2011-08-22 23:08:02 by admin
The Civil Rights Movement, a decades-long effort to win equitable treatment for African Americans and other groups underrepresented in American society, is described chronologically in this entry. Two themes are evident. First, federal protection of civil rights has a paradoxical relationship with states’ rights. All civil rights legislation has been opposed or limited in response to the argument that pursuant to the Tenth Amendment, the federal government should not involve itself in areas of state responsibility. The Supreme Court repeatedly voiced this concern and, in the past, invalidated civil rights legislation partly on this ground.
Deference to state law enforcement prerogatives always has been a centerpiece of Justice Department civil rights enforcement policy. For decades, Congress repeatedly rebuffed so basic a measure as antilynching legislation in the name of states’ rights. Yet, the original federal civil rights statutes, and their underlying constitutional amendments, were responses to outrages by states or to private outrages that states failed to ameliorate. Given the origins of the need for federal protection of civil rights, states’ interests often received undue weight in shaping federal civil rights policy.
Second, for many years, the federal government was more involved in denying the rights of Blacks and other minorities than in protecting their interests. The quest for equal education emerged as early as 1787 in an unsuccessful petition by Reverend Prince Hall and Black citizens to the Massachusetts state legislature for equal educational facilities. Well into the 20th century, federal employment policy included racial segregation and exclusion. De jure segregation in politics, the armed forces, public housing services, and, of course, education demonstrate the depth of federal involvement in discrimination.
The Bureau of Refugees, Freedmen, and Abandoned Lands (Freedmen’s Bureau), created near the end of the Civil War, is viewed as the federal government’s initial civil rights enforcement effort. The bureau established or supervised many kinds of schools: day, night, Sunday, industrial, and higher education. In fact, many of the nation’s Black colleges, including Howard University, Hampton Institute, and Fisk University, were founded with the bureau’s aid. Even so, the initial effort to assist Blacks was tainted by, among other factors, the bureau’s role in establishing the oppressive system of southern labor Contracts. With few exceptions, federal protection of Blacks via the Freedmen’s Bureau ended in 1868.
Other congressional Reconstruction legislation employed a variety of techniques to protect civil rights. The Civil Rights Act of 1866 and the Force Act of 1870 imposed penalties on those who enforced discriminatory features of the southern Black Codes. In addition, the 1870 law not only made it a crime to conspire to hinder a citizen’s exercise of federal rights but also provided special protection for Black voters. The Civil Rights Act of 1871 authorized civil actions and criminal penalties against those who violated the constitutional rights of Blacks, authorizing the president to use federal forces to suppress insurrections or conspiracies to deprive people of their federal rights. The Civil Rights Act of 1875, the culmination of the Reconstruction period civil rights program, imposed civil and criminal sanctions for discrimination in public accommodations, conveyances, and places of amusement. Armed with the criminal provisions, federal prosecutors brought thousands of cases in southern federal courts as the primary vehicle through which the government protected civil rights.
This burst of protective activity, along with the rest of the Reconstruction, disintegrated with Rutherford B. Hayes’s compromise of 1877 and the withdrawal of federal troops from the South. In 1878, federal authorities prosecuted only 25 federal criminal civil rights violations. There are many reasons why federal criminal prosecutions were and are ineffective to protect civil rights. First, shortly after enactment of the post–Civil War antidiscrimination legislation, the Supreme Court limited Congress’s power to protect civil rights when, in United States v. Reese (1876) and James v. Bowman (1903), it invalidated portions of the 1870 act. Further, in United States v. Harris (1883) and Baldwin v. Franks (1887), the Court struck down the criminal conspiracy section of the 1871 act and the Civil Rights Cases (1883), finding that the 1875 act was unconstitutional. These cases included the Slaughterhouse Cases (1873) and United States v. Cruikshank (1876), decisions that narrowly construed constitutional and statutory protections.
At the start of the 20th century, the Civil Rights Repeal Act of 1894 and reorganization of federal law in 1909 further weakened federal law. Similar judicial difficulties characterized federal civil remedies to protect civil rights. For example, in Plessy v. Ferguson (1896), the Supreme Court declared “separate but equal” the law of the land, providing legal justification for six decades of Jim Crow segregation. Then, the Court upheld separation of the races in Berea College v. Commonwealth of Kentucky (1908). The Court explicitly extended separate but equal to K–12 education in Gong Lum v. Rice (1927).
From the Compromise of 1877 until the 1940s, references to federal “protection” of civil rights were a misnomer at best. The end of World War II renewed violence against Blacks. President Harry S Truman, in Executive Order 9008, created a presidential civil rights committee to conduct inquiries and to recommend civil rights programs. Truman, like other presidents, promoted civil rights most effectively in areas not requiring legislative action.
Southern political power in Congress precluded significant civil rights legislation. In 1947, Truman authorized the Justice Department to submit an amicus curiae brief opposing judicial enforcement of racially restrictive covenants. This brief was influential in the Supreme Court’s decision in Shelly v. Kramer (1948), which rendered racially restrictive housing covenants judicially unenforceable. From 1948 through 1951, Truman issued an array of executive orders prohibiting discrimination in federal activities, culminating in his desegregating the military. Civil rights enforcement received little attention early in the administration of Dwight D. Eisenhower, but there were important exceptions to this pattern. Executive Order 10479 (1953) extended the antidiscrimination provisions previously required in defense Contracts to all government procurement Contracts.
Change was on the horizon in education in the wake of Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents for Higher Education (1950), wherein the Supreme Court invalidated segregation in higher education. Of course, the Supreme Court’s unanimous decision in Brown v. Board of Education of Topeka (1954) was a milestone. Following Brown, President Eisenhower could not avoid civil rights issues, exemplified in the controversy surrounding the desegregation of schools in Little Rock, Arkansas (Cooper v. Aaron, 1958). Little Rock was not a turning point in the administration’s enforcement efforts. Even when armed with increased authority to investigate denials of voting rights by the Civil Rights Act of 1957, the Justice Department brought few cases.
President John F. Kennedy’s administration began with little impetus toward substantial civil rights achievement. However, the rising tide of civil rights activity, increased public awareness, and continued southern resistance to desegregation made new federal and state confrontations inevitable. In May 1961, federal marshals protected freedom riders. In September 1962, in connection with efforts to integrate the University of Mississippi, heavily outnumbered federal marshals and federalized National Guard troops withstood an assault by segregationists. Only the arrival of thousands of federal troops restored order. In the Birmingham crisis of 1963, which gained notoriety for the brutal treatment of demonstrators by state and local law enforcement officers, the federal government tried to act as a mediator.
The Kennedy administration’s inability to deal forcefully with situations such as that in Birmingham led the president to propose further federal civil rights legislation. At the executive branch’s request, the Interstate Commerce Commission promulgated stringent rules against discrimination in transportation terminals. In November 1962, President Kennedy issued an executive order prohibiting discrimination in public housing projects and in projects covered by direct, guaranteed federal loans. Further, in executive orders in 1961 and 1963, Kennedy both required affirmative action by government contractors and extended the executive branch’s antidiscrimination program in federal procurement Contracts to all federally assisted construction projects.
Soon after Lyndon B. Johnson succeeded to the presidency, he endorsed Kennedy’s civil rights legislation. Due in part to his direct support, Congress enacted the Civil Rights Act of 1964, the most comprehensive civil rights measure in American history. The act outlaws discrimination in public accommodations, in federally assisted programs, and by large private employers, extending federal power to deal with voting discrimination. Title VII of the act created a substantial new federal Bureaucracy to enforce antidiscrimination provisions in employment. The 1964 act also marked the first time that the Senate voted cloture against an anti–civil rights filibuster.
Unlike the Reconstruction civil rights program, Congress’s 1960s civil rights legislation survived judicial scrutiny. In a series of cases from 1964 to 1976, the Supreme Court both sustained the new civil rights program and revived the Reconstruction-era laws. For example, in Katzenbach v. McClung (1964) and Heart of Atlanta Motel v. United States (1964), the Court rejected attacks on the act’s public accommodations provisions. Consequently, it appeared that, at least formally, the legal battle against racial discrimination was won. The federal civil rights program encompassed nearly all public and private purposeful racial discrimination in public accommodations, housing, employment, education, and voting. Future civil rights progress would have to come through vigorous enforcement, through programs aimed at relieving poverty, through affirmative action, and through laws benefiting groups other than Blacks.
Within six months of President Nixon’s inauguration, for the first time, the Justice Department opposed the NAACPLegal Defense and Education Fund in a desegregation case. Yet, under the pressure of Supreme Court decisions and the momentum of the civil rights efforts under President Johnson, the Nixon administration did help promote new levels of southern integration as his 1968 “southern strategy” included campaigning against busing. However, the administration continued to lash out at “forced busing.”
An era of ambivalence and uncertainty directed civil rights enforcement from 1970 through 1986. Civil rights enforcement became engulfed in the constitutionality of desegregation remedies, for example, whether to bus schoolchildren for purposes of desegregation. The Supreme Court addressed state-mandated school segregation in numerous post-Brown cases such as Swann v. Charlotte-Mecklenburg board of Education (1971); Keyes v. School District No. 1, Denver, Colorado (1973); and Milliken v. Bradley (1974).
The comprehensive coverage of federal civil rights law did not eliminate the inferior status of Blacks in American society. Pressure mounted for assistance in the form of affirmative action or preferential hiring and admissions in higher education. These programs, most notably reflected by Regents of the University of California v. Bakke (1978), divided even the liberal community traditionally supportive of civil rights enforcement.
The period since 1986 reflects an era of retrenchment and unpredictability with a weakened policy direction for civil rights law and legislation. During this period, the Supreme Court narrowly interpreted constitutional provisions and federal statutes that provided protections for the civil rights of various minorities. In particular, minorities experienced setbacks in desegregation (Missouri v. Jenkins, 1990; Board of Education of Oklahoma City Public Schools v. Dowell, 1991; Freeman v. Pitts, 1992) and race-conscious admissions plans in K–12 schools (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). Thus, the struggle for civil rights continues.
Paul Green
See also Brown v. Board of Education of Topeka; Brown v. Board of Education of Topeka and Equal Educational Opportunities; Dowell v. Board of Education of Oklahoma City Public Schools; Federalism and the Tenth Amendment; Freeman v. Pitts; Keyes v. School District No. 1, Denver, Colorado; Milliken v. Bradley; Missouri v. Jenkins; Parents Involved in Community Schools v. Seattle School District No. 1; Plessy v. Ferguson; Swann v. Charlotte-Mecklenburg Board of Education; Title VII
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