60% of adult women; 62% of these women are married & living with their spouse; there are 34 million female-headed households, 8 million of which include children, & 70% of American mothers who have children below school age are in labor force
Civil Rights Act of 1964 banned gender discrimination in employment; protection of this law has been expanded several times; in 1972, Congress gave EEOC power to sue employers suspected of illegal discrimination; Pregnancy Discrimination Act of 1978 made it illegal for employers to exclude pregnancy & childbirth from their sick leave & health benefits plans; Civil Rights & Women's Equity in Employment Act of 1991 shifted burden of proof in justifying hiring & promotion practices to employers, who must show that gender requirement is necessary for the particular job
In 1977, Supreme Court voided laws & rules barring women from jobs through arbitrary height & weight requirements (Dotbard v. Rawlinson); any such prerequisites must be directly related to duties required in a particular position; women have been protected from being required to take mandatory pregnancy leaves from their jobs & from being denied a job because of an employer's concern for harming a developing fetus; many commercial contracts are made in private business & service clubs, which often have excluded women from membership; Court has upheld state & city laws that prohibit such discrimination
Title IX of Education Act of 1972 forbids gender discrimination in federally subsidized education programs (almost all colleges & universities), including athletics; in 1996, Supreme Court declared that Virginia's categorical exclusion of women from education opportunities at state-funded Virginia Military Institute (VMI) violated women's rights to equal protection of law; a few days later, the Citadel, the nation's only other state-supported all-male college, announced it would also admit women
3 most controversial issues that legislators face are wage discrimination, sexual harassment, & role of women in military
Women have voiced concern about sexual harassment for years; US Equal Employment Opportunity Commission (EEOC) defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, & other verbal or physical conduct of a sexual nature...when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment"
In 1986, Supreme Court articulated broad principle: sexual harassment that's so pervasive as to create hostile or abusive work environment is a form of gender discrimination forbidden by 1964 Civil Rights Act; in 1993, in Harris v. Forklift Systems, Court reinforced its decision; no single factor is required to win sexual harassment case under Title VII of 1964 Civil Rights Act; law is violated when workplace environment would reasonably be perceived & is perceived as hostile or abusive, so workers aren't required to prove that workplace environment is so hostile as to cause them severe psychological injury or that they're unable to perform their jobs; protection of federal law comes into play before harassing conduct leads to psychological difficulty; Court also made it clear that employers are responsible for preventing & eliminating harassment at work, & they can't retaliate against someone filing a complaint about sexual harassment; Court ruled that school districts can be held liable for sexual harassment in cases of student-on-student harassment
Especially prevalent in male-dominated occupations; 1991 convention of Tailhook Association (an organization of naval aviators) made news after reports surfaced of drunken sailors jamming hotel hallway & sexually assaulting female guests, including naval officers, as they stepped off elevator; after much-criticized initial failure of navy to identify officers responsible for assault, heads rolled, including those of several admirals & secretary of navy; in 1996 & 1997, number of army officers & noncommissioned officers were discharged, & some went to prison, for sexual harassment of female soldiers in training situations; behavior once viewed as male highjinks is now considered intolerable; Pentagon removed top officials at Air Force Academy in 2003 following charges that female cadets were frequently raped by male cadets; with more women serving in military, issue of protecting female military personnel from sexual harassment becomes ever more pressing
Women have served in every branch of armed services since WWII; originally, they served in separate units such as WACS (Women's Army Corps), WAVES (Women Accepted for Volunteer Emergency Service in the navy), & Nurse Corps; until 1970s, military had 2% quota for women, which was never filled; now women are part of regular service; they make up 14% of active duty armed forces, & compete directly with men for promotions; Congress opened all service academies to women in 1975; women have done well, sometimes graduating at top of their class
2 important differences between treatment of men & women in military service: 1st, only men must register for draft when they turn 18; 2nd, statutes & regulations prohibit women from serving in combat; breach exists between policy & practice, as Persian Gulf War & wars in Iraq & Afghanistan have demonstrated; women fly jets, pilot helicopters at front, operate antimissile systems, patrol streets with machine guns, dispose of explosives, & provide unit & convoy security; some have been taken as prisoners of war; women are now permitted to serve as combat pilots in navy & air force & to serve on navy warships, including submarines, but they're still not permitted to serve in ground combat units in army or marines
Some experts say women have less upper-body strength than men & are less suited to combat; others argue that men won't be able to fight effectively beside wounded or dying women; critics point out that some women surpass men in upper-body strength & that we don't know how well women & men will fight together; debate is controversy about ability & touches on question of whether engaging in combat is burden or privilege; clearly some women, & those who would deny them combat duty, take latter view
37 million people in US are 65% or older, accounting for 12% of total population; 4.5 million people are 85 or older; people in 80s are fastest-growing age group in country
When Social Security program began in 1930s, 65 was chosen as retirement age for purpose of benefits; choice was apparently arbitrary, but 65 soon became usual age for mandatory retirement; although many workers might prefer to retire while they're still healthy & active enough to enjoy leisure, not everyone wants or can afford to do so; Social Security isn't, & was never meant to be, an adequate income, & not all workers have good pension plans or retirement savings plans; employers routinely refused to hire people over certain age; age discrimination applied to younger & older workers; graduate & professional schools often rejected applicants in their 30s on grounds that their professions would get fewer years & less returns out of them; policy had severe impact on housewives & veterans who wanted to return to school
As early as 1967, in Age Discrimination in Employment Act, Congress banned some kinds of age discrimination; in 1975, civil rights law was passed denying federal funds to any institution that discriminated against people over age 40 because of age; today, for most workers there can be no compulsory retirement; in 1976, Supreme Court declared it wouldn't place age in suspect classification category when it upheld state law requiring police officers to retire at age 50, so age classifications still fall under reasonableness standard of review, & employers need only show that age is related to ability to do a job to require workers to retire
Job bias is often hidden, & proving it depends on inference & circumstantial evidence; Supreme Court made it easier to win cases of job bias in 2000 when it held in Reeves v. Sanderson that plaintiff's evidence of employer's bias, combined with sufficient evidence to find that employer's asserted justification is false, may permit juries & judges to conclude that an an employer unlawfully discriminated; in 2005, Court found that employers can be held liable for discrimination even if they never intended any harm; older employees need only show an employer's policies disproportionately harmed them, & that there was no reasonable basis for employer's policy, so employees can win lawsuits without direct evidence of an employer's illegal intent; in 2008, Supreme Court ruled that it's up to employer to show that action against a worker stems from reasonable factors other than age (Meacham v. Knolls Atomic Power Laboratory); impact of these decisions is likely to extend beyond questions of age discrimination to litigation of race & gender discrimination cases brought under Title VII of Civil Rights Act of 1964 as well as cases brought under Americans with Disabilities Act
Americans with disabilities have suffered from direct & indirect discrimination; governments & employers have often denied them rehab services, education, & jobs; even w/o overt discrimination, disabled people have been excluded from workforce & isolated; throughout most of American history, public & private buildings have been hostile to blind, deaf, & mobility impaired; stairs, buses, telephones, & other necessities of modern life have been designed in ways that keep disabled out of offices, stores, & restaurants
First rehab laws were passed in 1920s, mostly to help veterans of WWI; accessibility laws waited another 50 years; Rehabilitation Act of 1973 added people with disabilities to list of Americans protected from discrimination; because law defines an inaccessible environment as a form of discrimination, wheelchair ramps, grab bars on toilets, & Braille signs have become common features of American life; Education of All Handicapped Children Act of 1975 entitled all children to free public education appropriate to their needs
Determining who's disabled has generated controversy; in 1998, Supreme Court ruled that ADA offered protection against discrimination to people with AIDS; in 2008, Congress expanded definition of disability, making it easier for workers to prove discrimination; in deciding whether a person's disabled, courts aren't to consider effects of mitigating measures like prescription drugs, hearing aids, & artificial limbs; moreover, "an impairment that's episodic or in remission is a disability if it would substantially limit a major life activity when active"; more successful a person is at coping with a disability, more likely it is that court would find they're no longer disabled & therefore no longer covered under ADA
Civil rights laws designed to protect rights of disabled people have met with opposition &, once passed, with sluggish enforcement; source of this resistance is concern about cost of programs, but such concern is often shortsighted; people forget that changes allowing disabled people to become wage earners, spenders, & taxpayers are a gain rather than drain on economy
Homophobia (fear & hatred of homosexual people) has many causes; some of these causes are very deep-rooted, relating to fact that certain religious groups condemn homosexuality; homophobia has led to killings, including brutal 1998 killing of Matthew Shepard, a 21-year-old political science freshman at University of Wyoming; he was found tied to a fence, having been hit in the head with a pistol 18 times & repeatedly kicked in groin
Growth of LGBT rights movement was stimulated by notorious incident in NYC bar in 1969; police raided Stonewall bar, frequented by gay men; such raids were then common; this time, customers at bar resisted police; unwarranted violence, arrests, & injury to people & property resulted; in aftermath of Stonewall, LGBT people organized in an effort to protect their civil rights, in process developing political skills & forming effective interest groups; most colleges & universities now have LGBT rights organizations on campus
Supreme Court, in 1986, ruled in Bowers v. Hardwick that states could ban homosexual relations; in 2000, Court held that Boy Scouts could exclude gay man from being an adult member because homosexuality violates organization's principles
Attitudes are changing; half of the public views homosexual relations as moral
Example of attitudes in transition is don't ask, don't tell policy for armed forces, which Clinton administration adopted in 1993 after months of negotiation with Pentagon & avalanche of criticism; policy reaffirmed Defense Department's strict prohibition against homosexual conduct but didn't automatically exclude gay people from military; Pentagon was barred from asking military recruits or service personnel to disclose their sexual orientation; service members who declared their homosexuality faced discharge unless they could prove that they would remain celibate & were barred from even disclosing to a friend in private conversation that they were gay or bisexual
In 2010, President Obama, Defense Secretary Robert Gates, & Admiral Mike Mullen, chairman of Joint Chiefs of Staff, called on Congress to repeal the law; Pentagon began extensive review of how to change policy without undermining effectiveness of military; Gates also announced interim policy in which Defense Department wouldn't take action to discharge service members whose sexual orientation was revealed by third parties or jilted partners, one of the most onerous aspects of the law
Several states, including California, & more than 100 communities have passed laws protecting LGBT people against some forms of discrimination; in 1996, in Romer v. Evans, Supreme Court voided state constitutional amendment approved by Colorado voters that denied LGBT people protection against discrimination; Court found that Colorado amendment violated US Constitution's guarantee of equal protection of law; in 2003, in Lawrence v. Texas, Supreme Court overturned Bowers v. Hardwick when it voided Texas antisodomy law on grounds that such laws were unconstitutional intrusions of right to privacy
Most states have laws banning same-sex marriage & recognition of same-sex marriages that occur in other states; in 1996, Congress passed Defense of Marriage Act, which permits states to disregard same-sex marriages even if they're legal elsewhere in US; however, Vermont, Massachusetts, Connecticut, New Hampshire, Iowa, & Washington, DC have legalized same-sex marriages; NY recognizes such marriages performed elsewhere; other states, including California, New Jersey, Hawaii, Maine, Washington, & Oregon, recognize same-sex civil unions or provide domestic partnership benefits to same-sex couples; when given opportunity, LGBT couples have rushed to altar, provoking strong backlash from social conservatives; President George W. Bush called for constitutional amendment to ban same-sex marriage, but Congress hasn't passed such an amendment; with prospects for same-sex marriage remaining uncertain, LGBT people also continue to push for benefits associated with marriage, including health insurance, taxes, Social Security payments, hospital visitation rights, & much else that most people take for granted
A policy designed to give special attention to or compensatory treatment for members of some previously disadvantaged group; involves efforts to bring about increased employment, promotion, or admission for members of groups who have suffered from discrimination
In 1965, President Lyndon Johnson signed Executive Order 11246, prohibiting federal contractors & federally assisted construction contractors & subcontractors from discriminating in employment decisions on basis of race, color, religion, sex, or national origin; order also required contractors to take affirmative action to ensure against employment discrimination, including implementation of plans to increase participation of minorities & women in workplace
Goal is to move beyond equal opportunity (everyone has same chance of obtaining good jobs) toward equal results (different groups have same percentage of success in obtaining those jobs); goal might be accomplished through special rules in public & private sectors that recruit or otherwise give preferential treatment to previously disadvantaged groups; numerical quotas that ensure that certain portion of government contracts, law school admissions, or police department promotions go to minorities & women are strongest & most controversial form of affirmative action; constitutional status of affirmative action isn't clear
Bakke ended up in medical school, but Brian Weber didn't get into company apprenticeship program he wanted to enter; in United Steelworkers of America, AFL-CIO v. Weber (1979), Court found that Kaiser Aluminum Company, Weber's employer, intended its special training program, which had quota for minorities, to rectify years of past employment discrimination at Kaiser; thus, voluntary union- & management-sponsored program to take more blacks than whites didn't discriminate against Weber
Until 1995, Court was more deferential to Congress than to local government in upholding affirmative action programs; in 1989, Court found a Richmond, Virginia plan that reserved 30% of city subcontracts for minority firms to be unconstitutional; in 1980, Court upheld federal rule setting aside 10% of all federal construction contracts for minority-owned firms; in 1990, Court agreed that Congress may require preferential treatment for minorities to increase their ownership of broadcast licenses; event marked first time Supreme Court upheld specific affirmative action program that wasn't devised to remedy past discrimination; on other matters, Court approved preferential treatment of minorities in promotions & ordered quotas for minority union memberships
1978 Supreme Court decision holding that a state university could weigh race or ethnic background as one element in admissions but couldn't set aside places for members of particular racial groups
At one point, federal government mandated that all state & local governments, & each institution receiving aid from or contracting with federal government, adopt an affirmative action program; UC-Davis (University of California at Davis) introduced one; eager to produce more minority physicians in California, medical school set aside 16 of 100 places in entering class for "disadvantaged groups"; one white applicant who didn't make freshman class was Allan Bakke; after receiving rejection letter for 2 straight years, he learned that mean scores on Medical College Admissions Test of students admitted under university's program were 46th percentile on verbal tests & 35th on science tests; his scores on same tests were at 96th & 97th percentiles, respectively; he sued, claiming that UC-Davis had denied him equal protection of laws by discriminating against him because of his race
Result was important decision in his favor; Court ordered him admitted, holding that UC-Davis Special Admissions Program did discriminate against him because of his race, but Court refused to order UC-Davis never to use race as criterion for admission
In 1984, Court ruled that affirmative action doesn't exempt recently hired minorities from traditional work rules specifying last hired, first fired order of layoffs; in 1986, it found unconstitutional an effort to give preference to black school teachers in layoffs because this policy punished innocent white teachers & black teachers hadn't been actual victims of past discrimination
Opposition is strong when it's seen as reverse discrimination (individuals are discriminated against when people who are less qualified are hired or admitted to programs because of their minority status); in 1996, California passed Proposition 209, which banned state affirmative action programs based on race, ethnicity, or gender in public hiring, contracting, & educational admissions (Washington State passed similar ban in 1998)
In 2003, Supreme Court made 2 important decisions on affirmative action in college admissions; 1st, it agreed that there was compelling interest in promoting racial diversity on Campus; upheld University of Michigan law school's use of race as one of many factors in admission in Grutter v. Ballinger (2003); law school's use of race as plus in admissions process was narrowly tailored & it made individualistic, holistic reviews of applicants in nonmechanical fashion; in 2006, Michigan passed ballot initiative banning affirmative action in college admissions & government hiring
In Gratz v. Bollinger (2003), Court struck down University of Michigan's system of undergraduate admissions in which every applicant from underrepresented racial or ethnic minority group was automatically awarded 20 points of 100 needed to guarantee admission; Court said system was tantamount to using a quota, which it outlawed in Bakke, because it made factor of race decisive for virtually every minimally qualified underrepresented minority applicant; 20 points awarded to minorities were more than school awarded for some measures of academic excellence, writing ability, or leadership skills
In 2007, Supreme Court addressed use of racial classification to promote racial balance in public schools in Seattle, Washington, & Jefferson County, Kentucky; some parents filed lawsuits contending that assigning children to different public schools based solely on their race violated 14th Amendment's equal protection guarantee; in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), Court agreed that school districts' use of race in their voluntary integration plans, even for purpose of preventing resegregation, violated equal protection guarantee & therefore was unconstitutional; using inherently suspect standard related to racial classifications, Court found that school districts lacked compelling interest of remedying effects of past intentional discrimination & concluded that racial balancing by itself wasn't a compelling state interest; Court did indicate that school authorities might use race conscious means to achieve diversity but school districts must be sensitive to other aspects of diversity besides race & narrowly tailor their programs to achieve diversity
Opponents argue merit is the only fair basis for distributing benefits; any race or gender discrimination is wrong, even when its purpose is to rectify past injustices rather than to reinforce them; proponents argue that what constitutes merit is highly subjective & can embody prejudices of which the decision maker may be quite unaware; advocates also believe that increasing number of women & minorities in desirable jobs is such an important social goal that it should be considered when looking at individuals' qualifications; they claim that what white males lose from affirmative action programs are privileges to which they were never entitled in the first place; moreover, research suggests that affirmative action offers significant benefits for women & minorities with relatively small costs for white males