Discrimination

By: Mary L. Dudziak

Source:

 The Oxford Companion to American Law

Discrimination

The United States Constitution has become an important source of protection against discrimination, but those protections primarily stem from the amendments, not from the original text of the Constitution. As the American colonies were on the verge of independence, discrimination was on the minds of some observers. Abigail Adams corresponded with her husband, John, while he served as a delegate to the Continental Congress in 1776. “In the new Code of Laws,” she urged, “I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors.” Married women’s legal status in eighteenth-century America was defined by the law of coverture. Their entire legal identity was subsumed under that of their husbands, so that married women could not enter contracts or own property.

The framers of the Constitution did not take up the question of sex discrimination but they did address another form of unequal treatment: slavery. While not using the word “slave,” they crafted a constitution that accommodated the practice. For the purpose of apportionment, slaves would count as three fifths of a person, slaves who escaped to non-slave states were to be returned to their owners, and Congress could not end the slave trade before 1808. Only after the Civil War was the Constitution amended, outlawing slavery under the Thirteenth Amendment, requiring that states not deny “due process” and “equal protection of the laws” under the Fourteenth Amendment, and prohibiting (for men) discrimination in voting on the basis of race or previous condition of servitude under the Fifteenth Amendment. While the Fourteenth Amendment did not explicitly mention race or slavery, it was understood that the amendment was intended especially to overcome discrimination against former slaves. In later years, the equal protection clause would be applied to other groups.

Congress also enacted important civil rights legislation after the Civil War. One statute, the Civil Rights Act of 1875, forbade discrimination on the basis of race, color, and previous condition of servitude in public accommodations. In the Civil Rights Cases (1883), the Supreme Court struck down the statute on the basis that it exceeded Congress’s power to enforce the Thirteenth and Fourteenth Amendments. It would not be until 1957 that another civil rights bill would be enacted by Congress. In Plessy v. Ferguson (1896), the Supreme Court held that a state law requiring segregated railroad accommodations did not violate the equal protection clause. In a landmark dissent, Justice John Marshall Harlan proclaimed that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy’s “separate but equal” doctrine would remain the law for many years.

Legislative reforms eased some of the burdens of coverture for women by the late nineteenth century. However, women’s status was still restricted by the idea that men and women had different duties in life. In Bradwell v. Illinois (1873), the Supreme Court upheld Illinois’ refusal to grant Myra Bradwell a license to practice law because she was a woman. Justice Joseph P. Bradley wrote in his concurrence that “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” The source of women’s role was in “the nature of things,” and “the law of the Creator.” In 1920, after a decades-long campaign for woman suffrage, the Nineteenth Amendment was adopted, guaranteeing women the right to vote. Feminist activists also advocated an Equal Rights Amendment, which would prohibit other forms of discrimination on the basis of sex, but the amendment was never ratified.

World War II was a watershed in the development of American equality. The United States was fighting the Nazi dictatorship, yet if the purpose of the war was to uphold democracy, many wondered how the United States could tolerate antidemocratic practices at home. African Americans engaged in a “double-V” campaign: for victory abroad against fascism, and victory at home against racism. Under pressure from A. Philip Randolph’s March on Washington Movement, President Franklin D. Roosevelt issued an executive order banning segregation in defense industries. The Supreme Court took steps to advance equality as well. In Smith v. Allwright (1944), the Court took an important step toward enfranchising African-American voters by striking down the “white primary” system in the South. Because of Democratic Party dominance in the South, the Democratic primary nominee was inevitably elected, so segregated primaries kept African Americans from voting the only time it really counted. The Court also held that states had to provide the educational opportunities for African Americans that it provided to whites, and could not comply with the “separate but equal” doctrine by sending an African-American student to an out-of-state law school (Missouri ex rel. Gaines v. Canada (1938)). Yet the war years were also a time of civil rights restrictions. Viewing Japanese Americans as inherently disloyal, the U.S. government relocated Japanese Americans from the west coast and placed them in internment camps in remote locations. The Supreme Court upheld their relocation in Korematsu v. United States (1944). Internment posed a hardship, Justice Hugo Black acknowledged, but “hardships are part of war.”

In the postwar years the Supreme Court played a major role in developing antidiscrimination law. The Court chipped away at “separate but equal,” ruling that segregating black graduate and professional students from their white classmates created an unequal educational environment, which violated the equal protection clause (McLaurin v. Oklahoma (1950); Sweatt v. Painter (1952)). Then, in Brown v. Board of Education (1954), the Court took up the question of whether segregation per se violated the rights of African-American school children. Chief Justice Earl Warren, in his opinion for a unanimous Court, did not discuss the legacy of racism that gave rise to segregation, but instead relied on social science evidence showing that present-day segregation harmed African-American children. The Court ruled that school segregation was unconstitutional, and the decision was soon applied to other areas of life where segregation was enforced by law. In Brown v. Board of Education II (1955), however, the Court held that school districts could desegregate “with all deliberate speed.” School boards took this to mean that delay was permissible. Not until the 1960s, in the context of an intensified civil rights movement, and with the enactment of new civil rights statutes, would meaningful school desegregation be accomplished.

During the early 1960s, the civil rights movement captured the attention of the nation and the world. As peaceful demonstrators were brutalized by segregationist mobs and government officials, a broad coalition of Americans came to support civil rights reform. Because racism damaged the United States’s image around the world, many also believed that race discrimination harmed U.S. world leadership during the Cold War. President John F. Kennedy called for the passage of civil rights legislation in 1963. The civil rights movement then pressed for reform through a massive March on Washington. Following Kennedy’s assassination later that year, President Lyndon Baines Johnson took up the issue of civil rights as a means to honor Kennedy’s memory and also to leave his own mark on the presidency. The landmark Civil Rights Act of 1964 has a number of important provisions. Title II revisited the issue posed in the Civil Rights Cases in 1883: discrimination in public accommodations. The 1964 Act was based on Congress’s power under the Commerce Clause, as well as the Fourteenth Amendment, and the Supreme Court upheld the Act as an appropriate means of regulating interstate commerce in Heart of Atlanta Motel, Inc. v. United States (1964) and Katzenbach v. McClung (1964). Title VI of the Civil Rights Act allowed the federal government to bring suit against segregated school systems, and authorized the government to cut off federal education funds to segregated schools. By giving the federal government meaningful enforcement power, Title VI significantly aided progress in school desegregation. Title VII of the Act prohibited employment discrimination on the basis of race, color, religion, sex, or national origin, and this section was the only part that prohibited sex discrimination. In subsequent litigation, courts held that individuals could bring suit against an employer if they had evidence that they had been intentionally discriminated against, or when employment practices had a broad-based discriminatory impact. In 1965, Congress passed a Voting Rights Act aimed at undercutting pervasive disenfranchisement on the basis of race in particular areas of the nation.

Congress took other steps to protect women from discrimination. The Equal Pay Act, enacted in 1963, required equal pay for equal work, invalidating the common practice of paying men more than women when they performed the same job. In 1971, the Supreme Court for the first time struck down a state statute because it violated women’s equal protection rights (Reed v. Reed). The Court went on to develop a gender equality jurisprudence that allowed governments to treat men and women differently when they took into account “real differences,” such as women’s ability to bear children, and struck down statutes that reinforced old stereotypes, such as the idea that women were not breadwinners for their families. Whereas race discrimination was subjected to “strict scrutiny” under the Fourteenth Amendment, and therefore practices that discriminated on the basis of race were nearly always unconstitutional, sex discrimination was subjected to “intermediate scrutiny.” Simply having a “rational” reason for treating women differently was no longer enough. In 1972, Congress extended protection against sex discrimination in Title IX, which prohibits sex discrimination in educational institutions that received federal funds. Title IX revolutionized college sports for women, because it required that schools provide equal opportunities in sports for women and men.

In extending the principles of antidiscrimination law, both the Supreme Court and Congress took up areas of discrimination that had not been recognized in the law before. The Court outlawed some forms of discrimination against noncitizens (Graham v. Richardson 1971)). In 1967, Congress passed the Age Discrimination in Employment Act, protecting older workers from discrimination based on age. The Supreme Court declined to hold that the poor were entitled to higher scrutiny under the equal protection clause, upholding a state educational financing scheme that resulted in great funding disparities based on the wealth of the property tax base (San Antonio School District v. Rodriguez (1973)). Some state courts then held that unequal school funding violated their state constitutions.

The Supreme Court has allowed states great leeway in the area of disability, but the Court still struck down a zoning ordinance under the Equal Protection clause because it was motivated by prejudice against mentally disabled people (City of Cleburne v. Cleburne Living Well Center (1985)). More extensive protection for disability rights came from Congress. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in federally funded programs. Because most colleges and universities receive federal funds, this law opened the doors of higher education to persons with disabilities. In 1990, a more far-reaching statute, the Americans with Disabilities Act, was passed, outlawing discrimination on the basis of disability in public accommodations and employment by private entities.

The civil rights revolution of the 1960s had a broad impact, yet some forms of discrimination remained resistant to change. In Bowers v. Hardwick (1986), the Supreme Court held that due process was not violated when a man was arrested for consensual oral sex with another man. In Romer v. Evans (1996), which invalidated a Colorado state initiative that prohibited local communities from banning sexual orientation discrimination, the Court signaled broader constitutional protection of sexual minorities. In 2000, Vermont passed a “Civil Unions” law that granted same-sex couples nearly all the rights provided by the state to married couples, except the title of “married,” while other states continued to criminalize consensual gay sex. Under President Bill Clinton, the U.S. adopted a “don’t ask, don’t tell” policy, allowing homosexuals to serve in the military as long as they did not disclose their sexual identity. Although ostensibly less harsh, the policy led to a greater number of dismissals than had been the case under the earlier ban on gay and lesbian service.

While equality rights expanded through much of the twentieth century, competing visions of equality remain, as well as differences over the best means of social change. Affirmative action programs, seen by many as a necessary means to remedy decades of exclusion, came under fire from opponents who viewed them as “reverse discrimination.” Ultimately the Supreme Court heavily restricted affirmative action, holding that any race-based policy was constitutionally suspect, even if it was intended as a remedy for discrimination (Adarand Constructors, Inc. v. Pena (1995)). As voters approved some state antiaffirmative action initiatives, state policymakers scrambled to find race-neutral means to maintain integration on college campuses. In his 1896 Plessy dissent, Justice Harlan’s call for a “color-blind” constitution sought to overcome an entrenched racial hierarchy. As the twentieth century came to a close, color-blindness had ironically become the justification to dismantle programs that had been established to overcome vestiges of discrimination.See also Civil Rights and Civil Liberties

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