How far we’ve come—and how far we still have to go.
By Robert S. Benchley. Originally published in Tennessee Law, fall 2014.
“We must not approach the observance and enforcement of this law in a vengeful spirit. Its purpose is not to punish. Its purpose is not to divide, but to end divisions—divisions which have lasted all too long. Its purpose is national, not regional. Its purpose is to promote a more abiding commitment to freedom, a more constant pursuit of justice, and a deeper respect for human dignity.”
It was half a century ago—July 2, 1964, to be exact—that President Lyndon B. Johnson, sitting in the East Room at the White House, spoke those words in an address to the nation upon signing into law the Civil Rights Act of 1964.
The Act was a landmark piece of civil rights legislation that outlawed discrimination based on race, color, religion, sex, or national origin. It ended unequal application of voter registration requirements and racial segregation in schools, at the workplace, and by facilities that served the general public.
Or did it? Looking back fifty years later, one hears in LBJ’s words a sense of hope that telling people to do the right thing would somehow end three centuries of one group’s mistreatment of another. But if the law is a system of rules enforced through social institutions to govern behavior, then it has to have teeth, because old habits die hard.
In fact, the Civil Rights Act of 1964 has been bolstered by additional legislation several times in the intervening years to extend protections in instances or to groups not written into the original law. Examples are the Voting Rights Act of 1965, which prohibits racial discrimination in voting; the Civil Rights Act of 1968, which provides equal housing opportunities; and the Americans with Disabilities Act of 1990, which used the Civil Rights Act of 1964 as a template.
Civil rights scholars at UT Law believe we have made significant, if uneven, progress in the past fifty years. Equality remains a moving target—employment, gender, and immigration issues are the current hot buttons—in large measure because institutional discrimination has deep cultural roots.
Provisions vs. protections
Fifteen years after the act’s passage, a UT Law student named Penny White (’81)—who today is the Elvin E. Overton Distinguished Professor of Law and director of the Center for Advocacy and Dispute Resolution—found a summer job working for a legal services office in Johnson City, Tennessee.
“I spent the entire summer learning about Title VII as it related to an African American client’s claims against the area’s largest employer, Tennessee Eastman Company,” White says. “The anger that the suit generated was extreme. It was suggested that those of us representing the plaintiff were unappreciative of all that Eastman had done for the area, that we were somehow not civic-minded or patriotic because we had sued. In that first summer out of law school, a great deal of my own naïveté evaporated as I learned the great difference between the provisions of the law and the actual protections of the law.”
Filled with enthusiasm for making the law do what it promised, White returned to UT Law in the fall and spent the next two years assisting Joseph G. Cook, the Williford Gragg Distinguished Professor of Law, and John L. Sobieski Jr., the Lindsay Young Distinguished Professor of Law, on what would become a seminal text on the subject: the five-volume Civil Rights Actions, which continues to be updated twice a year.
Regular updates are needed because the courtroom dockets remain full. “In terms of civil rights, the area most people think of first today is employment,” says Sobieski. “If asked, they will say that there has been progress. But lawsuits challenging employment practices as discriminatory—the protections under Title VII of the act—have not gone away. In fact, Section 1983 actions, which allow a party to bring action against state and local officials who act in an unconstitutional manner, now account for the overwhelming majority of civil rights actions. The prohibitions against discrimination by gender have not kept pace with other protections, and age-discrimination cases are only going to increase as the baby boomers get older.”
Gender barriers remain
Valorie Vojdik, director of clinical programs and a professor of law who specializes in gender law, agrees. She believes the Civil Rights Act has succeeded in eliminating many of the barriers that once barred women from jobs, but she says gender segregation remains rampant in the work force, requiring new legal theories and ideas to end it.
“Full participation is still a problem,” Vojdik says, and she offers a long list of examples. “Women earn only seventy cents for every dollar paid to men, and the people who run companies continue to be men. Women are subject to many employment practices that appear to be neutral, but which affect women negatively. This is why some discrimination is difficult to prove. A good example is when a company doesn’t permit part-time work, which lessens employment opportunities for women needing time with their children. It’s often difficult to raise certain claims under Title VII because many courts think its protections don’t apply to discrimination based on sexual orientation. And women’s reproductive rights are increasingly being threatened.
“I was the lead lawyer in getting women admitted to The Citadel in 1995,” she says. “This was a case in which a state military college banned women, when women had been permitted in national military service since 1978. As a society, we have to look deeper into the reasons such practices still exist.”
Although civil rights were considered largely a racial issue in 1964, the face of America, like the act itself, has changed greatly.
“As human beings, we tend to focus on differences: ability, skin color, religion, and other personal attributes,” says Corbin Payne, a 3L and disability advocate. “Over time, the focus of discrimination has become fixed on new groups.”
The new oppressed
Karla McKanders, associate professor of law and director of UT’s Immigration Clinic, cites immigrants as one of the most visible of those groups.
“As a law professor who is engaged with my law students in the pro bono representation of immigrants, I am exposed daily to the gaps in our legal and immigration systems that often deny indigent immigrants access to attorneys or the right to defend against their removal from the United States,” McKanders says. “As an educator of a future generation of lawyers, I remain engaged and dedicated to teaching the important principles of the Civil Rights Act and facilitating equal opportunities and access to the justice system. I also remain dedicated to instilling in my students the need to use their legal degrees to serve people who may not have access to the justice system.”
The College of Law’s Immigration Clinic accomplishes this goal through the representation of indigent immigrants seeking relief before immigration courts and the US Department of Homeland Security. Immigration Clinic students have successfully represented abused and abandoned children who have entered the United States without their parents, women who fled their home countries due to domestic violence, and refugees from various countries across the globe.
“The attainment of civil rights is a continuing goal that we must diligently monitor,” McKanders says. “We must always strive to ameliorate the conditions of vulnerable groups who may be victims of institutionalized and other forms of discrimination that may not be as overt as when the act passed. The fiftieth anniversary of the Civil Rights Act reminds us that we must remain forever aware and vigilant to ensure that civil and human rights are upheld through the rule of law and that principles of equality and justice are affirmed.”
Benchley is a Miami-based freelance writer.