# Chapter 16 ## 16.1 Civil Rights: How are rights identified? . Image 16.1 Photo of Washington Mall and Washington Monument with Crowd of Civil Rights Protesters Photograph, Civil Rights March on Washington, D.C., August 28, 1963; Credit: National Archives, Records of the U.S. Information Agency, Record Group 306, Identifier 542045 Chart 16.1 Learning Objectives on Civil Rights and Court Standards for Discrimination The United States’ founding principles are liberty, equality, and justice. However, not all its citizens have enjoyed equal opportunities, the same treatment under the law, or all the liberties extended to others. Well into the twentieth century, many were routinely legally discriminated against because of sex, race, ethnicity or country of origin, religion, age, sexual orientation, or physical or mental abilities–deprivation of basic rights and opportunities. The fight to secure equal rights for all continues today. While changes must still be made, the past one hundred years, have brought significant gains for people long legally discriminated against. Yet, people still encounter prejudice and negative stereotypes that lead to legal discrimination and even exclusion from civic life. Civil Rights March on Washington, D.C. [Dr. Martin Luther King, Jr. speaking.] Credit: National Archives Identifier 542069, U.S. Information Agency, 8/28/1963; Access Unrestricted While prejudice arises with people’s opinions, attitudes and behavior, legalized discrimination and injustice are made official governmental policy through rules, regulations, and laws. The belief that people should be treated equally under the law is one of the cornerstones of political thought in the United States. Yet not all citizens have been treated equally throughout the nation’s history, and some are treated differently even today. For example, until 1920, nearly all women in the United States lacked the right to vote. Black men received the right to vote in 1870, but as late as 1940 only 3 percent of African American adults living in the South were Image 16.2 Rev. Dr. Martin Luther King Jr. in Washington D.C. registered to vote, largely due to laws designed to keep them from the polls.[1] Americans were not allowed to enter legal marriage with a member of the same sex in many U.S. states until 2015. Some types of unequal treatment are considered acceptable, while others are not. No one would consider it acceptable to allow a ten-year-old to vote, because a child lacks the ability to understand important political issues, but all reasonable people would agree that it is wrong to mandate racial segregation or to deny someone the right to vote on the basis of race. It is important to understand which types of inequality are unacceptable and why. In addition to two types of discrimination against individuals or groups, there are two types of law involved in as well. Maintaining a basic understanding of these two types of law is essential to continued progress in expanding civil rights as well as expansion of basic civil liberties. Defining Civil Rights Civil rights are, at the most fundamental level, guarantees by the government that it will treat people equally, particularly people belonging to groups that have historically been denied the same rights and opportunities as others. Chart 16.2 Comparison of 5th and 14th Amendments While the proclamation that “all men are created equal” appears in the Declaration of Independence, it was the due process clause of the Fifth Amendment to the U.S. Constitution that actually added the initial requirement that the federal government treat people equally. According to Chief Justice Earl Warren in the Supreme Court case of Bolling v. Sharpe (1954), “discrimination may be so unjustifiable as to be violative of due process.”[2] Additional guarantees of equality are strengthened by the equal protection clause and due process clause of the Fourteenth Amendment, ratified in 1868, which states in part that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Thus, between the Fifth and Fourteenth Amendments, neither state governments nor the federal government may treat people unequally unless unequal treatment is necessary to maintain important governmental interests, like public safety. We can contrast civil rights with civil liberties, which are limitations on government power designed to protect our fundamental freedoms. For example, the Eighth Amendment prohibits the application of “cruel and unusual punishments” to those convicted of crimes, a limitation on government power— protecting a civil liberty. As an example of civil rights, the guarantee of equal protection means the laws and the Constitution must be applied on an equal basis, limiting the government’s ability to discriminate or treat some people differently, unless the unequal treatment is based on a valid reason, such as age. A law that imprisons Asian Americans twice as long as Latinos would treat some people differently from others for no valid reason and might well be unconstitutional—a civil rights violation. According to the Supreme Court’s interpretation of the Equal Protection Clause, “all persons similarly circumstanced shall be treated alike.”[3] If people are not similarly circumstanced, however, they may be treated differently. Asian Americans and Latinos who have broken the same law are similarly circumstanced; however, a blind driver or a ten- year-old driver is differently circumstanced than a sighted, adult driver. Identifying Discrimination Laws that treat one group of people differently from others are not always unconstitutional. In fact, the government engages in legal discrimination quite often. In most states, you must be eighteen years old to smoke cigarettes and twenty-one to drink alcohol; these laws discriminate against the young. To get a driver’s license so you can legally drive a car on public roads, you must be a minimum age and pass tests showing your knowledge, practical skills, and vision. For example, if you are attending a publicly funded community college, the college you attend has an open admission policy, which means it admits all who apply. Not all publicly funded colleges and universities have an open admissions policy, however. These institutions may require that students have a score on the SAT or ACT or a GPA above a certain number to be admitted. In a sense, this is discrimination, because these requirements treat people unequally; people who do not have a high enough GPA or SAT score are not admitted. Levels of Scrutiny How can the federal, state, and local governments discriminate in all these ways even though the equal protection clause seems to suggest that everyone be treated the same? Chart 16.3 Various Tests Employed by the Supreme Court in Decision Making Process The answer to this question lies in the purpose of the discriminatory practice. In most cases when the courts are deciding whether discrimination is unlawful, the government must demonstrate only that it has a good reason for engaging in it. Unless the person or group challenging the law can prove otherwise, the courts will generally decide the discriminatory practice is allowed. In these cases, the courts are applying the rational basis test. That is, as long as there’s a reason for treating some people differently that is “rationally related to a legitimate government interest,” the discriminatory act or law or policy is acceptable.[4] For example, since letting blind people operate cars would be dangerous to others on the road, the law forbidding them to drive is reasonably justified on the grounds of safety; thus, it is allowed even though it discriminates against the blind. Similarly, when universities and colleges refuse to admit students who fail to meet a certain test score or GPA, they can discriminate against students with weaker grades and test scores because these students most likely do not possess the knowledge or skills needed to do well in their classes and graduate from the institution. The universities and colleges have a legitimate reason for denying these students entrance. The courts, however, are much more skeptical when it comes to certain other forms of discrimination. Because of the United States’ history of discrimination against people of non-white ancestry, women, and members of ethnic and religious minorities, the courts apply more stringent rules to policies, laws, and actions that discriminate on the basis of race, ethnicity, gender, religion, or national origin.[5] Discrimination based on gender or sex is generally examined with intermediate scrutiny. The standard of intermediate scrutiny was first applied by the Supreme Court in Craig v. Boren (1976) and again in Clark v. Jeter (1988).[6] It requires the government to demonstrate that treating men and women differently is “substantially related to an important governmental objective.” This puts the burden of proof on the government to demonstrate why the unequal treatment is justifiable, not on the individual who alleges unfair discrimination has taken place. In practice, this means laws that treat men and women differently are sometimes upheld, although usually they are not. For example, in the 1980s and 1990s, the courts ruled that states could not operate single-sex institutions of higher education and that such schools, like South Carolina’s military college The Citadel must admit both male and female students.[7] Women in the military are now also allowed to serve in all combat roles.[8] While the first female cadets graduated from the U.S. Military Academy at West Point in 1980 (a), The Citadel, a military college in South Carolina (b), was an all-male institution until 1995 when a young woman named Shannon Faulkner enrolled in the school. (Credit: OpenStax included images) Image 16.3 Photos of Female Cadet Graduates and The Citadel Military College Discrimination against members of racial, ethnic, or religious groups or those of various national origins is reviewed to the greatest degree by the courts, which apply the strict scrutiny standard in these cases. Under strict scrutiny, the burden of proof is on the government to demonstrate that there is a compelling governmental interest in treating people from one group differently from those who are not part of that group—the law or action can be “narrowly tailored” to achieve the goal in question, and that it is the “least restrictive means” available to achieve that goal.[9] In other words, if there is a non-discriminatory way to accomplish the goal in question, discrimination should not take place. In the modern era, laws and actions that are challenged under strict scrutiny have rarely been upheld. Strict scrutiny, however, was the legal basis for the Supreme Court’s 1944 upholding of the legality of the internment of Japanese Americans during World War II, discussed later in this chapter.[10] Finally, affirmative action consists of government programs and policies designed to benefit members of groups historically subject to discrimination. Much of the controversy surrounding affirmative action is about whether strict scrutiny should be applied to these cases. In a 1995 Supreme Court decision, Adarand Constructors v. Pena, the Court stated that certain affirmative action programs must survive strict scrutiny and that the government must show that such programs serve a compelling governmental interest that is narrowly tailored as well as the least restrictive method available to achieve that particular governmental interest.[11] Some affirmative action programs have been struck down on the basis of strict scrutiny. Two close decisions by the Supreme Court involving affirmative action admission policies at the University of Michigan (Grutter v. Bollinger, 2003) and University of Texas (Fisher v. University of Texas, 2016) were upheld under the strict scrutiny test.[12] The Supreme Court ruled (in Students for Fair Admissions v. Harvard, 2023) that race-conscious admission policies of Harvard College failed the strict scrutiny test and violated the Equal Protection Clause of the 14th Amendment. On the same day, the Court also ruled against a similar admissions program at the University of North Carolina. The Court stated, “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping.”[13] Putting Civil Rights in the Constitution At the time of the nation’s founding, of course, the treatment of many groups was unequal: hundreds of thousands of people of African descent were not free, the rights of women were decidedly fewer than those of men, and the native peoples of North America were generally not considered U.S. citizens at all. While the early United States was perhaps a more egalitarian society than most of the world at that time, equal legal treatment of all persons was at best still a radical idea. The aftermath of the Civil War marked a turning point for civil rights. Many former Confederate Democrat politicians and their sympathizers returned to power and attempted to circumvent the freeing of slaves by passing laws known as the black codes. They passed laws designed to reduce former slaves to the status of serfs or indentured servants; blacks were not just denied the right to vote but also could be arrested and jailed for vagrancy or idleness if they lacked jobs. Moreover, Blacks were excluded from public schools and state colleges and were subject to violence at the hands of whites.[14] To override the southern states’ actions, lawmakers in Congress proposed two amendments to the Constitution designed to give political equality and power to former slaves; once passed by Congress and ratified by the necessary number of states, these became the Fourteenth and Fifteenth Amendments. The Fourteenth Amendment, in addition to including the equal protection clause as noted above, also was designed to ensure that the states would respect the civil liberties of freed slaves. The Fifteenth Amendment was proposed to ensure the right to vote for black men, which will be discussed in more detail later in this chapter. Identifying Civil Rights Issues When we look back at the past, it is relatively easy to identify civil rights issues that arose. But looking into the future is much harder. In past decades the rights of those with disabilities, particularly mental disabilities, were often ignored by the public Imagetitled Reproduction of a photograph 16.4“Ute UteIndians” Indian taken Familyby Nast Denver, Colorado of Denver, Colorado, in 1885. (Credit: Library of Congress; Denver Public Library, image X-30721.) Detroit Publishing Company Collection. at large. Many people with Copyright by the Detroit Photographic Co. Utes--Chief Sevara [i.e., Severo] and family; c1899; disabilities were institutionalized photomechanical print; Reproduction Number: LC-USZC4-4168 (color film copy transparency); Rights Advisory: No known restrictions on publication; Call Number: LOT 12914; Repository: Library and given little further thought, of Congress Prints and Photographs Division Washington, D.C. 20540 USA http://hdl.loc.gov/loc.pnp/pp.print.) and within the past century, it was common for those with mental disabilities to be subject to forced sterilization.[15] The passage of the 14th Amendment provided the vehicle for identifying and addressing civil rights issues relating to many groups that have faced unjust legal discrimination in the past. Several of the following sections of this chapter focus on civil rights concerns of these other groups for which the passage of the 14th Amendment facilitated the expansion of rights for these groups. ## QUESTIONS TO CONSIDER 1. How can the federal, state, or local government legally discriminate? Answer Only by demonstrating there is a legitimate compelling government interest in treating some people differently following the legal standard of 1) rational basis; 2) intermediate scrutiny or undue burden; and 3) strict scrutiny. 2. What is meant by the term equal protection? Answer no individual is treated differently than another under the law; it is a provision of the 14th Amendment that requires the states to treat all residents equally under the law ## TERMS TO REMEMBER affirmative action–the use of programs and policies designed to assist groups that have historically been subject to discrimination equal protection clause–a provision of the Fourteenth Amendment that requires the states to treat all residents equally under the law intermediate scrutiny–the standard used by the courts to decide cases of discrimination based on gender and sex; burden of proof is on the government to demonstrate an important governmental interest is at stake in treating men differently from women rational basis test–the standard used by the courts to decide most forms of discrimination; the burden of proof is on those challenging the law or action to demonstrate there is no good reason for treating them differently from other citizens strict scrutiny–the standard used by the courts to decide cases of discrimination based on race, ethnicity, national origin, or religion; burden of proof is on the government to demonstrate a compelling governmental interest is at stake and no alternative means are available to accomplish its goals ## WORKS CONSULTED 1. Constitutional Rights Foundation. "Race and Voting in the Segregated South," http://www.crf-usa.org/black-history-month/race-and-voting- in-the-segregated-south (April 10, 2016). ↵ 2. Bolling v. Sharpe, 347 U.S. 497 (1954). ↵ 3. Phyler v. Doe, 457 U.S. 202 (1982); F. S. Royster Guano v. Virginia, 253 U.S. 412 (1920). ↵ 4. Cornell University Law School: Legal Information Institute. "Rational Basis," https://www.law.cornell.edu/wex/rational_basis (April 10, 2016); Nebbia v. New York, 291 U.S. 502 (1934). ↵ 5. United States v. Carolene Products Co., 304 U.S. 144 (1938). ↵ 6. Craig v. Boren, 429 U.S. 190 (1976); Clark v. Jeter, 486 U.S. 456 (1988). ↵ 7. Mississippi University for Women v. Hogan, 458 U.S. 718 (1982); United States v. Virginia, 518 U.S. 515 (1996). ↵ 8. Matthew Rosenberg and Dave Philipps, "All Combat Roles Open to Women, Defense Secretary Says," New York Times, 3 December 2015; Rostker v. Goldberg, 453 U.S. 57 (1981); Steinhauer, Jennifer, "Senate Votes to Require Women to Register for the Draft," New York Times, 14 June 2016. http://www.nytimes.com/2016/06/15/us/politics/congress-women-military-draft.html ↵ 9. Johnson v. California, 543 U.S. 499 (2005). ↵ 10. Korematsu v. United States, 323 U.S. 214 (1944). ↵ 11. Adarand Constructors , Inc. v. Pena, 515 U.S. 200 (1995) 12. Grutter v. Bollinger, 539 U.S. 306 (2003) and Fisher v. University of Texas, No. 14-981 (2016) 13. Students for Fair Admissions v. Harvard, 2023, U.S. 600 14. "Mississippi Black Code," https://chnm.gmu.edu/courses/122/recon/code.html (April 10, 2016); "Black Codes and Pig Laws," http://www.pbs.org/tpt/slavery-by-another-name/themes/black-codes/ (April 10, 2016). ↵ 15. Catherine K. Harbour, and Pallab K. Maulik. 2010. "History of Intellectual Disability." In International Encyclopedia of Rehabilitation, eds. J. H. Stone and M. Blouin. http://cirrie.buffalo.edu/encyclopedia/en/article/143/ (April 10, 2016). ↵ ## LICENSES AND ATTRIBUTIONS CC LICENSED CONTENT, SHARED PREVIOUSLY - American Government. Authored by: OpenStax. Provided by: OpenStax; Rice University. Located at: https://cnx.org/contents/W8wOWXNF@12.1:Y1CfqFju@5/Preface. License: CC BY: Attribution. License Terms: Download for free at http://cnx.org/contents/9e28f580-0d1b-4d72-8795-c48329947ac2@1. • Share icon. Authored by: Quan Do. Provided by: The Noun Project. Located at: https://thenounproject.com/term/share/7671/. License: CC BY: Attribution • Adaption and Remix, and Original Content. Authored by: Deborah Smith Hoag. Provided by: Austin Community College. Located at: http://austincc.edu. Project: Achieving the Dream Grant. License: CC BY: Attribution ## 16.2 Civil Rights: The Struggle for Equality Image 16.5 Photo of Civil Rights March 1963 Photograph of “Civil Rights March on Washington, D.C.” Credit: Library of Congress Identifier 2003688164; 28 August 1963 by Warren K. Leffler; no known restrictions on use Chart 16.4 Learning Objectives on Civil Rights History Many groups in U.S. history have sought recognition as equal citizens. Although each group’s efforts have been notable and important, arguably the greatest, longest, and most violent struggle was that of African Americans, whose once-inferior legal status was supported by the text of the Constitution. Their fight for freedom and equality provided the legal and moral foundation for others who sought recognition of their equality later, and they were not alone in this fight. Slavery, the Civil War, and the Struggle for Equality In the Declaration of Independence, Thomas Jefferson wrote that “all men are created equal” and “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Yet, Jefferson owned dozens of other human beings as his personal property. He 533 recognized this contradiction and personally considered the institution of slavery to be a “hideous blot” on the nation.[1] However, in order to forge a stronger political union that would garner sufficient support to be enacted, the framers of the Constitution—chose not to postpone a decision on the issue. After the Revolution, while southern states continued to maintain slavery, many of the northern states did abolish slavery for a variety of reasons.[2] Ultimately, of course, the slavery issue was decided by the Civil War (1861–1865), with the Democrat controlled southern states seceding from the Union to defend their legal right to own slaves.[3] Chart 16.5 Excerpt from William Lloyd Garrison Speech on Anti-Slavery Reconstruction At the end of the Civil War, the South entered a period called Reconstruction (1865–1877) during which the state governments were reorganized before the rebellious states could be readmitted to the Union. As part of this process, the Republican Party pushed for a permanent end to slavery. A constitutional amendment to this effect was passed by the House of Representatives in January 1865, after having already been approved by the Senate in April 1864, and it was ratified in December 1865 as the Thirteenth Amendment. The amendment’s first section states, “Neither slavery nor involuntary 534 servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” In effect, this amendment outlawed slavery in the United States. The changes wrought by the Fourteenth Amendment were more extensive. In addition to introducing the equal protection clause to the Constitution, this amendment also extended the due process clause of the Fifth Amendment to the states, required the states to respect the privileges or immunities of all citizens, and, for the first time, defined citizenship at the national and state levels. People could no longer be excluded from citizenship based solely on their race. Although some of these provisions were rendered mostly toothless by the courts or the lack of political action to enforce them, others were pivotal in the expansion of civil rights. The Fifteenth Amendment stated that people could not be denied the right to vote based on “race, color, or previous condition of servitude.” This construction allowed states to continue to decide the qualifications of voters if those qualifications were ostensibly race-neutral. Although the immediate effect of these provisions was quite profound Reconstruction ended with the end of military rule in the South and the withdrawal of the Union army in 1877.[4] Following the army’s removal, political control of the South was once again in the hands of the Democrat Party and men willing to use violence to discourage blacks from exercising the rights they had been granted.[5] Image 16.6 Cartoon Related to the Grandfather Clause for Suffrage The revocation of voting rights, or disenfranchisement, took a A magazine cartoon from 1879 ridicules the practice number of forms; not every southern state used the same of illiterate, southern whites requiring that a “blakman” be “eddikated” before he could vote. The methods, and some states used more than one, but they all grandfather clause made such a situation possible. (Credit: Library of Congress: OpenStax included disproportionately affected black voter registration and image) turnout.[6] Perhaps the most famous of the tools of disenfranchisement were literacy tests and understanding tests. Literacy tests, which had been used in the North since the 1850s to disqualify naturalized European immigrants from voting, called on the prospective voter to demonstrate his (and later her) ability to read a passage of text. However, since voter registration officials had discretion to decide what text the voter was to read, they could give easy passages to voters they wanted to register and more difficult passages to those whose registration they wanted to deny. Understanding tests required the prospective voter to explain the meaning of a passage of text, often a provision of the U.S. Constitution, or answer a series of questions related to citizenship. Again, since the official examining the prospective voter could decide which passage or questions to choose, the difficulty of the test might vary dramatically between white and black applicants.[7] 535 Even had these tests been administered fairly and equitably, however, most blacks would have been at a huge disadvantage, because few could read. Some Blacks were able to take advantage of educational opportunities after they were freed from slavery, but many were not able to gain effective literacy. In some states, poorer, less literate white voters feared being disenfranchised by the literacy and understanding tests. Some states introduced a loophole, known as the grandfather clause, to allow illiterate whites to vote. The grandfather clause exempted those who had been allowed to vote in that state prior to the Civil War–and their descendants–from literacy and understanding tests.[8] Because blacks were not allowed to vote prior to the Civil War, but most white men had been voting at a time when there were no literacy tests, this loophole allowed most illiterate whites to vote while leaving obstacles in place for blacks who wanted to vote as well. Time limits were often placed on these provisions because state legislators Image 16.7 Black Voters 1945 realized that they might quickly be declared “Voters at the Voting Booths, ca. 1945.” (Credit: Prints and Photographs unconstitutional, but they lasted long enough to Division, Library of Congress) allow illiterate white men to register to vote.[9] In states where the voting rights of poor whites were less of a concern, another tool for disenfranchisement was the poll tax. This was an annual per-person tax, typically one or two dollars (on the order of $20 to $50 today), that a person had to pay to register to vote. People who did not want to vote did not have to pay, but in several states the poll tax was cumulative, so if you decided to vote you would have to pay not only the tax due for that year but any poll tax from previous years as well. Because former slaves were usually quite poor, they were less likely than white men to be able to pay poll taxes.[10] Image 16.8 Copy of Poll Tax Receipt According to this receipt, a man named A. S. White paid his $1 poll tax in Jefferson Parish, Louisiana, in 1917. (Credit: Library of Congress) Although these methods were usually enough to ensure that blacks were kept away from the polls, some dedicated African Americans did manage to register to vote despite the obstacles placed in their way. To ensure their vote was largely meaningless, the white elites used their control of the Democratic Party to create the white primary: primary elections in which only whites could vote. The state party organizations argued that as private groups, rather than part of the state government, they had no obligation to follow the Fifteenth Amendment’s requirement not to deny the right to vote based on race. Furthermore, they contended, voting for nominees to run for office was not the same as electing those who would hold office. They held primary elections to choose the Democratic nominee in which only white citizens were allowed to vote.[11] Once the nominee had been chosen, he or she might face token opposition from a Republican or minor- party candidate in the general election, but since white voters had agreed beforehand to support whoever won the Democrats’ primary, the outcome of the general election was a foregone conclusion. With blacks effectively disenfranchised, the restored southern state governments undermined guarantees of equal treatment in the Fourteenth Amendment. They passed laws that excluded African Americans from juries and allowed the imprisonment and forced labor of “idle” black citizens. The laws also called for segregation of whites and blacks in public places under the doctrine known as “separate but equal.” As long as nominally equal facilities were provided for both whites and blacks, it was legal to require members of each race to use the facilities designated for them. Similarly, state and local governments passed laws limiting what neighborhoods blacks and whites could live in. Collectively, these discriminatory laws came to be known as Jim Crow laws. The Supreme Court upheld the separate but equal doctrine in 1896 in Plessy v. Ferguson, consistent with the Fourteenth Amendment’s equal protection clause, and allowed segregation to continue.[12] Chart 16.6 Excerpt on Jim Crow Laws Civil Rights in the Courts By the turn of the twentieth century, the position of African Americans was quite bleak. Even outside the South, racial inequality was a fact of everyday life. African American leaders and thinkers themselves disagreed on the right path forward. Some, like Booker T. Washington, argued that acceptance of inequality and segregation over the short term would allow African Americans to focus their efforts on improving their educational and social status until whites were forced to acknowledge them as equals. W. E. B. Du Bois, however, argued for a more confrontational approach and in 1909 founded the National Association for the Advancement of Colored People (NAACP) as a rallying point for securing equality. Liberal whites dominated the organization in its early years, but African Americans assumed control over its operations in the 1920s.[13] The NAACP soon focused on a strategy of overturning Jim Crow laws through the courts. Perhaps its greatest series of legal successes consisted of its efforts to challenge segregation in education. Early cases brought by the NAACP dealt with racial discrimination in higher education. In 1938, the Supreme Court essentially gave states a choice: they could either integrate institutions of higher education, or they could establish an equivalent university or college for African Americans.[14] Southern states chose to establish colleges for blacks rather than allow them into all-white state institutions. Although this ruling expanded opportunities for professional and graduate education in areas such as law and medicine for African Americans by requiring states to provide institutions for them to attend, it nevertheless allowed segregated colleges and universities to continue to exist. The landmark court decision of the judicial phase of the civil rights May 18, 1896, the Supreme Court ruled separate-but-equal facilities constitutional on intrastate railroads. For some fifty years, the Plessy v. Ferguson decision upheld the principle of racial movement settled the Brown v. Board segregation. Across the country, laws mandated separate accommodations on buses and trains, and in hotels, theaters, and schools. (Credit: Russell Lee, photographer, 1903-1986, published of Education case in 1954.[15] In this July 1939, Library of Congress at http://hdl.loc.gov/loc.pnp/pp.fsaowi) case, the Supreme Court unanimously overturned its decision in Plessy v. Ferguson as it pertained to public education, stating that a separate but equal education was a logical impossibility. Even with the same funding and equivalent facilities, a segregated school could not have the same teachers or environment as the equivalent school for another race. The court also rested its decision in part on social science studies suggesting that racial discrimination led to feelings of inferiority among African American children. The only way to dispel this sense of inferiority was to end segregation and integrate public schools. It is safe to say this ruling was controversial. While integration of public schools took place without much incident in some areas of the South, particularly where there were few black students, elsewhere it was often confrontational—or nonexistent. In recognition of the fact that southern states would delay school integration for as long as possible, civil rights activists urged the federal government to enforce the Supreme Court’s decision. Organized by A. Philip Randolph and Bayard Rustin, approximately twenty-five thousand African Americans gathered in Washington, DC, on May 17, 1957, to participate in a Prayer Pilgrimage for Freedom.[16] A few months later, in Little Rock, Arkansas, Governor Orval Faubus resisted court-ordered integration and mobilized National Guard troops to keep black students out of Central High School. President Eisenhower then called up the Arkansas National Guard for federal duty (essentially taking the troops out of Faubus’s hands) and sent soldiers of the 101st Airborne Division to escort students to and from classes. To avoid integration, Faubus closed four high schools in Little Rock the following school year. [17] Image 16.9 Photo of Black Students Escorted to School by 101st Airborne Opposition to the 1957 integration of Little Rock’s all-white Central High School led President Eisenhower to call in soldiers of the 101st Airborne Division. For a year, they escorted nine African American students to and from school and to and from classes within the school. (Credit: The U.S. Army) In Virginia, state leaders employed a strategy of “massive resistance” to school integration, which led to the closure of a large number of public schools across the state, some for years.[18] Although de jure segregation, segregation mandated by law, had ended on paper, in practice (de facto segregation), few efforts were made to integrate schools in most school districts with substantial black student populations until the late 1960s. Many white southerners who objected to sending their children to school with blacks then established private academies that admitted only white students. [19] Advances were made in the courts in areas other than public education. In many neighborhoods in northern cities, which technically were not segregated, residents were required to sign restrictive real estate covenants promising that if they moved, they would not sell their houses to African Americans and sometimes not to Chinese, Japanese, Mexicans, Filipinos, Jews, and other ethnic minorities as well.[20] In the case of Shelley v. Kraemer (1948), the Supreme Court held that while such covenants did not violate the Fourteenth Amendment because they consisted of agreements between private citizens, their provisions could not be enforced by courts.[21] Because state courts are government institutions and the Fourteenth Amendment prohibits the government from denying people equal protection of the law, the courts’ enforcement of such covenants would be a violation of the amendment. Thus, if a white family chose to sell its house to a black family and the other homeowners in the neighborhood tried to sue the seller, the court would not hear the case. In 1967, the Supreme Court struck down a Virginia law that prohibited interracial marriage in Loving v. Virginia.[22] Legislating Civil Rights Beyond these favorable court rulings, however, progress toward equality for African Americans remained slow in the 1950s. In 1962, Congress proposed what later became the Twenty-Fourth Amendment, which banned the poll tax in elections to federal (but not state or local) office; the amendment went into effect after being ratified in early 1964. Several southern states continued to require residents to pay poll taxes in order to vote in state elections until 1966 when, in the case of Harper v. Virginia Board of Elections, the Supreme Court declared that requiring payment of a poll tax in order to vote in an election at any level was unconstitutional.[23] The slow rate of progress led to frustration within the Black community. Newer, grassroots organizations such as the Southern Christian Leadership Conference (SCLC), Congress of Racial Equality (CORE), and Student Non-Violent Coordinating Committee (SNCC) challenged the NAACP’s position as the leading civil rights organization and questioned its legal-focused strategy. These newer groups tended to prefer more confrontational approaches, including the use of direct action campaigns relying on marches and demonstrations. The strategies of nonviolent resistance and civil disobedience, or the refusal to obey an unjust law, had been effective in the campaign led by Mahatma Gandhi to liberate colonial India from British rule in the 1930s and 1940s. Civil rights pioneers adopted these measures in the 1955–1956 Montgomery bus boycott. After Rosa Parks refused to give up her bus seat to a white person and was arrested, a group of black women carried out a day-long boycott of Montgomery’s public transit system. This boycott was then extended for over a year and overseen by union organizer E. D. Nixon. The effort desegregated public transportation in that city.[24] Direct action also took such forms as the sit-in campaigns to desegregate lunch counters that began in Greensboro, North Carolina, in 1960, and the 1961 Freedom Rides in which black and white volunteers rode buses and trains through the South to enforce a 1946 Supreme Court decision that desegregated interstate transportation (Morgan v. Virginia).[25] While such focused campaigns could be effective, they often had little impact in places where they were not replicated. In addition, some of the campaigns led to violence against both the campaigns’ leaders and ordinary people; Rosa Parks, a longtime NAACP member and graduate of the Highlander Folk School for civil rights activists, whose actions had begun the Montgomery boycott, received death threats, E. D. Nixon’s home was bombed, and the Freedom Riders were attacked in Alabama.[26] As the campaign for civil rights continued and gained momentum, President John F. Kennedy called for Congress to pass new civil rights legislation, which began to work its way through Congress in 1963. 541 Although there was bipartisan support for this legislation, Democrats filibustered for 75 days before Republicans attained enough support to move the process forward. The Civil Rights Act of 1964 had wide-ranging effects on U.S. society. Not only did the act outlaw government discrimination and the unequal application of voting qualifications by race, but it also, for the first time, outlawed segregation and other forms of discrimination by most businesses that were open to the public, including hotels, theaters, and restaurants that were not private clubs. This act outlawed discrimination on the basis of race, ethnicity, religion, sex, or national origin by most employers, and it created the Equal Employment Opportunity Commission (EEOC) to monitor employment discrimination claims and help enforce this provision of the law. The provisions that affected private businesses and employers were legally justified not by the Fourteenth Amendment’s guarantee of equal protection of the laws but instead by Congress’s power to regulate interstate commerce.[27] Image 16.10 Photo of John Lewis and Other Civil Rights Protesters Being Assaulted by Law Enforcement John Lewis, the leader of Student Nonviolent Coordinating Committee, is beaten by a state trooper March 7, 1965, as he attempts to march with 600 others from Selma to Montgomery, Alabama, in a right to vote demonstration. Credit: National Archives at archives.gov/exhibits/eyewitness/html.php?section=2; “John Lewis (in the foreground) being beaten by state troopers, March 7, 1965.” Even though the Civil Rights Act of 1964 had a monumental impact over the long term, it did not end efforts by many southern whites to maintain the white-dominated political power structure in the region. Progress in registering African American voters remained slow in many states despite increased federal activity supporting it, so civil rights leaders including Rev. Dr. Martin Luther King, Jr. decided to draw the public eye to the area where the greatest resistance to voter registration drives were taking place. The Southern Christian Leadership Conference and Student Nonviolent Coordinating Committee particularly focused their attention on the city of Selma, Alabama, which had been the site of violent reactions against civil rights activities. The organizations’ leaders planned a march from Selma to Montgomery in March 1965. Their first attempt to march was violently broken up by state police and sheriff’s deputies. The second attempt was aborted because King feared it would lead to a brutal confrontation with police and violate a court order from a federal judge who had been sympathetic to the movement in the past. That night, three of the marchers, white ministers from the north, were attacked and beaten with clubs by members of the Ku Klux Klan; one of the victims died from his injuries. Televised images of the brutality against protesters and the death of a minister led to greater public sympathy for the cause. Eventually, a third march was successful in reaching the state capital of Montgomery.[28] The 1987 PBS documentary Eyes on the Prize won several Emmys and other awards for its coverage of major events in the civil rights movement, including the Montgomery bus boycott, the battle for school integration in Little Rock, the march from Selma to Montgomery, and Martin Luther King, Jr.’s leadership of the march on Washington, DC. The events at Selma galvanized support in Congress for a follow-up bill solely dealing with the right to vote. The Voting Rights Act of 1965 went beyond previous laws by requiring greater oversight of elections by federal officials. Literacy and understanding tests, and other devices used to discriminate against voters on the basis of race, were banned. The Voting Rights Act proved to have much more immediate and dramatic effect than the laws that preceded it; what had been a fairly slow process of improving voter registration and participation was replaced by a rapid increase of black voter registration rates—although white registration rates increased over this period as well.[29] Not all African Americans in the civil rights movement were comfortable with gradual change. Instead of using marches and demonstrations to change people’s attitudes, calling for tougher civil rights laws, or suing for their rights in court, they favored more immediate action that forced whites to give in to their demands. Men like Malcolm X, the leader of the Nation of Islam, and groups like the Black Panthers were willing to use violence to achieve their goals.[30] These activists called for Black Power and Black Pride, not assimilation into white society. Their position was attractive to many young African Americans, especially after Martin Luther King, Jr. was assassinated in 1968. Martin Luther King, Jr. (left) and Malcolm X (right) adopted different approaches to securing civil rights for African Americans. This occasion, a Senate debate of the Civil Rights Act of 1964, was the only time the two men ever met. (Credit: Texas Liberal and U.S. News and World Report) Continuing Challenges for African Americans The civil rights movement for African Americans did not end with the passage of the Voting Rights Act in 1965. For the last fifty years, the African American community has faced challenges related to both past and current discrimination; progress on both fronts remains slow, uneven, and often frustrating. Image 16.11 Photo of Dr. King and Malcolm X in 1964 Legacies of the de jure segregation of the past remain in much of the United States. Many African Americans still live in predominantly black neighborhoods where their ancestors were forced by laws and housing covenants to live.[31] Even those who live in the suburbs, once largely white, tend to live in suburbs that are mostly black.[32] Some two million African American young people attend schools whose student body is composed almost entirely of students of color.[33] During the late 1960s and early 1970s, efforts to tackle these problems were stymied by large-scale public opposition, not just in the South but across the nation. Attempts to integrate public schools through the use of busing—transporting students from one segregated neighborhood to another to achieve more racially balanced schools—were particularly unpopular and helped contribute to “white flight” from cities to the suburbs.[34] This white flight has created de facto segregation, a form of segregation that results from the choices of individuals to live in segregated communities without government action or support. Today, a lack of high-paying jobs in many urban areas, combined with persistent racism, has trapped many African Americans in poor neighborhoods. While the Civil Rights Act of 1964 created opportunities for members of the black middle class to advance economically and socially, and to live in the same neighborhoods as the white middle class did, their departure left many black neighborhoods 544 mired in poverty and without the strong community ties that existed during the era of legal segregation. Many of these neighborhoods also suffered from high rates of crime and violence.[35] Some police also appear, consciously or subconsciously, to engage in racial profiling: singling out blacks (and Latinos) for greater attention than members of other racial and ethnic groups, as the then FBI director has admitted.[36] When incidents of real or perceived injustice arise, as recently occurred after a series of deaths of young black men at the hands of police in Ferguson, Missouri; Staten Island, New York; and Baltimore, Maryland, some African Americans turn to the streets to protest because they believe that politicians—white and black alike—fail to pay sufficient attention to these problems. The most serious concerns of the black community today appear to revolve around poverty. While the public mood may have shifted toward greater concern about economic inequality in the United States, substantial policy changes to immediately improve the economic standing of African Americans in general have not occurred. Meanwhile, grassroots movements to improve neighborhoods and local schools have taken root in many black communities across America. ## AFFIRMATIVE ACTION One of the major controversies regarding race in the United States today is related to affirmative action, the practice of ensuring that members of historically disadvantaged or underrepresented groups have equal access to opportunities in education, the workplace, and government contracting. The phrase affirmative action originated in the Civil Rights Act of 1964 and Executive Order 11246, and it has drawn controversy ever since. The Civil Rights Act of 1964 prohibited discrimination in employment, and Executive Order 11246, issued in 1965, forbade employment discrimination not only within the federal government but by federal contractors and contractors and subcontractors who received government funds. Clearly, African Americans, as well as other groups, have been subject to discrimination in the past and present, limiting their opportunity to compete on a level playing field with those who face no such challenge. Opponents of affirmative action, however, point out that many of its beneficiaries are ethnic minorities from relatively affluent backgrounds, while whites and Asian Americans who grew up in poverty are expected to succeed despite facing many of the same handicaps. Because affirmative action attempts to redress discrimination on the basis of race or ethnicity, it is generally subject to the strict scrutiny standard, which means the burden of proof is on the government to demonstrate the necessity of racial discrimination to achieve a compelling governmental interest. In 1978, in Bakke v. California, the Supreme Court upheld affirmative action and said that colleges and universities could consider race when deciding whom to admit but could not establish racial quotas.[37] In 2003, the Supreme Court reaffirmed the Bakke decision in Grutter v. Bollinger, which said that taking race or ethnicity into account as one of several factors in admitting a student to a college or university was acceptable, but a system setting aside seats for a specific quota of minority students was not. [38] The Supreme Court effectively overruled Grutter and Bakke in 2023 in two cases involving the Harvard University and the University of North Carolina. On the important question of whether race should be a deciding factor or even a limited factor in who will be admitted to a particular college, the Supreme Court said no. Chief Justice Roberts writing for the majority stated, “The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”[39] Roberts wrote that these affirmative action programs “[…] lack sufficiently focused and measurable objectives warranting the use of race […].”[40] However, the Court stated that universities can still consider an applicants’ discussion of how race affected his or her life experiences, but their evaluation of any student must be “as an individual—not on the basis of race.”[41] ## QUESTIONS TO CONSIDER 1. How have voting rights been denied to individuals? Show Answer white-only primaries; poll taxes; literacy and understanding tests; etc. 2. Name two laws or amendments that helped remove de jure discrimination? Show Answer 13th, 14th, 15th, 19th, 24th, 26th Amendments, as well as the Civil Rights Act (1964) and the Voting Rights Act (1965), and etc. ## TERMS TO REMEMBER Brown v. Board of Education–the 1954 Supreme Court ruling that struck down Plessy v. Ferguson and declared segregation and “separate but equal” to be unconstitutional in public education civil disobedience–an action taken in violation of the letter of the law to demonstrate that the law is unjust de facto segregation–segregation that results from the private choices of individuals de jure segregation–segregation that results from government discrimination direct action–civil rights campaigns that directly confronted segregationist practices through public demonstrations disenfranchisement–the revocation of someone’s right to vote Dred Scott v. Sandford–the Court’s majority stated that Scott had no legal right to sue for his freedom because blacks (whether free or slave) were not and could not become U.S. citizens; Scott lacked the standing to even appear before the court; court also held that Congress lacked the power to decide whether slavery would be permitted in a territory that had been acquired after the Constitution was ratified, in effect prohibiting the federal government from passing any laws that would limit the expansion of slavery into any part of the West 546 grandfather clause–the provision in some southern states that allowed illiterate whites to vote because their ancestors had been able to vote before the Fifteenth Amendment was ratified Jim Crow laws–state and local laws that promoted racial segregation and undermined black voting rights in the south after Reconstruction literacy tests–tests that required the prospective voter in some states to be able to read a passage of text and answer questions about it; often used as a way to disenfranchise racial or ethnic minorities Loving v. Virginia–the Supreme Court ruling overturning Virginia law against interracial marriage Plessy v. Ferguson–the 1896 Supreme Court ruling that allowed “separate but equal” racial segregation under the equal protection clause of the Fourteenth Amendment poll tax–annual tax imposed by some states before a person was allowed to vote understanding tests–tests requiring prospective voters in some states to be able to explain the meaning of a passage of text or to answer questions related to citizenship; often used as a way to disenfranchise black voters white primary–a primary election in which only whites are allowed to vote 1. Lucia Stanton. 2008. "Thomas Jefferson and Slavery," https://www.monticello.org/site/plantation-and-slavery/thomas-jefferson-and- slavery#footnoteref3_srni04n. ↵ 2. "How Did Slavery Disappear in the North?" http://www.abolitionseminar.org/how-did-northern-states-gradually-abolish-slavery/(April 10, 2016); Nicholas Boston and Jennifer Hallam, "The Slave Experience: Freedom and Emancipation," http://www.pbs.org/wnet/slavery/experience/freedom/history.html (April 10, 2016). ↵ 3. Eric Foner. 1970. Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War. New York: Oxford University Press, 28, 50, 54. ↵ 4. ↵ 5. Dred Scott v. Sandford, 60 U.S. 393 (1857). ↵ 6. David M. Potter. 1977. The Impending Crisis, 1848–1861. New York: Harper & Row, 45. ↵ 7. David Herbert Donald. 1995. Lincoln. New York: Simon & Schuster, 407. ↵ 8. Erik Foner. 1988. Reconstruction: America’s Unfinished Revolution, 1863–1877. New York: Harper & Row, 524–527. ↵ 9. Ibid., 595; Alexander Keyssar. 2000. The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books, 105–106. ↵ 10. Keyssar, 114–115. ↵ 11. Keyssar, 111–112. ↵ 12. Plessy v. Ferguson, 163 U.S. 537 (1896). ↵ 13. "NAACP: 100 Years of History," https://donate.naacp.org/pages/naacp-history (April 10, 2016). ↵ 14. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). ↵ 15. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). ↵ 16. "Prayer Pilgrimage for Freedom," http://kingencyclopedia.stanford.edu/encyclopedia/encyclopedia/enc_prayer_pilgrimage_for_freedom_1957/ (April 10, 2016). ↵ 17. Jason Sokol. 2006. There Goes My Everything: White Southerners in the Age of Civil Rights. New York: Alfred A. Knopf, 116–117. ↵ 18. Ibid., 118–120. ↵ 19. Ibid., 120, 171, 173. ↵ 20. Robert M. Fogelson. 2005. Bourgeois Nightmares: Suburbia, 1870–1930. New Haven, CT: Yale University Press, 102–103. ↵ 21. Shelley v. Kraemer, 334 U.S. 1 (1948). ↵ 22. Loving v. Virginia, 388 U.S. 1 (1967). ↵ 23. Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). ↵ 24. "Gandhi, Mohandas Karamchand (1869– 1948)," http://kingencyclopedia.stanford.edu/encyclopedia/encyclopedia/enc_gandhi_mohandas_karamchand_1869_1948/index.html(April 10, 2016); "Nixon, E. D. (1899–1987)," http://www.blackpast.org/aah/nixon-e-d-nixon-1899-1987(April 10, 2016). ↵ 25. Morgan v. Virginia, 328 U.S. 373 (1946). ↵ 26. See Lynne Olson. 2002. Freedom’s Daughters: The Unsung Heroines of the Civil Rights Movement from 1830–1970. New York: Scribner, 97; D. F. Gore et al. 2009. Want to Start a Revolution? Radical Women in the Black Freedom Struggle. New York: New York University Press; Raymond Arsenault. 2007. Freedom Riders: 1961 and the Struggle for Racial Justice. New York: Oxford University Press. ↵ 27. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964), which built on Wickard v. Filburn, 317 U.S. 111 (1942). ↵ 28. See David Garrow. 1978. Protest at Selma. New Haven, CT: Yale University Press; David J. Garrow.1988. Bearing the Cross: Martin Luther King Jr. and the Southern Christian Leadership Conference. London: Jonathan Cape. ↵ 29. Keyssar, 263–264. ↵ 30. Louis E. Lomax. 1963. When the Word is Given: A Report on Elijah Muhammad, Malcolm X, and the Black Muslim World. Cleveland, OH: World Publishing, 173–174; David Farber. 1994. The Age of Great Dreams: America in the 1960s. New York: Hill and Wang, 207. ↵ 31. Dan Keating, "Why Whites Don’t Understand Black Segregation," Washington Post, 21 November 2014. https://www.washingtonpost.com/news/wonk/wp/2014/11/21/why-whites-dont-understand-black-segregation/. ↵ 32. Alana Semuels, "White Flight Never Ended," The Atlantic, 30 July 2015. http://www.theatlantic.com/business/archive/2015/07/white-flight-alive-and- well/399980/. ↵ 547 33. Lindsey Cook, "U.S. Education: Still Separate and Unequal," U.S. News and World Report, 28 January 2015. http://www.usnews.com/news/blogs/data- mine/2015/01/28/us-education-still-separate-and-unequal. ↵ 34. Sokol, 175–177. ↵ Jacqueline Jones. 1992. The Dispossessed: America’s Underclasses From the Civil War to the Present. New York: Basic Books, 274, 290–292. ↵ 35. James B. Comey. February 12, 2015. "Hard Truths: Law Enforcement and Race" (speech). https://www.fbi.gov/news/speeches/hard-truths-law-enforcement-and- race. ↵ 36. Julie Hirschfeld Davis and Binyamin Appelbaum, "Obama Unveils Stricter Rules Against Segregation in Housing," New York Times, 8 July 2015. http://www.nytimes.com/2015/07/09/us/hud-issuing-new-rules-to-fight-segregation.html?_r=0. ↵ 37. Bakke v. California, 438 U.S. 265 (1978). ↵ 38. Grutter v. Bollinger, 539 U.S. 306 (2003). ↵ 39. Students for Fair Admissions v. Harvard, 600 U.S. (2023) 40. Ibid. 41. Ibid. LICENSES AND ATTRIBUTIONS CC LICENSED CONTENT, SHARED PREVIOUSLY - American Government. Authored by: OpenStax. Provided by: OpenStax; Rice University. Located at: https://cnx.org/contents/W8wOWXNF@12.1:Y1CfqFju@5/Preface. License: CC BY: Attribution. License Terms: Download for free at http://cnx.org/contents/9e28f580-0d1b-4d72-8795-c48329947ac2@1. • Share icon. Authored by: Quan Do. Provided by: The Noun Project. Located at: https://thenounproject.com/term/share/7671/. License: CC BY: Attribution • Adaption and Remix, and Original Content. Authored by: Deborah Smith Hoag. Provided by: Austin Community College. Located at: http://austincc.edu. Project: Achieving the Dream Grant. License: CC BY: Attribution ## 16.3 Civil Rights: The Fight for Women’s Rights Image 16.12 Photograph of Women's Rights Protestors 2017 Women’s March on Washington; Credit: Mobilus in Mobili, 21 January 2017, 20:12; “Another Perspective” Licensing CC:SA Chart 16.7 Learning Objectives on Women's and Equal Rights Women of all races and ethnicities have long been legally discriminated against, and the women’s rights movement started at the same time as the movement to abolish slavery in the United States. Indeed, the women’s rights movement began largely as a result of the difficulties women encountered while trying to abolish slavery. The trailblazing Seneca Falls Convention for women’s rights was held in 1848--before the Civil War. Throughout most of the early nineteenth century, the abolition movement largely eclipsed the women’s movement. Women began to campaign actively again in the late nineteenth and early twentieth centuries for their political right to vote, and another movement for expanded women’s civil rights began in the 1960s. The Early Women’s Rights Movement and Women’s Suffrage October 1917, suffragists marched downImage 16.13 in New Fifth Avenue Photograph York of Women demanding Marching the right in They to vote. 1917 for Suffrage carried a petition that had been signed by one million women. (Credit: Library of Congress) At the time of the American Revolution and throughout the nineteenth century, women had few political or civil rights. Although single women could own property, married women could not. When women married, their separate legal identities were erased under the legal principle of coverture. Not only did women adopt their husbands’ names, but all personal property they owned legally became their husbands’ property. Husbands could not sell their wives’ real property without their permission, but they could manage it and retain the profits. If women worked outside the home, their husbands were entitled to their wages.[1] So long as a man provided food, clothing, and shelter for his wife, she was not legally allowed to leave him. Divorce was difficult and in some places impossible to obtain.[2] Higher education for women was not available, and women were barred from professional positions in medicine, law, and ministry. Women were not granted the right to vote by any of the states except New Jersey, which at first allowed all taxpaying property owners to vote. However, in 1807, the law changed to limit the vote to men. [3] Although women had few political and civil rights, they nevertheless played an important role in transforming American society. This was especially true in the 1830s and 1840s, a time when numerous social reform movements swept across the United States. Many women were active in these causes, especially the abolition movement and the temperance movement, which tried to end the excessive 550 consumption of liquor. They often found they were hindered in their efforts, however, either by the law (de jure) which limited their political rights of participation or by widely held beliefs (de facto) that they were weak, silly creatures who should leave important issues to men.[4] Many of these women realized that their effectiveness as reformers was limited by laws that prohibited married women from signing contracts and by social customs against women addressing male audiences. Without such rights, women found it difficult to rent halls in which to deliver lectures or to hire printers to produce antislavery literature. One of the leaders of the early women’s movement, Elizabeth Cady Stanton, was shocked and angered when she sought to attend an 1840 antislavery meeting in London, only to learn that women would not be allowed to participate and had to sit apart from the men. At this convention, she made the acquaintance of another American female abolitionist, Lucretia Mott, who was also appalled by the male reformers’ treatment of women.[5] Image 16.14 Photo of Elizabeth Cady Stanton and Children; Portrait of Lucretia Mott Elizabeth Cady Stanton (a) and Lucretia Mott (b) both emerged from the abolitionist movement as strong advocates of women’s rights. Credit: OpenStax included image. In 1848, Elizabeth Stanton and Lucretia Mott called for a women’s rights convention, the first ever held specifically to address the subject, at Seneca Falls, New York. At the Seneca Falls Convention, Stanton wrote the Declaration of Sentiments, which was modeled after the Declaration of Independence and proclaimed women were equal to men and deserved the same rights. Among the rights Stanton wished to see granted to women was suffrage--the right to vote. When called upon to sign the Declaration, some of the delegates feared that if women demanded the right to vote, the movement would be considered too radical and its members would become a laughingstock. The Declaration passed, but the resolution demanding suffrage was the only one that did not pass unanimously.[6] Other advocates of women’s equality, such as Susan B. Anthony, fought for rights for women besides voting, including the right to seek higher education. As a result of their efforts, several states passed laws 551 that allowed married women to retain control of their property and let divorced women keep custody of their children.[7] The Struggle for the Political Right to Vote Following the Civil War and the abolition of slavery, the women’s rights movement fragmented. Stanton and Anthony denounced the Fifteenth Amendment because it granted voting rights only to black men and not to women of any race.[8] The fight for women’s rights did not die, however. In 1869, Stanton and Anthony formed the National Woman Suffrage Association (NWSA), which demanded that the Constitution be amended to grant the right to vote to all women. In 1878, the amendment was first introduced in Congress. The American Woman Suffrage Association (AWSA) formed in the same year. They hoped to win the suffrage for women by working on a state-by-state basis instead of seeking to amend the Constitution.[9] Four western states—Utah, Colorado, Wyoming, and Idaho—did extend the right to vote to women in the late nineteenth century, but no other states did. Women were also granted the right to vote on matters involving liquor licenses, in school board elections, and in municipal elections in several states. However, this was often done because of stereotyped beliefs that associated women with moral reform and concern for children, not as a result of a belief in women’s equality. Furthermore, voting in municipal elections was restricted to women who owned property.[11] Finally, in 1890, the two suffragist groups united to form the National American Woman Suffrage Association (NAWSA). Image 16.15 Photo of Women Protesting Outside White House for Suffrage Members of the National Woman’s Party picketed outside the White House six days a week from January 10, 1917, when President Woodrow Wilson took office, until June 4, 1919, when the Nineteenth Amendment was passed by Congress. The protesters wore banners proclaiming the name of the institution of higher learning they attended. (Credit: Library of Congress) To call attention to their cause, members circulated petitions, lobbied politicians, and held parades in which hundreds of women and girls marched through the streets. The more radical National Woman’s Party (NWP), led by Alice Paul, advocated the use of stronger tactics. The NWP held public protests and picketed outside the White House.[10] Demonstrators were often beaten and arrested, and suffragists were subjected to cruel treatment in jail. When some, like Paul, began hunger strikes to call attention to their cause, their jailers force-fed them, an incredibly painful and invasive experience for the women.[11] Finally, in 1920, the triumphant passage of the Nineteenth Amendment granted all women the right to vote. The 2nd Women’s Rights Movement Just as the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments did not result in equality for African Americans, the Nineteenth Amendment did not end discrimination against women in education, employment, or other areas of life, which continued to be legal. Although women could vote, they very rarely ran for or held public office. Women continued to be underrepresented in the professions, and relatively few sought advanced degrees. Until the mid-twentieth century, the ideal in U.S. society was typically for women to marry, have children, and become housewives. Those who sought work for pay outside the home were routinely denied jobs because of their sex and, when they did find employment, were paid less than men. A second women’s rights movement emerged in the 1960s to address these problems. Title VII of the Civil Rights Act of 1964 prohibited discrimination in employment based on sex as well as race, color, national origin, and religion. Nevertheless, women continued to be denied jobs because of their sex and were often sexually harassed at the workplace. In 1966, feminists who were angered by the lack of progress made by women and by the government’s lackluster enforcement of Title VII organized the National Organization for Women (NOW). N.O.W. promoted workplace equality, including equal pay for women also calling for the greater presence of women in public office, the professions, and graduate and professional degree programs. The Equal Rights Amendment (ERA) N.O.W. also declared its support for the Equal Rights Amendment (ERA), which mandated equal treatment for all regardless of gender/sex. The ERA, written by Alice Paul and Crystal Eastman, was first proposed to Congress, unsuccessfully, in 1923. It was introduced in every Congress thereafter but did not pass both the House and the Senate until 1972. The amendment was then sent to the states for ratification with a deadline of March 22, 1979. Although many states ratified the amendment in 1972 and 1973, the ERA still lacked sufficient support as the deadline drew near. Opponents, including both women and men, argued that passage would subject women to military conscription and deny them alimony and custody of their children should they divorce.[12] In 1978, Congress voted to extend the deadline for ratification to June 30, 1982. Even with the extension, however, the amendment failed to receive the support of the required thirty-eight states; by the time the 553 deadline arrived, it had been ratified by only thirty-five, some of those had rescinded their ratification, and no new state had ratified the ERA during the extension period. Chart 16.8 Map Showing Equal Rights Ratification Statistics The map shows which states supported the ERA and which did not. The dark blue states ratified the amendment. The amendment was ratified but later rescinded in the light blue states and was ratified in only one branch of the legislature in the yellow states. The ERA was never ratified by the purple states. (Credit: OpenStax Chart) Although the ERA failed to be ratified, Title IX of the United States Education Amendments of 1972 passed into law as a federal statute (not as an amendment, as the ERA was meant to be). Title IX applies to all educational institutions that receive federal aid and prohibits discrimination on the basis of sex in academic programs, dormitory space, health-care access, and school activities including sports. Thus, if a school receives federal aid, it cannot spend more funds on programs for men than on programs for women. Despite the failure to ratify the ERA significant gains toward legal equality were achieved through Supreme Court decisions. In 1971, the Court ruled for the first time that gender discrimination was a direct violation of the 15th Amendment to the Constitution. This courts case created the opportunity to determine the appropriateness of laws that dealt with sex-based classifications.[13] In the same year, the Court held that Civil Rights Act required that persons with similar qualifications be given equal employment opportunities regardless of their sex.[14] The Court upheld a Pittsburgh ordinance in 1973, which made it illegal to indicate gender requirements in most job postings—a common newspaper practice before this court decision.[15] Continuing Challenges for Women There is no doubt that women have made great progress since the Seneca Falls Convention. Today, more women than men attend college, and they are more likely than men to graduate.[16] Women are represented in all the professions, and approximately half of all law and medical school students are women.[17] Women have held Cabinet positions and have been elected to Congress. They have run for president and vice president, and four female justices currently serve on the Supreme Court. Women are also represented in all branches of the military and can serve in combat. Nevertheless, women are still underrepresented in some jobs Figure 4 Image 16.16 Photo of Filipino Women and are less likely to hold executive positions than are men. Meeting in Washington D.C. Many believe the glass ceiling, an invisible barrier caused by Filipino Women’s Club Meeting Washington, D.C. 1944. (Credit: Library of discrimination, prevents women from rising to the highest Congress https://www.loc.gov/resource/fsa.8d42581) levels of American organizations, including corporations, governments, academic institutions, and religious groups. As a 2022 study by Pew Research Center has found, American women typically earn 82 cents for every dollar earned by men.[17] Women are also more likely to be single parents than are men.[18] As a result, more women live below the poverty line than do men, and, as of 2012, households headed by single women are twice as likely to be below the poverty line as those headed by single men.[19] Women remain underrepresented in elective offices. As of June 2021, women held only about 27 percent of seats in Congress and only about 31 percent of seats in state legislatures.[20] Women remain subject to sexual harassment in the workplace and are more likely than men to be the victims of domestic violence. Approximately one-third of all women have experienced domestic violence; one in five women is assaulted during her college years.[21] Women’s rights advocates also call for stricter enforcement of laws prohibiting sexual harassment and for harsher punishment such as mandatory arrest for perpetrators of domestic violence. The Dobbs v. Jackson Women’s Health Organization (2022) decision returned most decisions concerning abortion to the states, there is no longer a national standard for women to access abortion services.[22] While some have called for a more restricted access abortion at the state level, other women’s rights advocates have successfully expanded women’s access to abortion.[23] States such as Oregon and Colorado essentially have “no cut-off” on access, which includes “partial-birth” procedures at full term.[24] For example, many states have required abortion clinics to meet the same standards set for hospitals, such as corridor size and parking lot capacity, despite lack of evidence regarding the benefits of such standards. Abortion clinics, which are smaller than hospitals, often cannot meet such standards. Other restrictions include mandated counseling before the procedure and the need for minors to secure parental permission.[25] Furthermore, the federal government will not pay for abortions for low-income women except in cases of rape or incest or in situations in which carrying the fetus to term would endanger the life of the mother.[23] To address these issues, many have called for additional protections for women. These include laws mandating equal pay for equal work. According to the doctrine of comparable worth, people should be compensated equally for work requiring comparable skills, responsibilities, and effort. Thus, even though women are underrepresented in certain fields, they should receive the same wages as men if performing jobs requiring the same level of accountability, knowledge, skills, and/or working conditions, even though the specific job may be different. For example, garbage collectors are largely male. The chief job requirements are the ability to drive a sanitation truck and to lift heavy bins and toss their contents into the back of truck. The average wage for a garbage collector is $15.34 an hour.[26] Daycare workers are largely female, and the average pay is $9.12 an hour.[27] Chart 16.9 Illustration of Women's Earnings by Career Bureau of Labor Statistics, U.S. Department of Labor, The Economics Daily, Women’s median earnings 82 percent of men’s in 2016 on the Internet at https://www.bls.gov/opub/ted/2017/womens-median-earnings-82-percent-of-mens-in-2016.htm (July 28, 2017). However, the work arguably requires more skills and is a more responsible position. Daycare workers must be able to feed, clean, and dress small children; prepare meals for them; entertain them; give them medicine if required; and teach the basic skills. They must be educated in first aid and assume responsibility for the children’s safety. In terms of the skills and physical activity required and the associated level of responsibility of the job, daycare workers should be paid at least as much as garbage collectors and perhaps more. Women’s rights advocates also call for stricter enforcement of laws prohibiting sexual harassment, and for harsher punishment, such as mandatory arrest, for perpetrators of domestic violence. The website for the Women’s National History Project contains a variety of resources for learning more about the women’s rights movement and women’s history. It features a history of the women’s movement, a “This Day in Women’s History” page, and quizzes to test your knowledge. ## QUESTIONS TO CONSIDER 1. How have women acquired recognition of rights? Show Answer through a slow process of fighting de jure and de facto discrimination 2. Do women continue to experience unequal treatment? Show Answer personal opinion; open for debate ## TERMS TO REMEMBER comparable worth–a doctrine calling for the same pay for workers whose jobs require the same level of education, responsibility, training, or working conditions coverture–a legal status of married women in which their separate legal identities were erased Equal Rights Amendment (ERA)–the proposed amendment to the Constitution that would have prohibited all discrimination based on sex glass ceiling–an invisible barrier caused by discrimination that prevents women from rising to the highest levels of an organization—including corporations, governments, academic institutions, and religious organizations Title IX–the section of the U.S. Education Amendments of 1972 that prohibits discrimination in education on the basis of sex 1. Mary Beth Norton. 1980. Liberty’s Daughters: The Revolutionary Experience of American Women, 1750–1800. New York: Little, Brown, and Company, 46. ↵ 2. Ibid., 47. ↵ 3. Jan Ellen Lewis. 2011. "Rethinking Women’s Suffrage in New Jersey, 1776–1807," Rutgers Law Review 63, No. 3, http://www.rutgerslawreview.com/wp- content/uploads/archive/vol63/Issue3/Lewis.pdf. ↵ 4. Keyssar, 174. ↵ 5. Elizabeth Cady Stanton. 1993. Eighty Years and More: Reminiscences, 1815–1897. Boston: Northeastern University Press, 148. ↵ 6. Elizabeth Cady Stanton et al. 1887. History of Woman Suffrage, vol. 1. Cambridge, MA: Harvard University Press, 73. ↵ 7. Jean H. Baker. 2005. Sisters: The Lives of America’s Suffragists. New York: Hill and Wang, 109. ↵ 8. Keyssar, 178. ↵ 9. Keyssar, 184. ↵ 10. Keyssar, 214. ↵ 11. "Alice Paul," https://www.nwhm.org/education-resources/biography/biographies/alice-paul/ (April 10, 2016). ↵ 12. Deborah Rhode. 2009. Justice and Gender: Sex Discrimination and the Law. Cambridge, MA: Harvard University Press, 66–67. ↵ 13. Reed v. Reed, 404 U.S. 71 (1971) 14. Phillips v. Martin Marietta Corp. 400 U.S. 542 (1971) 15. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973) 16. "Current Numbers," http://www.cawp.rutgers.edu/current-numbers (April 10, 2016). ↵ 17. Pew Research Center, March 2023, Rakesh Koehler, “The Enduring Grip of the Gender Pay Gap” 18. Gretchen Livingston. 2 July 2013. "The Rise of Single Fathers," http://www.pewsocialtrends.org/2013/07/02/the-rise-of-single-fathers/. ↵ 19. "Poverty in the U.S.: A Snapshot," National Center for Law and Economic Justice, http://www.nclej.org/poverty-in-the-us.php. ↵ 20. "Current Numbers," http://www.cawp.rutgers.edu/current-numbers (January 10, 2019). ↵ 21. Statistics, http://www.ncadv.org/learn/statistics (April 10, 2016); “Statistics About Sexual Violence” 22. Texas State Library “History of Abortion Laws” 23. The Fuller Project “How Major abortion laws compare, state by state,” Erica Hensley 3 July 2023 24. Ibid. 25. Ibid. 26. Garbage Man Salary, http://www.payscale.com/research/US/Job=Garbage_Man/Hourly_Rate (April 10, 2016) 27. Child Care Worker Salary, http://www.payscale.com/research/US/Job=Child_Care-%2F_Day_Care_Worker/Hourly_Rate (April 10, 2016)Ledbetter v. Goodyear Tire and Rubber Co. 550 U.S.618 (2007) LICENSES AND ATTRIBUTIONS CC LICENSED CONTENT, SHARED PREVIOUSLY • American Government. Authored by: OpenStax. Provided by: OpenStax; Rice University. Located at: https://cnx.org/contents/W8wOWXNF@12.1:Y1CfqFju@5/Preface. License: CC BY: Attribution. License Terms: Download for free at http://cnx.org/contents/9e28f580-0d1b-4d72-8795-c48329947ac2@1. • Share icon. Authored by: Quan Do. Provided by: The Noun Project. Located at: https://thenounproject.com/term/share/7671/. License: CC BY: Attribution • Adaption and Remix, and Original Content. Authored by: Deborah Smith Hoag. Provided by: Austin Community College. Located at: http://austincc.edu. Project: Achieving the Dream Grant. License: CC BY: Attribution ## 16.4 Civil Rights: Native Americans--how has the fight expanded? Image 16.17 Photographs of Sarah Winnemucca and Dr. Charles Eastman Sarah Winnemucca (a), called the “Paiute Princess” by the press, and Dr. Charles Eastman (b), of the Lakota tribe, campaigned for Native American rights in the late nineteenth and early twentieth centuries. Winnemucca wears traditional dress for a publicity photograph. (Credit: OpenStax included image) Chart 16.10 Learning Objectives on Native Americans Native Americans have long suffered the effects of segregation and discrimination imposed by the U.S. government and supported by the larger white society. Ironically, Native Americans were not granted the full rights and protections of U.S. citizenship until long after African Americans and women were, with many having to wait until the Nationality Act of 1940 to become citizens.[1] This was long after the passage of the Fourteenth Amendment in 1868, which granted citizenship to African Americans but not, the Supreme Court decided in Elk v. Wilkins (1884), to Native Americans.[2] Native Americans Lose Their Land and Their Rights Following the American Revolution, the U.S. government assumed responsibility for conducting negotiations with Indian tribes, all of which were designated as sovereign nations, and regulating commerce with them. Because Indians were officially regarded as citizens of other sovereign nations, they were denied U.S. citizenship.[3] Although the federal government signed numerous treaties guaranteeing Indians the right to live in the places where they had traditionally farmed, hunted, or fished, land-hungry white settlers routinely violated these agreements and the federal government did little to enforce them.[4] In 1830, Congress passed the Indian Removal Act, which forced Native Americans to move west of the Mississippi River.[5] Not all tribes were willing to leave their land, however. The Cherokee resisted; and, in the 1820s, the state of Georgia tried numerous tactics to force them from their territory. Wishing to remain where they were, the tribe sued the state of Georgia.[6] In 1831, the Supreme Court decided in Cherokee Nation v. Georgia that Indian tribes were not sovereign nations, but also that tribes were entitled to their ancestral lands and could not be forced to move from them.[7] The next year, in Worcester v. Georgia, the Court ruled that whites could not enter tribal lands without the tribe’s permission. White Georgians, however, refused to abide by the Court’s decision, and President Andrew Jackson refused to enforce it.[8] Between 1831 and 1838, members of several Image 16.18 Portrait of John Ross southern tribes, including the Cherokees, were forced by the U.S. Army to move west along John Ross, as Cherokee chief, had to lead his people on the “Trail of Tears.” (Credit: Prints and Photographs Division, Library of Congress. Reproduction routes shown in the map on the following page. Number Lc-USZC4-3156) The forced removal of the Cherokees to Oklahoma Territory, which had been set aside for settlement by displaced tribes and designated Indian Territory, resulted in the death of one-quarter of the tribe’s population.[9] The Cherokees remember this journey as the Trail of Tears. Chart 16.11 Map Illustrating Trail of Tears Indian Removals After the passage of the Indian Removal Act, the U.S. military forced the removal of the Cherokee, Chickasaw, Choctaw, Creek, and Seminole from the Southeast to the western territory (present-day Oklahoma), marching them along the routes shown here. The lines in yellow mark the routes taken by the Cherokee on the Trail of Tears. By the time of the Civil War, most Indian tribes had been relocated west of the Mississippi. They were confined to reservations, which are federal lands set aside for their use where non-Indians could not settle. Reservation land was usually poor, however, and attempts to farm or raise livestock, not traditional occupations for most western tribes anyway, often ended in failure. Unable to feed themselves, the tribes became dependent on the Bureau of Indian Affairs (BIA) in Washington, DC, for support. Protestant missionaries could “adopt” various tribes, to convert them to Christianity and thus speed their assimilation. In an effort to hasten this process, Indian children were taken from their parents and sent to boarding schools, many of them run by churches, where they were forced to speak English and abandon their traditional cultures.[10] In 1887, the Dawes Severalty Act, another effort to assimilate Native Americans to white society, divided reservation lands into individual allotments. Native Americans who accepted these allotments and agreed to sever tribal ties were also given U.S. citizenship. All lands remaining after the division of reservations into allotments were offered for sale by the federal government to white farmers and ranchers. As a result, Indians swiftly lost control of reservation land.[11] In 1898, the Curtis Act dealt the final blow to Indian sovereignty by abolishing all tribal governments.[12] The Fight for Native American Rights As Indians were removed from their tribal lands and increasingly saw their traditional cultures being destroyed over the course of the nineteenth century, a movement to protect their rights began to grow. Sarah Winnemucca, member of the Paiute tribe, lectured throughout the east in the 1880s in order to acquaint white audiences with the injustices suffered by the western tribes.[13] Lakota physician Charles Eastman also worked for Native American rights. In 1924, the Indian Citizenship Act granted citizenship to all Native Americans born after its passage. Native Americans born before the act took effect, who had not already become citizens as a result of the Dawes Severalty Act or service in the army in World War I, had to wait until the Nationality Act of 1940 to become citizens. In 1934, Congress passed the Indian Reorganization Act, which ended the division of reservation land into allotments. It returned to Native American tribes the right to institute self-government on their reservations, write constitutions, and manage their remaining lands and resources. It also provided funds for Native Americans to start their own businesses and attain a college education.[14] Despite the Indian Reorganization Act, conditions on the reservations did not improve dramatically. Most tribes remained impoverished, and many Native Americans, despite the fact that they were now U.S. citizens, were denied the right to vote by the states in which they lived. States justified this violation of the Fifteenth Amendment by claiming that Native Americans might be U.S. citizens but were not state residents because they lived on reservations. Other states denied Native Americans voting rights if they did not pay taxes. [15] Despite states’ actions, the federal government continued to uphold the rights of tribes to govern themselves. Federal concern for tribal sovereignty was part of an effort on the government’s part to end its control of, and obligations to, Indian tribes. [16] In the 1960s, a modern Native American civil rights movement, inspired by the African American civil rights movement, began to grow. In 1969, a group of Native American activists from various tribes, part of a new Pan-Indian movement, took control of Alcatraz Island in San Francisco Bay, which had once been the site of a federal prison. They demanded federal recognition of their rights, they maintained control of the island for more than a year and a half. They claimed the land as compensation for the federal government’s violation of numerous treaties and offered to pay for it with beads and trinkets. In January 1970, some of the occupiers began to leave the island. Some may have been disheartened by the accidental death of the daughter of one of the activists. In May 1970, all electricity and telephone service to the island was cut off by the federal government, and many of the occupiers began to leave. In June, the few people remaining on the island were removed by the government. Though the goals of the activists were not achieved, the occupation of Alcatraz had brought national attention to the concerns of Native American activists.[17] In 1974, members of the American Indian Movement (AIM) and some two hundred Oglala Lakota supporters occupied the town of Wounded Knee on the Lakota tribe’s Pine Ridge Reservation in South Dakota, the site of an 1890 massacre of Lakota men, women, and children by the U.S. Army. Many of the Oglala were protesting the actions of their half-white tribal chieftain, who they claimed had worked too closely with the BIA. The occupiers also wished to protest the failure of the Justice Department to investigate acts of white violence against Lakota tribal members outside the bounds of the reservation. The occupation led to a confrontation between the Native American protestors and the FBI and U.S. Marshals. Violence erupted; two Native American activists were killed, and a marshal was shot. After the second death, the Lakota called for an end to the occupation and negotiations began with the federal government. Two of AIM’s leaders, Russell Means and Dennis Banks, were arrested, but the case against them was later dismissed.[18] Violence continued on the Pine Ridge Reservation for several years after the siege; the reservation had the highest per capita murder rate in the United States. Two FBI agents were among those who were killed. The Oglala blamed the continuing violence on the federal government.[19] Image 16.19 Photographs Illustrating Violence in the Struggle for Native American Rights A memorial stone (a) marks the spot of the mass grave of the Lakotas killed in the 1890 massacre at Wounded Knee. The bullet-riddled car (b) of FBI agent Ronald Williams reveals the level of violence reached during—and for years after—the 1973 occupation of the town. (Credit: OpenStax included images) The official website of the American Indian Movement provides information about ongoing issues in Native American communities in both North and South America. The current relationship between the U.S. government and Native American tribes was established by the Indian Self-Determination and Education Assistance Act of 1975. Under the act, tribes assumed control of programs that had formerly been controlled by the Bureau of Indian Affairs(BIA), such as education and resource management, and the federal government provided the funding.[20] Many tribes have also used their new freedom from government control to legalize gambling and to open casinos on their reservations. Although the states in which these casinos are located have attempted to control gaming on Native American lands, the Supreme Court and the Indian Gaming Regulatory Act of 1988 have limited their ability to do so.[21] The 1978 American Indian Religious Freedom Act granted tribes the right to conduct traditional ceremonies and rituals, including those that use otherwise prohibited substances like peyote cactus and eagle bones, which can be procured only from vulnerable or protected species.[22] In 2023, the U.S. Supreme Court ruled that Native American children can continue to be protected under federal law against being removed from their tribal communities for fostering or adoption, rejecting a petition from a white couple who argued that the provision was a form of racial discrimination. The decision upheld the Indian Child Welfare Act enacted in 1978 that gives Native Americans and tribal members preference in the adoption or foster care of Native American children.[23] Alaska Natives and Native Hawaiians Alaska Natives and Native Hawaiians suffered many of the same abuses as Native Americans, including loss of land and forced assimilation. Following the discovery of oil in Alaska, however, the state, to gain undisputed title to oil rich land, settled the issue of Alaska Natives’ land claims with the passage of the Alaska Native Claims Settlement Act in 1971. According to the terms of the act, Alaska Natives received 44 million acres of resource-rich land and more than $900 million in cash in exchange for relinquishing claims to ancestral lands to which the state wanted title.[24] Native Hawaiians also lost control of their land—nearly two million acres—after the Hawaiian Islands were annexed by the United States in 1893. Two acts passed by Congress in 1900 and 1959, when the territory was granted statehood, returned slightly more than one million acres of federally owned land to the state of Hawaii. The state was to hold it in trust and use profits from the land to improve the condition of Native Hawaiians.[25] Despite significant advances, Alaska Natives and Native Hawaiians still trail behind U.S. citizens of other ethnic backgrounds in many important areas. These groups continue to suffer widespread poverty and high unemployment. These minorities are also less likely than white Americans, African Americans, or Asian Americans to complete high school or college.[26] Many Alaskan tribes endure high rates of infant mortality, alcoholism, and suicide.[27] Native Hawaiians are also more likely to live in poverty than whites in Hawaii, and they are more likely than white Hawaiians to be homeless or unemployed.[28] Alaska Natives and Native Hawaiians have, since the 1960s, been somewhat successful in having lands restored to them or obtaining compensation for their loss. Despite these achievements, members of these groups still tend to be poorer, less educated, less likely to be employed, and more likely to suffer addictions or to be incarcerated than other racial and ethnic groups in the United States. ## QUESTION TO CONSIDER 1. What was one impact of the Dawes Act? Show Answer separation of families; discrimination against Native American culture; division of land; etc. 2. Why was there seemingly extra controversy over the rights of Native Americans? Show Answer lack of a clear legal understanding between citizenship in the United States and citizenship as an independent nation was exploited ## TERMS TO REMEMBER American Indian Movement (AIM)–the Native American civil rights group responsible for the occupation of Wounded Knee, South Dakota, in 1973 Dawes Severalty Act–another effort to assimilate Indians to white society, divided reservation lands into individual allotments Trail of Tears–the name given to the forced migration of the Cherokees from Georgia to Oklahoma in 1838–1839 1. Theodore Haas. 1957. "The Legal Aspects of Indian Affairs from 1887 to 1957," American Academy of Political Science 311, 12–22. ↵ 2. Elk v. Wilkins, (1884)112 U.S. 94. ↵ 3. See James Wilson. 1998. The Earth Shall Weep: A History of Native America. New York: Grove Press. ↵ 4. Ibid; Gloria Jahoda. 1975. Trail of Tears: The Story of American Indian Removal, 1813–1855. New York: Henry Holt. ↵ 5. See Wilson. 1998. The Earth Shall Weep. ↵ 6. See John Ehle. 1988. Trail of Tears: The Rise and Fall of the Cherokee Nation. New York: Doubleday; Theda Perdue and Michael Green. 2007. The Cherokee Nation and the Trail of Tears. New York: Penguin Books. ↵ 7. Cherokee Nation v. Georgia, 30 U.S. 1 (1831). ↵ 8. Francis Paul Prucha. 1984. The Great Father: The United States Government and American Indians, vol. 1. Lincoln: University of Nebraska Press, 212; Robert V. Remini. 2001. Andrew Jackson and His Indian Wars. New York: Viking, 257; Worcester v. Georgia, 31 U.S. 515 (1832). ↵ 9. Prucha, 241; Ehle, 390–392; Russell Thornton. 1991. "Demography of the Trail of Tears," In Cherokee Removal: Before and After, ed. William L. Anderson. Athens: University of Georgia Press, 75–93. ↵ 10. "Indian Reservations," http://ic.galegroup.com/ic/uhic/ReferenceDetailsPage/ReferenceDetailsWindow?zid=2a87fa28f20f1e66b5f663e76873fd 8c&action=2&catId=&documentId=GALE%7CCX3401802046&userGroupName=lnoca_hawken&jsid=f44511ddfece4faafab082109e34a5 39 (April10, 2016). ↵ 11. Ibid. ↵ 12. "Curtis Act (1898)," http://www.okhistory.org/publications/enc/entry.php?entry=CU006 (April 10, 2016). ↵ 13. See Gae Whitney Canfield. 1988. Sarah Winnemucca of the Northern Paiutes. Norman: University of Oklahoma Press. ↵ 14. Indian Reorganization Act of 1934 (P.L. 73–383); "Indian Reservations," http://ic.galegroup.com/ic/uhic/ReferenceDetailsPage/ReferenceDetailsWindow?zid=2a87fa28f20f1e66b5f663e76873fd 8c&action=2&catId=&documentId=GALE|CX3401802046&userGroupName=lnoca_hawken&jsid=f44511ddfece4faafab082109e34a539 (April 10, 2016). ↵ 15. Daniel McCool, Susan M. Olson, and Jennifer L. Robinson. 2007. Native Vote. Cambridge, MA: Cambridge University Press, 9, 19. ↵ 16. "Indian Reservations," http://ic.galegroup.com/ic/uhic/ReferenceDetailsPage/ReferenceDetailsWindow?zid=2a87fa28f20f1e66b5f663e76873fd 8c&action=2&catId=&documentId=GALE|CX3401802046&userGroupName=lnoca_hawken&jsid=f44511ddfece4faafab082109e34a539 (April 10, 2016). ↵ 17. See Troy R. Johnson. 1996. The Occupation of Alcatraz Island: Indian Self-Determination and the Rise of Indian Activism. Urbana: University of Illinois Press. ↵ 18. Emily Chertoff, "Occupy Wounded Knee: A 71-Day Siege and a Forgotten Civil Rights Movement," The Atlantic, 23 October 2012. http://www.theatlantic.com/national/archive/2012/10/occupy-wounded-knee-a-71-day-siege-and-a-forgotten-civil-rights- movement/263998/. ↵ 19. Ibid. ↵ 20. Public Law 93–638: Indian Self-Determination and Education Assistance Act, as Amended. ↵ 21. W. Dale Mason. 2000. Indian Gaming: Tribal Sovereignty and American Politics. Norman: University of Oklahoma Press, 60–64. ↵ 22. Public Law 95–341: American Indian Religious Freedom, Joint Resolution. ↵ 23. Haaland v. Brackeen 599 U.S. (2023) 24. U.S. Commission on Civil Rights, "Racism’s Frontier: The Untold Story of Discrimination and Division in Alaska," http://www.usccr.gov/pubs/sac/ak0402/ch2.htm (April 10, 2016). ↵ 25. Ryan Mielke, "Hawaiians’ Years of Mistreatment," Chicago Tribune, 4 September 1999. http://articles.chicagotribune.com/1999-09- 04/news/9909040141_1_hawaiians-oha-land-trust. ↵ 26. Jens Manuel Krogstad. 13 June 2014. "One-in-Four Native Americans and Alaska Natives Are Living in Poverty," http://www.pewresearch.org/fact-tank/2014/06/13/1-in-4-native-americans-and-alaska-natives-are-living-in-poverty/. ↵ 27. Karina L. Walters, Jane M. Simoni, and Teresa Evans-Campbell. 2002. "Substance Use Among American Indians and Alaska Natives: Incorporating Culture in an ‘Indigenist’ Stess-Coping Paradigm," Public Health Reports 117: S105. ↵ 28. Kehaulani Lum, "Native Hawaiians’ Trail of Tears," Chicago Tribune, 24 August 1999. http://articles.chicagotribune.com/1999-08- 24/news/9908240280_1_native-hawaiians-hawaiian-people-aleuts. ↵ ## LICENSES AND ATTRIBUTIONS CC LICENSED CONTENT, SHARED PREVIOUSLY - American Government. Authored by: OpenStax. Provided by: OpenStax; Rice University. Located at: https://cnx.org/contents/W8wOWXNF@12.1:Y1CfqFju@5/Preface. License: CC BY: Attribution. License Terms: Download for free at http://cnx.org/contents/9e28f580-0d1b-4d72-8795-c48329947ac2@1. • Share icon. Authored by: Quan Do. Provided by: The Noun Project. Located at: https://thenounproject.com/term/share/7671/. License: CC BY: Attribution • Adaption and Remix, and Original Content. Authored by: Deborah Smith Hoag. Provided by: Austin Community College. Located at: http://austincc.edu. Project: Achieving the Dream Grant. License: CC BY: Attribution ## 16.5 Civil Rights: Hispanics, Asian Americans, and Other Groups Image 16.20 Photo of Cesar Chavez and Other Protesters “Cesar Chavez, the head of the United Farm Workers Union, calls for the resignation of Walter Kintz, the first legal counsel for the state Agriculture Labor Relations Board, in Sacramento, Calif., on Sept. 16, 1975. Chavez’s efforts in California culminated in landmark legislation that protected the rights of the state’s farmworkers and created the ALRB.” (Credit: National Public Radio at thttp://www.npr.org/2016/08/02/488428577/ cesar-chavez-the-life- behind-a-legacy-of-farm-labor-rights; Credit Image: Associated Press/AP) Chart 16.12 Learning Objectives on Equal Rights for Various Groups of Citizens Hispanic/Latino Civil Rights Hispanics and Latinos in the United States have faced many of the same problems as African Americans and Native Americans. Although the terms Hispanic and Latino are often used interchangeably, they are not the same. Hispanic usually refers to native speakers of Spanish. Latino refers to people who come 567 from, or whose ancestors came from, Latin America. Latinos may be of any race or ethnicity; they may be of European, African, Native American descent, or they may be of mixed ethnic background. During the nineteenth century, Latinos were concentrated in Texas, California, Arizona, New Mexico, Nevada, Utah, and Colorado. Most were subject to discrimination and could find employment only as poorly paid migrant farm workers, railroad workers, and unskilled laborers.[1] In the early twentieth century, waves of violence aimed at Mexicans and Mexican Americans swept the Southwest. Mexican Americans in Arizona and in parts of Texas were denied the right to vote, which they had previously possessed by means of the poll tax and literacy tests. That is, legal tactics used to prevent Blacks from voting were sometimes applied to Mexican Americans. Mexican American children were barred from attending Anglo-American schools. During the Great Depression of the 1930s, Mexican immigrants and many Mexican Americans, both U.S.- born and naturalized citizens, living in the Southwest and Midwest were deported by the government so that Anglo-Americans could take the jobs that they had once held.[2] When the United States entered World War II, however, Mexicans were invited to immigrate to the United States as farm workers under the Bracero (bracero meaning “manual laborer” in Spanish) Program to make it possible for these American men to enlist in the armed services.[3] Mexican Americans and Puerto Ricans did not passively accept discriminatory treatment, however. In 1903, Mexican farm workers joined with Japanese farm workers, who were also poorly paid, to form the first union to represent agricultural laborers. In 1929, Latino civil rights activists formed the League of United Latin American Citizens (LULAC) to protest against discrimination and to fight for greater rights for Latinos.[4] Just as in the case of African Americans, however, true civil rights advances for Hispanics and Latinos did not take place until the end of World War II. Hispanic and Latino activists targeted the same discriminatory practices as did African Americans and used many of the same tactics to end them. In 1946, Mexican American parents in California, with the assistance of the NAACP, sued several California school districts that forced Mexican and Mexican American children to attend segregated schools. In the case of Mendez v. Westminster (1947), the Court of Appeals for the Ninth Circuit Court held that the segregation of Mexican and Mexican American students into separate schools was unconstitutional.[5] In the case of Texas Mexican Americans, LULAC and others led the effort for educational access. In Delgado v. Bastrop Independent School District (1948), the U.S. District Court for the western District of Texas ruled that segregation of Mexican Americans violated the 14th Amendment.[6] Because of the loophole provided in the decision, some school districts continued to find ways to use segregation with regards to Mexican American students. The school districts said they were not segregating based on race, but based on what was needed to benefit the child due to a lack of English proficiency.[7] The Delgado decision, however, started the effort to undermine the rigid segregation of Mexican Americans and began a ten-year struggle led by the American G.I. Forum and LULAC, which culminated in 1957 with the decision in Hernandez et al. v. Driscoll Consolidated ISD—ending legal segregation in the Texas public school system.[8] In 1954, the Supreme Court ruled qualified Mexican Americans could not be excluded as jurors. In a unanimous ruling the court held that all nationality groups in the US have equal protection under the 14th Amendment.[9] Although Latinos made some civil rights advances in the decades following World War II, discrimination continued. Alarmed by the large number of persons without legal immigration authority crossing the border into the United States in the 1950s, the United States government began Operation Wetback (wetback is a derogatory term for Mexicans living without legal authorization in the United States). From 1953 to 1958, more than three million Mexican immigrants, and some Mexican Americans as well, were deported from California, Texas, and Arizona.[10] During the 1960s, Mexican American civil rights movement grew stronger, just as the African American civil rights movement had done. While African Americans demanded Black Power and called for Black Pride, some young Mexican American civil rights activists called for Brown Power and began to refer to themselves as Chicanos, a term disliked by many older, conservative Mexican Americans, in order to stress their pride in their hybrid Spanish-Native American cultural identity.[11] Demands by Mexican American activists often focused on improving education for their children, and they called upon school districts to hire teachers and principals who were bilingual in English and Spanish, to teach Mexican and Mexican American history, and to offer instruction in both English and Spanish for children with limited ability to communicate in English.[12] In the Supreme Court case, Lau v. Nichols (1974), school districts nationwide were ordered to assure equal access to educational opportunity. This permitted bilingual teaching but did not mandate it.[13] Bilingual education remains controversial, even among Hispanics and Latinos. Some feel bilingual education slows down learning English, which stigmatizes students by separating them. ## EAST L.A. STUDENT WALKOUTS In March 1968, Chicano students at five high schools in East Los Angeles went on strike to demand better education for students of Mexican ancestry. Los Angeles schools did not allow Latino students to speak Spanish in class and gave no place to study Mexican history in the curriculum. Guidance counselors also encouraged students, regardless of their interests or ability, to pursue vocational careers instead of setting their sights on college. Some students were placed in classes for the mentally challenged even though they were of normal intelligence. As a result, the dropout rate among Mexican American students was very high. School administrators refused to meet with the student protesters to discuss their grievances. After a week, police were sent in to end the strike. Thirteen of the organizers of the walkout were arrested and charged with conspiracy to disturb the peace. After Sal Castro, a teacher who had led the striking students, was dismissed from his job, activists held a sit-in at school district headquarters until Castro was reinstated. Student protests spread across the Southwest, and in response many schools did change. That same year, Congress passed the Bilingual Education Act, which required school districts with large numbers of Hispanic or Latino students to provide instruction in Spanish.[14] Mexican American civil rights leaders were active in other areas as well. Throughout the 1960s, Cesar Chavez and Dolores Huerta fought for the rights of Mexican American agricultural laborers through their organization, the United Farm Workers (UFW), a union for migrant workers they founded in 1962. Chavez, Huerta, and the UFW proclaimed their solidarity with Filipino farm workers by joining them in a strike against grape growers in Delano, California, in 1965. Chavez consciously adopted the tactics of the African American civil rights movement. In 1965, he called upon all U.S. consumers to boycott California grapes, and in 1966, he led the UFW on a 300-mile march to Sacramento, the state capital, to bring the state farm workers’ problems to the attention of the entire country. The strike finally ended in 1970 when the grape growers agreed to give the pickers better pay and benefits.[15] Image 16.21 Photo of United Farm Workers Protesters and Boycott Poster Protestors picket a grocery store in 1973, urging consumers not to buy grapes or lettuce picked by underpaid farm workers (a). The boycott, organized by Cesar Chavez and the United Farm Workers using the slogan “Sí se puede” or “Yes, it can be done!” (b), ultimately forced California growers to improve conditions for migrant laborers. (Credit: OpenStax included images) As both legally authorized and unauthorized Latino immigration to the United States increased in the late twentieth and early twenty-first centuries, discrimination also increased in many places toward these immigrants. In 1994, California voters passed Proposition 187. The proposition sought to deny non- emergency health services, food stamps, welfare, and Medicaid to unauthorized immigrants. It also 570 banned children from attending public school unless they could present proof that they and their parents were legal residents of the United States. A federal court found it unconstitutional in 1997 on the grounds that the law’s intention was to regulate immigration, a power held only by the federal government. [16] Although the bill did not pass the U.S. Congress, in 2005 legislation was proposed to make it a felony to enter the U.S. illegally or to give assistance to anyone who had done this. Following the failure to make undocumented immigration a felony under federal law, several states attempted to impose their own sanctions on unauthorized entry. Although the bill quickly died, on April 2010, Arizona passed a law that made unauthorized immigration a state crime. The law also forbade undocumented immigrants from seeking work and allowed law enforcement officers to arrest people suspected of being in the U.S. illegally. Thousands protested the law, claiming that it encouraged racial profiling. In 2012, in Arizona v. United States, the U.S. Supreme Court struck down those provisions of the law that made it a state crime to reside in the United States illegally, forbade undocumented immigrants to take jobs, and allowed the police to arrest those suspected of being illegal immigrants.[17] The court, however, upheld the authority of the police to ascertain the immigration status of someone suspected of being an undocumented alien if the person had been stopped or arrested by the police for other reasons.[18] Today, Latinos constitute the largest minority group in the United States. Topics that remain at the forefront of public debate include comprehensive immigration reform, preventing unauthorized entry into the United States, and the DREAM Act—a proposal for granting permanent residency and eventual citizenship to youths who entered the U.S. with unauthorized parents. The Trump administration was very active on issues of unauthorized immigration including plans to build a border wall and developing a policy to require unauthorized immigrants claiming asylum to “stay in Mexico” while waiting for their hearing. The Biden administration has reversed many of these policies, but significant dispute remains on how to proceed with border security and the handling of unauthorized immigrants. Asian American Civil Rights Because Asian Americans are often stereotypically regarded as “the model minority” (it is assumed they are generally financially successful and do well academically), it is easy to forget that they have also often been discriminated against and denied their civil rights. Indeed, in the nineteenth century, Asians were among the most despised of all immigrant groups and were often subjected to the same laws enforcing segregation and forbidding interracial marriage as were African Americans and American Indians. The Chinese were the first large group of Asians to immigrate to the United States. They arrived in large numbers in the mid-nineteenth century to work in the mining industry and on the Central Pacific Railroad. Others worked as servants or cooks or operated laundries. Their willingness to work for less money than whites led white workers in California to call for a ban on Chinese immigration. In 1882, Congress passed the Chinese Exclusion Act, which prevented Chinese from immigrating to the United States for ten years and prevented Chinese already in the country from becoming citizens. In 1892, the Geary Act extended the ban on Chinese immigration for another ten years. In 1913, California passed a law preventing all Asians, not just the Chinese, from owning land. With the passage of the Immigration 571 Act of 1924, all Asians, with the exception of Filipinos, were prevented from immigrating to the United States or becoming naturalized citizens. Laws in several states barred marriage between Chinese and white Americans, and some cities with large Asian populations required Asian children to attend segregated schools.[19] During World War II, citizens of Japanese descent living on the West Coast, whether naturalized immigrants or Japanese Americans born in the United States, were subjected to the indignity of being removed from their communities and interned under Executive Order 9066. The reason was fear that they might prove disloyal to the United States and give assistance to Japan. Although Italians and Germans suspected of disloyalty were also interned by the U.S. government, only the Japanese were imprisoned solely based on their ethnicity. None of the more than 110,000 Japanese and Japanese Americans internees was ever found to have committed a disloyal act against the United States, and many young Japanese American men served in the U.S. army during the war.[20] Although Japanese American Fred Korematsu challenged the right of the government to imprison law- abiding citizens, the Supreme Court decision in the 1944 case of Korematsu v. United States upheld the actions of the government as a necessary precaution in a time of war.[21] When internees returned from the camps after the war was over, many of them discovered that the houses, cars, and businesses they had left behind, often in the care of white neighbors, had been sold or destroyed.[22] Image 16.22 of Japanese Americans at an Internment Camp in California Japanese Americans displaced from their homes by the U.S. government during World War II stand in line outside the mess hall at a relocation center in San Bruno, California, on April 29, 1942. (Credit: Library of Congress) Explore the resources at Japanese American Internment and Digital History to learn more about experiences of Japanese Americans during World War II. The growth of the African American, Hispanic, and Native American civil rights movements in the 1960s inspired many Asian Americans to demand their own rights. Discrimination against Asian Americans, regardless of national origin, increased during the Vietnam War. Ironically, violence directed indiscriminately against Chinese, Japanese, Koreans, and Vietnamese caused members of these groups to unite around a shared pan-Asian identity, much as Native Americans had in the Pan-Indian movement.[23] In 1974, in the previously mentioned case of Lau v. Nichols, it was Chinese American students in San Francisco who sued the school district, claiming its failure to provide them with assistance in learning English denied them equal educational opportunities.[24] The Supreme Court found in favor of the students. Although discrimination persists, Americans of Asian ancestry are generally more successful than members of other ethnic groups. They have higher rates of high school and college graduation and higher average income than other groups.[25] Although educational achievement and economic success do not protect them from discrimination, it does place them in a much better position to defend their rights. In 2023, in Students for Fair Admissions v. President and Fellows of Harvard College, the Court held that Harvard College’s admissions system discriminated against Asian American students and did not comply with the principles of the equal protection clause of the 14th Amendment. Justice Roberts, writing for the majority, stated that Black applicants were 4 to 10 times as likely to be admitted to Harvard than similarly qualified Asian American students.[26] Civil Rights and the LGBTQ Community Laws against homosexuality existed in most states throughout the nineteenth and twentieth centuries. [27] As a result, lesbians, gay men, bisexuals, and transgender people, collectively known as the LGBTQ community, had to keep their sexual orientation hidden. The secrecy made it difficult to organize to fight for their rights as other, more visible groups had done. Some organizations did exist, however. The Mattachine Society, established in 1950, was one of the first groups to champion the rights of gay men. Its goal was to unite gay men who otherwise lived in secrecy and to fight against abuse. The Mattachine Society often worked with the Daughters of Bilitis, a lesbian rights organization. Among the early issues targeted by the Mattachine Society was police entrapment of male homosexuals.[28] In June 1969, gay men, lesbians, and transgender people erupted in violence when New York City police attempted to arrest customers at a gay bar in Greenwich Village called the Stonewall Inn. The patrons’ ability to resist arrest and fend off the police inspired many members of New York’s LGBTQ community, and the riots persisted over several nights. In 1969 following Stonewall, several new more confrontational organizations were formed promoting LGBTQ rights in a manner similar to other civil rights movements. These groups, like the Gay Activists Alliance and the Gay Liberation Front, called not just for equality before the law and protection against abuse but also for “liberation,” Gay Power, and Gay Pride.[29] In 1973, the American Psychological Association ended its classification of homosexuality as a 573 mental disorder. In 1994, the U.S. military adopted the policy of “Don’t ask, don’t tell.” This act, Department of Defense Directive 1304.26, officially prohibited discrimination against suspected gays, lesbians, and bisexuals by the U.S. military. It also prohibited superior officers from asking about or investigating the sexual orientation of those below them in rank.[30] Those who spoke openly about their sexual orientation were subject to dismissal because it remained illegal for anyone except heterosexuals to serve in the armed forces. The policy ended in 2011.[31] Transgender people were banned from serving in the military in 1960. The ban lasted until 2016, when the government began a gradual process of expanding and altering the limitations on their service. In early 2021, the Biden Administration announced that there would no longer be a restriction on military service by transgender individuals, that medical support for gender transition would be provided, and that procedures would be developed to change a service member’s official gender marker. In 2003, in the case of Lawrence v. Texas, the Supreme Court, in a landmark decision, ruled unconstitutional state laws that criminalized sexual intercourse between consenting adults of the same sex.[32] The Court held that intimate consensual sexual conduct was part of the liberty protected by the due process clause of the 15th Amendment of the U.S. Constitution. The Court overturned its previous ruling on the same issue in the 1986 case, where it did not find a constitutional protection of sexual privacy. Justice Kennedy wrote, “The petitioners [Lawrence and Garner] are entitled to respect for their private lives.”[33] Chart 16.13 Excerpt from Lawrence v. Texas 2003 LGBTQ marital rights have also significantly changed in recent years triggered by the interaction of state legislative and judicial action, federal legislative action, and decisions of the U.S. Supreme Court culminating in the decision in Obergefell v. Hodges declaring same-sex marriage a constitutional right.[34] . Image 16.23 Photo of Marriage Equality Protesters On June 26, 2015, supporters of marriage equality in front of the U.S. Supreme Court building eagerly await the announcement of a decision in the case of Obergefell v. Hodges. (Credit: OpenStax included image; Matt Popovich) In particular, in light of a 1993 ruling in which the Hawaii Supreme Court asserted that the state’s ban on same-sex marriage was unconstitutional, a number of states became worried that they would be required to recognize those marriage certificates because under Article IV, Section 1 of the U.S. Constitution (known as the full faith and credit clause) state are required to accept court decisions, public acts, and contracts of other states. To address this concern, Congress passed and President Clinton signed the Defense of Marriage Act (DOMA) in 1996. The law declared that “no state (or political subdivision within the United States) need recognize a marriage between person of the same sex, even if the marriage was concluded or recognized in another state.” The law defined marriage as a union between a man and a woman, which meant that same-sex couples were denied various federal provisions and benefits—such as the right to file joint tax returns and receive Social Security survivor benefits. DOMA clearly made the topic a state matter. Scores of states considered legislation and ballot initiatives on the question. By 1997, more than half of the states in the union had passed some form of legislation banning same-sex marriage, and by 2006 twenty-seven states had passed constitutional bans on same- sex marriage. Beginning in 2000, several states made it possible for same-sex couples to enter into legal relationships known as civil unions or domestic partnerships. These arrangements extended many of the same protections enjoyed by heterosexual married couples to same-sex couples. LGBTQ activists, however, continued to fight for the right to marry. Same-sex marriages would allow partners to enjoy the same rights as married heterosexual couples and accord their relationships the same dignity and importance. 575 In 2004, Massachusetts became the first state to grant legal status to same-sex marriage. Other states followed. While many states passed laws banning same-sex marriage, and many gay and lesbian couples challenged these laws in the courts. In 2012 in United States v. Windsor, the Supreme Court changed the dynamic established by DOMA by ruling that the federal government had no authority to define marriage. The Court held that states possess the “historic and essential authority to define the marital relation,” and that the federal government’s involvement in this are “departs from this history and tradition of reliance on state law to define marriage.”[36] Following the Windsor decision, the number of states that recognized same-sex marriages increased rapidly. In 2015, marriage equality was recognized in thirty-six states plus Washington, D.C.—up from seventeen in 2013. The diffusion of marriage equality across states was driven in large part by federal district sand appeals courts, which have used the rationale underpinning the Windsor case Image 16.24 Photo of Marriage Equality Supporters Thanking Edith Windsor (i.e., laws cannot discriminate between Credit: SCOTUS 26195, 26 June 2013, Wikimedia Commons, Flickr, tedeytan same-sex and different-sex couples based on the equal protection clause of the Fourteenth Amendment) to invalidate state bans on same-sex marriage. The 2014 Court decision not to hear a collection of cases from four different states essentially affirmed same-sex marriage in thirty states. Then, in 2015, the Obergefell v. Hodges case had a sweeping effect when the Supreme Court clearly identified a constitutional right to marriage.[37] The majority held that state same-sex marriage bans are a violation of the 14th Amendment’s Due Process and Equal Protection clauses. The Court states, “The Constitution promises liberty to all within its reach […] a liberty that includes c specific rights that allow persons, within a lawful realm, to define and express their identity.”[38] Following swiftly upon the heels of the Obergefell ruling, the Indiana legislature passed a Religious Freedom Restoration Act (RFRA). Congress had already passed such a law in 1993; it was intended to extend protection to minority religions, such as allowing rituals of the Native American Church. However, the Supreme Court in City of Boerne v. Flores (1997) ruled that the 1993 law applied only to the federal government and not to state governments.[39] Thus, several state legislatures later passed their own Religious Freedom Restoration Acts. These laws state that the government cannot “substantially burden an individual’s exercise of religion” unless it would serve a “compelling governmental interest” to do so. The enactment of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, also known as the Matthew Shepard Act, in 2009 made it a federal hate crime to attack someone based on his or her gender, gender identity, sexual orientation, or disability and made it easier for federal, state, and local authorities to investigate hate crimes. 576 LGBTQ Americans still encounter difficulties in other areas as well, such as housing discrimination. The federal Department of Housing and Urban Development has indicated that refusing to rent or sell homes to transgender people may be considered sex discrimination, but there is no nationwide clarity on the law.[40] However, the Supreme Court did rule in 2020 in Bostock v. Clayton that employers cannot discriminate based on sexual orientation and transgender status. Justice Neil Gorsuch delivered the opinion of the Court in this case in which the Court held that Title VII protections of the Civil Rights Act did extend to cover sexual orientation and gender identity. Gorsuch wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”[41] Civil Rights and the Americans with Disabilities Act People with disabilities make up one of the last groups whose civil rights have been recognized. For a long time, they were denied employment and access to public education, especially if they were mentally or developmentally challenged. Many were merely institutionalized. A Progressive Era eugenics movement in the United States in the late nineteenth and early to mid- twentieth centuries sought to encourage childbearing among physically and mentally fit individuals and discourage it among those with physical or mental disabilities. Many states passed laws prohibiting marriage among people who had what were believed to be hereditary “defects.” Among those affected were the blind or deaf, those with epilepsy, people with mental or developmental disabilities, and those suffering mental illnesses. In some states, programs existed to sterilize people considered “feeble minded” by the standards of the time, without their will or consent.[42] When this practice was challenged by a woman in a state institution in Virginia, the Supreme Court, in the 1927 case of Buck v. Bell, upheld the right of state governments to sterilize those people believed likely to have children who would become dependent upon public welfare.[43] Some of these programs persisted into the 1970s, as the map below shows.[44] Chart 16.14 Map Illustrating Forced Sterilizations in North Carolina The map shows the number of sterilizations performed by the state in each of the counties of North Carolina between July 1946 and June 1968. Nearly five hundred sterilizations took place during this time period in the purple county. (Credit: OpenStax included image) By the 1970s, however, concern for extending equal opportunities to all led to the passage of two important acts by Congress. In 1973, the Rehabilitation Act made it illegal to discriminate against people with disabilities in federal employment or in programs run by federal agencies or receiving federal funding. This was followed by the Education for all Handicapped Children Act of 1975, which required public schools to educate children with disabilities. The act specified that schools consult with parents to create a plan tailored for each child’s needs that would provide an educational experience as close as possible to that received by other children. In 1990, the Americans with Disabilities Act (ADA) greatly expanded opportunities and protections for people of all ages with disabilities. It also significantly expanded the categories and definition of disability. The ADA prohibits discrimination in employment based on disability. It also requires employers to make reasonable accommodations available to workers who need them. Finally, the ADA mandates that public transportation and public accommodations be made accessible to those with disabilities. The Act was passed despite the objections of some who argued that the cost of providing accommodations would be prohibitive for small businesses. The community of people with disabilities is well organized in the twenty-first century, as evidenced by the considerable network of disability rights organizations in the United States. The Rights of Religious Minorities The right to worship as a person chooses was one of the reasons for the initial settlement of the United States. Beginning in the early nineteenth century with the immigration of large numbers of Irish Catholics to the United States, anti-Catholicism became a common feature of American life and remained so until the mid-twentieth century. Catholic immigrants were denied jobs, and in the 1830s and 1840s anti- Catholic literature accused Catholic priests and nuns of committing horrific acts. Anti-Mormon sentiment was also quite common, and Mormons were accused of kidnapping women and building armies for the purpose of dominating their non-Mormon neighbors. At times, these fears led to acts of violence. A convent in Charlestown, Massachusetts, was burned to the ground in 1834.[45] In 1844, Joseph Smith, the founder of the Mormon religion, and his brother were murdered by a mob in Illinois.[46] American Jews faced discrimination in employment, education, and housing based on their religion. Many of the restrictive real estate covenants that prohibited people from selling their homes to African Americans also prohibited them from selling to Jews. A tradition of confronting discrimination led many American Jews to become actively involved in the civil rights movements for women and African Americans.[47] Open discrimination against Jews in the United States is less common, although anti-Semitic sentiments still remain. In the twenty-first century, especially after the September 11 attacks, Muslims are a religious minority likely to face discrimination.[48] Christians have also been deprived of their rights because of religious beliefs. The owner of Hobby Lobby Stores, a conservative Christian, argued that his company’s health-care plan should not have to pay for abortifacients because his religious beliefs are opposed to the practice of taking the life of an unborn child. In 2014, in the case of Burwell v. Hobby Lobby Stores, Inc., the Supreme Court ruled in his favor.[49] ## Questions to Consider 1. What is the better approach to civil rights—a peaceful, gradual one that focuses on passing laws and winning cases in court, or a radical one that includes direct action and acts of civil disobedience? Why? Show Answer personal opinion 2. What legal tactics were used to discriminate against Mexican Americans in Texas that were like tactics used against African American? Show Answer Segregation of schools, literacy tests, poll taxes 3. Several States attempted to impose their own sanctions on illegal immigration. In April 2010, Arizona passed a law-making illegal immigration a state crime. What has been the general response by the federal courts to such state laws? Show Answer 579 They were declared unconstitutional as immigration is solely a national concern or jurisdiction. 4. Same-sex marriage laws allow partners to enjoy the same rights as married heterosexual couples, although many states passed laws banning same-sex marriage which were challenged. What is the legal status of same-sex marriage throughout the US? Show Answer State bans were overturned in 2015 by Obergefell v. Hodges. ## Terms to Remember Americans with Disabilities Act–(ADA) greatly expanded opportunities and protections for people of all ages with disabilities United Farm Workers (UFW)–a union for migrant workers; strike against grape growers in Delano, California, in 1965; adopted the tactics of the African American civil rights movement ## Works Consulted 1. David G. Gutierrez. 1995. Walls and Mirrors: Mexican Americans, Mexican Immigrants, and the Politics of Ethnicity. Berkeley: University of California Press, chapter 1. ↵ 2. See Abraham Hoffman. 1974. Unwanted Americans in the Great Depression: Repatriation Pressures, 1929–1939. Tucson: University of Arizona Press. ↵ 3. See Michael Snodgrass. 2011. "The Bracero Program,1942–1964" In Beyond the Border: The History of Mexican–U.S. Migration, ed. Mark Overmyer- Velásquez. New York: Oxford University Press, 79–102. ↵ 4. See Benjamin Marquez. 1993. LULAC: The Evolution of a Mexican American Political Organization. Austin: University of Texas Press. ↵ 5. Mendez v. Westminister School District, 64 F. Supp. 544 (S.D. Cal. 1946). ↵ 6. Delgado, et al. v. Bastrop Independent School District, et al. Civil Nol 388 (W.D. Tex, http://www.tshaonline.org/handbook/online/articles/jrd01. Published by the Texas State Historical Association. 7. Civic Resources for Texas Students & Teachers, State Bar of Texas, Law related Education. https://www.texasbar.com/civics/High%20School%20cases/delgado-v-bastrop.html. 8. Handbook of Texas Online v. Carl Allsup, “Hernandez v. Driscoll CISD,” 2020, http://www.tshaonlineorg/handbook/online/articles/jrh02. Published by the Texas State Historical Association. 9. Hernandez. V. Texas, 347 U.S. 475 (1954) 10. See Avi Astor. 2009. "Unauthorized Immigration, Securitization, and the Making of Operation Wetback," Latino Studies 7: 5–29. ↵ 11. See John R. Chavez. 1997. "The Chicano Image and the Myth of Aztlan Rediscovered." In Myth America: A Historical Anthology(volume II), eds. Patrick Gerster and Nicholas Cords. New York: Brandywine Press; F. Arturo Rosales. 1996. Chicano! The History of the Mexican American Civil Rights Movement. Houston, Texas: Arte Público Press. ↵ 12. See Rosales, American Civil Rights Movement. ↵ 13. Lau v. Nichols, 414 U.S. 563 (1974) 14. See Sal Castro. 2011. Blowout! Sal Castro and the Chicano Struggle for Educational Justice. Chapel Hill: University of North Carolina Press. ↵ 15. See Randy Shaw. 2008. Beyond the Fields: Cesar Chavez, the UFW, and the Struggle for Justice in the 21st Century. Berkeley: University of California Press; Susan Ferriss, Ricardo Sandoval, and Diana Hembree. 1998. The Fight in the Fields: Cesar Chavez and the Farmworkers Movement. New York: Houghton Mifflin Harcourt. ↵ 16. CNN. 19 March 1998. "Most of California’s Prop. 187 Ruled Unconstitutional," http://www.cnn.com/ALLPOLITICS/1998/03/19/prop.187/; Patrick J. McDonnell, "Prop. 187 Found Unconstitutional by Federal Judge," Los Angeles Times, 15 November 1997. http://articles.latimes.com/1997/nov/15/news/mn-54053. ↵ 17. Arizona v. United States, 567 U.S. _ (2012). ↵ 18. Arizona, 567 U.S. ↵ 19. See Gabriel Chin and Hrishi Kathrikeyan. 2002. "Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to Asian Americans, 1910–1950," Asian Law Journal 9. ↵ 20. See Greg Robinson. 2010. A Tragedy of Democracy: Japanese Confinement in North America. New York: Columbia University Press. ↵ 21. Korematsu v. United States, 323 U.S. 214 (1944). ↵ 22. Robinson, Tragedy of Democracy. ↵ 23. See William Wei. 1993. The Asian American Movement. Philadelphia: Temple University Press. ↵ 24. Lau v. Nichols, 414 U.S. 563 (1974). ↵ 25. "The Rise of Asian Americans," http://www.pewsocialtrends.org/asianamericans-graphics/ (April 10, 2016). ↵ 26. Students for Fair Admissions v. Harvard 600 U.S. (2023) 27. See Jonathan Ned Katz. 1995. Gay and American History: Lesbians and Gay Men in the United States. New York: Thomas Crowell. ↵ 28. See Vern L. Bullough. 2002. Before Stonewall: Activists for Gay and Lesbian Rights in Historical Context. New York: Harrington Park Press. ↵ 29. See David Carter. 2004. Stonewall: The Riots That Sparked the Gay Revolution. New York: St. Martin’s Press; Martin Duberman.1993. Stonewall. New York: Penguin Books. ↵ 580 30. Public Law 103–160: National Defense Authorization Act for Fiscal Year 1994. ↵ 31. NBC News. 22 July 2011. "Obama Certifies End of Military’s Gay Ban," http://www.nbcnews.com/id/43859711/ns/us_news-life/#.VrAzFlLxh- U. ↵ 32. Lawrence v. Texas, 539 U.S. 558 (2003). ↵ 33. Ibid. 34. Obergefell v. Hodges, 576 U.S. _ (2015). ↵ 35. City of Boerne v. Flores, 521 U.S. 507 (1997). ↵ 36. United States v. Windsor, 570 U.S. 744 (2013) 37. Obergefell v. Hodges, 576 U.S. (2015) 38. Ibid. 39. City of Boerne v. Flores, 521 U.S. 507 (1997) 40. “Know Your Rights: Transgender People and the Law,” https://www.aclu.org/know-your-rights/transgender-people-and-law (April 10, 2016) 41. Bostock v. Clayton County, 590 U.S. (2020) 42. See Edward J. Larson. 1995. Sex, Race, and Science: Eugenics in The Deep South. Baltimore, MD: Johns Hopkins University Press; Rebecca M. Kluchin. 2009. Fit to Be Tied: Sterilization and Reproductive Rights in America 1950–1980. New Brunswick, NJ: Rutgers University Press. ↵ 43. Buck v. Bell, 274 U.S. 200 (1927). ↵ 44. Kim Severson, "Thousands Sterilized, A State Weighs Restitution," New York Times, 9 December 2011. http://www.nytimes.com/2011/12/10/us/redress-weighed-for-forced-sterilizations-in-north-carolina.html?_r=1&hp. ↵ 45. See Nancy Lusignan Schultz. 2000. Fire and Roses: The Burning of the Charlestown Convent. New York: Free Press. ↵ 46. See Richard L. Bushman. 2005. Joseph Smith: Rough Stone Rolling. New York: Alfred A. Knopf. ↵ 47. See Frederic Cople Jaher. 1994. A Scapegoat in the Wilderness: The Origins and Rise of Anti-Semitism in America. Cambridge, MA: Harvard University Press. ↵ 48. "Combatting Religious Discrimination and Protecting Religious Freedom," http://www.justice.gov/crt/combating-religious-discrimination- and-protecting-religious-freedom-16 (April 10, 2016). ↵ 49. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. _ (2014). ↵ ## LICENSES AND ATTRIBUTIONS CC LICENSED CONTENT, SHARED PREVIOUSLY - American Government. Authored by: OpenStax. Provided by: OpenStax; Rice University. Located at: https://cnx.org/contents/W8wOWXNF@12.1:Y1CfqFju@5/Preface. License: CC BY: Attribution. License Terms: Download for free at http://cnx.org/contents/9e28f580-0d1b-4d72-8795-c48329947ac2@1. • Share icon. Authored by: Quan Do. Provided by: The Noun Project. Located at: https://thenounproject.com/term/share/7671/. License: CC BY: Attribution • Adaption and Remix, and Original Content. Authored by: Deborah Smith Hoag. Provided by: Austin Community College. Located at: http://austincc.edu. Project: Achieving the Dream Grant. License: CC BY: Attribution Liberty v. Security: A Short Review ## QUESTIONS FOR OPEN DISCUSSION 1. Who oversees the government of the United States and why is this idea so important? 2. Should any individuals or groups receive special treatment under the laws and regulations of the United States? 3. How does the governmental structure of the United States balance the competing interests of the people’s liberty and security? 4. Does a republic or a democracy better serve the needs of the people? 5. Should groups of individuals today pay the price for discrimination in the past? 6. How should the government provide for protection against external threats? 7. Is it acceptable to collect massive amounts of public data without probable cause? 8. How do you decide what is acceptable behavior between individuals? 9. How do you decide what is acceptable control by the government? 10. Do people working in the government know better than the American people what the people’s safety needs are? healthcare? education? business and economic concerns? ## TERMS TO REMEMBER FOR REVIEW consent of the governed = people consent to government; the people control the government unalienable rights = rights people have not from government or law liberties = freedoms possessed by people because they are human rights = how much freedom is given up by the people for security equal rights = all persons are treated equally under the law basic functions of good government = unite the people; provide a system of justice to hold people accountable; provide protection for domestic safety and security; provide protection against foreign threats & for defense; provide for the general welfare of all the people/stable economy; protect the people’s liberties republic = form of government balancing power over and control of the people with protecting the liberties of the people federal = structure of government balancing power between various levels of government (national/state/local) and between branches of government (legislative/executive/judicial)