The Civil Rights Act of 1964 banned much government and private-sector discrimination, mostly on the basis of race and ethnicity (“color” was specified in addition to “race,” and “national origin” was the term used instead of the now-more-common “ethnicity”), but often on the basis of religion, too, and sometimes on the basis of sex as well.

There were eleven titles in the 1964 Act. The key ones were Title II (public accommodations), IV (school desegregation), VI (federally funded programs), and VII (employment). The others were I (voting), III (public facilities), V (expanding the U.S. Commission on Civil Rights), VIII (compilation of voting data), IX (facilitating intervention by the Justice Department and federal jurisdiction in some trials), X (establishing the Community Relations Service), and XI (regarding criminal contempt).

I’m going to argue briefly that the approach taken in the bill was a conservative one, that it ought to be updated to strengthen and clarify that essentially conservative approach, and that it is the Left that has strayed from the Act’s principles and that now wants to repudiate them.

A Restricted Measure

The 1964 Civil Rights Act was ambitious, but it was not untethered, either in the areas it covered or in the kinds of discrimination it banned. It did not, to give just one example, require wedding cakes and photographs to be made for same-sex marriages. And the relief that it made available was carefully limited, too. There was no provision for the award of comprehensive, let alone punitive, damages in the original statute, for example.

Some libertarians might still object to this bill. But, as discussed later, no less a libertarian than Richard Epstein said that, if he had to make an up-or-down decision, he would have voted for it in 1964. The Act addressed both public and private discrimination; and, in some areas regulated by the Act (for example, public accommodations) public and private discrimination had become hopelessly intertwined.

Conservatives, of course, treasure Richard Epstein but they adore Edmund Burke, so the more salient question for them is whether Burke would have voted for the Act. I think he would have. The Act was certainly a reform, but then Burke was a reformer, and these reforms were actually in line with fundamental American precepts – with the “American creed,” as Gunnar Myrdal put it, and E pluribus unum, our original motto. The rhetoric of the Civil Rights Movement, it is often now forgotten, stressed patriotism and was unabashedly religious; it is not surprising that it is now conservatives who are most likely to quote Dr. Martin Luther King’s dream of children being judged by the content of their character rather than the color of their skin, emphasizing both the “character” part and the “color” part. This spirit is in the Act, even if some liberty is sacrificed to it.

Conservatives want society to be cohesive, and it is hard for a multiracial and multiethnic society to be cohesive if it is endorses irrational and unfair discrimination on the basis of skin color and national origin. Such a society cannot be meritocratic or honor a natural aristocracy, let alone the self-evident truth that all men are created equal.

A higher percentage of Republicans than Democrats in both houses voted for the 1964 Civil Rights Act. Yes, in some respects the Act diminished the freedom of companies, but it’s at least arguable that the Act actually made markets freer and more efficient and improved the environment for business. I’ll conclude on a point related to this, noting that when I went from being a deputy in the Justice Department’s civil rights division to being a deputy in its environment and natural resources division, I was immediately struck by how much shorter and clearer the statutes were for the former than the latter. A low bar, but still.

The Turn to Federally Sponsored Race Discrimination

It is astonishing, in light of all the Act achieved, that the federal government has since 1964 come to endorse a great deal of racial discrimination. A 2011 report by the Congressional Research Service catalogued literally hundreds of government programs that included some form of racial discrimination.

If Congress wants to do something about it, and drastically reduce the amount of discrimination that goes on, it should look carefully at the bills that the Center for Equal Opportunity and the Heritage Foundation recently drafted. (The bills are described in detail here.)

The most straightforward way Congress could act is by banning racial preferences in all federally funded programs — public employment, education, contracting, etc. — and in federal civil-rights protections. Federal law — including the words of the 1964 Civil Rights Act that courts and bureaucrats have mangled — frequently states that the government may not discriminate based on race, but plenty of other federal statutes explicitly do so.

Likewise, the “disparate impact” approach to civil-rights enforcement results in race-based preferential treatment — often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences, and our second model bill has this aim.

In brief, an action that has racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers); or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color; or both. The Obama administration loves this approach, alas.

Fortunately, most civil-rights laws – again, including the 1964 Civil Rights Act, as originally written – have no such “disparate impact” provisions; rather, they prohibit actual discrimination (“disparate treatment”). The laws were expanded, however, through agency interpretation and activist court rulings to include “disparate impact.”[1]

Answering Today’s Liberals

Liberal reaction to these proposals was heated. But to imply, as some did, that indifference to racism motivates those who believe that everyone should be treated equally – and that the government should not discriminate in favor of or against anyone based on race – is pure demagoguery. Slate and Media Matters said such legislation would trample on the ideals of the 1964 Civil Rights Act, but they are the ones who have forsaken those ideals.

Our critics are quite right that our two complaints are against (a) overt racial preferences and (b) the “disparate impact” approach to civil-rights enforcement. But they are wrong to assert that either of these complaints would, to quote Media Matters, “gut” the “core enforcement provisions” of the statute, let alone that it is “an attack on the 1964 Civil Rights Act itself,” as Slate put it.

The 1964 Act did not use racial preferences. Indeed, it rejected them, by taking a race-neutral approach to civil-rights law, protecting members of all racial and ethnic groups — majority and minority alike — from racial discrimination. So it is simply not accurate to say, as Media Matters does, that the 1964 Act was “explicitly race-conscious.”

What’s more, as noted, the 1964 Act didn’t even use the disparate-impact approach. To be sure, the Supreme Court got that wrong in Griggs v. Duke Power Co., in its assessment of one part of the act (Title VII), but the best scholarship has debunked the Court’s interpretation. The Court itself began to have second thoughts and was moving away from this approach with a series of decisions in the late 1970s and 1980s, so that a very different Congress amended Title VII in 1991 to codify for the first time the disparate-impact approach. Meanwhile, the Court rejected the disparate-impact approach for Title VI, and it has not adopted it for any other title in the 1964 Act that I know of.

The last part of the Slate piece appears to be an attempt to argue that racial preferences are essential to combat racism. This is not true. Congress certainly did not adopt this approach in the resolutely nonpreferential approach it took in the 1964 Act, at a time when racism was much worse than it is now. If it had embraced racial preferences, the Act would not have passed. So Slate’s argument is wrong factually and historically — and is also a nonstarter as a legal matter, since the Supreme Court has long rejected the “societal discrimination” rationale for the use of racial preferences.

Addressing Libertarian Criticisms

Having spoken to the Left, let me also make a couple of remarks for the libertarian Right. In his excellent book Forbidden Grounds, libertarian law professor Richard Epstein said that, notwithstanding his misgivings about government regulation of the private sector generally, he would have nonetheless voted for the 1964 Civil Rights Act. He notes “the abuses of political power before 1964” and the need “to allow federal power to break the stranglehold of local government on race-relations.” Thus, “History often leaves us with only second-best devices to combat evils that are in principle better controlled by other means.” A good point.

But, conversely, he later concluded his review of The Shape of the River, a book defending racial preferences in college admissions by William Bowen and Derek Bok, by advocating “decentralized decision making.” That is, each school should decide on its own whether to discriminate on the basis of race and ethnicity in selecting its students.

Professor Epstein cheerfully acknowledges that this approach runs afoul of current law, and he calls for that law’s repeal. But while we are waiting for Congress to revoke the Civil Rights Act of 1964 – and I hope Professor Epstein isn’t holding his breath, as I would hate to lose him – the issue we face in the real world is this: Should colleges and universities be barred from discriminating against whites and Asians, just as they are now barred from discriminating against blacks and Hispanics?

One can defend the decentralized scheme that Professor Epstein advocates. One can also defend the (“second-best”) law that was actually written and passed in 1964, prohibiting colleges that receive federal money from discriminating against anyone because of race or ethnicity. What is indefensible, however, is the law as it is currently interpreted by the federal bureaucracy and defended by university officials like Messrs. Bowen and Bok, which amounts to a ban on discrimination against some people (blacks and Hispanics) but not others (whites and Asians).

Bell Curve Consequences

And, finally, having spoken to the liberals and libertarians, let me also say a word to those who ask: What if it turns out that there are genetic differences in cognitive abilities among different groups?

The issue whether there are racial differences in IQ is, it seems to me, of an intricacy disproportionate to its interest, at least for those of us who think that sound law and policy require judging people as individuals, without regard to race. In short, even if such genetic differences can be proven to exist, it would not provide a convincing rationale to refrain from re-instilling the sound law and policy of requiring citizens to be judged as individuals, without regard to race. Were science to somehow prove that the average white’s IQ is 12.03 higher than the average black’s, there will still be plenty of blacks smarter than plenty of whites, and plenty of mixed blacks/whites/others.

In the civil-rights context, the science here is important only to those on the far Right who would defend racial discrimination, and — especially — those on the far Left who insist that, since culture of course also cannot be blamed for racial disparities, they must all be a result of discrimination. The quota mongers have to deny unequal distributions of talent, interests, and ability, since their whole approach hinges on an assumption that proportionate representation is what a meritocratic system, sans discrimination, would produce. It is only to people who want to make racial generalizations and to people who believe that, absent discrimination, every university and workplace would “look like America” that race and IQ is of great importance.

I, on the other hand, am happy to be agnostic: Just choose the best qualified people, and don’t worry about getting your numbers right. For us colorblind conservatives, who think people should be treated as individuals regardless of race and who don’t think that racial disparity equals racial discrimination, the connection between race and IQ doesn’t matter. The 1964 Civil Rights Act, as originally written and understood, makes sense for a multiracial and multiethnic society, whether or not there are genetic differences among different groups.

Conclusion

Discrimination on the basis of race and ethnicity is inconsistent with the 1964 Civil Rights Act, unconstitutional when the government imposes it, and a bad idea, yet the practice is now rife throughout federal law and government programs. Jobs should go to the most qualified individuals; contracts should be awarded to the lowest bidders who are qualified; the students who are most likely to excel academically should be admitted to taxpayer-funded universities; and all should be protected equally from discrimination.

[1] The “disparate impact” model bill just discussed in the text does not cover Title VII of the Civil Rights Act of 1964 and Sections 2 and 5 of the Voting Rights Act of 1965, because (as amended) they now explicitly allow disparate-impact causes of action. Ideally, Congress should amend those laws to eliminate those causes of action. (Title VII was amended in 1991 to codify a disparate-impact cause of action that the Supreme Court had, mistakenly, read into the statute. Section 2 of the Voting Rights Act doesn’t exactly use disparate impact: It uses a “results” test, which is not as bad, but it raises many of the same problems, as explained in another recent Heritage paper.)

At the very least, Congress could amend these statutes to provide defendants with an affirmative defense against disparate-impact claims: Where people can demonstrate that they acted with a nondiscriminatory intent when engaging in conduct that resulted in a disparate impact, they should not be liable for discrimination based on a disparate-impact claim. Justice Scalia suggested such an approach in his concurring opinion in the New Haven firefighters case, noting that while disparate impact might be defended as “an evidentiary tool used to . . . ‘smoke out’ . . . disparate treatment,” existing laws that authorize disparate-impact claims “sweep too broadly . . . since they fail to provide an affirmative defense for good-faith [conduct].” Indeed, “it is one thing to free plaintiffs from providing an employer’s illicit intent, but quite another to preclude the employer from proving that its motives were pure and its actions reasonable.”

The Center for Equal Opportunity and Heritage Foundation also propose “sunshine legislation” for university admissions. That is, as long as university officials take race into account in admissions decisions, we should require universities to make public their use of such preferences. If universities receive federal funding, they should be required to report annually in detail on whether and how race, color, and national origin factor into the student-admissions process.