Americans want equality, but they differ on the
extent to which
government should provide it.
A. Most Americans support EQUALITY OF OPPORTUNITY, which gives individuals the same opportunities to get ahead.
B. Americans are less committed to EQUALITY OF OUTCOME, which entails greater uniformity of social, economic, and political power for people.
II. The history of CIVIL RIGHTS has been a long, and still incomplete, search for social economic equality in American democracy.
A. The Civil War amendments were adopted to provide American blacks with civil and political rights.
1. The Supreme Court seemed intent on weakening federal attempts to ensure the civil rights of blacks.
a. The Court ruled in 1873 that state citizenship and national citizenship remained distinct despite the rights guaranteed in the Fourteenth Amendment.
b. The Court struck down the section of the Civil Rights Act of 1875 dealing with equality of public accommodations on the grounds that the federal government could not prohibit private dorms of discrimination.
c. The voting rights of blacks were weakened through several discriminatory mechanisms, such as the POLL TAX, proof of property ownership, and education requirement.
2. With the nullification of the Civil Rights Act of 1875, formal state laws requiring RACIAL SEGREGATION proliferated.
a. "Jim Crow" laws required the housing and all other public facilities for blacks and whites be separated.
b. In PLESSY v. FERGUSON (1896), the Supreme Court upheld state-imposed racial segregation based on the concept of SEPARATE-BUT-EQUAL facilities for blacks.
c. The Supreme Court extended the separate-but-equal doctrine to the schools used by blacks and whites.
B. Denied access to the political system, blacks began to seek access in the courts in order to challenge racial segregation in education.
1. The NAACP helped blacks challenge state laws denying them access to white-only universities.
2. In 1954, the Supreme Court rejected the separate-but-equal doctrine in its decision on BROWN v. BOARD OF EDUCATION OF TOPEKA.
a. President Truman's order for the DESEGREGATION of the armed forces paved the way for the BROWN decision.
b. Several states resisted the Court's request that school desegregation be implemented "with all deliberate speed."
c. The Court approved several remedies to achieve integration, including busing, racial quotas, and pairing of noncontiguous school zones.
d. Public opinion has been highly divided on the issue of busing and other desegregation remedies.
e. Since 1974, the Court has limited busing to school districts that practiced discrimination in the past.
C. The advancement of racial equality beyond the school systems required the political mobilization of the people through the CIVIL RIGHTS MOVEMENT.
1. Under the leadership of Martin Luther King, Jr., black used several forms of CIVIL DISOBEDIENCE to protest discriminatory laws.
a. In 1955, blacks BOYCOTTED Montgomery's segregated bus system.
b. Nonviolent sit-in demonstrations became a common form of protest throughout the South.
2. In part because of the increased momentum of the civil rights movement, Congress passed the Civil Rights Act of 1964.
a. The Civil Rights Act of 1964 is the most comprehensive legislation to date designed to eliminate racial discrimination in all areas.
b. The Civil Rights Act of 1964 was vindicated in the Supreme Court by reason of the congressional power to regulate discrimination in all areas.
c. Other civil rights legislation was implemented through President Johnson's Great Society programs. D. Recent Supreme Court decisions have demonstrated a tendency toward upholding freedom over equality.
1. The decision in GROVE CITY COLLEGE v. BELL (1984) frustrated enforcement of laws barring discrimination.
2. Although Congress acted to restore civil rights enforcement in 1988, the Court demonstrated its continued interest in dismantling such enforcement when, in several other decisions in 1989, it voted to limit the reach of several long-standing civil rights decision.
E. The lack of progress toward equality for northern blacks was an important factor in the rise of the black nationalist movement in the 1960s.
1. During the 1960s, the level of violence related to desegregation increased.
2. Black violence took the form of rioting in many ghettos of northern cities.
a. Black Muslims, particularly Malcolm X until his assassination in 1965, called for a separation from whites and the use of violence in response to white violence.
b. The Black Panther Party called for increased "black power" in the struggle for civil rights.
3. One of the consequences of the black nationalist movement was to instill pride in black history and culture.
F. The extension of civil rights has been applied more slowly for other nonwhite minorities, such as Native Americans and Hispanics, and has occurred more slowly.
1. Government policy toward Native Americans has been characterized by appropriation of lands, neglect, and social and political isolation.
a. At the turn of the century, the national government began to promote assimilation instead of separation. In 1924, Native Americans were granted citizenship.
b. Poverty and unemployment have led Native Americans to resort to militant or violent action in order to bring attention to their grievances.
c. Since the 1970s some Native Americans have been able to extract compensation for the loss of their lands.
2. Hispanics have only recently begun to exercise the political clout necessary to redress the poverty and discrimination they have found in cities and rural areas. A significant amount of progress remains to be made.
3. Other non-black minorities had to wait until 1987 to receive the civil rights protection originally targeted only to the black community.
4. In 1990, the Americans with Disabilities Act extended the protection embodied in the Civil Rights Act of 1964 to people with physical or mental disabilities.
III. The movement toward equal civil rights for women has been confronted with the traditional view of the relationship between men and women.
A. PROTECTIONISM--the belief that women should be spared from life's cruelties-- served as the basis for many laws that discriminated against women.
In 1873, the Supreme Court upheld an Illinois statute prohibiting women from practicing law.
2. In 1908, the Supreme Court upheld Oregon work laws requiring women to work fewer hours.
B. Women were denied the right to vote until the movement for women's suffrage culminated in the adoption of the NINETEENTH AMENDMENT in 1920.
C. The prohibition of sex-based discrimination has advanced through legislation.
1. The Equal Pay Act of 1963 requires equal pay for men and women doing similar work but it does not account for stratification of work by sex.
2. Title VII of the Civil Rights Act of 1964 covers discrimination on the basis of sex.
3. Congress passed additional legislation prohibiting discrimination in federally aided educational programs.
D. Since 1970 the Supreme Court has consistently struck down laws that discriminate on the basis of sex.
1. The Court determined in 1976 that gender distinctions could be justified only if they served some important government purpose.
2. The intention of gender-related Court decisions is to end sexual stereotyping while acknowledging relevant differences between men and women.
E. The EQUAL RIGHTS AMENDMENT (ERA) was designed to ensure that all rights under the law are not denied to anyone on account of sex.
1. After the ERA passed the proposal stage in 1972, its proponents failed to obtain ratification of the amendment by the ratification deadline in 1982.
2. The ERA was challenged by staunch opposition from some states and from women who wanted to maintain their traditional role.
3. Some argued that the ERA was unnecessary. Indeed, many of the goals of the ERA have already been realized by various actions of the Supreme Court.
IV. AFFIRMATIVE ACTION programs were designed to eliminate the effects of past discrimination for women and members of other minority groups.
A. Such programs include recruitment, preferential treatment, and quotas for women, minorities, and the disabled in professional education, employment, and the placement of government contracts.
B. In REVERSE DISCRIMINATION cases, plaintiffs have argued that affirmative action programs designed to protect minorities discriminate against whites.
1. In REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE (1978), the Supreme Court agreed that Bakke had been discriminated against but it reaffirmed the use of affirmative action programs.
2. In JOHNSON v. TRANSPORTATION AGENCY, SANTA CLARA COUNTY (1987), the Supreme Court upheld the use of affirmative action programs but with significant dissension from several justices.
3. The Supreme Court tried to strike a balance between traditional employment practices and affirmative action programs.
4. The Supreme Court decided that affirmative action programs do not overrule traditional seniority rules unless actual discrimination can be demonstrated.
C. Recent Supreme Court decisions have affirmed race-conscious affirmative action programs for individuals who were not the actual victims of discrimination.
I. The federal courts are often called on to decide cases that reflect competing philosophies about how our government should operate.
A. Familiar conflicts are between those who favor equality and those who favor freedom, and between those who favor equality and those who favor order. By order, we refer to the need to protect citizens from lawlessness.
B. During the 1950s, 1960s, and 1970s, the federal courts moved decisively toward promoting equality. The federal courts, and especially the Supreme Court, were considered to be "activist" in nature during this time because of their bold policy decision promoting equality. The most famous of these is BROWN v. BOARD OF EDUCATION OF TOPEKA, which ordered desegregation of the schools.
II. Consider the value conflict in the PARC case.
A. PENNSYLVANIA ASSOCIATION FOR RETARDED CHILDREN v. COMMONWEALTH OF PENNSYLVANIA was filed by an advocacy group (PARC) on behalf of developmentally delayed and learning-disabled children. Such children, although their range of abilities is considerable, are currently labeled "special needs" children. PARC prevailed in court, and as a result of the suit, the state of Pennsylvania committed itself to the principle that citizens with special needs have the RIGHT to a free education appropriate to their needs.
1. The state had to develop a plan for identifying and evaluating children with learning disabilities.
2. The state had to give those special needs children an education that was appropriate to the diagnosis. In other words, all special-needs children are not the same, and they have to be taught in ways suitable to them as individuals. They should not be "warehoused" together.
3. Children had to be placed in regular classes ("mainstreamed") where possible.
4. A due process system had to be instituted to resolve complaints about placement and diagnosis.
5. A party losing at these hearings would have a right to an appeal.
B. The PARC case was significant for a number of reasons.
1. We have always had children with special needs. We have also had public schools for a very long time. Why was it that in 1971 the courts became interested in protecting the rights of those with special needs, ensuring them an appropriate public education?
2. The court intervened in a very detailed way in the state educational bureaucracy. The court did not merely enunciate a principle--that the state must protect the rights of those with special needs--but it forced an agreement that went into great detail as to what constituted equal treatment of special needs children. Did the court blur the separation of powers, taking over the role of the administrative agency?
3. A hearing was at the heart of protecting the equality of all special needs children in Pennsylvania. That is, an aggrieved party had a right to a hearing if he or she didn't like the decision that was reached.
a. The rights of the children with special needs weren't fully protected in the court's eyes, unless they had the right to go before a fair-minded body and say "I've been wronged by the state educational bureaucracy. The law wasn't fairly applied in my case."
b. Was this due process a way of establishing equality before the law, or is it better described as a costly administrative procedure that the courts forced Pennsylvania taxpayers to pay for? Stated another way, shouldn't it be the city councilors or the state legislators--the elected representatives of the people--who make decisions about how taxpayer money is to be spent?
III. The movement toward equality
A. How did we arrive at a state where decisions like PARC became commonplace and new rights were conferred on constituencies with long-held grievances? How did the courts come to be such an activist institution, finding new and different ways to define equality?
1. The BROWN decision marked the beginning of this era of judicial activism. In the words of one legal scholar, BROWN "initiated the greatest social revolution" of a generation.
2. In the decision, Chief Justice Earl Warren said that public education was "the very foundation of good citizenship." He noted the findings of sociologists and psychologists that said the learning in segregated facilities creates a "sense of inferiority [that] affects the motivation of children to learn."
3. In a sense, there was no turning back from the BROWN decision. The logic that a child was not being treated equally because of the social inferiority fostered by segregated schools was easily applicable to other aggrieved parties.
a. The grievance of special-needs children was based on their status as a minority that was being harmed by apathy and ignorance of its education needs.
b. Once the Supreme Court declared that segregation was a constitutional issue, it was then faced with a broad question: What other grievances of alleged unequal treatment fell within the Court's logic?
4. Although the courts did expand their activist reach into many areas of public policy, many of their early post-BROWN efforts were aimed at ending racist practices. The white southerners in power in their states and communities were reluctant to apply the logic of BROWN to other public institutions.
5. The courts repeatedly stepped in to protect the rights of blacks. Federal Judge Frank Johnson, one of the leading jurists of his era, described the courts' activism in Alabama in a law review article: "In addition to deciding scores of school cases, federal courts in Alabama alone have ordered the desegregation of mental institutions, penal facilities, public parks, city buses, interstate and intrastate buses and bus terminals, airport terminals, and public libraries and museums."
6. But, Judge Johnson added, "Desegregation is not the only area of state responsibility in which Alabama officials have forfeited their decision-making powers by such a dereliction of duty as to require judicial intervention. . . . State officials by their inaction have also handed over to the courts property tax assessment plans; standards for the care and treatment of the mentally ill and mentally retarded persons committed to the state's custody; and the procedures by which such persons are committed."
7. Thus, the next step after attacking the malfeasance of state officials in areas related to race was attacking their malfeasance in areas where other kinds of minorities were being denied equality.
8. In Johnson's eyes, the point is simple, because the same logic holds: the courts must protect the rights of minorities to assure that they are treated equally under the Constitution. To assure those rights, the courts must intervene.
IV. The Fourteenth Amendment
A. What were the courts saying in terms of the Constitution? What part of the Constitution gave them the right to intervene in state educational, penal, and welfare agencies? The courts don't say, "We're intervening because it's the right thing to do," but rather "The Constitution demands that we do it." But where?
1. The answer is in the Fourteenth Amendment. This amendment, ratified in 1868 in the aftermath of the Civil War, states that no person shall be denied "equal protection of the laws." It also says that no person shall be denied "life, liberty, or property without due process of law."
2. In the BROWN case, the Court simply ruled that school segregation violated equal protection under the laws. That broad concept of equality, newly defined in BROWN, was then extended to other spheres. As Archibald Cox put it, "How could a court rule that discrimination at lunch counters violated the Fourteenth Amendment without going on to rule that the Amendment is also violated by discrimination in employment, in admitting pupils to private colleges, and in the sale and rental of housing?"
3. But the due process clause, not used in BROWN, became very important in the expansion of judicial activism. It was a PROCEDURAL definition of equality. Thus, equality is not just a set of laws that don't discriminate against individuals in the policies they set forth. Equality is a matter of how government treats its citizens when it interacts with them.
a. In concrete terms, the government can have a welfare program, and it can give out benefits on the basis of income levels of recipients-- presumably an objective indicator of eligibility. Yet that still isn't enough for the courts to be convinced that all welfare recipients are treated equally.
b. Rather, there must be a procedural safeguard. The courts have intervened and said welfare recipients have the right of due process. Benefits cannot be taken away from them unless they have a right to a hearing.
c. It makes no difference that the taxpayers' money is at issue here, not property owned by the welfare recipient. The courts say that the recipient has a right to a hearing to ensure that the state is not denying benefits unfairly.
(1) Suppose a caseworker cuts someone off from welfare because he or she doesn't like the person or thinks that the individual is of low character.
(2) Doesn't the welfare recipient have the right to have an impartial hearing on whether the action was justified under law?
B. Conservatives have criticized judicial power exercised under the Fourteenth Amendment.
1. No one wants to go back to the days before the Fourteenth Amendment.
2. It boils down to a matter of degree. Many critics, especially conservative ones, feel that the courts have gone too far. Equality has become an ideal that has been implemented in such a way that it seems to overcome other principles of the Constitution, namely:
a. Separation of powers.
b. Individual freedom.
c. States' rights.
3. Critics charge that, in the name of equality, an "imperial judiciary" has emerged. They further argue that federal court judges have put their own philosophy into effect, even though that isn't the philosophy that most Americans hold.
a. They point to cases like the Boston school desegregation case. A federal district judge, W. Arthur Garrity, not only decided which schools were to be desegregated, but also
(1) Which schools should be closed.
(2) Which teachers must be retained and which must be fired.
(3) How school programs must be developed.
(4) Whom the school committee ought to consult with and work with to write contracts for the development of school programs.
(5) Which programs should be located in which schools.
b. In a case in Alabama concerning mental hospitals, the state's cost of compliance with the decision moved its expenditures from $14 million a year to $58 million a year in the space of just two years.
4. Who, then, is in charge of spending decisions? Is it the taxpayers, through the means of electing representatives to the legislature? Or is it the non-elected judiciary?
5. At what point does judicial activism become judicial tyranny? What are the limits to the Fourteenth Amendment? Is the power of the judiciary the power to erode the powers of the other branches of government?
V. Criminal justice and the conservative critique: the case of MAPP v. OHIO.
A. It is not just in the realm of the Fourteenth Amendment that activist judges have infuriated conservative critics. Criminal justice is equally controversial. The case of MAPP v. OHIO illustrates this point.
B. This case involves the Fourth Amendment's protection against "unreasonable searches and seizures."
1. Ms. Dollree Mapp was a resident of Cleveland, Ohio in the late 1950s. The police had information that she might be harboring a fugitive. Three policemen went to her house and knocked on her door, asking to be let in. She called her attorney, who said not to let them in unless they had a warrant. The police didn't, and she refused to unlock her door. Four more police officers were then dispatched to the scene. When Ms. Mapp did not admit the police a second time, they broke in. She asked to see their warrant. One of the police officers held out a piece of paper. She grabbed it and put it in her bra. A struggle ensued, she was handcuffed, and the piece of paper was retrieved. A search did not turn up the suspect, but the police did find some materials they alleged were obscene. Possession of such material was a crime under Ohio law.
2. Ms. Mapp was tried before a state court. No warrant was produced at the trial. She was nevertheless convicted. On appeal to the Supreme Court, the conviction was overturned. The Court said that if evidence is gathered in an illegal manner--in this case the police broke in and searched the house without a warrant--then the evidence cannot be introduced in court. This is known as the EXCLUSIONARY RULE.
3. This principle had been in effect in federal court since 1914, but the MAPP case extended it to state courts (where most criminal trials take place).
a. Again there is criticism. The complaint is that an activist court has pushed forward a philosophy that puts the rights of criminals above the need for order. Such a "strict" interpretation of the Fourth Amendment may mean that criminals go free because law enforcement officials make errors.
b. The threat of challenges under the MAPP ruling by defense attorneys may make prosecutors more eager to plea bargain if they are at all concerned about a search and seizure question.
c. There is a simple rejoinder. The Fourth Amendment is there to protect all Americans from unlawful behavior by the government. If the police can violate our constitutional rights and can then use the evidence in court, what is going to prevent them from doing whatever they think is necessary to catch criminals? Would we really want to live in a country that doesn't have a strong Fourth Amendment strictly interpreted by the courts?
4. Yet some note that the question is not really one of whether it's desirable to have a Fourth Amendment. Rather, they see MAPP as another example of an activist court making social policy in a complicated area.
VI. The continued impact of judicial activism.
A. Given the steady drumbeat of criticism of the courts for an activist bent that has seen them take over the administration of school systems, facilities for those with special needs, housing authorities, and so on, why haven't the courts pulled back?
B. After all, there are many conservatives sitting in the federal courts, appointed by Presidents Nixon, Ford, Reagan, and Bush. Why hasn't there been a conservative revolution in the courts that makes judicial activism a thing of the past?
1. Judicial appointments certainly do affect the direction of court decisions, and the many conservatives that the Reagan and Bush administrations have had the opportunity to appoint will surely be a major influence for years to come.
2. Still, there are constraints on just how much public policy can change because of different judges sitting on the bench.
a. The courts rule in common-law fashion. That is, the body of precedent on a legal issue cannot be ignored.
b. What is defined as a RIGHT in a body of case law cannot easily be taken away. Equality has been defined as a set of concrete rights--not privileges, but rights. It is difficult for the court to go to mental patients or physically disabled people and say, "These aren't your rights after all." The courts can't turn on a dime and say, "We made a mistake. That ruling was an excess."
c. In short, it takes time for the federal courts to work out past decisions through incremental changes in its ruling.
d. As Nathan Glazer put it, "The court must work out the logic of positions once taken, and it cannot easily withdraw form the implications of these positions."
C. Another reason is the rise of a "rights establishment."
1. Civil rights groups, public interest groups, and legal aid organizations are now major actors in our judicial system.
2. They work assiduously to enhance and protect the interests of society's disadvantaged--the handicapped, racial and ethnic minorities, and the poor.
3. They appeal cases when lower court judges make rulings contrary to their clients' interests. These groups use their resources to try to make sure that the courts don't move away from previous positions that have protected various constituencies. They use the logic of previous rulings--of precedent--in their arguments.
D. Finally, we have adjusted our thinking. Though critics still decry what they see as excesses, a lot of the courts' actions have come to be accepted as morally correct. It is not just civil rights that have been accepted, but a broader notion of due process for all.
1. There is still resistance to detailed intervention by the courts into the administration of social services. And police officers on the beat surely feel that the courts interfere with their work.
2. Although the courts' rulings have brought about some acceptance of a broader notion of rights and due process, controversy remains.
E. The controversy is over the rightful powers of the courts relative to the rightful powers of the other two branches. It is the issue of the separation of powers. It is the question that was so central to the authors of the Constitution.
F. We are left with this question: Have the courts wrongfully taken over responsibilities and prerogatives of the other two branches? Has the court system evolved into an "imperial judiciary," standing in stark contrast to the role envisioned for it by our founding fathers? Or does the court system protect the rights of our citizens, making sure that they are treated equally before the law because the other two branches of government sometimes refuse to do so? This is the challenge of democracy: to nurture democratic government while protecting freedom, order, and equality.