50 Years of Mischief: The Triumph and Trashing of the Civil Rights Acttags: Civil Rights Act, discrimination, affirmative action, inequality, Jonathan Bean
July 2 marks the 50th anniversary of the most famous Civil Rights Act in U.S history. Passed after the longest debate in congressional history, the Civil Rights Act (CRA) promised to secure justice for all regardless of race, color, creed, sex, or national origin. As I wrote in Race and Liberty: The Essential Reader, the law “was understood to mean ‘colorblindness’ by nearly every observer at the time.” The plain meaning of the act might be summed up as: “Nondiscrimination. Period.”
Supporters of the Civil Rights Act did everything in their power to make the language plain, clear and strong: one key clause stated:
“Nothing contained in this title shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of race, color, religion, sex, or national origin . . . .”
A chief sponsor of the law, Senator Hubert Humphrey (D-MN), rejected the “bugaboo” of preferences or quotas by stating “If the senator [opposing the act] can find . . . any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another, because it is not in there.”
In 1964, opponents predicted that a governmental push for racial outcomes was bound to occur, regardless of the plain language of the act. After all, the principle of a government limited by respect for individual liberty had always been flouted by those in power—including segregationist opponents of the law who now acted “shocked! shocked!” that the government might treat individuals differently based on race. This was sheer hypocrisy coming from those who defended racial discrimination by state governments.
Yet, hypocrisy aside, fifty years experience has shown that the CRA did lead, almost immediately, to the bureaucratic creation of racial categories (“check boxes”) used to further discriminatory treatment by a government seeking pre-determined outcomes in hiring, college admissions, contracting, voting, and much more. Attacking real or perceived private inequalities with governmental power, policymakers forgot that discrimination by government—however well-intentioned—is worse than private discrimination. Mindful of this distinction, those filing a brief in the Brown v. Board case (1954), stated that “segregation is unconstitutional because invoking ‘the full coercive power of government” . . . it acts as no other force can to extend inequality. . . .” Ten years later, bureaucrats rushed ahead with piecemeal social engineering, unmindful of this key distinction and in direct contradiction of the Civil Rights Act. How could the broad colorblind consensus of July 1964 dissipate so quickly?
Perhaps it was because the act seemed to augur swift change in social and economic relations—perhaps too swift in too short a time. Thus, that bright moment of multiracial harmony went up in the smoke of riot-torn cities and ever-more radical assertions by minority activists that “[their] groups were more equal than others”—so it must be, they argued, to make up for the past when “some groups (native-born whites, men) were “more equal.” Two wrongs would make it all right.
By the 1970s, the trashing of the CRA’s plain meaning surfaced from the shadows of bureaucracies as both the Republican and Democratic parties committed themselves to “affirmative discrimination,” the famous phrase coined by Nathan Glazer to describe the government’s policy to encourage—indeed, mandate in some cases—preferential treatment for “protected classes [groups]” at the expense of individuals who fell outside those classes. By 2014, advocating colorblind law left a person open to the charge of “colorblind racism”—the trendy and yet apt academic-speak that still makes politicians of all stripes hesitant to advocate “Nondiscrimination. Period.” We are a long way from July 2, 1964 when that meaning was oh-so-clear.
Fifty years is enough time to conclude: on the one hand, the Civil Rights Act was partial fulfillment of the guarantee to equal protection under the law. Dismantling the vestiges of state-sponsored discrimination was right, proper and long overdue. Ridding the nation of Jim Crow laws was a notable achievement.
On the other hand, two sections of the law limited freedom of association and economic freedom, as if reducing these forms of freedom were necessary to the goal shared by most Americans: rule of law regardless of group status. Nullifying segregation laws was consistent with the 14th amendment’s notion that individuals were guaranteed equal protection of the law. Segregation statutes had forced private actors—including nondiscriminatory whites—to carry out the group-based discrimination favored by politicians beholden to the prejudices of voters. The CRA changed the rules: private actors were now forced to practice nondiscrimination. The law prohibited individuals from discriminating in private employment or “public accommodations” (businesses open to the public, including retail stores, hotels, etc.). Even so, the measure of nondiscrimination was the individual. An establishment could turn away an individual for reasons not related to race, color, creed and refuse. An employer could refuse to hire an individual based on his or her individual merits but not group status.
In practice, we now know, bureaucrats, policymakers, politicians, and judges betrayed the individualistic principle of nondiscrimination embodied in the CRA. Soon enough, private actors (along with state universities, government agencies, and so on) were forced to practice “good” discrimination, forgetting the lesson of several centuries: every discrimination—segregation, immigration restriction, American Indian policy, and even the internment of Japanese-Americans—was touted as in the public interest and good for all, including the groups targeted (internees were made “safe” from law-breaking whites in California!). Ignoring this history, post-1964, bureaucrats, judges and American presidents marched ahead with “goals,” “quotas” and other preferential deviations from nondiscrimination. They offered many justifications: using statistics to “prove” discrimination existed without bothering with due process (so time-consuming!); or appeasing rioters who set American cities on fire during the “long hot summers” of the 1960s.
Seeking votes was another motive for politicians pledging to “do something” for groups arbitrarily defined as such after passage of the CRA. The CRA did not list any groups by name. Regardless of race, color, creed, etc. there was to be no discrimination. Period. Categories such as “Negro (later Black, African American),” Mexican and Puerto Rican (later Spanish Speaking, Spanish-surnamed, and lastly Hispanic) came after the fact. This process of “check boxing” America began in 1964-1965 when bureaucrats in the Equal Employment Opportunity Commission (established by the CRA), Department of Labor, and Small Business Administration created racial categories for use on government-issued forms. Armed with racial check boxes, bureaucrats, judges and politicians designed policies and programs treating individuals differently based on their group status—the very thing the Civil Rights Act plainly prohibited.
Dividing America into racial blocs was a reversal of the civil rights movement’s commitment to colorblind law and individualism. Frederick Douglass rejected racial labels and believed “that there is no division of races. God Almighty made but one race.” Justice John Marshall Harlan, the sole dissenter in Plessy v. Ferguson (1896), stated that legally speaking “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Colorblindness was the guiding principle of the civil rights activism that led to the Civil Rights Act of 1964. The individual, not the group, was due equal protection of the law.
The color-blind individualism of Douglass and Harlan echoed in the twentieth century. The writer Rose Wilder Lane wrote “God does not make races or classes but individual persons...” Likewise, author Zora Neal Hurston believed “the word ‘race’ is a loose classification of physical characteristics. It tells us nothing about the insides of people.”
Even the NAACP—now a champion of “group rights”—fought all classification by race. In 1961, NAACP attorney Robert Carter stated
“[C]olor designations on birth certificates, marriage licenses and the like can serve no useful purpose whatsoever. If we are prepared to accept the basic postulate of our society—that race or color is an irrelevance—then contentions that race and color statistics are of social science value become sheer sophistical rationalization.”
This NAACP viewpoint persisted beyond passage of the Civil Rights Act. In 1965, hearing that the federal government might revive racial categories on employment forms, NAACP spokesman Clarence Mitchell stated “’the minute you put race on a civil service form . . . you have opened the door to discrimination.’” Mitchell feared the use of racial categories would “put us back fifty years.” Two years later, in a brief asking the Supreme Court to overturn laws prohibiting racial intermarriage, the NAACP stated: “Classification by race based upon non-existent racial traits does not serve any valid legislative purpose. . . [and is] in contradiction to the American conception of equality.” It is tragic that today’s group-minded NAACP has forgotten what it once advocated so fiercely.
Douglass, Harlan, and the NAACP were not naïve. They knew racism existed and spent tremendous energy fighting it. Furthermore, they knew we will never live in a completely color-blind world. Individuals will always discriminate in good ways or bad. But separating individuals into racial groups is an absurd effort to make the world over. Absurd because it uses the greatest instrument of racial injustice known to man—government—to purportedly eliminate discrimination by engaging in it. Three centuries of state-sponsored discrimination at all levels taught the framers of the Civil Rights Act that there is no good discrimination, regardless of how finely slaveholders, segregationists, and putative progressives dress it up.
The Civil Rights Act was not a perfect law—no law is perfect–but it did embody two principles of the long civil rights movement: First, the individual (not the group) is the measure of justice. Secondly, nondiscrimination is mandatory for the government and worth pursuing in our private lives. If policymakers had enforced the Civil Rights Act in good faith, time might have eroded the tendency to view others as members of a group, rather than as individuals.
After fifty years, racial engineering shows no sign of abating. The new racialists believe in nondiscrimination “except” in the case of “protected groups” they created on government forms. Deviation from the plain meaning of the Civil Rights Act was necessary, they argued, to prevent riots, satisfy voters, or make implementation of the act more “efficient.” Lately, “diversity” has been added to the reasons for continued discrimination.
None of these reasons satisfy the human yearning for fair treatment at the hand of government. Generations of civil rights activists fought for that treatment. Some died for it. They would be appalled at the twisting of the Civil Rights Act to mean its opposite.
Now is the time to remind all Americans: there is no “exception” clause in the Civil Rights Act: “Nondiscrimination, except in the case of riots, elections, bureaucratic expediency, or the pursuit of ‘diversity’” does not appear in the language of the law.
To paraphrase Dr. Seuss, “the act means what it says and says what it means.”
Let us restore the Civil Rights Act to its original meaning, even if it is one state at a time.
Bean (2009). Race and Liberty in Americas: The Essential Reader University Press of Kentucky, with The Independent Institute
——. “Burn, Baby, Burn”: Small Business in the Urban Riots of the 1960s,” The Independent Review (Fall 2000)
Whalen and Whalen (1984). Longest Debate: A Legislative History of the 1964 Civil Rights Act Seven Locks Press.
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