Have we moved beyond the civil rights revolution?

• Author: Skrentny, John D.
• Position: The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. ACKERMAN'S WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION II. STRATEGIES FOR MANAGING EMPLOYMENT IN THE 2000S III. THE PEOPLE AND RACIAL REALISM, PART I: GOVERNMENTS AND THE PROMOTION OF RACIAL REALISM A. Racial Realism in the Schools B. Racial Realism in Law Enforcement IV. THE PEOPLE AND RACIAL REALISM, PART II: THE PRIVATE SECTOR AND THE RACIAL REALIST STRATEGY V. IS RACIAL REALISM THE PEOPLE'S AMENDMENT TO THE CIVIL RIGHTS REVOLUTION? INTRODUCTION

The constitutional significance of the Civil Rights Revolution, according to Bruce Ackerman's new book, lies not in a series of court cases, but in popular sovereignty and the separation of powers. (1) He identifies Martin Luther King, Jr., Lyndon Johnson, Hubert Humphrey, and Everett Dirksen as key spokespersons (2) for the revolution that had at its heart the elimination of "institutionalized humiliation" based on racial discrimination. (3)

My purpose here is to assess current race relations in America, focusing on employment, in light of Ackerman's argument. My emphasis is not on the current state of employment discrimination, (4) but on what employers or other advocates say they want to be the case in the management of racial difference in workplaces. I argue that the current employer focus on managing racial differences for organizational effectiveness and profit making--a strategy of management that I call "racial realism"--is a significant departure from Ackerman's vision of the Civil Rights Revolution in several respects.

First, though racial realism is prominent in business, the professions, government employment, and media and entertainment, this strategy of managing racial difference has no national spokespersons comparable to King and Johnson. Second, though officials of the executive branch and local governments sometimes practice racial realism when making appointments, racial realism has surprisingly little legal authorization from the courts and no statutory basis. Third, racial realism can harm the interests of nonwhites in ways that sometimes may lead to the kinds of humiliation that Ackerman claims civil rights laws were designed to prevent. Fourth, while some employers and other advocates have used or promoted the benefits of racial realism, this is not the same as the "We the People" popular sovereignty that Ackerman identifies as the foundation for the civil rights developments of the 1960s. While these employers and other advocates are indeed "The People" in a direct sense, they are not popularly elected, and the strategy of racial realism in employment has not been meaningfully debated in any public, deliberative forum.

In my title, I ask whether we are beyond civil rights. What I mean is that there is considerable advocacy for practices occurring in a context of--at best--legal ambiguity. These practices were not a part of the Civil Rights Revolution, and without proper legal guidance, they can violate the values of that revolution, and even result in the kind of institutionalized humiliation that Ackerman argues the revolution was designed to eliminate.

1. ACKERMAN'S WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION

   It is impossible to summarize Ackerman's magisterial achievement in these pages. I will instead focus on key parts of his argument that have inspired my own thoughts here. The most important of these is the notion that popular sovereignty provides a quasi-constitutional foundation for the Civil Rights Revolution.

   By "Civil Rights Revolution" (capitalized), Ackerman is referring only to the American establishment of racial equality in the twentieth century, (5) but this nevertheless refers to something quite broad. He is interested in the key court decisions, the key statutes (the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Civil Rights Act of 1968), and these statutes' various implementing regulations. (6) He is interested in federal efforts to prohibit private discrimination in employment, public accommodations, and housing, as well as prohibitions on laws that limit voting rights or choices to marry across racial lines. (7)

   Ackerman specifies that these efforts to stop discrimination were not motivated by an anti-classification perspective--by moral beliefs or ideologies that deem racial classifications to be wrong in any circumstances. (8) The goal was to eliminate what Ackerman refers to as "institutionalized humiliation." (9) In his view, the landmark statutes of the 1960s built on the logic of the Brown v. Board of Education opinion, which struck down segregated schools because of the "feelings of inferiority" that they created in black children, inhibiting their ability to learn. (10) Similarly--but in a significant extension beyond Brown s limitations on public schooling--exclusions in accommodations, employment, and private housing created humiliation and feelings of inferiority that the government had an affirmative duty to prevent. (11) The moral affront of these systematic exclusions was great enough that the federal government moved to a New Deal standard operating practice, what Ackerman calls "government by numbers," or a rationalized commitment to achieving demonstrable results of the statutory aspirations. (12)

   The Equal Employment Opportunity Commission's (EEOC) late 1960s focus on counting the numbers of minorities and women actually being hired (as opposed to a focus on simply investigating individual complaints of discrimination) (13) is therefore not a departure from the Civil Rights Revolution. It is part of it. To complain about affirmative action as a violation of civil rights principles would be wrong, in Ackerman's account. It would be like the nation committing to the principle of highway safety and then complaining about speed limits.

   In Ackerman's view, then, the Civil Rights Revolution was a majoritarian action, even if it required a determined and violently repressed social movement to force the momentum toward reform. Unelected federal administrators and judges played key roles, to be sure, but their actions were only fulfilling the will of the elected representatives of the people. There were several individuals who acted as "spokesmen"--Martin Luther King, Jr., Lyndon Johnson, Hubert Humphrey, and Everett Dirksen (14)--who did not lead public opinion. They reflected it. For example, Congress protected employment civil rights with Title VII of the Civil Rights Act of 1964 at the height of public opinion support for equal employment opportunity. (15) This is what Ackerman means when he emphasizes the popular sovereignty that gave power to the Civil Rights Revolution. (16) It was the will of We the People--henceforth capitalized to emphasize this specific meaning of popular sovereignty.

2. STRATEGIES FOR MANAGING EMPLOYMENT IN THE 2000S

   Ackerman's survey of the grand sweep of the Civil Rights Revolution from the New Deal to the 1970s affords us the opportunity to take stock of what the protection of civil rights looks like today. My focus here is on the context of employment, a key part of the Civil Rights Act of 1964 since it involves opportunities to pursue a livelihood. Specifically, I am interested in the perspectives of employers and their efforts to manage their workplaces, which were to be constrained by Title VII.

   When we take this employer perspective, we can see complexity in twenty-first century American employment relations. Specifically, there are variations in approaches to racial differences in employment. First, we can see that Title VII's guarantees of nondiscrimination and the "government by numbers" approach of affirmative action appear to be quite distinct, even if they are related and focused on the same goal. We can also see a separate approach to managing racial difference in the workplace that would appear to involve some discrimination, but not always the systematic humiliation that Ackerman argues Congress intended Title VII to prevent.

   In the United States in the 2000s, then, there are three distinct strategies of managing racial difference in workplaces. We can understand their distinctions when we consider what meaning or significance they give to race, when we identify their goals, and also when we consider what basis or authorization they have in law.

   As I have detailed elsewhere, (17) the most prominent strategy for managing racial difference in the workplace is what we may call classical liberalism. In this strategy, employers are to ignore race entirely: racial differences have no meaning or significance for employers for any reason. The goal of classical liberalism is equal opportunity and justice. (Ackerman would argue that it is designed to prevent humiliation.)

   Classical liberalism has a strong legal basis in Title VII of the Civil Rights Act of 1964, which states simply that employers are to ignore racial and other employee traits when managing their workplaces. Title VII flatly prohibits employment discrimination:

   It shall be an unlawful employment practice for an employer--(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. (18) The message here appears quite clear: racial differences must not factor into employment decisions.

   Title VII was not the first legal intervention mandating a classically liberal strategy in employment. As Ackerman notes, efforts from the Reconstruction era came alive in the Civil Rights Revolution. (19) For example, Congress passed the Civil Rights Act of...