Reflecting on the Legacy of the Civil Rights Act of 1964

The AJEI Summit in Boston in November 2024 included a panel discussion entitled, “Commemorating the 60th Anniversary of the Civil Rights Act of 1964: A Reflection on Its Legacy.” Professor David Cole, National Legal Director of the ACLU and the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center, moderated the panel. The two panelists were Professor Sherrilyn Ifill, now Vernon E. Jordan, Jr. Distinguished Professor of Civil Rights at Howard University School of Law School, and Johnathan Smith, former Deputy Assistant Attorney General for Civil Rights, Department of Justice.

The Civil Rights Act of 1964 addresses discrimination based on race, color, religion, sex, or national origin. As Mr. Smith noted, though, Congress did not originally plan to address discrimination based on sex: this was a “poison pill” that those trying to stop the Act’s passage got added into the Act by amendment.

Most of the panel discussion centered on the Civil Rights Act of 1964’s prohibitions of race discrimination. Professor Cole set the stage by explaining three ways in which the Civil Rights Act of 1964 has changed this country:

1. It shifted the Southern states from the Democratic Party to the Republican Party in national politics (as a shrewd political operator, President Lyndon Johnson had anticipated this consequence but still considered the Civil Rights Act of 1964 worth it).
2. It put the federal government behind desegregation efforts (this was significant, insofar as there had not been much progress made toward desegregation in the 10 years following Brown v. Board of Education,  347 U.S. 483 (1954)).
3. It addressed segregation at private businesses.

Professor Ifill gave a little background for the passage of the Civil Rights Act of 1964. President John F. Kennedy began laying the groundwork; President Johnson, in signing the Act into law, did so, in part, in tribute to Kennedy. One issue President Kennedy had faced was the Cold War. The Supreme Court had long held that the Fourteenth Amendment does not reach race discrimination by private businesses. In the early 1960s, however, African nations were claiming their independence, and they began sending diplomatic missions to the United States. Segregation meant that African diplomats traveling along Route 40 in Maryland could not receive service from private businesses. African newspapers began to report on these denials of service. The African diplomatic corps had an easy refrain: “This doesn’t happen to us in the Soviet Union.”

Mr. Smith emphasized that the legacy of the Civil Rights Act of 1964 is not just words on a piece of paper and that one result of the Act was violence against those who thought that these were not just words on paper. He noted the disconnect between what our democracy could be and what it was. Professor Cole brought up the 1967 assassination of Wharlest Jackson, who was killed after he had received a promotion at Armstrong Rubber and Tire Company in Natchez, Mississippi. The apparent motive for the murder of Mr. Jackson was that, in receiving the promotion, he was now doing a “white man’s job.” (His murderers have never been brought to justice.)

Professor Ifill spoke about the significance, in particular, of Title VI of the Civil Rights Act of 1964. Title VI bans discrimination by those receiving federal funds. Jurisdictions in the South had, for instance, mandated segregation into law—and public areas would be signed accordingly—but even when the signs came down, racial exclusion was still happening. Title VI put the hammer of federal funding behind desegregation efforts and also helped to begin the process of desegregation in the North. However, Title VI lost part of its force after Alexander v. Sandoval, 532 U.S. 275 (2001), which held that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI. In Sandoval, the Supreme Court rejected a challenge to the policy in Alabama (which received federal funds) that the written portion of Alabama’s driving test would be administered only in the English language. The court held that Martha Sandoval simply could not bring these claims as a private litigant.

The result of Sandoval is a disconnect between Title VI, under which disparate-impact claims cannot be brought by private litigants, and Title VII, under which they can be. Title VII bans discrimination in employment, and in this regard, Professor Ifill addressed the criticism that Title VII has benefited only the elites among Black communities. She pointed to the seminal disparate-impact case of Griggs v. Duke Power Co., 401 U.S. 424 (1971). The Griggs case looked at a power plant in North Carolina. Before the July 2, 1965, effective date for Title VII, the power plant had employed Black employees “only in the Labor Department where the highest paying jobs paid less than the lowest paying jobs in the other four ‘operating’ departments in which only whites were employed.” Id. at 427. After the effective date of Title VII, Duke Power dropped its formal policy of restricting Black employees to the “Labor Department” only. But, in dropping the old, overtly discriminatory policy, Duke Power also put into place two new policies for any existing Labor Department employee who wished to transfer to another department: (1) he had to pass an aptitude test, and (2) he had to have a high school diploma. Id. at 427-28. The Supreme Court found Duke Power’s practice here to be in violation of Title VII: “[N]either the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.” Id. at 431. In short, Griggs is why employers are now required to show business necessity before using tests in hiring or promotions. Professor Ifill explained that Griggs—and post-Griggs litigation supported by the NAACP’s Legal Defense Fund—led to changes across industries in the South.

Professor Ifill also brought up a personal example of how Title VII changed lives. Desegregation of trade unions in New York is one reason why she was able to study at Vassar College. Her brother was an electrician, and because of his job opportunities made available after desegregation, he was in a position to sign a promissory note for her when she needed a loan to go to college.

The panel also addressed some of the more negative, if unintended, legacies of the Civil Rights Act of 1964. There has been a retreat from public life since the passage of the Act. The phrase “massive resistance” has been used in connection with the reaction of white Southerners to Brown v. Board of Education, but there was also “massive resistance” to the Civil Rights Act of 1964. For example, one response to the Act was simply to drain public swimming pools and close them down instead of integrating. Today, there are still negative reactions to the idea that disparate-impact discrimination can exist, and the term “DEI” (for Diversity, Equity, and Inclusion) has been turned into a slur.

On the other hand, as noted at the beginning of the panel discussion, a room like that at the 2024 AJEI Summit would have looked very different before the passage of the Civil Rights Act of 1964. There would not have been as many, if any, women or racial minorities in the room. In fact, Title VII has been so successful that the workplace is often the only integrated space that many of us encounter on a day-to-day basis—we may live in different neighborhoods and shop near where we live, but most of us work in integrated workplaces. For this, we can thank the Civil Rights Act of 1964.