Toward a Jurisprudence of the Civil Rights Acts

What is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: our civil rights are quasi-constitutional rights to be free of discrimination in the private as well as public world. But this conventional lawyerly understanding-–basically, that “civil rights” are “antidiscrimination rights”-–is clearly inadequate, certainly with respect to civil rights generally but also, and more tellingly, even with respect to the rights created and then protected by the ‘64 Act itself. First, on the general point: some of the “civil rights” sought or held across our history have not been antidiscrimination rights of any sort at all: labor rights, welfare rights, free speech rights, and the constitutional rights of criminal defendants have all, at various times, been championed as “civil rights,” and these rights are neither logically nor jurisprudentially tied to any conception of antidiscrimination. But furthermore, even the “civil rights” which are defined and then protected against discrimination by the 1964 Civil Rights Act, as well as by various Civil Rights Acts both before and subsequent to it, are not, in circular fashion, simply our rights not to be discriminated against on the basis of impermissible characteristics. Rather, the “civil rights” of which we cannot be discriminatorily deprived, whether originating in the ‘64 Act or elsewhere, are, after all, rights to something: a right to vote, or to physical security, or to enter contracts, or to own, buy or sell property, or to legal recourse in the aftermath of a wrong committed against us, or to write a will, or to be considered for or to hold down a job and to be paid fairly for our labor, or to the use of a restaurant or a hotel or a city bus, or to a public education, or to marry whom we love. And, these are just some of the public goods that have been recognized at various times as “civil rights,” of which we cannot be deprived by discriminatory action. Even if just that much is right, then the “civil right” protected by all of our Civil Rights Acts, including the ‘64 one, is considerably more complex, jurisprudentially, than the conventionally legalistic and formulaic equation of “civil rights” with “antidiscrimination rights” suggests. Minimally, the “civil right” recognized or protected by the various Civil Rights Acts is almost invariably a multilayered right, or a “right to a right”: it is a right to not be discriminatorily deprived of some underlying right. Only the first right in that phrase “a right to a right” is the antidiscrimination right. The second “right,” though, is the underlying civil right of which we cannot be discriminatorily deprived, and it is both itself complex, and highly variable: it might be a common law right, such as a right to enter contracts or sell property, or a statutory right, such as a right to vote, or simply a right to a social or public good, such as employment or educational opportunities, or the protection of a trustworthy police force against private violence. And, while we have generated a library of writing, and jurisprudence, and judicial opinions, on the nature of the first right in that phrase-–the right not to be deprived of various rights, on the basis of race, sex, and so forth-–we have devoted much less to the second: the nature of the underlying right of which we cannot be deprived. So, what is the jurisprudential nature of that right? What is a “civil right,” jurisprudentially, both with respect to the rights protected against discrimination by the Civil Rights Act of 1964, and more broadly? Again, and more generally, what is a “civil right”

Civil Rights Act of 1964

The Civil Rights Act of 1964 (42 U.S. C.A.) (the 19 Act) likely has had the greatest transformative effect on American society of any single law. By prohibiting discrimination based on race, color, sex, religion, a national origin in places of public accommodation, in federally assisted programs, in employment, in schools and with respect to voting rights, this massive law has had profound effects on almost every facet of American society

Civil Rights Act of 1964

Civil Rights Act of 196

Twenty-Five Years Later: Where Do We Stand on Equal Employment Opportunity Law Enforcement?

As we near the twenty-fifth anniversary of the passage of the Civil Rights Act of 1964, an assessment of equal employment opportunity law is both natural and appropriate. Prior to 1964, the federal government had imposed equal employment opportunity obligations on itself as well as its contractors and subcontractors. And Title VII of the Act,which mandated such obligations, did not become effective until July 2,1965. Yet the Civil Rights Act of 1964, which was the first comprehensive legislation to address the problems of discrimination in American society, became the cornerstone of modern civil rights law, including equal employment opportunity law.The leaders in the struggle to adopt the Civil Rights Act have largely passed from the public scene, and a new generation has reached adulthood with little knowledge of the conditions that called for its adoption. The time is ripe for review

To End Divisions: Reflections on the Civil Rights Act of 1964

By focusing on a number of the CRA\u27s key titles - without belittling the act\u27s importance to Latinos, women, et al.- this commentary illustrates how the act moved beyond eliminating segregation; it addresses how the racial climate of the early 1960s shaped public policy. Broadly, the Civil Rights Act of 1964 sought to change the balance of racial (and genderbased) power in the America by using federal law to finally protect African Americans\u27 right to live equal lives. After 1964, for the first time since Reconstruction, race was national policy agenda. This agenda and the Civil Rights Act of 1964 are difficult to understand without considering just how deeply entrenched American racism was in the early 1960s. By examining the political and racial climates at the time of the Civil Rights Act, it is possible to better understand what policymakers hoped to address through the federal protections under the Civil Rights Act

To End Divisions: Reflections on the Civil Rights Act of 1964

By focusing on a number of the CRA\u27s key titles - without belittling the act\u27s importance to Latinos, women, et al.- this commentary illustrates how the act moved beyond eliminating segregation; it addresses how the racial climate of the early 1960s shaped public policy. Broadly, the Civil Rights Act of 1964 sought to change the balance of racial (and genderbased) power in the America by using federal law to finally protect African Americans\u27 right to live equal lives. After 1964, for the first time since Reconstruction, race was national policy agenda. This agenda and the Civil Rights Act of 1964 are difficult to understand without considering just how deeply entrenched American racism was in the early 1960s. By examining the political and racial climates at the time of the Civil Rights Act, it is possible to better understand what policymakers hoped to address through the federal protections under the Civil Rights Act

To End Divisions: Reflections on the Civil Rights Act of 1964

By focusing on a number of the CRA\u27s key titles - without belittling the act\u27s importance to Latinos, women, et al.- this commentary illustrates how the act moved beyond eliminating segregation; it addresses how the racial climate of the early 1960s shaped public policy. Broadly, the Civil Rights Act of 1964 sought to change the balance of racial (and genderbased) power in the America by using federal law to finally protect African Americans\u27 right to live equal lives. After 1964, for the first time since Reconstruction, race was national policy agenda. This agenda and the Civil Rights Act of 1964 are difficult to understand without considering just how deeply entrenched American racism was in the early 1960s. By examining the political and racial climates at the time of the Civil Rights Act, it is possible to better understand what policymakers hoped to address through the federal protections under the Civil Rights Act

Title VII and Flexible Work Arrangements to Accommodate Religious Practice & Belief

This timeline tracks the development of the religious accommodation requirement of Title VII of the Civil Rights Act of 1964. The timeline covers the development of statutory text, relevant EEOC regulations, and Supreme Court precedent

George S. Schuyler, Black and Conservative

When George S. Schuyler published his autobiography Black and Conservative in 1966, its title was intended to be paradoxical, underscoring how the two adjectives were rarely used together, particularly in an era that had recently seen the passage of the Civil Rights Act in 1964 and the Voting Rights Act in 1965. When it came to political affiliation, the general assumption was that African Americans, more or less by definition, were not likely to be conservatives; rather, conservatism meant a desire to preserve the pre-existing status quo, making very little sense in Civil Rights era for a majority of African Americans to take a conservative stance