In early 1963, Dr. Martin Luther King, Jr. led what would become known as the "Birmingham Campaign" with the Southern Leadership Conference in which confrontations between protestors and police were widely publicized. (1) Protesters included elementary school students who would be seen worldwide on television being hosed with high-pressure water hoses and attacked by police dogs. (2) 1963 and 1964 saw sit-ins at lunch counters such as the Woolworth's and wade-ins at pools in places like St Augustine, Florida. These confrontations were televised and brought the Civil Rights movement into the American home.
In June 1963, Medgar Evers, the civil rights leader, was shot in the back while entering his home. In September 1963, four little girls died in the bombing of the 16th Street Baptist Church in Birmingham, Alabama. President John F. Kennedy, who had long struggled with the moral issue of civil rights, addressed the nation about the topic of civil rights on June 11, 1963, declaring that "[t]hose who do nothing are inviting shame as well as violence [and [t]hose who act boldly are recognizing right as well as reality." (3) From this era of protest and violence was born the Civil Rights Act of 1964 (the "Act").4 Now fifty years later we reflect on the Act's promise, whether the promise of the Act has been fulfilled and for whom, and consider the future of the Civil Rights Act of 1964.
On June 19, 1963, President Kennedy sent a Civil Rights Act to Congress. (5) The bill sent by President Kennedy sought to address discrimination in public places but refrained from addressing discrimination in employment. (6) Also, President Kennedy's bill did not
contemplate gender equality. Title VII as originally introduced in the House of Representatives merely authorized a Commission on Equal Employment Opportunity, which would have the powers "to prevent discrimination on the ground of race, color, religion or national origin in Government employment." (7)
Title VII of the equal employment provision of the Civil Rights Act of 1964 took shape over a long amendment and debate process. Gender equality was added only two hours before a vote on the Act, and was only included as means of derailing it. (8) This last minute addition has significantly shaped the application of the Act over the course of the past 50 years.
Fifty years after the enactment of the Civil Rights Act of 1964, some parallels can be drawn between the debates and amendments that shaped the Act and the controversy surrounding the Supreme Court's decision in 2013, in which it significantly reshaped provisions for voting equality hard fought for in the debates of 1964 and 1965 and the Voting Rights Act of 1965--the progeny to the Civil Rights Act of 1964.
Periodically, we pause to reflect on great moments in history such as the enactment of the Civil Rights Act of 1964. In 2014, fifty years after the enactment of the Act, which sought to end segregation in public places and ban employment discrimination on the basis of race, color, religion, sex and national origin, we must reflect and ask--has the Civil Rights Act of 1964 lived up to its promise?
In many ways the promise of the Act has been realized in areas likely not visualized by its framers. For example, it has provided the legal basis for advancement with respect to sexual orientation discrimination and disability discrimination. The Equal Employment Opportunity Commission ("EEOC") established by the Civil Rights Act of 1964 has received and investigated nearly a million charges of employment discrimination in the last decade. (9) At the same time, efforts to bring about racial equality through such means as affirmative action have been curtailed, and in many ways the reach of the Civil Rights Act of 1964 has been slow with respect to its original promise of racial equality. We need not go further than our own profession of law, which has experienced painfully slow and at times nonexistent increases in diversity and inclusion. The American Lawyer has discussed the "Diversity Crisis" in big law firms across the nation. (10) "More than a quarter century after the first national efforts to boost the presence of black lawyers at large firms, African-American partners" remain rare at most firms, notwithstanding the fact that large firms have "more than doubled in size in the past two decades." (11)
It is in this light that this Article examines the path that led to the Civil Rights Act of 1964, particularly legislation on civil rights and the inclusion of antidiscrimination in employment provisions; looks to the promise of the Act and its expansion; and finally asks whether the promise of the Civil Rights Act of 1964 has been realized in the area it most clearly targeted--racial discrimination. Part I of this Article discusses federal legislation on civil rights leading up to the Civil Rights Act of 1964, specifically, the Civil Rights Acts of 1866 and 1957. Part II focuses on the Act, discussing the atmosphere in which the Act was proposed by President Kennedy and ushered through Congress by President Lyndon Johnson. Part II also includes a synopsis legislative history of Title VII focusing on the unintended manner in which "sex" was added to the Act. Part III discusses the expansion of the Civil Rights Act of 1964 into areas not forecasted in President Kennedy's vision, and how these populations have benefitted from the Act. Part III also looks at the Act's effect on racial discrimination through the lens of diversity and inclusion in the legal profession and discusses ways in which the promise of the Civil Rights Act of 1964 has not been realized with respect to racial equality in employment. Part IV concludes by looking prospectively to the next fifty years and proposing steps that can be taken to better fulfill the promise of the Civil Rights Act of 1964.
FEDERAL LEGISLATION ON CIVIL RIGHTS LEADING TO THE CIVIL RIGHTS ACT OF 1964
Civil Rights Act of 1866
The Civil Rights Act of 1866, "An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication," marked the first time Congress legislated on the issue of civil rights. (12) It was enacted on the heels of the Thirteenth Amendment, which abolished slavery, and in response to the "Black Codes"--state legislation, which placed restrictions on the activities and movement of freed slaves. "Black Codes" essentially circumvented the Thirteenth Amendment (13) to the extent that the "freedom" granted to slaves under the amendment was meaningless. It is in this light that the Civil Rights Act of 1866 was enacted. The debate in the Senate and House centered on the statute's broad language. Interestingly, this emphasis on broad language and application was also prominent in the congressional debate preceding the Civil Rights Act of 1964.
The Civil Rights Act of 1866 did several important things which were impactful to the Civil Rights Act of 1964. The Civil Rights Act of 1866 overturned the Supreme Court's 1857 decision in DredScott v. Sandford, (14) by declaring that all persons born in the United States, with the exception of non-tax paying Native Americans, were citizens of the United States. The Dred Scott Court had held that only Congress could confer citizenship and that Article II of the Constitution did not confer such citizenship to slaves. (15) Through the Civil Rights Act of 1866, Congress finally conferred the citizenship the Dred Scott Court had discussed.
Civil rights cases under the Civil Rights Act of 1866 have been prosecuted well past the enactment of the Civil Rights Act of 1964 in areas such as housing discrimination, (16) racially discriminatory policies in schools (17) and employment, specifically, with respect to racial harassment. (18)
Section 1981 of the Civil Rights Act of 1866 provides in relevant part that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Runyon v. McCrary held that the prohibition on racial discrimination extended to private schools, noting that it has been long held that the Civil Rights Act of 1866 "prohibits racial discrimination in the making and enforcement of private contracts." (19) The Supreme Court in Patterson v. McLean Credit Union held "that racial harassment relating to the conditions of employment is not actionable under [section] 1981 because that provision does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations." (20) As such, the Civil Rights Act of 1866 has been interpreted to apply only in the formation of a contract and not prevent discrimination after such formation.
Civil Rights Act of 1957
Proposed in 1957 by President Eisenhower, the Civil Rights Act of 1957 was the first civil rights legislation since Reconstruction and came on the heels of the Supreme Court's decision in Brown v. Board of Education. (21) Brown declared "separate but equal" institutions unconstitutional. (22) After the Supreme Court's decision in Brown, the Justice Department began work on drafting civil rights legislation and establishing strategies to overcome the anticipated filibuster in Congress. (23) Although the final Act after amendment was a shell of what it was at its inception, the Civil Rights Act of 1957 accomplished two vitally important missions. First, it established the Civil Rights Section of the Justice Department. Second, it established the Civil Rights Commission. (24) "Both of these agencies have been powerful forces in promoting civil rights...