Race, Rights-Talk, and Equity

W. B Allen’s essay impresses upon us how different our understanding of civil rights is from that of the Founders and the authors of the Fourteenth Amendment. Back then “civil rights”referred to our most fundamental rights, those closely tied to and only slightly more expansive than our natural rights. Today most of us think of the right to vote as one of our most important civil rights, the one that protects all the others. But in 1870 Congress enacted the Fifteenth Amendment to protect this central political right, which was generally assumed not to be covered by the Fourteenth.

Since the late 1960s “civil rights”has come to include almost any issue that touches upon the well-being of the many groups now considered disadvantaged. This includes not just racial minorities, but ethnic and linguistic minorities, women, people with disabilities, non-heterosexuals, the elderly, and even the obese. Protecting their civil rights means not only stopping intentional discrimination, but providing members of these disadvantaged groups with the resources—including education, income, informal networks, self-esteem—necessary to become full and equal member of the political community. It is not simply those on the left who embrace this far-reaching understanding of civil rights. George W. Bush frequently said that improving public education is the most important civil rights issue of our time. I will confess to having said the same thing many times myself.

One can readily understand the political appeal of defining an issue as a matter of civil rights. Who dares to oppose “civil rights”? Uprooting the racial caste system of the South was one of the greatest achievements of the United States during the twentieth century. To frame an issue as a continuation of that noble struggle is politically irresistible. And sometimes the argument is convincing: Mexican Americans in the southwest often suffered from systematic discrimination not too different from that experienced by African Americans in the Jim Crow South; female and disabled children were routinely denied educational opportunities provided to non-disabled males; in many areas of the country residential segregation made possible by public action left African American isolated in schools with inferior facilities and teachers.

One can get a sense of how broad our current understanding of civil rights has become by looking at the activities of the Office for Civil Rights (OCR) in the U.S. Department of Education. OCR has responsibility for enforcing Title VI of the Civil Rights Act of 1964 (which prohibits programs that receive federal funding from discriminating on the basis of race or “national origin”); Title IX of the Education Amendments of 1972 (which prohibits education programs that receive federal funding from discriminating on the basis of sex); section 504 of the 1974 Rehabilitation Act (which prohibits programs receiving federal funds from discriminating on the basis of handicap); and portions of the 1990 Americans with Disabilities Act. Today almost half the resources of the agency are devoted to ensuring that students with disabilities receive a “free appropriate public education.”During both the Clinton and Obama Administrations OCR assigned a high priority to supervising the methods local school districts use to educate English language learners. For decades OCR has pushed colleges to provide more resources, including facilities, coaching, and scholarships, to women’s intercollegiate sports. Recently OCR has made headlines for charging scores of major universities with turning a blind eye to sexual violence on campus, and has issued detailed guidelines on how colleges should define and handle complaints about non-consensual sexual relations. An agency first established to enforce the commands of Brown v. Board of Education is now enmeshed in micromanaging innumerable local educational programs.

What is wrong with this? These are all important issues. Title IX has significantly improved the educational and athletic opportunities of women. Federal legislation on education of children with disabilities has helped us make great strides there as well. We no longer allow students who do not speak English to “sink or swim”in our public schools. Who can object to reducing sexual violence or protecting young women from sexual predators? Defining these issues as matters of civil rights has spurred the federal government into action, which in the United States is often hard to do.

Well, there are at least two problems with what we might call “civil rights inflation.”The first is that it blurs the distinction between rights that are fundamental and policy preferences that are less important and peripheral to our most basic political commitments. About two years ago a federal judge in Connecticut faced this momentous civil rights issue: when evaluating whether a university had offered equal educational opportunity to women, can “competitive cheer and tumbling”be considered an intercollegiate “sport”? After deliberating at length and consulting legal precedent and agency guidelines, the judge ruled “no.”Earlier the Supreme Court had made a similarly goofy decision when it ruled in an Americans with Disability Act case that walking 18 holes is not an essential element of what Justice Scalia sarcastically described as the majority’s “Platonic idea of golf.”At the extreme, civil rights inflation leads to civil rights trivialization.

It can also lead to a dangerous disregard for rights that are fundamental. With a crucial assist from federal judges, OCR has argued that when students are pressured to engage in sexual activity without giving their consent—or when they are too much under the influence of alcohol or drugs to give meaningful consent—they confront a “hostile educational environment,”even if such unfortunate incidents are few in number on campus. This “hostile environment”retards students’ability to learn, thus depriving them of educational opportunity “on account of sex.”To remedy this “hostile environment”colleges must take a number of steps, including using the weak “preponderance of the evidence”standard in disciplinary hearings. Despite the seriousness of the charges, students accused of sexual misconduct are provided few of the ordinary protections associated with criminal trials. The drive for gender equality has trumped concern for due process of law.

A second problem with civil rights inflation is that defining something as a civil rights issue often inhibits prudent policymaking. We ignore questions of effectiveness, of trade-offs, and of unintended consequences. The absolutism of rights-talk (to use Mary Ann Glendon’s term) invites tunnel vision. This is evident in the current war on “sexual violence.”It was evident in the 1970s when OCR ordered all schools in the country to institute bilingual/bicultural programs for teaching English language learners—despite the lack of evidence that this form of education worked better than others. And it is evident in the Individuals with Disabilities Education Act, which guarantees that all children with disabilities will receive an “individualized education plan”deemed “appropriate”by educational experts, but does not provide anything similar for non-disabled students. No wonder so many upper-middle class parents have sought to have their children labelled “learning disabled.”Rights-talk also tends to centralize and judicialize decision-making, weakening those with practical experience on the ground and strengthening those in Washington and state capitals who deal with policy only in abstract, legalistic ways.

For all these reasons I applaud Professor Allen’s effort to remind us how far we have strayed from an earlier understanding of civil rights. But I do have some significant disagreements with his analysis, some of which are similar to those expressed by Peter Meyer in his post. Since Professor Meyer responded primarily—and thoughtfully—to Allen’s critique of Martin Luther King, I will focus on the second villain in Allen’s essay, Lyndon Johnson.

Before turning to LBJ, though, I should first admit to some confusion about whether Professor Allen considers the 1964 Civil Rights Act to be part of the problem, or whether it was the distortion of the spirit of that Act that he means to attack. The central theme of his essay is that it is a mistake to tie “civil rights to the question of race.”He concludes the first section of the essay by writing, “That raises the issue of whether the turn taken from the Civil Rights Act of 1964 did not lead us away from, rather than toward, civil rights.” Criticizing the distortions of the Act by the Supreme Court (especially in its 1979 Weber decision), by the Equal Employment Opportunity Commission, and by OCR is a common argument, and one with considerable supporting evidence. Criticizing the Act itself is bold, but in Allen’s essay unsubstantiated.

In the United States in 1964, or in 1864, or in 1764 how could one not tie the issue of civil rights to race? For centuries this country—often as a matter of explicit public policy—systematically denied millions of people the basic civil rights defined by Professor Allen, and it did so on the basis of race. The 1964 Act and the 1965 Voting Rights Act did not attempt to define these basic rights, but rather to prevent state and local governments from using methods both crude and sophisticated to deny these rights to African Americans. Whatever the excesses and misadventures of the years since 1965, I fail to see how anything in those laws could be described as a wrong turn.

On Johnson’s famous Howard University speech, Allen is clear: that was a wrong turn, and a decisive one. Allen implies that Johnson called for affirmative action as we now use the term, that is, the use of racial preferences in employment and college admissions. To be sure, Johnson did use the unfortunate formulation, “we seek . . . equality not just as a right and a theory but equality as a fact and equality as a result.”But Johnson and his administration did not support the use of racial preferences—that was the work of the Nixon Administration. A fair reading of the Howard speech shows (1) that Johnson identified with remarkable prescience the challenges facing the country in promoting racial fairness after passage of the 1964 and 1965 laws; (2) that he was trying to move discussion away from a rights framework toward more ordinary talk about effective educational and economic programs; and (3) that he recognized the profound importance of family and culture in the complex matrix of race in America. There is much wisdom in this flawed speech.

At the heart of Johnson’s speech lay an argument that has become all too familiar, but remains convincing nonetheless:

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 reach and then say, “you are free to compete with all the others,”and still justly believe that you have been completely fair.

It is hard to overestimate the harm done to African Americans by centuries of slavery and apartheid. Not only were they purposely kept poor and uneducated, but slavery and Jim Crow seriously damaged family life and did everything possible to destroy the basic elements of civic culture and civil society. These institutions were designed to crush the spirit of those enslaved and segregated.

To suggest that the very government that colluded in the creation of these disabilities can justly ignore them is an odd argument for conservatives. Here I can do no better than quote Professor Meyer’s challenge to Professor Allen: “Is there not a certain Burkean wisdom in the thesis of cumulative racism, holding that a long tradition of injustice, with all its social, psychological, and cultural effects, could hardly come to an end sharply and conclusively, in a day or a generation?”Living “in accord with the law of nature,”Meyers notes, “in part means cultivating the virtues required for success in school, in the workplace, in offices of marriage and childrearing—and in so doing, laying the indispensable foundations of self-governing, republican citizenship and genuine human flourishing.”In short, after having done so much to suppress these virtues, does the political community not have an obligation to help reestablish them?

Johnson’s main answer to this imposing problem was, of course, the War on Poverty. More money for education, for job training, for Head Start, for community action programs, for public works programs, for Model Cities, for public housing, for Medicaid. In many—but not all—instances, these proved bitterly disappointing. But it is important to remember what LBJ did not favor. He did not promote expansion of cash entitlements. He exhibited the same wariness of “the dole”as his political hero, Franklin Roosevelt. The “guaranteed income,”too, was an initiative of the Nixon Administration.

And, as noted above, Johnson did not favor use of racial preferences in employment. The Nixon Administration pushed that perilous policy because it wanted to buy racial peace in the ghetto on the cheap, that is, by requiring private employers to hire more African American males rather than spending taxpayer dollars on public works programs. In other words, affirmative action under Title VII of the Civil Rights Act began as a Republican alternative to Democrats’ tax-and-spend programs. (Being Nixon, he also took great delight in driving a wedge between labor unions and civil rights organizations on this issue.)

President Johnson also grabbed hold of the third rail of American racial politics, the problem of the African American family. In an under-appreciated act of courage, he raised the issues identified by his courageous advisor, Daniel Patrick Moynihan:

Perhaps most important—its influence radiating to every part of life—is the breakdown of the Negro family structure. For this, most of all, white America must accept responsibility. It flows from centuries of oppression and persecution of the Negro man. It flows from the long years of degradation and discrimination, which have attacked his dignity and assaulted his ability to produce for the family. . . . The family is the cornerstone of our society. More than any other force it shapes the attitude, the hopes, the ambitions, and the values of the child. And when the family collapses it is the children that are usually damaged. When it happens on a massive scale the community itself is crippled.

Unfortunately, the percentage of African American children living in single-family homes, already high in 1965, has grown by leaps and bounds over the past five decades. The result has been stubborn, intergenerational poverty and a disturbingly persistent achievement gap between white and black children.

To be sure, Johnson (and Moynihan) offered no practical solutions to this problem. But no one since then has done so either. It remains, if I may say with my tongue only slightly in my cheek, the civil rights issue of our time.

I will not deny that Johnson’s Howard speech at times revealed the hubris that inspired him to claim that he could lead us into the “Great Society.”Nor is Professor Allen incorrect to suggest the dangers inherent in Johnson’s claim that in “the next and the more profound stage of the battle for civil rights”that we will seek “not just equality as right and a theory but equality as a fact and equality as a result.”

Yet these difficulties should not blind us to the fact that the Howard speech identified with great clarity the post-1965 challenge of confronting the far-reaching consequences of America’s original sin. To “seek not just legal equity but human ability”and “to move beyond opportunity to achievement”are aspirations not usually furthered by abstract rights-talk. They must be handled prudently, which is to say with a keen understanding of the limited effectiveness of government programs, especially those run from the center. But they should not be dismissed as beyond the proper scope of liberal government. For our sins of racial oppression we reaped the whirlwind. A century and a half later we are still engaged in the difficult task of reconstruction.