Before 1964, the last piece of major federal civil rights legislation was the Civil Rights Act of 1875. (1) This Act prohibited race discrimination in public accommodations (2) until the Supreme Court, unfortunately, held it unconstitutional. (3) Thereafter, the combination of the Senate filibuster and Southern Democratic control of the Senate Judiciary Committee made the enactment of further civil rights legislation seemingly impossible. But, events such as the assassination of President John F. Kennedy, his replacement with President Lyndon B. Johnson, the arrests and marches of Dr. Martin Luther King, Jr., and Alabama Sheriff Bull Connor's use of police dogs and fire hoses against civil rights marchers--all displayed nightly on national television-made a federal response finally irresistible. The result was the enactment of the Civil Rights Act of 1964, (4) our greatest piece of civil rights legislation.
The purpose of the Act was, quite simply, to ratify, effectuate, and extend what Congress and everyone else understood to be the principle of Brown v. Board of Education (5): the prohibition of all official race discrimination. (6) The meaning of Brown might be arguable, but what it was understood to mean at the time is not. Congress understood it to prohibit racial discrimination-as did everyone else. On the same day that Brown was decided, the Court also decided Boiling v. Sharpe. (7) Boiling involved segregation in the District of Columbia, and the Court decided the case on strictly "no-race-discrimination" grounds. (8) Later cases, however, present an incredible history of judicial and administrative abuse of power, perhaps unequaled in the history of law--certainly American law. They completely reversed the major provisions of the Act so that, instead of pro-hinting, they were made to require or permit race discrimination. (9)
The Act has four major sections: Title II, Title IV, Title VI, and Title VII. (10) Title II prohibits race discrimination by restaurants, hotels, and other public accommodations. (11) Title IV addresses public grade school education. (12) Title VI prohibits discrimination by institutions that receive federal funds, (13) and Title VII prohibits discrimination in employment. (14) Title II is of little current interest because it is not in the interest of businesses to turn away black customers, and they are glad to be prohibited from doing so. Each of the other three Titles, however, soon came to be seen by civil rights professionals not as a victory but as an obstacle to racial advance. (15)
Just as the movement to prohibit racial discrimination began with the schools, so did the movement to make racial discrimination a constitutional requirement. School racial segregation came to a quick and complete end as a result of the Act, but school racial separation did not. (16) Nonracial neighborhood assignment in areas of residential racial concentration resulted in racially concentrated schools. (17) Civil rights leaders saw this as a problem, and the obvious remedy was compulsory integration. (18) This meant a return to racial assignment, this time to increase integration. Brown's prohibition of race discrimination thus quickly went from being a great achievement to being an obstacle to be overcome.
In the 1968 Green v. County School Board of New Kent County case, Justice William J. Brennan, Jr., writing for a unanimous Supreme Court, decided to make the move from prohibiting segregation to requiring integration. (19) This move was extraordinarily ambitious and extraordinarily unwise. After fourteen years of litigation, the Southern school districts were finally brought into compliance with Brown only to be told that Brown was no longer the constitutional requirement if insufficient integration resulted. An openly admitted requirement of racial integration of schools, however, was not possible. It would have required the Court at least to qualify, if not overrule, Brown, and it would also have been applicable to the whole country--not just the South. It would have also required the Court to explain what compulsory integration was expected to accomplish. Justice Brennan cleverly avoided these obstacles by simply denying that Green required integration and insisting that it required only something quite different: "desegregation." (20) Thus, instead of contradicting Brown, the Court was actually, we were told, enforcing Brown by imposing a requirement of racial discrimination in the name of enforcing a prohibition. Because it was "desegregation," not integration, it would be required, it seemed, only in the South, which, in the opinion of the country, no doubt deserved whatever the Court was...