Vol. 5 No. 12 (December, 1995) pp. 286-288

ON THE LIMITS OF THE LAW: THE IRONIC LEGACY OF TITLE VI OF THE 1964 CIVIL RIGHTS ACT by Stephen C. Halpern. Baltimore: Johns Hopkins University Press, 1995. 391 pp.

Reviewed by Dan A. Lewis, School of Education and Social Policy, Northwestern University.

Stephen Halpern has written an important book about the 1964 Civil Rights Act. The thoughtful book explores important issues in a serious and careful manner. His work is part of a recent growth industry that rethinks the impact of liberal governmental policies and suggests that either they had little positive effect or did real harm. The moral of this book, at least to this reviewer, is to be very careful what you wish for, especially if you are a civil rights reformer, because you might get it. Halpern argues forcefully that Title VI of that act was absolutely ineffective in challenging racial discrimination in the nation's schools and universities.

Halpern tells the story of the legislation's failure brilliantly. His prose moves effortlessly over the legislative, legal, political and bureaucratic history of the act, from its inception through the 1980's. He describes each presidential administration and how various appointees handled or failed to handle their responsibilities. The story of how nothing happened -- the kind of story that social scientists do not tell often enough -- is a story of politics, and most especially the courts. The chapters on the legislative battles to pass the bill are particularly instructive as they expose some of the basic conflicts that would lead to such weak enforcement in the seventies and eighties. From the very beginning, in fact, Title VI was limited by compromise and caution about federal intervention. In order to muster a majority to pass the bill, the Congress deliberately constrained what "bureaucrats from Washington" could do.

Generally, the title allowed the federal government to withhold federal dollars from institutions that discriminated. The proponents of the legislation thought that it could be used to pressure schools not to discriminate racially. Federal dollars were becoming an important part of school budgets and the thought of losing those dollars should lead local officials to change discriminatory policies and procedures. However, no dollars were ever withheld from any such institution. It did not matter who was president or who was running the agency or who was charged with investigating allegations of discrimination. The federal dollars kept on flowing to the schools. Federal courts intervened, personnel changes were made, and secretaries of HEW made loud noises. The money continued to flow, and the threat of federal intervention never materialized into the reality of funds being withheld. For Halpern that is an unacceptable outcome.

Halpern's voice in the book will seem familiar to many. The tone is a mixture of sadness and anger. Sadness that the federal government seems incapable of pushing civil rights enforcement, and anger that a commitment to civil rights seems to be absent in administrations from both parties. But that tone also leaves much unsaid. Why was so little done? Why was this policy so ineffective? Halpern is very good at describing what happened, but he stops short of analyzing why it happened. How could it be that regardless of the party in power or the personnel in control or the complaints filed that nothing happened? The answer is not in the book. The closest Halpern comes is suggesting that the government had a failure of will, but that conclusion seems circular. The author is strangely silent on the question of what combination of political and organizational factors mitigated against change.

There are, of course, plenty of explanations for this lack of action and many of them are foreshadowed in the legislative battle to pass the original bill. After all, civil rights enforcement was never popular. Those who wanted stronger enforcement were always in the minority. Members of Congress were nervous about giving too much power to the executive branch in administering policies. Similarly, elected state officials are not happy with bureaucrats dictating to them how organizations in their states are operated. State universities are unwilling to cede authority over local institutions to federal officials. Finally, members of Congress are elected by people who tend to resist strong enforcement procedures and this fact, as Halpern suggests, limits what the law was meant to do.

The role of the courts and reform-minded civil rights lawyers are very important ingredients to this story as well. Litigation proved an important vehicle for challenging the way Title VI was implemented. Groups that were unhappy with how the office of civil rights (OCR) was going about its enforcement activities filed suit in federal court to improve operations. A federal judge got very involved in the operations of the OCR, and for fifteen years his court orders shaped what the agency did and how it did it. Litigation swirled around the OCR for its entire history and shaped both who had influence over what the agency did and how the agency operated.

The importance of this "adversarial legalism" (Kagan, 1991) cannot be overestimated in understanding the limits of Title VI. The prospect of judicial review and the use of legalistic, adversarial methods of influencing the OCR took the policy process in directions that made concerted action by the agency difficult. Using a wide array of evidence, Halpern suggests that the courts are not a useful method for achieving the goal of racial justice. Moreover, this problem of adversarial legalism is not limited to civil rights policy, but pervades the entire American policy landscape to the detriment of both the government and the society at large. This fact, along with Americans' deep suspicion of government authority and white resistance to black advancement, can help explain why the title was so limited in what it could accomplish. At least this is a reasonable conclusion to draw from the evidence presented in the book.

Yet, while Halpern skillfully describes the history of the title, he does not adequately explain the outcomes he finds so disheartening. The author seems to don his prophetic robes and take the society as a whole to task for not living up to its principles of racial justice, but he does little to explain why we do not or will not pay the price for that injustice in conflict and racial acrimony. What I found particularly disturbing is the lack of attention to the political factors that account for the outcome in question. Where, for instance, is the political benefit to those who would support stronger enforcement of Title VI? Who will get elected? Who will gain power bureaucratically? Besides old regional conflicts between Northern abolitionists (and their descendants) and the Southern apologists for racial subordination, where would the voice come from for more pressure to change the status quo? According to the book, it is mostly from litigators representing various special interests. Halpern argues that civil rights organizations and gender equity groups make the legal waves that move the bureaucrats along. Yet, this kind of power pushes judges into the unproductive role of dictating operating procedures to government officials, and, at least in this history of Title VI, that is no road to progress.

Finally, Halpern got me thinking about his value system and the conclusions he reaches about fighting harder for racial justice in the face of the political stalemates and bureaucratic inertia he chronicles so well. His position is clear: our institutions failed to deliver on the promise of improving the educational situation of African Americans through the use of federal laws and federal enforcement agencies. We (and I am not sure who the we is) should therefore try harder and focus more on changing the substantive practice of education for African Americans.

More legal suits and regulations about discrimination might only exacerbate the problem. In fact, there is at least one more lesson that can be drawn from this book, and it also follows from the Congressional elections of 1994. Many white people in the South and elsewhere have moved to the Republican party and voted for conservative candidates precisely because of the legacy of the 1964 Civil Rights Act and similar kinds of legislation. From their perspective, the story Halpern tells is one of federal intervention in state and local matters that was not too weak, but rather too strong. We do not need more attempts at changing the status quo through the central government, we need less. The liberal agenda has helped to move the country to the Right, and continuing to pursue it might lead to more backlashes and more conservative victories.

After all, Halpern would be on very thin ice if he tries to argue that there has been little educational progress for blacks over the last thirty years. Black gains on the educational front have been substantial. It may very well be that Title VI enforcement had little to do with those gains, but they are still quite real. More federal spending on minorities and more federal intrusion in the operation of schools and universities may only divide the country further and polarize the electorate racially. From the Wallace candidacy in 1968, through the victories of Nixon, Reagan, Carter, Bush and Clinton, we can see the costs of staying true to the liberal agenda of racial justice through federal action. What Halpern so eloquently teaches us is that the progress we have made has come at considerable cost to the political fortunes of the liberal wing of the Democratic Party.

Kagan, Robert A. (1991). "Adversarial Legalism and American Government," JOURNAL OF POLICY ANALYSIS AND MANAGEMENT, 10(3): 369-406.