1. EQUAL PROTECTION UNDER
THE LAW: BALANCING
INDIVIDUAL, STATE AND
FEDERAL RIGHTS
Chapter 5

2. 13th Amendment



The framers of the Constitution wanted to
prevent excessive federal authority
They wanted to give states more authority, but
resulted in problems the national government
could not overlook
There were several issues:

State bank and money versus national banks and
currency, federal aid versus state aid to improve
roadways and railway and freedom versus
slavery

3. 13th Amendment


During debates about these issues emerged
two theories during the 1830 Great Debate
Sen. Robert Hayne and Sen. Daniel Webster


Hayne asserted that the Union the Constitution
created was a compact between sovereign states, a
league of independent states, and states may lawfully
withdraw from the Union if they wish
Webster asserted that the Constitution created
established an indivisible Union with laws binding on
the states, and states couldn’t leave the Union.

4. 13th Amendment

President Lincoln was elected in 1960



Soon after many states passed a resolution to
withdraw from the Union
President Lincoln was faced with trying to
keep the Union together
He promised to abolished slavery in the
territories, but under the Constitution, slavery
was legal in the states where it had been
established

5. 13th Amendment

Dre d Sc o tt v. Sa nd fo rd
 Supreme Court ruled that even free blacks could
not be citizens of the United States and that they
“had no rights which a white man was bound to
respect”
 The southern states were not convinced and the
Civil War ensued
 It pitted American against American and
sometimes brother against brother
 Hundreds of thousands wounded and killed
 Caused a divide that still affects the country to
this day

6. 13th Amendment


April 1862, slavery was abolished in the
District of Columbia and 2 months later in all
the territories
January 1, 1863, President Lincoln declared
free all the slaves in all districts of the United
States in his Emancipation Proclamation


Set a national tone toward abolishing slavery
13th Amendment was ratified in 1865 and
abolished slavery

7. 14th Amendment

Even though slavery was now abolished with the
13th Amendment, states continued to discriminate



Many southern states passed Black Codes
Congress passed the 14th Amendment in 1868
which gave blacks citizenship, and granted
citizenship to all persons born or naturalized in the
United States
The 14th Amendment also forbids the states to deny
their citizens due process of law or equal protection
of the law

Certain provisions of the Bill of Rights were made
applicable to the states as well

8. 14th Amendment

1833 Ba rro n v. M y o r a nd City Co unc il o f
a
Ba ltim o re


Drew attention to the contradictions caused when
different standards applied to federal and state
governments
Plaintiff challenged the constitutionality of
Baltimore taking his land for public use and not
adequately compensating him (mandated by the
5th Amendment)

9. 14th Amendment

1833 Ba rro n v. M y o r a nd City Co unc il o f
a
Ba ltim o re


The Supreme Court ruled that such a case
involving local governments had no place in
federal court because the firs 10 Amendments to
the Constitution were not applicable to state
governments
The Bill of Rights were meant to be a check on
the new national government by limiting its control
of state laws

10. 14th Amendment


It made no sense to permit states to violate
rights the federal government could not
The 14th Amendment sought to prevent both
the federal and state governments from
infringing on the majority of constitutionally
guaranteed rights

11. 14th Amendment


Section 1 of the 14th Amendment states that all
people born or naturalized in the United States
are citizens of the United States and of the state
in which they reside, effectively overriding the
Dred Scott decision
It also prevents federal and state governments
from abridging the privileges of citizens or to
deny any citizen equal protection of the law or
deprive them of life, liberty or property without
due process of the law

12. 14th Amendment

Due process of law


The idea that basic fairness must remain part of
the process, provides rule and procedures to
ensure fairness to an individual and to prevent
arbitrary actions by government
Equal protection of the law

A constitutional requirement that the government
give the same legal protection to all, like people
must be treated in like ways

13. Current Events
Striking a
Balance


There is a challenge of balancing
individual and government rights
Cases will continue to come before
the Supreme Court to determine the
constitutionality of government
practices


The Nationwide Suspicious Activity
Report Initiative
Familial DNA Database Searches

14. Discrimination versus Prejudice





Prejudice- is an attitude, commonly known as
a negative attitude regarding a person or thing
Discrimination- is an action or behavior based
on prejudice
In a democratic society, people are free to
think what they want
When these thoughts become socially
unacceptable behaviors, the government is
justified in intervening
Laws exist to punish the actor and protect the
victim

15. The Roots of Racial
Discrimination


Racial discrimination existed well before
colonization and the Constitution
The 13th Amendment did not outlaw unequal
treatment or change racial attitudes


Dred Scott (1856) decision ruled that freed slaves
did not have the right to remain free in a territory
where slavery was still legal
Ple s s y v. Fe g us o n (1896) showed the Court’s
desire to avoid civil rights issues, declaring
discrimination to be outside the realm of the Court

16. The Roots of Racial
Discrimination


Racial tension mounted as states passed laws
to ensure that Whites could maintain their
privileged status
These laws were known as Jim Crow Laws

Strictly segregated Blacks from Whites in schools,
restaurants, streetcars, hospitals, and cemeteries

17. Issue of Separate but Equal

Bro wn v. Bo a rd o f Ed uc a tio n (1954)



Established that “separate but equal” schools
were illegal
Denial of equal protection under the law
The momentum of this case led to one of the
greatest civil rights advances in our history
 1964
Civil Rights Act

18. The Struggle for Equality



America continued with the struggle of what
equality meant
Women were not allowed to vote until 1920,
50 years after 15th Amendment
Gender discrimination remained during the
1960s


Women were denied equal pay for equal work
Women would not be promoted, excluded from
certain professions and were permitted to serve
limited roles in the military

19. The Struggle for Equality

Many laws were passed that prohibited
discrimination based on race, color, religion,
sex or national origin in employment and
education in public and private sectors at the
federal, state and local levels




The Equal Pay Act of 1963
The Civil Rights Act of 1964
The 1972 Equal Opportunity Act
1972 Equal Education Act

20. The Struggle for Equality

Unite d Sta te s v. Virg inia (1996)

The federal government brought suit against
the state of Virginia and the male only
admission policy of the Virginia Military
Institute
 The
exclusion of females from the Institute was
unconstitutional

21. The Rise of Affirmative Action
Programs



The Nixon Administration formed the
affirmative action programs
They were created to spread equal opportunity
throughout the diverse American population
They were designed to cure discrimination in
hiring and eliminate past, present and future
discrimination using race, sex, color, and age
as deciding criteria

22. The Rise of Affirmative Action
Programs

Re g e nts o f the Unive rs ity o f Ca lifo rnia v.
Ba kke



Supreme Court upheld the University of
California’s use of race as one factor in
determining admission
Court stated “Preferring members of any one
group for no reason other than race or ethnic
origin is discrimination for its own sake. This the
Constitution forbids”
The Supreme Court continues to rule on notable
affirmative action cases

23. Reverse Discrimination

Consists of giving preferential treatment in
hiring and promoting women and minorities to
the detriment of White males


You cannot cure discrimination with counter
discrimination
It is necessary to assure that all citizens have
access to the American Dream, the belief that
through hard work anyone can have success
and ample material possessions.

24. Reverse Discrimination

Ric c i v. De s te fa no (2009)

The city of New Haven did not certify the results
of the exam that led to promotions for firefighters
 White


candidates outperformed minority candidates
White and Hispanic firefighters sued the city who
claimed they were denied a chance at promotions
when the exams were not certified
The city claimed that if they were to use the
results the could face liability under Title VII of the
Civil Rights Act for using a test that had a
disparate impact on minority firefighters

25. Reverse Discrimination

Ric c i v. De s te fa no (2009) continued

Defendants granted summary judgment by the
district court and affirmed by the Second Circuit
Court of Appeals
 Summary
judgment is a request to the court to review
the evidence and without a trial reach a decision to
dismiss the case or move against the movant
because there is no dispute of the material fact that a
jury needs to resolve
 The Supreme Court reversed and remanded the case,
holding that New Haven’s actions of discarding the
test violated the Civil Rights Act

26. Reverse Discrimination

In evaluating race based practices it is
important to understand

Disparate treatment
 Intentional
acts of employment discrimination based
on race, color, religion, sex, and national origin

Disparate impact
 Policies
or practices that are not intended to
discriminate but, in fact, have a disproportionately
negative effect on minorities

27. Racial and Gender Equality in the
21st Century


The recent appointments to the Supreme
Court will continue to take the issue of
affirmative action programs in one direction or
the other
Public sentiment seems to be turning against
the concept of affirmative action programs

28. Current Events
Fis he r v .
Univ e rs ity
o f Te x a s a t
A tin
us




Supreme Court heard oral arguments
on this case in October of 2012
Ms. Fisher is suing the University of
Texas because she was rejected for
admission
Her claim is that individualized,
discretionary admission policies violated
her rights and favored African-American
and Hispanic applicants over whites
and Asian-Americans
A ruling should be issued early 2013

29. Other Forms of Discrimination



Religious discrimination has been addressed
in various cases
Discrimination against people with disabilities
affects criminal justice in many ways
Discrimination because of sexual orientation is
a challenge for the criminal justice system

30. Current Events
Don’t
Ask,
Don’t Tell


Since 1993 the American military
historically practiced the policy that
service men and woman would not
be asked about their sexual
orientation but they would be
discharged if their homosexuality
was made public
In December 2010 President
Obama signed a repeal of this
policy

31. The Immigration Issue




At one time the United States had a
welcoming philosophy for immigrants
Today, immigration issues challenge these
past beliefs and the future of America
Illegal immigration is a controversial issue
today for lawmakers
Courts continue to struggle with the
constitutional interpretation

The 14th Amendment protect “persons”, not just
c itiz e ns

32. The Immigration Issue


The Supreme Court has struck down a
number of state laws that differentiate
between residents and nonresidents or
between citizens and aliens
The public clearly has concerns about illegal
immigration and wants the government to
control the borders to deal with the millions of
illegal immigrants

33. The Immigration Issue

Challenges for law enforcement in jurisdictions
with large immigrant populations:





Many people who do not speak English well (or at
all)
Immigrants reluctance to report crime
Fear of police
Misunderstanding based on cultural differences
Personal interaction between immigrants and
police officers that damage the trust

34. Current Events
The 2010
Arizona
Immigratio
n Law
Arizona S.B.
1070 made
Arizona the
first state to
criminalize
illegal
immigration
by defining it
as a
trespass
The law requires officers, while enforcing
other laws, to check a person’s
immigration status if there is a
reasonable suspicion that the person is
here illegally
 Caused lots of divide across the country
 The Federal government filed a lawsuit
challenging the constitutionality of the
law
 In June of 2012 the Supreme Court
struck down key components of the law
and upheld the authority of the federal
government to set immigration policy and


35. Equal Protection in the Criminal
Justice System

Must distinguish between discrimination and
disparity


Disparity is a difference, but one that does not
necessarily involve discrimination
Discrimination is the differential treatment of groups
without reference to an individual’s behavior or
qualifications

The degree and prevalence of discriminatory treatment
within the criminal justice system exists along a
continuum between the extremes of pure justice and
systematic discrimination

36. Equal Protection in the Criminal
Justice System

Criminal justice system is characterized by
contextual discrimination

Racial minorities are treated more harshly at
some points and in some places in the criminal
justice system but no differently than Whites at
other points and in other places

37. Discrimination in Law
Enforcement



There is a lot of discretion granted to police officers
 Discretion lets officers treat different people differently
Some police officers, particularly males, have been
accused of gender discrimination, treating women more
leniently than men
The most frequent alleged discrimination is racial
profiling
 Racial profiling is the process of using certain racial
characteristics, such as skin color, as indicators of
criminal activity

Officer’s admit that a citizen’s race and socioeconomic
status can lead to unequal treatment and even unwarranted
physical force by the police

38. Discrimination in the Courts


Even before a defendant appears in court,
discrimination in the jury process may
negatively affect the outcome of the case
The equal protection clause was used as a
legal tool to abolish statutes excluding African
Americans from jury selection

39. Discrimination in the Courts

Stra ud e r v. We s t Virg inia (1879)


Supreme Court struck down a statute explicitly
prohibiting African American from serving on
juries
N rris v. A ba m a (1935)
o
la


Court acknowledged that exclusion of African
Americans on juries constituted an equal
protection violation
The ruling was ineffectual and African Americans
remained underrepresented on juries

40. Discrimination in the Courts

Ba ts o n v. Ke ntuc ky (1986)

The Court ruled that the use of peremptory
challenges to deliberately produce a racially
unbalanced jury was unconstitutional
 The
defendant was African American
 The prosecutor in the 1st trial used the state’s
peremptory challenges to remove all four prospective
black jurors, leaving an all white jury that ultimately
convicted Batson.
 Later in J.E.B. v. Alabama (1994) the court extended
the this ruling to gender

41. Discrimination in the Courts




Just as discrimination can affect court proceedings
before a trial, it can also affect the stage after trial—
sentencing
A common tactic used by prosecutors to secure a guilty
plea is to offer the defendant a lesser charge
Consequently, the sentence received is based on the
charges brought, not necessarily on the act committed
Leads to great variation among the sentences received
by offenders convicted of the same offense
 Sentencing guidelines have tried to provide for more
uniformity and proportionality in sentencing

42. Current Events
Fair
Sentenci
ng Act of
2010



Signed by President Obama in August
2010
Changed sentencing guidelines that
allowed longer prison terms for crack
cocaine offenders compared to power
cocaine offenders
Reduced the 100 to 1 ratio to an 18 to 1
ratio and eliminated the 5-year
mandatory minimum sentence for the
first-time possession of crack cocaine

43. Discrimination in Corrections



The field of corrections changed forever in 1968
when television and their media had their first
look inside prisons—they were horrified
The Attica Prison riot followed by the New
Mexico Penitentiary riot shocked the public
Not only the deplorable conditions by inmates,
but also the way law enforcement and
correctional personnel were treating inmates
made the government look like criminals

44. Discrimination in the
Corrections


Americans learned that even a system based
on law and order needs due process in the
correctional setting as well
Ex parte Hull (1941) the Supreme Court
acknowledged that even prisoners had rights
and that previous and routine practice of
censoring and discarding prisoner’s legal
petitions to courts was unconstitutional

45. Discrimination in the
Corrections

Co o p e r v. Pa te (1964)



Inmates could sue the warden for depriving them
of their constitutional rights under Section 1983 of
the U.S. Code
Right- a legally protected claim
Privilege- a claim that is not legally protected

46. Discrimination in the
Corrections

Race discrimination


Segregating racial groups, assuming they will be
in conflict otherwise, violates the equal protection
component of the 14th Amendment
Discrimination against the Disabled

Correctional facilities were required to provide
special accommodations, programming and
services to disabled inmates

47. Discrimination in the
Corrections

Disciplinary Hearings

Wo lff v. M Do nne ll (1974)
c
 Involved
a claim that Nebraska’s disciplinary
procedures, particularly those relating to loss of good
time were unconstitutional
 Prisoners are not owed the full due process rights as
defendants on trial
 Minimum requirements
•
•
•
Right to receive advanced notice of the infraction
Time to prepare a defense, call witnesses, seek counsel
Written statement of the findings

48. Discrimination in the
Corrections

Access to Court



Cruz v. Ha uc k (1971) - ready access to court is
one of the most fundamental constitutional right
Bo und s v. Sm ith (1977) - ruled that North
Carolina must furnish each correctional institution
with an adequate law library
Jo hns o n v. A ery (1969) - Supreme Court ruled it
v
acceptable for inmates to help each other with
legal work in case preparation, unless the
correctional facility provided other reasonable
assistance

49. Balancing State and Federal
Power and Individual Rights


Just like a company’s bylaws, state’s
constitutions sets forth some general
guidelines to operate under
State constitutions limit and restrict the state
government’s inherent power, prescribing how
he state is to exercise its inherent power, and
affirming the existence of certain powers

For example, capital punishment

50. Selective Incorporation


Prevents state or local governments from
infringing on people’s rights when federal
government would not be allowed to
It holds that only the provision of the Bill of
Rights fundamental to the American scheme
of justice are applied to the states through the
due process clause of the 14th Amendment

51. Selective Incorporation

Which rights within the Bill of rights apply to
the states?

All 10 Amendments except:
 5th
Amendment’s guaranteeing criminal prosecution
only on a grand jury indictment
 7th Amendment’s guarantee of a jury trial in a civil case

52. Current Events
M Do na l
c
d v.
Chic a g o
(2010)


The Supreme Court made a
landmark decision when they held
that the 2nd Amendment is
incorporated by the due process
clause of the 14th Amendment
The right to bear arms is applies to
the states

53. A Check on Federal Power



The federal government can exceed their
power
The courts can get involved and invalidate
federal laws
Recent cases

Unite d Sta te s v . Lo p e z (1995)
 Struck
down a 1990 federal law aimed at banning
firearms at schools, ruling was the Congress
exceeded its power under the commerce clause

Jo ne s v. Unite d Sta te s (1999)
 Limited
the read of a federal arson law