Misremembering the Civil Rights Act of 1964

President Obama and three of his predecessors and assorted civil rights luminaries (Jesse Jackson, Andrew Young, John Lewis) gathered recently at the LBJ Library in Austin, Texas, to celebrate the 50th anniversary of the 1964 Civil Rights Act and, belatedly, to honor the memory of Lyndon Johnson, who engineered its passage. (For years Democrats fled association with LBJ like the plague. In August 1992, for example, the Washington Post points out, Democratic nominee Bill Clinton spoke at the LBJ Library “on what would have been Johnson’s 84th birthday … and never once mentioned the name of Lyndon B. Johnson.”)

The speeches purporting to celebrate LBJ’s legacy were predictable. Our Narcissist-in-Chief, for example, “wraps himself” in LBJ’s civil rights legacy, according to Newsweek, preening in his keynote address “that’s why I’m standing here today — because of those efforts, because of that legacy.  (Applause)” Equally predictable, Jimmy Carter emphasized our continuing failings, targeted “the mistreatment of women” as the “next front,” and lamented that America is “still falling short.”

The speeches, however, were also disturbingly revealing. Bill Clinton, for example, gave voice to the virulent partisanship that is so prevalent today. “We are here,” the former president and future First Gentleman wannabe asserted, “because the Civil Rights Act and the Voting Rights Act made it possible for Jimmy Carter, Bill Clinton, and Barack Obama to be president of the United States.” I hope some of the attendees saw more to celebrate in the prohibition of racial discrimination than Democratic political victories.

Clinton’s pointing to Democratic political success as the highest praise of the civil rights legislation contrasts sharply with LBJ, who pushed the legislation despite the fear he expressed to Bill Moyers immediately after signing the 1964 bill that he had delivered the South to the Republicans for a generation.

The most striking thing, however, about all the presidential and luminary  speeches ostensibly celebrating the civil rights legislation is that virtually no attention was paid … to the actual legislation.

Striking but not surprising, since the crystal clear text of the 1964 Civil Rights Act runs directly counter to current orthodoxy — prevalent especially on college campuses — equating civil rights with affirmative action and affirmative action with race preferences. Of special concern because of its jurisdiction over aid to higher education, for example, Title VI provides that “no person” — not no black, Hispanic, or minority person — “shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Nor was the meaning of “discrimination” unclear or ambiguous in 1964. As Senator Humphrey said during floor debate, “What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin.” (110 Cong. Rec. 5864 [1964], quoted by Justice Stevens in his Bakke opinion.) The Democrats in Austin not surprisingly neglected to note — if, indeed, any of them even know — that the 1964 Democratic Platform renounced not only “quotas based on the same false distinctions we seek to erase” but also forthrightly rejected “the expedient of preferential practices.”

Before the 50th anniversary celebrations of the civil rights act fade away there will no doubt be many other attempts, as there were in Austin, to enlist LBJ as the progenitor of affirmative action. Those attempts, though ubiquitous, are unpersuasive and should be rejected. They all rely on Johnson’s famous June 4, 1965, speech at Howard University and his  declaration there that “freedom is not enough.”

You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please.

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair.

Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.

Today we are accustomed to dealing with two very different standards to evaluate discrimination: an “intent” test, which requires finding a discriminatory intent in order to determine that a particular policy is discriminatory, and a “results” test, which requires only a finding of some “disparity” or “underrepresentation.” As I noted here, however, that distinction had not emerged in 1965, and it is quite clear that what Johnson meant by “equality” is non-discriminatory equality of opportunity. Thus the very next sentence of Johnson’s Howard speech, never quoted by those looking for early vindication of their current race preference policies, states that “the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities–physical, mental and spiritual, and to pursue their individual happiness.” [Emphasis added]

Any confusion about what Johnson meant at Howard should have been  erased three months later by his Executive Order 11246 imposing an affirmative action requirement on government contractors. Oddly, that order is also often offered in an attempt to argue that LBJ’s colorblind civil rights policy gave birth to modern liberal race preference orthodoxy, but as with the Howard speech it actually proves exactly the opposite, requiring contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.” [Emphasis added] Today, however, the entire higher education establishment and all selective institutions scorn the “without regard” colorblindness supported by LBJ, Hubert Humphrey, and the Democratic Party they led as merely poorly camouflaged racism.

No doubt the most brazenly hypocritical utterance among all the self-serving hosannas to Johnson and the Civil Rights Act at the Austin celebration came from the most race-conscious of all modern American presidents, the president who has never seen a race preference policy he opposed, Barack Obama. Presumably with a straight face, Obama stated in his keynote address: “Until justice is blind to color, until education is unaware of race, until opportunity is unconcerned with the color of men’s skins, emancipation will be a proclamation, but not a fact.”

If you believe the president believes that, then you must also believe the Office for Civil Rights (OCR) in his Department of Education will inform colleges and universities that any admission, hiring, or promotion policy that is not “blind to color” and “unaware of race” violates Title VI and will be subject to federal enforcement procedures. That would be same OCR whose fixation on “disparate impact,” as reported here, recently gave it “a busy week or two trying to stamp out equal treatment of minorities.”

I suspect the only people who believe President Obama means what he said in Austin about colorblind equality are the people who still believe they can keep their old insurance policy and doctor if they like them.

John S. Rosenberg

John Rosenberg blogs at Discriminations.

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