By Richard Thompson Ford, George E. Osborne Professor of Law at Stanford University
Since the 1960s, the ideas developed during the civil rights movement have dominated American thinking about social justice. Courts and governmental agencies enforce legal prohibitions against discrimination; private businesses and universities follow suit, fashioning their own diversity policies. Even private individuals think about race relations in civil-rights terms: we aspire to the ideal of “colorblindness” and condemn the evils “discrimination” and “bias.” American civil rights legislation has been a model for other nations and the American civil rights movement has inspired important struggles against injustice, such as the South African anti-apartheid movement and the international movement for gay rights.
When it comes to outright discrimination and overt prejudice, civil rights have been an astonishing success. But today’s most serious social injustices aren’t caused by bias and bigotry. For instance, in the context of race, they stem from segregation — a legacy of past racism but not by and large the result of ongoing discrimination — and the many disadvantages that follow from living in isolated, economically depressed and crime-ridden neighborhoods. In my new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality, I show that civil rights litigation and activism have hardly made a dent in these formidable obstacles. In fact, civil rights thinking can distract attention from the real problems, emphasizing dramatic incidents that aren’t good examples of the larger injustices.
Civil rights haven’t been a panacea for the illness of social prejudice, but like a patient who keeps popping pills because the prescription isn’t working, we’re now at risk of an overdose. Civil rights litigation has exploded since the 1970s, far outpacing the growth in civil litigation generally. In 1991 the federal courts heard about 8,300 employment discrimination cases; in 2000 they heard over 22,000. Civil rights laws, properly framed and limited, serve a vital social purpose, but too many civil rights can be as bad as too few, and an overly aggressive civil rights regime can be as destructive as an ineffectual one.
Civil rights litigation and activism don’t do enough to redress today’s most serious social injustices, many of which aren’t caused by overt prejudice or simple discrimination. Inner city blacks are more isolated from, and less likely to succeed in, the prosperous American mainstream than they were in the 1970s. Women still earn about 75 cents for every dollar men earn for comparable work. The unemployed elderly are more likely to stay that way than younger job seekers, because of a complex set of economic and institutional factors.
At the same time civil rights laws prohibiting discrimination have been pressed to perverse and illogical extremes: laws against sex discrimination are used to require coed public restrooms and outlaw “Ladies’ Nights” at singles bars; one litigant even sued to stop Mothers’ Day. Cynical opportunists and reckless extremists on both the left and the right have hijacked civil rights, using them to gain personal advantage at public expense and in some cases, even to reverse and undermine the social justice goals civil rights were supposed to achieve. For instance, the Fourteenth Amendment to the Constitution was enacted after emancipation, to ensure that newly freed slaves would have a chance at a decent and dignified life, and it has been one of the most important constitutional guarantees of equality for most of the 20th century, serving as the legal foundation of desegregation in 1954’s Brown v. Board of Education. But more recently the Fourteenth amendment guarantee of equal protection has stymied sensible, if controversial, efforts to correct racial inequality, in direct contravention of its historical purpose. Most dramatically, in 2007 the Fourteenth Amendment was used to prevent racial integration in the public schools.
Civil rights have “occupied the field” of social justice, crowding out alternative ways of thinking and new solutions. It’s hard to think of a social cause that isn’t framed in terms of rights, and a growing number of social groups seek to define themselves as embattled or despised minorities in order to qualify for civil rights style public sympathy, if not formal legal entitlements. Civil rights are an important part of many social justice struggles, but they are subject to the law of diminishing returns: rights can offer limited improvements in a narrow set of circumstances, but the effectiveness of the civil rights approach diminishes and its costs increase as they are applied to more complex and elusive social problems. It’s time to rethink and reform the civil rights approach to social justice, which reached its high point sometime in the mid-1970s and has been in decline ever since. Civil rights are remarkably effective against overt prejudice perpetrated by identifiable bigots. But they have proven impotent against today’s most severe social injustices, which involve covert and repressed prejudice or the innocent perpetuation of past prejudice. Like an over-prescribed antibiotic that kills beneficial microorganisms and eventually encourages resistant strains of bacteria, the civil rights approach to social justice, once a miracle cure, now threatens to do more harm than good.