The Changing Focus of Civil Rights

July 20, 1994|By ANDREW KULL

The civil-rights movement ended in success a generation ago, much as the anti-slavery movement, a century earlier, concluded with emancipation. We have been reluctant to let it go.

The most contested racial issues of today, involving interest-group politics among racially identifiable groups, are commonly dressed in the mantle of ''civil rights.'' This is not because there is anything dishonorable about interest-group politics, but because ''civil rights'' makes a more attractive banner than, say, ''proportional representation.''

''The struggle continues,'' declared Jesse Jackson not long ago to 700 demonstrators in Augusta, Georgia. (The occasion was a rally in support of Georgia's policy of drawing congressional districts to facilitate the election of black candidates.) ''We must never say 'the civil rights movement' in the past tense.''

The refusal to distinguish yesterday's causes from today's may be rhetorically attractive, but it deprives us of needed perspective. Like the abolition of slavery, the realization of civil rights for black Americans was a monumental and irrevocable political achievement that revealed, at the very moment of success, a road ahead as arduous as the one that had just been traveled. Civil rights, ''equality before the law,'' no more assured ''equality in fact'' than did emancipation. And this realization has been long and unwelcome.

The lingering expectation that lawyers and judges should be at the heart of the movement for racial justice reflects the experience of a century in which black Americans were denied even the strictly legal equality that the Constitution (with the addition of the Fourteenth and Fifteenth Amendments) appeared to guarantee. The evident contradiction invited a resolution by litigation.

Southern states (as well as Congress, in its government of the District of Columbia) provided public education in separate, unequal facilities. A combination of law and custom imposed segregated transportation. (The Interstate Commerce Commission appeared before the Supreme Court in 1950 to defend segregated train travel.) Hospitals, recreational facilities and prisons remained segregated; President Truman's orders desegregating the military and the federal civil service were issued only in 1948. Much of the Deep South, ignoring the Fifteenth Amendment, prevented black citizens from registering to vote.

This was the heroic period in American civil-rights law. For ''civil-rights law'' inevitably changed once civil rights were attained.

By the end of the 1960s, the NAACP Legal Defense Fund was pressing new demands -- for an ''equality of results,'' measured by proportional outcomes -- that were inconsistent, in important respects, with its traditional arguments based on the principle of non-discrimination. The new course, set a generation ago, has led to an ever-widening divergence between the claims advanced in the name of ''civil rights'' and the older civil-rights ideal.

School desegregation cases after the mid-1960s, when the federal government finally moved against Southern intransigence, became the entering wedge of ''race-conscious remedies.'' In 1954, Brown v. Board of Education had simply prohibited the assignment of school pupils by race. But In 1968 the Supreme Court interpreted Brown to require racial balance in formerly segregated school districts. A new meaning was given to the word ''desegregation.''

Similarly, in the area of employment discrimination, the federal courts effectively revoked the political compromises that had secured passage of Title VII in 1964, substituting for the congressional command of nondiscrimination a far more interventionist statute favoring the hiring and the advancement of women and minority workers.

It seems unlikely that significant progress toward racial equality will henceforth be the work of the courts. The reason is not that judges' politics have changed, but that the problems we now confront lie outside the judges' reach. Especially when they are enforcing constitutional rules, it is far easier for courts to prohibit action than to require it. It is easier, moreover, for a court to direct the reallocation of existing resources than to command the assembly and expenditure of new ones. Such tools were adequate when the problem in view was unequal treatment at the hands of government. They are of little use against social inequalities not attributable to present-day discrimination. So long as the problem of race was still the problem of civil rights, the political agenda was clear; but we cannot expect solutions of judges when we remain, ourselves, at a loss for what to do.

Seen from our present perspective, the most striking feature of the civil-rights arguments of 40 years ago was the reason most prominently advanced for the unconstitutionality of segregation -- the forceful contention that laws making a racial classification were constitutionally impermissible. In short, that the Constitution was color-blind.

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