Wednesday, July 2, 2014

Reflecting on the 50th Anniversary of the Civil Rights Act of 1964

Today marks the 50th Anniversary of the Civil Rights Act of 1964.  Either I have not been watching as closely or it has not gotten the same attention that the 60th Anniversary of Brown v. Board of Education got earlier this year.  Coming right before the July 4th holiday probably does not help much.  In any event, in honor the holiday, I offer  this from the introduction of my chapter in a forthcoming book on the Civil Rights Act of 1964 edited by Kristi Bowman:

The Civil Rights Act of 1964 has had the largest impact on racial equality of any legislation passed. Although the Supreme Court had declared school segregation unconstitutional a decade earlier in Brown v. Board of Education, no significant school desegregation occurred prior to the Act. In fact, a mere one percent of African American children attended integrated schools in the South in 1964. With the passage of the Civil Rights Act of 1964, things changed quickly. School desegregation began occurring at a rapid pace, and those titles of the Act aimed at employment and public accommodations, likewise, began to fundamentally change opportunity for African Americans and other minorities across the country.

The Civil Rights Act included eleven different titles, each aimed at discrimination in some different context or granting the federal government authority to address it. Title VI of the Civil Rights Act was one of the most sweeping titles. It prohibits racial discrimination in any program receiving federal funds. As federal money began to flow more widely in education during the 1960s, Title VI’s prohibitions quickly applied to all of the nation’s public schools, and eventually applied to a substantial number of private schools as well. It, likewise, extended its reach beyond education to various other public and private industries, such as transportation, health, and environment, that receive federal funds. The strategy was simple: the further the federal government spread its money the greater its leverage to address racial equity and discrimination in all facets of public life.

For nearly four decades, Title VI did more than just root out obvious invidious discrimination; it helped promote racially equitable results. Under Title VI, complainants could pursue administrative and litigation remedies for racial inequality, even when they could not demonstrate the existence of malevolent design by some particular actor. It was enough that a federal funding recipient had enacted a policy or engaged in a practice that produced racially disparate results that could not be justified by the practical necessity of achieving some important goal. Complainants relied on agency regulations that prohibit disparate impact. Agencies had enacted those regulations pursuant to their authority under section 602 of the Civil Rights Act, which provides that agencies shall enforce section 601’s prohibition on discrimination and guarantee of equal access by enacting regulations.

In 2002, the Supreme Court, in Alexander v. Sandoval, reversed course. It brought an end to private individuals’ ability to use litigation as means to challenge racial inequality in federally funded programs, save those instances when they could demonstrate intentional discrimination. The Court held, contrary to prior case law, that violations of disparate impact regulations do not give rise to a private cause of action. The Court did not question agencies' authority to enforce their regulations administratively, but for private individuals seeking recourse in court, Title VI became largely redundant. It provided no more protection than the Fourteenth Amendment, to which state actors were already subject. The only meaningful vestige was litigants’ ability to continue to sue private entities that received federal funds and engaged in intentional discrimination.

Such a monumental loss demands a response, particularly in the 50th anniversary year of the Civil Rights Act. Three major and distinct responses are possible: administrative action, litigation to evolve new doctrine, and legislative reform. Unfortunately, the most viable options may provide incomplete and indefinite remedies, while the least viable options may provide the most effective remedies. Given the limitation of each strategy, civil rights advocates must continue to press on all three fronts if Title VI of the Civil Rights Act of 1964 is ever to regain a modicum of its prior glory.

The rest of the story, which digs a little deeper into the intersection between education and the Act, will hopefully be available in Professor Bowman's editted work later this year or early next year.

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