Interpreting the law with original meaning in mind leaves a range of options for defending Brown v. Board.
Discussion of race in America is a minefield, one strewn with casualties. Charles Murray is only the most prominent in a line of scholars whose work on the subject proved to be professionally costly. Richard Thompson Ford, the George E. Osborn Professor of Law at Stanford Law School, has repeatedly waded into this dangerous thicket, and his most recent addition is Rights Gone Wrong: How Law Corrupts the Struggle for Equality. Rights Gone Wrong joins two previous works in the same field, The Race Card and Racial Culture, by Ford.
Rights Gone Wrong is a well-written and provocative analysis of the role that traditional civil rights litigation has played in American law, politics, and culture. Ford’s writing is enjoyable to read, and his points are accessible to a wide audience. Particularly helpful is Ford’s use of concrete examples to exemplify and support his more abstract claims. It also appears that Ford tries to give each side of the debate its due.
In the first portion of Rights Gone Wrong, Ford details four “wrong turns in today’s civil rights thinking.” Chapter one explains how civil rights laws were perverted from their original laudable purpose of eliminating unjust discrimination to giving an undeserved advantage. Ford describes many instances in which civil rights claimants utilized civil rights law to advantage themselves at the expense of others and society. For instance, Ford highlights the case of a medical student who made multiple requests for significant additional testing time. These sorts of abuses, Ford claims, undermine civil rights laws.
Chapter two describes the modern civil rights movement’s myopic spotlight on discrimination to the exclusion of other plausible causes of—and solutions to—racial, gender, economic, and other disparities. Ford recounts lawsuits challenging sex discrimination—like Mother’s Day events and ladies’ nights that privilege women over men—that, in Ford’s telling, is or should be permissible because such discrimination does not involve or perpetuate the type of gender distinctions that harm women. “Unfortunately, the civil rights focus on discrimination leads people to condemn reasonable, prudent, and innocent distinctions.”
Chapter three focuses on the negative consequences caused by the reification of core civil rights principles that end up defeating their original purpose. Ford utilizes Brown v. Board of Education to exemplify how the civil rights movement’s focus on “[s]tigmatic injury, stereotypes, and subjective emotional harm” caused the movement to fail to focus on the ultimately more important issues of economic inequality. Ford’s description of the limits on what courts could do to remedy deeply entrenched racial inequality, and the unintended negative consequences of the Supreme Court’s aggressive desegregation decisions, is especially well done, and provides a cautionary tale for those who wish to use the courts to achieve desired policy ends.
Chapter four argues that the civil rights movement spawned the “neurotic tendency to treat activism as therapy,” and to protest perceived—even minor—slights or wrongs. Ford points to the 1995 Million Man March as an example of civil rights activism that “was basically an encounter group” without “[a]ny practical goal, political agenda, or policy objective.” This diverts attentions from true injustice, Ford claims.
In one of the most interesting parts of Rights Gone Wrong, Ford identifies the changing face of the black community, represented by President Obama, and the challenges it poses to the traditional civil rights movement. Making a claim analogous to Charles Murray’s Coming Apart, Ford argues that the black community has fragmented into “successful American blacks and the black underclass.” This makes it harder to say, Ford concludes, that all problems faced by black Americans are the result of race and, at the same time, undermines the efficacy of traditional civil rights tactics.
While Rights Gone Wrong’s first four chapters are engaging, they tend to oscillate sharply between very concrete examples and broad generalities. For example, after recounting in detail an abuse of disability discrimination law, Ford concludes that “thinking of these conflicts in terms of civil rights encourages claimants to ignore the necessity of tough decisions and trade-offs.” This is clearly right, and Ford provides ample evidence to support this claim, but Ford could have made his case stronger if he provided a more detailed prescription on how our legal system could avoid this pathology.
Ford relatedly, throughout this first portion of Rights Gone Wrong, tends to proffer the same simple solution to the problems he identifies: “That’s a judgment call.” For example, after describing the problems caused by applying sex discrimination laws to employer attire requirements, Ford summarizes the conundrum: “Deciding when gendered norms are reasonable and when they are overly burdensome or demeaning requires a subtle and context-specific inquiry.” On the one hand, focusing on “practical and substantive concerns,” as Ford suggests, is laudable. As Ford notes, “[n]o rigid rule or unyielding moral principle ever devised or expounded on by jurists or philosophers can take the place of good judges and good judgment.” On the other hand, however, that admonition alone is too abstract to do sufficient analytical work to guides judges or lawmakers.
Throughout Rights Gone Wrong, Ford attempts to make room for judges to exercise the kind of prudential judgment that he identifies as necessary to remedy the ills of modern civil rights litigation. To do so, Ford argues against both the stereotypical formalist judge and the judicial activist. Ford locates his ideal judge between these extremes, relying on the thought of Alexander Bickel.
The second portion of Rights Gone Wrong offers Ford’s solutions to America’s lingering civil rights challenges. Chapter five suggests two primary changes to civil rights laws: diminish the role of a litigation-based, personal remedy for every victim of discrimination, and replace it with administrative regulations. Ford suggests that “[p]ublic regulation offers a sensible solution to the problem at a reasonable cost.” Ford’s model is the NLRB. Ford’s newly-invigorated EEOC would exercise the “nuanced judgment” that Ford believes is missing from current civil rights litigation.
After reading, in the first four chapters, Ford’s relatively detailed description of the civil rights movement’s pathologies, I was surprised by the relative thinness of his recommendations. Indeed, Ford recognizes that his prescriptions are insubstantial stating that “begin is all I aspire to have done in this book.” However, Ford’s move toward an administrative solution is open to obvious counter-arguments that he neither raises nor addresses, and Rights Gone Wrong would have been more persuasive had he done so. Relatedly, Ford’s continual call for greater use of prudential judgment is hard to criticize in the abstract, so one is left wondering what that would concretely entail, and Ford’s failure to engage in detailed recommendations undermines his claim’s power.
Ford also left the libertarian in me wondering why, given his detailed indictment of our current civil rights regime, he did not at least raise the possibility that the way out was a return to the free market. For Ford, the pathologies he identified are the result of poorly crafted and implemented civil rights legislation. The solution, according to Ford, is better civil rights legislation and implementation. For instance, Ford suggests that the field of employment discrimination should utilize “robust administrative regulation in the public interest.”
This lacuna is evidence that Ford’s vision is cabined within the walls of governmental solutions. Others, including, for instance, Richard Epstein, have prominently argued that competitive free market mechanisms do a better job of eliminating irrational discrimination, at least in some contexts, than federal antidiscrimination laws. These are powerful claims that, at least at first blush, are not subject to the problems Ford identifies with the current approach, and yet, Ford does not engage them. This gap is doubly-odd because Ford recognizes that the political process—and hence its legislative product—is subject to malfunction. He argues, for instance, that the Age Discrimination in Employment Act of 1967 is an example of “interest-group politics,” and that this origin led to the Act’s perverse effects.
I noted earlier that Ford appears to generally strive to be fair to the actors in the drama. This makes his lapses into caricature all the more jarring. For instance, Ford chastises “[c]onservative judges” who have “watered down or reversed some of [the civil rights movement’s] most important practical commitments.” Ford likens then-candidate John McCain’s address to the NAACP to that of a “colonial magistrate” who “presses one of the few conservative pet policies that might appeal to blacks.” And consider Ford’s claim that religious Americans are engaged in a national “agenda of sexual repression—an agenda that consistently disadvantaged women,” which he supports by citing cases where religious Americans sought exemption from laws that violated their conscience. By the end of Rights Gone Wrong, these, and many other similar comments, distract one from his thesis.
Rights Gone Wrong provides an accessible and engaging description of the challenges plaguing America’s quest for equality. Ford also offers tentative remedies for those ills that await fleshing-out in further work.