Antidiscrimination Legislation (Update 1)

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Most antidiscrimination legislation forbids racial discrimination in such contexts as employment, housing, public accommodations, education, and voting. Similar legislation prohibits sex discrimination and, more recently, discrimination on the basis of age and handicap.

Enacted in response to racial unrest and mass civil protests, the civil rights act of 1964 was the first major federal antidiscrimination law in the modern era. Congress subsequently enacted the voting rights act of 1965 and the Fair Housing Act of 1968. Each act has been amended several times.

The most ambitious titles of the 1964 Act—Title VII, prohibiting employment discrimination, and Title II, prohibiting discrimination in public accommodations—are now central features of the modern regulatory state. This legislation, however, initially faced stiff opposition. The opponents argued that the law represented undue federal intrusion into both the private sphere and state sovereignty and that the "law could not change what lies in the hearts of men." Modern antidiscrimination legislation rejects both these views. It effectively nationalizes nondiscrimination as a basic right of citizenship, apparently laying to rest the post-Reconstruction view that the task of protecting civil rights lay primarily within the powers of each state. Equally significant, the passage of antidiscrimination legislation seemed to embody a belief that law could significantly alter conduct and, eventually, "the hearts of men."

More recent developments suggest a fraying around the edges of antidiscrimination, both as national policy and as moral imperative. This fraying is suggested by debates over the status of antidiscrimination as a national priority, by judicial decisions limiting the reach of federal regulation, and by continuing racial hostilities that raise questions about the hearts of men and women.

Antidiscrimination law is not self-executing. Rather, its effectiveness is contingent upon the cooperation between the several branches of government and private citizens. Ideally, Congress creates the substantive protections and establishes the broad outlines of the enforcement framework, and the executive branch, administrative agencies, and the judiciary elaborate these policies and apply them to specific contexts. The system works well when there is a general consensus about the importance of eliminating racial discrimination. In the last decade, however, the various governmental branches have been in conflict as to the scope, content, and priority of the antidiscrimination mandate. These conflicts not only reflect ideological differences with respect to race and racism, but hamper the development of a coherent and effective antidiscrimination law.

In the first seven years of the 1980s, the Civil Rights Division of the Justice Department opposed civil rights plaintiffs more often than it had in the previous two decades combined. A notable example is bob jones university v. united states (1982), in which the department, reversing the position of the administration of President jimmy carter, argued against the decision of the Internal Revenue Service to deny tax-exempt status to private colleges that practiced racial discrimination. Other evidence of a declining consensus concerning antidiscrimination policy is found in the increase of cases in which the Justice Department has sided against plaintiffs in antidiscrimination suits and others in which it has intervened to support reopening discrimination cases that were believed settled with affirmative action consent decrees.

Legislative activity manifesting the growing conflict is represented by the frequency in which Congress has considered overturning Supreme Court decisions narrowing the scope of a number of civil rights acts. In 1982, Congress amended the Voting Rights Act and, in 1988, enacted the Civil Rights Restoration Act, both of which were to overturn Supreme Court decisions. The latter was enacted over a presidential veto. Another bill was introduced to provide a statutory basis for challenging the racially disproportionate distribution of the death penalty, in response to the Court's rejection of an equal protection claim in mccleskey v. kemp (1987). Although this bill failed, Congress did strengthen the Fair Housing Act and is currently considering an omnibus bill to overturn several civil rights decisions of 1989.

The clearest evidence of the disintegrating consensus over antidiscrimination policy is apparent in these Supreme Court decisions. The Court's interpretive choices are often of critical importance in facilitating the effective enforcement of basic antidiscrimination principles. In the first decade after the Civil Rights Acts of 1964, the Court frequently interpreted ambiguous provisions in a manner that strengthened the substantive protection of civil rights legislation. Guided by a principle that eliminating racial discrimination "root and branch" was the highest priority, the Court upheld the constitutionality of civil rights legislation in the face of unfavorable precedent. In jones v. alfred h. mayer co. (1968) and runyon v. mccrary (1976) the Court even resurrected Reconstruction civil rights laws long buried under an interpretation that placed most private discrimination outside the scope of antidiscrimination law.

Recently, however, the Court has been hesitant to take such broad interpretive positions and has even been willing to narrow the reach of antidiscrimination law. Grove City College v. Bell (1984) exemplifies this shift. Title IX of the 1972 amendments to Title VI of the 1964 act prohibited sex discrimination in any educational "program or activity" receiving federal financial assistance. President Carter's Justice Department read the words "program and activity" broadly to require a cutoff of funds to an entire institution whenever a single program or activity (for example, a college financial aid office) was in violation of the statute. In 1984, the Supreme Court in Grove City took a contrary view, limiting the cutoff of funds to the specific department rather than the entire institution.

patterson v. mclean credit union (1989) reflects a similar shift away from expansive readings of the scope of antidiscrimination law. In one of his first opinions for the Court, Justice anthony m. kennedy determined that a part of the civil rights act of 1866 (section 1981) prohibiting racial discrimination in the making and enforcement of contracts applied only to the formation of an employment contract and not to subsequent racial harassment by the employer. The dissenters argued that the Court created a false dichotomy between an employer who discloses discriminatory intentions at the time the contract is formed and the employer who conceals those discriminatory intentions until after the plaintiff has accepted the employment. Patterson 's holding exemplifies a larger development: a partial deregulation of racial discrimination in employment.

Two primary reasons may explain the breakdown of the civil rights consensus and the increasing conflict over antidiscrimination law. First, the nature of radical discrimination in American society has changed. Antidiscrimination legislation has removed many formal barriers to full societal participation that previosly excluded some groups. In one view, the removal of these barriers justifies a presumption of nondiscrimination; hence, claims of discrimination must overcome high burdens of proof. In this view, the removal of formal barriers also gives weight to competing interets, such as the seniority of other employees, states ' rights, and freedom from governemental oversight. Others argue that antidiscrimination law must seek to eliminate practices that effectively discriminate against tradtionally excluded groups, whether such discrimination is formal and intentional or informal and inadvertant.

A second factor increasing the civil rights conflict reflects the relationship between antidiscrimination law and electoral politics. In eight years, President ronald reagan not only presided over a major shift in Justice Department enforcement policy, but also appointed three conservative Supreme Court Justices sandra day o'connor, antonin scalia, and anthony m. kennedy, and elevated the most conservative Justice, william h. rehnquist, to Chief Justice. In addition, he appointed 370 judges to the federal bench, nearly half the federal judiciary. Many of these jurists interpret laws against a background preference for states' rights and employer autonomy, a preference that readily translates into decisions narrowing the reach of antidiscrimination laws. The demise of formal barriers and the ideological shifts within the judiciary and Justice Department have produced both a more restrictive antidiscrimination jurisprudence and a stagnated enforcement record.

For many critics, the Supreme Court's recent decisions raise the specter of an evisceration of antidiscrimination law comparable to the fate of laws enacted during the first Reconstruction. Congress may yet prevent the full eroding of the antidiscrimination law. However, the persistence of racial discrimination and the reemergence of analytical frameworks and values that have historically blunted the impact of civil rights laws suggest that antidiscrimination victories are, at best, provisional.

KimberlÉ Crenshaw

(see also: Capital Punishment and Race; Race-Consciousness; Racial Preference.)


Amaker, Norman C. 1988 Civil Rights and the Reagan Administration. Washington, D.C.: Urban Institute Press.

Freeman, Alan 1990 Antidiscrimination Law: The View from 1989. Tulane Law Review 64:1407–1441.

Karst, Kenneth L. 1989 Private Discrimination and Public Responsibility: Patterson in Context. The Supreme Court Review 1989:1–51.

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Antidiscrimination Legislation (Update 1)

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