12/16 notes

The movement for equal rights for women has had to confront the traditional view between men and women
1) Protectionism: the belief that women should be spared from life’s cruelties, served as the basis for many laws that discriminated against women
a) in 1973 the SC upheld an Illinois statute prohibiting women from practicing law
b) in 1908 the SC upheld an Oregon law limiting the number of hours that women can work
c) in 1991 the SC struck down a company’s fetal protection policy in strong terms, stating that women should not be forced to choose between having a child or a job
2) in most states women were denied the right to vote until the movement for women’s suffrage culminated in the adoption of the 19th amendment in 1920
3) The prohibition of sex based discrimination has advanced through legislation
a) EPA, 1963 REQUIRED EQUAL PAY FOR MEN AND WOMEN DOIING SIMILAR WORK but did not account for stratification of work by gender
b) Title VII of CRA of 1964 covered discrimination on the basis of sex
c) Congress passed additional legislation prohibiting discrimination in federally aided education programs. Title IX of education amendment of 1972, which prohibited sex discrimination in education (and fostered many sports programs for girls)
4) Since 1970 the SC has consistently struck down laws that discriminate on bases of sex
a) The court determined Craig V. boren(1976) that gender distinction could be justified only if they served some important government purpose
b) the intention of gender related court decisions is to end sexual stereotyping while acknowledging relevant difference between men and women
c) in the US V. Virginia (1996) the court ruled that qualified women must be allowed admissions to the Virginia military institutions (a state supported military college in Virginia) it developed a test called skeptical scrutiny that requires parties who seek to defend gender based action to demonstrated all “exceedingly persuasive justification” for that action
5) the ERA was designed to ensure that no one could be denied ER under law on account of sex
a) after ERA passed the proposal stage in 1972, its proponents failed to obtain ratification by 1982 deadline
b) the ERA met with staunch opposition from some states and from Women who wanted to maintain their traditional roles
c) Some argue ERA is unnecessary because many goals are realized by actions of SC
d) Others have argues however that because the court could reverse those decisions an ERA is still necessary
AFFIRMATIVE ACTION PROGRAMS were designed to eliminate effects of past discrimination against women and members of other minority groups
1) Programs include recruitment preferential treatment, quotas for women, minorities and people with disabilities in education employment and awarding government contracts
2) in reverse discrimination cases, plaintiffs have argued that affirmative action programs designed to protect minorities discriminate against white Americans
a) Regents of university of California VS. Bakke: the SC agreed with Alan Bakke. He had been discriminated against, but it reaffirmed the use of AAP while outlawing racial quotas set aside.
b) Johnson v. Transportation agency: Santa Clara County (1987). The SC upheld the use of affirmative AP but with significant dissension form several justices
c) the SC tried to strike balance between traditional employment practices and affirmative AP
D) The SC decided that AAP do not overrule traditional seniority rules unless actual discrimination can be demonstrated
3) the legitimacy of some form of AA came into question in the 1990s
a) Aderand constructors V. Rena: the Court declared that programs that award benefits on the basis of race would be subject to strict scrutiny and must be “narrowly improved to meet a compelling government interest”
b) the court sent the case back to the trial court for education under strict scrutiny test, the matter is still in litigation
c) Legislation in several states seek to curtail or eliminate racial preferences in education admissions and financial aid. This is likely to have a substantial impact on the number of minority students pursuing higher education
1) HOPWOOD V. TEXAS: SC ruled that race of ethnicity cannot be the determining factor admissions to their university of Texas law
2) GRATZ V. BOLLINGER: SC upheld the admission procedure of the university of Michigan graduate school which used the race as a factor and shot down the Uni. Of Mich. Undergrad. Adm. Procedure.of applying a point scale giving more points to a racial minority
d) California voter affirmed proposed state constitutionally amendment would ban use of race, color, gender, ethnicity or national origin in public employment , education or contracting.