CIVIL RIGHTS (Update 2)

The field of civil rights generally refers to the various areas of American law concerned with a person's right to be free from discrimination based on his or her identity as a member of a particular social group. In the classical liberal political tradition, "civil rights" historically meant the universally held legal rights of all citizens to participate in civil society—for example, to make contracts, pursue occupations, own and convey property—and more recently has included the "political" right to vote in civic elections. The contemporary notion of civil rights as protection for minority groups is linked to the struggle, first by African Americans and then others, to expand the equal enjoyment of (supposedly) universally held rights to disempowered groups in American society. Today, civil rights law, in one form or another, encompasses discrimination based on race, gender, disability, primary language, ethnicity, national origin, family structure, religion, and sexual orientation.

There are multiple sources of civil rights law. The Constitution contains provisions abolishing slavery (the thirteenth amendment), prohibiting the denial of voting rights on the basis of race, sex, or failure to pay a poll tax (the fifteenth amendment, the nineteenth amendment, and the twenty-fourth amendment), and guaranteeing the equal protection of the laws (the fourteenth amendment and analogous state constitutional provisions). Federal legislative enactments prohibit discrimination on designated bases and in a variety of contexts, including most notably public accommodations, employment, education, lending, and housing. Civil rights law also includes the rules promulgated by federal administrative agencies constituted under and charged with enforcement of various federal civil rights statutes. In addition to federal law, an often overlapping complex of state constitutional law and state and local enactments, ordinances, and administrative rules outlaw discrimination on a wide variety of bases and in diverse social contexts.

Federal constitutional law is relevant to civil rights law in several ways. First, and most importantly, the federal Constitution is a substantive source of civil rights protection. The equal protection clause of the Fourteenth Amendment provides that "no State shall … deny to any person within its jurisdiction the equal protection of the laws." The courts have used this open-ended language to craft a general body of civil rights law. While federal and state legislatures may provide greater protection, the constitutional standards set a legal minimum.

The courts early on interpreted equal protection narrowly, to prohibit only the most explicit forms of exclusion of blacks by the government. In plessy v. ferguson (1896), the Supreme Court upheld a state law requiring segregation of whites and blacks in rail cars. Articulating what became known as the separate but equal doctrine, the Court interpreted the equal protection clause to permit formal and explicit racial segregation. Under the Court's logic, no denial of equal protection of the laws was manifest in racial segregation so long as equal facilities were provided. Of course, the racial segregation to which African Americans were subjected hardly offered equal facilities. Nevertheless, Plessy became the constitutional authority for the legality of the systemic racial segregation that characterized the post-reconstruction domination of African Americans in many sectors of American society.

The modern era of civil rights begins with the Court's repudiation of the separate-but-equal doctrine in brown v. board of education (1954). According to the Brown opinion, segregated schools were inherently unequal. Relying on social science research suggesting that segregation inflicted on black children a stigma of inferiority that impeded their education, the Justices ruled that statemandated school segregation constituted unequal treatment in violation of the equal protection clause.

Brown marked the starting point for a massive increase in litigation challenging various social practices as violating constitutional equal protection guarantees. It also has symbolized, for generations of lawyers, the possibility of employing law for progressive social change. Widely viewed as the American legal system's ratification of the goals of the civil rights movement, Brown is associated with the historic dismantling of the formal system of racial segregation that marked not only education, but also public parks, carriers, employment, recreation, and housing in the United States. After decades of expansion and contraction, however, the potential for using constitutional doctrine as a mandate for overcoming continuing inequality has been largely tamed by the narrow interpretations that conservative Court majorities have accorded equal protection doctrine since the mid-1970s.

The potential substantive reach of the equal protection clause is limited at the outset by the Court's continued allegiance to the state action doctrine mandating that the equal protection clause applies only to discrimination deemed to be governmental in nature. Therefore, any protection against discrimination by private actors depends on the existence of applicable legislation. Legislative bodies may, but are not constitutionally compelled to, prohibit various forms of discrimination by private parties. Under the Court's interpretation of the Constitution, however, private discrimination, no matter how pervasive or oppressive, is beyond the purview of the equal protection clause.

The warren court, which decided Brown, often found state action in contexts in which private actors played particularly powerful roles in the lives of individuals. The more conservative burger court and rehnquist court have since imposed strict barriers to litigation in the name of the state action doctrine, significantly limiting the potential reach of constitutional antidiscrimination norms. One consequence is that, even in the field of education at issue in Brown, continuing racial segregation and new resegregation is beyond constitutional reach because, as the Court ruled in missouri v. jenkins (1990), racial school segregation that cannot be traced to intentional governmental action must be deemed privately caused.

Another key restriction on the potential reach of the equal protection clause is the judicially imposed requirement that, unless the government has overtly based a decision on race or another constitutionally prescribed ground, the plaintiff must prove that he or she was a victim of "intentional" discrimination to make out a violation of the equal protection clause. Since the fall of the open and official racial apartheid that marked American life, particularly in the South, prior to the late 1960s, decision-makers have rarely made race an explicit consideration. In washington v. davis (1976), the Court held that the disparate racial impact of a standardized written test for choosing police officers did not establish an equal protection violation, for there was no showing that the test had been chosen or its use continued for racially discriminatory purposes. Under this doctrine, a plaintiff must show that a governmental entity intentionally made a decision on the basis of a racial criterion in order to render equal protection norms against racial discrimination applicable. The Court chose the "intent" standard to govern constitutional equal protection analysis, even though various civil rights statutes permit "disparate impact" along with intent to make out a violation. Under the disparate impact approach of Title VII of the civil rights act of 1964, for example, proof of discrimination can be based on the employer's use of a criterion for decisionmaking that results in the disproportionate exclusion of blacks or other protected groups and that cannot be proved necessary to the legitimate needs of the employer. Adoption of the intent standard has meant that constitutional antidiscrimination doctrine is, as a practical matter, virtually useless in litigating against contemporary forms of racial stratification.

The equal protection clause has also been interpreted since Brown to apply beyond the context of race and national origin. In craig v. boren (1976), the Court held that gender classifications should also be subject to heightened constitutional scrutiny, although a lesser standard known as "intermediate" scrutiny. In a notably vigorous application of this standard, the Court held in united states v. virginia (1996) that the male-only admission policy at the Virginia Military Institute was unconstitutional sex discrimination. In Clark v. Jeter (1988), the Court extended the intermediate scrutiny standard to classifications based on the marital status of the subject's parents (or illegitimacy; see nonmarital children). The Court has thus far refused to recognize age, wealth, or sexual orientation as suspect classifications, meaning that such criteria have no special constitutional significance.

In one of the most controversial civil rights decisions in recent times, the Court in bowers v. hardwick (1986) exemplified its unwillingness to extend heightened constitutional protections to certain minorities. The Court refused to strike down a state sodomy statute's criminalization of sexual practices between consenting adults on the ground that it violated the constitutional right of privacy. The Bowers opinion not only refused to extend protection against discrimination to sexual minorities, but seemed to give constitutional legitimacy to the most anachronistic stereotypes and prejudices that underlie the marginalization of sexual minorities in American society. However, in romer v. evans (1996), the Court struck down a state constitutional amendment prohibiting municipalities from protecting sexual minorities from discrimination, holding that such a referendum reflected animosity toward a particular group and was unrelated to any legitimate state objective. Evans demonstrates that, despite the Bowers result, sexual minorities will receive at least some protection from explicit governmental action aimed at them.

In addition to providing substantive civil rights protection, equal protection has also been interpreted to limit legislative action to address historical discrimination. The conservative Court majorities of the last two decades have embraced what might be called a "colorblindness" interpretation of the equal protection clause, so named because it purports to require that the government be blind to race in its decisionmaking processes. According to the colorblindness approach, the equal protection clause protects individuals from personal evaluations based on a proscribed criterion (such as race or gender) rather than vindicates the interests of historically subordinated groups (such as African Americans or women). From this perspective, the equal protection clause protects whites, men, and other historically privileged groups in the same ways that it protects African Americans, women, and other disadvantaged groups.

In the affirmative action cases, the colorblindness approach has meant that governmental attempts to remedy past discrimination through policies giving preference to minorities with respect to various governmental benefits are deemed constitutionally equivalent to race-conscious policies that harm racial minorities. As the Court ruled in richmond (city of) v. j. a. croson co. (1989), strict scrutiny applies to all racial classifications, whether malign or benign. Accordingly, the City of Richmond's affirmative action policy for hiring construction contractors was struck down on the ground that there was insufficient proof that the huge under-representation of racial minorities in the construction contracting business was the result of past racial discrimination—although there had been congressional findings of discrimination nationwide in the construction industry, and Richmond, the capital of the Confederacy, had long enforced racial apartheid in virtually all sectors of public life. adarand constructors, inc. v. peÑa (1995) extends the same strict scrutiny to analogous affirmative action of the federal government.

In addition to including a significant body of civil rights protections and setting limits on legislative remedial action, the Constitution is relevant to civil rights law because, like any other federal legislative or executive action, civil rights acts of Congress must be authorized by some provision of the Constitution. For example, in the civil rights cases (1883), the Court struck down the civil rights act of 1875, which prohibited racial discrimination in public accommodations. The Court held that the fourteenth amendment, section 5—granting Congress power to enforce the equal protection clause and other substantive guarantees of the amendment—did not authorize Congress to remedy any discriminatory practice that did not independently constitute a violation of the Fourteenth Amendment. As a substantive matter, the Fourteenth Amendment did not prohibit private discrimination by innkeepers, railroad carriers, and others. Consequently, when Congress came to enact the Civil Rights Act of 1964—prohibiting race and gender discrimination in public accommodations, employment, and education by public and private parties—it relied on the commerce clause, granting Congress power to regulate interstate commerce, and the spending power, permitting Congress to attach conditions to the receipt of federal funds. The reach of federal civil rights law depends, indirectly, on the future interpretation of these constitutional grants of congressional power and the resolution of federalism concerns raised by their expansive reach.

Finally, constitutional law is relevant to the field of civil rights in a less formal and a more ideological way. As an abstract matter, the idea of "civil rights" in a democratic society embodies the public meanings of equality and democratic self-determination. The special status of constitutional law in American civic ideology gives special significance to the courts' determination in particular cases the civil rights necessary for justice under democratic principles. The content of "civil rights" is not self-evident, and in fact has been hotly contested throughout American history.

Writers in a new scholarly movement, critical race theory, began in the 1990s to challenge many of the core assumptions of the civil rights tradition. According to these writers, judicial interpretations of constitutional requirements for equality constitute and embody a particular way of interpreting the world, a special language for distinguishing the relevant from the irrelevant in the social landscape. The judicial interpretation of the significance and meaning of race, gender, sexual orientation, disability, and other features of a person's identity necessarily is part of the broader struggle over the exercise of social power generally in American society. The structure of antidiscrimination law—with its premise that racial power is manifest in isolated, individual, intentional, and irrational acts—forms a narrative partly of justice and liberation, but partly also of legitimation and apologia. It paints a false picture of a world in which, separate from any race-conscious acts of decisionmakers, things operate according to rational and culturally neutral norms, thereby mistaking the norms of dominant social groups for universal standards of merit.

Gary Peller
(2000)

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