Guest Post

  • July 22, 2014
    Guest Post

    by Remington A. Gregg, Legislative Counsel, Human Rights Campaign

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    As we pause to commemorate the 50th anniversary of the passage of the Civil Rights Act of 1964, one of the most important pieces of legislation ever passed into law, it is a perfect time to look at the many ways it paved the way for the lesbian, gay, bisexual, and transgender (LGBT) community.  Not only did passage pave the way for additional pieces of civil rights legislation, including Title II of the Americans with Disabilities Act of 1990 and Title IX of the Education Amendments Act of 1972, but it marked a sizeable shift in the use of the commerce clause.  To LGBT movement, however, the Civil Rights Act marked the beginning of the LGBT community’s own fight for equality. 

    The long march toward LGBT equality gained momentum with Romer v. Evans in 1996, where the Supreme Court held that an amendment to the Colorado state constitution that would forbid the state or its subdivisions from extending legal protections to LGB people violated the Equal Protection Clause.  In 2003, in Lawrence v. Texas, the Supreme Court ruled affirmatively for the first time on a due process claim brought by gay claimants that LGBT people “are entitled to respect for their private lives.  The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”  And last year’s critical decision in United States v. Windsor changed the whole landscape in the LGBT community’s access to important federal benefits.   The Court held that Section 3 of the “Defense of Marriage Act,” which defined marriage as a “union between one man and one woman as husband and wife” for federal purposes, was an unconstitutional infringement on equal protection as applied to the federal government under the Due Process Clause of the Fifth Amendment.  Now, LGBT couples have access to more than 1,100 rights, benefits, and obligations previously denied to them.

    Each of these cases has served as a vital building block in the fight for equality. These successes have been paralleled with incredible legislative and administrative victories, including the repeal of “Don’t Ask, Don’t Tell,” passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and an LGBT-inclusive Violence Against Women’s Act re-authorization. And yesterday, President Barack Obama signed an important executive order.  First, it prohibits federal contractors from discriminating in employment on the basis of sexual orientation or gender identity.  Second, it protects federal employees from discrimination on the basis of gender identity.  (President Bill Clinton signed an executive order that provided protections with regard to sexual orientation.)

  • July 21, 2014
    Guest Post

    by Erwin Chemerinsky and Catherine Fisk. Chemerinsky is Dean and Distinguished Professor of Law and Fisk is the Chancellor’s Professor of law at the University of California, Irvine School of Law.

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    The fiftieth anniversary of the enactment of the Civil Rights Act of 1964 is an occasion worth celebrating. On July 2, 1964, President Lyndon Johnson signed into law the first major civil rights law adopted since the end of Reconstruction. Its provisions prohibit racial discrimination in some crucial areas of society.

    Title II forbids hotels and restaurants from discriminating based on race, ending a form of racial separation that existed throughout the United States and especially in the South.  Title VI prevents recipients of federal funds from discriminating on the basis of race, a provision that was crucial in forcing many school systems to desegregate. Title VII prohibits employment discrimination based on race, sex, or religion. Initially this was limited to private employers, but Congress quickly expanded its coverage to government entities.

    The enactment of the Civil Rights Act of 1964 was a political triumph for Lyndon Johnson. He appealed to the nation’s collective guilt over the assassination of President Kennedy and urged the enactment of the law as a tribute to the slain leader. A Southerner and a former Senate majority leader, Johnson was able to persuade opponents to end their filibuster and allow a vote in the Senate, which then joined the House of Representatives in passing the bill. Over two-thirds of the members of each house of Congress voted in favor of it.

    But what is often forgotten is that the opposition to the Act was not based solely on racism. Those who disagreed invoked the principle of freedom of association: owners of businesses should be free to do business with and employ whomever they want. The claim was that the owner of a hotel or a restaurant should be free to refuse service on any basis to anyone, including race. Similarly, the argument was that employers should be able to choose who they want to associate with in the workplace. Thus, opponents of the Act claimed that owners should be free to use their property however they want and it was wrong for the federal government to restrict their choices by prohibiting discrimination.

  • July 18, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Practicing the art of the possible rather than seeking perfection may be an inevitable feature of civil rights legislation. Even the greatest and most honored laws have loopholes; the Thirteenth Amendment, for example, allows slavery based on conviction of crime, any crime, and the exception was liberally exploited in the former Confederacy after Redemption. The Fifteenth Amendment seems to countenance discrimination on the basis of sex, and a protection in earlier versions of the right to hold office was stripped out before enactment.        

    Nevertheless, I’ll take them; I do not criticize the Reconstruction Amendments or their makers for being merely as good as was possible at the time. Similarly, it would not have been better to give up what was good in the 1964 Act simply because of its deficiencies. At the same time, recognizing a law’s compromises and gaps is essential to understanding its real import, and to thinking about how policy can be shaped to fully reflect the principle at stake.

    Among the important compromises in the bill are exemptions from the employment discrimination prohibition of Title VII for businesses of less than 15 people, and the exemption from the Public Accommodations provision of Title II for small, owner-occupied motels and lodging establishments. Presumably, these exceptions exist for the benefit of racists who grew up in a racist system through no fault of their own. Congress might reasonably have concluded that forcing close contact between racial minorities and these racists might have been more trouble than it was worth.  But these exemptions should have been time-limited; at this point, all but the oldest business owners spent their entire lives, or at least their adulthoods, in a nation were discrimination has clearly been against the law and public policy. The case for continued compromise of the policy is not obvious.

    Another major gap in the Civil Rights Act is the lack of protection against discrimination of members of the LGBTQ community. Clearly, this was no oversight. The desegregation struggle was to some degree a Cold War propaganda effort. Fair treatment on the basis of race was a “cold war imperative,” and so too was controlling the potentially subversive effects of sexual minorities. Thus, the 1965 Immigration Act, a close cousin of the Civil Rights Act, eliminated discrimination on the basis of race in immigration law, but simultaneously clarified and strengthened a prohibition on gay and lesbian immigration. The Civil Rights Act makes little sense unless it recognizes a fundamental human dignity and equality. The Americans with Disabilities Act and the Age Discrimination in Employment Act closed unjustified gaps in the coverage of the original law, and the prohibition on gay immigration is gone. Continuing to allow discrimination against gays and lesbians in the Civil Rights Act is indefensible.

  • July 18, 2014
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    *This piece was originally posted in Public Justice's blog.

    An eye-opening piece by Stephen Davidoff Solomon in The New York Times highlights a huge, unappreciated danger of corporations requiring employees to sign mandatory arbitration “agreements” to get or keep their jobs – hiding outrageous misconduct, including sexual harassment. 

    Solomon demonstrates that mandatory arbitration isn’t just bad because it bars workers from having their day in court. It also keeps misconduct – including extensive sexual harassment – secret from investors, customers, other workers and the public, so bad behavior and actors can thrive.

    Dov Charney, the CEO of American Apparel, was unanimously fired by the company’s Board of Directors late last month. Charney was dramatically over-the-top and openly publicized his sexual focus. In 2004, a female reporter from Jane magazine watched him engage in oral sex and then wrote about it. The article was full of quotes from Mr. Charney like, “Masturbation in front of women is underrated.”

    When a series of sexual harassment charges were made, Charney continued with his Board’s full support. After the company’s financial performance decreased, however, and an arbitrator issued a finding of sexual harassment, American Apparel let him go.

    Charney got away with it for so long, at least in part, because employees were required to sign agreements to have all disputes handled through arbitration. As a story in the New York Times explains:

    Arbitration hearings, unlike trials, are usually closed, and any filings are more likely to be sealed, often enabling defendants to avoid embarrassment and maintain their powerful positions.

  • July 17, 2014
    Guest Post

    by Jin Hee Lee, LDF Senior Counsel, NAACP Legal Defense and Education Fund

    *This piece was originally published in The Courier-Journal

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Jin Hee Lee wrote a special introduction for ACSBlog:

    The Civil Rights Act of 1964 was a remarkable legislative achievement during a period of time in our Nation’s history when brave men and women literally risked their lives in pursuit of justice.  In the face of violence from white supremacists and segregationist mobs, civil rights heroes like Medger Evers and Dr. Martin Luther King, Jr., demanded that the United States fulfill its constitutional promise of equality for all Americans.  Yet, despite tremendous progress over the past 50 years, we still have a long road ahead in order to achieve the Civil Rights Act’s vision of equality.  Racially segregated schools continue to plague our public school system, and mass incarceration has wreaked havoc in the lives of too many African American families.  The catastrophic effects of the Great Recession have been felt all across the country, but have been particularly devastating to African Americans, who encounter even more barriers to gainful employment.  And, just last year, a deeply divided Supreme Court struck down a key provision of the Voting Rights Act of 1965 that had been instrumental in protecting minorities’ right to vote.  As we celebrate the 50th anniversary of the Civil Rights Act, we must also honor its legacy by continuing the struggle for freedom and equality so that, one day, racial justice can truly be achieved.  

    The passage of the Civil Rights Act of 1964 years ago was a monumental feat of bipartisan legislation during a crucial phase of American history. Only 10 years earlier, the United States Supreme Court denounced state-sanctioned racial segregation in the landmark decision Brown v. Board of Education. In the following years, untold numbers of American heroes risked their lives to end Jim Crow laws, with the moral conviction that "equality" is not a mere abstract term, but must necessarily be a lived experience. The Freedom Riders, the bus boycotters, the sitters in lunch counters — black and white, young and old — all were bonded by a common vision of an America that could, despite its flawed origins, embrace the equality and humanity of all its citizens.

    The implementation of this vision came at a heavy cost, especially in the years leading up to the Civil Rights Act.