To what degree did the emergence of a large union movement in the middle decades of the 20th century advance the civil rights and general economic well-being of African-Americans and Latina/os during those same decades. To what extent did these new unions

Labor: Studies in Working-Class History of the Americas, Volume 11, Issue 3

DOI 10.1215/15476715-2687682 © 2014 by Labor and Working-Class History Association

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The Civil Rights Act of 1964: The Difference a Law Can Make

Nancy MacLean

What difference can a reform make? That’s a timely question in the United States today. Many previous victories of progressive social movements now face mortal threat from determined opponents, among them the Voting Rights Act of 1965 and the right of workers to organize collectively, to select just two. The fiftieth anniversary of the Civil Rights Act of 1964 offers historians an opportunity to remind the public of how a legislative milestone, even one containing many compromises, improved the quality of life for millions of ordinary Americans and ennobled our culture. Rather than minimize the significance of the law, as some are wont to do, scholars should highlight the vast advances it enabled — while also drawing attention to the obstacles that kept it from achieving its full promise.

The Civil Rights Act of 1964 is one of the premier legislative victories of American social movements; it also illuminates how a historic reform can advance activism and alter movement strategy. The product of long struggle by African Americans and progressive white allies, particularly Jewish activists, the bill addressed many areas of public life. It sought to end segregation and discrimination in are- nas including workplaces, courts, polls, government agencies, municipal facilities, schools, and public accommodations such as restaurants, motels, and transportation. The Supreme Court’s Brown v. Board of Education decisions had no bite, for exam- ple, until the civil rights act added teeth. Its Title VI, which enabled the withdrawal of federal funds from districts that continued to discriminate, sparked the first school desegregation efforts that went beyond tokenism.

But the section of the act that prohibited discrimination on the job — Title VII — had the most far-reaching and enduring impact. Civil rights activists had made fair employment legislation their top legislative priority for two decades after Con- gress, cowed by an alliance of southern segregationists and northern business interests, failed to continue the World War II Fair Employment Practices Committee won by labor leader A. Philip Randolph’s March on Washington movement. The combined power of these potent enemies of labor rights and racial reform defeated dozens of

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postwar efforts to prevent employment discrimination and made Title VII the most hotly contested element of this hard-won act. It passed only after a historic 534-hour filibuster.

Today few remember what a radical achievement this was. Indeed, without Lyndon Johnson’s singular legislative genius, it would not have passed. The act ele- vated human rights above property rights in America for the first time since eman- cipation ended slavery without compensation to those who owned and traded men, women, and children. Property rights had trumped all other claims from the defeat of Reconstruction through the New Deal, owing to the Supreme Court’s interpre- tation of the Fourteenth Amendment to protect corporate personhood rather than actual African American persons. Where discrimination was concerned, property owners continued to reign all powerful in national law until 1964. Corporations and other employers were free to refuse to consider African Americans, Jews, Latinos, Asian Americans, and women of all backgrounds for any or all jobs.

The extent of the change can be gauged by the vitriol of the act’s opponents. The southern segregationists and right-wing business interests who were joining together in the nascent conservative movement fought hard to defend, as some put it, “the precious right to discriminate.” They were losing a power they had long taken for granted as vouchsafed to them by the “original intent” of the Constitution. Out- raged, many came together in a quest to take over the party of Lincoln and remake it in their image. In the wake of the passage of the civil rights act, they rallied to the 1964 presidential candidacy of Arizona Republican US Senator Barry Goldwater, the anti-union, free-market apostle who said in explanation of his vote against the legislation, “Our right of property is perhaps our most sacred right.”1

Much to the horror of such opponents, the civil rights act heralded a new America. The federal government now affirmed a commitment to end discrimi- nation and provided tools for aggrieved citizens to secure equal opportunity. They could file complaints with the new Equal Employment Opportunities Commission (EEOC) and sue employers for violating their right to fair treatment. The movement organizations that fought for the reform’s passage helped them to do so. The legend- ary labor secretary of the National Association for the Advancement of Colored Peo- ple (NAACP), Herbert Hill, reminded the organization’s branches that “Title VII is not self-enforcing,” as he traveled the country to teach black workers about this new resource and how they could use it to fight discrimination.

Public officials were wholly unprepared for the number of complaints workers filed: some nine thousand in the EEOC’s first year, which climbed to seventy-seven thousand by 1975. “It was difficult to do anything before the Civil Rights Bill was passed,” explained a North Carolina worker; “there wasn’t anything to do, you were scared to talk.” But with it, he and other workers filed not just complaints but ulti-

1. For a fuller account of all the processes described here and the sources for quotations in the text, see Nancy MacLean, Freedom Is Not Enough: The Opening of the American Work place (Cambridge, MA: Har- vard University Press, 2006).

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mately class-action lawsuits — another new departure from the old legal regime, which empowered collective action in the courts as never before. Between 1965 and 1971, more than twelve hundred such lawsuits were filed against what one attorney called “labor apartheid.” When they won costly back-pay settlements, corporations began adopting more proactive efforts at inclusion. The new climate created by pas- sage of the act also gave a boost to the decades-old effort to end discrimination by fed- eral contractors, which led to potent and effective affirmative action remedies. These combined measures enabled black workers to gain access to once-closed employment and promotion as never before, even in some industries as recalcitrant as southern textiles, long lily-white.

As it enabled victims of racial and religious discrimination to challenge wrongdoing, Title VII of the act also empowered American women as nothing had since 1920, when they won the right to vote after more than seventy years of strug- gle. Contemporary women activists were most focused on workplace matters, and Title VII provided them with an unprecedented lever for change. They used it with an alacrity and ingenuity that took all observers by surprise. The prospect of equal employment — and the EEOC’s initial reluctance to act on sex discrimination — gave rise in 1966 to the largest and most lasting organization of the new women’s move- ment, the National Organization for Women (NOW). Over the next few years its members lobbied government, sued in court, and organized at the grass roots throughout the country to win fair treatment for women in every line of work from the skilled trades to the professions. They pried open door after door long slammed in women’s faces — among them, tenured faculty positions in the nation’s colleges and universities. Led by African American visionaries such as Pauli Murray and Eleanor Holmes Norton, feminists increasingly allied with civil rights groups in legal coali- tions to end racial and gender discrimination. They also broadened understanding of the nature of discrimination, as evidenced by the Supreme Court’s recognition of sexual harassment as illegal employment discrimination in 1985.

The civil rights act also encouraged Mexican American activists to rethink their strategies of empowerment. “Whether Mexicans are whites or people of color,” the veteran activist Bert Corona observed near the time of its passage, “has been a thorny issue for years.” The issue was above all a political one: whether to form coa- litions with African Americans, in particular, on the basis of nonwhite identity or pursue advancement through assimilation and respectability, as white immigrants from Europe had. The legal construction of race prior to the Civil Rights Act of 1964 encouraged Mexican Americans to lay claim to whiteness in order to have any hope of escaping discrimination. The 1848 Treaty of Guadalupe Hidalgo had effectively made Mexicans in US territory “white” by recognizing them as citizens at a time when naturalization law made whiteness a prerequisite of citizenship. As a result, for more than a century, Mexican Americans’ main line of defense against being subject to the same abysmal treatment as African Americans was to hold the US government accountable for treating them as “white,” sometimes with backing from the Mexican

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government. As long as discrimination against minorities was legal, this leverage was their only hope of protection. By providing better tools to battle discrimination, the 1964 act enabled Mexican Americans to pursue a strategy that was also more likely to lead to cooperation with other minorities. Changing the legal ground on which Mexican American and African American political activists encountered one another created new possibilities for national and local alliances to advance progressive poli- tics more generally.

These wide-ranging efforts, in turn, enabled others. The rights struggles of lesbian, gay, bisexual, transgendered, and queer (LGBTQ) Americans and of peo- ple with disabilities built on the groundwork laid by the civil rights act, as activists in these causes emulated the arguments and tactics of African Americans, Mexican Americans, and women of all groups. The passage of the 1990 Americans with Dis- abilities Act, the opening of the military to lesbians and gay men, and the prospect of marriage equality all would have been unthinkable without the passage of the civil rights act and the transformation in culture it expressed and furthered.

It is a truism among political scientists and legal scholars that reforms have about a fifteen-year window to do their work before their opponents find ways to circumvent them. That was true — with uncanny precision — of the civil rights act. Advocates of equal employment made significant headway right through the 1970s, when both racial and sex segregation on the job broke down as never before, but the effort ground to a crawl after the election of Ronald Reagan to the presidency in 1980. Reagan was a movement conservative who first came to national attention for the powerful 1964 speech he gave in support of Barry Goldwater, the only Republi- can senator to have voted against the civil rights act and the spokesman for the effort to drive moderates from the GOP. Once in office Reagan’s people set about systemat- ically undermining the fight against discrimination, from underfunding the agencies charged with ending it, to appointing leaders hostile to their missions, to backing and even soliciting “reverse discrimination” lawsuits designed to roll back previous legal victories. After 1980, nearly all studies find a cessation of black advances in particular.

The tougher atmosphere for equal employment advocates after 1980 was not simply due to conservative opposition, even as that should never be understated because it was continuous and increasingly powerful over time. One challenge was that Title VII’s supports and companion measures weakened gravely over the years. The law was never envisioned as a panacea; most activists saw it as part of a larger toolkit to create greater fairness in American life. The labor movement, the nation’s prime force for economic justice, was at its peak strength during the fight for the civil rights act, in which it played an indispensable role. Since then, however, its members have seen their power chipped away by economic change, fierce employer opposition, weak leadership, waning liberal commitment to trade unions, and the effective loss of the right to strike. The mass membership advocacy groups that helped win and enforce the act in its first decade — preeminently the NAACP, the American Jew- ish Committee, and NOW — are also weaker and less attentive to workplace and

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working- class issues.2 So, too, are the liberal religious bodies that proved so pivotal in lobbying for the civil rights act and helping to create a far-reaching values-based con- sensus against discrimination.3

The economy itself was also a big challenge: after the mid-1970s, it altered in ways that were only barely visible in 1964. Then, manufacturing still dominated the economy. In unionized sectors such as auto, steel, and meatpacking, workers with a high school education or less might find jobs that paid living wages and provided health care and pensions. Some activists, particularly labor activists, understood in the 1960s the threat that “automation” posed to the unskilled; leaders such as A. Philip Randolph enlisted it in their case for the complementary remedy of full-employment legislation. However, no one could foresee how radically the prospects for all workers have worsened as corporations shifted production overseas and the low-wage service industry has come to generate most new job openings. So, too, contingent work has spread, as employers have shirked the kinds of defined-benefit pensions and health- care commitments that were common in the civil rights era. The race to the bot- tom in private employment, in turn, is affecting the public sector, long the beacon of black advance, as politicians decry the “advantages” government workers now have, by default, and seek to cut their jobs and benefits.

These changes in political economy — economic restructuring in a context of weakening working-class power and conservative ascendency— confront today’s activists with trials more daunting than those of fifty years ago. America’s surging inequality, unmatched in the industrialized world, is surely the biggest issue. How to make work pay and create more economic security for all? How to address the large numbers exiled from a shrinking labor force and consigned, in effect, to incarcera- tion? How to provide young people from impoverished communities with the quality of education they need for today’s world? How to reduce the stranglehold the wealth- iest 1 percent now have on our democracy, a grip that has rendered it dysfunctional? The answers are not obvious, given the balance of class power in American life today.

So, in the end, how should we assess Title VII and the larger Civil Rights Act of 1964? Some observers will point to how the legislation fell short: the limitations put in to win passage; the groups to whom it offered no protection, such as domes- tic workers, those in small workplaces, and undocumented workers; its incomplete fulfillment of its core promise of an end to discrimination; its weakening applica- tion over time; and its incapacity to address today’s most profound political-economic challenges.

This is where a historical perspective has so much to contribute, because all of this can be true enough — and yet, the overall achievement still formidable. Those

2. See, for example, Dara Strolovitch, Affirmative Advocacy: Race, Class, and Gender in Interest Group Politics (Chicago: University of Chicago Press, 2007).

3. See James Findlay, Church People in the Struggle: The National Council of Churches and the Black Freedom Movement, 1950–1970 (New York: Oxford University Press, 1993), and Robert Wuthnow, The Restructuring of American Religion (Princeton: Princeton University Press, 1998).

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who designed the US Constitution put powerful roadblocks in the way of significant reform that might challenge property rights, among them states’ rights and the over- representation of rural interests in the Senate and the Electoral College. Politicians later added still more obstacles, such as the filibuster and seniority as a basis for com- mittee chairmanships. Recall, too, that the Civil Rights Act of 1964 passed before the Voting Rights Act of 1965 ended the racial dictatorship that passed for democracy in the states of the former Confederacy.

Given all this, the audacity and accomplishment of the activists who won this landmark law and enhanced its capacity through their creative application of it are what stand out the most to me. They opened the nation’s workplaces to all as never before. In the process, they created a national consensus that employment discrimi- nation is wrong — a consensus now so powerful that even the most right-wing aspi- rants for office dare not openly advocate it as so many did, routinely, fifty years ago. However much remains to be done, those are transformations to be savored. In this era of pervasive cynicism, citizens need to know what a difference a hard-won reform can make.

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