Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P43 ppt

In addition to jurisdiction, the plaintiff must
also consider venue. Venue is the term describ-
ing the particular county or geographical area,
in which a court with jurisdiction may hear and
determine a case. The plaintiff makes a decision
on venue after deciding whether to file suit in
state or federal court. For example, if a plaintiff
decides to file suit in state court, and has settled
on a particular state, the plaintiff must decide in
which county to file suit. The overriding
consideration in determining the best venue in
a case is the convenience to the parties.
Once the plaintiff determines where to file
the complaint, the plaintiff must prepare
pleadings and motions. Pleadings are the
plaintiff’s initial allegations and the defendant’s
responses to those allegations. Motions are
requests made by the parties for a specific order
by the court. Courts usually schedule pretrial
conferences to review and rule on pleadings and
motions, sort out pre liminary issues, and
prepare a case for tria l.
Before a case can proceed, the court must
determine whether the plaintiff has standing to
bring the suit. In order to hear the suit the court
must find that the plaintiff has some legally
protectible, tangible interest in the outcome of
the litigation. Other plaintiffs may join the
original plaintiff if they seek the same relief
concerning the same transaction or event and
the complaints involve a common

QUESTION OF
LAW
or fact. This is called JOINDER.
In some cases, joinder may be compulsory.
Under Rule 19, a person must be joined if (1)
complete reli ef cannot be accorded to the
parties without joining the missing person or
(2) the missing person claims an interest in the
action, and absence from the suit will impair
that person’s ability to protect the interest, or
absence would subject the parties to multiple or
inconsistent obligations regarding the matter of
the suit. Both plaintiffs and defenda nts may be
ordered by the court to join a suit.
The court must also determine before trial
that the issues in the case are
JUSTICIABLE, that is,
the case is ready and proper for a judicial
determination. Courts do not hear hypothetical,
abstract, or political cases. For example, a
person may not file a suit against a legislator
over the legislator’s vote on a matter before the
legislature. Nor may a person file a suit against
another unless the filing person can demon-
strate having been harmed by the other.
If the complaint does not state a claim
upon which judicial relief can be granted, the
defendant may move for
SUMMARY JUDGMENT,
which is a request that the court issue a final

judgment on the case in favor of the defendant.
The plaintiff also may submit a motion for
summary judgment, either soon after fil ing the
complaint or after the defendant submits a
summary judgment motion. When deciding a
motion for summary judgment, the court must
consider the pleadings in the light most
favorable to the party opposing the motion.
The parties to a lawsuit prepare their case
based on information gained through the
process of discovery. Discovery consists of a
variety of methods including depositions and
INTERROGATORIES.ADEPOSITION is an interview of
a party or witness conducted by a lawyer.
Usually, this interview is conducted orally with
a lawyer for the other side present and able to
participate; sometimes, it is conducted using
written questions. Information about a party
may be secured through written interrogatories
or requests to produce documents or other
things. These requests may be served only upon
a party. A request for production may seek any
item within a party’s control.
Procedural rules for depositions and other
forms of discovery address a number of
concerns, in cluding how a deposition is con-
ducted, the permissible scope of a deposition,
who may conduct a deposition, when a party
may object to a question at a deposition, when a
party may object to an interrogatory, when a

party may enter upon land for inspection, when
a party may make physical or mental inspec-
tions of another party, and what hap pens when
a party does not cooperate with a court order
directing compliance with discovery.
If the parties cannot reach a settlement, the
case goes to trial. Just before trial, the plaintiff
must decide whether to ask for a jury trial. Not
all civil cases may be tried before a jury. The
right to a jury trial is usually tied to the amount
of money at issue: if the case concerns less than
a certain amount, such as $10,000, the case may
be limited to trial before a judge. In federal
court, however, all parties have the constitu-
tional right to a jury trial. If a plaintiff or
defendant is granted a jury trial, both sides will
have the opportunity to screen potential jurors
for bias.
At trial, each side is given the opportunity to
make an
OPENING STATEMENT to the fact finder, be
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
408 CIVIL PROCEDURE
it judge or jury. The plaintiff then presents
evidence. Evidence can include TESTIMONY from
witnesses and tangible items presented through
witnesses. When the plaintiff has presented her
or his case, the defendant has the option of
presenting evidence. After the defendant pre-
sents evidence, the parties make closing argu-

ments to the fact finder.
After final arguments, the judge must de-
termine what laws apply to the case. Both
parties submit proposed instructions to the
judge. If the case is tried before a jury, the judge
must read instructions to the jury. If the case is
tried before a judge, the judge will give the
parties an opportunity to argue that certain
favorable law controls the case.
At this point, either party may move the
court for a
DIRECTED VERDICT. This is a request
that the court decide in the party’s favor before
deliberating on the case or sending it to the jury.
A directed
VERDICT may be granted only if no
substantial evidence supports a finding in the
opposing party’s favor, and the opposing party
bears the burden of producing evidence on the
issue. If the judge does not issue a directed
verdict, the fact finder retires to deliberate the
case in secret.
The final phase of the trial is the judgment.
The court has the option of requesting different
types of verdicts. If it requests a
GENERAL VERDICT,
it is looking for a flat finding of liability or no
liability. If it requests a
SPECIAL VERDICT, it expects
the fact finder to answer specific factual

questions, and then the judge determines the
legal consequences of the answers.
In a complex jury trial, the court may
request that the jury deliver a general verdict
along with answers to special interrogatories.
This form of verdict allows the judge to ensure
that the jury delivers the correct verdict based
on its factual findings.
The number of jurors on a civil jury can be
as few as five or as many as twelve, depending
on the jurisdiction. In most jurisdictions,
including federal courts, the jury’s decision
must be unanimous, but some jurisdictions
allow a verdict with something less than
unanimity, such as an agreement among nine
of twelve jurors.
If the defendant has failed to appear for the
proceedings,
DEFAULT JUDGMENT will be entered
for the plaintiff. However, in this situation, the
defendant may contest the judgment when the
plaintiff attempts to collect on it, by filing a
separate suit and challenging the jurisdiction of
the court.
When the verdict is delivered, the losing
party may seek a reversal of the judgment.
Sometimes a verdict is unsatisfactory to both
parties, and both parties seek a reversal; this
might happen, for example, when one party
wins the lawsuit but receives a small damages

award. Reversal of a verdict may be pursued
through a motion for
JUDGMENT NOTWITHSTAND-
ING THE VERDICT
, or J.N.O.V. (for judgment non
obstante veredicto, which is Latin for “notwith-
standing the verdict”). The standard for this
order is the same as that for a directed verdict. A
reversal of judgment usually occurs only in jury
trials; judges generally are not inclined to
reverse their own decisions.
A court may grant a new trial if proce dural
problems at trial prejudiced a party or worked
against the interests of a party, and affected the
verdict. Such problems include juror miscon-
duct and unfair withholding of evidence by an
opposing party. A new trial may also be granted
if the damages authorized by the jury were
excessive or inadequate. In extreme cases, a new
trial may be granted if newly discovered
evidence comes to light after the case is given
to the jury.
All jurisdictions give parties to a civil suit
the right to at least one appeal. A decision may
be reversed if an error at trial prejudiced the
appellant (the party bringing the appeal).
Appeals courts generally do not reverse verdicts
based on the
WEIGHT OF EVIDENCE. Instead, they
limit their review of cases to mistakes of law.

This nebulous concept generally refers to
mistakes relating to procedural and constitu-
tional violations.
Sometimes a party may appeal a court order
or decision to a higher court during trial.
Known as an
INTERLOCUTORY appeal, this option
is limited. A party may appeal during trial if the
party stands to suffer irreparable harm if the
order or decision is not immediately reviewed.
A party may also appeal an order or decision
during trial if it affects a matter that is
COLLATERAL to, or separate from, the litigation.
After a judgment is reached, the winning
party must enforce it. If the losing party does
not voluntarily relinquish the disputed property
or pay the monetary judgment, the winning
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CIVIL PROCEDURE 409
party may seize and sell the property of the
losing party. This is accomplished by filing the
judgment in the county where the property is
located and proceeding to obtain ownership of
the property through another civil suit. If the
losing party has no money, the winning party
may seek to garnish a portion of the losing
party’s wages. If the losing party does not work
and has no property, the winning party may be
unable to collect on the judgment.
Some parties come to court seeking provi-

sional remedies, which are forms of temporary
relief available in urgent situations. Temporary
restraining orders and injunctions are court
orders that direct a party to perform a certain
act or refrain from performing a certain act. For
example, if a party wants to bring suit to prevent
the imminent demolition of what he believes is
a historic building, he may petition the court for
a
TEMPORARY RESTRAINING ORDER to prevent
demolition while the suit is filed. A temporary
RESTRAINING ORDER will last up to ten days. When
the ten days have expired, the litigant may seek
either renewal of the temporary restraining
order or a
PRELIMINARY INJUNCTION.
A preliminary
INJUNCTION, if granted,
requires a party to perform an act or refrain
from performing an act until the end of trial. A
permanent injunction is a court order that
requires a defendant to perform an act or
refrain from performing an act permanently.
Civil Justice Reform Act of 1990
Civil cases often are expensive and time-
consuming. In August 1990 the U.S. Congress
passed the Civil Justice Reform Act to help
remedy these problems (28 U.S.C.A. §§ 471–
482). The U.S. Senate explained that the Civil
Justice Reform Act was “to promote for all

citizens, rich or poor, individual or corporation,
plaintiff or defendant, the just, speedy and
inexpensive resolution of civil disputes in our
Nation’s federal courts” (S. Rep. No. 101-416,
101 Cong., 2d Sess., at 1 [Aug. 3, 1990]). The act
ordered each U.S. district court to implement a
Civil Justice Expense and Delay Reduction Plan
under the direction of an advisory group
comprising “ those who mu st live with the civil
justice system on a regular basis” (S. Rep. No.
101-416, at 414 [quoting statement of
SENATE
JUDICIARY COMMITTEE
chairman Biden, Cong. Rec.
S416 (Jan. 25, 1990)]).
The advisory groups in each federal district
were appointed by the chief judge of the federal
circuit, and they generally consisted of judges,
clerks, and law professors. These experts
prepared a report on methods for reducing
expense and delay in civil litigation. The report
was then considered by the federal
CIRCUIT COURT
judges in forming the Civil Justice Expense and
Delay Reduction Plan.
One major challenge that faced the advisory
groups was how to get courts to best use
modern technology. Since passage of the act,
many federal circuits have authorized the filing
of court documents by facsimile and other

electronic means, which may include the use of
computers.
Federal courts have also acted to improve
scheduling. The U.S. District Court for the
District of New Hampshire, for example,
created four separate categories for scheduling
civil cases: administrative, expedited (“rocket
docket”), standard, and complex. The determi-
nation of a case’s category is made at the
preliminary pretrial conference. Most cases fall
into the standard category, which means a trial
will be held within one year of the preliminary
pretrial conference. A rocket docket case can be
tried within six months of the preliminary
pretrial conference, if the parties agree and the
trial will last no more than five days. Adminis-
trative and complex cases are scheduled with
special attention. By identifying the length and
complexity of a case at the preliminary pretrial
conference, federal circuit courts are able to
minimize unnecessary delays.
In all jurisdictions, preliminary pret rial
conferences have become important in civil
litigation. The court, after consulting the
parties, schedules and holds this conference
within a certain amount of time after the filing
of the complaint. At this conference, the court
attempts to resolve all the issues that can be
resolved outside of trial. These issues include
the control and scheduling of discovery, the

admissibility of evidence, the possibility of
separate trials, and orders limiting the length
of the trial presentation. To reach, or decide,
substantive issues more quickly, many federal
courts ask litigants to file any motions for
summary judgment or motions to dismiss
before the preliminary pretrial conference.
Pre-trial conferences also offer the opportunity
to discuss settling the case, allowing both parties
to save the costs of going to trial and litigating
the issue. Saving costs by settling disputes
without resorting to formal litigation is the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
410 CIVIL PROCEDURE
primary objective of ALTERNATIVE DISPUTE
RESOLUTION
.
Alternative Dispute Resolution
Alternative dispute resolution (ADR) is a generic
term that refers to a wide array of practices the
purpose of which are to manage and quickly
resolve disagreements at a lower cost than
formal civil litigation and with as little adverse
impact as possible on business and personal
relationships. Every jurisdiction provides resi-
dents with some form of ADR technique
by which they can resolve legal disputes,
but arbitration, mediation, minitrials, and
early neutral evaluations are generally the most
popular.

Arbitration is the process of referring a
dispute to an impartial intermediary chosen by
the parties who agree in advance to abide by the
arbitrator’s award that is issu ed after a hearing
at which all parties have the opportunity to be
heard. There are two different forms of
arbitration: private and judicial arbitration.
Private arbitration is the product of an agree-
ment to arb itrate drafted by the parties who
enter a relationship anticipating that disputes
will arise but who mutually desire to keep any
such disputes out of co urt. Judicial arbitration,
sometimes called court-annexed arbitration, is a
non-binding form of arbitration, which means
that any party dissatisfied with the arbitrator’s
decision may choose to go to trial rather than
accept the decision. However, most jurisdic-
tions prescribe a specific time period within
which the parties to a judicial arbitration may
elect to reject the arbitrator’s decision and go to
trial. If this time period expires before either
party has rejected the arbitrator’s decision, the
decision becomes final, binding, and just as
enforceable as a private arbitrator’s decision.
Mediation is a rapidly growing AD R tech-
nique. Sometimes referred to as conciliation,
mediation consists of assisted negotiations in
which the disputants agree to enlist the help of a
neutral intermediary, whose job it is to facilitate
a voluntary, mutually acceptable settlement. A

mediator’s primary function is to identify issues,
explore possible bases for agreement, discuss
the consequences of reaching impasse, and
encourage each party to accommodate the
interests of other parties through negotiation.
However, unlike arbitrators, mediators lack the
power to impose a decision on the parties if they
fail to reach an agreement on their own.
A
MINITRIAL is a process by which the
attorneys for the parties present a brief version
of the case to a panel, often comprised of the
clients themselves and a neutral intermediary
who chairs the process. Expert witnesses (and
less frequently, lay witnesses) may be used in
presenting the case. After the presentation, the
clients, normally top management representa-
tives who by now are more aware of the
strengths and weaknesses of their positions,
attempt to negotiate a settlement of the dispute.
If a negotiated settlement is not reached, the
parties may allow the intermediary to mediate
the dispute or render a non-binding
ADVISORY
OPINION
regarding the likely outcome of the case
were it to be tried in civil court.
Early neutral evaluation is an informal
process by which a neutral intermediary is
appointed to hear the facts and arguments

OF
COUNSEL
and the parties. After the hearing, the
intermediary provides an evaluation of the
strengths and weaknesses of the parties’ posi-
tions and the parties’ potential exposure
to liability for money damages. The parties,
counsel, and intermediary then engage in
discussions designed to assist the parties in
identifying the agreed upon facts, isolating the
issues in dispute, locating areas in which further
investigation would be useful, and devising a
plan to streamline the investigative process.
Settlement negotiations and mediation may
follow, but only if the parties desire. In some
jurisdictions, early neutral evaluation is a court-
ordered ADR technique. However, even in these
jurisdictions the parties are given the option of
hiring their own neutral intermediary or having
the court appoint one.
FURTHER READINGS
Alusie, Gloria. 2006. Legalines: Civil Procedure—Adaptable to
Ninth Edition of the Friedenthal Casebook. Eagan, MN:
West.
Anderson, Peter D. 1994. Federal Discovery Procedure under
New Rules. Concord, NH: New Hampshire Continuing
Legal Education.
Clermont, Kevin M. (compiler). 2008. Federal Rules of Civil
Procedure. Eagan, MN: West.
Leubsdorf, John. 1984. “Constitutional Civil Procedure.”

Texas Law Review 63.
Louisell, David W., et al. 2008. Pleading and Procedure: State
and Federal. 9th ed. Westbury, NY: Foundation.
Rice, Emily Gray. 1994. Summary of the Civil Justice Expense
and Delay Reduction Plan for the United States District
Court for the District of New Hampshire. Concord, NH:
New Hampshire Continuing Legal Education.
U.S. Senate. 1990. 101st Cong., 2d Sess. S. Rept. 416.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CIVIL PROCEDURE 411
Zuckerman, Adrian A.S., ed. 2000. Civil Justice in Crisis:
Comparative Perspectives of Civil Procedure. New York:
Oxford Univ. Press.
CROSS REFERENCES
Alternative Dispute Resolution; Judicial Conference of the
United States; Substantive Law; Tort Law.
CIVIL RIGHTS
Civil rights are personal liberties that belong to an
individual, owing to his or her status as a citizen
or resident of a particular country or community.
The most common legal application of the
term civil rights involves the rights guaranteed to
U.S. citizens and residents by legislation and by
the Constitution. Civil rights protected by the
Constitution include
FREEDOM OF SPEECH and
freedom from certain types of discrimination.
Not all types of discrimination are unlawful,
and most of an individual’s personal choices are
protected by the freedoms to choose personal

associates, to express himself or herself, and to
preserve personal privacy. Civil rights legislation
comes into play when the practice of personal
preferences and prejudices of an individual, a
business entity, or a government interferes with
the protected rights of others. The various civil
rights laws have made it illegal to discriminate
on the basis of race, color, religion, sex, age,
handicap, or national origin. These laws pro-
hibit discrimination that interferes with voting
rights and equality of opportunity in education,
employment, and housing.
The term
PRIVILEGES AND IMMUNITIES is related
to civil rights. Privileges and immunities en-
compass all rights of individuals that relate to
people, places, and real and
PERSONAL PROPERTY.
Privileges include all of the legal benefits of living
in the United States, such as the freedom to sell
land, draft a will, or obtain a
DIVORCE. Immuni-
ties are the protections afforded by law that
prevent the government or other people from
hindering ano ther’s enjoyment of his or her
life, such as the right to be free from illegal
searches and seizures and the freedom to
practice religion without government persecu-
tion. The Privileges and I mmunities Clause in
Article IV of the U.S. Constitution states : “The

Citizens of each State shall be entitled to all
Privileges and Immuniti es of Citizens in the
In 1956 the Dallas
Transit Company
removed all
segregated seating
signs from its buses to
comply with the
Supreme Court ruling
banning racial
segregation on public
transportation.
BETTMANN/CORBIS.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
412 CIVIL RIGHTS
several States.” The clau se is designed to
prevent each stat e fr om discriminating against
the people in other states in favor of its own
citi zens.
The Bill of Rights—the first ten amendments
to the U.S. Constitution—delineates specific
rights that are reserved for U.S. citizens and
residents. No state can remove or abridge
rights that are guaranteed by the Constitution.
In 1857 the U.S. Supreme Court held, in
DRED SCOTT V. SANDFORD, 60 U.S. (19 How.) 393,
15 L. Ed. 691, that the Constitution did not
apply to African Americans because they were
not citizens when the Constitution was written.

After the Civil War, therefore, new laws were
necessary for the purpose of extending civil
liberties to the former slaves.
In 1865 the
THIRTEENTH AMENDMENT to the
Constitution was enacted to make
SLAVERY and
other forms of
INVOLUNTARY SERVITUDE unlawful.
In addition, Congress was given the power to
enact laws that were necessary to enforce this
new amendment.
The
FOURTEENTH AMENDMENT, ratified in 1868,
provides that every individual who is born or
naturalized in the United States is a citizen and
ensures that a state may not deprive a citizen or
resident of his or her civil rights, including
DUE
PROCESS OF LAW
and EQUAL PROTECTION of the laws.
Congress is also empowered to enact laws for
the enforcement of these rights.
The Origin of Federal Civil Rights Laws
During the period immediately following the
Civil War, civil right s legislation was originally
enacted by Congress, based upon its power
under the Thirteenth and Fourteenth Amend-
ments to pass laws to enforce these rights. The
first two of these laws were based upon the Civil

Rights Act of 1866 (42 U.S.C.A. § 1982), which
had preceded the Fourteenth Amendment.
The first civil rights law guaran teed equal
rights under the law for all people who lived
within the jurisdiction of the United States. The
second guaranteed each citizen an equal right to
own, inherit, rent, purchase, and sell real
property as well as personal property. The third
original civil rights law, the
KU KLUX KLAN ACT of
1871 (17 Stat. 13), provided citizens with the
right to bring a
CIVIL ACTION for a violation of
protected rights. The fourth law made violation
of such rights a criminal offense.
Subsequent Legislation
Although these initial laws purported to guar-
antee the civil rights of all citizens, including
African Americans and other minorities, they
were effectively negated for most African
Americans in the late nineteenth century by
the passage of
JIM CROW LAWS,orBLACK CODES,in
the South. These laws made it illegal for African
Americans to use the same public facilities as
whites, restricted their travel, impeded their
ability to vote, forbade interracial
MARRIAGE, and
generally relegated them to a socially and legally
inferior position.

In the 1896 landmark case
PLESSY V.
FERGUSON, 163 U.S. 537, 16 S. Ct. 1138, 41
L.Ed. 256, the U.S. Supreme Court upheld the
constitutionality of a Jim Crow law that
required the
SEGREGATION, or separation, of the
races on railroad cars. The Court held that the
Louisiana law in question was not a violation of
the equal protection clause of the Fourteenth
Amendment as long as the facilities that were
provided for each race were “separate but
equal.” This separate-but-equal doctrine was
used to support other segregation laws applying
to public schools and public facilities.
No significant civil rights legislation was
enacted until many decades later, when the
COMMISSION ON CIVIL RIGHTS was established by
Congress in the Civil Rights Act of 1957 (42
U.S.C. § 1975) to monitor and collect facts
regarding race relations for consideration by
Congress and the president. Congress subse-
quently passed the Civil Rights Act of 1960
(42 U.S.C.A. § 1971). The statute guarantees that
qualified voters have the right to register to vote
One effect of
legislation and
judicial decisions
concerning civil rights
has been an increase

in the number of
women in what
were traditionally
male jobs.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
CIVIL RIGHTS 413
in any state and that they have the right to sue
any person who prevents them from doing so.
Voters possess this right to sue regardless of
whether the individual who prevents them is a
state official or merely an individual who is
acting as one.
The Civil Rights Act of 1964 (42 U.S.C.
§§ 2000a et seq.) is the most comprehensive
civil rights legislation in the history of the
United States. It contains provisions for parity
in the use and enjoyment of public accommo-
dations, facilities, and education, as well as
federally assisted programs and employment.
Title VII of that act, which prohibits employ-
ment discrimination based on an employee’s
race, color, religion, sex, or national origin, is
regarded as the most inclusive source of
employment rights. All employers who have at
least 15 employees, including state and local
governments and labor unions, are subject to its
provisions, but it does not apply to the federa l
government, American Indian tribes, clubs, or

religious organizations.
The Civil Rights Act of 1968 (25 U.S.C.
§ 1301 et seq.) proscribes discrimination in the
sale and rental of most U.S. housing. It also
prohibits discriminatio n in financing arrange-
ments and extends to agents, brokers, and
owners.
CIVIL RIGHTS ACTS of 1964 and 1968
establish the right of an injured party to sue and
to obtain damages from any individual who
illegally infringes with a person’s civil rights,
conspires to deprive others of their civil rights,
or abuses either government authority or public
office to accomplish such unlawful acts.
In the area of education, a significant civil
rights milestone was achieved in 1954 with the
U.S. Supreme Court decision in
BROWN V. BOARD
OF EDUCATION
, 347 U.S. 483, 74 S. Ct. 686, 98
L. Ed. 873. In Brown, the justices unanimously
rejected the separate-but-equal doctrine that it
had upheld in Plessy. They found that segregat-
ing black and white children in different public
schools violates the equal protection clause of
the Fourteenth Amendment. Segregation, the
Court held, effectively discriminates against
African-American children by promoting in
them a sense of inferiority that limits their later
opportunities. The Court also required that

school districts desegregate “with all deliberate
speed.” Integration, or desegregation, of public
schools has been a divisive issue ever since. In
particular, arguments arise over the practice of
busing students a distance to sch ool, a method
that has been used, often by court order, to
create a better racial balance.
The issue of segregation continues to cause
strife. In 2002 Senate Majority Leader
TRENT L OTT
(R-MS) suggested during comments at the one-
hundredth birthday party of retired Senator
Strom Thurmond that he was proud that the
state of Mississippi had supported Thurmond in
a presidential bid in 1948. Thurmond had run
on the so-called Dixiecrat platform that advocat-
ed segregation. The comments caused a storm of
criticism directed at Lott, and he resigned as
senate majority leader in December 2002.
In employment,
COMMON LAW permits an
employer or
LABOR UNION to discriminate for a
valid reason in its relations with employees,
unless otherwise provided by federal or state
statute. The National Labor Relations Act
of 1935 (29 U.S.C.A. § 151 et seq.) initially
restrained discrimination against employees or
job applicants who engage in union activities.
Subsequently, the act was extended through

various amendments to prohibit other forms of
discrimination, including race and
SEX DISCRIMI-
NATION
. In 1963 Congress enacted the Equal Pay
Act (29 U.S.C.A. § 206), which requires that
men and women be paid the same wages when
they do substantially similar work. The federal
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
(EEOC) is the initial forum for claims of illegal
employment discrimination. It also publishes
advisory guidelines that explain or define the
law. Many states have agencies or
HUMAN RIGHTS
commissions that are similar to the EEOC.
Affirmative Action
One result of civil rights legislation is AFFIRMA-
TIVE ACTION
, which is the effort to enforce race
and sex classifications when necessary to correct
past discriminatory patterns. The ordering of
affirmative action requires emplo yers or labor
unions to make concerted efforts to hire
minorities who traditionally have been discour-
aged from seeking employment with them. The
basis for affirmative action is that if such efforts
are not made, unlawful discrimination will be
perpetuated.
Affirmative action and other attempts to
end discrimination raise new questions. For

example, have efforts to help minorities and
women begun to infringe on the rights of
individuals outside those groups, such as white
men? Some argue that affirmative action results
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
414 CIVIL RIGHTS
in reverse discrimination, which is prejudice or
bias practiced against a particular person or
class of people in order to remedy a pattern of
past discrimination against another individual
or group of individuals.
Much of the attention on the constitutional-
ity of affirmative action programs has focused on
the federal courts of appeals. The most heated
controversy has centered on affirmative action
programs in higher education. The Fifth
CIRCUIT
COURT
of Appeals in Hopwood v. Texas, 78 F.3d
932 (5th Cir. 1996) held that a program at the
University of Texas School of Law granting
preferences to minorities in admissions decisions
was unconstitutional. This case stirred a national
debate, and several commentators noted that the
percentage of minorities who were admitted to
the school dropped markedly after the decision.
The U.S. Supreme Court allowed the decision to
stand when it denied
CERTIORARI.
In 2003 the U.S. Supreme Court clarified

some of the confusion experienced by the lower
federal courts with respect to affirmative action
programs in higher education. In Grutter v.
Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L.
Ed. 2d 304 (2003), the Court upheld a practice
by the law school at the University of Michigan
that considered race one of the factors the school
considered when admitting students. The ruling
upheld the decision in Board of
REGENTS OF THE
UNIVERSITY OF CALIFORNIA V
. BAKKE, 438 U.S. 265, 98
S. Ct. 2733, 57 L. Ed. 2d 750 (1978), a
controversial decision that had likewise allowed
schools to consider race as a factor in admis-
sions. In a companion case to Grutter, however,
the Court limited the scope of affirmative action
programs of universities when it struck down
Michigan’s undergraduate admissions policies
(Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411,
156 L. Ed. 2d 257 [2003]). Unlike the law
school’s admissions policies at Michigan, the
undergraduate admissions department added a
certain number of “points” to the application of
a racial minority. Because the university added
these points automatically without consideration
of the individual applicant, the Court held that
this policy could not pass constitutional muster.
Conservative Trends on the
Supreme Court

After President RONALD REAGAN appointed three
justices to the U.S. Supreme Court during
his two presidential terms between 1981 and
1989, the Court proceeded to render more
conservative opinions regarding civil rights.
For example, in Patterson v. McLean Credit
Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed.
2d 132 (1989), it addressed the issue of
discrimination in the private sector and held
that section 1981 of the Civil Rights Act of 1866
barred only racial discrimination in hiring and
thus not racial harassment while on the job.
Minority-rights groups were disappointed by
the ruling and saw it as part of a general trend
toward making civil rights violations more
difficult to prove. However, Justice
ANTHONY
M KENNEDY
, who wrote the Court’s opi nion,
stated, “Neither our words nor our decisions
should be interpreted as signaling one inch of
retreat from Congress’s policy to forbid dis-
crimination in the private, as well as the public,
sphere.”
Disabled Persons
Less controversial have been developments in
the area of civil rights for handicapped people.
In 1990 President
GEORGE H. W. BUSH signed
into law the Americans with Disabilities Act

(ADA) (Pub. L. No. 101-336, 104 Stat. 327
[codified in scattered sections of 42, 29, 47 U.S.
C.A.][effective 1992]), which was quickly hailed
as the most significant civil rights legislation
since the Civil Rights Act of 1964. The AD A
prohibits discrimination against disabled per-
sons in employment, public accommodations,
transportation, and
TELECOMMUNICATIONS. Re-
ferred to as the
BILL OF RIGHTS for physically
and mentally disabled citizens —who were
estimated to number 43 million at the time of
the act’s passage—the act supersedes previous
state and local laws and extends protection to
any person with a physical or mental im-
pairment that “substantially limits one or more
of the major life activities of such individual.”
ADA includes many features that are
intended to improve living conditions for those
with disabilities. For example, employers, provi-
ders of public transportation, and private
businesses with public accommodation (such as
theaters, restaurants, hotels, and banks) must
make “reasonable accommodations” for disabled
persons. Often such accommodations must
include wheelchair a ccess. Similarly, a ll commuter
and intercity trains are required to have at
least one car that is handicapped-accessible, and
telephone companies must provide relay opera-

tors for hearing-impaired individuals who use
special telecommunications devices.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CIVIL RIGHTS 415
Civil Rights Act of 1991
The Civil Rights Act of 1991 (Pub. L. No. 102-
166, 105 Stat. 1071 [codified in scattered
sections of 42, 29, 2 U.S.C.]) marked another
important step in civil rights legislation. This act
repudiated several U.S. Supreme Court deci-
sions on civil rights; granted women and
disabled person s the right to recover money
damages under Title VI I of the Civil Rights Act
of 1964; and granted congressional employees
the protection of Title VII. Among the high
court’s decisions that were overturned by the
1991 act was Patterson. Section 101 of the act
states that employees may sue for damages
experienced through racial discrimination in
hiring, promotion, dismissal, and all other
terms of employment. The changes in Title
VII employee-discrimination cases entitle plain-
tiffs to jury trials and allow them to recover
damages in addition to back pay.
One of the features of the Civil Rights Act of
1991 was the adoption of a four-year
STATUTE OF
LIMITATIONS
. Prior to the act’s passage, civil rights
lawsuits were governed by state statutes of

limitations. Because each state had its own time
limit, the system was fraught with confusion
and uncertainty. In Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 124 S. Ct. 1836, 158
L. Ed. 2d 645 (2004), the Supreme Court
concluded that the four-year statute of limita-
tions applies to any action filed under § 1981.
Discrimination against Gays
and Lesbians
Although many minority groups have made
rapid advances toward recognition of their civil
rights, one group that continues to struggle is
the hom osexual community. Similar to et hnic
and racial minorities, individuals who identify
themselves as homosexual, bisexual, or trans-
sex ual have long been subject to disparate
treatment from the majority. Although
GAY AND
LESBIAN RIGHTS
groups have made advances
toward changing p erceptions in society, success
in the courts has been only marginally
suc cessful.
Gay and lesbian rights group claimed a
victory in 1996 with the Supreme Court’s
decision in
ROMER V. EVANS, 517 U.S. 620, 116
S. Ct. 1620, 134 L. Ed. 2d 855 (1996). In that
case, a
CONSTITUTIONAL AMENDMENT in the state of

Colorado prohibited governmental units from
passing any statute, regulation, or ordinance
purporting to protect the rights of homosexuals
or bisexuals. The U.S. Supreme Court held that
the amendment violated the equal protection
clause because it explicitly denies a single group
protection under the law.
In another victory for gay and lesbians
rights, the Supreme Court ruled that a Texas
law outlawing homosexual
SODOMY was uncon-
stitutional. The decision in Lawrence v. Texas,
539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508
(2003), the Court overruled its previous deci-
sion in Bowers v. Hardwick, 478 U.S. 186, 106 S.
Ct. 2841, 92 L. Ed. 2d 140 (1986). The decision
in Lawrence was significant because the Court
recognized that states could not outlaw inti-
mate, adult consensual conduct, even between
members of the same sex. Gay rights activist s
hoped that the decision would begin a trend of
decisions favorable to gays and lesbians.
Other decisions have been less favorable,
however. In
BOY SCOUTS OF AMERICA V. DALE, 530
U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554
(2000), the Court held that the Boy Scouts
could properly exclude gay boys from their
organization based upon the principle of
freedom of association. Due in large part to

their limited success in the courts and legisla-
tures, gay and lesbian advocates have focused
much of their attention on changing societal
perceptions of homosexual, bisexuals, and other
similar minority groups.
Section 1983 Actions
Another issue that has arisen in the courts with
respect to civil rights is the limitations placed
upon
SECTION 1983 actions against governmental
officials for violations of constitutional rights.
For instance, in Board of County Commissioners
of Bryan County, Okla. v. Brown, 520 U.S. 397,
117 S. Ct. 12382, 137 L. Ed. 2d 626 (1997), the
U.S. Supreme Court clarified that a
PLAINTIFF
cannot recover in an action under section 1983
under a theory of
RESPONDEAT SUPERIOR. The
plaintiff in the case was injured when a police
officer forced her to the ground after a chase.
The officer had been hired by his great-uncle, a
county sheriff, despite the fact that he had had a
number of criminal convictions. The plaintiff
claimed that the sheriff and the county had
shown a reckless indifference toward her
constitutional rights through their hiri ng prac-
tices. The U.S. Supreme Court disagreed,
holding that a plaintiff in a Section 1983 action
must prove that a governmental unit, through

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
416 CIVIL RIGHTS
deliberate conduct, was a moving force behind
the alleged injury.
Prisoners’ Rights
Lawsuits brought by prisoners to recover
damages for alleged violations of their civil
rights have caused problems in U.S. legal
systems. Many of these cases have involved
alleged violations by prisons or prison officials
against inmates. Although many of these claims
have no valid legal basis, some do, so courts
must determine, among the thousands of cases
that are filed each year, which ones have merit.
In response to these claims , Congress enacted
the Prison
LITIGATION Reform Act of 1995, 28
U.S.C.A. § 1932 (2003), which requires prison-
ers to pay filing fees and restricts the amount of
money damages that prisoners can recover.
Prisoners have prevailed on a variety of
claims, notwithstanding limitations placed upon
their court actions. For example, in Crawford-El
v. Britton, 523 U.S. 574, 118 S. Ct. 1584, 140
L. Ed. 2d 759 (1998), the U.S. Supreme Court
reversed an appellate court decision that had
imposed a higher
BURDEN OF PERSUASION on inmate
claims. Similarly, prisoners are periodically suc-
cessful in claims that prison officials have

deprived them of constitutional rights, including
due process of law.
However, the majority of claims by inmates
fail. For instance, in Correctional Services Corp. v.
Malesko, 534 U.S. 61, 122 S. Ct. 515, 151 L. Ed.
2d 456 (2001), the U.S. Supreme Court held
that a plaintiff held in a halfway house that
was operated by a private corporation under a
contract with the federal government could not
sue the corporation. The plaintiff had sought to
bring the case under the rule in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388,
91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (called a
Bivens action), which allows for suits against
federal officials who have violated the civil rights
of plaintiffs. The Court in Malesko held that
Bivens actions do not apply to acts of govern-
ment agencies or business entities and ruled
against the plaintiff.
FURTHER READINGS
Abraham, Henry J., and Barbara A. Perry. 2003. Freedom
and the Court: Civil Rights and Liberties in the United
States. Lawrence: Univ. Press of Kansas.
Avery, Michael. 2009. We Dissent: Talking Back to the
Rehnquist Court: Eight Cases that Subverted Civil Liberties
and Civil Rights. New York: New York Univ. Press.
Hepple, Bob, and Erika M. Szyszczak, eds. 1992. Discrimi-
nation: The Limits of Law. New York: Mansell.
Lewis, Harold S. Jr., and Elizabeth J. Norman. 2001. Civil
Rights Law and Practice. St. Paul, Minn.: West.

Rutland, George H., ed. 2001. Civil Rights in America.
Huntington, N.Y.: Nova Science.
Shull, Steven H. 1999. American Civil Rights Policy from
Truman to Clinton: The Role of Presidential Leadership.
Armonk, N.Y.: M.E. Sharpe.
CROSS REFERENCES
Civil Rights Acts; Gay and Lesbian Rights; Ku Klux Klan
Act; Section 1983; Voting Rights Act of 1965; See also
primary documents in “Civil Rights” section of Appendix.
CIVIL RIGHTS ACTS
Civil Rights Acts consist of federal legislation
enacted by Congress over the course of a century
beginning with the post-Civil War era, which
implemented and extended the fundamental guar-
antees of the Constitution to all citizens of the
United States, regardless of their race, color, age, or
religion.
The Civil Rights Acts of 1866 (14 Stat. 27)
and 1870 (16 Stat. 140) were enacted to give
newly freed slaves the same rights under federal
law as those afforded to non-slaves. Such rights
included the rights to sue and be sued, the rights
to own real and
PERSONAL PROPERTY, and the
rights to testify and present evidence in
LEGAL
PROCEEDINGS
. Serious questions existed, however,
as to the constitutionality of the 1866 act and to
whether Congress actually had authority to

enact such a measure. Subsequent to the passage
of the
FOURTEENTH AMENDMENT in 1868, Congress
reenacted the act pursuant to its power under
the amendment to enforce the amendment
through appropriate legislation. The Civil
Rights Act of 1866 was, therefore, superseded
by the Civil Rights Act of 1870.
In 1875, Congress passed a third Civil
Rights Act (18 Stat. 336) in response to the
refusal of many whites who owned public
establishments, inns, railroads, and other facili-
ties to make them equally available to blacks.
The Civil Righ ts Act of 1875 prohibited racial
discrimination in such places and guaranteed
“full and equal enjoyment” of such places.
Violations of this act abounded and crimi-
nal prosecutions ensued. A number of convic-
tions were appealed to the U.S. Supreme Court,
which in 1883 declared the act unconstitutional
in the
CIVIL RIGHTS CASES (109 U.S. 3, 3 S. Ct. 18,
27 L. Ed. 835). The Court reasoned that the
social rights that the act safeguarded were not
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CIVIL RIGHTS ACTS 417