10.3 Expanding Equality: Women's Rights, Disability Rights, and Affirmative Action

Expanding Equality: Women's Rights, Disability Rights, and Affirmative Action

Quick Answer: The struggle for constitutional equality expanded dramatically across the twentieth and twenty-first centuries. The women's rights movement progressed from first-wave suffrage (the Nineteenth Amendment in 1920) to second-wave economic and educational milestones, including the Equal Pay Act of 1963, Title IX of the Education Amendments of 1972, and the landmark ruling in United States v. Virginia (1996) requiring an "exceedingly persuasive justification" for sex-based state classifications. The disability rights movement achieved sweeping federal protections under the Americans with Disabilities Act of 1990 (ADA), which mandates "reasonable accommodations" in employment and public accommodations. Meanwhile, affirmative action in college admissions evolved from Bakke (1978) and Grutter (2003)—which barred rigid quotas but permitted race as a flexible "plus factor"—to Students for Fair Admissions v. Harvard (2023), where the Supreme Court struck down race-conscious admissions under the Equal Protection Clause.

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1. The Women's Rights Movement: From Seneca Falls to the Nineteenth Amendment

The Seneca Falls Convention of 1848

The organized movement for women's equality in the United States formally began in July 1848 in Seneca Falls, New York. Organized by abolitionist and temperance leaders Elizabeth Cady Stanton and Lucretia Mott, the convention produced the Declaration of Sentiments:

• Philosophical Foundation: Deliberately modeled on Thomas Jefferson's Declaration of Independence, it proclaimed: "We hold these truths to be self-evident: that all men and women are created equal."
• Catalogue of Injustices: Stanton articulated a sweeping indictment of patriarchal legal institutions, including the common-law doctrine of coverture (which legally subsumed a married woman's legal identity, property rights, and wages into those of her husband), denial of child custody upon divorce, exclusion from higher education and professions, and disenfranchisement.
• The Suffrage Resolution: The most radical demand—the right to vote—faced initial skepticism even among attendees, but passed after a stirring speech by abolitionist leader Frederick Douglass, who insisted that citizenship was meaningless without the elective franchise.

The Nineteenth Amendment (1920)

Following the Civil War, the women's movement split over the Fifteenth Amendment, which granted voting rights to Black men while omitting women. Stanton and Susan B. Anthony formed the National Woman Suffrage Association (NWSA) to advocate for a federal constitutional amendment, while Lucy Stone led the American Woman Suffrage Association (AWSA) targeting state-by-state enfranchisement. Reunified in 1890 as the National American Woman Suffrage Association (NAWSA) under Carrie Chapman Catt, the movement combined state campaigns with radical, confrontational picketing outside the Wilson White House led by Alice Paul and the National Woman's Party (NWP).

Ratified on August 18, 1920, the Nineteenth Amendment declared that the right of citizens of the United States to vote "shall not be denied or abridged by the United States or by any State on account of sex."

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2. Second-Wave Feminism and Landmark Statutory Milestones

While first-wave feminism secured political enfranchisement, women continued to face widespread economic inequality, occupational segregation, pay disparities, and limited educational opportunities. In 1963, Betty Friedan published The Feminine Mystique, describing "the problem that has no name"—the pervasive dissatisfaction of educated women relegated exclusively to domestic homemaking. In 1966, Friedan and fellow activists founded the National Organization for Women (NOW) to pursue full civil and economic equality in partnership with men.

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|                          KEY STATUTORY MILESTONES IN WOMEN'S RIGHTS                               |
+===================================================================================================+
| 1. EQUAL PAY ACT OF 1963                                                                          |
|    • Amended the Fair Labor Standards Act (FLSA).                                                 |
|    • Mandates equal pay for equal work: prohibits sex-based wage disparities for jobs requiring   |
|      substantially equal skill, effort, and responsibility performed under similar conditions.    |
|    • Exceptions: Seniority systems, merit systems, or quantity/quality incentive systems.        |
+---------------------------------------------------------------------------------------------------+
| 2. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964                                                      |
|    • Banned sex discrimination in private employment (hiring, promotion, firing, compensation).   |
|    • Representative Howard Smith added "sex" as a poison pill amendment intended to defeat the   |
|      bill, but it passed with the provision intact, empowering women under the EEOC.              |
+---------------------------------------------------------------------------------------------------+
| 3. TITLE IX OF THE EDUCATION AMENDMENTS OF 1972                                                   |
|    • "No person in the United States shall, on the basis of sex, be excluded from participation  |
|      in, be denied the benefits of, or be subjected to discrimination under any education         |
|      program or activity receiving Federal financial assistance."                                 |
|    • Revolutionized collegiate and high school athletics: required proportional athletic          |
|      opportunities, equipment, and athletic scholarships for women.                              |
|    • Extended to prohibit sexual harassment and sexual assault in educational institutions.       |
+===================================================================================================+

The Impact of Title IX

Authored primarily by Representative Patsy Mink and Senator Birch Bayh, Title IX of the Education Amendments of 1972 transformed American society. Before Title IX, roughly 300,000 girls participated in high school athletics; today, over 3.4 million compete annually. Furthermore, Title IX ended quotas limiting female enrollment in medical, law, and business schools, and in Franklin v. Gwinnett County Public Schools (1992), the Supreme Court ruled that students subjected to sex-based discrimination and sexual harassment can recover monetary damages under Title IX from school districts receiving federal funds.

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3. The Equal Rights Amendment (ERA) and Intermediate Scrutiny

The Equal Rights Amendment

Originally drafted by Alice Paul in 1923, the proposed Equal Rights Amendment (ERA) stated simply: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."

• Congressional Passage (1972): Passed both houses of Congress with massive bipartisan majorities (354–24 in the House, 84–8 in the Senate) and was submitted to the states with an initial seven-year ratification deadline.
• The Counter-Movement: In the mid-1970s, conservative activist Phyllis Schlafly founded the "STOP ERA" campaign. Schlafly argued that the ERA would strip women of traditional protections, subject young women to the military draft, force the abolition of separate-sex restrooms, eliminate child support and alimony benefits, and mandate state funding for abortions.
• The Deadline Expiration: By 1977, 35 states had ratified the ERA—three short of the necessary 38 (three-fourths) required by Article V. Although Congress extended the deadline to June 30, 1982, no additional states ratified before the deadline, and five states voted to rescind their prior ratifications.
• Modern Controversies: Between 2017 and 2020, Nevada, Illinois, and Virginia became the 36th, 37th, and 38th states to ratify, triggering ongoing federal litigation regarding whether Congress's original ratification deadline was binding and whether state rescissions are legally valid.

United States v. Virginia (1996): The VMI Landmark

In the absence of an explicit constitutional amendment, the Supreme Court utilized the Fourteenth Amendment Equal Protection Clause to dismantle state-sponsored sex discrimination.

• Facts: The Virginia Military Institute (VMI), a prestigious public military college established in 1839, produced leaders across business, government, and the military using an intense "adversative" instructional method. VMI maintained an exclusively male student body, refusing to admit qualified female applicants. In response to a federal lawsuit, the Commonwealth of Virginia proposed creating a separate female program: the Virginia Women's Institute for Leadership (VWIL) at Mary Baldwin College, a private women's liberal arts school.
• Ruling (7–1): The Supreme Court held that VMI's male-only admissions policy violated the Equal Protection Clause.
• Ginsburg's Doctrine: Justice Ruth Bader Ginsburg authored the majority opinion, establishing that under intermediate scrutiny, any gender-based government classification requires an "exceedingly persuasive justification":
  1. The justification must be genuine, not hypothesized or invented post hoc in response to litigation;
  2. It cannot rely on overbroad generalizations or traditional stereotypes about the differing talents, capacities, or preferences of men and women;
  3. While most women might not desire VMI's rigorous adversative training, the state could not exclude women who were individually qualified and eager to participate.
• VWIL's Inadequacy: The Court dismissed the VWIL alternative as a drastically inferior substitute. VWIL lacked military drill training, had no engineering degrees, offered a modest endowment, and lacked the immense prestige, faculty resources, and potent "alumni network" of VMI.

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4. The Disability Rights Movement and the Americans with Disabilities Act (ADA)

Historically, Americans with physical, sensory, cognitive, and mental disabilities faced systemic institutionalization, exclusion from public facilities, architectural barriers, and blatant employment discrimination.

Section 504 of the Rehabilitation Act of 1973

The civil rights breakthrough for people with disabilities arrived with Section 504 of the Rehabilitation Act of 1973, which provided: "No otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." When federal regulators delayed issuing enforcement rules, disability activists staged the historic 504 Sit-in of 1977 in San Francisco—the longest occupation of a federal building in U.S. history—forcing the government to implement regulations mandating accessible public transportation, curb cuts, and school accommodations.

The Americans with Disabilities Act of 1990 (ADA)

Signed into law by President George H.W. Bush on July 26, 1990, the Americans with Disabilities Act (ADA) extended comprehensive civil rights protections across the private and public sectors, modeled directly on the Civil Rights Act of 1964.

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|                         AMERICANS WITH DISABILITIES ACT OF 1990 (ADA)                             |
+===================================================================================================+
| Statutory Definition of Disability:                                                               |
| 1. A physical or mental impairment that substantially limits one or more major life activities;   |
| 2. A record of such an impairment; or                                                             |
| 3. Being regarded as having such an impairment.                                                   |
+---------------------------------------------------------------------------------------------------+
| FIVE OPERATIONAL TITLES:                                                                          |
| • Title I (Employment): Prohibits discrimination by private employers (15+ workers). Employers    |
|   must provide "reasonable accommodations" to qualified individuals unless causing "undue hardship."|
| • Title II (Public Services): Mandates accessibility in all state and local government operations |
|   (public transit, city halls, state universities, voting booths, courts).                        |
| • Title III (Public Accommodations): Requires private businesses open to the public (hotels,      |
|   restaurants, theaters, retail stores, gyms) to remove architectural barriers and provide access.|
| • Title IV (Telecommunications): Mandates nationwide telephone relay services for speech/hearing  |
|   impaired individuals.                                                                           |
| • Title V (Miscellaneous): Protects against retaliation; covers administrative procedures.        |
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The Legal Balancing Test: Reasonable Accommodation vs. Undue Hardship

Under Title I of the ADA, an employer cannot refuse to hire a qualified individual with a disability who can perform the essential functions of the job with or without accommodation:

• Reasonable Accommodations: Modifications or adjustments to a job, work environment, or application process that enable an individual with a disability to participate fully. Examples include installing ramps, elevating desks for wheelchair users, providing screen-reading software for visually impaired employees, modifying work shifts, and offering sign-language interpreters.
• Undue Hardship Defense: An employer is exempt from providing an accommodation only if it can demonstrate that the accommodation would impose an "undue hardship"—defined by statute as an action requiring significant difficulty or expense when assessed against the employer's overall financial resources, workforce size, and operational structure. An expensive renovation might constitute an undue hardship for a small neighborhood bakery, but would not for a multinational corporation.

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5. Affirmative Action: Definitions and Historical Origins

Affirmative action encompasses active, race- or gender-conscious policies instituted by government bodies, universities, and commercial employers designed to overcome the persistent effects of past societal discrimination and promote equal opportunity.

Presidential Executive Orders

• Executive Order 10925 (President John F. Kennedy, 1961): First used the phrase "affirmative action," requiring federal contractors 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."
• Executive Order 11246 (President Lyndon B. Johnson, 1965): Mandated that federal government contractors establish formal affirmative action compliance programs. In a famous 1965 commencement address at Howard University, President Johnson provided the core moral metaphor for affirmative action:

  "You do not take a person who, for years, has been hobbled by chains and bring him up to the starting line of a race and then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates."

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6. The Constitutional Evolution of Affirmative Action in Higher Education

For nearly five decades, the Supreme Court wrestled with the constitutionality of race-conscious university admissions policies under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

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|                      THE JURISPRUDENTIAL EVOLUTION OF AFFIRMATIVE ACTION                          |
+===================================================================================================+
| 1. REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978)                                        |
|    • UC Davis Medical School reserved 16 of 100 seats exclusively for minority applicants.        |
|    • Ruling (Powell controlling): Strict scrutiny applies to all racial classifications.          |
|    • Rigid racial quotas or numerical set-asides violate Equal Protection.                       |
|    • BUT: Student body diversity is a compelling interest; race may be used as a flexible         |
|      "plus factor" in an individualized, holistic review process.                                 |
+---------------------------------------------------------------------------------------------------+
| 2. THE MICHIGAN CASES (2003)                                                                      |
|    • Grutter v. Bollinger: Upheld University of Michigan Law School's holistic, non-numeric       |
|      use of race to attain a "critical mass" of underrepresented minority students.               |
|    • Gratz v. Bollinger: Struck down undergraduate admissions system that automatically awarded    |
|      20 points (out of 150) to underrepresented minorities as an unconstitutional mechanical quota|
+---------------------------------------------------------------------------------------------------+
| 3. STUDENTS FOR FAIR ADMISSIONS V. HARVARD & UNC (2023)                                           |
|    • S.Ct. (6-3, Roberts): Struck down race-conscious admissions programs at Harvard and UNC.     |
|    • Core Holding: Equal Protection requires treating applicants as individuals, not by race.    |
|    • Flaws Identified: Lack of measurable compelling objectives, impermissible use of race as a   |
|      negative/stereotype against non-preferred groups, and absence of a logical end point.        |
|    • Personal Experience Exception: Universities may consider an applicant's discussion of how    |
|      race impacted their life (e.g., overcoming discrimination) on an individualized basis.       |
+===================================================================================================+

Regents of the University of California v. Bakke (1978)

• Facts: The Medical School of the University of California, Davis, established a special admissions program that set aside 16 of 100 seats in each entering class for economically or educationally disadvantaged minority applicants. Allan Bakke, a white applicant with medical college admission test (MCAT) scores and GPA significantly higher than the admitted minority applicants, was rejected twice and sued.
• The Split Ruling: The Court splintered into three camps. Justice Lewis F. Powell Jr. delivered the decisive single-justice controlling opinion:
  1. Strict Scrutiny Applies: Any governmental racial classification—even if adopted for "benign" or remedial purposes—triggers strict scrutiny under the Equal Protection Clause.
  2. Quotas are Unconstitutional: UC Davis's rigid, mechanical 16-seat set-aside was an unconstitutional racial quota that denied non-minority applicants the opportunity to compete for all 100 seats.
  3. Diversity as a Compelling Interest: However, Powell ruled that obtaining the educational benefits that flow from an ethnically and culturally diverse student body constitutes a compelling governmental interest under the First Amendment's doctrine of academic freedom. Universities could legally consider race as a flexible "plus factor" within a competitive, individualized, and holistic review of every candidate's portfolio (citing Harvard College's admissions plan as a constitutional model).

The Michigan Cases: Grutter and Gratz (2003)

Twenty-five years later, the Supreme Court reviewed two admissions policies at the University of Michigan, confirming the constitutional line between permissible holistic review and impermissible mechanical quotas:

• Grutter v. Bollinger (2003): The University of Michigan Law School conducted a comprehensive, holistic review of every applicant, using race as one flexible factor among many to assemble a student body with a "critical mass" of underrepresented minorities. Writing for the 5–4 majority, Justice Sandra Day O'Connor formally affirmed Powell's Bakke opinion, holding that student body diversity is a compelling state interest and that Michigan's individualized, non-mechanical policy was narrowly tailored under strict scrutiny. O'Connor noted an expectation that "25 years from now, the use of racial preferences will no longer be necessary."
• Gratz v. Bollinger (2003): Decided on the same day, the Court struck down (6–3, Chief Justice William Rehnquist) the University of Michigan's undergraduate admissions system. The undergraduate college utilized a 150-point selection index and automatically awarded 20 bonus points to any underrepresented minority applicant (more than the points awarded for a perfect SAT score). Rehnquist held that this predetermined, automatic point allocation was not narrowly tailored, lacked individualized consideration, and functioned as an unconstitutional quota.

The Watershed Decision: Students for Fair Admissions v. Harvard (2023)

In June 2023, the Supreme Court consolidated lawsuits brought by Students for Fair Admissions (SFFA) against Harvard College (a private university receiving federal funds subject to Title VI) and the University of North Carolina (a public university governed by the Fourteenth Amendment). The plaintiffs alleged that both universities' race-conscious admissions policies discriminated against Asian American applicants in violation of the Equal Protection Clause.

In a 6–3 decision authored by Chief Justice John Roberts, the Supreme Court fundamentally altered higher education admissions by holding that race-conscious admissions policies violate the Equal Protection Clause and Title VI:

1. Lack of Measurable Compelling Interests: The Court held that the universities' articulated educational objectives—such as producing engaged citizens, fostering innovation, and preparing leaders—while commendable, were too amorphous and unmeasurable to be subjected to meaningful judicial scrutiny.
2. Race Used as a Negative and a Stereotype: The Court found that race-conscious admissions inevitably operated as a "negative factor" for applicants from non-preferred racial groups (specifically Asian Americans and white applicants), violating the bedrock principle that an individual should never be disadvantaged on account of their race. Furthermore, treating individuals as possessing shared viewpoints based solely on skin color engaged in unconstitutional racial stereotyping.
3. Lack of a Logical End Point: The Court criticized the programs for lacking any clear temporal termination point, violating Grutter's premise that race-conscious policies must be temporary.
4. The Individualized Personal Experience Standard: Importantly, Chief Justice Roberts clarified that nothing in the Court's opinion prohibits universities from considering an applicant's discussion of how race has impacted their life, through concrete personal experiences such as overcoming discrimination, exhibiting determination, or demonstrating leadership:

   "A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race."