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.
Copyright 1995