National Review Online is marking the 50th anniversary of the Civil Rights Act by calling on Congress to abolish its protections against racial discrimination.
On April 10, President Obama spoke at the Lyndon B. Johnson Presidential Library to honor the former president's work to pass and sign the Civil Rights Act of 1964, legislation that Obama explained was "as fundamental to our conception of ourselves and our democracy as the Constitution and the Bill of Rights." He added, "that's why I'm standing here today -- because of those efforts, because of that legacy," before warning that "history travels not only forwards; history can travel backwards, history can travel sideways. And securing the gains this country has made requires the vigilance of its citizens."
Instead of joining the president and the rest of America in celebrating this historic law that sought to push back against institutional discrimination and guard against future equal protection violations, an April 15 NRO column by Roger Clegg, Hans von Spakovsky, and Elizabeth Slattery called for Congress to gut key provisions of the Civil Rights Act, as well as the Voting Rights Act of 1965. Their proposal is rooted in the fact that these laws -- in recognition of the fact that racial discrimination in this country has been practiced against those who are not white for centuries -- are explicitly race-conscious and have "been expanded, however, through agency interpretation and activist court rulings to include 'disparate impact.'"
Rather than embrace decades of federal law, these NRO contributors instead prefer an ahistorical and so-called colorblind approach, where "provisions that might be read to authorize preferences or discrimination are hereby repealed or amended to authorize only consideration of factors other than race, color, ethnicity, or national origin." From the authors' opposition to fifty years of civil rights precedent on behalf of historical victims of racial discrimination:
The federal government wittingly and unwittingly endorses a great deal of racial discrimination in America. A 2011 report by the Congressional Research Service catalogued literally hundreds of government-wide and agency-specific set-aside and preference programs and grants throughout the entire executive branch that amount to some form of racial discrimination.
The "disparate impact" approach to civil-rights enforcement results in race-based preferential treatment -- often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences.
In brief, an action that results in racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers) or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color, or both. The Obama administration loves this approach, alas.
This rejection of established civil rights law and ignorance of discrimination against persons of color isn't new for NRO or for von Spakovsky and Clegg. Neither are their misinformed views about how race is considered under the law.
Laws that recognize racial classifications are at least as old as the reconstructed U.S. Constitution. Properly applied, federal race-conscious action has been held constitutional for over 45 years. These authors' claim that "discrimination on the basis of race and ethnicity is unconstitutional, unlawful, and morally repugnant, yet the practice is rife throughout federal law and government programs" is not only absurdly simplistic, it's wrong. In fact, Justice Anthony Kennedy flatly rejected the authors' suggestion that race-conscious law be banned in his controlling opinion for one of the Supreme Court's most recent affirmative action cases, Parents Involved in Community Schools v. Seattle School District No. 1:
[P]arts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that '[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,' is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, should teach us that the problem before us defies so easy a solution...The statement by Justice Harlan that '[o]ur Constitution is color-blind' was most certainly justified in the context of his dissent in Plessy v. Ferguson...And, as an aspiration, Justice Harlan's axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle."
That's not the only recent Supreme Court civil rights opinion these NRO contributors ignore in their whitewash of constitutional law.
To support their claim that disparate impact litigation is an unfair "racial preference," the authors favorably rely on a quote from one of Justice Scalia's concurrences that argues disparate impact puts "a racial thumb on the scales." But they fail to mention that Scalia acknowledged the validity of disparate impact litigation as recently as 2010. In Lewis v. Chicago, Scalia wrote for the unanimous Supreme Court that "our charge is to give effect to the law Congress enacted. By enacting [Title VII disparate impact provisions], Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer's motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix."
Of course, Slattery, Clegg and von Spakovsky would very much like Congress to "fix" this by doing away with "racial and ethnic preferences" in federal laws whose express purpose is to provide race-conscious solutions to racial discrimination. They propose "amending" parts of the law or suggesting Congress "clarify" other sections, but what they don't say is that these clarifications and amendments could largely destroy the effectiveness of the Civil Rights Act. Lawsuits based on a theory of disparate impact are critical for those who have faced discrimination, especially since many instances of racism in modern society are concealed rather than publicized. If plaintiffs were always required to show the smoking gun of discriminatory intent -- as in, prove what's in the mind of their biased boss, for example -- it would be far more difficult to address insidious forms of racism that still persist.
The authors go on to suggest that Congress amend the Civil Rights Act to "provide defendants with an affirmative defense against disparate-impact claims." What they don't mention is that Title VII already provides an affirmative defense to employers in employment discrimination cases. As long as the employer can demonstrate that the employment practice that resulted in a disparate impact "is job related for the position...and consistent with business necessity," then the employer is cleared. But apparently this affirmative defense is too onerous for NRO. Clegg and von Spakovsky propose a new affirmative defense that would let the employer off the hook as long as they can demonstrate that they acted in "good-faith" and their "motives were pure."
Studies have shown that vestiges of the "bad old days" remain and that Congress shouldn't be watering down civil rights laws, let alone be in the business of scrapping them entirely. Persons of color still experience frequent and widespread racial discrimination in housing, hiring, and voting. Race-conscious legislation like the Civil Rights Act, the Fair Housing Act, and the Voting Rights Act, however, continue to have a major impact on curbing these forms of systemic discrimination. Conversely, the sudden lack of enforcement of civil rights law leads to a spike in the type of discrimination previously disallowed.
Nevertheless, in NRO's world, the Civil Rights Act could somehow continue to exist on paper even though their proposal would eliminate the core enforcement provisions of the law. In other words, the Civil Rights Act can survive, but without the most effective ways for those who have been historically discriminated against to actually use it.
So why bother with a dead letter?
If you're audacious enough to call for repealing civil rights legislation while everyone is celebrating 50th anniversaries, you might as well find the audacity to admit it.