SSRN-id2589183

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Civil Rights Policy Mark Tushnet

Introduction The American understanding of the term civil rights has changed significantly from the founding era to the present. Initially civil rights identified one of three sets of important rights, the others being political and social. Today the term can be used in connection with almost any important right. The right to vote, a quintessential political right in an earlier time, is now a civil right. So is the right to have access to commercial establishments on the same terms as everyone else, which in the nineteenth century would have been regarded as a social right. The idea that there are distinctive social rights has left a residue in a sense that government regulations of private domains such as the home or a business place, in the service of public goals such as nondiscrimination, sometimes might violate rights. Earlier, though, the right in question would have been the social right to associate with whomever one pleases; today the right is the individual and civil right to privacy.

The expansion of the range of substantive interests covered by the term civil rights has been accompanied by an increasing emphasis on the connection between equality and civil rights. From the late nineteenth century through the first half of the twentieth, the term referred to racial equality with respect to whatever fit into the category, whether property rights, the right to vote, or social rights. Starting roughly in the middle of the twentieth century, civil rights began to be connected to other categories, such as gender, religion, sexual orientation, and by the twenty-first century quite a bit more. It became possible to describe a denial of access to some right or opportunity on the basis of any of these categories as a denial of civil rights.

Three Types of Rights: The Mid-Nineteenth Century The core civil rights in the early period were the right to own property and the right to enter into contracts with willing partners. Those rights and others ancillary to them were rooted in a Hobbesean account of the relationships among individuals and the attendant need for a government to protect each against the depredations of others. The rights to own property and to enter into contracts were civil rights because they were precisely what people created civil society to protect. Not incidentally, the early idea of civil rights implied that slavery was a massive violation of civil rights, because slaves by definition were people who could not own property for themselves or enter into contracts. So, after the Civil War, Congress enacted the Civil Rights Act of 1866, which guaranteed to every person the same right ... to make and enforce contracts, to sue, be parties,


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give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.... Several features of this first federal statute called a civil rights act stand out. It encompassed not only the rights to own property and make contracts, but rights that were necessary to enforce those rights the rights to sue and testify. Courts were institutions located somewhere between the civil society of contract and property and the political world of legislation and voting. But, at least once courts were created as the institutions where contract and property rights were to be enforced, the rights to property and contract would be empty absent a persons ability to sue to enforce them and to testify in support of his or her own claim. Civil rights thus could not be understood simply as rights accruing to people simply because of their membership in civil society, without regard to the institutions used to govern that society. Political rights, in contrast, could only be understood in the context of specific institutions. Nothing in the Hobbesean account of the creation of government, or in its Lockean modification (which placed limits Hobbes had not on governments power), prescribed specific institutions for organizing a government. Political rights were exactly those rights that everyone would have with respect to the specific governing institutions a society had. So, for example, the right to vote was a political right in the United States, as was the right to serve on juries. But nothing required that a government be organized so that there were juries in the first place, nor given the obvious presence of monarchies throughout the eighteenth and nineteenth century world was there a requirement that governments be selected through voting. As a consequence, denying a person the right to vote in polities where the chief executive was elected denied a political right but not a civil right. The sharp distinction between civil rights and political rights rapidly faded after Reconstruction, though, perhaps because it seemed to do no serious work after the Fifteenth Amendment (1870) guaranteed that the right to vote could not be denied on the basis of race. Without relying on the distinction, for example, the Supreme Court held in 1880 that a West Virginia statute barring African Americans from serving on juries violated the Fourteenth Amendments guaranty against denial of the equal protection of the laws. The decision did not say anything about the right to serve on juries as a political rather than a civil right (Strauder v. West Virginia, 1880). Similarly, seventy-five years later when Congress developed a modest scheme for addressing denials of the right to vote, it placed that scheme in a statute called the Civil Rights Act of 1957.

Like the concept of social rights, though, so the concept of political rights has left a modest residue. By the late twentieth century it was common to phrase claims about denials of the right to vote to women, young people, residents of the District of Columbia as complaints about


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denials of civil rights. Yet, when Congress enacted statutes focusing on the right to vote, it labeled them Voting Rights Acts, in 1965 and thereafter, rather than calling them Civil Rights Acts.

The Civil Rights Act of 1866 has another important feature. At first glance, civil rights such as the right to own property were non-comparative. That is, one could tell that a person was being denied a right to own property without knowing whether anyone else had that right. Though civil rights were conceptually non-comparative, they were not absolute. For example, state law might require that property transfers be recorded in a state registry, with a fee charged for registration. In the nineteenth century restrictions on property and contract rights were permitted in the service of what were known as the states police powers, to ensure public health, safety and (more controversially) morals. Suppose, though, that the state adopted a police power regulation like the registration fee but required that one group African Americans, specifically had to pay a fee twice as large as that charged whites. By saying that the rights it guaranteed were to be available to everyone to the extent that they were available to white men, the Civil Rights Act of 1866 showed that the concept of civil rights had a comparative or equality-based component, ruling out the use of race as a justification for limiting civil rights.

Over the succeeding century, the equality component of the concept of civil rights replaced the substantive component of the concept: a persons civil rights would be violated whenever he or she was wrongly denied access to something to which others had access (public assistance, a table at a restaurant, a home). Much of the development of civil rights policy turned on identifying what might be the proper basis of discrimination. Today discrimination on the basis of race is the core example of wrongful discrimination, but it took nearly a century for the nation to arrive at that understanding.

In the late nineteenth century conceptual universe, groups of people could be treated differently, even with respect to their civil rights, if the distinction served the states police power goals. The registration fee for transferring urban property might be larger than that for transferring farm property, for example, if the government had some reason for believing that the cost of operating a registration system was higher in cities than elsewhere. The police power justifications for differential treatment might be enough in the conceptual universe of the time to support distinctions between the races with respect to civil and other rights, unless such distinctions were specifically prohibited by statute or by the Constitution.

Limiting the Domain of Civil Rights: The Late Nineteenth Century That the notion of civil rights and its accompanying idea of equality

did not rule out significant features of a system of racial subordination was demonstrated in two major Supreme Court cases. The Civil Rights Cases


(1883) turned on the distinction between civil rights and social rights, and Plessy v. Ferguson (1896) invoked the states police powers to justify racial segregation.

The Civil Rights Act of 1875 was the last expression of congressional support for African American rights before the Compromise of 1876 restored white control of governments throughout the South and the last civil rights act until 1957. The 1875 statute prohibited racial discrimination in hotels, theaters, and public transportation. Customers of course had contractual relations with such businesses, but business owners could refuse to enter into a contract with an African American because of the customers race without violating the customers civil right to contract. The reason is that the right to contract was simply a right to make contracts with others who wanted to do so. Laws forcing people to make contracts were understood to operate in the realm of social rights, an understanding captured in the thought that such laws forced the reluctant partner to associate with someone he or she did not want to; the right to choose ones associates was a quintessential social right.

In many states, hotels, railroads, and many (though not all) of the businesses covered by the 1875 Act were common carriers. Businesses in that legal category were under a state-law duty to serve all comers without discrimination, and many states did make racial discrimination by common carriers unlawful. But those were rules adopted by state legislatures and courts. The 1875 Civil Rights Act sought to extend the non-discrimination rule throughout the nation, even in states that did not place hotels and theaters in the common carrier category or that allowed common carriers to discriminate on the basis of race. This meant that the Act regulated private parties actions that were lawful under state law. That was the reason the Supreme Court gave for holding the 1875 Civil Rights Act unconstitutional in the Civil Rights Cases. Congresss power to enact the statute derived from the Fourteenth Amendment, whose first words were No state shall.... This language, according to the Supreme Court, meant that the Amendment gave Congress no power to regulate private activity directly.1 Because racial discrimination by private businesses did not violate African Americans civil right to enter into contracts again, a right that extended only to contracts with willing partners Congress lacked the power to prohibit it.2

1 The decision is the origin of a quite complex body of contemporary constitutional doctrine known as the state action doctrine. 2 In 1968 the Supreme Court construed the 1866 Civil Rights Act to make it unlawful for someone to refuse to sell property to an African American because of the potential buyers race, and held that the Thirteenth Amendments prohibition of slavery gave Congress the power to do so (Jones v. Alfred H. Mayer Co., 1968). The Court also held that the Act prohibited racial discrimination with respect to making contracts and with

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Plessy v. Ferguson (1896) upheld the constitutionality of a Louisiana statute requiring racial segregation of passengers on railroads in the state. Such a statute might seem an obvious violation of the civil right to enter into contracts: the railroads were willing to sell seats in unsegregated cars to African Americans who were willing to buy them.

But, because all civil rights were subject to reasonable regulations under the states police power, the question was whether the regulatory ban was reasonable. The Supreme Court held that it was. It first observed that the statute made it impossible for both whites and African Americans to purchase seats in unsegregated cars. In that sense it treated both races equally. Then, the Court said, it was within the states police powers to seek to maintain social order by segregating the races. Here the thought was not that the state could preserve a segregated society for its own sake, but rather than it was reasonable for the Louisiana legislature to think that there would more turmoil and fighting on unsegregated railroad cars than on segregated ones. As long as the cars set aside for African Americans were equal in quality to those used by whites, segregation separate but equal was a constitutionally permissible exercise of the states police powers.

Congresss civil rights initiatives dating from Reconstruction were thwarted by the Supreme Court. So were the executives. After the Civil War the Department of Justice was reorganized and, to some degree, professionalized. Its Republican leaders brought criminal charges against Ku Klux Klan and similar white terrorists whose depredations were often triggered by African American efforts to exercise their new civil and voting rights. In a series of decisions the Supreme Court construed the federal statutes criminalizing civil rights violations narrowly, and held some prosecutions improper because the acts they made criminal were outside the scope of Congresss regulatory powers.

By the end of the nineteenth century, the civil rights impulses let loose in Reconstruction were exhausted. A fallow period followed, characterized by a leading historian as the nadir of African American rights. President Woodrow Wilson instituted segregation in federal facilities. Filibusters and lack of political will blocked the enactment of bills aimed at strengthening the national governments ability to enforce civil rights. National civil rights policy with respect to racial equality could be described as malign neglect.

Expanding the Domain of Civil Rights

respect to contractual terms, but not discrimination occurring after the contract was created (Runyon v. McCrary, 1976; Patterson v. McLean Credit Union, 1989).


The womens movement of the nineteenth and early twentieth century placed gender equality on the national policy agenda. Early efforts to guarantee married women the right to own property in their own names, and to enter contracts on their own, resonated with the traditional idea of civil rights. The woman suffrage movement took advantage of the blurring of the distinction between civil and political rights. The effect was to tie even more closely the concept of civil rights to ideas about civic equality.

African American migration to the North during and after the First World War, coupled with some aspects of Northern Progressivism, returned African American civil rights, a concept by then expanded to refer to equality in nearly all aspects of public life, to the national policy agenda. Civil society organizations such as the National Association for the Advancement of Colored People, founded in 1909, and the National Urban League, founded in 1910, advocated for anti-lynching legislation on the national level and fair treatment in housing and employment on the local level. The NAACP took the lead in developing legal challenges to the prevailing system of racial segregation, and achieved some important victories in the 1910s and then, more substantially, in the 1930s and 1940s. Eventually the organization developed a legal strategy aimed at dismantling the Southern system of pervasive racial segregation, which led to the U.S. Supreme Courts decision invalidating school segregation by law (Brown v. Board of Education, 1954), which the Court quickly extended to most other public manifestations of racial segregation.

National legislative policy remained stalled, largely because of Franklin Roosevelts need to retain support from Southern segregationists for his New Deal programs. Roosevelt did not support anti-lynching legislation, and many important New Deal programs implicitly excluded African Americans from their coverage the national minimum wage law, for example, excluded agricultural workers and household workers, two job categories heavily populated by African Americans. African Americans in the North, though, benefited from New Deal programs, including the new national labor laws when the Congress of Industrial Organizations welcomed African American workers into industry-wide unions, in contrast to the racially exclusionary policies of many craft unions associated with the American Federation of Labor.

The Roosevelt administration sometimes used its executive authority to define a new civil rights agenda. Responding to a threatened march on Washington in 1941 to protest employment discrimination in war industries, Roosevelt created a Fair Employment Practices Commission. The commission had no enforcement power, but its investigations did sometimes lead employers to change their practices to avoid further public pressure. Facing sustained opposition, the FEPC was dismantled in 1946. The Department of Justice created a civil liberties unit in the late 1930s, soon renamed the Civil Rights Section, in part to avoid confusion between it and the American Civil Liberties Union, but also to signal a focus on

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racial equality at a time when the term civil liberties had become tightly associated with fundamental substantive constitutional guarantees such as free expression. The evolution of the term civil rights into a concept dealing with equality continued.

After 1945, civil rights retained a place on the national policy agenda. The racist policies of Nazi Germany discredited racism in the United States. Gentlemens Agreement, a film exposing anti-Semitism in the United States, won several Oscars in 1947, and, probably more important, Jackie Robinson broke to color line in major league baseball in the same year. President Harry Truman ordered the armed forces desegregated, a process that occurred more smoothly than many expected. He appointed a Committee on Civil Rights, whose 1947 report played an important in shaping public understanding. The report in turn was regularly cited by the Department of Justice in its briefs dealing with challenges to racial segregation, frequently in conjunction with the observation that racial segregation was an impediment to advancing U.S. foreign policy interests against challenges from the Soviet Union. The Democratic Party platform for the 1948 elections contained a strong civil rights plank, inserted in response to a fiery speech by Minneapolis mayor Hubert Humphrey. Some northern states established commissions with power to enforce laws against racial discrimination in employment and housing.

Congress remained an obstacle because of the strategic position long-term Southern legislators held in both the House of Representatives and the Senate. In 1957 the Senates majority leader, Texan Lyndon Johnson, maneuvered the first civil rights act since 1875 through the Senate, in part because Johnson needed to burnish his credentials as a politician sensitive to the concerns of the nation as a whole, for his planned presidential candidacy in 1960. The 1957 Civil Rights Act was quite weak. It created a Commission on Civil Rights, with powers to investigate and study racial discrimination but no enforcement power. Its most long-term accomplishment was probably a seemingly bureaucratic one, the conversion of the Civil Rights Section into a full-fledged division in the Department of Justice, headed by an assistant attorney general. That action made civil rights one of the Departments major commitments; the Divisions head was no longer a civil servant but a presidential appointee with significant political credentials and attendant clout in policy debates.3

Impelled by the mid-century Civil Rights Movements demonstrations and the public attention they garnered, national policy makers finally gave civil rights an important place on the policy agenda.

3 Responding to reports from the Commission on Civil Rights, the Civil Rights Act of 1960 created a complex and rarely used system that allowed federal voting rights monitors to be sent to areas where the right to vote had been denied on the basis of race. Like the 1957 Act, the 1960 Act was not a major change in national civil rights policy.


The courts role was small, relative to that of Congress and the presidency, but important. The Supreme Court held firm to its commitment to racial desegregation in Southern education. Enforcement of Browns mandate lagged, particularly in the deep South, because of persisting racism, most strongly expressed in policies of massive resistance, which included state support for private schools opened for white parents who did not want to send their children to integrated schools and, in the extreme, closing public schools ordered to desegregate. And, as civil rights activists sought to integrate Northern schools the Court faced a backlash and ultimately retreated from the project of achieving real racial integration in schools in the North and then the South as well. The Court did develop the law of freedom of expression in ways that insulated from suppression the street protests that were so important to the Civil Rights Movements political success.

The legislative breakthrough came when, with strong support from President Johnson, the Senate broke a filibuster against the Civil Rights Act of 1964. That statute was far more comprehensive than any prior civil rights act. Some provisions expanded the national role in enforcing voting rights and desegregation, by then traditional aspects of civil rights policy. Other sections inscribed existing social and cultural ideas about civil rights into national law for the first time. Title II prohibited discrimination in restaurants, hotels, and other privately-owner public accommodations, and Title VII prohibited discrimination in employment, creating as well the Equal Employment Opportunities Commission (EEOC) with authority to determine whether employers had in fact discriminated on the basis of race or other prohibited factors. These provisions nationalized ideas about civil rights that had taken root in some state and local antidiscrimination laws.

Title VI of the Act proved to be more effective than judicial orders in accelerating the pace of desegregation in the deep South. Title VI prohibited discrimination by recipients of federal funds. In 1965 Congress enacted the first major statute directing federal funds to elementary and high schools. The Department of Health, Education, and Welfare developed to determine whether recipients were discriminating, and used compliance with those guidelines and associated timetables and targets as the basis for lists of schools, mostly in the South, that risked loss of federal funds. Schools ended up retaining their funding because the threat was enough to prod many school districts into complying with Brown v. Board of Education after nearly a decade of resistance.4 Late Twentieth Century Understandings

4 Later Title VI, in conjunction with other civil rights statutes, was used to push high schools and colleges to adopt and enforce policies against bullying and sexual harassment.

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The Civil Rights Act of 1964 and other statutes adopted in the late twentieth century showed that the idea of civil rights had expanded along two dimensions. First, it had become a term referring to equality with respect to a much wider range of interests than the nineteenth century term had. As a purely constitutional matter Congress relied on its power to regulate interstate commerce as the basis for the public accommodations provision of the 1964, but that provision dealt with what the courts in the nineteenth century would have described as a social right. The practical disappearance of the category of social rights was confirmed in the Civil Rights Act of 1968, whose central provision was more commonly described as the Fair Housing Act. The Acts ban on discrimination in selling or renting housing contained the Mrs. Murphy exemption, denying the statutes application to housing with four or fewer rental units, one of which is occupied by the owner (Mrs. Murphy). The rationale for the exemption was that the owner-occupier had a right to be free from coerced association. Here one civil right was countered with another, whereas in a prior era the right to obtain housing without discrimination would have been described as a social right not within the scope of civil rights legislation.

The second dimension along with the meaning of civil rights expanded involved identifying those personal characteristics that made unequal treatment especially unfair.5 Prior to the middle of the century civil rights were rights to equality with respect to race. The Civil Rights Act of 1964 prohibited discrimination not only on the basis of race, but on the basis of religion, national origin, and sex as well. As early as 1938 a Supreme Court opinion noted the possibility of giving special attention to laws that adversely affected discrete and insular minorities (United States v. Carolene Products, 1938); African Americans were clearly the primary referent, but the formulation indicated an awareness that other groups might have rights against discrimination as well. The experience of religious persecution of Jews in Nazi Germany, and of Jehovahs Witnesses in the early 1940s in the United States, cemented religion into the list of what the Court came to call suspect classifications. The organized womens movement had been pressing for an expansion of womens rights in employment for decades, but it had been thwarted by opposition from labor unions and from defenders of what were said to be protective labor laws restricting womens job opportunities. The provision of the 1964 Act extending employment nondiscrimination rights to women was inserted through an amendment proposed by Representative Howard Smith of Virginia, a long-time supporter of such legislation (and opponent of

5 Civil rights policy never treated all forms of unequal treatment as unfair, because many, perhaps most, statutes, treat some people differently from others, but often for good reasons that eliminate the unfairness from the unequal treatment.


unions), who thought that its inclusion might weaken labor support for the Act.

The ban on employment discrimination based on religion led to the introduction of a new component in civil rights policy. Responding to questions about whether an employer discriminated on the basis of religion by firing or refusing to hire someone who, for religious reasons, could not work on Saturday or Sunday as the employer would ordinarily require, in 1966 the EEOC issued guidelines stating that employers had to accommodate such employees by making reasonable adjustments to their ordinary practices. On the motion of Senator Jennings Randolph of West Virginia, a Seventh Day Baptist, Congress amended Title VII in 1972 to include an explicit requirement of reasonable accommodation.

The categories of special concern continued to expand. The Americans With Disabilities Act (1990) added another, and included a requirement of reasonable accommodation for persons with disabilities. In the twenty first century advocates of rights for gays and lesbians, and then transgender and bisexual individuals, framed their argument in the language of civil rights. Civil rights policy moved in their direction, on the national level with the elimination of a ban on military service by those who openly identified as gay or lesbian, and on the local level with the adoption in some states and cities of statutes and ordinances prohibiting discrimination on the basis of sexual orientation.

Twenty-First Century Issues

Along with an expansion of the domain of equality, notions of how civil rights could be denied changed. For several generations after Reconstruction, to say that someones civil rights had been denied meant that (1) some government action, whether by a legislature through enacting statutes or by executive officials in administering them, (2) expressly made the fact that the person whose rights were denied was African American the basis for the action. The first aspect was the state action rule, endorsed by the Supreme Court in the Civil Rights Cases (1883). It has remained embedded in the constitutional law of civil rights, though for a period in the 1960s it seemed as if the Supreme Court would abandon it. But, as the constitutional law of civil rights was supplemented by civil rights statutes, the importance of the state action doctrine receded. Targets of discrimination could rely on civil rights statutes as the basis for their rights. In addition, the cultural understanding of civil rights often elided the strictly legal requirement of state action, and by the twenty-first century it was not uncommon to find popular discussions of specific examples of discrimination to call the discrimination a violation of civil rights even when no statute made unlawful the discriminatory action taken by a private individual or corporation. The state action doctrine remained legally

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significant, though, when as for example in connection with gays and lesbians in many locations no statute made discrimination unlawful.

The second aspect of the nineteenth century and early twentieth century idea of discrimination was that it occurred when someone intentionally targeted African Americans for discrimination. The clearest early examples were statutes that expressly authorized different treatment of whites and African Americans. The Supreme Court readily found such statutes unconstitutional under the Fourteenth and (when they involved voting) Fifteenth Amendments. But, as the nineteenth century Court saw matters, statutes restricting the rights of both whites and African Americans were not discriminatory. It was on that basis that the Court upheld laws prohibiting racial intermarriage (Pace v. Alabama, 1883) and requiring racial segregation on railroads (Plessy v. Ferguson, 1896), which was taken to endorse the entire Southern system of segregation.6

The Court also held unconstitutional some statutes that did not, in express terms, single out African Americans for disadvantageous treatment. The clearest expression came in Guinn v. United States (1915), which held unconstitutional Oklahomas grandfather clause. That clause required prospective voters to pass a literacy test, but exempted from that requirement any lineal descendant of someone eligible to vote on January 1, 1866. The practical effect was to exempt native white voters from the literacy requirement even though the statute made no mention of race at all. The doctrine emerging from this and related cases held that discrimination occurred when a legislature intentionally singled out one race for treatment different from that given another. By the end of the twentieth century, this rule, which came to be described as a ban on disparate treatment, was largely uncontroversial.

Differential treatment could occur in other ways, though, and policy makers struggled over whether they should treat what came to be known as disparate impact as a violation of equality. Disparate impact occurs when a statute that makes no reference to race has the effect of imposing greater disadvantages on African Americans than on whites (or giving whites more advantages than African Americans). The theory underlying disparate impact doctrine is that when legislatures enact laws that do not refer to race, religion, or disability, they may not intend to impose disadvantages but they are insufficiently attentive to the impact of general statutes on racial minorities, religious believers, or people with disabilities. Disparate treatment results from an active intention to harm, disparate impact from this sort of selective inattention. An example common in mid-twentieth century discussions of racially disparate impact was a literacy test as a voting qualification, when it was widely known that, because of educational and broader social advantages, whites would pass such tests at

6 As noted earlier, these cases also were thought to implicate social rather than civil rights.


a higher rate than African Americans, yet there was no strong reason to think that the literacy test was adopted for the purpose of disfranchising African Americans. As the domain of equality expanded, another common example became height and weight requirements for public safety officers, said to be justified by the physical demands of the job; more men than women satisfied such requirements, which thus had an adverse disparate impact on women.

The Supreme Court held in several contexts that while intentional discrimination or disparate treatment could violate the Constitution, disparate impact in itself did not.7 Its treatment of Title VII of the 1964 Civil Rights Act was different. In an early decision interpreting the statute, the Court endorsed the view advanced by the executive branch and held that an employer violated the statutes requirement of nondiscrimination in employment by requiring that job applicants pass a literacy test, without having shown that the literacy test helped the employer determine whether the applicant actually could perform the jobs requirements (Griggs v. Duke Power Co., 1971). Although the facts of the case might have allowed the Court to limit the holdings reach, the idea that disparate impact violated Title VII spread widely through the law. When a more conservative Court attempted to scale back the reach of the disparate impact doctrine, Congress rebuked the Court and expressly endorsed the doctrine in the tellingly named Civil Rights Restoration Act of 1991. In 2015, [though,] the Supreme Court held that the Fair Housing Act [prohibited/did not prohibit] housing policies with a disparate racial impact.

Disparate impact as a concern of civil rights policy began as a complement to disparate treatment. The two concerns gradually became a source of tension, though. The reason was that the easiest way to avoid the selective insensitivity underlying disparate impact doctrine was to become aware of race as a factor in decision-making, that is, to take race into account. The most dramatic examples were explicit racial quotas designed to ensure proportional or even adequate racial representation in job categories. Such quotas simultaneously eliminated disparate impact and embodied disparate treatment. Closely related was the situation in Ricci v. DeStefano (2009). There the city of New Haven administered a professionally validated test to applicants for promotion in its firefighting service and then, observing that the test had a disparate racial impact, canceled the promotions that would have resulted from the test, with the effect of denying a promotion to a white firefighter who had scored high on the test. Suggesting that the firefighter had been subjected to disparate treatment because of a desire to avoid disparate impact, Justice Antonin Scalia, who agreed with the result, described the case as foreshadowing the

7 It did hold that disparate impact was evidence relevant to determining whether the decision makers had intended to impose disadvantages, though it could not be conclusive in itself.

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evil day when the Court would have to confront directly the tension between disparate impact and disparate treatment.

Two other civil rights policies were related to the idea of disparate impact. Accommodation mandates became controversial; affirmative action programs were controversial from their inception.

Accommodations became a civil rights issue when legislatures and employers adopted policies that were not sensitive to religious beliefs, for example in ignoring the difficulties faced by Sabbatarians with work schedules that did not accommodate their beliefs. From 1963 to 1991 the Supreme Court held that the Constitutions guarantee of the free exercise of religion sometimes required legislatures to exempt religious believers from their regulatory schemes, or accommodate them, when complying with the regulation would violate the believers religious conscience. This doctrine was controversial among legal scholars in part because of its potential reach in a religiously pluralist nation, and in part because, under some theories of the Constitutions prohibition of establishments of religion, religious accommodations, which gave religious believers an exemption simply because they were religious, were quite close to an establishment of religion. Yet, when the Supreme Court repudiated the doctrine that religious accommodations were constitutionally required, Congress promptly responded with the Religious Freedom Restoration Act (1993), which converted the prior constitutional doctrine into a statutory requirement of reasonable accommodation.8

The Religious Freedom Restoration Act was adopted by massive majorities in both congressional chambers. The Americans With Disabilities Act (1991) also included an accommodation mandate, responding to concerns that many public facilities were inaccessible to people with disabilities. It seemed that accommodation had become a civil right. Over the next twenty years, though, the consensus favoring accommodations weakened. Merchants were often willing to redesign their stores to make the aisles wide enough for wheelchairs to pass easily, but other accommodations seemed to require more fundamental changes in the ways businesses operated. The Supreme Court responded by construing the Americans With Disabilities Act rather narrowly, to which Congress responded as it had to the Courts narrowing of the religious accommodation doctrine, with a statute, the Americans With Disabilities Act Amendments (2008), that insisted on broad interpretation. Agreement on the desirability of accommodating people with disabilities continued to be strong.

8 The Court held the statute unconstitutional to the extent that it sought to require that state laws incorporate the accommodation mandate (City of Boerne v. Flores, 1996), but it remained applicable to federal legislation.


Not so with religious accommodations. An important moment in the history of accommodation occurred in 2013 when the Supreme Court dealt with the impact of the Religious Freedom Restoration Act on the Affordable Care Act (Obamacare). The Affordable Care Act required that employer-provided health plans make a wide range of contraceptive services to their employees. Burwell v. Hobby Lobby (2013) held that the Religious Freedom Restoration Act required that for-profit businesses whose primary owners voiced religious objections to participating in the support of some forms of contraception be exempted from the Affordable Care Acts requirement. At roughly the same time, controversies bubbled up around the country about the application of state antidiscrimination statutes to decisions by business owners who had religious objections to providing their services either to gays and lesbians generally, or, somewhat more narrowly, in connection with gay and lesbian marriage celebrations. These cases put pressure on the prior consensus that requiring accommodation of religious beliefs was something a decent liberal society should obviously do.

Affirmative action practices developed almost contemporaneously with the rise of the idea that accommodations were a civil right. President John F. Kennedys administration adopted the first affirmative action program in 1961, requiring that federal contractors take affirmative action to ensure that their hiring programs were nondiscriminatory. After some expansion under President Johnson, affirmative action got a large boost through President Richard Nixons Philadelphia Plan of 1969, which included a timetable for reaching specific hiring goals. In legal form those goals were aspirational, but they were easily and fairly characterized as close to being quotas. And, as quotas, they came with substantial legal and historical baggage. Legally enforceable quotas used race as a criterion for determining who would be hire (or, in educational contexts, who would be admitted). In doctrinal terms, they were reasonably clear examples of disparate treatment, and because they involved disparate treatment on the basis of race they were quite vulnerable legally. Historically, the idea of quotas, especially in higher education, evoked recollections, particularly among Jews, of exclusionary quotas that had limited Jewish access to elite institutions of higher education until at least the middle of the twentieth century.

Sometimes affirmative action programs were justified as efforts to overcome or remedy the persistent effects of past discrimination, sometimes as a response to selective inattention, and sometimes as a form of restorative justice responding to past discrimination. The rhetoric opposing affirmative action centered on the proposition that, whatever had happened in the past, the effect of affirmative action programs was to reduce the opportunities for higher education, for government contracts, and so on through the list of areas in which affirmative action programs were adopted available to individuals who themselves had not (or at least had not been shown to have) participated in any past discriminatory acts.

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The Supreme Court allowed lower courts to require that employers and unions adopt affirmative action programs under quite restricted circumstances, and held more broadly that Title VII did not prohibit voluntary affirmative action programs in employment (United Steelworkers v. Weber, 1979). But it attempted to place real constitutional limits on affirmative action. In 1976 a sharply divided Court invalidated a quota system for admission to one of the medical schools of the University of California (Regents of the University of California v. Bakke, 1976). The majority held that affirmative action could not be justified as a form of restorative justice, nor, in general, as a response to the persisting effects of past discrimination. Justice Lewis F. Powells concurring opinion, though, introduced a theme that would dominate discussions of affirmative action in higher education thereafter. Justice Powell said that affirmative action could be justified as away of advancing the educational benefit of diversity in the classroom. Universities throughout the country exploited the diversity rationale, and perhaps even came to believe in it, and continued to implement their affirmative action programs with mostly cosmetic changes.

Opponents of affirmative action responded along two fronts. They sought and in some prominent states such as California and Michigan obtained changes in state law to bar public universities from adopting any form of affirmative action. They also renewed constitutional challenges to affirmative action programs, and achieved a half-victory in the Supreme Court. Dealing with two programs from Michigan, adopted before state law prohibited them, the Court split the baby. Programs that merely took race into account as part of a holistic evaluation of an applicants file were constitutionally permissible, while that that operated in a more rigid fashion by awarding points based on race were not (Grutter v. Bollinger & Gratz v Bollinger, 2003).

Uniting these controversies was a deeper division in thinking about civil rights. One view was that civil rights policy was dedicated to an anti-classification program. It targeted uses of impermissible categories for allocating burdens and benefits. Under the anti-classification view, disparate treatment was improper and disparate impact was outside the scope of civil rights law; affirmative action was impermissible because it employed racial and other categories; accommodation mandates were suspect for the same reason. The alternative view was that civil rights policy should implement an anti-subordination program. Disparate impact was at the heart of this view, and affirmative action was one of its main policy tools.

In light of the richness of the nations history, proponents of each view could identify substantial historical support, and sometimes relied on exactly the same evidence. To bolster the anti-classification position that a citys voluntary program for achieving racial balance in its schools by including race as an explicit criterion for assigning some students to


schools, Chief Justice John Roberts included excerpts from the briefs filed by the NAACP in Brown v. Board of Education (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). Surviving members of the NAACP legal team called the citation dirty pool, emphasizing that they had sought the elimination of the use of race as a classification as a means for eliminating the subordination of African Americans to whites that pervaded Jim Crow.

As with accommodation mandates, so with affirmative action. The legal environment changed because of social change. Both remained a part of the civil rights policy landscape in the twenty-first century, but their place was contested. The heartland of civil rights policy, a ban on disparate treatment or intentional discrimination, remained largely unimpaired, and indeed to the extent that the range of groups singled out as beneficiaries of civil rights expanded, the heartland expanded as well.

Conclusion As in many policy domains, the history of civil rights policy exhibits a movement from simplicity to complexity. In its early years civil rights policy dealt solely with the rights of African Americans, and even then only a small but important subset of those rights. By the early twentieth century the term civil rights referred to a larger number of rights, but still was confined to rights of African Americans. After the New Deal the term came to refer to rights of other groups women, people with disabilities, gays and lesbians, and more. Indeed, by the twenty-first century to say that a persons civil rights were denied was to say that the person was the target of unjustified inequality.

As Harvard law professor Archibald Cox wrote, Once loosed, the idea of Equality is not easily cabined.9 As civil rights policy became policy dealing with all forms of unjustified inequality, its domain became complex and contested, as contemporary questions about disparate treatment and disparate impact, or affirmative action and accommodation mandates, show. Penetrating nearly every social domain today, civil rights policy will continue to be generate controversy.

Cases cited Brown v. Board of Education, 347 U.S. 483 (1954)

Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014) City of Boerne v. Flores, 521 U.S. 507 (1997)

9 Archibald Cox, The Supreme Court, 1965 Term Foreword: Constitutional Adjudication and the Promotion of Human Rights, Harvard Law Review 80 (Nov. 1966): 91-122, at p. 91.

Mark Tushnet 17

Civil Rights Cases, 109 U.S. 3 (1883) Gratz v Bollinger, 539 U.S. 244 (2003)

Griggs v. Duke Power Co., 401 U.S. 424 (1971) Grutter v. Bollinger, 539 U.S. 306 (2003)

Guinn v. United States, 238 U.S. 347 (1915) Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)

Pace v. Alabama, 106 U.S. 583 (1883) Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) Patterson v. McLean Credit Union, 491 U.S. 164 (1988)

Plessy v. Ferguson, 163 U.S. 537 (1896) Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

Ricci v. DeStefano, 557 U.S. 557 (2009) Runyon v. McCrary, 427 U.S. 160 (1976)

Strauder v. West Virginia, 100 U.S. 303 (1880) United States v. Carolene Products, 304 U.S. 144 (1938)

United Steelworkers v. Weber, 443 U.S. 193 (1979)

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