This week marked the 50th anniversary of the passage of the Civil Rights Act, which prohibited discrimination in employment, public accommodations, and federally funded programs. We all should celebrate how, a century after the Civil War, moral leaders such as Martin Luther King Jr. persuaded Congress that it was wrong to treat people differently based on their skin color. “No more powerful expression of a commitment to equal opportunity can be found in the annals of modern legislation anywhere in the world,” professor Edward Erler of California State university has noted.
And yet, sadly, the country has lost sight of much of the reason the Civil Rights Act was supported by overwhelming bipartisan majorities in Congress (more than 80 percent of Republicans and two-thirds of Democrats). People all across the political spectrum believed the promise of the new law, which was to replace segregation with a color-blind society, or something as close to it as we could get. In King’s famous words, people would “not be judged by the color of their skin but by the content of their character.”
Opponents of the Civil Rights Act warned that it might serve as a vehicle for racial quotas and reverse discrimination. Senator Hubert Humphrey, the bill’s principal sponsor and later the 1968 Democratic nominee for president, flatly disputed any such suggestions. He famously promised to eat the bill if it led to racial preferences. Responding to one of his colleagues in debate on the bill, Humphrey said: “If the Senator can find in Title VII . . . 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.”
Clint Bolick, a noted constitutional lawyer, captured this debate in his book Changing Course: Civil Rights at the Crossroads:
The great liberal Justice William O. Douglas viewed the racial preferences applied by the state as any veteran of the civil-rights movement should — he considered them invalid on their face. Douglas looked for support to Justice Thurgood Marshall, the former civil-rights lawyer who had forcefully proclaimed in his argument in Brown v. Board of Education 20 years before that “the Constitution is color blind in our dedicated belief.” In a response that tragically symbolized the wholesale abandonment of traditional principles by the former champions of civil rights, Justice Marshall glibly replied to Douglas: “You guys have been practicing discrimination for years. Now it is our turn.”
In the years since then, many civil-rights advocates have continued to shift their goals away from the ideal of a color-blind society. In 2003, on the 40th anniversary of King’s famous 1963 speech on the Washington Mall, Hillary Clinton boldly asserted: “If we don’t take race as part of our character, then we are kidding ourselves.”
The new problem is that race is increasingly trumping character when it come to federal law. Federal laws written in the aftermath of the Civil Rights Act required the demonstration of intentional discrimination in matters such as hiring, housing, contracting, and admission policies before action was warranted. Now the Obama Administration claims that enforcement of civil-rights law can be based on statistical evidence that supposedly shows a “disparate impact” on certain minority groups.
The Department of Justice, for instance, has issued policies warning that “racial discrimination in school disciplines is a real problem today.” They cite studies showing that African Americans made up 15 percent of the student population but accounted for more than 35 percent of suspensions. The warning is clear: Teachers and principals may have to answer for suspensions of black students if those suspension are not in direct proportion to their numbers. But there might be another explanation: Black students might misbehave in disproportionate numbers; and also, as Gail Heriot, a member of the U.S. Civil Rights Commission, notes, black students might also be disproportionately victimized by disorderly classrooms.” One solution to the problem of unequal schools might be to make sure that families have more of the kind of school choice that the Obama Justice Department so bitterly opposes.
Yale historian Geoffrey Kabaservice lays much of the blame for the racial polarization of our politics on Republicans, who have, he alleges, alienated minority voters in areas such as immigration, voting rights, and the minimum wage. At the same time, he acknowledges that Democrats have adopted a program of color-conscious solutions that focus on affirmative action and wealth redistribution. “Republicans have never gotten on board with that last piece,” Kabaservice told Politico, “and so Democrats now almost have to define Republicans as anti-civil rights.” As Politico notes: “Democrats have seized that viewpoint, sharpening their civil-rights rhetoric against Republicans to the point where bipartisanship on the issue has all but disappeared.”
The country has never fully accepted the racial-entitlement revisionism that leftists have imposed on civil-rights issues. Americans support equal opportunity and outreach but still hold up the goal of a color-blind society. Last year, a Gallup poll found that three-quarters of whites believe that college applicants should be admitted solely based on merit, even if that results in few minorities being admitted. More interestingly, in the same poll, 59 percent of Hispanics said that applicants should be judged only on merit, while blacks were divided in their views, with 48 percent supporting the use of race as a factor in admissions and 44 percent opposing it.
There are sound reasons that so many Americans resist a regime of racial entitlements. Schools now put a race-conscious fist on the admissions scale rather than a thumb and clearly admit students based on race. They aren’t doing these students a favor. Affirmative-action students are 50 to 75 percent more likely to drop out of a science program than are regular admits. At law schools, they are two or three times more likely to fail the bar exam. But students who attend a school where their entering credentials are similar to those of their fellow students are more likely to finish and fulfill their work and life ambitions. We almost certainly now have fewer black doctors, lawyers, and business chiefs than we would have had under race-neutral admissions policies.
In Wounds That Will not Heal: Affirmative Action and Our Continuing Racial Divide, Princeton professor Russell Nieli wrote: “It is difficult to avoid the conclusion that racial-preference policies have lulled substantial segments of the black middle class into complacency and half-hearted performance in our increasingly education-focused world.” That isn’t the outcome that supporters of the Civil Rights Act of 1964 hoped for or promised. It’s time to return to the original vision of civil rights that principled liberals such as Hubert Humphrey and William O. Douglas supported.
— John Fund is national-affairs correspondent for NRO.