45 Years Later, the 1964 Civil Rights Act Still Stirs Debate

Kim Pearson — Sun, 05 Jul 2009 21:55:26 -0500

This past July 2 marked the 45th anniversary of the passage of the landmark Ciivil Rights Act of 1964, a measure that broke the back of Jim Crow law and laid the groundwork for a generation of legal, policy and education efforts to end discrimination. While the law's initial scope focused on discrimination on the basis of race, sex, religion and national origin, it gave impetus to subsequent laws and policies attacking bias on the basis of disability, age, veteran status, and in some states, sexual orientation and gender identity.

Forty-five years later, disagreements over the interpretation of the original law and its legacy continue to simmer.

Along with the 1965 Voting Rights Act, and the 1968 Fair Housing Act, the Civil Rights Act of 1964 represent crowning achievements for both the non-violent passive resistance movement led by Rev. Dr. Martin Luther King and the administration of Pres. Lyndon B. Johnson.In a commemorative statement from the White House, Pres. Barack Obama tried to trace the history of the 64 Civil Rights Act from the streets to the Oval Office:

The Civil Rights Act was born during Freedom Summer 1963, but its passage was only possible because generations of Americans of all backgrounds stood up, sat down, and marched in freedom's cause. Once it was signed into law, a renewed pledge was made to all Americans not to deny any man a seat at a lunch counter, not to deny any woman an opportunity in the workplace, and not to deny any child a chance to make the most of their God-given potential.

I say "tried" because the history is a bit misstated. While there were significant Civil Rights activities in 1963 that put pressure on the Kennedy administration to support what eventually became the '64 law, Freedom Summer was a voter education and registration drive that began in 1964. The efforts of the Freedom Summer activists helped speed the passage of the Voting Rights Act the next year.

However, 1963 saw a number of significant events that shocked the nation:

the desegregation campaign in Birmingham that led King to write his "Letter from Birmingham Jail. on April 14"
the murder of Mississippi NAACP chief Medgar Evers in his driveway June 12;
the March on Washington August 28,
the bombing of the 16th Baptist church in Birmingham that killed four young girls on Sept. 15
the assassination of Pres. John F. Kennedy on November 22.

JFK had been trying to negotiate the passage of a compromise civil rights bill at the time of his assassination, and his successor, Lyndon Baines Johnson, picked up the charge.(For an a eyewitness accountof the time, check out this Tavis Smiley interview with Clarence Jones, King's former attorney and speechwriter.

Forty-five years later, a debate is simmering between those who feel that the mission of the Civil Rights era has been accomplished, and those who think that mission is as important as ever, but needs to be adapted to meet contemporary needs.

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The debate has been fueled by Supreme Court's decision (.pdf) last Monday in favor of white New Haven firefighters who charged the city of New Haven with reverse discrimination for discarding a promotion exam because a disproportionate number of black and hispanic applicants failed the test. Christy Hardin Smith surveyed an array of legal analyses of the decision and concludes that it could usher a major change in the interpretation of employment law:

For my money, the Ricci case takes aim square at Griggs v. Duke Power. And the question is: how long will Title VII stand when SCOTUS was willing to do a de novo review of the facts in the Ricci case, rather then the usual practice of remanding back to the District Court for further inquiry? I sense a shift in civil rights laws if they can find a case to swing it.

Christine at Buzzflash offered a more heated assessment:

The U.S. Supreme Court's conservatives -- Justices Roberts, Scalia, Thomas and Alito, joined by swing-voter Kennedy -- have almost certainly added fuel to the white-supremacist, right-wing, entitled-male fires Monday by overturning an earlier ruling by Judge Sonya Sotomayor and others on the 2nd U.S. Circuit Court of Appeals. That means the Roberts Court is standing now with the forces that have always said, since enactment of the Civil Rights Act of 1964, that white men are just not getting a fair deal.

The National Women's Law Center expressed its "disappointment" and asked the Obama administration to lay out guidelines for fair employment tests.

Some observers cast the decision as a repudiation of the argument advanced by Supreme Court nominee Sonia Sotomayor and her colleagues on the Second Circuit. Ann Althouse quotes PowerLine's "quality snark:"

[Dissenting] Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext.

Scholar and former Civil Rights Commissioner Mary Frances Berry argues that the Court's decision simply reflects the anti-affirmative action tilt of several of the justices:

The opinion is not surprising and should have no impact on the Sotomayor nomination.

Berry has a new book, And Justice for All, about the history and future of the US Civil Rights Commission, which was established during the Eisenhower administration. Berry was appointed to the Commission during the Carter administration, and was named its chair by Pres. Clinton in 1993. She left the Commission in 2004.

Berry's historical presentation highlights the unsung role that the Commission played in the passage of Civil Rights legislation during the 1950s and 60s. According to Berry, the Commission used its subpoena power to collect evidence of discrimination, and that evidence helped bolster the case for new laws. Under Presidents Reagan and George W. Bush, she contends, the Commission has become unduly politicized. Today, she expresses the hope that Congress and Pres. Obama will reshape the Commission's mandate and operating procedures to permit it to investigate government compliance with human rights treaties in addition to civil rights laws. Berry expanded on these ideas in this interview with Tavis Smiley.

One member of Congress working to expand the provisions of the Civil Rights Act to include LGBT Americans is Jerrold Nadler (D-NY), according to this story in the New York Blade. Nadler reportedly said that it will take time to get an amendment to the floor of Congress. A recent effort by Nadler and several Congressional colleagues to ensure that same-sex marriages are counted in the 2010 Census will likely prove useful in efforts to document discrimination that might be occurring.

Meanwhile, Jillian Weiss has been counting the likely votes for ENDA, which would forbid employment discrimination against transgendered people and finds the odds pretty steep.

For Blackgirgrown, the legacy of the Civil Rights Act is a call to personal accountability:

Are you living up to the potential that our forefathers and foremothers died for?

Suzanne Reisman, Gender-Identity Expression, Discrimination and the Law
Big Tent Democrat, "Arkansas AG: 'Judicially Active' SCOTUS makes new law"

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45 Years Later, the 1964 Civil Rights Act Still Stirs Debate