Civil Rights (Update 1)

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In contemporary legal discourse, civil rights refer principally to legislative and judicial proscriptions against racial segregation and racial discrimination—although some branches of civil rights law concern sex discrimination and discrimination based on religion, ethnicity, national origin, physical or mental handicap, and sexual orientation. The primary sources of civil rights are the civil war amendments to the Constitution and congressional legislation enacted pursuant to these amendments. In common usage, however, the term civil rights includes antidiscrimination legislation enacted under Congress's other constitutional powers, federal regulations, executive orders, and state laws, as well as judicial decisions interpreting all of these sources.

There have been two major periods of civil rights activity. The first, commonly referred to as reconstruction, began at the end of the civil war and lasted little more than a decade. The beginning of the second period, sometimes called the Second Reconstruction, is often placed at 1954, with the Supreme Court's decision in brown v. board of education (1954).

Although all three branches of the national government have participated in establishing the scope of civil rights, in recent years the Supreme Court has been the focus of continuing interest and often heated debate. The Court has played a highly visible role in determining the applicability of formal civil rights guarantees to social activity, and since Brown, the Court has been widely seen as the institution primarily responsible for articulating the morality of racial equality. This perception is ironic, considering the Court's role in eviscerating civil rights legislation during the first reconstruction—a history that seems especially vivid in light of some of the Court's recent decisions narrowing the substantive content of civil rights.

Civil rights jurisprudence generally involves two broad issues: defining the right that has allegedly been violated and determining the scope of the remedy once a violation has been found. In theory, the latter follows the former because the Supreme Court often says that the nature of the violation determines the scope of the remedy. However, in practice, the relation between the two is not so neatly defined. First, civil rights remedies do not ineluctably follow the finding of a violation. For example, although the Court in Brown v. Board of Education determined that segregation violated the constitutional rights of black school children, the aggrieved children were forced to await Brown II v. Board of Education (1955) before the Court issued a remedy. Even this remedy was partial; school boards were not required to eliminate the violation immediately, but "with all deliberate speed." It is also not clear that determining the scope of civil rights remedies actually follows the determination that a violation has occurred. The reverse may occasionally be true: commentators often speculate that the Court's decision to reject a claim of constitutional injury has been influenced by concerns over its ability to administer a manageable and effective remedy. Whatever the exact sequence may be, the narrowed conception of civil rights that evolved during the midstages of the Second Reconstruction has been accompanied by a correspondingly limited scope for remedial policies.

Recent conflicts over civil rights issues reflect the ongoing effort to derive specific resolutions from general principles set forth in the Constitution—an effort that historically has produced shifting and sometimes contradictory interpretations. The thirteenth amendment, for example, renders slavery and its badges and incidents unconstitutional, whereas the fourteenth amendment guarantees equal citizenship and equality before the law. The late-nineteenth-century Court determined that neither private discrimination nor state-mandated segregation implicated these civil guarantees. Yet these principles are currently interpreted to permit statutory regulation of private discrimination and to prohibit state-sponsored racial segregation.

Thus, although it seems clear that equality before the law is a basic civil right guaranteed by the Fourteenth Amendment, this ideal has historically offered no clear basis for determining the scope of civil rights because equality is subject to multiple interpretations. In the modern civil rights era, equality has been interpreted to forbid racial discrimination, but even this formula offers no clear basis for determining the scope of civil rights. For example, it is not clear whether the proscription against racial discrimination applies only to explicit racial categories or whether it applies more broadly to policies, practices, and customs that appear, on their face, neutral, but exact similar exclusionary effects. It is also not clear whether race-conscious efforts to remedy the effects of racial discrimination are consistent with or a violation of the prohibition. It is also not clear which background circumstances and conditions are relevant and which are not in determining whether an act or policy is discriminatory. Anatole France's oft-quoted saw that "Law in its majestic equality forbids the rich and poor alike from sleeping under bridges" illustrates the transparency of purely formal conceptions of equality that do not acknowledge the importance of social and economic inequality.

Post-1986 developments manifest a ripening of conflict over the question of whether civil rights law contemplates only formal equality or whether it contemplates something more. Judges, scholars, legislators, and laymen have debated whether racial equality requires only the cessation of practices that explicitly discriminate on the basis of race or whether it also demands a full dismantling of practices, policies, and structures that continue to produce racial inequality. The opposing approaches to these questions derive from competing conceptualizations of civil rights: the antidiscrimination approach and the antidomination approach.

The antidiscrimination approach focuses on achieving formal equality through the eradication of racial classifications and purposeful discrimination. It emphasizes individual-centered harms and colorblind remedies. In contrast, the antidomination view tends to look beyond formally manifested or intentional discrimination to the circumstances and conditions of inequality. Ultimately, this wider perspective envisions the creation of legal remedies and social practices that will foster greater racial balance throughout society.

Many, if not most, civil rights decisions are consistent with either approach. However, rough distinctions between the two are apparent in current debates over the extent to which pervasive conditions of racial inequality implicate civil rights and bear on the scope of civil rights remedies. The doctrinal arenas in which this conflict is most apparent have involved discriminatory intent and affirmative action.

Although the scope of the intent doctrine was largely determined in the 1970s, its full impact has become increasingly apparent in subsequent years. Discriminatory intent was first articulated as the sine qua non of an equal protection claim in washington v. davis (1976). In this case, plaintiffs challenged the use of a reading and writing test to screen applicants for employment in Washington, D.C., as police officers. Not shown to measure skills necessary for effective performance as a police officer, the test served as an effective barrier to black recruitment. The Court nevertheless determined that an equal-protection claim could be sustained only if the test had been adopted with the intent to discriminate against minority applicants. This intent standard, as further clarified in later cases, could not be satisfied even where the employer adopting the challenged policy or practice did so with full knowledge of its disproportionate impact. In recent years, the discriminatory-intent doctrine has, in effect, provided a presumption of constitutionality to most racially unequal conditions because it is the unusual case in which some discriminatory intent is manifest in a governmental decision. Thus, racial inequalities that have historically burdened nonwhite communities and that continue to exist today in employment, education, housing, and criminal justice generally do not implicate civil rights. Although the Supreme Court has acknowledged that such disparities often result from societal discrimination, unless a particular discriminatory decision can be identified and isolated, such inequalities are not seen to raise any civil rights issues and thus require no remedy.

Many commentators and some members of the Court have criticized the Court's use of the discriminatory-intent test to distinguish inequalities that violate the Constitution from those that do not. They assert that the presence of explicit intent should not exhaust the definition of constitutional injury. Some point out that the model of discrimination contemplated by the intent requirement is simply anachronistic. In the aftermath of Brown 's rejection of formal white supremacy, few decision makers currently adopt policies that explicitly discriminate against blacks.

Even on its own terms, the intent standard is inadequate, for racial animus may play a role in decision making, yet be difficult to prove. Indeed, racial motivation may remain hidden even to the actor. Yet another problem is that the intent standard tends to focus inquiry on a single allegedly discriminatory actor when there are often multiple actors, many of whom have acted without animus, but who, in the aggregate, perpetuate the discriminatory effects of past discrimination.

The principle of purposeful discrimination also fails to address inequality that is reproduced by social practices that have now become ingrained in American society. Critics have argued that the intent standard embodies a superficial conceptualization of formal equality in that its critical scope focuses only on the most external aspects of racial discrimination. This framework virtually excludes consideration of racial categories that are effectively created through apparently neutral practices. Sometimes referred to as "procedural discrimination," practices and policies that do not discriminate on their face, but predictably produce racial disparities throughout society are more common sources of inequity than are formal racial categories. Unvalidated standardized tests, subjective evaluation procedures, nepotism, word-of-mouth hiring practices, and even the high-school diploma requirements can unfairly limit the opportunities of minorities. Whether intentional or unthinking, these practices disadvantage and burden minorities in ways that are closely related to the formal discriminations of the past.

Such criticisms are informed by a view that the moral and political objective of the Fourteenth Amendment is to empower the national government to eliminate the effects of white supremacy. Eliminating intentional discrimination does not fully satisfy this mandate, as purposeful harm is simply one of many means of perpetuating white supremacy.

Despite the effective limits that the intent standard places on the scope of civil rights litigation, defenders marshal several arguments to justify its currency. One is that intentional discrimination prevailed during the period preceding Brown, and it is this form of discrimination that is now understood as incompatible with the nation's ideals. Institutionally, the intent standard is justified because intentional racial discrimination is precisely the kind of perversion of democracy that the Court is empowered to correct. Remedying these harms and eliminating these tendencies justify and exhaust the moral and ideological commitment of civil rights. Any other rule, it is argued, would involve judicial overreaching and undue interference with myriad governmental and private practices that sometimes produce racially disproportionate results. Moreover, it would stretch the Court's institutional and symbolic resources to fashion appropriate remedies if a broader standard were used. In sum, there is no ideological, political, or moral justification to move beyond intentional discrimination. Racially disparate results do not themselves speak to civil rights; it is racially unequal treatment that constitutes the crux of the injury. Under this view, the intent standard thus effectively mediates between legitimate and illegitimate conceptions of civil rights.

The intent standard, along with other doctrines in current vogue with the Supreme Court's majority, represents a refusal to extend constitutional protections to preclude institutional and systemic discrimination. Although aggregate views of racial disparities suggest that racial separation and stratification are still common in employment, housing, voting, and the criminal justice system, this view is rendered irrelevant by the Court's current framework that seeks one actor when there are often several and current and demonstrably direct causes when many are historical and cumulative.

Those who support an antidomination view of racial equality note that aggregate views of race paint a picture of society that resembles conditions prevailing during periods in which white supremacy was more openly advocated and racial discrimination more explicitly practiced. They regard these disparities as raising legitimate civil rights issues not only because of their probable connection to the more explicit policies of the not-too-distant past, but also because of the devastating effect on the life chances of minorities and the likelihood that such conditions will reproduce themselves for generations to come.

Earlier decisions suggested that the Court might be receptive to this view. For example, in griggs v. duke power co. (1971), the Court ruled that an employment practice that disproportionately harmed minorities constituted employment discrimination under the civil rights act of 1964, whether or not the practice was adopted with the intent to discriminate. The fact that the practice disparately burdened minorities was enough to require the employer to produce evidence that the practice was a business necessity.

In subsequent years, however, the Court increasingly disfavored such systemic views of discrimination. An ominous indication of the full implications of this trend was suggested by mccleskey v. kemp (1987) and was reinforced in Wards Cove Packing Co. v. Antonio (1989).

In McCleskey v. Kemp, Justice lewis f. powell accepted the validity of a study indicating that African Americans in Georgia who killed whites were significantly more likely to receive the death penalty than were blacks who killed blacks or whites who killed either whites or blacks. Nonetheless, the Court determined that these statistics did not substantiate an equal-protection challenge to the Georgia death penalty. Aggregate statistics could not be used because they could not support an inference that intentional racial discrimination had influenced the disposition of the defendant's particular case. Moreover, other factors, such as the state's interests in imposing the death penalty, in maintaining prosecutorial discretion, and in protecting the integrity of jury deliberations, precluded the defendant from gaining access to information needed to prove that racial discrimination affected the disposition of his case.

Although McCleskey v. Kemp might have been reconciled as consistent with the distinction that the Court drew between constitutional claims (in which systemic claims were generally disfavored) and statutory claims (in which the Court had adopted a more flexible approach toward such claims), Wards Cove demonstrates that the Court's rejection of systemic claims is not limited to constitutional claims. In Wards Cove, the Court significantly narrowed Griggs to require, in part, that employees challenging employment practices that create racial disparities must specify and isolate each practice and its effects.

McCleskey and Wards Cove are two of several cases that illustrate how the Court in the 1980s has employed various analytical and normative preferences to reject the appeal for systemic relief. Its techniques include viewing causation as isolated rather than interrelated, demanding showings of contemporary rather than historical explanations for racial disparities, and embracing merely formal rather than substantive equality as the objective of civil rights law.

The predominance of the intent standard has significantly affected the development of affirmative action, another area in which the conflict between competing visions of civil rights has been most apparent over the past decade. Affirmative action, while largely referring to race-conscious remedial measures, also encompasses more general efforts to dismantle segregation and to cease the reproduction of racial inequality. green v. county school board of new kent (1968) best represents this broader conceptualization of affirmative action. In this case, the Supreme Court determined that a "free choice" policy was insufficient to remedy the dual school system created by the defendant school board's previous de jure segregation. Equality required not only a cessation of discriminatory practices, but in addition, an affirmative effort to dismantle the racial segregation that had been created through express governmental policy and that would likely be maintained by the practices that were institutionally and societally ingrained.

The current controversy over affirmative action centers on the extent to which this task of dismantling a dual society should be undertaken by governmental and private entities in various contexts. Affirmative efforts have been made to integrate public and private industries, higher education, and professional trades. Affirmative-action plans have been developed as remedies following findings of discrimination; some were included in consent decrees and still others were developed voluntarily, sometimes under the threat of suit, but other times out of genuine commitments to increase the numbers of underrepresented groups in various walks of life.

Critics of affirmative action vigorously assailed the use of race-conscious strategies to benefit minority individuals who had not themselves been shown to be victims of discrimination. Their principal argument is that affirmative action is simply "disease as cure," in that it makes use of race classification to distribute opportunities on the basis of race rather than on individual merits. This is precisely the harm that was imposed on racial minorities and that cannot be justified on nondiscrimination grounds. They argue, moreover, that whites harmed by such efforts are in fact victims of racial discrimination and that the use of race-conscious efforts to correct racial imbalances violates the Fourteenth Amendment.

Affirmative action has been most often justified by supporters as necessary to remedy the effects of past discrimination. Most of the arguments boil down to a view that a full remedy for racial discrimination requires affirmative efforts to restructure racial hierarchy by redistributing educational, economic, and employment opportunities across racial groups. Affirmative action has also been characterized as essential to the nondiscrimination principle. In this view, it is a bottom-line effort to minimize the effects of racial bias that works its way into evaluation systems that have historically favored dominant values and interests. Some argue that affirmative action serves as reparation for past discrimination, whereas others justify affirmative action as essential to creating a future society that is not racially stratified. In the words of one Justice, "to get beyond race, we must first take race into account."

Despite the polarized nature of the ongoing affirmative-action debate, affirmative action is a doctrinal area in which the fluctuating majorities on the Court and its shifting sensibilities since 1986 are best illustrated. Indeed, the Court has only recently reached an apparent consensus on the constitutionality of affirmative action.

The much awaited decision in regents of university of california v. bakke (1978) produced something of a stalemate: state universities were permitted to use race as one factor in admission decisions; but, absent some evidence of past discrimination on their part, they could not set aside seats for which only minorities could compete. After Bakke, the constitutional status of affirmative action remained murky. In subsequent cases, a shifting majority upheld affirmative-action plans adopted by the federal government in construction contracts (in fullilove v. klutznick, 1980) and in private industry (in united steel-workers of america v. weber, 1979). However, growing concerns over the rights of whites disadvantaged by these efforts finally came to the fore in firefighters ' local #1784 v. stotts (1984), in which the Court precluded federal courts from ordering a city employer subject to an affirmative-action consent decree to protect the jobs of less-senior minorities by laying off more-senior whites.

Foes of affirmative action subsequently interpreted Stotts to ban all affirmative-action remedies that benefitted persons other than actual victims of discrimination. The U.S. Justice Department, after urging the Court to make such a ruling, used Stotts as a basis for challenging affirmative-action programs operated by hundreds of cities and states pursuant to consent decrees. Yet Stotts failed to produce a clear consensus regarding the constitutionality of affirmative action. Subsequent Court decisions upholding other affirmative-action plans benefitting "non-victims" indicated that Stotts was not read as encompassing a broad rejection of race-conscious remedies.

Despite these decisions, however, there remained on the Court a vocal opposition to such race-conscious measures. That slim majorities upheld these measures suggested that the constitutionality of affirmative action remained highly contested and subject to limitation. In 1989, a majority finally coalesced in city of richmond v. j. a. croson co. (1989) to hold that race-conscious affirmative-action programs were subject to strict scrutiny. The city of Richmond adopted a thirty percent set-aside program for minority contractors. Although Richmond was fifty percent black, only one sixty-seventh of one percent of all city contracts had gone to minority contractors. The Court held that the city could not undertake an affirmative-action program to correct such gross disparities without some evidence that black contractors had been discriminated against in the past and that this discrimination had caused the disparities. Particularly striking is the Court's refusal to recognize the relevance of Congress's previous findings of industry-wide discrimination, and its willingness to reduce centuries of white supremacy to the same plane as two decades of affirmative action. Such findings could not be "shared," but had to be proven anew in Richmond.

Croson demonstrates how the combination of the intent requirement and the application of strict scrutiny to affirmative action combine to create the tragic irony that institutional and systemic perpetuation of racial inequality escapes constitutional scrutiny, while efforts to break these patterns and practices are constitutionally prohibited.

Moreover, Croson represents a decisive victory of the more formal antidiscrimination approach over the more contextual antisubordination approach, at least where Congress has not adopted the latter approach. (See metro broadcasting v. fcc.)

Critics argue that traditional protections for nonwhites are being eroded while the civil rights laws are being interpreted vigorously to preclude some of the more effective remedies. This claim is not implausible when one compares, for example, the language in Croson (explaining how the Court's deep commitment to eliminate all forms of racial discrimination mandates a rejection of even remedial race classifications) with the Court's willingness in patterson v. mclean credit union (1989) to interpret the civil rights act of 1866 to leave a private employer's racial harassment unremedied under this statute. Although the contrasting protections in each of these cases might be reconciled by focusing on the distinctions between the separate doctrinal categories under which these cases arise, it is hard to ignore the apparent trend in which minorities are receiving less protection against traditional forms of race discrimination while the racially privileged are receiving more.

The Court's recent race jurisprudence also suggests that civil rights litigation no longer occupies the status of "high priority litigation." The Court seems to have rejected the view that civil rights plaintiffs play a special role as private attorneys general seeking to effectuate society's highest interest in eradicating discrimination, root and branch. In technical interpretations, the Court has narrowed the availability of remedies and simultaneously shifted advantages to employers and often to white males. Most troubling are rule 11 cases, in which courts have levied severe penalties against civil rights litigants for bringing suits that were judged to be "frivolous." Although rule 11 of the federal rules of civil procedure lay dormant until it was raised in 1983, nearly half of all rule 11 sanctions have involved civil rights and public-interest cases. Other research also suggests civil rights cases are also disproportionately likely to be dismissed given the heightened pleading threshold placed on such claims. The overall effect of these "techinical" opinions has been to raise the risk and cost of litigating civil rights claims at precisely the same time that shifts in substantive rules make it unlikely that a plaintiff will prevail. The probable consequence of such decisions is the chilling of the civil rights bar. The long-term consequence may be that law may cease to serve as a meaningful deterrent to discriminatory behavior.

These recent developments have led many to conclude that the Second Reconstruction is largely a dead letter and that the period is now more aptly described as a post-civil rights era. Indeed, the parallels with the Second Reconstruction seem to confirm the cyclical nature of civil rights protection and, more troubling, the cyclical nature of its decline.

KimberlÉ Crenshaw


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

Lawrence, Charles 1987 The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism. Stanford Law Review 39:317–387.

Ortiz, Daniel 1989 The Myth of Intent in Equal Protection. Stanford Law Review 41:1105–1150.

Schnapper, Eric 1983 Perpetuation of Past Discrimination. Harvard Law Review 96:828–864.

Strauss, David A. 1986 The Myth of Colorblindness. Supreme Court Review 1986:99–134.

Tribe, Laurence H. 1988 American Constitutional Law, 2nd ed. New York: Foundation Press.

Williams, Patricia 1989 The Obliging Shell: An Informal Essay on Formal Equal Opportunity. Michigan Law Review 87: 2128–2151.

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Civil Rights (Update 1)

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Civil Rights (Update 1)