This is a year chock full of major civil rights anniversaries. In May we celebrated the 50th anniversary of the landmark Brown v. Board of Education decision. July 2 marks the 40th anniversary of the Civil Rights Act of 1964, the most important civil rights legislation in nearly a century.
There are parallels and differences aplenty between the Brown decision and the Civil Rights Act of 1964. Like Brown, the Civil Rights Act of 1964 transformed the American landscape, although the reach of the Act extends far beyond education. The Civil Rights Act of 1964 laid the groundwork for the Voting Rights Act of 1965 by outlawing certain discriminatory voting practices (Title I); opened up places of public accommodation for people of color (Title II); gave the federal government additional tools to wage the school desegregation battles (Title IV); prohibited recipients of federal taxpayer dollars, such as hospitals, schools, and transportation agencies, from engaging in racial discrimination (Title VI); and outlawed not only racial discrimination in employment, but religious and sex discrimination as well (Title VII).
The Act indelibly changed life in America. "Whites only" water fountains, pools and restaurants became illegal, and "no blacks need apply" job announcements became a violation of federal law. Title VI provided a major tool in the desegregation of hospitals, nursing homes, and other health care facilities.
As a result of Title VII, the Act was a major victory not only for minorities, but for women as well. "Male only" job notices became illegal for the first time. Women who had been fired because they became pregnant, or were not hired because they had small children, now had some way to "fight City Hall." The Equal Employment Opportunities Commission also grew out of this Act, giving women a workable "hammer" with which to shatter the glass ceiling. Overall, the Act was groundbreaking, and has given new hope, relief, and opportunity to countless Americans.
Yet, like Brown, the legacy of the Act is also one of unfulfilled promise. Hostile court decisions from the Rehnquist-led Supreme Court have narrowed the scope of the remedies available under the Act. For instance, the court in 2001 substantially undermined the ability to enforce Title VI by holding that private plaintiffs were forbidden from suing under Title VI to redress policies and practices that have a disparate impact on the basis of race, color, or national origin.
The Civil Rights Division of the Justice Department, where I spent the better part of a decade as an attorney, has been "missing in action" under President Bush. Morale is so bad in some sections that many of my former colleagues wax nostalgic for William Bradford Reynolds and Ed Meese. It's a sad day when private civil rights lawyers actively seek to avoid federal court and the federal government in discrimination cases. Once, we relied on federal courts and the federal government to guard against hostile state courts and unsympathetic state officials. Tragically, this is often no longer the case.
While women continue to make progress as a result of Title VII, the earnings gap between men and women persists. The Wal-Mart class action is the latest reminder of the struggles that exist for women in the workplace.
I try to look at the glass as half full, and ask what it will take to fill it to the top.
Some contend that we should tweak some of our civil rights laws, including, but not limited to, the Civil Rights Act. While it would be useful in an ideal world to enact new legislation to correct some of the civil rights misdeeds of the Rehnquist Supreme Court, it is unwise to do so in the current legislative environment. Remember the words of Hippocrates: "First, do no harm." If progressives aggressively pursue civil rights legislation in the current environment, it may actually trigger efforts to turn back the civil rights clock even further.
New legislation is less important than aggressive enforcement of laws currently on the books. Forty years later, the Civil Rights Act continues to provide ample tools to combat discrimination in many areas.
For instance, Title VI is a potentially powerful tool, but regrettably remains the sleeping giant of civil rights laws. It could be used to combat racial and ethnic disparities in health status by, for instance, targeting HMOs or preferred provider organizations (PPOs) that frequently do not accept minority doctors into their provider networks, or remove them from their network. The most frequent excuse for these actions is that the physician's patients, most of whom are minority – are allegedly "too sick" and therefore "too expensive." These flimsy economic justifications are smokescreens for discrimination.
At an annual meeting of the National Medical Association (NMA), I listened in horror as doctor after doctor recounted personal horror stories involving discriminatory treatment by HMOs or PPOs. I also learned about other health care organizations that, in their marketing, bypassed zip codes containing large minority populations. This sounds like old fashioned redlining of the variety that used to prevent minorities from purchasing a home or gaining access to a mortgage or homeowner's insurance.
The Civil Rights Act was so brilliantly crafted that it can be applied to a wide variety of injustices – if there is the will to do so. Sadly, enforcement of the Civil Rights Act of 1964 does not appear to be a priority of this administration.
In the end, enforcement alone is not enough. We also need renewed passion, grassroots community advocacy and coalition building. Daniel Patrick Moynihan once said that a society that loses its sense of moral outrage is doomed to extinction. It's time to get mad – and time to get even by redoubling our enforcement efforts, dusting off Title VI and other civil rights laws, and forging partnerships with community-based organizations and other grassroots activists. It's time to fill up that civil rights' "glass" all the way to the brim. Civil rights remains the unfinished business of America. Let's get to it.