Antidiscrimination Legislation

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From its inception, antidiscrimination legislation has shaped and been shaped by the Constitution. Antidiscrimination legislation's very existence is attributable to developments in constitutional law. Enactment of such legislation usually reflects a relatively favorable atmosphere for the promise of equality embodied in the thir-teenth, fourteenth, and fifteenth amendments. When the values underlying these amendments are in decline, antidiscrimination legislation is not enacted, and often is not enforced.

Federal antidiscrimination laws have been enacted during two time periods. During the first period, which commenced near the end of the civil war, Congress enacted the civil rights act of 1866, the Civil Rights Act of 1870, the force act of 1871, the Civil Rights Act of 1871, and the civil rights act of 1875. These early provisions, portions of which survive, exemplify two basic forms of antidiscrimination legislation. Some provisions, such as section 1 of the 1871 act (now section 1983) and section 3 of the 1866 act were purely remedial. They provided remedies for violations of federal rights but created no new substantive rights. Other provisions, such as section 1 of the 1866 act and section 16 of the 1870 act (now sections 1981 and 1982), were express efforts to change substantive law by fostering greater equality between black and white Americans.

The compromise of 1877 marks the end of the first era during which antidiscrimination legislation flourished. Afterward, congressional and judicial developments favored neither enactment nor enforcement of antidiscrimination legislation. In the civil rights repeal act of 1894 the first Democratic Congress since the Civil War repealed the few effective remnants of post-Civil War antidiscrimination legislation. A favorable climate for legislative implementation of the post-Civil War constitutional amendments did not reemerge until the late 1950s and early 1960s. There were no significant antidiscrimination statutes in the intervening years.

As the constitutional amendments were given new vigor by the warren court, however, antidiscrimination legislation experienced a renaissance. Modern statutes, including the civil rights acts of 1957, 1960, 1964, and 1968, protect against discrimination in voting, employment, education, and housing. They represent a second era of federal antidiscrimination legislation, sometimes called part of the second reconstruction.

As in the case of earlier antidiscrimination statutes, the primary reason for enactment was to protect blacks from racial discrimination. Again, two kinds of provisions were enacted. Some provisions, such as the 1957 and 1960 Acts and Title VI of the 1964 act, are remedial in tone (though not always so interpreted) and do not purport to create new substantive rights. Others, such as Title VII of the 1964 act, which prohibits private discrimination in employment, confer new substantive rights.

Modern antidiscrimination legislation contains a recognizable subcategory that has been the fastest growing area of antidiscrimination law. Until about 1960 or 1970, antidiscrimination legislation could be equated with laws prohibiting one or more forms of racial discrimination. Subsequently, however, legislation prohibiting discrimination surfaced in many areas. For example, the age discrimination act of 1975, the Age Discrimination in Employment Act, the rehabilitation act of 1973, the developmentally disabled and bill of rights act, the Education of Handicapped Children Acts, the Equal Pay Act, and the education amendments of 1972 provide substantial protection to the aged, to the handicapped, and to women. Building on a technique first employed in Title VI of the 1964 act, most of these provisions apply only to programs or entities receiving federal financial assistance.

Although constitutional values can be viewed as the raison d'être of antidiscrimination legislation, the relationship between the Constitution and antidiscrimination laws runs much deeper. Their more complex relationship may be divided into two parts. First, antidiscrimination legislation has been the setting for judicial and congressional decisions concerning the scope of congressional power. One of the few universally agreed upon facts about the history of the Fourteenth Amendment is that it was meant to place the first major antidiscrimination statute, the Civil Rights Act of 1866, on firm constitutional footing. Before ratification of the Fourteenth Amendment, doubts were expressed about Congress's power under the Thirteenth Amendment to ban racially discriminatory state laws. Many believe that the Fourteenth Amendment was meant primarily to constitutionalize the 1866 Act's prohibitions. With the Fourteenth Amendment in place by 1868, Congress reaffirmed the 1866 Act's bans by reenacting them as part of the Civil Rights Act of 1870. Some claim that the 1866 Act is so akin to a constitutional provision that its surviving remnants should be interpreted more like constitutional provisions than statutory ones.

Soon after this initial interplay between the Constitution and antidiscrimination laws, a foundation of constitutional interpretation grew out of litigation under antidiscrimination statutes. In a line of cases commencing with united states v. cruikshank (1876) and culminating in united states v. harris (1883) and the civil rights cases (1883), the Court relied on what has come to be known as the state action doctrine to invalidate antidiscrimination measures. The Civil Rights Cases invalidated the last piece of nineteenth-century civil rights legislation, the Civil Rights Act of 1875. In so doing the Court not only limited the Fourteenth Amendment to prohibiting state action but also rendered a narrow interpretation of the Thirteenth Amendment as a possible source of congressional power to enact antidiscrimination statutes.

The state action doctrine was not the only early limit on antidiscrimination legislation. In united states v. reese (1876) the Court found sections 3 and 4 of the Civil Rights Act of 1870, which prohibited certain interferences with voting, to be beyond Congress's power to enforce the Fifteenth Amendment because the sections were not limited to prohibiting racial discrimination. These limitations on antidiscrimination legislation carried over into the early twentieth century.

But some early antidiscrimination legislation survived constitutional attack and shifting political stances in Congress. For example, in ex parte yarbrough (1884) the Court sustained use of section 6 of the 1870 act (now section 241) to impose criminal sanctions against private individuals who used force to prevent blacks from voting in federal elections. And in Ex parte Virginia (1880), the Court sustained the federal prosecution of a state judge for excluding blacks from juries in violation of section 4 of the 1875 act. (See strauder v. west virginia.)

The two lines of early constitutional interpretation of antidiscrimination laws have never been fully reconciled. As a result of the early limits on congressional power to enact antidiscrimination legislation, modern civil rights statutes have been drafted to reduce potential constitutional attacks. Thus, much of the Civil Rights Act of 1964 operates only on individuals and entities engaged in some form of interstate commerce. Other portions of the 1964 act, and many other modern antidiscrimination laws, are based on Congress's taxing and spending powers. By tying antidiscrimination legislation to the commerce clause or the spending power, Congress hoped to avoid some of the constitutional problems that plagued early legislation enacted under the Thirteenth, Fourteenth, and Fifteenth Amendments.

A potential clash between the Court and Congress over the constitutionality of modern antidiscrimination legislation has not surfaced. The modern Court sustains antidiscrimination legislation even in the face of troublesome nineteenth-century precedents. In a landmark holding barely reconcilable with portions of the Civil Rights Cases, the Court in jones v. alfred h. mayer company (1968) found that Congress has power under the Thirteenth Amendment to ban private racial discrimination in housing. Later, in runyon v. mccrary (1976), the Court acknowledged Congress's power to outlaw racial discrimination in private contractual relations, including those relations involved in a child's attendance at a private segregated school. In griffin v. breckenridge (1971) the Court relied on the Thirteenth Amendment to sustain a remnant of the 1871 act allowing for causes of action against private conspiracies to violate federal rights. The case undermined United States v. Harris and overruled an earlier contrary decision, Collins v. Hardyman (1948). Another antidiscrimination statute, the voting rights act of 1965, provided the setting for important decisions in katzenbach v. morgan (1966) and south carolina v. katzenbach (1966), which found Congress to have broad discretion to interpret and extend Fourteenth Amendment protection to situations which the judiciary had not found violative of the Fourteenth Amendment.

There is a second respect in which constitutional provisions and antidiscrimination legislation influence each other. From the beginning, their relationship has gone beyond one of merely testing the constitutionality of a particular antidiscrimination statute. Interpretation of one set of provisions has shaped the other. This interplay began with the Civil Rights Act of 1866. Soon after ratification of the Fourteenth Amendment, the question arose as to what constituted "the privileges and immunities of citizens of the United States" referred to in the Fourteenth Amendment. In the slaughterhouse cases (1873) the Court's first decision construing the Fourteenth Amendment, Justice stephen j. field argued in dissent that section 1 of the 1866 act provided Congress's interpretation of at least some of the privileges or immunities of United States citizens. Although Field's view did not prevail—the Court limited the privileges or immunities clause to a narrow class of rights—even the majority view of the privileges or immunities clause may have had a profound effect on subsequent development of antidiscrimination legislation.

This effect stems from the strong linguistic parallel between the Fourteenth Amendment's privileges or immunities clause and the rights listed as protected by many antidiscrimination laws. Sections 1983 and 242 protect persons against deprivations of their federal "rights, privileges or immunities." Section 1985(3) refers in part to "equal privileges and immunities." Section 241 refers to any federal "right or privilege." In subsequent cases brought under antidiscrimination statutes, federal courts, relying on the Slaughterhouse Cases' narrow interpretation of the Fourteenth Amendment's privileges or immunities clause, plausibly could render a similar narrow interpretation of the antidiscrimination statute. Not until monroe v. pape (1961) did the Court settle that the rights, privileges, and immunities protected by section 1983 include at least all rights secured by the Fourteenth Amendment.

Just as constitutional interpretation influenced early antidiscrimination laws and vice versa, modern antidiscrimination legislation influences constitutional interpretation. In griggs v. duke power company (1971) the Court found that an employer's selection criteria with unintentional disparate effect on a minority could lead to a violation of Title VII of the Civil Rights Act of 1964. This and earlier Supreme Court cases generated pressure to find violative of the Fourteenth Amendment government action with uneven adverse effects on minorities. Not until washington v. davis (1976) and arlington heights v. metropolitan housing development corporation (1977) did the Court expressly reject the Griggs standard as a basis for constitutional interpretation. And in regents of the university of california v. bakke (1978), a major theme of the opinions is the relationship between the antidiscrimination standards embodied in Title VI of the Civil Rights Act of 1964 and those of the Fourteenth Amendment.

Judicial hostility to the reconstruction civil rights program and subsequent congressional inaction left much of the civil rights field to the states. Early Massachusetts legislation covered school desegregation and public accommodations, but few other states enacted protective laws prior to 1883 and some laws that had been enacted by southern Reconstruction legislatures were repealed.

The Civil Rights Cases' invalidation of the Civil Rights Act of 1875 triggered the first major group of state anti-discrimination laws. Within two years of the decision, eleven states outlawed discrimination in public accommodations. Modest further legislative developments occurred before world war ii, including legislation aimed at violence generated by the Ku Klux Klan, some northern prohibitions on school segregation, and some categories of employment discrimination.

The next widespread state civil rights initiative, which covered employment discrimination, drew upon experience under the wartime Committee on Fair Employment Practices. New York's 1945 Law Against Discrimination, the first modern comprehensive fair employment law, established a commission to investigate and adjudicate complaints and became a model for other states' laws. Resort to administrative agencies, now possible in the vast majority of states, remains the primary state method of dealing with many categories of discrimination.

Theodore Eisenberg


Bardolph, Richard 1970 The Civil Rights Record. New York: Crowell.

Konvitz, Milton R. 1961 A Century of Civil Rights. New York: Columbia University Press.

Murray, Pauli 1961 States' Laws on Race and Color. New York: Woman's Division of Christian Service, The Methodist Church.

U.S. Commission on Civil Rights 1970 Federal Civil Rights Enforcement Effort. Washington, D.C.: U.S. Government Printing Office.

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Antidiscrimination Legislation

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