Rights Rollback

The Bill of Rights is like an accordion.  Sometimes rights expand, when courts interpret the document in a broad way. 

But when the climate of the country changes, rights can contract, as legislatures and the courts at the state and federal level make laws and legal decisions that turn back the clock. Student rights, women's reproductive freedom, voting rights, First Amendment rights, privacy rights and the right to be free from unreasonable searches and seizures have all been affected by the change in climate.

For the past two decades, constitutional rights and protections – with certain exceptions -- have been restricted.  One of the prominent exceptions was the 2003 Supreme Court decision in Lawrence v. Texas, in which the justices struck down a Texas law banning private consensual sex between adults of the same gender. This historic gay rights decision represented a reversal of a 1986 Court ruling that states could punish homosexuality. 


When Justice Sandra Day O'Connor retired from the US Supreme Court in 2006, the conservatives on the Court, under the leadership of the new Chief Justice John Roberts, had the majority they needed to speed the roll back of many of the gains of the "rights revolution."   The US Supreme Court in 2007 issued several rulings that dramatically narrowed, rather than expanded, individual rights. 

In a July 5, 2007 editorial, The New York Times described the Court's rulings in these terms:

"In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless – racial and religious minorities, consumers, students and criminal defendants.  At the end of its first full term, Chief Justice John Roberts's court is emerging as the Warren court's mirror image.  Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court's shelter....It has been decades since the most privileged members of society – corporations, the wealthy, white people who want to attend school with other whites – have had such a successful Supreme Court term.  Society's have-nots were not the only losers.  The basic ideals of American justice lost as well."

Among the cases decided by the Supreme Court under Chief Justice Roberts are the following: 

Morse v. Frederick
The Court upheld the right of a school principal in Juneau, Alaska, to punish a student who held up the banner "Bong Hits 4 Jesus" during the January 2002 Olympic Torch Relay.  Chief Justice Roberts' opinion states: "We hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."

Justice Clarence Thomas wanted to go much further than the Chief Justice in rolling back student rights to freedom of expression.  In his concurrent opinion, he declared that the First Amendment should never have been extended to schools in the first place, and the landmark 1969 Tinker case had been wrongly decided.  He wrote, "In light of the history of American public education, it cannot seriously be suggested that the First Amendment 'freedom of speech' encompasses a student's right to speak in public schools.  Early public schools gave total control to teachers, who expected obedience and respect from students...I join the Court's opinion because it erodes Tinker's hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard.  I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so."

See http://www.lawmemo.com/sct/06/Morse/ 

Ledbetter v. Goodyear Tire
The Court restricted the ability of female employees to sue their employers for gender discrimination when they are being paid less than male employees for identical work.  In order to sue for pay discrimination, the Court said, employees have to file their complaints within 180 days of their pay being set. This 5-4 ruling will keep many people from taking their discrimination claims to court since it often takes longer than that to find out about pay differentials.

See http://www.oyez.org/cases/2000-2009/2006/2006_05_1074/

Gonzales v. Carhart
By 5-4, the Supreme Court for the first time ever upheld a federal law banning a specific method of abortion and did so with no reference to the health of the mother. This decision reversed a previous 5-4 ruling the Court had made in 2000 when it declared an almost identical state law to be unconstitutional.  In 2000, Justice Sandra Day O'Connor was the swing vote. Justice Ruth Bader Ginsburg, the only woman on the Supreme Court bench, wrote a passionate dissent denouncing the majority decision.

See http://www.oyez.org/cases/2000-2009/2006/2006_05_380/

Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education
On June 28, 2007 the US Supreme Court issued two rulings that reject the racial guidelines that a thousand school districts across the country have adopted in the attempt to ensure that schools are integrated when neighborhoods are segregated by race.  The Court was considering school district assignment plans in Seattle, Washington and Louisville, Kentucky that sought to ensure racial balance in schools. In both school districts, students could choose their schools and legal challenges were brought by white parents whose children were denied their first choice. 

By 5-4, the Court struck down the student assignment plans, saying they discriminated against white students who were prevented from attending the schools of their choice.  Writing for the majority, Chief Justice John Roberts argued that rejecting the plans was consistent with the Brown v. Board of Education landmark Supreme Court case that banned segregation in schools.   He wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

This reasoning drew an outraged protest from the dissenting justice Stephen Breyer:  "For much of this nation's history, the races remained divided.  It was not long ago that people of different races drank from separate fountains, rode on separate buses and studied in separate schools.  In his court's finest hour, Brown v. Board of Education challenged this history and helped to change it.  For Brown held out promise... It was the promise of true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the nation's cities and schools.  It was about the nature of a democracy that must work for all Americans....The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown.  To invalidate the plans under review is to threaten the promise of Brown....This is a decision that the court and the nation will come to regret."

Another dissenting justice, John Paul Stevens, called Roberts' use of Brown to justify his decision a "cruel irony."  He declared that "it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

Justice Anthony Kennedy, whose vote tipped the balance against the assignment plans, was not entirely in the chief justice's camp.  He wrote a separate opinion in which he stated that "the enduring hope is that race should not matter; the reality is that it too often does."  He went on to disagree with the chief justice's view that Brown and the Constitution require school authorities to accept "the status quo of racial isolation in schools."   In his view, school districts could use some kind of race-conscious measure to confront segregated schools – but it couldn't involve the use of racial classification. 

Fifty-three years after the Supreme Court barred segregation in schools, schools that want to remain racially and ethnically diverse now face the challenge of how to do that without having their efforts ruled unconstitutional. 

See http://www.oyez.org/cases/2000-2009/2006/2006_05_915/

and http://www.oyez.org/cases/2000-2009/2006/2006_05_908/


Court watchers have long been aware that the US Supreme Court, which rolled back the gains of Reconstruction in the late nineteenth century, was playing a similar role in the late twentieth century as it chipped away at the gains of the Civil Rights Movement. 

There is some similarity in the language and arguments used by the Supreme Court in these two periods. For instance, when the Supreme Court declared the Civil Rights Act of 1875 to be unconstitutional, the majority opinion stated: “When a man has emerged from slavery… there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.”  In the late twentieth century, the argument against “affirmative action” was that it gave certain people “special privileges” and was a form of “reverse discrimination.”

The following Supreme Court decisions handed down in 1988-1989 demonstrate how the Court can in a single session reverse civil rights gains. A common feature of these cases is the high burden of proof demanded by the Court of plaintiffs who wish to challenge discriminatory practices.

City of Richmond v. Croson
The Court struck down a minority “set aside” program in the Richmond construction industry, with serious implications for similar programs in thirty-six states. The program was started after it was demonstrated that fewer than one percent of construction contracts in Richmond, Virginia went to minority firms, although the population of the city was fifty percent African American.

The judgment meant that set-aside programs would have to meet a new “strict scrutiny” standard in order to be constitutional.   All race-conscious remedies would have to demonstrate that they serve a “compelling interest” and that they are tailored to benefit individuals who can clearly prove that they have personally been victims of acts of discrimination. Both of these requirements are very difficult to prove in a court of law.

Woods Cove Packing Co. Inc., v. Antonio
The plaintiffs in this case were a group of non-white employees who had been kept in low-paying positions in Alaskan salmon canneries while white employees worked in higher-paying positions for which there were virtually no skill requirements.

By 5-4, the Supreme Court ruled that a statistical demonstration of “disparate impact” on large numbers of workers did not prove discrimination. In order to do so, a plaintiff had to isolate a particular employment practice and show how it "caused" the discrimination.  Previously, a plaintiff could submit statistical evidence to prove race discrimination. In its judgment, the Court also made it much easier for an employer to defend his or her hiring and promotion practices.

Martin v. Wilks
This case arose out of a 1974 charge of racial bias in the Birmingham, Alabama fire department. A consent decree entered into by black firefighters and the city of Birmingham set long term goals for the hiring and promotion of African-Americans in the fire department.

In 1983, a group of white firefighters brought a case saying they were being denied promotions in favor of less qualified blacks and challenging the consent decree. A judge in 1985 had dismissed their complaints, saying the promoted African Americans were not less qualified than the passed-over whites.

The Eleventh Circuit Court of Appeals reversed this decision on the grounds that the whites who brought the case had not been part of the original consent decree proceedings, and should be allowed to have their day in court. The Supreme Court, by a 5-4 vote, upheld this decision. By doing so, it opened the door to reverse long-accepted court-approved settlements across the country.

Lorance v. American Telephone and Telegraph Co.
Decided on the same day as Wilks, the judgment this case reaches precisely the opposite conclusion.  By a 5-3 margin, the court told Black female employees that they had waited too long to bring suit against a 1979 discriminatory seniority policy which led to their demotions in 1982.  Holding that seniority systems must be challenged within three hundred days of their adoption, the court in effect told the women that they should have sued before they were demoted!

Patterson v. McLean Credit Union
In 1982, Brenda Patterson sued her employer under Section 1981 of the US Code, a Civil Rights law dating from 1866. This law says that all citizens “shall have the same right…to make and enforce contracts…as is enjoyed by white citizens.” Ms. Patterson sued for racial harassment, arguing that it impaired her contractual rights at work.

While hearing her appeal, the Supreme Court said it would use this case to decide whether Runyon v. McCrary – a 1976 case which applied Section 1981 to private discrimination – should be overruled. 

In its 5-4 decision against Brenda Patterson, the Court upheld Runyon but drastically narrowed how it could be used in employment cases.  It said it applied only to “the initial formation of the contract” and not to subsequent discrimination. In other words, once a contract is signed, Section 1981 could no longer be invoked to protect against racial harassment.

These 1988-89 rulings, like many of the 2007 Supreme Court decisions, demonstrate that rights are never permanently “won."  It takes what former Justice Thurgood Marshall called “activism in pursuit of justice” to preserve them.