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Civil Rights Rollback Glossary

(March, 2004) Compiled by the National Campaign to Restore Civil RightsAbrogate
This is a term used to describe Congress’ power to override the states’ immunity from lawsuits (sovereign immunity) as granted by the Eleventh Amendment. If Congress can abrogate the states’ immunity, it means that Congress can pass a law making states subject to lawsuits for damages.

ADA (Americans with Disabilities Act)
A federal law passed in 1990 that prohibits discrimination against people with physical or mental disabilities in employment, public services, and public accommodations. Since 2000, state employees can no longer use this law to sue for discrimination because of the Supreme Court’s decision in the Garrett case.

ADEA (Age Discrimination in Employment Act)
A federal law passed in 1967 prohibiting discrimination in employment based on age for people over 40. The Supreme Court’s 1999 decision in the Kimmel case shielded state employers from this law.

Buckhannon Board and Care Home Inc. v. West Virginia Dept. of Health and Human Services (2000)
In order for civil rights plaintiffs to win attorneys fees, or charge their legal costs to the loosing side of a case, the plaintiff must be the “prevailing” party in the case. Until the Buckhannon case, a civil rights plaintiff could ask for attorney fees if the defendants made a voluntary change in the law the plaintiff was protesting. This meant the case would settle between the two parties and not in front of a judge. Before this decision, many plaintiffs settled cases because it saved resources and changed behavior, and because most cannot afford to bring a case all the way to trial. The Supreme Court majority knew this, and this decision will keep many who have had their rights violated out of court. In Buckhannon, the Supreme Court, voting 5-4, changed the law to say that in order to get the other side to pay attorneys fees, a civil rights plaintiff bringing a case under the Americans with Disabilities Act or the Fair Housing Act now must take their case all the way to trial and “prevail” in front of a judge, and private agreements between the parties would no longer be good enough.

Civil Rights Act of 1964
This is the landmark federal civil rights law that contains a number of sections (called “Titles”) that prohibit discrimination. This law was passed to enforce the rights for which many people risked, or lost, their lives in the civil rights struggle of the 1950’s and 60’s. Title VI prohibits discrimination on the basis of race/color and national origin by public and private agencies that receive federal money. This part of the law no longer offers the protection it used to after the Supreme Court case of Alexander v. Sandoval in 2001. Title VII prohibits discrimination in employment on the basis of race, color, national origin, sex, or religion and applies to any employer with more than 15 employees.

Civil Rights Attorneys Fees Act
In the United States, each side of a lawsuit must pay its own legal fees. All legal cases are expensive to bring, and in civil rights law, the costs could keep many cases from ever being brought. Civil rights plaintiffs and attorneys do not often have large amounts of money, and these cases usually do not end with large amounts of money being won, because they are more about changing behavior. To make it more possible to bring civil rights cases, Congress passed the Civil Rights Attorneys Fees Act in 1976. This allowed plaintiffs who won a federal civil rights suit using section 1983 to charge their legal fees to the losing side of the case. The Supreme Court’s 5-4 decision in the Buckhannon case in 2000 cut back the Attorneys’ Fees Act.

Commerce Clause
The Constitution limits the types of laws Congress can pass. Article I Section 8 of the Constitution lays out all of the powers of Congress. If Congress passes a law that is not within their powers, the Supreme Court can strike down the law. There are only three powers of Congress that give it the ability to pass civil rights laws. One of these is the Commerce Clause, which gives Congress the power to pass laws that affect interstate commerce. This power has been used since the New Deal in the 1920’s to pass civil rights laws and later to strike down segregation. Starting in 1996, the Supreme Court began to change what the Commerce Clause means, striking down laws passed under the Commerce Clause that are not strictly economic. This makes it difficult for Congress to pass civil rights laws. For example, this is how the Violence Against Women Act was struck down (the Morrison case).

Congressional Power
Traditionally, there are only three bases on which Congress may enact civil rights laws. These Constitutional powers come from the Spending Clause (the right of Congress to tax and spend), the Commerce Clause (the right of Congress to regulate commerce among and between the states), and section 5 of the Fourteenth Amendment (which gives Congress the authority to enforce the Equal Protection Clause and other provisions of the Fourteenth Amendment to the Constitution). Congress has been able to use these powers to pass laws and to make the states liable to suit. In the past few years, the Supreme Court has been reading Congress’ powers narrowly, so that Congress’ power to enact laws protecting civil rights have been severely limited.

Consent Decree
A court order that is one way to end a lawsuit. When both sides agree about how a court case should be resolved, they may enter into this legal agreement. A court can then monitor the consent decree to make sure that both sides are following through on the agreement.

This is money that can be won by one side in a lawsuit to compensate for a loss or an injury.

This is the person in a lawsuit who the plaintiff is accusing of having done something illegal. In a civil suit, this is the person being sued.

Disparate Impact
This is a way of proving discrimination in court. To prove disparate impact one has to show that a certain group (for example: a racial group, women, people with a particular disability) suffered more than others because of a policy or action, even if the policy seemed neutral. In 2001 in the Sandoval decision, the Supreme Court ruled 5-4 that the disparate impact standard could no longer be used to prove racial or national origin discrimination under Title VI of the Civil Rights Act of 1964. This decision has kept many people out of court, unable to enforce their civil rights.

This is written by the judges that do not agree with the majority of the court in a certain case. The dissent does not have the same power of law as the majority opinion, but it is a statement of what a judge thinks about an issue.

Due Process
This is a guarantee in the Constitution that keeps the government from unfairly or arbitrarily taking a persons’ life, liberty, or property. This usually means that if the government wants to take any of these things from a person, there must first be a fair trial or procedure. There are two Due Process clauses in the Constitution. One is in the 5th amendment and controls states; the other is in the 14th amendment and controls the federal government.

The Eleventh Amendment
The current Supreme Court has decided that this amendment prohibits individuals from suing their states for civil rights violations. The actual words of the amendment would only keep the citizens of one state from suing another state (California residents trying to sue Texas for example). But this Court, in two 5-4 decisions, has decided it keeps state employees from suing their own state employer for workplace discrimination based on age (the Kimmel case) and disability (the Garrett case).

The Equal Protection Clause
This is a section of the Fourteenth Amendment of the Constitution that reads “nor shall any state…deny to any person…the equal protection of the laws.” The Fourteenth Amendment was added after the Civil War to make sure the federal government protected the rights of all its’ people. Over time, courts have interpreted the clause to guarantee that people in the same situation be treated equally.

Fair Housing Act Amendment of 1988 (FHAA)
This federal law added to the Fair Housing Act of 1968, prohibits private and public housing discrimination based on race, color, religion, or national origin. The 1988 additions added “familial status” and “handicapped persons” to the list, made the law more enforceable and increased the amount of damages a person could win in a discrimination lawsuit.

This term has meant many different things over time. In the time of the founding fathers it referred to the balance of power between the states and the federal government. More recently, it has stood for the idea that the states should have control over their own affairs, and therefore have more power than the federal government. During the civil rights movement, the idea of federalism was used to justify segregation by some states, and the Federalist Society uses the word today to advocate for a weaker federal government and weaker federal civil rights laws.

The Fourteenth Amendment
This amendment was added to the Constitution after the Civil War as a way to protect the former slaves’ civil rights and make sure they received federal protection from discrimination by the states or individuals. The amendment includes a Due Process Clause and the Equal Protection Clause. Section 5 of the 14th Amendment was designed to make these guarantees enforceable against the states.

Gonzaga v. Doe (2002)
In this case, a former university student brought suit against Gonzaga University alleging that the university had released private information about him in violation of the Federal Education Right to Privacy Act (FERPA). He claimed that the release of the information was a violation of his civil rights that he could enforce through 42 U.S.C. § 1983. In a case with important implications for whether individuals can sue to enforce other federal rights, the Supreme Court held that FERPA does not include clear rights-creating language and therefore cannot be enforced by an individual through 42 U.S.C. § 1983.

The courts’ decision in a case is sometimes called the holding. The holding only refers to that which a majority of the court agreed, and this then becomes the law. The justices that do not agree with the holding of a case write a separate dissent.

Intentional discrimination
This is a way of proving discrimination in court. To prove intentional discrimination, one has to show that the person or agency purposefully discriminated. This requires evidence of what was going on in another person’s head when they did something that had a discriminatory effect. In many cases, this type of discrimination is impossible to prove even when it seems obvious. While often discrimination cannot be proved under this test, it would pass the test for the disparate impact standard.

An order by a court that requires one side in a lawsuit to do something or keeps them from doing something. For example, a court might enter an injunction, against a state agency that keeps them from enacting a regulation that would discriminate against people because of their race.

Kimmel v. Florida Board of Regents (1999)
In this case, the Supreme Court decided 5-4, that even though the two plaintiffs were denied employment just because of their age, their cases would not be allowed into federal court because of the 11th Amendment. This decision made the Age Discrimination in Employment Act (ADEA) difficult to enforce. The decision also made it more difficult for Congress to enact other laws that would protect workers from their state employers.

Legal responsibility.

United States v. Morrison (1999)
In this case, the Supreme Court struck down the Violence Against Women Act (VAWA) in a 5-4 decision, saying Congress did not have the power to pass this law in the first place. A woman raped by two football players at Virginia Tech University while she was a student there brought the case. The school found one of the players guilty and suspended him, but later overturned the decision, did not inform the woman, and sent the man back to school. Upon finding this out, the woman dropped out and tried to sue the school in federal court under VAWA. Despite volumes of congressional evidence showing violence keeps women from participating in the economy, the Supreme Court held Congress did not have the power to pass this law under the Commerce Clause or the 14th Amendment. This case severely limited Congress’ ability to enact civil rights laws.

The person or group that brings a lawsuit.

Private Right of Action
The right of an individual to bring a case into court. Not all laws allow for a private right of action. Instead, a person would need the government to bring a case for them (something that rarely happens in civil rights cases). The Supreme Court’s Sandoval decision took away a private right of action for racial discrimination cases brought under Title VI of the Civil Rights Act of 1964.

A rule made by a government agency that expands upon or interprets a law made by Congress. Regulations have the weight of law, but in court are not considered to be as strong as a law made by Congress.

Rehabilitation Act
This federal law prohibits state and local governments that receive federal funds from discriminating against people with disabilities in public accommodations. This law was expanded upon by the ADA, but it remains good law.

Rollback of Civil Rights
A phrase that explains what the federal courts are doing to weaken federal civil rights laws. The courts are taking the power to pass laws that protect civil rights away from Congress, and making it more difficult for individuals to enforce the civil rights laws we already have. Courts with a majority of conservative judges are leading the rollback, and many people are unaware of the problem because of the legal jargon used in these decisions.

Alexander v. Sandoval
In this case, Ms. Sandoval sued the state of Alabama because, as a state with an “English only” policy, they refused to give any driver’s license tests in Spanish, thus discriminating against her on the basis of her national origin. The Supreme Court, in a 5-4 decision, decided that, from now on, private individuals could only sue the state under Title VI if they could prove intentional discrimination, something a person in Ms. Sandoval’s position would not be able to prove. After this case, if a person only has proof of a disparate impact, they have no private right of action in federal court, so they can only try and persuade the federal government to take their case, something that rarely happens.

Section 5 of the 14th Amendment
The part of the Constitution that gives Congress the power to enforce the 14th Amendment, including the Due Process Clause and the Equal Protection Clause, through passing civil rights laws and making it possible for people to sue their state to enforce these laws. Both the Garrett and Morrison cases limit Congress’ power under Section 5, making it more difficult for the Congress to pass civil rights laws and for people to sue to enforce them.

Section 1983
42 U.S.C Section 1983 is the basic federal civil rights statute authorizing lawsuits against state and local government officials for violations of federal law - including the Constitution. The recent cases of Alexander v. Sandoval and Gonzaga University v, Doe has raised questions about when Section 1983 can be used to enforce federal statutes and regulations.

Seminole Tribe of Florida v. Florida (1996)
The Supreme Court ruled in this case that Congress does not have the power under the Commerce Clause to pass a law allowing individuals to sue the states for damages, because of states’ “sovereign immunity” under the 11th Amendment. The Court ruled that only the 14th Amendment (which comes after the 11th Amendment) can authorize Congress to create money claims against states.

Settlement Agreement
An agreement made between both sides in a lawsuit that ends the suit and is legally binding. A court does not monitor a settlement agreement, and this makes it different from a consent decree.

Sovereign Immunity
The idea that the government, either state or federal, cannot be sued. The 11th Amendment is an example of this kind of shield, it offers state governments protection from federal lawsuits. For decades before the Supreme Court began the rollback of civil rights, people could sue states for violations of federal civil rights laws. Recently, the Supreme Court has changed the law by deciding that states have sovereign immunity from more and more types of lawsuits, making it difficult for people to enforce their civil rights.

State’s Rights
This is another way to describe federalism. Over the course of U.S. history, advocates for state’s rights have argued that the power of the federal government, including Congress and the federal courts, should be limited. Opponents of civil rights in the 1960’s used state’s rights to support their arguments. Today, this continues to be a strong movement, supported by groups like the Federalist Society.

State Waiver
One of two ways a state would lose its sovereign immunity, making it possible for people to sue their state for discrimination (See Section 5 of the 14th Amendment for the other). Because the Supreme Court has recently been giving states more and more sovereign immunity from civil rights cases, some states that value civil rights have passed legislation giving up this immunity, allowing people to sue them in federal court for damages. This is called a state waiver. So far, Minnesota, North Carolina and Illinois have passed a state waiver, while many more states are considering passing similar laws to protect their citizens from discrimination.

A law passed by Congress or a state legislature.

Supreme Court
The highest court in the United States. It has the power to interpret the Constitution and Congress’s laws. There are 9 justices on the Court. The justices are: William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, Sandra Day O’Connor, Steven Bryer, David Souter, John Paul Stevens, and Ruth Bader-Ginsberg. Five justices must agree with each other to make a majority decision that will become law.

Tennessee v. Lane (2004)
Plaintiff George Lane was a defendant in a criminal case in Tennessee. The state arrested Lane, who has paraplegia, for failure to appear when he refused to crawl or be carried up the stairs of the courthouse. Lane filed suit under Title II of the ADA in 1998. At issue in the case is whether Congress had the constitutional authority to require states to pay money damages for violations of Title II of the ADA.

Title VI of the Civil Rights Act
Prohibits recipients of federal funding (both private and public programs) from discriminating on the basis of race, color, or national origin.

Title IX of the Civil Rights Act
Prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance, with a number of exceptions.

University of Alabama v. Garrett (2000)
The Supreme Court, in a 5-4 decision, held that state employees could not sue their state employer for damages in federal court if they were discriminated against because of a disability. In this case, Patricia Garrett was demoted from her job as a nurse at a state hospital because she developed breast cancer and her boss did not want somebody who “looked sick” being around patients. She sued the state under the ADA. The court used the Eleventh Amendment to justify their decision and Patricia Garrett lost her case.

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