CIVIL RIGHTS

The core of the concept "civil rights" is freedom from racial discrimination. Although the term, not improperly, often refers to freedom from discrimination based on nationality, alienage, gender, age, sexual preference, or physical or mental handicap—or even religious liberty, immunity from official brutality, freedom of speech, the right of privacy, and additional rights found in the Constitution or elsewhere—other terms can characterize these rights. Sometimes they are referred to as civil liberties or by particular names (for example, gender or handicap discrimination). Although the racial discrimination cases have influenced doctrinal development in many of these other areas, standards governing them often differ at the levels of both judicial scrutiny and appropriate remedies. Racial discrimination deserves separate treatment.

The constitutional law of civil rights begins in the thirteenth, Fourteenth, and fifteenth amendments. These " civil war amendments" were adopted during reconstruction to effect a radical revision of the status of blacks and a sharp change in relations between national and state governments. Until the end of the Civil War, the situation of black people had been dominated by slavery in the South and a regime under which, in the words of the Supreme Court in dred scott v. sandford (1857), they had no rights that a white man was bound to respect. Their legal rights or disabilities derived from state law, subject to no meaningful control by the national government. The Civil War amendments changed that. The Thirteenth Amendment abolished slavery; the Fourteenth, among other things, prohibited states from denying to any person due process of law or equal protection of the laws. (Other provisions of the Fourteenth Amendment had little practical effect). The Fifteenth Amendment protected voting rights against governmentally imposed racial discrimination.

Each amendment empowered Congress to adopt enforcing legislation. Such laws were enacted—most notably the civil rights act of 1866—but they were not implemented, were interpreted restrictively, or fell into disuse following the compromise of 1877 which assured the Presidential election of rutherford b. hayes in exchange for his pledge to withdraw Union troops from the South and end Reconstruction. During the same period southern states, effectively free from national control, implemented black codes, and later Jim Crow laws, which returned black people to a status that was only nominally free. No significant national civil rights law was adopted again until the mid-1960s.

Between Reconstruction and the mid-twentieth century, the judiciary sporadically found significant content in the Civil War amendments; yet racial segregation and discrimination remained pervasive in the South and widespread elsewhere. During the same period, the Fourteenth Amendment was interpreted expansively to protect burgeoning business enterprise. Between brown v. board of education (1954) and the civil rights act of 1964, the main period of the modern civil rights revolution, the doctrinal potential of the amendments to advance the cause of black people became largely realized. Implementation became the main task, taking the form of comprehensive civil rights statutes, lawsuits brought by the United States and private parties, and administrative enforcement. As a result of this process, some whites have charged that remedies for blacks violate their constitutional rights: for example, that affirmative action constitutes "reverse discrimination," or that school busing for integration injures them. Justice oliver wendell holmes ' aphorism, "the life of the law has not been logic: it has been experience," is as least as true of civil rights law as of any other branch of law.

The concept of "equal protection of the laws" underwent its greatest evolution between 1896, when plessy v. ferguson upheld a state law requiring separate but equal segregation of whites and blacks in intrastate rail travel, and 1954, when Brown v. Board of Education held that segregated public education denied equal protection. Although Plessy dealt only with intrastate transportation and Brown only with education, each was quickly generalized to other aspects of life.

The very factors which the Supreme Court invoked to uphold segregation in 1896 were reassessed in Brown and used to justify a contrary result. The Plessy majority held that the framers of the Civil War amendments did not intend to eliminate segregation in rail travel which the Court characterized as a social, not a political activity. It thereby distinguished strauder v. west virginia (1880), in which the Supreme Court had held that excluding blacks from juries violated the Fourteenth Amendment because it stigmatized them. Plessy dismissed the argument that segregating blacks from whites could justify segregating Protestants from Catholics, because that would be unreasonable; racial segregation was reasonable, for state court decisions and statutes had authorized segregation in schools. Finally, the Court addressed what today is called social psychology, writing that although Plessy claimed segregation connoted black inferiority, whites would not consider themselves stigmatized if they were segregated by a legislature controlled by blacks. Any harmful psychological effects of segregation were self-inflicted.

Plessy became so deeply ingrained in jurisprudence that as late as 1927, in gong lum v. rice, a Court in which Holmes, louis d. brandeis, and harlan f. stone sat unanimously agreed that racial segregation in education "has been many times decided to be within the constitutional power of the state legislature to settle, without the intervention of the federal courts under the Federal Constitution."

Other Supreme Court decisions, however, offered hope that some day the Court might come to a contrary conclusion. In yick wo v. hopkins (1886) the Court invalidated as a denial of equal protection a city ordinance which, under the guise of prohibiting laundries from operating in wooden buildings, where virtually all Chinese laundries were located, excluded Chinese from that business. In buchanan v. warley (1917) it invalidated racial zoning of urban land under the due process clause. Later it struck down state laws prohibiting blacks from participating in primary elections. By 1950, in sweatt v. painter and mclaurin v. oklahoma state regents, the Court invalidated segregation in law school and graduate education, without holding segregation unconstitutional per se and without abandoning the separate-but-equal formula. These and other decisions foreshadowed Brown and undermined precedents approving segregation.

Brown contradicted or distinguished Plessy on every score. It read the legislative history of the Civil War Amendments as inconclusive on the question of school segregation, pointing out that although after the Civil War public education had been undeveloped and almost nonexistent for blacks, it had become perhaps the most important function of state government. In effect the amendment was treated as embodying a general evolutionary principle of equality which developed as education became more important. The Court treated early precedents as not controlling school segregation and drew from the 1950 graduate school cases support for a contrary result.

In contrast to Plessy 's dismissal of the psychological effects of segregation, Brown held that "to segregate them [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." The Court cited social science literature in support of this response to Plessy. This portion of the opinion provoked much adverse commentary, some condemning the decision as based on social science, not law. But of course, Plessy had come to its sociological conclusions without any evidence at all.

In bolling v. sharpe, a companion case to Brown, the Court decided that the Fifth Amendment's due process clause prohibited school segregation in the District of Columbia. Any other result, the Court said, would be "unthinkable."

The contending arguments in Plessy and Brown not only exemplify the possibilities of legal advocacy but also raise the question how "equal protection" could be interpreted so differently at different times. After all, the arguments remained the same, but first one side prevailed, then the other. The reason for the change lies in the development of American history. Indeed, Brown suggests as much in describing how much public education had changed between Reconstruction and 1954, how essential education had become for personal development, and how much blacks had achieved. By 1954 black citizens had fought for their country in two major World Wars, the more recent of which was won against Nazi racism; had moved from concentration in the South to a more even distribution throughout the country; and had achieved much socially, politically, economically, and educationally, even though their status remained below that of whites.

The courtroom struggle leading to Brown showed that blacks were ready to participate effectively in securing their full liberation. It culminated a planned litigation campaign, building precedent upon precedent, directed by a group of mostly black lawyers headed by thurgood marshall, then head of the naacp legal defense and educational fund and later a Justice of the United States Supreme Court. This campaign had many ramifications, not the least of which was to become a model for development of public interest law, which grew rapidly in the 1970s.

The nation owed black people a debt which it acknowledged officially in several ways. In the late 1940s and in Brown itself the solicitor general of the United States joined counsel for black litigants in calling upon the Supreme Court to declare segregation unconstitutional. That the country was generally prepared to accept this argument was further evidenced in the 1947 Report of President harry s. truman's Committee on Civil Rights. The committee called for the end of racial segregation and discrimination in education, public accommodations, housing, employment, voting, and all other aspects of American life.

Despite the storm of controversy stirred by the 1954 decisions, they are firmly rooted in constitutional law and nowadays there is no longer significant criticism of their results. Brown was quickly followed by decisions applying its principles to all other forms of state imposed racial segregation. Courts soon ordered desegregation of parks, beaches, sporting events, hospitals, publically owned or managed accommodations, and other public facilities.

But Brown could not affect the rights of blacks against privately imposed discrimination, for the equal protection clause is a directive to the states. The admonition that "no state" shall deny equal protection was not addressed to private employers, property owners, or those who managed privately owned public accommodations. In the civil rights cases (1883) the Supreme Court made clear not only that the equal protection clause did not apply to private action but that Congress in enforcing the Fourteenth Amendment might not prohibit private persons from discriminating. As a consequence, national civil rights laws could not apply to private restaurants, hotels, transportation, employment, and housing—places where people spend most of their lives.

In 1960 the sit-ins, freedom rides, and demonstrations burst upon the national scene, aimed first at racial exclusion from privately owned public accommodations and then at other forms of discrimination. This phase of the civil rights struggle sought to move antidiscrimination precepts beyond the limitation of state power to prohibitions against private discrimination. The cases arising out of these efforts necessarily examined the distinction between what is private and what is state action, an issue long debated in political theory and constitutional law. On the one hand, it has been argued that privately asserted rights derive from power conferred and enforced by the state and that at bottom there is no such thing as a "private" right. According to this reasoning, applying the trespass laws to enforce an owner's privately held preference against black patronage of his lunch counter would be prohibited by the Fourteenth Amendment: the owner's property interest is a function of state law; the law of trespass is a state creation; prosecution and its consequences are state conduct. Pursuing such reasoning, lawyers for sit-in demonstrators identified the governmental components of otherwise private action, arguing that the Fourteenth Amendment, therefore, protected blacks who were denied service on racial grounds and later prosecuted for refusing to leave the premises. They had some legal support for this argument. Even before 1954 the Supreme Court had held in marsh v. alabama (1946) that religious proselytizing on company town property was protected by the first amendment against prosecution for trespass because the town was a governmental entity, notwithstanding private ownership. Similarly, the equal protection clause had been interpreted to forbid enforcement by state courts or racially restrictive covenants against purchase or occupancy of real estate by blacks or other minorities. These cases, and their rationales, followed to the end of their logic, would mean that governmental enforcement of private discrimination violates the equal protection clause.

But the courts were not prepared to follow the reasoning to its logical conclusion. In cases in which blacks were arrested and prosecuted for entering or remaining on privately owned public accommodations where they were not wanted because of race, the Supreme Court first avoided deciding whether there was state action by ruling for the defendants on various other grounds, for example, lack of evidence or vagueness of the law. In other cases the Court found state action in special circumstances: a private owner segregated because required by law; an ordinance required segregated toilets, which tended to encourage exclusion of blacks; a private restaurant leased premises from a state agency; private security guards who enforced segregation were also deputy sheriffs. But the Court balked at finding state action in prosecution for trespass to enforce a proprietor's personal decision to discriminate. The resistance grew out of a fear that to extend the state action doctrine would make most private decisions subject to government control. Moreover, if one could not call upon the state to enforce private preferences, personal force might be employed.

Other legal theorists would have differentiated between conduct prohibited by the amendment and that which is not by factoring into the decision-making process the concept of privacy. They would find, for example, that impermissible state action existed in racial exclusion from a restaurant but not from a private home. The policy against racial discrimination would prevail in the restaurant case, where there was no countervailing interest of privacy, but in the private home case the privacy interest would outweigh strictures against racial discrimination.

In 1964 the Court held that the Civil Rights Act of that year invalidated convictions of sit-in demonstrators, even those convicted before its passage. The fundamental question of precisely what level of state involvement in private conduct constitutes state action was left undecided.

The uncertain scope of the state action doctrine was underscored by the constitutional basis advanced for congressional power to pass the 1964 Civil Rights Act. Congress relied on the commerce clause in addition to the Fourteenth Amendment because the commerce clause does not require state action to justify congressional regulation. The initial Supreme Court decisions upholding the 1964 Civil Rights Act, heart of atlanta motel v. united states (1964) and katzenbach v. mcclung (1964), relied on the commerce clause, and upheld applications of the law in cases of minimal effect upon commerce.

The impulse to define fully the meaning of state action was further damped by developments in Thirteenth Amendment law. The Thirteenth Amendment has no state action limitation and, therefore, covers private as well as state action. But early efforts to apply it to discrimination as a badge of servitude were rejected by the Court, which held that the amendment forbade only slavery itself. The Civil Rights Act of 1866 had made illegal private racially discriminatory refusals to contract or engage in real estate transactions. But not until 1968 did the Supreme Court interpret these laws to forbid private discrimination. By the mid-1960s, through the civil rights acts of that period and the new judicial interpretation of Reconstruction legislation, it was no longer necessary to discover state action in ostensibly private conduct in order to prevent discrimination. With the passing of this need, concerted efforts to expand the courts' views of the state action concept came to a halt.

The contrast between the promise of the Constitution and its performance was nowhere better highlighted than in Brown itself. The Supreme Court treated constitutional right and remedy in two separate opinions, Brown I and Brown II, decided in 1955. Brown I decided only that racial segregation was unconstitutional, postponing decisions on the means and the pace of school desegregation. Brown II proclaimed that school segregation need not end immediately; it had to be accomplished with all deliberate speed. The Court required a "prompt and reasonable" start, and permitted delay only for the time necessary for administrative changes. Opposition to desegregation, the Court said, would not justify delay. Nevertheless, southern schools actually integrated at an extremely slow pace. Not until 1969, when the Court announced that the time for "deliberate speed" had passed, did school integration proceed rapidly.

While the "deliberate speed" decision contributed to a sense that desegregation was not urgent and procrastination was tolerable, it is difficult to believe that a different formula would have materially affected the pace of integration. Armed physical opposition in Little Rock and elsewhere in the South was aimed at integration at any time, with or without deliberate speed. One hundred members of Congress signed the southern manifesto denouncing the Supreme Court, and Congress came within a single vote of severely restricting the Court's jurisdiction. Congressional legislation implementing Brown would not be adopted until after the civil rights movement of the 1960s.

The refusal of school districts to desegregate was not susceptible to remedy because there was almost no one who would bring integration suits. No southern white lawyers would bring school suits until the 1970s; in many a southern state, there was only a handful of black lawyers with minimal resources; civil rights organizations were few, small, and overburdened; the United States Justice Department and the Department of Health, Education, and Welfare had no authority to bring suit. As a consequence, where school boards resisted or claimed to be in compliance with Brown, there was hardly any way to compel change. These conditions, not "deliberate speed," kept school segregation in place. Real opportunities for the judiciary to speed the pace of integration had to await political change. That change came in the 1960s, with the pro-civil rights policies of Presidents john f. kennedy and lyndon b. johnson, culminating in the Civil Rights Act of 1964.

Supreme Court opinions stating in obiter dictum that integration must be achieved rapidly began to be issued at the end of the 1960s. In the 1970s courts began to hand down detailed orders requiring the end of segregation "root and branch." Because black and white families were segregated residentially, the only way to integrate schools in many communities was to combine in single attendance zones areas separated by some distance, thus employing school busing. Numerical standards also were employed to measure whether acceptable levels of integration had been reached. These techniques—particularly busing and racial quotas—have stimulated controversy and political opposition.

The integration of the 1970s in most instances was carried out as quickly as possible when courts ordered it. Although the deliberate speed doctrine had by then been overruled, such rapid desegregation met its literal requirements. In a typical case, the revision of boundaries and regulations and the reassignment of students and teachers took a few months. Conditions in the nation, not "deliberate speed," caused the long delay.

Brown, of course, concerned states where segregation had been required or permitted by statute. By the 1970s the Supreme Court faced the issue of northern segregation which was not caused by state statute. It differentiated between "de facto" segregation (resulting from racially segregated housing patterns) and "de jure" segregation (resulting from deliberate official decisions). Some commentators argued that there is no such thing as de facto segregation, for children always are assigned to schools by governmental action. But only where some intent to discriminate was demonstrated did the courts require desegregation. However, where an intent to discriminate has been shown in part of a district, a presumption has been held to arise that single-race schools elsewhere in the district have been the product of such intent. Under this doctrine many northern districts have been desegregated.

Often a city school district is nearly all black and surrounded by white suburban districts. The Court held in milliken v. bradley (1974) that integration across district lines may not be ordered without proof of an interdistrict violation. A number of lower courts have found such violations and have ordered integration across district lines.

All of these standards were implemented, particularly in the 1970s, by the Departments of Justice and Health, Education, and Welfare (later the Department of Education). The private bar brought a considerable number of cases facilitated by congressional legislation authorizing the award of counsel to prevailing parties in school segregation, to be paid by defendants. But the intimate relation between politics and implementation of constitutional civil rights became apparent once more in the 1980s when a new administration opposed to busing and numerical standards for gauging integration virtually ceased bringing school cases to court, undertook to modify or revoke injunctions in already decided cases, and opposed private plaintiffs in others.

Following Brown and in response to the demonstrations of the 1960s, the Civil Rights Acts of 1964, 1965, and 1968 were enacted with the goal of implementing the ideals of the Civil War amendments. But results of these laws varied according to their political, social, and legal settings. Public accommodations, for example, integrated easily; housing has been intractable. Affirmative action policies have been devised to assure certain levels of minority participation, but they have stimulated opposition by whites who claim they are being disfavored and illegally so. Controversy has also developed over the question of whether antidiscrimination orders might be entered only upon a showing of official discriminatory intent, or whether such orders are also justified to remedy the racially discriminatory effects of official policies. Affirmative action and discriminatory intent, the twin central legal issues of civil rights in the 1980s, have in common a concern with distributive fairness. Both issues have been contested in political, statutory, and constitutional arenas.

In general, the courts have sustained the constitutionality of affirmative action as a congressional remedy for past discriminations and as an appropriate judicial remedy for past statutory or constitutional violations. In medical school admissions, for example, four Justices of the Supreme Court thought a fixed racial quota favoring minorities violated the Civil Rights Act of 1964, and a fifth Justice found an equal protection violation; a different majority, however, concluded that an admissions policy favoring racial and other diversity, which assured the admission of a substantial but not fixed number of minorities, would be valid as an aspect of a university's First Amendment exercise of academic freedom. The Court, with three dissents, has sustained a congressionally mandated quota assuring ten percent of certain government contracts to minority contractors. And in school integration numerical measures of integration have been commonplace. In employment and voting as well, affirmative action has been incorporated into efforts to undo discrimination and has been upheld by the courts. (See regents of university of california v. bakke; fullilove v. klutznick.)

The courts usually have required a showing of discriminatory intent in order to establish an equal protection violation, but intent may be inferred from conduct. In any event, the intent requirement may be dispensed with where Congress has legislated to make discriminatory results adequate to trigger corrective action.

The public accommodations portions of the 1964 Act prohibited discrimination in specific types of establishments (typified by those providing food or amusement) that affect interstate commerce. An exception for private clubs reflected uncertainty about the lack of power (perhaps arising out of countervailing constitutional rights of association) and the desirability of controlling discrimination in such places. But the meaning of "private" in this context has not been explicated. Clubs where a substantial amount of business is conducted may not be exempt and an amendment has been proposed to make this clear.

Immediately following passage of the law the Department of Justice and private plaintiffs brought successful suits against recalcitrant enterprises. Most public accommodations complied rapidly. Large national enterprises that segregated in the South integrated because they could not afford the obloquy of resistance, threat of boycott, and consequent loss of business in the North. Many small southern businesses opened to all without problems. Even proprietors who wished to continue discriminating soon bowed to the law's commands. Today one rarely hears of public accommodations discrimination.

Before adoption of the civil rights legislation of the 1960s, the only significant federal regulations of employment discrimination were the Fifth Amendment and Fourteenth Amendment, which prohibited federal and state employment discrimination, and executive order prohibition of discrimination by certain government contractors. The Railway Labor Act and the national labor relations act were construed to forbid discrimination by covered unions. But all such limitations were difficult to enforce. The Civil Rights Act of 1964 and the 1968 Equal Employment Opportunity (EEO) Act were the first effective prohibitions against discrimination in employment. Private suits (with counsel fees payable to prevailing plaintiffs), suits by the Equal Employment Opportunity Commission against private defendants, and suits by the Justice Department against state and local government are the primary mechanisms of enforcement. As elsewhere in modern civil rights law, the two most important issues with constitutional overtones under this law have been whether a plaintiff must prove that discrimination was intentional and whether courts may award affirmative relief, including racial quotas. As to intent, the EEO statute has been interpreted to forbid hiring and promotion criteria that have an adverse impact on a protected group but bear no adequate relationship to ability to perform the job. Thus, an intelligence test for coal handlers, or a height requirement for prison guards, which screen out blacks or women and do not indicate ability to do the job, violate the statute even absent a showing of intent to discriminate. On the other hand, when the statute is not applicable, a plaintiff can secure relief under the Constitution only by showing intentional discrimination.

Affirmative action in the form of hiring and promotion goals and timetables have been prescribed by courts and all branches of the federal government with enforcement responsibility. Moreover, some private employers have adopted these techniques as a matter of social policy or to head off anticipated charges of discrimination. The legality of such programs has been upheld in the vast majority of cases. Affirmative action has substantially increased minority and female participation in jobs it covers but continues to be attacked by nonprotected groups as unconstitutional, illegal, or unwise. In 1984 the Supreme Court held that the EEO Act prohibits enjoining layoffs of black beneficiaries of a consent decree requiring certain levels of black employment where that would result in discharging whites with greater seniority.

Although the Fifteenth Amendment expressly protects the right to vote against racial discrimination and the Fourteenth Amendment's equal protection clause also has been interpreted to do so, voting discrimination was widespread and blatant well into the 1960s, and to some extent it still persists. Apart from physical violence and intimidation, which lasted until the mid-1960s, a long line of discriminatory devices has been held to be in violation of the Constitution and statutes, only to be succeeded by new ones. Very early, southern states adopted grandfather clauses, requiring voters to pass literacy tests but exempting those who were entitled to vote in 1866, along with their lineal descendants—which meant whites only. When the courts struck down the grandfather clause, it was succeeded by laws permitting registration only during a very brief period of time without passing a literacy test. Thereafter even those who could pass the test were not permitted to register. Very few blacks could take advantage of this narrow window, but the stratagem was not outlawed until 1939. Most southern states through the 1920s had laws prohibiting blacks from voting in party primary elections. In the South, the Democratic party excluded blacks, and the winner of the Democratic primary always was elected. These laws were held unconstitutional in the 1940s and 1950s on the grounds that the party primary was an integral part of the state's electoral system, despite its nominal autonomy. As the white primary fell, laws and practices were widely adopted requiring registrants to read and understand texts like the Alabama State Constitution or to answer registrars' questions such as "how many bubbles are there in a bar of soap." These tests were held unconstitutional. Racial gerrymandering, a not uncommon practice where blacks in fact voted, also was enjoined as unconstitutional. Other impediments to voting were not motivated solely by racial considerations but affected blacks disproportionately, such as the poll tax, later prohibited by constitutional amendment. literacy tests also lent themselves to discriminatory administration.

The voting rights act of 1965 invalidated any and all racially discriminatory tests and devices. But, more important, states in which there was a history of voting discrimination (identified by low registration or voter turnout) could not adopt new voting standards unless those standards were certified as nondiscriminatory by the Department of Justice. This prohibition ended the tactic of substituting one discriminatory device for another. Where they were needed, federal officials could be sent to monitor registration and voting or, indeed, to register voters.

Although the 1965 law significantly reduced racial discrimination in the electoral process, abuses persisted in the forms of inconvenient registration procedures, gerrymandering, occasional intimidation, and creation of multimember districts. This last device has its roots in post-Reconstruction efforts to dilute black voting strength. The use of single-member districts to elect a city council would result in the election of blacks from those districts where blacks constitute a majority. By declaring the entire city a multimember district, entitled to elect a number of at-large candidates, the majority white population can, if votes are racially polarized, elect an all-white council—a result that has occurred frequently. The Supreme Court required a showing of discriminatory intent if such a voting system were to be held unconstitutional. But the interplay between Court and Congress produced an amendment of the Voting Rights Act in 1982, permitting proof of a violation of the act by a showing of discriminatory effect.

Affirmative action has been an issue in voting as in other areas. The Supreme Court has held that, upon a showing of past voting discrimination, the attorney general may condition approval of legislative redistricting upon a race-conscious drawing of district lines to facilitate election of minority candidates.

Until 1968, the most important federal prohibition of housing discrimination was the equal protection clause, which was held in shelley v. kraemer (1948) to prohibit judicial enforcement of restrictive covenants among property owners forbidding occupancy of property by members of racial minorities. The Fifth and Fourteenth Amendments prohibit racial segregation in public housing, but the construction of public housing has virtually ceased.

The Fair Housing Act of 1968 marked the completion of the main statutory efforts to satisfy the prescriptions of President harry s. truman's 1947 Committee on Civil Rights. On the eve of the law's passage, the Supreme Court interpreted the Civil Rights Act of 1866 to forbid refusals to engage in real property transactions on racial grounds. Nonetheless, the 1866 and 1968 acts have been the least effective of the civil rights acts. Their failure owes to deep, persistent opposition to housing integration, to a lack of means of enforcement commensurate with the extent of the problem, and to a shortage in the housing market of houses in the price range which most minority buyers can afford. Because the housing market is atomized, a single court order cannot have widespread effect. (Housing is thus unlike education, where an entire district may be desegregated, or employment, where government agencies and other large employers can be required to take steps affecting thousands of employees.)

An effort to address the relationship between race and economics in housing foundered at the constitutional level when the Court held that large-lot zoning—which precluded construction of inexpensive housing, thereby excluding minorities—was not invalid under the Constitution absent a demonstration of racially discriminatory intent. The 1968 Fair Housing Act authorizes judicial relief when such laws produce discriminatory effects, without demonstration of intent. Nevertheless, economic factors and political opposition have prevented the statutory standard from having a significant practical impact. In several states where state law has invalidated such zoning, the actual change in racial housing patterns has been slight.

Some legislative efforts to desegregate housing have run into constitutional obstacles. A municipality's prohibition of "For Sale" signs to discourage panic selling by whites in integrated neighborhoods has been held to violate the First Amendment. A judge's award of damages for violation of the Fair Housing Act has been held to violate the Sixth Amendment right of trial by jury (subsequently, contrary to civil rights lawyers' expectations, jury verdicts often have been favorable to plaintiffs). A large governmentally assisted housing development's racial quota, set up with the aim of preventing "tipping" (whites moving out when the percentage of blacks exceeds a certain point), was still being contested in the mid-1980s.

From constitutional adoption, through interpretation, and judicial and statutory implementation, the law of civil rights has interacted with the world that called it into being. No great departures from settled doctrine are to be anticipated in the near future. But similar assertions might have been made confidently at various points in the history of civil rights, only to be proved wrong in years to come.

Jack Greenberg
(1986)

(see also: Civil Rights Movement.)

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