RACIAL AND ETHNIC DISCRIMINATION

Acts of bias based on the race or ethnicity of the victim.

Racial and ethnic discrimination have had a long history in the United States, beginning with the importation of African slaves in the seventeenth century. The u.s. civil war and the thirteenth amendment may have ended slavery, but they did not end racial discrimination. In fact, the U.S. legal system embraced for over 70 years a system of state-sponsored racial segregation in schools, transportation, and public accommodations. In addition, blacks and other minorities were denied the vote. Ethnic discrimination has also been common, beginning with the first wave of Irish immigration in the 1830s. During the nineteenth and twentieth centuries, discrimination based on race and ethnicity developed with the first arrivals of each alien group. Thus, the Chinese, the Japanese, Italians, Jews, Hispanics, Vietnamese, Somalis, and other groups have encountered hostility and bias when they tried to find jobs or places to live. Since the 1960s, federal civil rights laws and Supreme Court decisions have sought to combat illegal discrimination based on race or ethnicity.

In the aftermath of the Civil War, Radical Republicans in the Congress were determined to protect the civil rights of blacks. They enacted the Thirteenth, Fourteenth, and Fifteenth Amendments partially out of concern that future congresses could easily revoke statutory solutions. The Thirteenth Amendment abolished slavery and gave Congress the power to eradicate all vestiges of involuntary servitude. The fourteenth amendment proved to be the most profound and far-reaching of all federal Reconstruction legislation. In its three main clauses, the amendment guaranteed citizens' protection from the actions of state and local officials, based on equal protection, due process, and the concept of privileges and immunities. The fifteenth amendment declared that federal and state government could not deny or abridge the right to vote because of race, color, or previous condition of servitude.

Radical Republicans used these constitutional amendments as the basis for many pieces of civil rights legislation. The civil rights acts of 1866, 1870, and 1871 are usually called the Reconstruction Civil Rights Acts. The provisions of these acts are both civil and criminal in nature, and several of these statutes have assumed great importance in modern civil rights litigation. The most important of these statutes, 42 U.S.C.A. section 1983, provides that any person who under color of law subjects another individual to the deprivation of any federal right shall be liable to the injured party in an action at law or in equity. A similar provision in the federal criminal code imposed penal sanctions against persons who willfully engage in such conduct (18 U.S.C.A. § 242).

The federal government ceased to enforce these and other Reconstruction statutes in the Southern states after federal military occupation ended in 1876. African Americans lost their right to vote and were excluded from juries as the white power structure reasserted control of the political and legal systems in the South. In addition, the U.S. Supreme Court struck down civil rights laws, including a broad statute that barred racial discrimination in public transportation and accommodations, in large part because the Court perceived a dangerous tilt in the federal-state power relationship. By the end of the nineteenth century, the Supreme Court had made clear that it favored giving the states more power than the federal government in regulating the actions of their citizens. The 1896 decision in plessy v. ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), which endorsed the concept of separate but equal, legitimized state-mandated racial segregation.

At the beginning of the twentieth century, the tidal wave of immigrants from Europe and the presence of more Chinese on the West Coast led to calls for immigration restriction. Discrimination against immigrants was commonplace. The Chinese in California had obtained a ruling a generation earlier from the Supreme Court that established a powerful legal weapon against racial or ethnic discrimination. In yick wo v. hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the Court stated for the first time that a state or municipal law that appears to be fair on its face will be declared unconstitutional under the Equal Protection Clause because of its discriminatory purpose.

The National Association for the Advancement of Colored People (naacp) in 1909 signaled that the twentieth century battle for civil rights had begun. The NAACP used the federal courts to challenge various types of voting discrimination in the 1920s and 1930s, and, by the 1940s, it had initiated litigation against segregated public education that led to the landmark case of brown v. board of education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). In this case, the Court ruled that the "separate but equal" doctrine violated the Fourteenth Amendment. Though the Court mandated that the South's racially segregated schools be dismantled "with all deliberate speed," it took more than 20 years for some school districts to comply.

The modern civil rights movement began with the Montgomery, Alabama, bus boycott in 1955 and 1956, led by Rev. Dr. martin luther king jr. King's approach, which centered on nonviolent civil disobedience, was met by public and private resistance in the South. In the 1960s, Congress responded by enacting a series of laws designed to end discrimination based on race and ethnicity: the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.), the voting rights act of 1965 (42 U.S.C.A. § 1973 et seq.), and the fair housing act of 1968 (42 U.S.C.A. § 3601 et seq.). The Supreme Court found these acts constitutional, which signaled federal dominance over matters previously thought to be within the scope of state and local governments.

As of 2003, the Civil Rights Act of 1964 is the most comprehensive civil rights legislation in U.S. history. Congress enacted it to end discrimination based on race, color, religion, national origin, and sex. Title I of the act guarantees equal voting rights by removing registration requirements and procedures biased against minorities. Title II prohibits segregation or discrimination in places of public accommodation involved in interstate commerce. Title IV deals with the desegregation of public schools, Title IV broadens the duties of the civil rights commission, and Title VI mandates nondiscrimination in the distribution of funds under federally assisted programs. The most important section is Title VII, which bans discrimination by trade unions, schools, or employers involved in interstate commerce or doing business with the federal government. Title VII also established the equal employment opportunity commission (EEOC) to enforce the provisions of the act. Congress extensively amended Title VII in 1972. It authorized the EEOC to file judicial actions. Time limitations were lengthened, coverage was extended to public employees, and many clarifications were made in the statute. Title VII was amended again in 1991 to include the right to jury trials and the allowance of compensatory damages for intentional discrimination.

Title VII has also been the source of controversy over the policy of affirmative action. Affirmative action is a concerted effort by an employer to rectify past discrimination against specific classes of individuals by giving temporary preferential treatment to the hiring and promoting of individuals from these classes until true equal opportunity is achieved. Though the Supreme Court has upheld the constitutionality of affirmative action plans, it remained a source of litigation. However, the Supreme Court, in Gratz v. Bollinger, 539 U.S. ___, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), reaffirmed the constitutionality of affirmative action in education. The Court held that higher education institutions may use race as one factor in evaluating applicants but warned against the use of racial quotas or policies that gave race too prominent a role in the selection process.

The passage of the Voting Rights Act of 1965 was a significant moment in U.S. history. For the first time, the federal government undertook voting reforms that had traditionally been left to the states. The act prohibits the states and their political subdivisions from imposing voting qualifications or prerequisites to voting or standards, practices, or procedures that deny or curtail the right of a U.S. citizen to vote because of race, color, or membership in a language minority group. Congress extended the act in 1970 and again in 1982, when its provisions were given an additional term of 25 years. The act has enabled the election of blacks and individuals from other minority populations in the South and other parts of the United States that have been identified as problem areas by the justice department.

The Fair Housing Act of 1968 prohibits racial and ethnic discrimination in the rental and sale of private residences when agents or brokers handle such transactions. Transactions by private individuals are not covered. The act authorizes the housing and urban development department (HUD) to refer cases of racial discrimination to the Justice Department for possible prosecution. The Fair Housing Act gave rise in the 1970s to cases that focused on the legality of zoning practices. Court decisions have concluded that, absent a discriminatory purpose or intent, cities do not violate the federal Constitution through exclusionary zoning practices as a general rule. The Supreme Court's ruling in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), made it difficult to desegregate suburban communities.

Members of racial and ethnic communities are protected by a Supreme Court standard of review that places a heavy burden on the government to justify laws and regulations that are allegedly discriminatory. The Supreme Court has made race and ethnicity "suspect classification" for judicial review. This means that it will subject the government's action to "strict scrutiny" review. Using this standard reverses the ordinary presumption of constitutionality, with the government carrying the burden of proof that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result. Although strict scrutiny is not a precise test, it is far more stringent than the traditional rational basis test, which only requires the government to offer a reasonable ground for the legislation.