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 . 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. 1 02- 166, 105 Stat. 1071 [codified in scattered sections of. 101st Cong., 2d Sess. S. Rept. 416. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CIVIL PROCEDURE 411 Zuckerman, Adrian A.S., ed. 20 00. Civil Justice in Crisis: Comparative Perspectives of Civil. 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. 123 82, 137 L. Ed. 2d 626 (1997),