Liberties versus rights
Civil liberties limit what government may do to you. Civil rights are guarantees of equal treatment by government and, through statutes, in some private settings such as employment and public accommodations. The central constitutional source is the Equal Protection Clause of the 14th Amendment (1868).
Voting and constitutional amendments
- 13th (1865): abolished slavery. 14th (1868): citizenship and equal protection. 15th (1870): the right to vote may not be denied because of race.
- 19th (1920): women's right to vote.
- 24th (1964): banned poll taxes in federal elections.
- 26th (1971): lowered the voting age to 18.
Despite the 15th Amendment, many Southern states used literacy tests, poll taxes and intimidation to block Black voters. The Voting Rights Act of 1965 outlawed such practices and gave the national government tools to oversee elections in places with a history of discrimination.
Segregation and Brown
In Plessy v. Ferguson (1896), the Court upheld "separate but equal" facilities. In Brown v. Board of Education (1954), the Court unanimously held that segregated public schools are inherently unequal, and so violate equal protection. Brown overturned Plessy as to public education. Enforcing it took many years.
A distinction: de jure segregation is created by law, and de facto segregation results from circumstances such as housing patterns, without a law requiring it.
Statutes
- Civil Rights Act of 1964: banned discrimination in public accommodations and employment on grounds of race, colour, religion, sex or national origin, and in programmes receiving federal funds.
- Title IX (1972): bars sex discrimination in education programmes that receive federal money.
- Americans with Disabilities Act (1990): bars discrimination against people with disabilities and requires reasonable accommodations.
Standards of review
When courts review laws that classify people, they apply different tests:
- Strict scrutiny (race, national origin): the law must serve a compelling interest and be narrowly tailored. It is very difficult to meet.
- Intermediate scrutiny (sex): the law must serve an important interest and be substantially related to it.
- Rational basis (most other classifications, such as age or economic regulation): the law needs only a legitimate purpose and a reasonable connection to it.
Worked example: matching case to rule
- A state has a law that forces Black and white children to attend different public schools. Classification: race. Test: strict scrutiny. Result under Brown: the law fails.
- A city requires firefighters to retire at an age chosen for safety reasons. Classification: age. Test: rational basis, which is easy for the government to meet.
- A state-run college admits only women to a nursing school. Classification: sex. Test: intermediate scrutiny. The state must show an important purpose and a close fit.
Notice that the test chosen, not the sympathy of the facts, drives the answer.