Affirmative Action (Encyclopedia of Everyday Law)
AFFIRMATIVE ACTION has been the most contentious area of CIVIL RIGHTS law during the past 30 years. Despite several Supreme Court decisions, numerous EXECUTIVE ORDERS, and laws passed by legislators at the state and federal level, it is still considered an unsettled area of law. Because of this current lack of resolution, any article written about affirmative action may soon become outdated with the latest law or court decision. Nevertheless, the broad outlines of what affirmative action has been and presumably will be in the future can be established.
Affirmative Action Defined
Although the term "affirmative action" can be used in a variety of contexts, the most popular definition currently is within the arena of civil rights. There, affirmative action has been held to provide a special boost to qualified minorities, women, and disabled individuals in order to make up either for past DISCRIMINATION or for their under representation in a specific area of the work force or academia. Though these categories of individuals have historically benefited most, affirmative action programs can also apply to other areas of discrimination, such as age, nationality, and religion.
Affirmative action can be administered in several ways. One way is through "quotas," defined as a strict requirement for a proportion or share of jobs, funding, or other placement to go to a specific group, e.g. 50 percent of all new hires must be women. Another is "goals," which require agencies and institutions to exert a good-faith effort toward reaching the assigned proportion or share goal but do not require that the proportion be reached. Affirmative action can also take the form of intangible "boosts" for the respective beneficiaries of the program; for example, all men shorter than 5'8" will be given ten extra points on the physical fitness exam.
The reasons for affirmative action are myriad and tend to overlap, but generally two justifications have stood out. One is that the group has been discriminated against in the past, e.g. black Americans, and needs affirmative action in order to "catch up" to the majority that has not suffered discrimination. The other is that the group is under represented in whatever area is being scrutinized, e.g. women in construction jobs, and needs to be helped to achieve some sort of representation in the area. Even in this situation, however, there is the tacit admission that discrimination might be the underlying cause of the under representation.
History of Affirmative Action
Affirmative action has its origins in the civil rights movement of the late 1950s and early 1960s. The movement brought a dramatic change to U. S. social life through protests, court decisions, and legislative action, culminating in the passage of the 1964 Civil Rights Act, popularly known as Title VII.
But Title VII mentioned affirmative action in a positive sense only in the context of the American Indian. It allowed preferential treatment to be given "to individuals because they are Indians living on or near a reservation." Otherwise, Title VII outlawed discrimination in a "color blind" fashion. The relevant part of Title VII states: "Nothing contained in this [law] shall be interpreted to require any employer, employment agency, labor organization, or joint labormanagement committee subject to this [law] to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."
This part of Title VII was passed to assuage the concerns of moderate members of Congress that the Civil Rights Act would become a quota bill, requiring reverse discrimination against whites. Civil rights leaders, who for the most part felt distinctly ambivalent about affirmative action, did not object to the inclusion of this passage. Many saw affirmative action as a way of dividing working class whites from blacks and the civil rights movement from its natural allies in the labor movement.
But the riots of the mid and late-1960s convinced more and more civil rights leaders that a color-blind policy of enforcing civil rights was not enough and that there had to be steps taken to ensure blacks could complete equally with whites. President Lyndon Johnson endorsed this view in a speech before Howard University in 1965 in which he stated: "You do not take a person who for years has been hobbled by chains and liberate him, bring him to the starting line and say you are free to compete with all the others."
That same year, Johnson issued Executive Order 11246, requiring firms under contract with the federal government not to discriminate, and to "take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, or national origin." Although not specifying what would constitute affirmative action and not applying to any firms outside the federal government, this order is considered the first attempt at positive affirmative action by a governmental entity. The order also created the Office of Federal Contract Compliance (OFCC) to enforce this policy.
Because the term, affirmative action, was left intentionally vague by the executive order, however, the OFCC was unsure how to enforce it. The OFCC formulated several plans in cities, such as Cleveland and Philadelphia, to facilitate the hiring of minorities for federal government work, but for various reasons these plans were determined to be illegal or never seriously enforced. Johnson left office without any definite affirmative action plan put forth on his watch.
It was left to the Nixon administration, ironically considered an administration not particularly friendly to civil rights interests, to pick up the issue and promote the first serious affirmative action plan that required government-determined, numerically specific percentages of minorities to be hired.
In 1969, the Nixon administration picked up a plan that the Johnson administration had put forth for the construction industry in the city of Philadelphia, referred to as the Philadelphia Plan. The Johnson administration plan was faulted for not having definite minimum standards for the required affirmative action programs. The Nixon plan did issue minimum standardspecific targets for minority employees in several trades. It did not require these minimum standards be met, simply that contractors submitting bids make a "good faith" effort to achieve these targets. This allowed the administration to argue it was not setting quotas, though critics of the plan suggested the administration was in fact doing so.
The Philadelphia Plan survived several challenges, both legal and Congressional, before being accepted as legitimate. The Plan set the tone for affirmative actions plans that followed. Soon, the standards put forth in the Philadelphia Plan were incorporated into Executive Order 11246 which affected all federal government contractors, who were required for the first time to put forth written affirmative action plans with numerical targets.
After the implementation of the Philadelphia Plan, legislation was passed at the federal, state, and municipal level implementing affirmative action plans using the Philadelphia Plan as a model. Today, almost all government affirmative action plans are offshoots of the Philadelphia Plan. Its mixture of numerical targets and requirements of "good faith" effort was a milestone in the history of affirmative action.
Supreme Court Decisions on Affirmative Action
The Supreme Court has given its opinion on affirmative action on numerous occasions since the Philadelphia Plan was put into effect in 1970. Byndlarge, these Supreme Court decisions were more open to the idea of affirmative action during the 1970s and early 1980s and then gradually tightened the requirements for affirmative action plans. Generally, the question before the Supreme Court regarding affirmative action plans asked what kind of scrutiny to give the plans.
Griggs v. Duke Power Co.
Decided in 1971, this decision is generally held to have laid the foundation for affirmative action programs based on the rationale of under representation. The case involved black workers at a power plant in North Carolina who sued, arguing that the plant's requirements of a high school education or passing a standardized intelligence test in order to fill certain jobs was discriminatory. The plaintiffs argued that the requirements operated to disqualify blacks at a substantially higher rate than white applicants. The plant argued that the requirements served a legitimate business purpose.
A unanimous Supreme Court disagreed, ruling that the tests did not serve any job-related requirement. The Court pointed out that the plant had practiced discrimination in the past and that the effect of these requirements was to prevent black workers from overcoming the effects of such discrimination. "Practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices," said the court.
The effect of Griggs v. Duke Power was to legitimize the so-called disparate impact theoryhe idea that if a qualification had a disparate impact on a specific group, an organization could justify that qualification only if it could prove a business related purpose for such a requirement. This point opened the door to forcing employers (including the government) to taking a hard look at the effect of their employment practices and their relation to race.
Regents of the University of California v. Bakke
This was the first instance of the court taking a case specifically involving affirmative action. The case involved a white man, Allan Bakke, who had applied for a seat at the medical school at the University of California at Davis. Bakke was rejected, and then he sued, arguing that less qualified minorities were being allowed into the school under a quota system reserving a specific number of seats for minorities.
In a 5-4 ruling, a divided Supreme Court in 1978 ruled that the specific quota system used by the University of California at Davis was illegal but that race could be taken into consideration in determining admission slots at the school. The result was the first time the Court had held that reverse discrimination could be justified under certain circumstances.
United Steel Workers of America v. Weber and Fullilove v. Klutznick
These two cases, decided a year apart, further legitimized the use of affirmative action as a tool for increasing minority employment. In the Weber case, the Supreme Court in 1979 ruled that an affirmative action plan for on-the-job training that mandated a one-for-one quota for minority workers admitted to the program was legal, since the plan was a temporary measure designed to correct an imbalance in the workforce.
In Fullilove, the Supreme Court upheld the "minority business enterprise" provision of Public Works Employment Act of 1977, which requires that at least 10 percent of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members.
Johnson v. Santa Clara County Transportation Agency
This 1987 decision expanded the Court's protection of affirmative action programs to ones benefiting women. The Court ruled that the county agency did not violate civil rights laws by taking the female employee's sex into account and promoting her over male employee with a higher test score. By doing so, the court upheld the county's affirmative action plan directing that sex or race be considered for purpose of remedying under representation of women and minorities in traditionally segregated job categories.
City of Richmond v. J.A. Croson
Beginning with this case in 1989, the Supreme Court began to cut back on the leeway it had given affirmative action programs. The Court struck down a set-aside program mandated by the city of Richmond, Virginia, which required prime contractors awarded city construction contracts to subcontract at least 30 percent of the dollar amount of each contract to one or more "Minority Business Enterprises." The Court ruled that the city failed to demonstrate compelling governmental interest justifying the plan, and the plan was not narrowly tailored to remedy effects of prior discrimination.
In handing down this ruling, the Court determined that any JUDICIAL REVIEW of municipal affirmative action plans would be reviewed with "strict scrutiny." Under the strict scrutiny test, defendants are required to establish they have a compelling interest in justifying the measure or that the affirmative action program advances some important governmental or societal purpose. For all practical purposes, this ruling makes it very hard to justify an affirmative action plan unless past discrimination can be shown, and the under representation of minorities is a product of that discrimination.
Adarand Construction v. Pena
In this most recent Supreme Court case, the Court applied the standards propagated in City of Richmond v. Croson to the federal government, ruling that all racial classifications imposed by whatever federal, state, or local governmental actor must be analyzed by the reviewing court under strict scrutiny. The Court overturned a decision dismissing a suit brought by a contractor challenging the constitutionality of a federal program designed to provide highway contracts to minority business enterprises.
The results in Adarand confirm that the conservative direction in which the Supreme Court is moving with respect to affirmative action plans. It seems clear after this decision that affirmative action plans will only survive court challenges by being narrowly tailored to rectify past discrimination.
However, any change in the Supreme Court could result in a reversal of fortune for affirmative action. Given the age of the current justices and the division of government between Democrats and Republicans, it remains impossible to predict the will of the Court in the future in regards to this controversial topic.
Forms of Affirmative Action
Affirmative actions can take different forms. Often affirmative actions are written into federal or state law. They can also take the form of voluntary plans or consent decrees. Occasionally, although rarely these days, a court will impose an affirmative action plan to remedy the effects of past discrimination.
Although affirmative action has been employed in the private sector, its use has been most pronounced in the public sector, in regard to both hiring and contract requirements. Affirmative action has been broadly used across a wide spectrum of federal, state, and municipal governments.
Samples of Affirmative Action at the Federal Level are as follows:
Department of Defense: Strives to award five percent of Department of Defense procurement, research and development, construction, operation and maintenance contracts to minority businesses and institutions.
Federal Home Loan Banks: Provides for preservation and expansion of minority owned banks.
Department of State: Mandates at least 10 percent of amount of funds appropriated for Department of State and foreign affairs diplomatic construction projects be allocated to American minority contractors.
NASA: Requires NASA administrator to establish annual goal of at least eight percent of total value of prime contracts and subcontracts awarded to be made to small disadvantaged businesses and minority educational institutions.
FCC: Must ensure that minority- and women-owned businesses have opportunity to participate in providing spectrum-based services.
Department of Energy: Works to achieve five percent of combined total funds of Department of Energy used to carry out national security programs be allocated to minority businesses and institutions.
Department of Energy: Strives for five percent of combined total funds of Department of Energy used to carry out national security programs be allocated to minority businesses and institutions.
Department of Transportation: Requires that not less than 10 percent of funds appropriated under the Intermodal Surface Transportation Efficiency Act of 1991 be expended on small and minority businesses.
Environmental Protection Agency: Must allocate no less than 10 percent of federal funding to minority businesses for research relating to requirements of Clean Air Act Amendments of 1990.
Affirmative Action at the State Level
ARKANSAS: Requires Division of Minority Business Enterprise to develop plans and participation goals for minority businesses.
CONNECTICUT: Mandates that contractors on state public works contracts make GOOD FAITH efforts to employ minority businesses as subcontractors and suppliers, allows municipalities to set aside up to 25 percent of dollar amount of construction and supply contracts to award to minority businesses.
DISTRICT OF COLUMBIA: Requires District of Columbia agencies to allocate 35 percent of dollar amount of public construction contracts to minority businesses.
FLORIDA: Allows municipalities to set aside up to 10 percent of dollar amount of contracts for procurement of PERSONAL PROPERTY and services to award to minority businesses.
ILLINOIS: Requires Metropolitan Pier and Exposition Authority to establish goals of awarding not less than 25 percent of dollar amount of contracts to minority contractors and not less than five percent to women contractors.
INDIANA: Requires that state agencies establish goal that five percent of all contracts awarded be given to minority businesses.
KANSAS: Allows Secretary of Transportation to designate certain state highway construction contracts, or portions of contracts, to be set aside for bidding by disadvantaged businesses only.
LOUISIANA: Requires establishment of annual participation goals for awarding contracts for goods and services and public works projects to minority- and women-owned businesses.
MARYLAND: Requires that Maryland award 14 percent of dollar amount of procurement contracts to minority businesses.
MICHIGAN: Establishes participation goals for awarding of government contracts to minority- and women-owned businesses.
NEW JERSEY: Allows municipalities to set aside certain percentage of dollar value of contracts to award to minority businesses.
NEW YORK: Allows municipalities to set aside certain percentage of dollar value of contracts to award to minority businesses.
OHIO: Provides that a prime contractor on a state contract must award subcontracts totaling no less than five percent of the total value of the contract to Minority Business Enterprises (MBE) and that the total value of both the materials purchased from MBE's and of the subcontracts awarded will equal at least seven percent of the total value of the contract.
TENNESSEE: Requires all state agencies to actively solicit bids from small businesses and minorityowned businesses whenever possible. Local education agencies and state colleges and universities may set aside up to 10 percent of their funds allocated for procurement of personal property and services for the purpose of entering into contracts with small businesses and minority-owned businesses.
Required Affirmative Action For Federal Contractors
Contractors with the federal government are required to have affirmative action plans under various federal laws. These laws include:
Executive Order 11246: This 30-year-old order, signed by President Johnson and amended by President Nixon, applies to all nonexempt government contractors and subcontractors and federally assisted construction contracts and subcontracts in excess of $10,000. Under the Executive Order, contractors and subcontractors with a federal contract of $50,000 or more and 50 or more employees are required to develop a written affirmative action program that sets forth specific and result-oriented procedures to which contractors commit themselves to apply every good faith effort.
Section 503 of the Rehabilitation Act of 1973: Requires affirmative action plans in all personnel practices for qualified individuals with disabilities. It applies to all firms that have a nonexempt government contact or subcontract in excess of $10,000.
The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA): Requires affirmative action programs in all personnel practices for special disabled veterans, Vietnam Era veterans, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized. It applies to all firms that have a nonexempt government contract or subcontract of $25,000 or more.
What An Affirmative Action Plan Should Include
The Office of Federal Contract Compliance Programs (OFCCP) suggests that non-construction contractors' written affirmative action plans include the following affirmative action as part of an actionoriented program:
- Contact with specified schools, colleges, religious organizations, and other institutions that are prepared to refer women and minorities for employment;
- Identification of community leaders as recruiting sources;
- Holding of formal briefing sessions, preferably on company premises, with representatives from recruiting sources;
- Conduct of plant tours, including presentation by minority and female employees of clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company's selection process, and recruitment literature;
- Encouragement of minority and female employees to refer applicants;
- With special efforts the inclusion of minorities and women in personnel department staffs;
- The availability of minority and female employees for participation in career days, youth motivation programs, and related community activities;
- Recruitment at secondary schools, junior colleges, and colleges with predominantly minority or female enrollments;
- With special efforts the contact with minorities and women when recruiting at all schools;
- Special employment programs undertaken whenever possible, such as technical and non-technical co-op programs with predominantly black and women's colleges, summer jobs for underprivileged youth, and motivation programs for the hardcore unemployed;
- Inclusion of minority and female employees in recruiting brochures pictorially presenting work situations;
- Expansion of help-wanted advertising to regularly include the minority news media and women's interest media.
Voluntary Implementation of Affirmative Action
Both private and public employers use voluntary affirmative action. However, both private and public employers must satisfy certain criteria in order to comply with Title VII. The employer must have a legitimate reason for adopting a plan. Also, the plan cannot unduly interfere with the employment opportunities of non-minority or male workers or job applicants to the extent that their interests are "unnecessarily trammeled." The EEOC has promulgated Guidelines on Affirmative Action that explain how to develop a lawful affirmative action plan under Title VII.
Often, affirmative action remedies are agreed upon to settle a discrimination case. These remedies are implemented by a consent DECREE. A court must approve provisions in consent decrees that provide for the employer's ADOPTION of an affirmative action program. Affirmative action contained in the decree is viewed as voluntary. The action may benefit individuals who were not the victims of the discriminatory practice at issue.
Abolishing Affirmative Action
In the 1990s, several states moved to abolish affirmative action programs. California voted in 1996 to abolish affirmative action, and Washington State voted similarly in 1998. The California ban asserts: "the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." The wording of the Washington law is identical. Both laws were passed in voter referenda.
In addition, the 5th Circuit Court in Hopwood v. Texas in 1996 effectively abolished affirmative action for schools in that circuit (which includes Texas, Louisiana, and Mississippi), ruling that giving preferential treatment to minorities violates EQUAL PROTECTION. More recently, Florida in 2000 decided to abolish affirmative action for colleges in the state, replacing it with an initiative to guarantee college admissions for the states' top high schools.
Whether these events prove to be a trend is hard to say. But between these actions and the recent Supreme Court decisions it is clear, for the moment at least, that affirmative action is in retreat.
Affirmative Action. A.E. Sadler, Ed., Greenhaven Press, 1996.
Affirmative Action Fact Sheet. Office of Federal Contract Compliance Programs, 2000. Available at .
Alice in Preference Land: A Review of Affirmative Action in Public Contracts. Denise Farris, Construction Lawyer, Fall, 1991.
American Jurisprudence. Second Edition, Job Discrimination §§ 600-678 (2000).
Equality Transformed: A Quarter-Century of Affirmative Action. Herman Belz, Transaction Publishers, 1991.
Federal Law of Employment Discrimination. Mack Player, West Group, 1989.
Has Affirmative Action Been Negated? A Closer Look at Public Employment. Honorable H. Lee Sarokin, et al; San Diego Law Review, Summer, 2000.
The Ironies of Affirmative Action. John David Skrentny, University of Chicago Press, 1996.
Setting Aside Set Asides: The New Standards for Affirmative Action Programs in the Construction Industry. Steven K. DiLiberto, Villanova Law Review, 1997.
U.S. Code, Title 42: United States Code Annotated Title 42: The Public Health And Welfare Chapter 21: Civil Rights. U. S. House of Representatives, 1999. Available at .
American Association For Affirmative Action
P.O. Box 14460
Washington, DC 20044-4460 USA
Fax: (202) 628-7977
Primary Contact: Ismael Rivera, President
Office of Federal Contract Compliance Programs (OFCCP)
200 Constitution Ave., NW
Washington, DC 20210 USA
Phone: (888) 37-OFCCP
Fax: (206) 553-2694
Primary Contact: Donald Elliott, Ombudsperson
U. S. Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC 20507 USA
Phone: (202) 663-4900
Primary Contact: Cari M. Dominguez, Chair
Age Discrimination (Encyclopedia of Everyday Law)
Age DISCRIMINATION occurs when an older person is pressured in the workplace to leave. Under the law a person's career cannot be jeopardized solely because of age. Unfortunately, many employers resort to subtler but equally damaging tactics to thin the ranks of older workers. Today, "older worker" can mean anyone over the age of 40. Employees who fall into this group need to understand their rights under the law; this way, if they suspect discrimination, they can take appropriate action.
Until the early twentieth century discrimination based on age was not a clear-cut issue in most professions, Most people worked until they reached an age at which they were no longer able to be productive. For the remainder of their lives they would be taken care of by their families.
With the rise in industrialization and in unions, specific guidelines were set in place for how long people should stay on the job. The introduction of PENSION programs allowed workers the opportunity to stop working when they reached old age, secure in the knowledge that they would be able to take care of themselves financially. Later, government initiatives such as Social Security made it still easier for people to retire.
Beginning after World War II, dramatic changes in the workplace created a shift in policies and attitudes. Technology had made many jobs obsolete, and employees had to learn more and learn faster. As the postwar "baby boom" generation came of age, a growing emphasis on youth pervaded an increasingly crowded workplace. People who had reached old or even middle age began to face increasing pressure to leave the workforce. Sometimes they were simply forced out. Older workers who happen to be women or members of a minority group have to be particularly diligent, since they could be subject to discrimination on additional factors.
Discrimination of any kind is determined by either direct or indirect EVIDENCE under the law. Direct evidence can include outright statements an employer makes about a particular job candidate that shows intent to exclude. Indirect evidence can be when an employer makes job qualifications vague enough to exclude certain people even though everything looks legal and ethical. In age discrimination cases, direct evidence would be an employer telling an older worker, "You're doing that job much more slowly than the others," or "I don't think you'll be able to learn our new computer system." Indirect evidence would be when a potential employer turns down a qualified older job applicant in favor of someone younger. Of course, if the younger employee is demonstrably better qualified, it may not be a case of discrimination. But if, for example, a qualified older worker is passed over for a job and the employer continues to interview other candidates, the employer may be deliberately excluding the older candidate.
The "baby boom" that began at the end of World War II in 1945 and lasted until the early 1960s generated an enormous number of new employees in the 1970s and 1980s. Interestingly, many companies saw the baby boomers as detrimental to productivity. To be sure, the youthful boomers lacked the experience of mature workers. But they were also the victims of stereotypes. Companies believed that these young people, born in the heady days of the postwar economy, would be less willing to work their way up from the bottom, as their parents had done. The younger workers would probably be spoiled and arrogant, and, consequently, less productive.
At the same time, rapid advances in technology meant that workers needed to be able to adapt to new ways of doing their jobs. Many companies that had prided themselves on a policy of "lifetime employment" began to see their longtime workforce as a drain on productivity. The reasoning had less to do with any belief that older workers would be unable to master new skills than it did with the fear that the older workers had grown complacent in their jobs. Moreover, older workers commanded the highest salaries and were the most likely to incur high health care costs. As the number of baby boomers in the market increased, companies began to shift their commitment from experience to a younger, less expensive workforce that could be trained (and whose jobs were made easier by technology).
While there are many older workers who want to continue in the jobs because they enjoy their work, many others continue to work because they cannot afford to retire. Thanks in large part to unions, many employees are guaranteed a good pension from their company after a set number of years, regardless of their age at retirement. Known as "30-and-Out" programs (based on a United Auto Workers deal with Chrysler in 1973), they allow workers to put in their 30 or however many years and retire with full pension benefits instead of having to wait until age 65 (when people can collect their full Social Security benefits).
Many companies offer some sort of early retirement package for employees, in part to make room for younger workers but also in part to cut down on the number of top-salaried people on the payroll. Such offers are not illegal and in fact can be beneficial to both the company and the employee. The issue takes a different turn when the employee is being pressured to accept an early retirement plan.
Setting a mandatory retirement age is illegal in most professions, although there are exceptions. Federal law recognizes ADEA exemptions in the case of such employees as air traffic controllers, federal police officers, airline pilots, and firefighters. In 1996 Congress passed legislation that allowed state and local governments to set retirement ages for these and similar employees to as young as 55. State and local judges are often required to step down at a certain age as well. In addition to mandatory retirement ages, many public safety jobs also have mandatory hiring ages, thus closing the door to potentially otherwise qualified people. The argument against mandatory retirement claims that it would be fairer to all employees to rely on periodic fitness testing, since some older workers may be just as able (or perhaps more so) to carry out their duties as younger ones.
Blatant discrimination is deplorable, but it is easy to spot and usually easy to determine accountability. More ambiguous, and thus more dangerous to older workers, is subtle discrimination. This can take many forms, and by its nature it is probably more pervasive than most people realize. Some examples are as follows:
- A longtime employee's supervisor makes comments in his or her presence about the benefits of retirement
- An employee whose company "restructures," and who subsequently ends up with a smaller office down a little-used corridor
- An employee who gets passed over for promotions, always in favor of younger staffers
- A worker who is reassigned to a job with fewer responsibilities, even if the assignment is considered a lateral move
- An employee who is no longer sent on business trips, provided membership in professional associations, or encouraged to take job-related courses
What makes subtle discrimination so much more dangerous than blatant discrimination in the minds of many experts is that it is harder to prove. Perhaps the supervisor is making comments about retirement because he or she is looking forward to being retired. Maybe the employee who was passed over for promotions has never asked to be promoted and thus is considered to be lacking in leadership initiative. Subtle forms of age discrimination may make older workers uncomfortable or unhappy enough that they will retire, even though they may not be able to pinpoint actual discrimination as their reason for leaving. The bottom line, however, is that subtle discrimination is no more acceptable in the workplace than blatant actions directed at older workers. Determining the difference between innocent remarks or coincidence and true discrimination may be difficult, but an older worker who suspects discrimination should know that taking action is a viable option.
Older workers have legal protection from age discrimination. The Age Discrimination in Employment Act (ADEA) was passed by Congress in 1967. The ADEA extends the law as spelled out in the CIVILRIGHTS Act of 1964, which prohibits discrimination based on race, sex, creed, color, religion, or ethnic origin. (Title VII of the Civil Rights Act is important to older workers who could suffer discrimination based on any of those factors as well.) Under the ADEA, workers age 40 and above are protected from discrimination in recruitment, hiring, training, promotions, pay and benefits, DISMISSAL and layoffs, and retirement. The Older Workers Benefit Protection Act (OWBPA), passed in 1990, guarantees protection against discrimination in benefits packages. For example, OWPBA sets strict guidelines prohibiting companies from converting their pension plans in a way that would provide fewer pension dollars to older workers.
While the ADEA has been a critical factor in guarding against age discrimination, certain decisions by the U. S. Supreme Court have made it somewhat less effective. Part of the reason is that the Civil Rights Act of 1991, which amended Title VII of the 1964 Civil Rights Act, did not similarly amend the ADEA. Thus, although Title VII allows victims to recover compensatory and PUNITIVE DAMAGES since the 1991 amendment, the ADEA does not. Recent Supreme Court actions have suggested that using pension eligibility or high salaries as a basis for layoff decisions (a practice that generally has the greatest impact on older workers) may not be discriminatory.
In 2000, the Supreme Court ruled in Kimel v. Florida Board of Regents that states are protected from ADEA suits by individuals. Legislation was introduced in the U.S. Senate in 2001 that would require states agencies to waive their IMMUNITY from ADEA suits or else FORFEIT federal funding.
Most ADEA suits are based on charges brought before the Equal Employment Opportunity Commission (EEOC). The EEOC is responsible for investigating charges of age discrimination and seeking remedies. Rarely does it file actual lawsuits (in fact EEOC LITIGATION across the board dropped through the 1990s and into the twenty-first century), but individuals are allowed to sue on their own.
In 1995 the EEOC conducted a comprehensive review of its procedures and developed new National and Local Enforcement Plans. These plans provide guidelines for dealing with discrimination issues against older workers.
The EEOC has long suffered from inadequate funding, which limits its ability to investigate charges as quickly as it would like. As a result, EEOC chooses its lawsuits carefully to ensure maximum impact.
Bona Fide Occupational Qualifications
Under the law, not all age-related job exclusions are discriminatory. In fact, both Title VII and the ADEA recognize exclusions known as bona fide occupational qualifications (BFOQs) as legitimate. For example, a kosher meat market can legitimately require that it can hire only Jewish butchers. An employer seeking an BFOQ exclusion must be able to prove that those from within an excluded group would not be able to perform the job effectively. Thus, a moving company might be able to exclude a 75-year-old as a mover because moving requires heavy lifting and driving long distances. An accounting firm would be unable to make a similar claim in trying to force a 75-year-old bookkeeper to retire solely based on age.
Age discrimination has a twofold negative effect on older workers. The TANGIBLE effect is loss of a job or limited employment opportunities. Not only is it harder for an older worker to keep a job, it becomes harder for an older worker to find a new job. (Economic realities often dictate that early retirees may have to supplement their pensions before they turn 65 and collect their full Social Security benefits.) The psychological effect is that older workers become frustrated by their situation. If they are working, this could affect their productivity, which could feed the stereotypes about older workers. If they are looking for work, they may simply give up, believing that they are unemployable.
Individuals who think they are victims of age discrimination can turn to the local office of the EEOC for assistance. The EEOC will provide information about how to file charges at the state and federal levels. It is also useful to contact the state office of civil rights.
Older workers have a strong ally and resource in the form of AARP (formerly known as the American Association of Retired Persons). Founded in 1958, AARP had 35 million members across the country in 2001. AARP acts as an information clearinghouse for legislation and other materials, and it also serves as a powerful LOBBYING force at the federal and state level. Through its lobbying network, AARP seeks to get Congress to enact new laws, enforce existing laws, and revise flawed legislation. AARP is headquartered in Washington, D.C., but it has regional offices to serve at the local level. Its leadership works actively to combat all discrimination.
Aging and Competition: Rebuilding the U. S. Workforce. Auerbach, James A., and Joyce C. Welsh, editors, National Planning Association, 1994.
The Aging of the American Work Force. Bluestone, Irving, Rhonda J. V. Montgomery, and John D. Owen, editors, Wayne State University Press, 1990.
American Bar Association Guide to Workplace Law. White, Charles, Series Editor, Times Books, 1997.
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URL: http://www.aarp.org Primary Contact: William Novelli, Chief Executive Officer
Equal Employment Opportunity Council (EEOC)
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Phone: (202) 663-4900
Fax: (202) 376-6219
URL: http://www.eeoc.gov Primary Contact: Cari M. Dominguez, Chairperson
National Council on the Aging
409 Third Street, Suite 200
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Fax: (202) 479-0735
URL: http://www.ncoa.org Primary Contact: James P. Firman, President and CEO
U. S. Department of Health and Human Services, Administration on Aging
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Phone: (202) 619-0724
Fax: (202) 260-1012
URL: http://www.aoa.gov Primary Contact: Josefina G. Carbonell, Assistant Secretary for Aging
Assembly (Encyclopedia of Everyday Law)
The First Amendment of the BILL OF RIGHTS provides that "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble."
This provision applies to state government entities through the Due Process Clause of the Fourteenth Amendment. Though neither the federal Constitution nor any state constitution specifically protects rights of association, the United States Supreme Court and other courts have extended assembly rights to include rights of association.
Rights to free speech and assembly are not absolute under the relevant JURISPRUDENCE. Government entities may restrict many types of speech without violating First Amendment protections. Many of the Supreme Court's First Amendment cases focus on two main questions: first, whether the restriction on speech was based on the content of the speech; and second, whether the speech was given in a traditional public forum or elsewhere. Some questions focus exclusively on the actual speech, rather than on aspects of the right to assembly. Other questions contain aspects of both the right to free speech and the right to assemble peacefully. Cases addressing free speech plus some conduct in the exercise of assembly rights often pose complex questions, since either the speech rights or the assembly rights may not protect the parties in these types of cases.
Since the courts take into consideration such a variety of factors when determining whether a particular speech or whether a particular assemblage is protected by the First Amendment, it is difficult to provide a concise definition of rights of assembly. Even in areas where a government entity may restrict speech or assembly rights, courts are more likely to find a violation of the First Amendment if speech or assembly is banned completely. Some restrictions merely involve the application for a permit or license to assemble, such as obtaining a license to hold a parade in a public street. Other time, place, and/or manner restrictions may also apply.
Content-Based vs. Content-Neutral Restrictions on Free Speech
The outcome of a First Amendment case may very well hinge on whether the restriction of speech is based on the content of the speech. If the restriction is content-based, courts scrutinize the restriction under a heightened standard compared with restrictions that are content-neutral. When courts apply this heightened scrutiny, they are more likely to find a First Amendment violation. Courts also recognize that content-neutral restrictions may cause as much or more harm than content-based restrictions. For example, a ban on all parades on public streets is much more intrusive than a ban on only some parades. If a restriction is content-neutral, a court will employ an intermediate standard of scrutiny.
Determining whether a restriction is content-neutral or content-based may be more difficult in the context of assembly rights than in the context of speech rights. For example, if a city requires that all groups obtain a permit to hold a parade, the restriction is more likely, at least on its face, to be content-neutral. However, if the city, through official or unofficial action, only issues permits to certain groups and restricts issuing permits to other groups, the restriction in its application is content-based, not content neutral.
Public vs. Private Speech
In addition to determining whether a restriction is content-based or content-neutral, courts also consider whether the speech or assembly is given or held in a public or private forum. Government property that has traditionally been used by the public for the purpose of assembly and to disseminate ideas is considered a traditional public forum. Content-based regulations in a traditional public forum are the most likely forms of speech to be found in violation of the First Amendment. Some content-neutral restrictions on the time, place, and manner of the speech are permitted, however, even in the traditional public forum.
Public-owned facilities that have never been designated for the general use of the public to express ideas are considered nonforums. Government may reasonably restrict speech, including some content-based speech, in these nonforums. This does not mean that all speech may be restricted on such property, but it does mean that speech can be restricted to achieve a reasonable government purpose and is not intended to suppress the viewpoint of a particular speaker.
Some public property that is not a traditional public forum may become a designated or limited public forum if it is opened to the use of the general public to express ideas. Examples include a senior center that has been opened for the general public to express ideas or a state-operated television station used for political debates. Courts will strictly scrutinize content-based restrictions in a designated or limited public forum when the restriction on speech is related to the designated public use of the property.
Reasonable Time, Place, and Manner Restrictions
Government entities may make reasonable content-neutral restrictions on the time, place, and manner of a speech or assemblage, even in a traditional public forum. This action directly affects the rights of assembly, since a government entity may restrict the time and place where an assembly may take place, as well as the manner in which the assembly occurs. The restrictions must be reasonable and narrowly tailored to meet a significant government purpose. The government entity must also leave open ample channels for communication that interested parties wish to communicate.
Overbreadth and Vagueness
Statutes and ordinances are often found to infringe on First Amendment rights because they are unconstitutionally vague or the breadth of the STATUTE or ORDINANCE extends so far that it infringes on protected speech. For example, some statutes and ordinances prohibiting loitering on public property have been found to be unconstitutional on the grounds of overbreadth since some people could be prosecuted for exercising their protected First Amendment rights. Similarly, statutes and ordinances restricting speech may be so vague that a person of ordinary intelligence could not determine what speech was restricted based on a reading of the law.
Permissible and Impermissible Restrictions on Rights of Assembly
It is difficult to make general statements about when assembly rights are guaranteed and when they are not. Whether assembly is or is not guaranteed depends largely on where and when the assembly takes place, as well as the specific restrictions that were placed on this right by government entities.
Speech and Assembly in Public Streets and Parks
Public streets, sidewalks, and parks are generally considered public forums, and content-based restrictions on these will be strictly scrutinized by the courts. However, reasonable time, place, and manner restrictions are permitted if they are neutral regarding the content of the speech.
The use of public streets, sidewalks, and parks may not always be considered use of public forums, which often causes confusion in this area. For example, in the 1990 case of United States v. Kokinda, the Supreme Court held that a regulation restricting use of a sidewalk in front of a post office was valid because, in part, that particular sidewalk was not a public forum. Similar results have been reached with respect to some public parks.
Parade Permits and Other Restrictions
The right to assemble and hold parades on public streets is one of the more important rights of assembly. However, these rights must be balanced with the interests of government entities to maintain peace and order. The Supreme Court in the 1992 case of Forsyth County v. Nationalist Movement, held that a government entity may require permits for those wishing to hold a parade, march, or rally on public streets or other public forums. Local officials may not be given overly broad discretion to issue such permits.
Speech and Assembly in Libraries and Theaters
The Supreme Court has held that a publiclyowned theatre is a public forum. Thus, government may not make content-based restrictions on speech or assembly in these theaters. However, government entities may make reasonable time, place, and manner restrictions in publicly-owned theaters. Libraries, on the other hand, are not considered public forums and may be regulated "in a reasonable and nondiscriminatory manner, equally applicable to all and administered with equality to all."
Speech and Assembly in Airports and Other Public Transportation Centers
The Supreme Court has held that airports are not traditional public forums, so government may make certain reasonable restrictions on assembly and speech rights in these areas. Courts have reached different conclusions with respect to other centers of public transportation, such as bus terminals, railway stations, and ports.
Picketing and Other Demonstrations
The act of picketing is unquestionably intertwined with the First Amendment right to peaceful assembly. Courts have often recognized the right to picket and hold other peaceful demonstrations particularly in public forums. The right to picket, however, is limited and depends on the specific activities of the participants and the location of the demonstration. For example, if a demonstration breaches the peace or involves other criminal activity, law enforcement may ordinarily end the demonstration in a reasonable manner. Similarly, a government entity may reasonably restrict demonstrations on public streets in residential areas.
Loitering and Vagrancy Statutes
State and local governments have often sought to eliminate undesirable behavior by enacting statutes and ordinances that make loitering a crime. Many of these statutes have been held to be constitutional, even those that prohibit being in a public place and hindering or obstructing the free passage of people. Such rulings have a significant effect on the rights of assembly, since these crimes involve a person's presence in a certain place, in addition to suspicious behavior.
A number of courts have held that specific antiloitering statutes and ordinances have been unconstitutional. Some of these decisions are hinged on First Amendment rights, while others hinge on other rights, such as Fourth Amendment protections against unreasonable searches and seizures. Several of these statutes have been struck down on grounds of vagueness or overbreadth. Similarly, courts have struck down statutes and ordinances outlawing VAGRANCY on the grounds of vagueness or overbreadth.
Speech and Assembly on Private Property
The general rule is that owners of private property can restrict speech in a manner that the owner deems appropriate. Some older cases have held that private property, such a privately owned shopping center, could be treated as the equivalent of public property. However, modern cases have held otherwise, finding that private property was not subject to the same analysis regarding First Amendment rights as public property.
State Laws Affecting Rights of Assembly
Some municipalities in every state require interested individuals to file for a permit to hold a parade or other gathering on public property. These ordinances are often the subject of LITIGATION regarding alleged INFRINGEMENT on First Amendment rights of peaceful assembly. Antiloitering statutes are also commonplace, though several of these have been challenged on First Amendment grounds as well. Whether a specific ordinance, statute, or official action constitutes a violation of the First Amendment depends largely on the specific facts of the case or the specific language of the statute or ordinance.
ALABAMA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state's criminal laws prohibit loitering, including begging and criminal SOLICITATION.
ARIZONA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering, including begging and criminal solicitation.
ARKANSAS: Several municipalities require that interested parties file for a permit to hold a parade in public streets. Some of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state's criminal laws prohibit loitering.
CALIFORNIA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state's criminal laws prohibit loitering, and these laws have generally been upheld in First Amendment challenges.
COLORADO: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state requires a permit for parties to use the state capitol building grounds. The state's criminal laws prohibit loitering, including begging and criminal solicitation. The Colorado Supreme Court held that the state's loitering statute was unconstitutional; this statute was subsequently modified.
DELAWARE: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering, including begging, criminal solicitation, and loitering on public school grounds.
FLORIDA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws regarding loitering have been the subject of several lawsuits. These laws make it a crime to loiter or prowl in a place, at a time or in a manner not usual for a law-abiding individual.
GEORGIA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state's criminal laws regarding loitering have been the subject of several lawsuits. These laws make it a crime to loiter or prowl in a place, at a time, or in a manner not usual for a law-abiding individual.
HAWAII: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering for solicitation of prostitution.
IDAHO: Several municipalities require that interested parties file for a permit to hold a parade in public streets.
ILLINOIS: Several municipalities require that interested parties file for a permit to hold a parade in public streets or public assembly. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state statutes permit municipalities to prohibit vagrancy, and loitering is prohibited in the state by criminal statute.
INDIANA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. Criminal gang activity is a separate offense under state criminal laws.
IOWA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state provides specific laws prohibiting loitering and other congregation on election days near polling places.
KANSAS: Several municipalities require that interested parties file for a permit to hold a parade in public streets.
KENTUCKY: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering for the purpose of engaging in criminal activity.
LOUISIANA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit vagrancy and loitering, though these statutes have been attacked on First Amendment grounds several times.
MAINE: Several municipalities require that interested parties file for a permit to hold a parade in public streets.
MARYLAND: Several municipalities require that interested parties file for a permit to hold a parade or other public assembly in public streets or areas. The state's criminal laws prohibits loitering or loafing around a business establishment licensed to sell alcohol.
MASSACHUSETTS: Several municipalities require that interested parties file for a permit to hold a parade in public streets, though a number of these ordinances have been the subject to challenges on First Amendment grounds. The state's criminal laws prohibit loitering in some specific venues, such as railway centers.
MICHIGAN: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights.
MINNESOTA: Several municipalities require that interested parties file for a permit to hold a parade, march, or other form of procession on public streets and other areas. The state's criminal laws prohibit vagrancy, including some instances of loitering.
MISSISSIPPI: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights.
MISSOURI: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit vagrancy, including some instances of loitering.
MONTANA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit vagrancy and loitering around public markets.
NEBRASKA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering in specified venues.
NEVADA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering around schools and other areas where children congregate. The state permits municipalities to enact ordinances to prohibit loitering.
NEW HAMPSHIRE: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering and prowling in specified circumstances.
NEW JERSEY: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state's criminal laws prohibit loitering for the purpose of soliciting criminal activity or in public transportation terminals.
NEW YORK: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state has enacted a number of laws prohibiting loitering, including loitering for the purpose of soliciting passengers for transportation, loitering for the purpose of criminal solicitation, and loitering in public transportation centers. The statute permits municipalities to enact ordinances prohibiting loitering. Several of the antiloitering laws have been the subject of litigation attacking the laws on First Amendment grounds.
NORTH DAKOTA: Several municipalities require that interested parties file for a permit to hold a parade or other processions in public streets.
OHIO: Several municipalities require that interested parties file for a permit to hold a parade or engage in the solicitation of business. The state's criminal laws prohibit loitering in public transportation centers and in polling centers during elections.
OKLAHOMA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering for the purpose of engaging in specified criminal acts.
OREGON: Several municipalities require that interested parties file for a permit to hold a parade in public streets. Some municipalities also require a noise permit when playing amplified noise in a public place.
PENNSYLVANIA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. A number of these ordinances have been attacked on First Amendment grounds, and some ordinances have been found to be in violation of First Amendment rights. The state's criminal laws prohibit loitering for the purpose of engaging in specified criminal acts.
RHODE ISLAND: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's criminal laws prohibit loitering for indecent purposes, loitering in public transportation centers, and loitering at or near schools.
SOUTH CAROLINA: Several municipalities require that interested parties file for a permit to hold a parade in public streets. The state's laws prohibit loitering in public transportation centers.
TENNESSEE: Several municipalities require that interested parties file for a permit to hold a parade on public streets. The state's criminal laws prohibit loitering for the purpose of engaging in specified criminal acts.
TEXAS: Several municipalities require that interested parties file for a permit to hold a parade on public streets. The state's laws prohibit loitering in polling centers during elections.
UTAH: Several municipalities require that interested parties file for a permit to hold a parade on public streets.
VERMONT: The state's laws prohibit loitering in public transportation centers and other public property.
WASHINGTON: Several municipalities require that interested parties file for a permit to hold a parade or march on public streets. The state's laws prohibit loitering in public transportation centers.
WEST VIRGINIA: Several municipalities require that interested parties file for a permit to hold a parade on public streets. The state's laws prohibit loitering at or near school property.
WISCONSIN: Several municipalities require that interested parties file for a permit to hold a parade on public streets. The state's laws prohibit loitering in public transportation centers.
The Constitutional Right of Association. Fellman, David, University of Chicago Press, 1963.
The First Amendment: A Reader. Garvey, John H., and Frederick Schaver, West Publishing Co., 1992.
Freedom of Association. Gutman, Amy, Princeton University Press, 1998.
Law and the Company We Keep. Soifer, Aviam, Harvard University Press, 1995.
The Right of Assembly and Association, Second Revised Edition. 2nd rev. ed., Abernathy, M. Glenn, University of South Carolina Press, 1981.
American Civil Liberties Union (ACLU)
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National Coalition Against Censorship (NCAC)
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National Freedom of Information Center (NFOIC)
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The Thomas Jefferson Center for the Protection of Free Expression
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Phone: (804) 295-4784 Fax: (804) 296-3621
Primary Contact: Robert M. O'Neill, Director
Children's Rights (Encyclopedia of Everyday Law)
When people in the United States think of CHILDREN'S RIGHTS they usually think of children in third world countries who are victims of abusive child labor practices or insurmountable poverty. They may not realize that the rights of children are violated in the United States as well. Even though CHILD LABOR LAWS were passed decades ago prohibiting employment of underage youngsters, pockets of oppressive child labor exist, literally, on American soil; child farm laborers work long hours in squalid conditions and often receive half the standard MINIMUM WAGE. And although numerous studies show that children do better when two parents are involved their upbringing, many CUSTODY laws make it extremely difficult for non-custodial parents to spend quality time with their children.
To be sure, the United States is still better than most countries when it comes to how children are treated. Yet children's rights is a topic that few people know much about. In fact, although many people know that the United Nations Convention on the Rights of the Child was formulated in 1989, they are probably unaware that the United States is one of two countries (the other is Somalia) that have not ratified the Convention. The U.S. government has given what it believes are sound reasons for not having ratified the Convention and repeatedly has affirmed its commitment to children's rights in the United States and abroad. Yet there is no question that some children do fall into the cracks, and others' problems are unwisely minimized.
Before the Twentieth Century
It was not uncommon for children to be exploited before the 1930s. Children routinely worked in hazardous conditions in mills, factories, and sweatshops, and on farms. They might begin working before they had reached their tenth birthday, and they received little in the way of wages. Labor laws did not exist to protect children or adults, but children were often subject to more exploitative conditions because they were easier to manipulate.
The plight of small children did lead to the enactment of some laws, and the federal government tried in 1918 and agin in 1922, to enact national child labor laws. Both times, the effort was struck down by the U.S. Supreme Court, which ruled that it was up to the individual states to enact child labor legislation.
The Fair Labor Standards Act (FLSA)
In 1938, partly in response to the Great Depression, Congress passed the FAIR LABOR STANDARDSACT (FLSA). This law protected workers from long hours and unfair pay by establishing a 40-hour work week and a minimum wage. It also protected children from exploitation by establishing that they would have to be at least 16 to work in most nonagricultural industries. Younger children could still work certain jobs provided the hours and wages were fair. (It was still possible, in other words, for children to get a newspaper route.) FLSA was challenged in the courts soon after its passage but its constitutionality was upheld by the U.S. Supreme Court in 1941.
Children's Rights Violations in the United States
Although the United States does not have the gruesome record of children's rights violations that other countries have, it is not free of violations. Some are more subtle than others, but they do exist. HUMAN RIGHTS groups monitor alleged instances of violations and work to educate the public and the government with the goal of correcting the problem.
Child Labor Violations
FLSA protects, among other groups, child laborers. When it was enacted, farming was primarily a family activity, and it was understood that children would help on the family farm. Thus, the restrictions on agricultural work are much less stringent. By the end of the twentieth century, the number of family farms had dwindled, and most farming was done on large commercial establishments. But the lax restrictions remained, and farm conglomerates took advantage of this.
Under FLSA, no child under the age of 13 can work in a nonagricultural setting, and children of 14 and 15 can work but only for a set number of hours each day. For children working on a farm, the situation is quite different. Children can go to work in the fields as young as nine years old in some states, as long as they have signed parental consent.
Even with the relaxed standards for agricultural work, children are often overworked, are expected to work during what would be school hours, and are paid far less than what is legally required. A report issued in 2000 by Human Rights Watch noted that children under the age of 16 are often required to put in several hours before the school day begins; during the summer months they may work 12-hour days.
The dangers of agricultural work are surprisingly many, and for minors these dangers are even more troubling. Agricultural workers can be exposed to pesticides and other chemicals. They may be sent to work in oppressive heat but without adequate water to keep from becoming dehydrated. Often, they work with heavy or dangerous equipmentequipment that children often have little experience with. Because they work long hours, often having to rise before dawn to begin their work, lack of sleep is a major problem. For children, this is not only more dangerous, it also curtails their ability to succeed in school. Injury is common; children can fall or have accidents with heavy equipment or sharp objects.
It is important to remember that many adult farm workers are also exploited, forced to work long hours for little pay. Often, families are so poor and desperate that they feel compelled to give their young children permission to work on the farm, thus bringing in a small but needed amount of extra money.
Organizations such as Human Rights Watch have urged the U.S. government to revise FLSA to offer additional protection to minor children working on farms, and to ensure that farms are more careful about whom they hire and also more diligent about improving working conditions and wages.
Benefits of Joint Custody
DIVORCE was less common before 1970 than it was by the end of the twentieth century, but children whose parents divorced were likely to be placed in the custody of one parent. The other parent might get visitation rights, but these were usually limited. For children whose parents are both loving and responsible but no longer married to each other, this can be emotionally devastating.
The concept of joint custody was developed in the early 1970s to REDRESS this imbalance. In 1973, Indiana passed the first state joint custody STATUTEin the United States. As of 2002, all states have a joint custody statute on the books. There are two types of joint custody. In Joint legal custody both parents share decision-making responsibility. In Joint physical custody children spend almost an equal amount of time with each parent. Unfortunately, joint custody is still not particularly common. In some cases, of course, there are MITIGATING CIRCUMSTANCES. One parent may have abandoned the family or may have verbally, physically, or even sexually abused the children in question. But for the average parent, who wants what is best for the child but is no longer able to see the child except for brief visits, the issue is one of fairness to that parent as well as the child. The majority of non-custodial parents are fathers.
According to statistics released by the U.S. Department of Health and Human Services in 1999, children who do not live with both parents are twice as likely to drop out of school, twice as likely to end up in jail, and four times as likely to need help for behavioral or emotional problems. Organizations such as the Children's Rights Council (CRC) raised the level of awareness on this issue to the point that joint custody, both legal and physical, became more common.
Children as Detainees
Illegal ALIENS who try to enter the United States may be detained and deported. This is true whether the aliens are adults or children. In 2000, nearly 4,700 children were detained by the U.S. IMMIGRATION and Naturalization Service (INS). Children are detained by INS after being picked up at U.S. borders without a parent or GUARDIAN and without proper documentation. The issue with these children is not that they are stopped from entering the United States illegally, but that they are held in such facilities as juvenile and county jails. Moreover, they face DEPORTATION, often to countries where they may be persecuted. They have no right to paid legal COUNSEL. Reports that some who are detained in jails are mistreated has led human rights organizations to call for investigations.
In 2001 U.S. Senator Dianne Feinstein introduced the Unaccompanied Alien Child Protection Act, which would establish an Office of Children's Service at the U.S. Department of Justice. This office would be in charge of ensuring that children are treated humanely while in custody and that decisions on their future would be made based on their short- and long-term needs. It would also provide for legal counsel and guardians, as necessary, to be appointed to represent the children's interests.
Convention on the Rights of the Child
In an effort to create a universally accepted set of children's rights, the United Nations General Assembly adopted the Convention on the Rights of the Child in November 1989. This document promises children the basic human rights of life and liberty, as well as access to education and health care. It also calls for protection against DISCRIMINATION and abuse, protection from economic exploitation, and protection against torture.
While children's rights have become more visible since then, there are still many instances around the world of children's rights violations.
The United States did sign the Convention in 1995 but it was never submitted to the Senate for RATIFICATION. Although the government has stated that it has no intention of ratifying the Convention, it has consistently reaffirmed its commitment to children's rights.
Among the reason the United States has failed to ratify the Convention is the fact that the Convention clearly states that anyone under the age of 18 is a child. The U.S. government has reservations about how that would affect matters when a 16- or 17-year old commits a crime; currently, in certain instances that child can be tried as an adult. Also, the United States Government says that many of the declarations included in the document are not issues for which the federal government is in charge. For example, education in the United States is controlled by the states, not the federal government.
Whether the United States eventually ratifies the Convention, it still does maintain an enviable record of honoring most children's rights. Human rights groups are convinced that the United States can and should do more, and they continue to make their points of view known in the United States and abroad.
The Child Advocacy Handbook. Fernandez, Happy Craven, Pilgrim Press, 1980.
Children's Rights: A Reference Handbook. Edmonds, Beverly C., and William R. Fernekes, ABC-CLIO, 1996.
Children's Rights in the United States: In Search of a National Policy. Walker, Nancy E., Catherine M. Brooks, and Lawrence S. Wrightsman, Sage Publications, 1999.
The Children's Rights Movement: A History of Advocacy and Protection. Hawes, Joseph M., Twayne Publishers, 1991.
What Are My Rights? Ninety-Five Questions and Answers about Teens and the Law. Jacobs, Thomas A., Free Spirit Publications, 1997.
Amnesty International USA
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Children's Rights Council
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Human Rights Watch
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United Nations Children's Fund (UNICEF)
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Primary Contact: Carol Bellamy, Executive Director
United States Department of Justice, Civil Rights Division
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URL: http://www.usdoj.gov Primary Contact: Ralph L. Boyd, Jr., Assistant Attorney General
Firearm Laws (Encyclopedia of Everyday Law)
The Second Amendment of the BILL OF RIGHTS provides: "A well regulated MILITIA, being necessary to the security of the free State, the right of the people to keep and bear Arms, shall not be infringed." The Supreme Court has historically defined the Second Amendment as giving states the right to maintain a militia separate from a federally controlled army. Courts have consistently held that the state and federal governments may lawfully regulate the sale, transfer, receipt, possession, and use of certain categories of firearms, as well as mandate who may and may not own a gun. As a result, there are numerous federal, state, and local laws in existence today, through which a person must navigate in order to lawfully possess a firearm.
There were relatively few laws passed regarding GUN CONTROL prior to the twentieth century, and in fact, most legislation has been passed in the last fifty years.
- The National Firearms Act of 1934 was passed to hinder machine guns and sawedoff shotguns.
- The Firearms Act of 1938 provided for federal licensing of firearms dealers, regulated firearms transportation across state lines by dealers, outlawed the transportation of stolen guns with the manufacturer's mark eradicated or changed, and outlawed firearms from being carried by fugitives, indicted defendants or convicted felons.
- The National Firearms Act was later amended significantly by the Gun Control Act of 1968, putting more stringent control on licensed sales, buyer requirements, and the importation of sporting guns.
- The Undetectable Firearms Act of 1988 banned plastic and other undetectable guns, prompted by the fear of hijacking.
- The Crime Act of 1994 banned the sale and possession of 19 assault-type firearms and certain high-capacity ammunition magazines.
- The Gun-Free School Zone Act of 1990 outlawed the knowing possession of firearms in school zones, and made it a crime to carry unloaded firearms within 1,000 feet of the grounds of any public or private school. The law was later held unconstitutional in 1995, in United States vs. Lopez.
- The 1982 assassination attempt on President Ronald Reagan resulted in the Brady Handgun Violence Prevention Act of 1993. The Brady Bill imposed a five-day waiting period before a handgun could be taken home by a buyer. Though the law also mandated that local law enforcement officers conduct background checks on prospective handgun purchasers buying from federally licensed dealers, this part of the law was struck down by the Supreme Court in 1997 in Printz vs. United States as unconstitutional.
Depending on where one lives, a person may only be forbidden to carry a concealed weapon, or may be forbidden to own a handgun at all. People who disobey or are not aware of the laws pertaining to firearms in their local areas and in areas to which they travel may be subject to tough criminal prosecution. It is therefore best to be familiar with the local and national laws before owning a firearm.
Eligibility to Purchase or Own a Firearm
In general, if you are twenty-one years of age or older, you can purchase a firearm from a federally licensed dealer licensed to sell in your state. For the purchase of a rifle or shotgun, you need to be eighteen years or older and may purchase in any state.
However, the following classes of people are ineligible to possess, receive, ship, or transport firearms or ammunition:
- Those convicted of crimes punishable by IMPRISONMENT for over one year, except state misdemeanors punishable by two years or less
- Fugitives from justice
- Unlawful users of certain depressant, narcotic, or stimulant drugs
- Those deemed legally as incompetent and those committed to mental institutions
- Illegal aliens
- Citizens who have renounced their citizenship
- Those persons dishonorably discharged from the armed services
- Persons less than eighteen years of age for the purchase of a shotgun or rifle
- Persons less than twenty-one years of age for the purchase of a firearm that is other than a shotgun or rifle
- Persons subject to a court order that restrains such persons from harassing, STALKING, or threatening an intimate partner
- Persons convicted in any court of a MISDEMEANOR crime of domestic violence
Under limited conditions, exceptions may be granted by the U.S. Secretary of the Treasury, or through a PARDON, restoration of rights, or setting aside of a CONVICTION.
Once a person has made the decision to purchase a gun, a federally licensed dealer will fill out a federal form 4473, which requires identifying and other information about the buyer, and record the make, model, and serial number of the firearm. There is a five-day waiting period during which a background check is run for any information that may disqualify the buyer from owning a firearm. The buyer may purchase the firearm only after the application is approved.
It is unlawful for an individual to purchase a firearm through mail-order from another state. Only licensed dealers are allowed to purchase firearms across state lines from other licensed dealers.
Provided that all other laws are complied with, a person may temporarily borrow or rent a firearm for lawful sporting purposes throughout the United States.
Antique firearms and replicas are exempted from the above restrictions. Antique firearms are any firearms manufactured in or before 1898 (including any firearms with a matchlock, flintlock, percussion cap, or similar type of ignition system). Also, any replica of an antique firearm qualifies if the replica is not designed or redesigned for using rimfire or conventional centerfire ammunition; if the replica uses fixed ammunition which is no longer manufactured in the United States and which is not readily available; if the replica is of any muzzle loading rifle, shotgun, or pistol, which is designed to use black powder or a black powder substitute and which cannot use fixed ammunition. (Note: Antiques exemptions vary considerably under state laws).
The 1994 Omnibus Crime Bill included a provision that prohibited the manufacture and sale to non-military and police, after Sept. 13, 1994, of semi-automatic rifles equipped with detachable magazines and two or more of the following: bayonet lugs, flash suppressors, protruding pistol grips, folding stocks or threaded muzzles. There are similar guidelines on handguns and shotguns. Additionally, the manufacture and sale to non-military or police of "large-capacity" ammunition magazines (holding more than 10 rounds) were also outlawed. "Assault weapons" and "large" magazines manufactured before Sept. 13, 1994, are exempt from the law.
Personally owned rifles and shotguns may be mailed or shipped only to dealers or manufacturers for any lawful purpose, including sale, repair, or customizing. A person may not ship a firearm to another private individual across state lines. Handguns may not be mailed but may be otherwise shipped to dealers or manufacturers for any lawful purpose. Shipping companies must be notified in writing of the contents of any shipments containing firearms or ammunition.
Transporting Firearms in Automobiles
Under federal law, a person is allowed to transport a firearm across state lines from one place where it is legal to possess firearms to another place where it is legal to possess firearms. The firearm must be unloaded and in the trunk of a vehicle. If the vehicle has no trunk the firearm must be unloaded and in a locked container (not the glove compartment or console). This federal law overrides state or local laws.
Many states have laws governing the transportation of firearms. Also, many cities and localities have ordinances restricting their transportation. Travelers must be aware of these laws and comply with the legal requirements in each JURISDICTION. There is no uniform state transportation procedure for firearms. Once you reach your destination, the state lawr, in some areas, municipal lawill control the ownership, possession, and transportation of your firearms.
It must be stressed that as soon as any firearmhandgun, rifle, or shotguns carried on or about the person, or placed in a vehicle where it is readily accessible, state and local firearms laws dealing with carrying come into play. If a person wishes to transport firearms in such a manner, it is advisable that he become aware of local laws by contacting the Attorney General's office in each state through which he may travel, or by reviewing an NRA State Firearms Law Digest. He should determine whether a permit is needed and how to obtain one. While many states require a permit for this type of carrying, most will not issue such permits to non-residents, and other prohibit such carrying altogether.
Transporting Firearms on Aircraft
Federal law prohibits the carrying of any firearm, concealed or unconcealed, on or about the person or in carry-on baggage while aboard an aircraft. Unloaded firearms not accessible to the passenger while aboard the aircraft are permitted when:
- The passenger has notified the airline when checking the baggage that the firearm is in the baggage and that it is unloaded.
- The baggage is which the firearm is carried is locked and only the passenger checking the baggage retains a key.
- The baggage is carried in an areather than the flight crew compartmenthat is inaccessible to passenger.
Transporting Firearms in Other Commercial Carriers
Any passenger who owns or legally possesses a firearm being transported aboard any common or contract carrier in interstate or foreign commerce must deliver the unloaded firearm into the CUSTODYof the pilot, captain, conductor, or operator of such common or contract carrier for the duration of the trip. Check with each carrier before your trip to avoid problems.
Bus companies usually refuse to transport firearms. Trains usually allow the transportation of encased long guns if they are disassembled or the bolts removed.
Ammunition may be bought or sold without regard for state BOUNDARIES. Ammunition shipments across state lines by commercial carriers are subject to strict explosives regulations. As with firearms, shipments of ammunition must be accompanied by a written notice of the shipment's contents.
It is illegal to manufacture or sell armor-piercing handgun ammunition.
Firearms in National and State Parks
Generally, firearms are prohibited in national parks. If you are transporting firearms, you must notify the ranger or gate attendant of this fact on your arrival and your firearm must be rendered "inoperable" before you enter the park. The National Park Service defines "inoperable" to mean unloaded, cased, broken down if possible, and out of sight. Individuals in possession of an operable firearm in a national park are subject to arrest. Again, rules in various state park systems vary, so inquiry should be made concerning the manner of legal firearms possession in each particular park system.
In many states, game wardens strictly enforce regulations dealing with the transportation of firearms during hunting season. Some states prohibit the carrying of uncased long guns in the passenger compartment of a vehicle after dark. For up-to-date information on these regulations, it is advisable to contact local fish and game authorities.
State and Local Restrictions on the Possession and Transportation of Firearms
Be sure to check with the local authorities outside your home state for a complete listing of restrictions on carrying concealed weapons in that state. Many states restrict carrying in bars, restaurants (where alcohol is served), establishments where packaged alcohol is sold, schools, colleges, universities, churches, parks, sporting events, correctional facilities, courthouses, federal and state government offices/buildings, banks, airport terminals, police stations, polling places, any posted private property restricting the carrying of concealed firearms, etc. In addition to state restrictions, federal law prohibits carrying on military bases, in national parks and the sterile area of airports. National forests usually follow laws of the states in which they are located.
The following states and cities have special laws governing the possession and transportation of firearms by non-residents. Travelers should contact the appropriate government departments for more information prior to traveling:
ARKANSAS: A license to carry a firearm concealed issued to a non-resident by another state will be honored if such state provides a reciprocal privilege.
CALIFORNIA: Before entering the state, a California permit and registration may first need to be obtained for certain semi-automatic rifles, certain semi-automatic pistols, certain shotguns, and any other firearm which is deemed an "assault weapon." Contact the California Department of Justice in Sacramento for additional information.
CONNECTICUT: A permit is required to carry a handgun in a vehicle. Nonresidents may carry handguns in or through the state for the purpose of taking part in firearms competitions or exhibitions, provided they are residents of the United States and have valid permits-to-carry issued by any other states or localities. No permit is required when changing residences, provided the handgun is unloaded and cased or securely wrapped. An "assault weapon" is defined as any selective-fire firearm capable of fully automatic, semi-automatic or burst fire at the option of the user, or any one of over five dozen specified semi-automatics. A person who has been issued a Connecticut certificate of possession of an ASSAULT weapon may possess it only under certain conditions.
DISTRICT OF COLUMBIA: Transportation of firearms through the city is not permitted unless the travel is to or from lawful recreational firearm-related activity. Firearms transported for this purpose should be carried in accordance with the general rule.
FLORIDA: This state issues a non-resident concealed carry permit. Contact the Department of State, Division of Licensing.
GEORGIA: A license to carry a firearm concealed issued to a nonresident by another state shall be honored if such state provides reciprocal privilege.
HAWAII: Registration is required of all firearms and ammunition with the county chief of police within 72 hours of arrival on the islands. Rifles or shotguns may be transported for target shooting at a range or hunting provided they are unloaded and cased or securely wrapped. If they are transported for hunting, valid state hunting licenses must be procured. Handgun transportation is limited to one's place of sojourn or between the place of sojourn and a target range or going to or from a place of hunting. The handgun must be unloaded and securely wrapped or cased.
IDAHO: A license to carry a firearm concealed issued to a nonresident by another state shall be honored.
ILLINOIS: A nonresident is permitted to transport a firearm provided it is unloaded, enclosed in a case, and not easily accessible. A nonresident may possess an operable firearm for licensed hunting, or at a Department of Law Enforcement recognized target shooting range or gun show.
CHICAGO: Chicago requires all firearms possessed in the city to be registered. Handguns not previously timely registered in Chicago cannot be registered. Oak Park, Evanston, Morton Grove, Highland Park, Wilmette and Winnetka prohibit the possession of a handgun. Firearms may be transported under the general rule through Chicago for lawful recreational firearm-related activities.
INDIANA: A carrying permit is required to transport a handgun in a vehicle. Nonresidents are ineligible for permits, however, permits from other states are recognized. Transportation of unloaded handguns during a change of residence is exempted. A handgun must be securely wrapped and kept in the trunk or storage area of the car during transportation.
KENTUCKY: A license to carry a firearm concealed issued to a nonresident by another state is honored if such state provides reciprocal privilege.
MAINE: A nonresident concealed carry permit may be obtained from the Chief of State Police.
MARYLAND: The unlicensed transportation of handguns in vehicles is prohibited, except for a variety of lawful purposes, including target shooting. A handgun must be transported unloaded and in an enclosed case or holster with a strap.
MASSACHUSETTS: Nonresidents are allowed to bring personally owned handguns into the Commonwealth for competition, exhibition or hunting. If the handgun is for hunting, a valid hunting license must be procured. Furthermore, the handgun owner must have a valid carrying permit from another state and that state's permit requirements must be the same as in Massachusetts. A person who does not meet these requirements must obtain a temporary handgun permit from the Department of Public Safety.
A nonresident may transport rifles and shotguns into or through Massachusetts if the guns are unloaded, cased, and locked in the trunk of a vehicle.
A nonresident may physically possess an operable rifle or shotgun while hunting with a Massachusetts license, while on a firing range, while at a gun show, or if the nonresident has a permit to possess any firearm in his home state..
A special caution, however, is in order. Massachusetts has enacted one of the most restrictive gun laws in the nation, imposing a mandatory one year jail sentence for anyone illegally possessing a firearm, loaded or unloaded, "on his person or under his control in a vehicle." In all cases, all firearms must be transported as prescribed in the general rule.
BOSTON: Under a vague law, it is unlawful to possess, display, transfer or receive any shotgun with a capacity exceeding 6 rounds; a semi-automatic rifle with a magazine exceeding 10 rounds; any SKS, AK-47, Uzi, AR-15, Steyr AUG, FN-FAL, or FN-FNC rifle; any semi-automatic pistol which is a modification of a proscribed rifle or shotgun; and any magazine or belt which holds more than 10 rounds. An "assault weapons roster board" may add additional firearms to the list of assault weapons. For owners to continue possession of such firearms, a license/registration must have been obtained from the Boston Police Commissioner within 90 days of the effective date of the law (12/9/89) or within 90 days of the addition of the firearm to a roster of assault weapons. Otherwise a license/registration cannot be obtained.
The provision does not apply to possession by a nonresident of Boston at a sporting or shooting club, to a person with a Massachusetts license to carry a pistol, or to a person taking part in competition, at a collectors' exhibit or meeting, traveling to or from such an event, or while in transit through Boston for the purpose of licensed hunting, provided that in all cases the weapon is unloaded and packaged and the person has a Massachusetts firearm identification card or has a license or permit to carry or possess firearms issued by another state.
MICHIGAN: This state requires a carrying permit to transport a handgun in a vehicle. Nonresidents are ineligible for permits, however, Michigan does recognize carrying permits from other states. Exempt from the Michigan permit requirements are hunters with valid Michigan hunting licenses and individuals with proof of membership in organizations with handgun shooting facilities in the state, provided the handguns are unloaded, in containers, and locked in vehicle storage areas. Michigan exempts transportation of unloaded handguns in containers during a change of residence.
MISSISSIPPI: A license to carry a firearm concealed issued to a nonresident by another state shall be honored if such state provides a reciprocal privilege.
MISSOURI: Allows carrying a firearm concealed while traveling in a continuous journey peaceably through the state.
NEW HAMPSHIRE: A license to carry a firearm concealed issued to a nonresident by another state shall be honored if such state provides a reciprocal privilege.
NEW JERSEY: A firearm is not permitted to be transported through the state unless the owner of possesses a Firearms Identification Card. Exceptions to this prohibition are: a person traveling to and from a target range or to and from hunting, provided the individual has obtained a valid state hunting license, and "between one place of business or residence and another when moving." In any event, the general rule should be followed.
New Jersey lists more than four dozen specified firearms as "assault firearms." An assault firearm is defined as any semi-automatic rifle with a fixed magazine capacity exceeding 15 rounds, and any semi-automatic shotgun with either a capacity exceeding 6 rounds, an accentuated pistol grip, or a folding stock. Possession of such a firearm requires registration and a New Jersey license. Any ammunition magazine capable of holding more than 15 rounds may only be possessed for a registered and licensed assault firearm.
NEW YORK: The transportation of handguns is prohibited except by a resident with a license to carry. A member or coach of an accredited college or university target pistol team may transport a handgun into or through New York to participate in a collegiate, Olympic or target pistol shooting competition provided that the handgun is unloaded and carried in a separate locked container.
A nonresident target shooter may enter or pass through New York State with handguns for purposes of any NRA-approved competition if the competitor has in his possession a copy of the match program, proof of entry, and a pistol license from his state of residence. The handgun must be unloaded and transported in a fully opaque container.
New York has strict laws governing illegal possession of handguns which can result in a possible seven-year jail sentence for offenders.
A special caution: New York law presumes that an individual stopped in possession of five or more handguns without a state permit possesses the handguns for illegal sale, thus subjecting this person to an increased sentence.
New York is the only state in the Union that prohibits the transportation of handguns without a license. Citizens should therefore be particularly careful since they face sever consequences should they inadvertently violate the state's myriad, technical, anti-gun provisions.
NEW YORK CITY: A city permit is required for possession and transportation of handguns and long guns. New York State handgun permits are invalid within the city limits; however, New York State residents may transport their licensed handguns unloaded through the city if these are locked in a container and the trip is continuous. Long guns may be kept in the city for only 24 hours wile in transit and must be unloaded and stored in a locked container or vehicle trunk.
New York City forbids possession of an "assault weapon," which includes various specific semi-automatic rifles and shotguns or revolving cylinder shotguns. It is unlawful to possess an "ammunition feeding device" capable of holding more than 17 rounds in a handgun, or more than 5 rounds in a rifle or shotgun. In all cases, the general rule should be observed. The New York State law on illegal possession applies to the city as well.
OHIO: Some units of local government, e.g. Brooklyn, Cincinnati, Cleveland, Columbus, and Dayton, forbid the possession of certain semi-automatic firearms and specified shotguns.
OKLAHOMA: A license to carry a firearm concealed issued to a nonresident by a state shall be honored if it has similar requirements to that of Oklahoma.
PENNSYLVANIA: A permit is required to carry a handgun in a vehicle. Permits are available to nonresidents and may be obtained from any county sheriff or chief of police in the major cities. An unloaded, securely wrapped handgun may be carried without a license when changing residences, when going to or from target practice, or to or from one's home to a vacation or recreational home.
RHODE ISLAND: A permit is required to transport a handgun. There are three exceptions to this requirement: (1) A person licensed to carry in another state may transport a handgun during an uninterrupted journey across the state; (2) A person may carry without a permit an unloaded, securely wrapped, and, if possible, broken down handgun to and from a target range; or (3) An individual can transport a handgun, under the previous conditions, without a permit during a change of residence.
SOUTH CAROLINA: A valid out-of-state permit to carry concealed weapons held by a resident of a reciprocal state will be honored.
TENNESSEE: A handgun permit or license issued in another state is valid in this state, according to its terms, if the licensing state provides a reciprocal privilege. The Commissioner of Safety is the sole judge of whether the eligibility requirements in another state are substantially similar to the requirements in this state.
TEXAS: A nonresident can apply for a concealed handgun license if he is licensed in his home state, the home state's licensing requirements are as rigorous as those in Texas, and the home state allows a person with a Texas license to apply for a license there.
VERMONT: No permit is required to carry a concealed weapon.
VIRGINIA: The Attorney General may enter into reciprocity agreements with other states providing for the mutual recognition of each state's licensing system.
WEST VIRGINIA: A license to carry a firearm concealed issued to a nonresident by another state shall be honored if such state provides reciprocal privilege.
WYOMING: A license to carry a firearm concealed issued to a nonresident by another state shall be honored.
Special Rules Governing Traveling with Firearms in Other Countries
Most countries have special laws governing the possession and transportation of firearms by nonresidents, and in many countries individual possession of firearms is illegal. Travelers should contact the appropriate government departments to learn about the laws prior to traveling. All firearms must be declared and registered with United States Customs on form 4457 or any other registration document when bringing the same firearms back into the United States.
The following are summaries for Canada and Mexico:
CANADA: Canada has very strict laws governing transportation of handguns and "military type" long guns. United States citizens may bring "sporting" rifles and shotguns into Canada. These must be declared to Customs officials when entering Canada. Handguns and other restricted weapons may be brought into Canada if a permit to transport has first has been obtained from Canadian authorities. The permit is issued by a local registrar of firearms in a province for a limited period of time. The head of the provincial police can provide information as to where one is located. More information can be obtained from the Canadian Firearms Centre via the Internet at by calling the Canadian Firearms Centre information line.
MEXICO: Bringing firearms into Mexico is severely restricted. Mexico allows bringing 2 sporting rifles or shotguns of an acceptable caliber and 50 rounds of ammunition for each for hunting. First, a tourist permit must be obtained from the Mexican Consulate having jurisdiction over the area where the visitor resides. Mexican IMMIGRATION officials will place a firearms stamp on this permit at the point of entry. A certificate of good conduct issued by the prospective hunter's local police department, proof of citizenship, a PASSPORT, five passport size photos, a hunting services agreement with the Mexican Secretary of Urban Development and Ecology (issued by a Mexican Forestry and Wildlife Office), and a military permit (issued by the Military Post and valid for only 90 days) are all required to be in the hunter's possession while carrying the firearms. For additional information, contact the Mexican Embassy or Consular Office.
Encyclopedia of Gun Control and Gun Rights. Glen H. Utter, Oryx Press, 1999.
Gun Rights Factbook. Alan M. Gottlieb, Merrill Press, 1998.
Gun Laws of America: Everyday Federal Gun Law on the Books, with Plain English Summaries, Third Edition. Michael P. Anthony and Alan Korwin, Bloomfield Press, 1999.
http://www.nraila.org. "Firearm Laws" National Rifle Association Institute for Legislative Action, 2000.
U.S. Code, Title 18: Crimes and Criminal Procedure, Part I: Crimes, Chapter 44: Firearms. U.S. House of Representatives, 1999. Available at .
Center to Prevent Handgun Violence (CPHV)
1225 Eye St. NW, Ste, 1100
Washington, DC 20005 USA
Phone: (202) 289-7319
Fax: (202) 408-1851
Primary Contact: Sarah Brady, Chairperson
Citizens Committee for the Right to Keep and Bear Arms (CCRKBA)
Liberty Park 12500 NE 10th Pl.
Bellevue, WA 98005 USA
Phone: (425) 454-4911
Fax: (425) 451-3959
E-Mail: info @ccrkba.org
Primary Contact: Joe Waldron, Executive Director
Gun Owners Action Committee (GOAC)
862 Granite Circle
Anaheim, CA 92806 USA
Phone: (714) 772-4867
Fax: (714) 772-4867
E-Mail: goac @ix.netcom.com
Primary Contact: T. J. Johnston, Executive Officer
Gun Owners Incorporated (GOI)
10100 Fair Oaks Blvd., Ste. I
Fair Oaks, CA 95628 USA
Phone: (916) 967-4970
Fax: (916) 967-4974
E-Mail: guno email@example.com
Primary Contact: Sam Paredes, Contact
National Association to Keep and Bear Arms (NAKBA)
PO Box 234
Maple Valley, WA 98038-0234 USA
Primary Contact: Ted Cowan, Secretary-Treasurer
National Rifle Association of America (NRA)
11250 Waples Mill Rd.
Fairfax, VA 22030 USA
Phone: (703) 267-1000
Fax: (703) 267-3989
Primary Contact: Wayne R. LaPierre, Jr., Executive Vice President
Second Amendment Foundation (SAF)
12500 NE 10th Pl.
Bellevue, WA 98005 USA
Phone: (206) 454-7012
Fax: (206) 451-3959
Primary Contact: Joseph P. Tartaro, President
Free Speech/Freedom Of Expression (Encyclopedia of Everyday Law)
FREEDOM OF SPEECH and freedom of expression are among the freedoms most cherished by Americans. Protected by the First Amendment to the U. S. Constitution and miscellaneous state constitutional provisions, these two freedoms were also among the freedoms deemed most important by the Founding Fathers. Democratic societies by definition are participatory and deliberative. They are designed to work best when their representative assemblies conduct informed deliberation after voters voice their opinions about particular issues or controversies. But neither elected representatives nor their constituents can fully discharge their democratic responsibilities if they are prevented from freely exchanging their thoughts, theories, suspicions, beliefs, and ideas, or are hindered from gaining access to relevant facts, data, or other kinds of useful information upon which to form their opinions.
The theory underlying the Free Speech Clause of the First Amendment is that truthful and accurate information can only be revealed through robust and uninhibited discourse and that the best way to combat false, deceptive, misleading, inaccurate, or hateful speech is with countervailing speech that ultimately carries the day with a majority of the populace and its elected representatives. Of course, the majority is not always persuaded by countervailing truthful and accurate speech, especially in capitalistic democracies where factions that spend the most money tend to have the loudest and most prevalent voices through radio and television advertisements. Supreme Court Justice Oliver Wendell Holmes articulated an extreme view of the risks underlying freedom of speech when he wrote "that a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell." (Levinson) Similarly, Holmes wrote that freedom of speech does not protect "free thought for those who agree with us, but freedom for the thought that we hate." U.S. v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929).
The First Amendment to the U. S. Constitution provides that "Congress shall make no law... abridging the freedom of speech." But the Supreme Court has never literally interpreted this guarantee as an absolute prohibition against all restrictions on individual speech and expression. Instead, the Supreme Court has identified seven kinds of expression that the government may regulate to varying degrees without running afoul of the Free Speech Clause: (1) core political speech; (2) speech that incites illegal or subversive activity; (3) fighting words; (4) OBSCENITY and PORNOGRAPHY; (5) symbolic speech; (6) commercial speech; and (7) student speech. The degree to which the government may regulate a particular kind of expression depends on the nature of the speech, the context in which the speech is made, and its likely impact upon any listeners. However, both state and federal courts will apply the same level of scrutiny to government regulation of free speech under the First Amendment, since the Free Speech Clause has been made applicable to the states via the Fourteenth Amendment's EQUALPROTECTION and Due Process Clauses. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).
Core Political Speech
Core political speech consists of conduct and words that are intended to directly rally public support for a particular issue, position, or candidate. In one prominent case the U. S. Supreme Court suggested that core political speech involves any "interactive communication concerning political change." Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). Discussion of public issues and debate on the qualifications of candidates, the Supreme Court concluded, are forms of political expression integral to the system of government established by the federal Constitution. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (U.S. 1976). Thus, circulating handbills and petitions, posting signs and placards, and making speeches and orations are all forms of core political speech, so long as they in some way address social issues, a political positions, political parties, political candidates, government officials, or governmental activities.
The First Amendment elevates core political speech above all other forms of individual expression by prohibiting laws that regulate it unless the laws are narrowly tailored to serve a compelling state interest. Known as "strict scrutiny" analysis, the application of this analysis by a court usually sounds the death knell for the law that is being challenged. This application is especially true when the core political speech is expressed in traditional public forums, such as streets, sidewalks, parks, and other venues that have been traditionally devoted to public assembly and social debate. Strict scrutiny is also applied to laws that regulate core political speech in "designated public forums," which are areas created by the government specifically for the purpose of fostering political discussion. For example, state fair grounds may be considered designated public forums under appropriate circumstances. Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (U.S. 1981). However, in non-public forums courts apply a much lower level of scrutiny, allowing the government to limit core political speech if the limitation is reasonable and not aimed at silencing the speaker's viewpoint. Examples of nonpublic forums include household mail boxes, military bases, airport terminals, indoor shopping malls, and most private commercial and residential property.
Speech that Incites Illegal or Subversive Activity
Some speakers intend to arouse their listeners to take constructive steps to alter the political landscape. Every day in the United States people hand out leaflets imploring neighbors to write Congress, vote on a referendum, or contribute financially to political campaigns and civic organizations. For other speakers, existing political channels provide insufficient means to effectuate the type of change desired. These speakers may encourage others to take illegal and subversive measures to change the status quo. Such measures have included draft resistance during wartime, threatening public officials, and joining political organizations aimed at overthrowing the U. S. government.
The Supreme Court has held that the government may not prohibit speech that advocates illegal or subversive activity unless that "advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Applying the Brandenburg test, the Supreme Court has ruled that the government may not punish an antiwar protester who yells "we'll take the fing street later" because such speech "amounted to nothing more than advocacy of illegal action at some indefinite future time." Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973). Nor can the government punish someone who, in opposition to the draft during the Vietnam War, proclaimed "if they ever make me carry a rifle, the first man I want in my sights is [the President of the United States] L.B.J." Watts v. U. S., 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). Such politically charged rhetoric, the Supreme Court held, was mere hyperbole and not a threat intended to be acted on at a definite point in time.
"Fighting words" are another form of speech receiving less First Amendment protection than core political speech. Fighting words are those words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" or have a "direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." Chaplinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Where subversive advocacy exhorts large numbers of people to engage in lawless activity, fighting words are aimed at provoking a specific individual. For example, calling someone a derogatory epithet like "fascist," "nigger," "kike" or "faggot," may result in street brawl, but cannot be accurately described as subversive speech.
Fighting words should also be distinguished from speech that is merely offensive. Unkind and insensitive language is heard everyday at work, on television, and sometimes even at home. But the Supreme Court has ruled that the First Amendment protects speech that merely hurts the feelings of another person. The Court has also underscored the responsibility of listeners to ignore offensive speech. Television channels can be changed, radios can be turned off, and movies can be left unattended. Other situations may require viewers of offensive expressions simply to avert their eyes. In one noteworthy case, the Court ruled that a young man had the right to wear a jacket in a state courthouse with the aphorism "F the Draft" emblazoned across the back because persons in attendance could look away if offended. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). "One man's vulgarity," the Court said, "is another's lyric," and the words chosen in this case conveyed a stronger message than would a subdued variation such as "Resist the Draft."
Obscenity and Pornography
Artful depictions of human sexuality highlight the tensions between lust and love, desire and commitment, fantasy and reality. Vulgar depictions can degrade sexuality and dehumanize the participants, replacing stories about love with stories about deviance, abuse, molestation, and pedophilia. State and federal laws attempt to enforce societal norms by encouraging acceptable depictions of human sexuality and discouraging unacceptable depictions. Libidinous books such as Lady Chatterly's Lover and pornographic movies such as Deep Throat have rankled communities struggling to determine whether such materials should be censored as immoral or protected as works of art.
The Supreme Court has always had difficulty distinguishing obscene material, which is not protected by the First Amendment, from material that is merely salacious or titillating, which is protected. Justice Potter Stewart once admitted that he could not define obscenity, but he quipped, "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964). Nonetheless, the Supreme Court has articulated a three-part test to determine when sexually oriented material is obscene. Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that the material's predominant theme appeals to a "prurient" interest; (2) the material depicts or describes sexual activity in a "patently offensive" manner; and (3) the material lacks, when taken as a whole, serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
Although the Supreme Court has failed to clearly define words like "prurient," "patently offensive" and "serious artistic value," literary works that deal with sexually related material are strongly protected by the First Amendment, as are magazines like Playboy and Penthouse. More difficult questions are presented in the area of adult cinema. Courts generally distinguish hard-core pornography that graphically depicts copulation and oral sex from soft-core pornography that displays nudity and human sexuality short of these "ultimate sex acts." In close cases falling somewhere in the gray areas of pornography, outcomes may turn on the "community standards" applied by the jury in a particular locale. Thus, pornography that could be prohibited as obscene in a small rural community might receive First Amendment protection in Times Square.
Not all forms of self-expression involve words. The nod of a head, the wave of a hand, and the wink of an eye each communicate something without resort to language. Other forms of non-verbal expression communicate powerful symbolic messages. The television image of the defenseless Chinese student who faced down a line of tanks during the 1989 democracy protests near Tiananmen Square in China is one example of symbolic expression that will be forever seared into the memories of viewers. The picture of the three New York City firefighters raising the American flag amid the rubble and ruins at the World Trade Center following the terrorist attacks of September 11, 2001, is another powerful example of symbolic expression.
However, the First Amendment does not protect all symbolic expression. If an individual intends to communicate a specific message by symbolic expression under circumstances in which the audience is likely to understand its meaning, the government may not regulate that expression unless the regulation serves a significant societal interest unrelated to suppressing the speaker's message. Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). Applying this standard, the U. S. Supreme Court reversed the CONVICTION of a person who burned the American flag in protest over the policies of President Ronald Reagan (Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)), invalidated the suspension of a high school student who wore a black arm-band in protest of the Vietnam War (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), but upheld federal legislation that prohibited burning draft cards (U. S. v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). Of the governmental interests asserted in these three cases, maintaining the integrity of the selective service system was the only interest of sufficiently weighty importance to overcome the First Amendment right to engage in evocative symbolic expression.
Commercial speech, such as advertising, receives more First Amendment protection than subversive advocacy, fighting words, and obscenity, but less protection than core political speech. Advertising is afforded more protection than these other categories of expression because of consumers' interest in the free flow of market information. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). In a free enterprise system consumers depend on information regarding the quality, quantity, and price of various goods and services. Society is not similarly served by the free exchange of obscenity.
At the same time, commercial speech deserves less protection than core political speech because society has a greater interest in receiving accurate commercial information and may be less savvy in flushing out false and deceptive ads. The average citizen is more conditioned, the Supreme Court has suggested, to discount the words of a politician than the words of a fortune 500 company. The average citizen may also be more vulnerable to misleading commercial advertising. Even during an election year, most people view more commercial advertisements than political and rely on those advertisements when purchasing the clothes they wear, the food they eat, and the automobiles they drive. Thus, the First Amendment permits governmental regulation of commercial speech so long as the government's interest in doing so is substantial (e.g., the prohibition of false, deceptive, and misleading advertisements), the regulations directly advance the government's asserted interest, and the regulations are no more extensive than necessary to serve that interest.
Freedom of Expression in Public Schools
In 1969 the Supreme Court articulated one of its most cited First Amendment pronouncements when it said that "[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Despite the frequency in which other courts have quoted this passage in addressing the free speech rights of public school students, as a principle of First Amendment law the passage represents somewhat of an overstatement. The First Amendment does not afford public school students the same liberty to express themselves as they would otherwise enjoy if they were adults speaking their minds off school grounds. In fact, the Supreme Court has since qualified this principle by stating that a public school student's right to free speech is "not automatically co-extensive with the rights of adults in other settings." Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). In Hazelwood the Court held that educators may control the style and content of school- sponsored publications, theatrical productions, and other expressive conduct, so long as the educator's actions are reasonably related to legitimate pedagogical concerns. In short, student speech that is not consistent with a school's educational mission can be censored.
Applying the standard set forth in Hazelwood, the U.S. Court of Appeals for the Sixth Circuit upheld the disqualification of a candidate for student council president after he made discourteous remarks about an assistant principal during a campaign speech at a school-sponsored assembly. Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989). "Civility is a legitimate pedagogical concern," the court declared. Even state universities may adopt and enforce reasonable, nondiscriminatory regulations as to the time, place, and manner of student expressions. Bayless v Martine 430 F2d 873 (5th Cir. 1970). However, a state university's refusal to recognize a gay student services organization violated the First Amendment because it denied the students' right to freely associate with political organizations of their choosing. Gay Student Services v. Texas A & M University, 737 F2d 1317 (5th Cir. 1984).
State Law Protecting Free Expression
The federal Constitution establishes the minimum amount of freedom that must be afforded to individuals under the First Amendment. State constitutions may offer their residents more freedom of speech than is offered under the federal Constitution, but not less. Below is a sampling of state court cases decided at least in part based on their own state's constitutional provisions governing freedom of expression.
ARKANSAS: A state STATUTE penalizing night-riding did not abridge the freedom of speech guaranteed by the state or federal constitutions. U.S.C.A. Const. Amends. 1, 14; Const.Ark. art. 2, § 6. Johnson v. State, 197 Ark. 1016, 126 S.W.2d 289 (Ark. 1939).
ALABAMA: A city's ORDINANCE forbidding a business from permitting consumption of alcoholic beverages and nude dancing at the same time regulated conduct and not individual expression; thus, the ordinance did not violate the state's constitutional right to freedom of speech. Const. Art. 1, § 4; Anniston, Ala., Ordinance No. 94-0-03. Ranch House, Inc. v. City of Anniston, 678 So.2d 745 (Ala. 1996).
ARIZONA: The state's STATUTORY ban on targeted residential picketing was a valid accommodation for the right to freedom of speech explicitly protected by the state constitution. A.R.S. Const. Art 2, §§ 6, 8; A.R.S. § 13-2909.U.S.C.A. Const.Amend. 1; A.R.S. Const. Art. 2. State v. Baldwin, 184 Ariz. 267, 908 P.2d 483 (Ariz. App. Div. 1 1995).
CALIFORNIA: The free speech clause in the state constitution contains a state action limitation and, thus, that clause only protects against government regulation of free speech and not private regulation thereof. West's Ann.Cal. Const. Art. 1, § 2(a). Golden Gateway Center v. Golden Gateway Tenants Assn., 26 Cal.4th 1013, 29 P.3d 797, 111 Cal.Rptr.2d 336 (Cal. 2001).
ILLINOIS: The defendants' arrest for protesting on the premises of an ABORTION clinic did not violate the defendants' state constitutional right of free speech, since the clinic's policy required removal of all demonstrators from the clinic's premises regardless of their beliefs, and there was no indication that the clinic's policy of excluding demonstrators was ever applied in discriminatory manner. S.H.A. Const. Art. 1, § 4. People v. Yutt, 231 Ill.App.3d 718, 597 N.E.2d 208, 173 Ill.Dec. 500 (Ill.App. 3 Dist. 1992).
MAINE: The state's statute allowing the State Employees Association to pay 80% of the COLLECTIVE BARGAINING unit dues for association members, while contributing nothing toward the dues of nonmembers, violated neither the state nor federal guarantees to freedom of speech. Laws 1st Reg.Sess.1979, L.D. 1573; M.R.S.A.Const. art. 6, § 3; U.S.C.A. Const. Amend. 1. Opinion of the Justices, 401 A.2d 135 (Me. 1979).
MASSACHUSETTS: A conviction for threatening to commit a crime does not violate a defendant's free speech rights under the federal or state constitutions if the EVIDENCE is sufficient to satisfy each element of the crime, since those elements are defined in a way that prevents a conviction based on protected speech. U.S.C.A. Const.Amend. 1; M.G.L.A. Const. Pt. 1, Art. 16; M.G.L.A. c. 275, § 2. Commonwealth v. Sholley, 432 Mass. 721, 739 N.E.2d 236 (Mass. 2000).
MICHIGAN: A state administrative rule prohibiting simulated sexual conduct in licensed liquor establishments did not violate the state's constitutional provision guaranteeing free speech. M.C.L.A. Const. Art. 1, § 5; Art. 4, § 40; Mich. Admin. Code r. 436.1411(1). Kotmar, Ltd. v. Liquor Control Com'n, 207 Mich.App. 687, 525 N.W.2d 921 (Mich.App., 1994).
MINNESOTA: Differences in terminology between the free speech protection in the federal Constitution and the free speech protection under the state constitution did not support a conclusion that the state constitutional protection should be more broadly applied than the federal. U.S.C.A. Const.Amend. 1; M.S.A. Const. Art. 1, § 3. State v. Wicklund, 589 N.W.2d 793 (Minn. 1999).
NEW YORK: The state statute banning the televising of any court proceeding in which the TESTIMONY of witnesses by SUBPOENA is or may be taken denies free speech guaranteed by the state and federal constitutions. U.S.C.A. Const.Amend. 1; McKinney's Const. Art. 1, § 8; McKinney's CIVIL RIGHTS Law § 52. Coleman v. O'Shea, 184 Misc.2d 238, 707 N.Y.S.2d 308, 2000 N.Y. Slip Op. 20199 (N.Y.Sup. 2000).
OHIO: The state constitution's separate and independent guarantee of free speech applies to defamatory statements only if those statements are mattes of opinion, and citizens who abuse their constitutional right to freely express their sentiments by uttering defamatory statements of fact will remain liable for the abuse of that right. Const. Art. 1, § 11. Wampler v. Higgins, 93 Ohio St.3d 111, 752 N.E.2d 962 (Ohio 2001).
TEXAS: The state constitution offers greater free speech protection than the federal Constitution for political speech, but this greater protection does not extend to exotic dancing businesses. Society has a lesser interest in protecting material on the borderline between pornography and artistic expression than it does in protecting the free dissemination of ideas of social and political significance. U.S.C.A. Const.Amend. 1; Vernon's Ann.Texas Const. Art. 1, § 8. Kaczmarek v. State, 986 S.W.2d 287 (Tex.App.- Waco 1999).
WASHINGTON: Nude dancing receives constitutional protection under the free speech guarantees of the First Amendment and the state constitution, although nudity itself is conduct subject to the police powers of the state. U.S.C.A. Const.Amend. 1; West's RCWA Const. Art. 1, § 5. DCR, Inc. v. Pierce County, 92 Wash.App. 660, 964 P.2d 380 (Wash.App. Div. 2 1998).
American Jurisprudence. West Group, 1998.
Fan Letters: The Correspondence of Holmes and Frankfurter. Levinson, Sanford, 75 Tex. L. Rev. 1471, 1997
http://caselaw.lp.findlaw.com/data/constitution/amendment01. U. S. Constitution: First Amendment.
West's Encyclopedia of American Law. West Group, 1998.
American Bar Association
740 15th Street, NW
Washington, DC 20002 USA
Phone: (202) 544-1114
Fax: (202) 544-2114
Primary Contact: Robert J. Saltzman, President
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
Primary Contact: Anthony D. Romero, Executive Director
Free Speech Coalition
904 Massachusetts Ave NE
Washington, DC 64196 USA
Phone: (202) 638-1501
Fax: (202) 662-1777
Primary Contact: Jeffrey Douglas, Director
Racial Discrimination (Encyclopedia of Everyday Law)
Citizens of the United States are protected against racial DISCRIMINATION by many laws, including Constitutional protections, CIVIL RIGHTS statutes, and civil rights regulations. The Fourteenth Amendment, which provides all citizens with EQUAL PROTECTION of the laws, was ratified in 1868; however, the most significant changes in the law with respect to racial discrimination have occurred in the last fifty years. In this time, a number of landmark events have occurred and a number of landmark laws have been passed that prevent discrimination on the basis of race in many circumstances.
- In 1954, the United States Supreme Court ruled in Brown v. Board of Education that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibited SEGREGATION in public schools on the basis of race. The Court then required public school districts to begin the process of integration "with all deliberate speed."
- The Civil Rights Act of 1964 brought about the most significant changes in civil rights protection in the history of the country. It prohibited racial and other discrimination in employment, education, and use of public accommodations and facilities.
- The VOTING RIGHTS ACT OF 1965 prevented racial and other forms of discrimination with respect to access to the ballots.
- The Fair Housing Act, part of the Civil Rights Act of 1968, prohibited discrimination in the sale and renting of housing. It also extended these prohibitions to lending and other financial institutions.
- The Civil Rights Act of 1991 was designed to strengthen and improve previous civil rights legislation.
Civil rights laws do not render every form of racial discrimination unlawful. For example, laws do not proscribe general notions of racial prejudice by private individuals in most circumstances. However, when racial prejudices or preferences interfere with the rights of others, then the law is more likely to provide protection. This distinction applies to government entities or business entities engaged in interstate commerce.
Supreme Court's Involvement in Protections Against Racial Discrimination
The U. S. Supreme Court has been called upon on numerous occasions to address the constitutionality of state actions that may involve racial discrimination. Prior to the enactment of the Thirteenth, Fourteenth, and Fifteenth Amendments to the U. S. Constitution, the Court rendered several decisions on the issue of slavery, many of which affected the future of the United States regarding the Civil War. The most significant of these decisions occurred in 1857, when the Court in Scott v. Sanford decided that slaves were not "citizens" as the term was used in the Constitution. The Court also determined Congress could not constitutionally prohibit slavery in the territories.
After the enactment of the Constitutional Amendments during the reconstruction period after the Civil War, the Court was called upon to decide a number of issues related to these amendments and civil rights legislation passed during this period. The most significant of these cases was called the CIVILRIGHTS CASES, in which the court restricted considerably the power of Congress to proscribe discrimination by operators of public accommodations. In 1896, the Court ruled in Plessy v. Ferguson that the Constitution did not prohibit states from enacting laws that distinguished people of different races. In the fifty years after Plessy v. Ferguson, states could constitutionally segregate members of different races under the "separate-but-equal" doctrine. The Court reversed its position in 1954 with the decision in Brown v. Board of Education, which also led to the enactment of the civil rights legislation by Congress.
The Supreme Court has long held that the Constitution applies only to the actions of government, not to the actions of private individuals or entities. This restriction traditionally enabled private individuals to circumvent the rights provided in the Constitution. The first CASUALTY was the civil rights statutes passed during Reconstruction after the Civil War. Subsequent cases involved such efforts as those by private individuals to prevent blacks from voting. Since these actions were not officially considered "state actions," the Court held that the Constitution did not apply.
The Court in more modern times has taken a more liberal view of which actions constitute state actions. In some circumstances, a state's approval of private action may constitute state action. Even if an action is not considered a state action, however, modern civil rights legislation may provide protection against private actions that is equivalent to constitutional protection.
Thirteenth Amendment Protections
The United States abolished slavery in the United States when it ratified the Thirteenth Amendment in 1865. Under this amendment, slavery and involuntary servitude, except as punishment for crimes, were outlawed. The amendment also permitted Congress to enact legislation to enforce this amendment. The Supreme Court restricted Congressional power to enforce the act in the Civil Rights Cases in 1883, and relatively little LITIGATION occurred over the next eighty years. However, the Court held in the 1968 case of Jones v. Alfred H. Mayer Co. that Congressional authority to proscribe private discrimination was granted by the Thirteenth Amendment. Since that time, the Thirteenth Amendment has served as part of the basis of authority under which Congress may enact civil rights legislation.
Fourteenth Amendment Protections
One of the more controversial laws in the history of the United States is the Fourteenth Amendment to the United States. This amendment prohibits government from denying equal protection of the laws or DUE PROCESS OF LAW to the citizens of the United States. Defining "equal protection" and "due process," however, has perplexed the U. S. Supreme Court, lower federal courts, and state courts since the RATIFICATION of the amendment in 1868. Though ironically the Equal Protection Clause was the basis for such historic doctrines as "separate-but-equal" in Plessy v. Ferguson, it has also served as the basic constitutional protection against racial discrimination by government entities in modern civil rights JURISPRUDENCE.
Laws designed to give preferences to whites to the detriment of members of the minority races are clearly unconstitutional. More difficult questions are raised with respect to AFFIRMATIVE ACTION programs designed to give minorities opportunities they may lack due to a history of discrimination. In the past fifteen years, the Supreme Court has struck down several of these programs as unconstitutional. Similar problems have been raised with respect to efforts to GERRYMANDER voting districts in order to ensure that minority (or nonminority) political candidates have a better chance to win seats. Unless such efforts have been designed to remedy specific instances of discrimination, they are most likely in violation of the Equal Protection Clause.
Fifteenth Amendment Protection
All citizens are guaranteed the right to vote through the Fifteenth Amendment. This amendment, ratified in 1870, was designed to eradicate efforts to disenfranchise blacks during Reconstruction following the Civil War. The Supreme Court limited the application of this amendment in several cases decided between 1876 and 1903, and the Court has traditionally placed much more weight on the Fourteenth Amendment than the Fifteenth Amendment with respect to racial discrimination. This tendency applies even in cases involving allegations of INFRINGEMENT on the right to vote. The most significant exception was the case of Smith v. Allwright in 1944, in which the Supreme Court invalidated an election on the basis of Fifteenth Amendment protections.
State Protections Against Racial Discrimination
The Thirteenth, Fourteenth, and Fifteenth Amendments, by their own terms, apply to the state governments. The Fourteenth Amendment, for example, states, "No State shall . . . deny to any person within its JURISDICTION the equal protection of the laws." State constitutions and state laws can provide greater protection to prevent racial discrimination than federal constitution guarantees. Since the U. S. Constitution is the supreme law of the land, no state constitution or STATUTE can restrict the rights granted to all citizens of the United States. In other words, the federal Constitution provides the minimum level of rights to citizens in this country, and states may only raise this level rather than reduce it.
Judicial Review of Constitutional Violations
Supreme Court jurisprudence in the area of racial discrimination is often very confusing due to the terminology used when the Court reviews these cases. When the government classifies people differently, courts will employ various levels of scrutiny to determine whether that classification is constitutionally permissible. Many classifications are generally permissible, such as those classifications that differentiate on the basis of income for tax purposes. These classifications are presumed constitutional and will be upheld unless a party can prove that the government has no rational basis for its decision.
If a government entity makes a classification based on race, courts employ a heightened standard of re- view. These classifications are presumed to be unconstitutional and will be upheld only if the government can prove that the program is narrowly tailored to address a compelling government interest. Very few government programs that make racial classifications can satisfy strict scrutiny, including many affirmative action programs. The Court's position in this area can shift as new justices join the Court.
History of Civil Rights Acts
Congress attempted to provide a number of rights to members of minority races in the Civil Rights Act of 1875. However, the Supreme Court in the Civil Rights Cases in 1883 significantly curtailed this effort by ruling that Congress did not have the authority to restrict segregation in public accommodations and public conveyances. Only state governments had the power to address racial discrimination by private actors. After the decision in Plessy v. Ferguson, states were able to enact legislation segregating the different races, and Congress was powerless to restrict these laws.
Beginning primarily with the Supreme Court's decision in Brown v. Board of Education in 1954, the Court established a more expansive view of congressional authority in the area of racial discrimination. Congress enacted a number of statutes between 1957 and 1968 that granted equal rights to all races in education, employment, voting, and many other areas relevant to interstate commerce.
Employers are prohibited from discriminating on the basis of race, sex, religion, or national origin by the provisions of Title VII of the Civil Rights Act of 1964. To enforce this Act, which neither defines discrimination nor sets forth mechanisms for enforcement, Congress established the Equal Employment Opportunity Commission (EEOC). The EEOC views discrimination on a broad level, considering "discrimination" to include not only blatant acts of BIAS but also programs that have a disparate impact on minorities. The EEOC has enacted numerous regulations that give guidance to employers regarding employment discrimination.
Despite the enactment of the Fifteenth Amendment, governments and private individuals used a variety of tactics to prevent blacks from exercising their right to vote. Such tactics included poll taxes, property requirements, intimidation, and other mechanisms designed to discourage blacks from voting. To address these inequities, Congress in 1965 passed the Voting Rights Act. Among other provisions, this Act prohibited requirements that voters take literacy tests or pay poll taxes prior to receiving the right to vote. Provisions in other statutes further enhanced voting rights. The Equal Protection Clause of the Fourteenth Amendment provides additional protection against discrimination in voting.
School segregation and desegregation were among the most controversial topics in the civil rights movement in the 1950s and 1960s. The Supreme Court's decision in Brown v. Board of Education outlawed segregation of blacks and whites in public schools, though studies have shown that the educational levels of white students and minority students remains unequal. The Civil Rights Act of 1964 prohibits discrimination in education on the basis of race but does not contain mechanisms to en- sure that education of all students, minority or nonminority, remains entirely equal.
Initial efforts to ensure educational equality focused on forced integration of students of different races. This effort involved the process of busing students from areas with a largely black population to schools in traditionally white areas. Many of these efforts have been found to be unconstitutional. Schools in higher education sought to provide some level of equality by mandating that a certain number of minorities fill positions in entering classes. However, the Supreme Court in Bakke v. Board of Regents ruled that such a requirement violated the Equal Protection Clause. Though some schools continue to consider race as a factor in college admissions, the legality of such considerations are progressively becoming more questionable. For example, in 1996, the Fifth Circuit Court of Appeals ruled in the 1996 case of Hopwood v. Texas that the University of Texas School of Law could not consider race as a factor in the admission of law students, even though the law school traditionally did not admit many minorities.
Many studies have shown a relationship between school segregation and residential segregation. If whites and minorities are segregated in the areas in which they live, the schools in these areas are more likely to be segregated as well. As noted above, some efforts to desegregate schools focused on busing students from proportionately black areas to proportionately white areas. Even these efforts, however, do not address the problem with segregation in housing. Congress passed the Fair Housing Act in 1968 to prohibit real estate sellers, landlords, and others from discriminating on the basis of race. However, this Act was not enforced or applied routinely for several years, and proving discrimination in housing can be difficult. Though the legal mechanisms to prevent discrimination are in place, societal changes are likely to be necessary to eradicate discrimination in this area.
Remedies for Civil Rights Violations
The Civil Rights Act of 1991 and other federal statutes permit civil actions for a deprivation of civil rights, including violations of constitutional protections, violations of civil rights legislation, or any other antidiscrimination law. Victims of racial discrimination may recover monetary damages, including PUNITIVE DAMAGES and attorney's fees in appropriate circumstances. Victims may also seek an injunction or other equitable remedy.
State Provisions Regarding Racial Discrimination
Many states have established their own rights related to protection of civil rights, including racial discrimination. Several of these states have established agencies or delegated authority to existing agencies to handle civil rights claims. In some states, civil rights law preempts other ordinary tort actions and in many cases limits the amount of recovery available to litigants with complaints related to violations of civil rights.
ALABAMA: Alabama has not enacted legislation dealing specifically with civil rights.
ALASKA: Complaints for relevant civil rights violations are submitted to the Commission for HUMAN RIGHTS. Private actions are permitted, and causes of action are not preempted by administrative action. The STATUTE OF LIMITATIONS for a civil rights action is one year.
ARIZONA: Complaints for relevant civil rights violations are submitted to the Civil Rights Advisory Board. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is generally two years.
ARKANSAS: Private actions are permitted, except for those related to discrimination in public employment. Causes of action are not preempted by administrative action.
CALIFORNIA: Complaints for relevant civil rights violations are submitted to the Department of Employment and Housing. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is three years.
COLORADO: Complaints for relevant civil rights violations are submitted to the Civil Rights Commission. Private actions are permitted for some causes of action, but causes of action are preempted by administrative action. The statute of limitations for a civil rights action is sixty days.
CONNECTICUT: Complaints for relevant civil rights violations are submitted to the Commission on Human Rights and Opportunities. Private actions are permitted, and only certain causes of action are preempted by administrative action.
DELAWARE: Complaints for relevant civil rights violations are submitted to the Human Relations Commission or Department of Labor. Some private actions are permitted, but causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
DISTRICT OF COLUMBIA: Complaints for relevant civil rights violations are submitted to the Commission on Human Rights. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is one year.
FLORIDA: Complaints for relevant civil rights violations are submitted to the Commission for Human Relations. Private actions are not permitted, and causes of action are preempted by administrative action. The statute of limitations for a civil rights action is eighty days.
GEORGIA: Some private causes of action are permitted, but none is preempted by administrative action.
HAWAII: Complaints for relevant civil rights violations are submitted to the Civil Rights Commission or Department of Commerce and Consumer Affairs. Private actions are not permitted, and causes of action are preempted by administrative action. The statute of limitations for a civil rights action is ninety days.
IDAHO: Complaints for relevant civil rights violations are submitted to the Commission on Human Rights. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is two years.
ILLINOIS: Complaints for relevant civil rights violations are submitted to the Human Rights Commission and Department of Human Rights. Some private actions are permitted, but causes of action are preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
INDIANA: Complaints for relevant civil rights violations are submitted to the Civil Rights Commission. Private actions are permitted, and causes of action are not preempted by administrative action.
IOWA: Complaints for relevant civil rights violations are submitted to the Civil Rights Commission. Private actions are permitted, but causes of action are preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
KANSAS: Complaints for relevant civil rights violations are submitted to the Commission on Human Rights. Some private actions are permitted, but causes of action are preempted by administrative action. The statutes of limitations for civil rights actions vary depending on the complaint.
KENTUCKY: Complaints for relevant civil rights violations are submitted to the Commission on Human Rights. Private actions are permitted, but causes of action are preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
LOUISIANA: Louisiana civil rights statutes are limited to those regarding the handicapped.
MAINE: Complaints for relevant civil rights violations are submitted to the Human Rights Commission. Private actions are permitted, but causes of action are preempted by administrative action. The statute of limitations for a civil rights action is six months.
MARYLAND: Complaints for relevant civil rights violations are submitted to the Commission on Human Relations. Private actions are not permitted, and causes of action are preempted by administrative action. The statute of limitations for a civil rights action is six months.
MASSACHUSETTS: Complaints for relevant civil rights violations are submitted to the Commission Against Discrimination. Some private actions are permitted, and some causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
MICHIGAN: Complaints for relevant civil rights violations are submitted to the Civil Rights Commission. Private actions are permitted, and causes of action are not preempted by administrative action.
MINNESOTA: Complaints for relevant civil rights violations are submitted to the Department of Human Rights. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is one year.
MISSISSIPPI: Complaints for relevant civil rights violations are submitted to the Home Corporation Oversight Committee. Private actions are not permitted, and causes of action are preempted by administrative action.
MISSOURI: Complaints for relevant civil rights violations are submitted to the Commission on Human Rights. Some private actions are permitted, and some causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
MONTANA: Complaints for relevant civil rights violations are submitted to the Commission for Human Rights. Some private actions are permitted, and some causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
NEBRASKA: Complaints for relevant civil rights violations are submitted to the Equal Opportunity Commission. Private actions are permitted, but some causes of action are preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
NEVADA: Complaints for relevant civil rights violations are submitted to the Equal Rights Commission, Labor Commission, or Banking Division. Private actions are permitted, but some causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
NEW HAMPSHIRE: Complaints for relevant civil rights violations are submitted to the Commission for Human Rights. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
NEW JERSEY: Complaints for relevant civil rights violations are submitted to the Division on Human Rights. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
NEW MEXICO: Complaints for relevant civil rights violations are submitted to the Human Rights Commission. Private actions are permitted, but causes of action are preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
NEW YORK: Complaints for relevant civil rights violations are submitted to the Division of Human Rights, Banking Department, or State Human Rights Appeal Board. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is usually one year.
NORTH CAROLINA: Complaints for relevant civil rights violations are submitted to the Human Relations Commission. Private actions are not permitted, and causes of action are not preempted by administrative action.
NORTH DAKOTA: Complaints for relevant civil rights violations are submitted to the Department of Labor. Private actions are permitted, and causes of action are not preempted by administrative action. The statutes of limitations vary depending on the complaint.
OHIO: Complaints for relevant civil rights violations are submitted to the Civil Rights Commission. Some private actions are permitted, and causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
OKLAHOMA: Complaints for relevant civil rights violations are submitted to the Human Rights Commission. Private actions are not permitted, and causes of action are preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
OREGON: Complaints for relevant civil rights violations are submitted to the Bureau of Labor and Industries. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is one year.
PENNSYLVANIA: Complaints for relevant civil rights violations are submitted to the Human Rights Commission. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
RHODE ISLAND: Complaints for relevant civil rights violations are submitted to the Commission for Human Rights or the Department of Labor. Some private actions are permitted, and some causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
SOUTH CAROLINA: Complaints for relevant civil rights violations are submitted to the Human Affairs Commission. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
SOUTH DAKOTA: Complaints for relevant civil rights violations are submitted to the Commission of Humanities. Private actions are permitted, and causes of action are not preempted by administrative action. The statutes of limitations vary depending on the complaint.
TENNESSEE: Complaints for relevant civil rights violations are submitted to the Human Rights Commission. Private actions are permitted, and causes of action are not preempted by administrative action. The statutes of limitations vary depending on the complaint.
TEXAS: Complaints for relevant civil rights violations are submitted to the Department of Human Resources. Private actions are permitted, and causes of action are not preempted by administrative action.
UTAH: Complaints for relevant civil rights violations are submitted to the Antidiscrimination Division. Some private actions are permitted, and some causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
VERMONT: Complaints for relevant civil rights violations are submitted to the Human Rights Commission. Private actions are permitted, and causes of action are not preempted by administrative action. The statutes of limitations vary depending on the complaint.
VIRGINIA: Private actions are permitted, and causes of action are not preempted by administrative action. The statutes of limitations vary depending on the complaint.
WASHINGTON: Complaints for relevant civil rights violations are submitted to the Washington State Human Rights Commission. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is six months
WEST VIRGINIA: Complaints for relevant civil rights violations are submitted to the Human Rights Commission. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is 180 days.
WISCONSIN: Complaints for relevant civil rights violations are submitted to the Department of Industry, Labor, and Human Relations. Some private actions are permitted, and some causes of action are preempted by administrative action. The statutes of limitations vary depending on the complaint.
WYOMING: Complaints for relevant civil rights violations are submitted to the Fair Employment Commission. Private actions are permitted, and causes of action are not preempted by administrative action. The statute of limitations for a civil rights action is two years.
The Civil Rights Era: Origins and Development of National Policy. Graham, Hugh Davis, Oxford University Press, 1990.
Constitutional Civil Rights in a Nutshell. Vieira, Norman, West Group, 1998.
Oxford Companion to the Supreme Court of the United States. Hall, Kermit L., Oxford University Press, 1992.
Race Law: Cases, Commentary, and Questions. Higginbotham, F. Michael, Carolina Academic Press, 2001.
A Reader on Race, Civil Rights, and American Law: A Multiracial Approach. Davis, Timothy, Kevin R. Johnson, and George A. Martinez, Carolina Academic Press, 2001.
U. S. Code, Title 42: The Public Health and Welfare. U. S. House of Representatives, 1999. Available at .
American Civil Liberties Union (ACLU)
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Primary Contact: Linda Chavez, President
Equal Employment Opportunity Commission (EEOC)
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Washington, DC 20507
Phone: (202) 663-4900
National Association for the Advancement of Colored People (NAACP)
4805 Mt. Hope Drive
Baltimore, MD 21215
Phone: (410) 521-4939
Religious Freedom (Encyclopedia of Everyday Law)
The First Amendment to the U. S. Constitution provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The U. S. Supreme Court has interpreted this provision as guaranteeing two separate rights: (1) the right to live in a society where the government does not sponsor an official religion that dictates what God citizens must worship or what church they must attend; and (2) the right to exercise one's own religious faith in accordance with his or her conscience free from governmental intrusion. The first right is protected by the Establishment Clause of the First Amendment, while the second right is protected by the Free Exercise Clause of the First Amendment. Both clauses have their origins in American colonial history, and that history sheds light on the subsequent development of the First Amendment by state and federal courts.
History Behind the Establishment Clause
Prior to the American Revolution, the English parliament designated the Anglican Church as the official church of the England and the American colonies. The church was supported by TAXATION, and English citizens were required to attend services. No marriage or baptism was sanctioned outside the church. Religious minorities who failed to abide by the strictures of the church were forced to endure civil and criminal penalties, including banishment and death. Some American colonies were also ruled by theocrats, such as the Puritans in Massachusetts.
The English and colonial experiences influenced the Founding Fathers, including Thomas Jefferson and James Madison. Jefferson supported a high "wall of separation" between church and state and opposed religious interference with the affairs of government. Madison, conversely, opposed governmental interference with matters of religion. For Madison, the establishment of a national church differed from the Spanish Inquisition only in degree, and he vociferously attacked any legislation that would have led in this direction. For example, Madison fought against a Virginia bill that would have levied taxes to subsidize Christianity.
The Founding Fathers' concerns about the relationship between church and state found expression in the First Amendment. Despite the unequivocal nature of its language, the Supreme Court has never interpreted the First Amendment as an absolute prohibition against all laws concerning religious institutions, religious symbols, or the exercise of religious faith. Instead, the Court has turned for guidance to the thoughts and intentions of the Founding Fathers when interpreting the First Amendment, in particular the thoughts and intentions of its primary architect, James Madison.
But Madison's views have not produced a uniform understanding of religious freedom among the Supreme Court's justices. Some justices, for example, have cited Madison's opposition to the Virginia bill subsidizing Christianity as EVIDENCE that he opposed only discriminatory governmental assistance to particular religious denominations but favored non- preferential aid to cultivate a diversity in faiths. Thus, the Framers of the First Amendment left posterity with three considerations regarding religious establishments: (1) a wall of separation that protects government from religion and religion from government; (2) a separation of church and state that permits non-discriminatory governmental assistance to religious groups; and (3) governmental assistance that preserves and promotes a diversity of religious beliefs.
Case Law Interpreting the Establishment Clause
The Supreme Court attempted to incorporate these three considerations under a single test in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). In Lemon the Court held that state and federal governments may enact legislation that concerns religion or religious organizations so long as the legislation has a secular purpose, does not have the primary effect of advancing or inhibiting religion, and does not otherwise foster excessive entanglement between church and state. Under this test, the Supreme Court held that the First Amendment prohibits schools from beginning each day with a 22-word, non-denominational prayer. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). Such a prayer would be tantamount to the government sanctioning religion at the expense of agnosticism or atheism, the Court said, something not permitted by the Establishment Clause.
Similarly, the Supreme Court struck down a clergy-led prayer at a public school graduation ceremony as violative of the First Amendment. Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). By contrast, lower federal courts are split over the issue of whether a student-led, non-denominational prayer at a graduation ceremony violates the Establishment Clause, with some cases finding the prayers unconstitutional because they are initiated on school grounds at a school-sponsored activities and other cases finding no constitutional violation because the prayers are initiated by students and not public employees. However, the Supreme Court has ruled that the First Amendment does permit state legislatures to open their sessions with a short prayer each day. Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The Supreme Court concluded that history and tradition have secularized this otherwise religious act.
The Court has produced seemingly inconsistent results in other areas of First Amendment law as well. In one case the Court permitted a municipality to include a nativity scene in its annual Christmas display, Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), while in another case it prohibited a county courthouse from placing a cross on its staircase during the holiday season. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). In Allegheny the Court said that there was nothing in the county courthouse to indicate that the cross was anything other than a religious display, while in Lynch the Court said that the nativity scene was part of a wider celebration of the winter holidays.
The desire to avoid excessive entanglement between church and state has also produced a body of law that often turns on subtle distinctions. On the one hand, the Supreme Court ruled that public school programs violate the Establishment Clause when they allow public school students to leave class early for religious training in classrooms located on taxpayer-supported school property. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948). On the other hand, such programs pass constitutional muster if the students leave class early for religious training off school grounds, where all of the program's costs are paid by the religious organizations. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952).
History Behind the Free Exercise Clause
The Establishment Clause and the Free Exercise Clause represent opposite sides of the same issue. Where the Establishment Clause focuses on govern- mental action that would create, support, or endorse an official national religion, the Free Exercise Clause focuses on the pernicious effects that governmental action may have on an individual's religious beliefs or practices. Like the Establishment Clause, the Free Exercise Clause was drafted in response to the Founding Fathers' desire to protect religious minorities from persecution.
The Founding Fathers' understanding of the Free Exercise Clause is illustrated in part by the New York Constitution of 1777, which provided that "the free exercise and enjoyment of religious . . . worship, without DISCRIMINATION or preference, shall forever . . . be allowed . . . to all mankind." (WEAL, v. 5, p. 37) However, the same constitution cautioned that "the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State." The New Hampshire Constitution of 1784 similarly provided that "[e]very individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt . . . in his person, liberty or estate for worshipping God" in a manner "most agreeable" to those dictates, "provided he doth not disturb the public peace." (WEAL, v. 5, p.37).
Case Law Interpreting the Free Exercise Clause
These eighteenth-century state constitutional provisions not only provide insight into the Founding Fathers' original understanding of the Free Exercise Clause, they embody the fundamental tenants of modern First Amendment JURISPRUDENCE. The Supreme Court has identified three principles underlying the Free Exercise Clause. First, no individual may be compelled by law to accept a particular religion or form of worship. Second, all individuals are constitutionally permitted to freely choose a religion and worship in accordance with their conscience and spirituality without interference from the government. Third, the government may enforce its criminal laws by prosecuting persons whose religious practices would thwart a compelling societal interest.
Only in rare instances is a law that infringes upon someone's religious beliefs or practices supported by a compelling state interest. The Supreme Court has held that no compelling societal interest would be served in offending someone's deeply held religious beliefs with a law coercing members of the Jehovah's Witnesses to salute the American flag in public schools (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), a law denying unemployment benefits to Seventh Day Adventists who refuse to work on Saturdays (Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)), or a law requiring Amish families to keep their children in state schools until the age of sixteen (Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)). However, a compelling governmental interest is served by the Internal Revenue System (IRS), such that no member of any religious sect can claim exemption from paying taxes. U. S. v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982).
A different question is presented when the government disputes whether a particular belief or practice is actually religious in nature. In some instances the Supreme Court is required to determine what constitutes a "religion" for the purposes of the First Amendment. For example, this determination occurs when conscientious objectors resist the govern- ment's attempt to conscript them into military service during wartime. Some draft resisters object to war on moral or ethical grounds unrelated to orthodox or doctrinal religions. If a conscientious objector admits that he is atheistic or agnostic, the government asks, how can he or she rely on the First Amendment to avoid conscription when it protects the free exercise of religion?
In effort to answer this question, the Supreme Court has explained that the government cannot "aid all religions against non-believers" any more than it can aid one religion over another. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). So long as a non-believer holds a sincere and meaningful belief that occupies a place in that person's life parallel to the place held by God in a believer's life, then it qualifies as a religious belief under the First Amendment. As to conscientious objectors, the Court has ruled that the First Amendment will insulate them from criminal prosecution if they resist the draft based on "deeply and sincerely" held beliefs that "are purely ethical or moral in source and content but that nevertheless impose . . . a duty of conscience to refrain from participating in any war at any time." Welsh v. U. S., 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). However, a religious, moral, or ethical belief that manifests itself in a person's selective opposition to only certain wars or military conflicts is not protected by the Free Exercise Clause. The same holds true for a religious, moral, or ethical beliefs that are insincere.
In 1993 Congress attempted to add to the body of law protecting the free exercise of religion by enacting the Religious Freedom Restoration Act (RFRA), which provided that the "[g]overnment shall not substantially burden a person's exercise of religion," unless in doing so it furthers "a compelling governmental interest" and "is the least restrictive means of furthering that . . . interest." 42 U.S.C. § 2000bb-1(a). Congress enacted RFRA in response to Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, (1990), a Supreme Court decision that upheld the denial of UNEMPLOYMENT COMPENSATION claims made by two employees who had been fired for ingesting an illegal drug during a religious ceremony. In passing the law Congress made a specific finding that the Supreme Court in Smith "virtually eliminated" any requirement that the government provide a compelling justification for the burdens it places on the exercise of religion. 42 USCA § 2000bb. Congress hoped that RFRA would restore that requirement.
The constitutionality of RFRA was immediately challenged in a flurry of cases, one of which eventually made its way to the Supreme Court in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Acknowledging that section 5 of the Fourteenth Amendment grants Congress the authority to enforce the First Amendment through measures that "remedy" or "deter" constitutional violations, the Supreme Court said that this authority did not include the power to define "what constitutes a constitutional violation." Yet this is exactly what Congress attempted to do by enacting RFRA, the Court said. Congress cannot effectively overrule Supreme Court precedent, the Court continued, without violating the separation of powers and other constitutional principles vital to maintaining the balance of power between the state and federal governments. The powers of the legislative branch are "defined and limited," the Court concluded, and only the judicial branch of government is constitutionally endowed with the authority to interpret and apply the First Amendment or any other provision of the federal Constitution. Thus, RFRA was declared unconstitutional and the precedential value of Smith was restored.
State Laws Protecting Religious Freedom
The Free Exercise and Establishment Clauses of the First Amendment have been made applicable to the states through the Fourteenth Amendment. In a series of cases the Supreme Court has ruled that the rights guaranteed by the First Amendment establish the minimum amount of religious freedom that must be afforded to individuals in state or federal court. States may provide more religious freedom under their own constitutions, but not less. Below is a sampling of state court decisions decided at least in part based on their own state constitution's guarantee of religious freedom.
ALABAMA: The state's constitutional provision guaranteeing freedom of religion did not bar the court from resolving a dispute between congregational factions over the title to church property, even though spiritual issues arguably prompted the congregation's dispute, since the case involved civil conflicts of trusteeship and property ownership and required the court to review church records and incorporation documents without delving into spiritual matters. U.S.C.A. Const.Amend. 1; Const. Art. 1, § 3. Murphy v. Green, 794 So.2d 325 (Ala. 2000).
ARIZONA: A residential picketing STATUTE did not facially infringe upon the religious freedom guaranteed by the state and federal constitutions as they were applied to an ABORTION protestor who was convicted for protesting abortion in a residential neighborhood. Even though her protest was motivated by a deeply held religious belief, the statute did not single out religious picketing or religious demonstrations for prohibition. U.S.C.A. Const.Amend. 1; A.R.S. Const. Art. 20, par. 1; A.R.S. § 13-2909. State v. Baldwin,184 Ariz. 267, 908 P.2d 483 (Ariz.App. Div. 1 1995)
CALIFORNIA: In guaranteeing the free exercise of religion "without discrimination or preference," the plain language of the state constitution ensures that the state neither favor nor discriminate against religion. West's Ann.Cal. Const. Art. 1, § 4. East Bay Asian Local Development Corp. v. California, 24 Cal.4th 693, 13 P.3d 1122, 102 Cal.Rptr.2d 280 (Cal. 2000).
FLORIDA: Inherent in parents' authority over their unemancipated children living in their parents' household is the parents' right to require their children to attend church with them as part of the children's religious training, and neither the state nor federal constitutions entitle unemancipated minors to prevent such parent-mandated religious training on grounds that it violates the minors' religious freedom. U.S.C.A. Const.Amend. 1; West's F.S.A. Const. Art. 1, § 3. L.M. v. State, 610 So.2d 1314 (Fla.App. 1 Dist. 1992).
ILLINOIS: A state statute permitting certain burials on Sundays and legal holidays did not abridge the union members' freedom to contract. Nor did it violate the federal and state constitutional prohibitions against impairment of contractual obligations, since the statute's provisions were narrowly drawn to permit free exercise of religious rights guaranteed by the state constitution while allowing labor to restrict its working schedules accordingly. S.H.A. ch. 21, ¶ 101 et seq. Heckmann v. Cemeteries Ass'n of Greater Chicago, 127 Ill.App.3d 451, 468 N.E.2d 1354, 82 Ill.Dec. 574 (Ill.App. 1 Dist. 1984).
MICHIGAN: The Michigan CIVIL RIGHTS Act's prohibition on housing discrimination based on marital status did not violate the state constitution's guarantee of religious freedom, and thus the act was violated when two landlords refused to rent their apartments to unmarried couples, even though their refusal was based on religious grounds. M.C.L.A. Const. Art. 1, § 4; M.C.L.A. § 37.2502(1). McCready v. Hoffius, 459 Mich. 131, 586 N.W.2d 723 (Mich. 1998).
MISSOURI: State and federal constitutions guarantee of religious freedom entitled a taxpayer to delete every reference to God on the state's tax form before taking the oath or affirmation required by the form. U.S.C.A. Const.Amend. 1; V.A.M.S. Const. Art. 1, §§ 5, 7; V.A.M.S. § 137.155. Oliver v. State Tax Commissioner of Missouri, 37 S.W.3d 243 (Mo. 2001).
MONTANA: The freedom of religion provisions set forth in the state constitution protect the freedom to accept or reject any religious doctrine, including religious doctrines relating to abortion, and the right to express one's faith in all lawful ways and forums. Const. Art. 2, §§ 5, 7. Armstrong v. State, 296 Mont. 361, 989 P.2d 364 (Mont. 1999).
NEBRASKA: Ex parte communications in which a trial judge during a capital murder case asked the jurors to join hands, bow their heads, and say words to the effect of "God be with us" did not infringe on the defendant's religious rights under the state or federal constitutions, since the defendant's rights to freedom of religion and to worship as he pleased did not suffer in any way. U.S.C.A. Const.Amend. 1; Const. Art. 1, § 4. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (Neb. 2000).
NEW HAMPSHIRE: The state's constitutional provision guaranteeing freedom of religion prohibited the state from revoking a psychologist's license for his religious views but did not prohibit revocation for acts that otherwise constituted unprofessional conduct, regardless of their religious character. Thus, the court upheld the state's revocation of the psychologist's license on the grounds that he had provided incompetent therapy to a patient, even though part of the therapy involved reading the Bible. Const. Pt. 1, Art. 5. Appeal of Trotzer, 143 N.H. 64, 719 A.2d 584 (N.H. 1998).
NEW YORK: The state constitution's guarantee of religious freedom entitled a state correctional facility inmate to participate in all Jewish religious observances open and available to any other inmate, even though the inmate was not recognized as Jewish by the Jewish chaplain at the facility. McKinney's Const. Art. 1, § 3; McKinney's Correction Law § 610. Thomas v. Lord, 174 Misc.2d 461, 664 N.Y.S.2d 973, 1997 N.Y. Slip Op. 97576 (N.Y.Sup., 1997).
OHIO: A court order requiring that a noncustodial parent pay 40 percent of his child's tuition at a private Catholic school did not violate the Establishment Clause of the First Amendment or the religious freedom provision of the state constitution. U.S.C.A. Const.Amend. 1; Const. Art. 1, § 7. Smith v. Null, Ohio App.3d , N.E.2d , 2001 WL 243419 (Ohio App. 4 Dist. 2001).
TEXAS: A state court could not hear a lawsuit alleging that a church minister and his wife negligently or intentionally misapplied the church's doctrine in attempting to drive out demons from plaintiff's minor daughter, since the lawsuit would involve a searching inquiry into the church's beliefs and the validity of those beliefs, an inquiry that would infringe up the defendants' religious freedom. IN RE Pleasant Glade Assembly of God, 991 S.W.2d 85 (Tex.App.-Fort Worth 1998).
VERMONT: The state's constitution expresses two related, but different, concepts about the nature of religious liberty: no governmental power may interfere with or control an individual's free exercise of religious worship, and no person can be compelled to attend or support religious worship against that person's conscience. Const. C. 1, Art. 3. Chittenden Town School Dist. v. Department of Educ., 169 Vt. 310, 738 A.2d 539 (Vt. 1999).
WASHINGTON: Requiring a church to apply for a conditional use permit in a rural estate ZONING district, while requiring a county to reduce or waive the application fee following a showing of the church's inability to pay, was not an impermissible burden on the free exercise of religion guaranteed by the state and federal constitutions. Open Door Baptist Church v. Clark County, 140 Wash.2d 143, 995 P.2d 33 (Wash. 2000). U.S.C.A. Const.Amend. 1; West's RCWA Const. Art. 1, § 11.
American Jurisprudence. West Group, 1998.
West's Encyclopedia of American Law. West Group, 1998.
U.S. Constitution: First Amendment. Available at: http://caselaw.lp.findlaw.com/data/constitution/amendment01
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Sexual Discrimination And Orientation (Encyclopedia of Everyday Law)
"Remember the ladies," stated Abigail Adams to her husband John in 1776 while he was helping to draft the Declaration of Independence. Unfortunately, throughout most of American history, the ladies were not remembered when it came to laws, as women were treated at best as second-class citizens and at worst as the virtual property of their husbands. The past 40 years in U. S. law have witnessed a gender revolution, starting with the passage of the Equal Pay Act in 1963. In the process, areas of the law that had never existed before, such as SEXUAL HARASSMENT LITIGATION, were articulated and applied.
Six years after the Equal Pay Act was passed, riots at the Stonewall Inn in New York City began the gay rights movement. Legally, homosexuals were barely recognized by the law except in anti-sodomy rules virtually every state possessed. Today, gay rights are at the cutting edge of sexual DISCRIMINATION law, an area both unsettled and controversial. Sexual discrimination law advanced a long way in the latter half of the twentieth century. How much more it will advance remains an interesting question.
Discrimination on the basis of sex was first addressed in federal law in the Equal Pay Act of 1963. Since that act was passed, several other laws affecting the rights of women have been enacted. They include:
- Title VII of the CIVIL RIGHTS Act of 1964
- The Civil Rights Act of 1991, which expanded some of the protections granted by Title VII
- Title IX of the Education Amendments of 1972 (Title IX)
- The Pregnancy Discrimination Act of 1978
- The Family and Medical Leave Act of 1993
The Equal Pay Act
The Equal Pay Act, passed in 1963, was the first law to address gender inequality in the workplace and one of the first laws to benefit women explicitly since they gained the right to vote earlier in the century. The Equal Pay Act guaranteed equal pay for equal work for men and women. For the act to take effect, men and women must be employed under similar working conditions, and equal is defined as "equal skill, effort and responsibility." Overtime and travel are included among the provisions of the act.
The Equal Pay Act is part of the FAIR LABOR STANDARDS ACT, although it is unlike the other parts of the act in that there are no exceptions for executive, administrative, professional employees, or outside salespeople. But the Equal Pay Act contains the same business exceptions as the Fair Labor Standards Act and covers only employees "engaged in commerce." In practice, this law applies to vast majority of businesses in the country.
There are four affirmative defenses to the Equal Pay Act: merit, production, seniority, and "factor other than sex." The most litigated of these defenses is the "factor other than sex" because of the ambiguous nature of the clause. For example, prior wages, profitability of the company, and evaluation of a personal interview have all been held to be a factor other than sex justifying pay discrepancies between men and women under the Equal Pay Act.
Title VII of the Civil Rights Act
Title VII, passed in 1964, is arguably the most important legislation protecting the equality of women in the workplace. Title VII, which was originally proposed as an anti-racial discrimination bill, included sex as a protected class largely as an afterthought. The amendment adding the term sex was proposed by a conservative legislator from Virginia, probably as a way of scuttling the whole bill. Despite this, Title VII passed with its protections against sexual discrimination intact.
Title VII prohibits discrimination by employers, employment agencies, and labor organizations with 15 or more full-time employees on the basis of race, color, religion, sex, or national origin. It applies to pre-interview advertising, interviewing, hiring, dis- charge, compensation, promotion, classification, training, apprenticeships, referrals for employment, union membership, terms, working conditions, working atmosphere, seniority, reassignment, and all other "privileges of employment."
The operative question in a Title VII SEX DISCRIMINATION case is whether the litigant has suffered unequal treatment because of his or her sex. Courts look at whether the disparate treatment of the employee was sex-related. If it was, it is actionable under Title VII unless the employer uses an affirmative defense; if not, it is not actionable.
Affirmative defenses under Title VII include all of the affirmative defenses under the Equal Pay Act. In addition, defenses include situations in which sex is a bona fide occupational requirement (BFOQ) for the job; when sex discrimination occurs as a result of adhering to a bona fide seniority system (unless the system perpetuates past effects of sex discrimination); or when sex discrimination is justified by "business necessity."
When employers assert a mixed motive under Title VII, that is, the action taken against the employee has both an discriminatory and non- discriminatory reason, the employer must prove by a preponderance of the EVIDENCE the employment decision would have been made absent the discriminatory factors.
Plaintiffs can also sue under Title VII using a theory of "disparate impact" that is, showing that while an employment decision or policy is not discriminatory on its face, it has resulted in discrimination on the basis of sex. The intent of discrimination can be inferred by the impact of the policy.
AFFIRMATIVE ACTION for women is allowed under Title VII. In the decision of Johnson v. Transportation Agency, Santa Clara County, the Supreme Court determined an affirmative action program that promoted a woman over a more qualified man was legal under Title VII as long as her sex was just one factor in the decision, and the affirmative action plan was carefully drafted to remedy the effects of past discrimination.
Title VII: Sexual Harassment
Title VII prohibits acts of sexual harassment when such harassment becomes a "term or condition" of employment, when rejection of the harassment could be used as the basis for an employment decision or when such conduct creates an intimidating "hostile" work environment. The types of sexual harassment prohibited by Title VII are grouped into two categories: QUID PRO QUO sexual harassment, when the harassment is directly linked to the grant or denial of an employee's economic benefits, and hostile environment harassment, when the harassment creates a difficult working environment for an employee. Because the first type of harassment is relatively straightforward, the second type has been the subject of more litigation.
The Supreme Court has ruled that a hostile working environment is created when a workplace is permeated with "discriminatory intimidation, ridicule, and insult" which is widespread enough to change the conditions of employment for the person being harassed. Hostile work environments have been held by courts to be created when female employees are subjected to pornographic pictures, to unsolicited love letters and request for dates, and sexual innuendos and crude remarks where those remarks were pervasive.
Employees can sue for sexual harassment even when they have suffered no TANGIBLE financial problems as a result of such harassment. They can sue even though they have not experienced concrete psychological injury because of the harassment. However, such conduct must do more than offend the employee. Moreover, the harassment does not have to be cross-gender in nature. The Supreme Court in 1998 held that same-sex harassment, e.g. male sexual harassment of another male, is actionable under Title VII.
The Civil Rights Act of 1991
The Civil Rights Act of 1991 enhanced the protections granted in Title VII. It added compensatory (i.e., pain and suffering) damages and PUNITIVE DAMAGES, sometimes known as exemplary damages, for all victims of intentional discrimination. (Previously these had only been available for victims of racial discrimination.) These damages are capped from $50,000 for employers with 100 or fewer employees to $300,000 for employers with more than 500 employees. It also added a right to a jury trial. Previously, sex discrimination plaintiffs had to file an Equal Pay Act or COMMON LAW FRAUD claim to get a jury trial.
The Act also made it easier to file disparate impact cases by reversing a 1989 Supreme Court decision and establishing that to disprove a disparate impact charge, employers must show that the practice is job related for the position in question and consistent with business necessity. In addition, the Act allows employees to file a discrimination charge at the time they are affected by the discrimination, rather than when they are first notified of the discriminatory act and the Act applies Title VII to American citizens living overseas.
Title IX addresses sexual discrimination in the area of education. It applies to all federally funded educational institutions, including any college or university "any part of which is extended federal financial assistance." It provides that no person shall be excluded from participation in or be subjected to discrimination on the basis of sex in any educational activity. Title IX has wrought an enormous change on American schools and universities since its enactment in 1972. It has forced schools to equalize sports programs between men and women, resulting in a boom for women's athletics. It has caused the Supreme Court to hold single sex public colleges to be unconstitutional, most famously in the case of the Virginia Military Institute. Many hold Title IX responsible for the tremendous increase in women in postsecondary graduate schools since 1970, to the point where women now make up half of all law and medical students in the country.
The Pregnancy Discrimination Act and Family and Medical Leave Act
The Pregnancy Discrimination Act of 1978 protects pregnant women by stating that employers must treat pregnancy as a temporary DISABILITY, and they may not refuse to hire a woman or fire her because she is pregnant or compel her to take maternity leave.
The Family and Medical Leave Act of 1993 built upon the rights granted under the Pregnancy Discrimination Act. This act applies to employers of 50 or more employees, and permits up to 12 weeks of unpaid leave for the birth, ADOPTION, or foster care placement of a child; the serious medical condition of a parent, spouse, or child; and the worker's own serious medical condition that prevents the worker from performing the essential functions of his or her job.
Except for highly paid positions, individuals must be given back their former positions or one fully equivalent. Employees are eligible for family or medical leave after working for 12 months or at least 1,250 hours. Part-time employees are eligible for such leaves as these numbers average 24 hours a week.
Supreme Court Standards for Gender Discrimination
The Supreme Court has dealt with a variety of gender discrimination cases over the years. Until 1976, it used a rational basis test to determine whether the discrimination it was reviewing was constitutional. Since 1976, beginning with the case of Craig v. Boren, the court has used what is referred to as "intermediate" scrutiny in regard to gender discrimination cases. This standard states that a classification based on gender must be reasonable, not arbitrary, and must serve important governmental objectives and be substantially related to the achievement of those objectives.
This scrutiny is less of standard than the court uses in racial discrimination cases, which are subject to strict scrutiny. A classification based on race must serve a compelling government interest and be strict- ly tailored to the achievement of the purpose. This standard makes courts more willing to uphold a classification based on sex than to uphold one based on racial classification.
Sexual Orientation Discrimination
In contrast to women over the last 40 years, homosexuals have seen slow progress in their attempts for equal rights. In areas ranging from marriage and family to job discrimination to organizations such as the military and boy scouts, discrimination against homosexuals is still sanctioned in a variety of ways. The military, for example, currently has a policy of "don't ask, don't tell" implemented in 1993, which allows a serviceman or woman to be discharged if he or she publicly admits to being homosexual.
One of the biggest ways sexual orientation differs from other suspect classifications such as race or sex is there is no nationwide law dealing with discrimination against homosexuals. For example, Title VII has been consistently held not to apply to discrimination against homosexuals. Nevertheless, many states and municipalities have adopted sexual orientation anti- discrimination laws. As the twenty-first century begins, there is clear movement toward gay rights in the United States, at least in some regions and areas.
The Supreme Court and Gay Rights
In the absence of any national law on sexual orientation discrimination, the Supreme Court decisions on these issues have assumed a great importance. The Supreme Court's record on gay rights issues has been mixed. The Court has issued three comparatively landmark decisions on gay rights since it first tackled the issue in 1985, and several other less important holdings. The results are somewhat contradictory.
Bowers v. Hardwick
In this 1986 case, the Court reviewed an anti- sodomy STATUTE in Georgia. The plaintiff was arrested in his bedroom for having sex with another man. The court ruled on a 5-4 vote that the constitutional right to privacy did not apply to conduct between members of the same sex. In handing down this ruling, the court made a distinction between homosexual behavior and actions such as BIRTH CONTROL, ABORTION, and interracial marriage. While the court had previously found that all of these were covered by the right to privacy in the due process clause of the Fourteenth Amendment, homosexual acts were not covered by this clause, according to the Court. Bowers v. Hardwick has never been overturned, and many states still have anti-sodomy laws on the books, although they are rarely enforced.
Romer v. Evans
In contrast to Bowers v. Hardwick, Romer v. Evans was considered a big victory for gay rights. In 1992, Colorado voters had approved Amendment 2, which prohibited or preempted any law or policy "whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitled any person or class of persons to have or claim any minority status, quota preference, protected status or claim of discrimination" In other words, the law banned any Colorado municipality from passing an sexual orientation anti-discrimination law.
The Supreme Court ruled in a 6-3 decision in 1996 that Amendment 2 violated homosexuals EQUAL PROTECTION rights in Colorado. Applying the rational basis test, which requires that a policy or law discriminating against a specific non-protected class have a rational relationship to a legitimate PUBLIC INTEREST, the court determined that a "desire to harm a politically unpopular group cannot constitute a legitimate government interest." The Court noted that Amendment 2 identified homosexuals by name and denied them equal protection across the board. "[It's] shear breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects," said the Court. The Court's decision in Evans seemed to indicate the Court would accept some equal protection rights for homosexuals, though it certainly did not offer the same protection to sexual orientation discrimination as it would to race or sex.
Boy Scouts of America v. Dale
The Supreme Court did another reversal in 2000 and ruled in the case of Boy Scouts of America v. Dale that a private organization had a right not allow in homosexuals under the theory of freedom of association. In this case, the Boy Scouts of America had dismissed a scout leader who was openly homosexual. The court determined that a New Jersey public accommodation law, which required organizations using public facilities in the state not to discriminate on the basis of sexual orientation, violated the scouts First Amendment rights. "Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express," said the Court, which added that "the presence of Dale as an assistant scoutmaster would... interfere with the Boy Scouts' choice not to propound a point of view contrary to its beliefs." This decision was differentiated from the way the court had refused to apply freedom of association rights in the past when dealing with gender and racial discrimination. "Until today," Justice John Paul Stevens pointed out in a dissent, "we have never once found a claimed right to associate in the selection of members to prevail in the face of a State's anti-discrimination law."
Other Supreme Court Decisions
Several other Supreme Court rulings were handed down in the 1990s on the issue of homosexual rights. These rulings did not have the impact of the above three, although they also yielded a mixed position on gay rights. Onacle v. Sundowner Offshore Services in 1998 found the Court unanimously ruling that same sex harassment was actionable under Title VII. The Court found even though same sex harassment was not contemplated by the statute, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evil." The 1998 case of Bragdon v. Abbott found a divided Supreme Court allowing persons with HIV to be considered disabled under the Americans With Disabilities Act, even when the disease had not progressed to a symptomatic stage. This action was considered a major gay rights victory. In summary, Supreme Court decisions on gay rights since Hardwick v. Bowers have not laid out a clear path either for or against sexual orientation discrimination. It remains to be seen whether the Supreme Court will clarify this more in the future.
State And Municipal Sexual Orientation Anti-Discrimination Laws
While the Supreme Court has failed to set a consistent national policy regarding sexual orientation discrimination, many states and municipalities have taken the lead in passing protections for homosexuals in areas such as employment and public accommodations. The first of these were passed in the early 1970s, subsequently hundreds of municipalities and many states have adopted anti-sexual orientation protections.
Probably the most famous anti-discrimination sexual orientation law was Vermont's Civil Union Law, passed in the year 2000, which permits same-sex couples to enter into "civil union" relationships. The law, while not using the language of marriage, gives same-sex couples virtually all of the 300 or so rights available to married couples.
No other state gives same-sex couples this sort of protection, but several other states currently have anti-discrimination laws and protection for homosexuals:
CALIFORNIA: Protections against discrimination in employment and public accommodations
CONNECTICUT: Protections against discrimination in employment, public accommodation, housing, and credit
DISTRICT OF COLUMBIA: Protections against discrimination in employment, public accommodation, housing, and credit, although religious educational institutions are exempt from protections
HAWAII: Protections against discrimination in employment
ILLINOIS: Protections against discrimination in public employment
MARYLAND: Protections against discrimination in employment
MASSACHUSETTS: Protections against discrimination in employment, public accommodation, housing, and credit
MINNESOTA: Protections against discrimination in employment, public accommodation, housing, and credit
NEVADA: Protections against discrimination in employment
NEW HAMPSHIRE: Protections against discrimination in employment, public accommodation, and housing
NEW JERSEY: Protections against discrimination in employment, public accommodation, housing, and credit
NEW YORK: Protections against discrimination in public employment
PENNSYLVANIA: Protections against discrimination in public employment
RHODE ISLAND: Protections against discrimination in employment, public accommodation, housing, and credit
VERMONT: Protections against discrimination in employment, public accommodation, housing, and credit, civil union law
WASHINGTON: Protections against discrimination in public employment
WISCONSIN: Protections against discrimination in employment, public accommodation, housing, and credit
An Analysis of the U. S. Supreme Court's Decision Making In Gay Rights Cases. Johnson, Scott Patrick, Ohio Northern University Law Review, 2001.
Gaylaw: Challenging the Apartheid of the Closet Eskridge, William N., Jr., Harvard University Press, 1999.
Fighting Gender and Sexual Orientation Harassment: The Sex Discrimination Argument in Gay Rights Cases. Hunter, Nan, Journal of Law and Policy, 2001.
Recent Decisions: Harris v. Forklift Systems, Inc. Gleeson, Kathleen, Duquesne Law Review, Fall 1994.
Sex Discrimination. Motto, Patricia, Illinois Institute for Continuing Legal Education, July 2000.
Sex Discrimination. Thomas, Claire Sherman, West Group, 1991.
U. S. Code, Title 20: Education, Chapter 38: Discrimination Based on Sex or Blindness. U. S. House of Representatives, 1999. Available at:
U. S. Code, Title 42: The Public Health and Welfare, Chapter 21: Civil Rights, Subchapter VI: Equal Employment Opportunities. U. S. House of Representatives, 1999. Available at
Concerned Women for America (CWA)
1015 Fifteenth St. NW, Suite 1100
Washington, DC 20005 USA
Phone: (202) 488-7000
Fax: (202) 488-0806
Primary Contact: Beverly LaHaye, President
Lambda Legal Defense and Education Fund
120 Wall Street, Suite 1500
New York, NY 10005-3904 USA
Phone: (212) 809-8585
Fax: (212) 809-0055
Primary Contact: Kevin Cathcart, Executive Director
National Organization For Women (NOW)
733 15th St NW, 2nd Floor
Washington, DC 20005 USA
Phone: (202) 628-8NOW (8669)
Fax: (202) 785-8576
Primary Contact: Kim Gandy, President
Voting Rights (Encyclopedia of Everyday Law)
During colonial times, the right to vote (also known as being enfranchised) was severely limited. Mostly, adult white males who owned property were the only people with the right to vote. Women could not vote, though some progressive colonies allowed widows who owned property to vote. After the United States gained its independence from Great Britain, the Constitution gave the states the right to decide who could vote. Individually, the states began to abolish property requirements and, by 1830, adult white males could vote. Suffrage (the right to vote) has been gradually extended to include many people, and the U.S. Constitution has been amended several times for this purpose. A time line of major developments in U.S. voting rights contains at least the following seventeen events:
- 1789: The first presidential election is held, electing George Washington by unanimous vote of the country's "electors," a group of mostly white male landowners.
- 1868: The Fourteenth Amendment declares that any eligible twenty-one year old male has the right to vote.
- 1870: The Fifteenth Amendment says that the right to vote cannot be denied "on account of race, color, or previous condition of servitude," thus extending the right to vote to former (male) slaves.
- 1876: Wyoming becomes a state, and is the first state to give voting rights to women.
- 1884: The U.S. Supreme Court rules "grand- father clauses" unconstitutional.
- 1890: Southern states pass laws designed to limit the voting rights of African Americans. Some of the laws require voters to pay a poll tax or to prove that they can read and write.
- 1920: The U.S. Supreme Court rules that since Native Americans who live on reservations pay no state taxes, they cannot vote.
- 1920: Women gain the vote when the Nineteenth Amendment declares that the right to vote cannot be denied "on account of sex."
- 1947: A court ruling grants Native Americans the right to vote in every state.
- 1961: The Twenty-third Amendment establishes that the citizens of the District of Columbia have the right to vote in presidential elections. D.C. is given 3 electoral votes.
- 1964: The Twenty-fourth Amendment declares that the states cannot require citizens to pay a poll tax in order to vote in federal elections.
- 1965: Voting Rights Act bans literacy tests as a voting requirement and bars all racist voting practices in all states.
- 1971: The Twenty-Sixth Amendment lowers the voting age to 18 and gives all Americans the right to vote.
- 1975: Additions to the Voting Rights Act require translations of all election materials to be made available for non-English speaking citizens.
As this list illustrates, suffrage has been expanded to include a greater number of people belonging to diverse demographic groups based on age, sex, and race. Without a doubt, the most dramatic and controversial developments in the history of U.S. voting rights expansion involves the movement to grant suffrage to women and African Americans. For African Americans, this includes a long history of ensuring unimpeded access to the polls in order to exercise their constitutional right to vote. For women, gaining suffrage was a very long struggle as well.
The Nineteenth Amendment
The Nineteenth amendment to the United States Constitution guarantees U.S. women the right to vote. But this right was not easily won for women. It took many decades of political agitation and protest before such a right became part of U.S. law. The struggle for women's right to vote began in the middle of the nineteenth century. A movement arose that included several generations of woman suffrage supporters, who became known as suffragettes. These women lectured, wrote articles, marched, lobbied, and engaged in acts of civil disobedience to achieve what many Americans then considered to be an enormous change in the Constitution. Few of the movement's early supporters lived to see the amendment ratified in 1920.
The amendment was first introduced in Congress in 1878, but it was ratified on August 18, 1920. Those who supported voting rights for women used a variety of strategies to achieve their goal. Some worked to pass suffrage acts in each state; their efforts resulted in nine western states adopting female suffrage legislation by 1912. Others used the courts to challenge male-only voting laws. Some of the more militant suffragettes organized parades, vigils, and even hunger strikes. Suffragettes frequently met resistance and even open hostility. They were heckled, jailed, and sometimes even attacked physically.
By 1916, however, almost all of the major female suffrage organizations had agreed that the best strategy was to pursue the goal of a CONSTITUTIONAL AMENDMENT. The following year, New York granted suffrage to women. This was quickly followed in 1918 by President Woodrow Wilson's change in his position to support an amendment in 1918. These important events helped shift the political balance in favor of the vote for women. Then, on May 21, 1919, the U.S. House of Representatives passed the amendment, followed in two weeks by the Senate. With Tennessee becoming the 36th state to ratify the amendment on August 18, 1920, the amendment had thus been ratified by three-fourths of the states. The U.S. Secretary of State, Bainbridge Colby, certified the RATIFICATION on August 26, 1920, and women had gained the constitutional right to vote. Women's collective experience in pursuit of this goal differed significantly from that of Black Americans, who had actually gained the right much earlier but who had to struggle against sustained efforts to curtail their exercise of this right.
Prior to the Civil War, free blacks were denied the right to vote everywhere but in New York and several New England states. By the close of the Civil War, suffrage for African Americans had become a possibility throughout the country. The Reconstruction Act of 1867 imposed conditions on former states of the Confederacy for re-admission to the Union. Some of these conditions touched on black suffrage. For example, former Confederate states were required to call conventions to which blacks could be elected as delegates and devise new state constitutions guaranteeing voting rights to black men. By the end of registration for 1867, more than 700,000 southern black men had been added to the rolls. By 1872 there were 342 black officials elected to state legislatures and to the U.S. Congress. Despite such progressive legislation, not all black CIVIL RIGHTS or suffrage measures succeeded. Constitutional amendments that would have prohibited states from imposing birth requirements, property ownership, or literacy tests, as well as giving the federal government complete control over voting rights were rejected.
Unfortunately, the progress of black voting rights can be characterized as a stumbling trajectory of success. There were gains, often followed by severe setbacks. For example, in 1870 and 1871 three Enforcement Acts were passed that strengthened the constitutional guarantee of black voting rights. Moreover, the year 1870 also witnessed the ratification of the Fifteenth Amendment. However, just a few years later, two Supreme Court decisions, United States v. Reese (1876) and United States v. Cruikshank (1876), weakened the Fourteenth and Fifteenth Amendments. By 1877, the Union was withdrawing federal troops from the South as a compromise with Democrats to allow the election of Rutherford B. Hayes as president of the United States. This move gave the largely racist Southern Democrats control over the lives of blacks including black suffrage. Accordingly, this and other like-minded groups launched a wave of repressive measures to curtail the freedoms of blacks in the South.
Grandfather Clauses, Literacy Tests, and the White Primary
After the Civil War and Reconstruction, southern states employed a range of tactics to prevent blacks from exercising their right to vote. They used violence, vote FRAUD, gerrymandering, literacy tests, white primaries, among others. These tactics caused registration by blacks to drop significantly. Such measures as the poll tax, literacy tests, grandfather clauses, and the white primary proved especially effective in disfranchising blacks.
The poll tax, as it applied to primary elections leading to general elections for federal office, was abolished in the Twenty-fourth Amendment, ratified in 1964. Qualifications to vote based on some element of property ownership have a history that extends to colonial days. However, the poll tax was instituted in seven southern states following Reconstruction. The poll tax was a flat fee required before voting; it was often levied as high as $200 per person. The voting rights of poor blacks were disproportionately discriminated against in this method.
The U.S. Congress eventually came to view the financial qualification as an impediment to individuals' suffrage rights. Despite Congressional sentiment, though, a constitutional amendment was necessary to abolish poll taxes, as the poll tax had previously withstood constitutional challenges in the courts. Even with the ratification of the Twenty-fourth Amendment, some states continued to look for ways to use poll taxes as an impediment to blacks' exercising their right to vote. Finally, in the 1965 opinion in the case of Harman v. Forssenius, the Supreme Court struck down a Virginia law which had partially eliminated the poll tax as an absolute qualification for voting in federal elections. The Virginia law had given voters in federal elections the choice of either paying the tax or of filing a certificate of residence six months before the election. The Court found the latter requirement to be an unfair procedural requirement for voters in federal elections, particularly because the law was not imposed on those who otherwise agreed to pay the poll tax. The Court unanimously held the law to conflict with the Twenty-fourth Amendment as it penalized those who chose to exercise a right guaranteed them by the amendment.
There were many uneducated African Americans in the post-Civil War era. Literacy tests were used to help exclude them from the polls. However, whites found that literacy tests also would exclude large numbers of whites from becoming eligible voters since many whites could not read or write either. As a remedy, some jurisdictions adopted a "reasonable interpretation" clause; these laws gave voting registrars discretion to evaluate applicants' performance on literacy tests. The effect was predictable: most whites passed and most blacks did not. By the beginning of the twentieth century, almost every black had been disfranchised in the South.
Grandfather clauses, a peculiarly irksome impediment to achieving voting rights for African Americans, were enacted by seven Southern states between 1895 and 1910. These laws provided that those who had enjoyed the right to vote prior to 1866 or 1867 or their lineal descendants would be exempt from educational, property, or tax requirements for voting. Because former slaves had not been granted the right to vote until the Fifteenth Amendment was ratified in 1870, these clauses effectively excluded blacks from the vote. At the same time, grandfather clauses assured the right to vote to many impoverished, ignorant, and illiterate whites. In 1915, the U.S. Supreme Court finally declared the GRANDFATHER CLAUSE unconstitutional because it violated equal voting rights guaranteed by the Fifteenth Amendment.
The so-called white primary was a tactic Southern whites used in which the Democratic Party was declared a private organization that could exclude whomever it pleased. State party rules or state laws that excluded blacks from the Democratic primary virtually disenfranchised all blacks (and only blacks) by keeping them out of the election that generally determined who would hold office in a state that was dominated by the Democratic Party. In 1944, the white primary was ruled unconstitutional in the U.S. Supreme Court case of Smith v. Allwright.
The Fifteenth Amendment
The Fifteenth Amendment to the United States Constitution was ratified in 1870, just a few years after the end of the Civil War. This Amendment prohibits both federal and state governments from infringing on a citizen's right to vote "on account of race, color, or previous condition of servitude." The Fifteenth Amendment is the third of three "Reconstruction Amendments" ratified in the aftermath of the Civil War. The other two are the Thirteenth Amendment that abolished slavery, and the 14th Amendment granted citizenship to all persons, "born or naturalized in the United States."
Prior to the Fifteenth Amendment, the states were empowered to set the qualifications for the right to vote. The Fifteenth Amendment essentially transferred this power to the federal government. Its ratification, however, had little effect for nearly a century. It had practically no effect in southern states, which devised numerous ways such as poll taxes and grandfather clauses to keep blacks from voting. Over time, federal laws and Supreme Court judicial opinions eventually struck down voting restrictions for blacks. Eventually, Congress passed the Civil Rights Act of 1957 which established a commission to investigate voting DISCRIMINATION. And in 1965 the Voting Rights Act was passed to increase black voter registration by empowering the JUSTICE DEPARTMENT to closely monitor voting qualifications.
The Voting Rights Act
The VOTING RIGHTS ACT OF 1965 (VRA) is arguably the most significant piece of federal legislation aimed at enforcing and protecting the voting rights of minorities. While the Fifteenth Amendment enfranchises African Americans, it does not necessarily clear the way to the polls for them. After nearly a century of countenancing various forms of intimidation and legalistic obstructions to black voters, the federal government passed sweeping legislation that fills important gaps in African Americans' constitutional right to vote. The VRA essentially mandates access to the polls for minority groups. The VRA prevents states from enforcing a range of discriminatory practices legislated to prevent African Americans from participating in the voting process. As a result of the VRA, the federal government intervened directly in areas where African Americans had been denied the right to vote.
Section Two and Section Five
Sections Two and Five of the VRA are especially important. Section 2 prohibits attempts to dilute the votes of minorities. Dilution occurs when the full effect of a block of voters is deliberately and unfairly negated. Vote dilution can occur through legislation or other situations that weaken the voting strength of minorities. Section Two prohibits cities and towns from establishing practices designed to prevent minorities a fair chance to elect candidates of their choice. Section Two is enforceable nationwide.
Section Five of the VRA requires certain designated areas of the country to obtain "pre-clearance" from the U.S. attorney general or the U.S. District Court for the District of Columbia for any changes that impact voting. These special areas are called "covered jurisdictions." Accordingly, covered jurisdictions must obtain approval before they can administer any new electoral practices. All areas in the following states are subject to Section Five pre- clearance.
- South Carolina
Parts of the following states are also subject to pre- clearance:
- New Hampshire
- New York
- North Carolina
- South Dakota
Section Five was necessary because of the purpose or intent in some areas to dilute or weaken the strength of minority voters. They did this by changing electoral rules such that minorities had decreased opportunities to elect someone of their choice. Additionally, Section 5 considers the effect of a proposed change. The U.S. attorney general or the U.S. District Court for the District of Columbia considers whether the proposed change will lead to a worsening of the position of minority voters, an effect known as "retrogression."
In 1975 an important amendment was added to the VRA to include rights for language minorities. These amendments required jurisdictions to provide bilingual ballots and even translation services to those who speak any of the following languages:
- Native American languages
- Eskimo languages
The first version of the VRA was insufficient to prevent efforts to continue vote dilution. Many areas had a winner-take-all, at-large electoral system, as well as severely malapportioned districts. Malapportioning, also known as "gerrymandering," is the deliberate rearrangement of the BOUNDARIES of congressional districts with the intent to influence the outcome of elections. Gerrymandering either concentrates opposition votes in a few districts to gain more seats for the majority in surrounding districts (a process called packing) or diffuses minority votes across many districts (called dilution). The term came about in 1812 when Massachusetts's governor Elbridge Gerry created a district for political purposes that resembled a salamander.
The at-large electoral system where representatives are chosen area-wide dilutes minority voting strength because whites so frequently outnumber blacks. In 1973 the U.S. Supreme Court in the case of White v. Register ruled that at-large elections were unconstitutional if they diluted or minimized minority votes.
In terms of malapportionment, there were problems of state legislatures adhering to outmoded rural interests. For example, in the 1962 case Baker v. Carr, malapportionment claims from some of Tennessee's big cities were found justifiable under the Fourteenth Amendment. Baker v. Carr involved APPORTIONMENT schemes whereby less populated rural counties had obtained disproportionate political strength as opposed to the densely populated cities.
Such malapportionment procedures became tinged with racism as redistricting practices maximized the political advantage or votes of one group and minimized the political advantage or votes of another. In Gomillion v. Lightfoot, the board of super- visors in Tuskegee, Alabama, annexed territory to increase the size of the city, but excluded all the blacks around the city. The Supreme Court found that such racial gerrymandering violated constitutional guarantees. A related case, Reynolds v. Sims put a stop to a gerrymandering scheme that discriminated heavily against populated urban areas in favor of rural areas and small towns. Through such cases, the U.S. Supreme Court advanced toward the goal of full and effective participation by all citizens in state government.
Minority Majority Districts
Through the VRA, the federal government moved to guarantee access for all citizens to the ballot. Even so, the right to vote did not necessarily translate into electing representatives for voters who were in the minority. In jurisdictions, particularly in the South, voters who historically had faced racial discrimination (African-Americans, Latinos, Asian-Pacific Americans and Native Americans) had been unable to elect candidates of their choice unless they constituted a majority of voters in a given electoral district. In 1982, Congress amended the VRA to include requirements that certain jurisdictions provide minority voters opportunities to elect candidates of their choice.
Initially, these jurisdictions turned minority populations into a majority through re-drawing legislative districts. This created an overall racial majority from a formerly minority population in a particular district. But this approach has serious drawbacks, especially when a minority group is not centralized, but is dispersed geographically or interspersed with other groups of voters. Consequently, these race- conscious districts encountered setbacks at the Supreme Court, which outlawed explicit "racial gerry- manders."
As a result of many legal disputes and public controversies concerning effective minority representation, courts have ordered ward-based systems (single-member districts) as remedies in vote dilution cases. This supports the notion that the best determinant of a black candidate's electoral success is the racial composition of the electoral jurisdictions. But in the 1993 Supreme Court decision of Shaw v. Reno, the Court declared that a North Carolina reapportionment scheme constituted racial gerrymandering under the EQUAL PROTECTION Clause of the Fourteenth Amendment. This ruling allows white voters to object to what they perceive as racially motivated districting. Cases similar to Shaw, and cases resulting from the Shaw decision filled the courts. Voting rights attorneys, civil rights groups, and community activists defended majority minority voting districts and to protect them in light of the Shaw decision.
Many would agree that the VRA is perhaps the most significant piece of legislation designed to secure minority electoral rights. However, the VRA is vulnerable to attack on the grounds that it may over- extend its original mandate. Some have argued that proponents of the VRA have confused the "right to vote" with the "right to be elected." Many people of color have won federal, state, and local elections. Their success may not have been possible without such aggressive policy measures as the VRA. Yet despite the protections of the VRA, courts continue to address controversies surrounding new methods to dilute the collective strength of black voters.
The creation of majority-black districts has been the overarching federal policy regarding minority representation after the VRA was enacted. Even so, there are many views about the need and effectiveness of majority-black districts. Likewise, the case of Shaw v. Reno places majority-black districting in a somewhat tenuous position as more and more groups of whites begin to assert that redistricting plans have resulted in a new kind of "political apartheid," preventing them from full and effective use of the ballot. Efforts continue to work out a solution that passes constitutional muster and it remains to be seen what that solution will be.
Along Racial Lines: Consequences of the 1965 Voting Rights Act. David M. Hudson, Peter Lang Publishing, 1998.
The Appearance of Equality: Racial Gerrymandering, Redistricting, and the Supreme Court. Christopher Matthew Burke, Greenwood Publishing Group, 1999.
A Free Ballot and a Fair Count: The Department of Justice and the Enforcement of Voting Rights in the South, 1877-1893. Robert Michael Goldman, Fordham University Press, 2001.
Feminism and Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869. Ellen Carol Dubois, Cornell University Press, 1999.
Struggle for Mastery: Disfranchisement in the South, 1888- 1908. Michael Perman, University of North Carolina Press, 2001.
Voting Rights and Redistricting in the United States. Edited by Mark E. Rush, Greenwood Publishing Group, 1998.
Voting Rights on Trial: A Handbook with Cases, Laws, and Documents. Charles L. Zelden, ABC-CLIO, 2002.
The Center for Voting and Democracy (CVD)
6930 Carroll Ave. Suite 610
Takoma Park, MD 20912 USA
Phone: (301) 270-4616
Fax: (301) 270-4133
Federal Election Commission (FEC)
999 E Street, NW
Washington, DC 20463 USA
Phone: (202) 694-1100
Joint Center for Political and Economic Studies (JCPES)
1090 Vermont Ave., NW, Suite 1100
Washington, DC 20005-4928 USA
Phone: (202) 789-3500
Fax: (202) 789-6390
League of Women Voters (LWV)
1730 M Street NW, Suite 1000
Washington, DC 20036-4508 USA
Phone: (202) 429-1965
Fax: (202) 429-0854
National Voting Rights Institute (NVRI)
One Bromfield Street, 3rd Floor
Boston, MA 02108 USA
Phone: (617) 368-9100
Fax: (617) 368-9101