The Civil Rights Act at fifty: past, present, future.

Author:Engstrom, David Freeman

    The Civil Rights Act of 1964 stands as one of the great legislative milestones of the twentieth century. Its mandates reach, for good or ill, into wide swathes of American social and economic life. It has spawned a raft of similar legislation, both here and abroad. And it has long sat at the center of much scholarly thinking about American public law. For all these reasons, the fiftieth anniversary of its enactment merits remembrance and reflection. Yet even beyond the semicentennial tidiness of the current moment, now is an ideal time to take stock, as recent events--including Supreme Court decisions limiting job discrimination class actions, (1) the quickening march toward legal recognition of gay marriage, (2) and the waning of the Voting Rights Act (3)--have produced a reckoning of sorts about where civil rights law has been and where it might be going. The Civil Rights Act's fiftieth, it seems, has come at a fitting time, when reflection is urgently needed.

    On January 24-25, 2014, the Stanford Law Review and the Stanford Journal of Civil Rights & Civil Liberties convened a Symposium, "The Civil Rights Act at Fifty," to venture such reflection. The event brought together a talented cast of scholars who have made significant contributions to our understanding of the Civil Rights Act, five of whom generously shared the Essays in this issue. These scholars include Richard Epstein, whose brief against Title VII some twenty years ago remains a model of academic first-principles thinking, (4) and Richard Ford, who has since offered his own influential critique of job discrimination laws. (5) Just as notable are Mary Anne Case, who has long possessed one of the most thoughtful scholarly voices on gender discrimination, (6) Olatunde Johnson, whose scholarship offers the premier exploration of Title VI's powerful but unfulfilled promise, (7) and Samuel Bagenstos, who has written lucidly and persuasively about the challenges facing the disability rights movement. (8)

    In addition to these scholarly voices, the proceedings also featured individuals who have spent time in the trenches, implementing and, in some cases, even helping to conceive the Civil Rights Act or the cognate job discrimination laws that have sprung up around it. They include William Gould, who long before serving as Chairman of the National Labor Relations Board (NLRB), cut his teeth as a labor and civil rights lawyer at the United Auto Workers and the NLRB immediately before and after 1964. They include Chai Feldblum, who, prior to her current position on the Equal Employment Opportunity Commission, helped draft the Americans with Disabilities Act. And they include John Reiman, who runs one of the nation's most dynamic for-profit civil rights law firms and has brought a range of innovative lawsuits at the frontier of civil rights practice. (9)

    Given the richness of the event, this brief introduction, focused as it is on the Symposium's scholarly output, offers a radically incomplete accounting of what in fact transpired. Nor can it capture the richness of the Essays themselves. But surveying the Symposium's written contributions still offers a revealing snapshot of the state of current debate about civil rights. Perhaps more importantly, a look across the contributions highlights some crosscutting themes that echoed throughout the proceedings--and will surely echo across the debate around civil rights in the years to come. Toward these ends, Part II offers a digestible overview of each of the contributions, while Part III offers some thoughts connecting them.


    Two stellar Essays focus on Title II's provisions barring discrimination in public accommodations. In The Unrelenting Libertarian Challenge to Public Accommodations Law, Samuel Bagenstos eloquently frames the current debate over Title II and its state-law cousins as "how broadly and deeply equality principles should extend into civil, economic, and social relations." (10) For Bagenstos, the Supreme Court's decision in Boy Scouts of America v. Dale, (11) which upheld the organization's right to bar a gay assistant scoutmaster against a challenge under a state public accommodations law, marks the start of a "tightening siege" in which conservative forces have successfully invoked First Amendment associational freedom in order to chip away at--and ultimately do away with--Title II's guarantee of equal access to public spaces. Much of his account concerns tactics: association rights are the doctrinal weapon of choice, Bagenstos asserts, because of the political unpalatability of a frontal attack on the antidiscrimination principle itself. But the reason the tactic might just work, Bagenstos argues, is jurisprudential: Dale gave rise to a distinction between expressive and purely commercial activities that is deeply unstable, as exemplified by a set of percolating cases in which wedding photographers and other proprietors assert that the expressive nature of their goods or services entitles them to First Amendment protection against public accommodations laws. (13) For Bagenstos, the doctrinal line drawn in Dale thus leaves plenty of room for lower courts, or the Supreme Court itself, to permit the expressive exception to swallow the nondiscrimination rule.

    In Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right, Epstein joins Bagenstos in criticizing litigation efforts beginning with Dale, but not as an unprincipled tactical move. Rather, Epstein worries those efforts will not do enough to achieve the ideal: paring back the antidiscrimination principle at Title II's core to cover only "monopoly-like situations," where refusals to deal leave discrimination's victims unable to purchase the same or similar goods or services from a nondiscriminatory, profit-seeking rival. (14) To be sure, Epstein does not bemoan Title II's enactment, even if some of its legislative champions envisioned a somewhat...

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