Although the story of federal protection of civil rights is conveniently told chronologically, two themes predominate. First, federal protection of civil rights has a paradoxical relationship with states’ rights. All civil rights legislation has been opposed or limited in response to the argument that the federal government should not involve itself in areas of state responsibility. The Supreme Court repeatedly voiced this concern and, in the past, invalidated civil rights legislation partly on this ground. Deference to state law enforcement prerogatives always has been a centerpiece of Justice Department civil rights enforcement policy. For decades, Congress repeatedly rebuffed so basic a measure as antilynching legislation in the name of states’ rights.
Yet the original federal civil rights statutes, and their underlying constitutional amendments, were responses to outrages by states or to private outrages that states failed to ameliorate. Given the origins of the need for federal protection of civil rights, states’ interests often received undue weight in shaping federal civil rights policy.
Second, there is a seedy underside to the topic of federal protection of civil rights. For many years, the federal government was more involved with denying Blacks rights than with protecting them. The quest for civil rights in education dates back to the founding of the United States as a country. In 1787, the Reverend Prince Hall and Black citizens petitioned the Massachusetts State Legislature for equal educational facilities. Their petition was not granted.
The Reconstruction Era
It was not until the Civil War that anything looking like federal involvement in civil rights and education took place, with the creation of the Bureau of Refugees, Freedmen, and Abandoned Lands (Freedmen’s Bureau). The Bureau’s statutory charge, “the control of all subjects relating to refugees and freedmen from rebel states,” enabled it to perform a variety of educational and social welfare functions. Its greatest success was education. It established or supervised many kinds of schools: day, night, Sunday, and industrial, as well as colleges. Many of the nation’s Black colleges were founded with aid from the Bureau, including Howard University, Hampton Institute, St. Augustine’s College, and Fisk University, to name a few. This initial effort on the part of the Freedman’s Bureau to assist Blacks was tainted by, among other factors, its role in establishing the oppressive system of Southern labor contracts. With few exceptions, federal protection of Blacks via the Freedmen’s Bureau terminated in 1868.
Congress’s other Reconstruction legislation employed a variety of techniques to protect civil rights. The Civil Rights Act of 1866 and the Force Act of 1870 imposed penalties on those who enforced discriminatory features of the Southern Black Codes, and the 1870 act made it a crime to conspire to hinder a citizen’s exercise of federal rights. The 1870 act also provided special protection for Black Voting Rights Act and the Force Act of 1871 went further by providing for the appointment of federal supervisors to scrutinize voter registration and election practices. The Civil Rights Act of 1871 authorized civil actions and additional criminal penalties against those who violated constitutional rights and authorized the president to use federal forces to suppress insurrections or conspiracies to deprive “any portion or class of . . . people” of federal rights.
The Civil Rights Act of 1875, the culmination of the Reconstruction period civil rights program, imposed civil and criminal sanctions for discrimination in public accommodations, public conveyances, and places of amusement. Armed with the criminal provisions of the civil rights program, federal prosecutors brought thousands of cases in Southern federal courts and established criminal actions as the primary vehicle through which the federal government protected civil rights. This protective legislation ended with the compromise of 1877 engineered by President Rutherford B. Hayes and the attendant withdrawal of federal troops from the South. In 1878, only twenty-five federal criminal civil rights prosecutions were brought in Southern federal courts.
There are many reasons why federal criminal prosecutions during this period were ineffective in protecting civil rights—including equal access to education and schooling. First, shortly after enactment of the post–Civil War antidiscrimination legislation, the Supreme Court limited Congress’s power to protect civil rights and narrowly construed constitutional provisions and statutory provisions that were not struck down. The entire federal statutory civil rights program, therefore, depended upon those provisions that, almost by happenstance, survived judicial scrutiny.
Separate But Equal
The principal criminal provisions that survived, now sections 241 and 242 of Title 18, United States Code, are not well suited to protecting civil rights. Enforcement of these provisions has been plagued by doubts about the specific rights they protect and the conduct they reach, and by doubt about the federal government’s role in law enforcement. Similar difficulties characterized federal civil remedies to protect civil rights. For example, the Supreme Court, in Plessy v. Ferguson (1896), declared “separate but equal” the law of the land, providing legal justification for six decades of Jim Crow segregation, including the segregation of Black and White students in public schools.
From the Compromise of 1877 until World War II, reference to federal “protection” of civil rights was misleading. Until the war, federal employment policy included racial segregation and exclusion. De jure segregation in politics and the armed forces, government participation in segregated and racially isolated housing projects, racially prejudiced federal judges, and segregated public services and education all demonstrate the depth of federal involvement in discrimination. Examples of federal complicity in educational discrimination were widespread.
In 1904, for example, Kentucky enacted a “separate but equal” statute that made it illegal “for any person, corporation or association of persons to maintain or operate any college, school or institution where persons of White and Negro races are received as pupils for instruction.” Berea College, a private institution in Kentucky, was found guilty of accepting White and Black students and fined $1,000. In Gong Lum v. Rice (1927), the court ruled that a child of Chinese descent could be required to attend a Black school in Mississippi under the separate but equal doctrine.
In United States v. Carolene Products Co. (1939), the Court employed deferential scrutiny in the economic realm and even greater scrutiny in the areas of civil liberties and civil rights. Six months after the Carolene Products decision, this approach was applied to a case involving higher education segregation, Missouri ex rel. Gaines v. Canada (1939). Since Missouri law required separate schools and universities for Whites and Blacks, Missouri law also required for the arrangement of tuition and fees for Black students at adjacent state institutions. Gaines brought suit against the University of Missouri to compel the university to admit him.
Postwar Changes
The end of World War II renewed violence against Blacks. Following a Democratic party defeat in the 1946 congressional elections, President Harry S Truman, in Executive Order 9008, created a presidential civil rights committee to conduct inquiries and to recommend civil rights programs. In its report, To Secure These Rights, the committee made far-reaching recommendations in the areas of voting, employment, and federally assisted programs, many of which would be enacted in the 1960s. Truman, like other presidents, promoted civil rights most effectively in areas not requiring legislative action. Southern political power in Congress precluded significant civil rights legislation. Most of Truman’s initiatives had to do with housing and employment, rather than education.
A focus on education was reemphasized by the Court and the federal government in the case of McLaurin v. Oklahoma State Regents for Higher Education (1950). In this case, Oklahoma’s law requiring segregated higher education was challenged, and the Court ruled that state-supported institutions of higher education could not provide different education to students based only on their race. The Court held that such segregation deprived the individuals of their Fourteenth Amendment rights of due process.
Civil rights enforcement received little attention early in the administration of Dwight D. Eisenhower, but there were important exceptions to this pattern. Executive Order 10479 (1953) extended the antidiscrimination provisions previously required in defense contracts to all government procurement contracts. After the Supreme Court’s 1954 ruling in Brown v. Board of Education (Brown I), however, Eisenhower and the federal government could no longer avoid civil rights issues. Southern recalcitrance in the face of Brown II (which required that desegregation proceed “with all deliberate speed”) led to a federal-state confrontation in Little Rock, Arkansas, which was settled through the presence of federal troops who forced local officials to allow Black students to attend previously segregated schools (Cooper v. Aaron, 1958).
The Civil Rights Era
But Little Rock marked no general turning point in the administration’s enforcement efforts. Legislation passed during this period included the Civil Rights Acts of 1957 and 1960, involved voting rights. However, even when armed with increased authority to investigate denials of voting rights by the Civil Rights Act of 1957, the Justice Department brought few cases. President John F. Kennedy’s administration also began with little impetus toward substantial civil rights achievement. But the rising tide of private civil rights activity, increased public awareness, and continued Southern resistance to desegregation made new federal and state confrontations inevitable.
In May 1961, federal marshals were employed to protect freedom riders. In September 1962, in connection with efforts to integrate the University of Mississippi, heavily outnumbered federal marshals and federalized National Guard troops withstood an assault by segregationists. Only the arrival of thousands of federal troops restored order. In the Birmingham crisis of 1963, which gained notoriety for the brutal treatment of demonstrators by state and local law enforcement officers, the federal government tried to act as a mediator.
The administration’s inability under federal law to deal forcefully with situations like that in Birmingham led President Kennedy to propose further federal civil rights legislation. In November 1962, President Kennedy issued an executive order prohibiting discrimination in public housing projects and in projects covered by direct, guaranteed federal loans. And in executive orders in 1961 and 1963, Kennedy both required affirmative action by government contractors and extended the executive branch’s antidiscrimination program in federal procurement contracts to all federally assisted construction projects.
Soon after Lyndon B. Johnson succeeded to the presidency, he publicly endorsed Kennedy’s civil rights legislation. Due in part to his direct support, Congress enacted the Civil Rights Act of 1964, the most comprehensive civil rights measure in American history. The act outlawed discrimination in public accommodations, in federally assisted programs, and by large private employers, and it extended federal power to deal with voting discrimination. Title VII of the act created a substantial new federal bureaucracy to enforce antidiscrimination provisions pertaining to employment. The 1964 act also marked the first time that the Senate voted cloture against an anti–civil rights filibuster. Educational institutions receiving federal funding were profoundly affected by the act.
Despite the efforts of the Kennedy and Johnson Justice Departments, the Civil Rights Acts of 1957, 1960, and 1964 proved inadequate to protect Black voting rights. Marches and protests to secure voting rights led to violence, including an infamous, widely reported confrontation in Selma, Alabama, in which marchers were beaten. In March 1965, President Johnson requested new voting rights legislation. He included in his speech to the nation and a joint session of Congress the words of the song of the civil rights movement, “We shall overcome,” thus emphasizing the depth of the new federal involvement in civil rights. By August, the Voting Rights Act of 1965 was in place. Within ten years of its passage, large numbers of Black voters were registered without great fanfare, but with corresponding gains in the number of Black elected officials. In 1968, after the assassination of Martin Luther King, Jr., Congress enacted a fair housing law as part of the Civil Rights Act of 1968.
Unlike the Reconstruction civil rights program, Congress’s 1960s civil rights legislation survived judicial scrutiny. In a series of cases from 1964 to 1976, the Supreme Court both sustained the new civil rights program and revived the Reconstruction-era laws. These rulings involved public accommodations and voting rights. In Jones v. Alfred H. Mayer Co. (1968) and Runyon v. McCrary (1976), the Court interpreted the Civil Rights Act of 1866 to fill important gaps in the coverage of the 1964 and 1968 acts.
With the passage and sustaining of the 1964, 1965, and 1968 acts and the revival of the 1866 Act, the legal battle against racial discrimination at least formally was won. The federal civil rights program encompassed nearly all public and private purposeful racial discrimination in public accommodations, housing, employment, education, and voting. Future civil rights progress would have to come through vigorous enforcement, through programs aimed at relieving poverty, through affirmative action, and through laws benefiting groups other than Blacks.
Enforcing The Law
The fight for educational equality and civil rights was by no means over. For example, President Richard Nixon’s 1968 “Southern strategy” included campaigning against busing, which was deliberately intended to decrease the segregation of schools. Within six months of Nixon’s inauguration, the Justice Department for the first time opposed the NAACP Legal Defense and Education Fund in a desegregation case. But despite this seeming setback, under the pressure of Supreme Court decisions, and given the momentum of the prior administration’s civil rights efforts, the Nixon administration did finally promote new levels of Southern integration—despite its continued opposition to “forced busing.”
The period from 1970 to 1986 represents an era of ambivalence and uncertainty in terms of civil rights enforcement. During this period enforcement efforts became engulfed in the constitutionality of desegregation remedies—for example, whether to bus schoolchildren for purposes of desegregation. Statemandated school segregation was addressed in Swann v. Charlotte-Mecklenburg Board of Education (1971); Davis v. Board of School Commissioners of Mobile County (1971); Moore v. Charlotte-Mecklenburg Board of Education (1971); North Carolina State Board of Education v. Swann (1971); Keyes v. School District No. 1 Denver, Colorado (1973); San Antonio School District v. Rodriguez (1973); Milliken v. Bradley (Milliken I; 1974); Pasadena City Board of Education v. Spangler (1976); Milliken v. Bradley (Milliken II; 1977); and Plyler v. Doe (1982).
New means were provided for the enforcement of legislation. In the 1970s, for example, the Internal Revenue Service (IRS), under the pressure of court decisions, began to foster integration by denying tax benefits to private segregated academies and their benefactors. This process, however, was curtailed by other sectors of the federal government. Congress, for example, intervened to limit the IRS’s use of funds for such purposes. Similarly, Congress also restrained executive authority to seek busing as a remedy for school segregation.
The comprehensive coverage of federal civil rights law did not eliminate the inferior status of Blacks in American society. Pressure mounted for assistance in the form of affirmative action or preferential hiring and admissions in higher education. Court cases ensued: DeFunis v. Odegaard (1973), Regents of the University of California v. Bakke (1978), United Steel Workers of America v. Weber (1979), Fullilove v. Klutznick (1980), and Wygant v. Jackson Board of Education (1986). These divided even the liberal community that was traditionally supportive of civil rights enforcement.
School desegregation also triggered a legal backlash under Presidents Ronald Reagan, George Herbert Walker Bush, and George W. Bush. From 1986 to 2006, an era of retrenchment and unpredictability directed a more conservative policy direction for civil rights law and legislation. During this period, the Supreme Court narrowly interpreted constitutional provisions and federal statutes that provided protections for civil rights of racial and ethnic minorities. Minorities experienced setbacks in many areas, including education. Decisions related to desegregation include Missouri v. Jenkins (1991); Board of Education of Oklahoma City Public Schools v. Dowell (1991); Freeman v. Pitts (1992); United States v. Fordice (1992), and Parents Involved in Community Schools v. Seattle School District No. 1 (2002). Other rulings involved affirmative action: United States v. Paradise (1987), City of Richmond v. J. A. Croson (1989), Metro Broadcasting Inc. v. FCC and Astroline Communications Company (1990), Limited Partnership v. Shurberg Broadcasting of Hartford, Inc. (1990), Hopwood v. Texas (5th Cir., 2000), Gratz v. Bollinger (2003), and Grutter v. Bollinger (2003).
Federal involvement in civil rights legislation has both hindered and advanced the process of achieving more equal schools. Since the 1954 Brown decision, the principle of educational equity for all citizens has predominated, but not without significant attempts to curtail the general movement toward a universal equality for all citizens.
Bibliography:
- Birnbaum, J., & Taylor, C. (1999). Civil rights since 1987. New York: New York University Press.
- Brauer, C. M. (1977). John F. Kennedy and the Second Reconstruction. New York: Columbia University Press.
- Carr, R. K. (1947). Federal protection of civil rights: Quest for a sword. Ithaca, NY: Cornell University Press.
- Davis, A. L., & Graham, B. L. (1995). Supreme Court, race, and civil rights. Thousand Oaks, CA: Sage.
- Gressman, E. (1952). The unhappy history of civil rights legislation. Michigan Law Review, 50, 1323–1358.
- Konvitz, M. R. (1961). A century of civil rights. New York: Columbia University Press.
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