Introduction Next Down
The civil rights of Americans are old, being a part of the Fourteenth Amendment's Section 1 prescription that no State shall "deny to any person within its jurisdiction the equal protection of the laws" (U.S. Constitution's Article IV). That dates from year 1868, now a full seven score in our past. But civil rights as serious business for the nation is considerably younger. The steps are numerous, but the accepted launch point was the great landmark Supreme Court case of Brown v. Board, more formally known as Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); for discussion, see PBS, Brown v. Board of Education - Racial Segregation in Public Schools. This case took the rare Court action of directly overturning Plessy v. Ferguson, 163 U.S. 537 (1896) after 58 years of Court-conferred blessing upon government-imposed racial segregation in law and practice. Brown was to start civil rights as a vigorous growth industry, first for black Americans on basis of race and ethnicity, then on to women on basis of gender, and further to age, disability, and even sexual preference. In the process the national government took unprecedented intrusions into traditionally local and state business, even to the point of nullifying some southern election results.
Not that all civil rights is fully accepted by all Americans. Since 2003 political conservatives have staged campus "affirmative action bake sales" with products at different prices by race and gender, with white males always paying the most (Affirmative action bake sale - Wikipedia; Chambers 2003, FrontPageMag). Their obvious point is to label affirmative action policy as inherently unfair and discriminatory. Moreover, they say it amounts to leveling or equalizing of results. Americans generally do not accept equality of result; instead they insist upon equality of opportunity. But affirmative action proponents insist that equality of opportunity without regard to race, ethnicity, and gender are all polite myths, widely believed but never actually true. Affirmative action is remedy for historically far-reaching inequalities based upon those attributes. White men were indeed once privileged, and some now take umbrage at losing preferential status that was long taken for granted. As for the public at large, it depends on whether the question is framed in surveys as equality of opportunity (result: heavy support) or equalizing of outcomes (result: heavy opposition).
Black Civil Rights Top; Next Down
The bake sale argument is a contemporary piece, but there's less argument about abuses of law and policy now largely in the past. No one can plausibly deny that black Americans were treated badly back then. Understanding this requires some current review on Supreme Court practices (which we take up later in this course). The term stare decisis is very important: it refers to "let the decision stand" and denotes a firm expectation that once a Court decision is handed down, it's accepted by later courts as settled business or precedent. Then let us consider Plessy v. Ferguson, 163 U.S. 537 (1896), which decided that a New Orleans gentleman of color was legally required by city ordinance to use only those streetcars set aside for black riders. Whites had their separate cars as well; so the City of New Orleans and the State of Louisiana were honoring "equal protection" despite the blatant practice of racial segregation known as Jim Crow law. This is segregation by law, not custom, and is universally called de jure segregation (Segregation in The Social Studies Help Center).
Plessy launched a tortuously long succession of practices and court cases brought under the "separate but equal" standard where black litigants--always black ones, not white--claimed that only the "separate" part was truly honored. See if you don't find that common thread among cases like Smith v. Allwright, 321 U.S. 649 (1944) on the whites-only state party primary, and Shelly v. Kraemer, 334 U.S. 1 (1948) on racially restrictive covenants that permitted towns to exclude black purchases of land or houses. The "equal" part was not equal.
After Brown v. Board made clear in 1954 that de jure segregation was not constitutional, other cases quickly followed on basis of the Brown precedent. But we've already seen in Roe v. Wade that the Court depends heavily upon getting the public largely on its side if the Court's decisions are to be enforced. In this instance, a national majority did support Brown, but in the 11 states of the Old Confederacy and their borderland neighbors such as Kentucky, Missouri, and Oklahoma, it was another story. There was one southern political party--the Democrats--and almost entirely one racial group that could register and vote locally--the white folks. (You can see the one-party southern and borderland character in presidential elections up to 1964 here: Party System Maps). Resistance to Brown was fierce and sustained enough that actual school desegregation dawdled along at very low rates. In 1964, ten years after Brown, only 2.3% of all school districts in the eleven Old Confederacy states of the south were racially integrated (cite source per Fiorina).
Eight years after 1964 with 2.3% of schools integrated, the number jumped to 91.3% (same source). During that same period, the number of black southerners who registered and voted saw similarly dramatic increases. What happened was the 1960s civil rights movement coming fully of age. A combined national pressure fell upon the south, with civil rights volunteers flouting segregation laws openly as 30-minute national news segments displayed Birmingham police dogs and fire hoses being loosed upon black teenagers who skipped school to demonstrate their defiance of Police Commissioner Eugene "Bull" Connor's strict adherence to segregation. Americans saw and heard it all--and were repelled. Martin Luther King eloquently demanded that America live up to its professed claim that "all men are created equal" in the Declaration. The national politicians outside the South got the message. So did some inside the South. I personally find it amusing as hell, and illuminating about ties of ambition to office, that the true leader of landmark national legislation was Texan and accidental President Lyndon Johnson. He was a southern man, but thoroughly determined both to legitimize his presidency and to bring his State of Texas fully back into the national Union. That meant Jim Crow practices had to go, the same way Jim Crow law had gone.
This was accomplished in two crucial laws, first the Civil Rights Act of 1964, then eight months later with the Voting Rights Act of 1965. These laws were written with serious enforcement procedures, and they were vigorously employed. Southerners gave voice to states' rights, and George Wallace made a national case for that as civil rights trouble went national by 1965 with riots in dozens of black sections of segregated northern and western cities like Los Angeles, Chicago, Detroit, and Washington D.C. itself; but those laws were enforced rather than repealed or given lip service only. It was a fundamental test of American democracy, not in the distant 1860s but in the still-living 1960s.
Women Get on the Wagon Top
There's a peculiar feature of Section VII of the 1964 Civil Rights Act. The U.S. Equal Employment Opportunity Commission, which was created by this Act, says the Act's Title VII "prohibits employment discrimination based on race, color, religion, sex and national origin" (EEOC, Title VII of the Civil Rights Act of 1964). That's the only place where "sex" is cited in this extensive multi-title Act; and there was no major agitation or public campaign to address sex discrimination in jobs leading to this 1964 enactment by Congress. How did sex discrimination get into this law?
The answer is creative political strategy. The leading House of Representatives segregation strategist was one Howard "Judge" Smith of Virginia. Smith could count votes and knew he held a losing hand with racial segregation in 1964; but maybe an amended bill that also prohibits sex discrimination would bring sexists aboard. American politics is about converting too-small factions (racists, sexists) into coalitions (racists AND sexists) that win the day. Smith succeeded in getting the bill amended; but alas for him, the amended bill passed the House floor anyhow, and this bill became the law of the land.
Women wasted little time in seeing and taking this opportunity to use for breaking into workplaces that had been white male preserves. They put off marriage, went to college in larger and larger numbers, went to graduate school, tried to enter management ranks, took law degrees and sought partnerships in firms, tried to join police forces and fire fighting unions, ran marathons, sought varsity athletics status in college programs, and in general, made a large fuss in pursuit of equal protection of the laws.
All this came in direct conjunction with the serious start to affirmative action, which opened many jobs and job areas to persons who previously had little chance of getting anywhere. The formative decade for this was not the 1960s, but the 1970s; and this was the very time of unprecedented demand for jobs and privilege by the largest generation of young people in American history. That, of course, was the postwar baby boom of 1946 to 1964. These people were raised in both postwar American prosperity and the heady atmosphere of civil rights, so felt entitled to seek better stations and greater comforts than their parents (of depression and war years) had ever experienced. When doors to advancement would not open, they used the law as a weapon to force them open. They fought with and among each other, seeking some way to advance.
Allen Bakke is an example. He was a mid-30s age engineer by trade who sought a mid-career change. He became a plaintiff who sought entry to medical school in the affirmative action case Regents of the University of California, Davis v. Bakke, 438 U.S. 265 (1978). He was able to succeed by demonstrating that U Cal Davis had authored an affirmative action program "set aside" whereby 16 of 100 seats in the entering medical school class were reserved for racial minorities that had never previously been admitted to this school. That excluded Bakke from those 16 seats, and he was rejected by the school for one of the other 84. The Court ruled that this was an impermissible quota in violation of equal protection of the laws, and Bakke went on to become a physician.
There are two ironies to this case. One is that Bakke actually upheld affirmative action as constitutional, so long as it wasn't effected through a quota or set aside that visibly denied full equal opportunity to some. The other is that Bakke as a white male was probably a victim of age discrimination by medical schools that were famously loath to take on any mid-career transfer aspirants. Had Bakke come along later, he would have been able to seek admission armed with legal protections against age discrimination by institutions of higher learning that receive federal assistance (U.S. Department of Labor - Equal Employment Opportunity - Age Discrimination).
In other words, civil rights continued to act as a growth
industry. It started with race, went on to gender, and then expanded
further to a host of things such as age. And despite all the sound and
fury from bake sale hawkers and desperate litigants seeking entry, it's largely been
a peaceful revolution at the institutional level. It doesn't violate the
tenets of open-market capitalism; to the contrary, it opens the labor market
more freely to all comers. That suits most employers and talent-seekers
Chambers, Jason E. 2003. Smashing Affirmative Action -- Bake Sales, FrontPage Magazine, October 15, 2003. URL: www.frontpagemag.com/Articles/Read.aspx?GUID=2FE2FDE0-4A12-48B7-8765-B71CBABFFE60.
Copyrightę2009, Russell D. Renka