Law as a Teacher of Society: Reflections on Title VII After Fifty Years

• Published date: 01 January 2016
• Date: 01 January 2016
• DOI: http://doi.org/10.1111/jlse.12035
• Author: Andrew Little

Journal of Legal Studies Education

Volume 33, Issue 1, 71–96, Winter 2016

Law as a Teacher of Society:

Reflections on Title VII After

Fifty Years

Andrew Little∗

I. INTRODUCTION

The Civil Rights Act of 1964 has worked to reshape American society for

more than fifty years through arguably its most important subpart, Title VII,

which prohibits discrimination in employment.1This article is not so much

an attempt to join the chorus of scholars offering reflections on the statute

after five decades,2as it is an attempt to offer another way of looking at Title

VII that hopefully sheds light on the intertwined issues of legal purpose and

legal teaching.

I begin with the premise that an often unstated purpose of any given

law is essentially pedagogical: laws are enacted, among other things, to teach

people which behaviors and activities are acceptable and which are not.

What, then, does Title VII teach? Does it merely prohibit discrimination in

the workplace, or is its foundational purpose more expansive? Depending on

how one assesses the teaching purpose of Title VII, the next inquiry might be

how to measure the law’s teaching effectiveness? Is Title VII still relevant? I

answer this question affirmatively, demonstrating the unfinished business of

Title VII by pointing to recent work by social scientists highlighting subtle and

latent bias in race and religion. I end with observations related to teaching

Title VII.

∗J.D., M.A., Assistant Professor of Business Law and Associate Dean, College of Business Admin-

istration, Abilene Christian University, Abilene, Texas.

142 U.S.C. §2000e-2(a) (2015).

2See, e.g., The Civil Rights Act at Fifty,10STAN.J.CIV.RTS.&CIV.LIBERTIES 159 (2014); Ann

McGinley, Title VII at Fifty Years:A Symposium,14N

EV. L.J. 661 (2014).

C2016The Author

Journal of Legal Studies Education C2016Academy of Legal Studies in Business

71

72 Vol. 33 / The Jour nal of Legal Studies Education

In discussing the pedagogy of Title VII, I have chosen to focus on the

views of four people, two of whom have spoken directly about the purposes

of Title VII and the Civil Rights Act of 1964, and two of whom have offered

cogent explanations about the purposes to which law, in general, can be put.

The first category includes President Lyndon Baines Johnson (or LBJ) and

Supreme Court Justice Antonin Scalia, whose views about the purposes of

Title VII are in conflict. The second category is composed of contemporary

legal scholar Lynn Stout and political theorist Mary Keys, both of whom

have offered different, yet compelling, arguments about how law is used in

society.3

I make three contributions to the literature. First, I offer a different

lens through which to view Title VII, namely, that of law as a teacher. This

theoretical lens derives initially from Aristotle, was worked out more fully by

Aquinas in the Middle Ages, and has most recently been articulated by Mary

Keys, among others.4However, neither Keys nor any of the other contempo-

rary theorists have applied the law-as-teacher lens to Title VII. Keys’s insights

work in tandem with the recent work of Lynn Stout, who approaches legal

purpose and legislation from the standpoint of behavioral economics in her

2011 book, Cultivating Conscience.5Yet Stout, like Keys, does not specifically

apply her model for legislation and regulation to Title VII or the employment

relationship in general. Thus, the first contribution I make is to forge links

between several disparate and seemingly unrelated pieces of legal source

material.

Second, I measure the effectiveness of Title VII’s stated goals by refer-

encing recent studies in the race and religion contexts that demonstrate from

a social scientific standpoint that bias and discrimination are exceptionally

difficult to eradicate. These studies illustrate the common understanding that

3Choosing these four voices to guide the flow of this article is inherently idiosyncratic, but I did

so for several related reasons. Initially, given that the article is about recovering the Aristotelian

virtue tradition in discussions of legal purpose, Mary Keys must be present as her recent work

is seminal for this approach. Her research is amply complemented by that of Lynn Stout, the

second voice. Then, because legislative purpose invariably draws upon interpretations of history,

I chose one of the original articulators of Title VII’s purposes, President Lyndon Baines Johnson.

Finally, I needed a voice to counterbalance the broad pronouncements of the former president,

and thus I selected Justice Scalia. Any number of different people could have been chosen, but

these are the four primary voices on whom I settled.

4MARY M. KEYS,AQUINAS,ARISTOTLE,AND THE PROMISE OF THE COMMON GOOD 59-67, 208-16

(2006).

5LYNN STOUT,CULTIVATING CONSCIENCE:HOWGOOD LAWS MAKE GOOD PEOPLE 75-229 (2011).