1. Equal protection? From Civil War to Affirmative Action
by Claudia Hartmann, Kerstin Ohler, Caroline Rupp and Rebecca Walz

2. enacted in response to the Black Codes
Equal Protection
Background:
part of the 14th Amendment to the
United States Constitution
enacted in 1868, shortly after
the American Civil War
enacted in response to the Black Codes

3. The Clause restrains only state governments.
Meaning:
It provides that
"no state shall…
deny to any person
within its jurisdiction
the equal protection
of the laws."
The Clause restrains only state governments.

4. Meaning: It has no counterpart in the Constitution
applicable to the federal government.
But: Due Process Clause of the 5th Amendment.

5. Meaning: It applies only to government action, not to
action by private citizens.
government action only

6. Meaning: It is only involved where the government makes a
classification
in a discriminatory
manner
in applying law.

7. Three Levels of Review:
Strict Scrutiny
Middle Level Review
Mere Rationality Test

8. Strict scrutiny: It’s required for any classification that
involves a suspect class:
race: segregation = physical separation
between the races
affirmative action = aid for minorities
alienage = non U.S. citizenship

9. Strict Scrutiny: Fundamental Rights the right to vote
to be a political candidate
to have access to the courts
to migrate interstate

10. Middle Level Review: It’s easier to satisfy than strict scrutiny
but tougher than mere rationality.
gender
illegitimacy = children being born of parents
who are not married to each other

11. Mere Rationality Test:
age
mental condition
sexual orientation

12. An example for racial discrimination: (1984)
A divorced white woman was awarded custody of her child until she remarried a black man. The trial court awarded custody to the father based on the idea that it was in the best interest of the child to protect the child from the discrimination and prejudice that would accompany her remaining with her mother in an interracial family.
The Supreme Court decided that the Clause was violated.

13. An example for alienage: (1978)
In New York there exists a New York statute in which people who are legally admitted resident alien of New York are not allowed to become a part of the police.
The Supreme Court decided that this statute did not violate the Equal Protection Clause.

14. German equivalents: Art. 3 GG – equal treatment
It is only applied to governmental action, not to action
by private citizens.
But the Federal Labour Court has often applied
this article to the rapport of employers and employees.

15. German equivalents: Allgemeines Gleichbehandlungsgesetz (AGG)
It’s a federal law which was enacted in August 2006.
It should prevent and abolish unjustified discrimination
because of race, national origin, gender, religion,
view of life, mental condition, age and
sexual orientation.

16. German equivalents: It is not applied in every social and legal sector
and doesn’t abolish every kind of discrimination.
Firstly, it only prohibits discrimination
because of specially named conditions.
Secondly, the AGG distinguishes between
personal and objective scopes:

17. Personal and objective scopes:
Personal scopes are race,
national origin and gender etc.
Objective scopes include access to
occupation and conditions of employment,
working conditions and conditions of layoff,
education and sexual harassment.

18. Civil War

19. Congress 1808: It is illegal to import slaves. But
everybody ignores it.
1820: Slavery is legal in the South, but illegal in the rest of the states.

20. "Fugitive Slave Acts” :
REPATRIATION
of escaped slaves

21. "Fugitive Slave Acts”
professional “catchers”
heavy punishments

22. Changes Abraham Lincoln becomes President
Slaves - a “vital part of the economy”?

23. Changes Southern states leave the Union. Civil War
1865: The North defeats
the South,
slaves are set free.
Spiritual: “Free at last”

24. “I have a dream today“
“[…] We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. […]
We cannot be satisfied as long as
a Negro in Mississippi cannot vote and a Negro
in New York believes he has nothing for which to
vote. […]

25. “I have a dream today“
I have a dream that one day on the red hills of Georgia
the sons of former slaves
and the sons of former slave owners
will be able to sit down together at the table of
brotherhood. […]

26. “I have a dream today“ I have a dream that my four little children
will one day live in a nation
where they will not be judged by the color of their skin
but by the content of their character.
I have a dream today. […]

27. “I have a dream today“ And when this happens, […] we will be able
to speed up that day when all of God's children,
black men and white men, […]
Protestants and Catholics,
will be able to join hands and sing in the words
of the old negro spiritual,
Free at last, free at last.
Thank God Almighty, we are free at last.”

28. Reconstruction
the attempts from 1865 to 1877 to resolve the issues of the American Civil War, when both the Confederation and slavery were destroyed
addressed the return of the Southern states
that had seceded into the Union, the status of
ex-Confederate leaders, and the Constitutional
and legal status of the African-American Freedmen

29. Reconstruction
Violent controversy arose over how to accomplish those tasks, and by the late 1870s Reconstruction had failed to equally integrate the Freedmen into the legal, political, economic and social system.
"Reconstruction" is also the common name
for the entire history of the era 1865 to 1877.

30. Amendment 13
1865
ban on slavery
and involuntary
servitude

31. Amendent 14 1868 All persons born in the United States are
citizens of the United States and of the
state wherein they reside.
Every state has to notice the basic rights
of the Bill of Rights.

32. Amendment 15
1870
same voting right for citizens of the United States regardless of their color, race and previous condition of servitude.

33. What is segregation?
the policy or practice of imposing the social segregation of races, as in schools, housing, and industry especially discriminating practices against nonwhites in a predominantly white society
(northbysouth.kenyon.edu)

34. What is segregation? de facto segregation:
Segregation that occurs without
state authority, usually on the basis of
socioeconomic factors.
de jure segregation:
Segregation that is permitted by law.
(Black`s Law Dictionary)

35. Where does segregation have its seeds?
Black codes
Jim Crow Laws
Plessy v. Ferguson

36. Black Codes 1804-1868 The Black Codes were laws passed on the state
and local level in the United States to restrict the
civil rights and civil liberties of black people,
particularly former slaves in former Confederate
states.

37. Black Codes
for example:
African-Americans were not allowed to hold property or to enter into contracts or even to settle down
(e.g. Ohio 1804, Indiana 1851)

38. Black Codes anti-miscegenation statute (e.g. Indiana 1845)
reduction of choice of
employment
(e.g. black people were not
allowed to teach)

39. Black Codes prohibition of pleading in court
The Black Codes were repealed by the
14th Amendment.

40. Jim Crow Laws a character in an old song the term came to be
(„Jump Jim Crow“).
the term came to be
used as an insult against
black people  
the systematic practice
of promoting the
segregation of Negro
people

41. Jim Crow Laws ( )
In a bid to stop black Americans from being equal, the southern states passed a series of laws known as Jim Crow laws which discriminated against blacks. 

42. Jim Crow Laws (1876-1965) The Jim Crow laws separated people of color
from whites
in schools,
housing,
public bath houses

43. Jim Crow Laws ( )
public gathering places.
- jobs, and
They required black and white people to use separate water fountains, restaurants,public libraries, buses.

44. Jim Crow Laws ( )

45. Plessy v. Ferguson
In 1892, Homer Plessy entered a compartment for white people in Louisiana. He was asked to sit in a compartment for colored people. Because he declined the offer, he was arrested.

46. Plessy v. Ferguson A month later he was was found guilty of
breaching the law by the district criminal court
of New Orleans.
The chief judge in this court was
John Howard Ferguson.

47. Plessy v. Ferguson 1896, Louisiana:
the case was disputed in front of the Supreme Court of the United States.
The court had to decide whether the law in Louisiana,
the Separate Car Act, which stated that white and
black had to have seperate compartments, offended
against the Constitution (14th Amendment).

48. Plessy v. Ferguson Decision: (18.05.1896)
The judge said that the spatial separation between white and black would be matter of fact and did not offend against the 14th Amendment, as long as the dispositions were equal.

49. Plessy v. Ferguson
This decision became the legal basis for the legitimation of the Jim Crow laws, which already existed.

50. "Separate but equal“

51. "Separate but equal“

52. Civil Rights Movement - Brown v. Board of Education
Holding:
Segregation of students in
public schools violates the
Equal Protection Clause of
the Fourteenth Amendment, because separate facilities are
inherently unequal.

53. Civil Rights Movement - Brown v. Board of Education
This case overturned the
legal doctrine of "separate
but equal“ declaring the
establishment of separate
public schools for black and
white students inherently
unequal.

54. Civil Rights Movement from 1955 until 1968 by 1955 black citizens
became frustrated

55. Civil Rights Movement In defiance, these citizens adopted a combined
strategy of direct action
with nonviolent resistance
known as civil
disobedience.
Civil Rights Marchers

56. Civil Rights Movement boycotts- which began after the
Some of the different forms of civil disobedience
employed included
boycotts- which began after the
Montgomery Bus Boycott ( )
in Alabama,
"sit-ins" as demonstrated by the influential
Greensboro sit-in (1960) in North Carolina, and
marches,

57. Civil Rights Movement Rosa Parks (1913-2005) In 1955 Rosa Parks
refused to sit in the back
of a segregated bus.
She got arrested.
"Mother of the
Modern-Day Civil Rights
Movement".

58. Civil Rights Movement Martin Luther King Jr. (1929-1968)
For over 13 months the
Afro-American
population boycotts the
buses.

59. Civil Rights Movement The success and influence of the
bus boycott
The success and influence of the
Montgomery Bus Boycott
also led to Martin Luther King Jr. being one of the top leaders of the Civil Rights Movement, too.

60. Affirmative action designed to eliminate existing and continuing
set of actions
designed to eliminate
existing and continuing
discrimination
to remedy lingering effects of past discrimination
to create systems and procedures to prevent
future discrimination.
(Black’s Law Dictionary, p. 64)

61. Affirmative Action
imposed by Congress, a state, or an organization (e.g. school board)
either minority quota,
or special programs directed at redressing wrongs

62. Affirmative Action and the Constitution
constitutionality is hotly debated and often questioned
Is the preference of a special group
constitutional?
To what extent?

63. Affirmative Action and the Constitution
plaintiff:
somebody who feels unfairly treated
decisions are made on a case-by-case basis

64. Regents of the University of California
Example Case
Regents of the University of California
v. Bakke, 438 U.S. 265 (1978)

65. Minorities “[…] group that is different in some respect […]
from the majority and that is […] treated differently as a result; […]
It may also be applied to a group that has been traditionally discriminated against
or socially suppressed, even if its members are in the numerical majority in an area.”
(Black’s Law Dictionary, p. 1017)

66. Minorities African Americans Native Americans, Mexican Americans
Inuit? Asian Americans?
all members vs. only a few?

67. Discrimination
“1. The effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion, or handicap. [...]

68. Discrimination
“2. Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored.”
(Black’s Law Dictionary, p. 500)

69. How to “prove” discrimination, especially historical discrimination?
Which definition should be followed?
How to “prove” discrimination, especially historical discrimination?

70. Reverse Discrimination?
Does preference of minorities
lead to discrimination against the majority?
differentiation between cases necessary
situations where except for the race or
ethnic background, all conditions are equal
affirmative action discriminates and is
unconstitutional

71. Reverse Discrimination?
situations where conditions are not equal
due to past discrimination
if no other remedial measures are available, affirmative action within limits is constitutional

72. Reverse Discrimination?
Facially neutral affirmative action?
Arbitrary application of neutral rules?
“Punishing” individuals
by making them bear the burden
of affirmative action without
their fault?

73. Political and Social Problems
no proof that affirmative action attains its goals
may lead to feelings of inferiority
disadvantages those who live
in the same conditions but do not fall under the
criteria of affirmative action

74. Political and Social Problems
leads to decisions on an individual level
may create feelings of hatred and prejudice

75. (Regents of the University of California
Major Case Groups
educational:
e.g. minority quota in college admissions
(Regents of the University of California
v. Bakke, 438 U.S. 265 (1978))

76. Major Case Groups employment: e.g. employment policies that actively
prefer minorities

77. Major Case Groups
building contracts from federal money which stipulate that a certain percentage has to be contracted to
Minority Business Enterprises (MBEs)
(City of Richmont v. J.A. Croson Co., 488 U.S. 469, 1989; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 1995)

78. Taxman v. Board of Education, 91 F.3d 1547 (3rd Cir. 1996)
Example Case
Taxman v. Board of Education, 91 F.3d 1547 (3rd Cir. 1996)

79. Any questions?

80. Thank you!