6.5: Modern Civil Rights Challenges

Though its laws have changed greatly over time, America’s long battle over civil rights is not over. Inequalities persist in American society, despite laws and constitutional amendments declaring the legal equality between demographic groups. Many of these inequalities are systemic in nature, so ingrained in American institutions and society that they cannot be simply or easily nullified by passing a law.

A particularly salient example of systemic inequality concerns race and criminal justice. In the United States, blacks experience (on average) worse outcomes than whites at almost every stage of the criminal justice process, including being more frequently stopped and questioned by police. Disproportionate police stops could arise from deliberately racist policing strategies, but they could also result from the fact that many high-crime areas of cities—where police are particularly likely to patrol—have predominantly black populations. This latter explanation, if true, does not mean that racism is not at fault: centuries of slavery and racial discrimination in the United States have left blacks poorer than whites overall, and poorer areas of cities also tend to have higher crime rates. However, it does mean that eliminating racial imbalances in the criminal justice system would require more than just identifying and removing individual racist cops and judges.

Another frequently discussed systemic inequality is the fact that, in the United States, the average working man earns a higher wage than the average working woman. This disparity could reflect biased hiring and promoting of men over women. It could also stem from the fact that women in the workforce tend to choose lower-paying career fields than men. (When different career fields are accounted for, the wage gap between men and women is much smaller.) This tendency could itself be a consequence of sexist societal perceptions of what constitutes “women’s work” that affect the types of careers young boys and girls aspire to. If sexism influences the wage gap in this way, how to undo its influence is not straightforward. Societal perceptions are far more difficult to change than individual sexist bosses or job recruiters are to fire or punish.

One strategy for reducing inequality is affirmative action, the preferential treatment of members of underrepresented groups to compensate for past discrimination. The American government began using race- and sex-based affirmative action in the 1960s to diversity its employees and contractors. This practice was later adopted by many private companies and both public and private colleges. Some praise affirmative action for leveling the playing field by mitigating systemic inequalities in employment and education. Others consider it reverse discrimination that merely perpetuates unequal treatment on the basis of race, sex, or other demographic criteria. In 2023, the Supreme Court ruled in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina that race-based affirmative action in college admissions is unconstitutional.

Civil rights disputes often involve one person’s or group’s rights conflicting with another’s. One such clash of rights was apparent in the 2018 Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. When a Christian baker refusing to bake a wedding cake for a gay couple, the couple claimed the baker had violated their civil rights. The baker claimed requiring him to bake a cake for a ceremony that contradicted his beliefs violated his freedoms of religion and speech. (The court issued a narrow ruling in favor of the baker and broadened that ruling five years later in 303 Creative v. Elenis to cover other creative professions.) Another impasse has emerged in the realm of high school athletics over whether transgender athletes who identify as women should be allowed to compete in women’s sports. Some argue that barring transgender women from women’s sports discriminates against them, whereas others contend that allowing transgender athletes to compete with the unfair advantage of male physiology discriminates against women who are not transgender.

Debates over competing rights often produce some of the most emotionally charged political arguments in America today. Even the language is politicized. Calling something a right implies absoluteness and inviolability, which is one reason why it is done so often by policy advocates. (Consider the policy battles over abortion between those championing “the right to life” and those promoting “reproductive rights.”) But no right is truly absolute or inviolable, and expanding any particular right means curtailing the ability of other rights to prevail against it. Determining just how far each right should extend in relation to other rights is much easier said than done.