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"Organizing to Protect the Civil Rights Movement's Legacy,"

by Chris Johnson In this Brown anniversary year, we are celebrating a broad social movement that found support in the nation’s highest court and ultimately led to an extraordinary series of civil rights victories in Congress. The Civil Rights Act of 1964 brought new protections in the areas of public accommodations and equal employment opportunities regarding race, gender and national origin.March/April 2004 issue of Poverty & Race

In this Brown anniversary year, we are celebrating a broad social movement that found support in the nation’s highest court and ultimately led to an extraordinary series of civil rights victories in Congress. The Civil Rights Act of 1964 brought new protections in the areas of public accommodations and equal employment opportunities regarding race, gender and national origin. The law also barred discrimination in federally-funded programs under Title VI. This was followed by the Voting Rights Act of 1965, the Age Discrimination in Employment Act of 1967 and the Fair Housing Act of 1968. Then in 1972 Congress passed Title IX, which prohibited gender discrimination in education, and later that year Congress expanded the Civil Rights Act of 1964. The next year the Rehabilitation Act of 1973 was passed, which provided protections for people with disabilities (expanded in 1990 when Congress passed the Americans with Disabilities Act). The year 1975 saw passage of both the Age Discrimination in Employment Act as well as expansion of the Voting Rights Act to include a bilingual provision. Finally, 1976 brought passage of the Equal Pay and Civil Rights Attorneys Fees Acts.

All of these laws were enacted in the context of a Supreme Court that was willing to enforce the mandates of Congress. However, the Supreme Court’s support for these civil rights protections began to shift in the latter part of the 1970s during the transition from the Warren Court to the Burger Court. But it was not until the 1980s that this shift took on a more determined and organized approach.

As part of its “Contract with America,” the conservative right clearly had come up with a plan to roll back civil rights protections. Their plan would include limiting Congress’ power and strengthening the power of the courts and the President. A blueprint for this transition was developed by the Reagan Justice Department. Under the guidance of Attorney General William French Smith, the Justice Department developed two guides, “Guidelines on Constitutional Litigation” and “The Constitution in the Year 2000.” The latter was written as a guide to selecting federal judges, and the former encouraged the courts to invalidate acts of Congress. By following these principles and by appointing young aggressive right-wing judges to the federal courts, the Reagan Administration began systematically to dismantle the civil rights protections enacted over the previous two-plus decades.

This shift in the federal courts and the determination to limit the powers of Congress have continued almost unabated from the Reagan Administration through to the current Bush Administration. Because much of the change has been wrapped in legal jargon (much of which escapes the attention of the average person), the redistribution of power and weakening of civil rights protections have taken place with little fanfare. However, its impact has been immense. In the 1980s the Supreme Court undermined the Voting Rights Act in its Mobile v. Bolden decision; the Civil Rights Act of 1964 in its Grove City College v. Bell decision; and in a series of cases in the 1989 term, the Court nearly gutted civil rights employment protections. In response, Congress enacted further legislation to restore employment rights. Nevertheless, the assault on these protections continued in the 1990s as an increasingly conservative Supreme Court (now under the leadership of Chief Justice Rehnquist) turned further to the right. It was during this period, through a series of 5-4 decisions, that the Court was able to restrict the power of Congress dramatically. In doing so, the Court also restricted civil rights either through the denial of the actual rights or the denial of a remedy.

The National Campaign to Restore Civil Rights was formed in response to the latest round of Supreme Court decisions in the 2000-2002 terms. The Campaign has brought together participants from the various social justice communities affected by the rollback. This includes but is not limited to representatives from the women’s rights, disability rights, racial justice, environmental justice, language rights and workers’ rights communities. From its inception, the Campaign’s facilitators realized that many of the significant battles to protect civil rights laws would still take place in the federal courts; however, they were also very conscious of the importance of winning the fight in the court of public opinion. For this reason, the Campaign’s participants include lawyers, academics, students, community activists and other concerned individuals.

By organizing members of the above communities nationwide, the Campaign provides excellent opportunities for strategizing, information sharing and prevention of program duplication. To this end, over the last year and a half the Campaign has organized three significant meetings. The first was a conference in October 2002, which brought together more then 400 participants from across the country to lay the groundwork for the initiative. The second was a Media Retreat in July 2003, which aimed to develop strategies to use the media both to increase awareness of the problem and to build pubic support for proposed solutions. The final and most recent event (just this past February) was a strategy session for lawyers. Participants in this meeting were a small but significant group of litigators who have seen their clients effectively locked out of federal court in their pursuit of justice. The gathering allowed participants to exchange theories, best practices and potential fixes to the problems they face gaining access to the courts.

During the last year, the campaign has also completed a video project with Firelight Media and award-winning filmmaker Stanley Nelson. The video, “Taking Back the Courts,” effectively removes the legal jargon that too often makes this issue inaccessible to the average person and replaces it with real people and their stories. Over the last year, the Campaign has distributed hundreds of copies of the video nationwide at no cost. The response to date has been overwhelmingly positive, and the Campaign is looking to increase distribution this year. There are currently two versions of the video: one in English, another with captions for people who are hearing-impaired; and there will soon be a Spanish language version. Members of the Campaign are also developing a teacher’s manual that will accompany the video.

The Campaign has also organized a Speakers Bureau. Members are available for speaking engagements at faith institutions, schools and community centers.

The website rollbackcampaign.org will be launched in the Spring. The site will serve a dual purpose. One area will be password-protected for campaign participants, who will be able to use the site to access and share materials. The public section will provide information about the rollback for the general public.

Members of the Campaign meet regularly by monthly conference call to share information and to support the activities of the many organizations and coalitions fighting the rollback—for example, the Leadership Conference on Civil Right’s work on the FAIRNESS Act (see page 5) and state efforts to gain waivers of sovereign immunity (waivers that would make the states accountable for violations of the Americans with Disabilities Act and the Age Discrimination in Employment Act).

To participate in the campaign, e-mail rollback@nylpi.org. A “Civil Rights Rollback Glossary,” compiled by the National Campaign to Restore Civil Rights, is available on PRRAC’s website (www.prrac.org); type in “Civil Rights Rollback Glossary.”

Chris Johnson is the coordinator of the National Campaign to Restore Civil Rights, where he provides technical assistance on the Campaign's various projects to address the erosion of civil rights protections in the federal courts. cjohnson@nylpi.org
 

Notes:

The “Civil Rights Rollback”

The term “Civil Rights Rollback” has been used to describe a series of recent conservative judicial rulings in the Supreme Court and in the federal circuit courts that have widely different doctrinal origins but share the same 5-4 majority and have a shared harsh impact on civil rights enforcement. These rulings involve, for the most part, Constitutional restrictions on the power of Congress to act in the area of civil rights, using doctrines such as “separation of powers,” “federalism” and “sovereign immunity.” The rulings themselves are esoteric, involving restrictions on the federal power to authorize suits against state governments (
Univ. of Alabama v. Garrett, 2001; Kimel v. Florida Board of Regents, 2000); restrictions on the power of federal courts to enforce Congressional statutes and regulations where no “explicit” enforcement language is included (Alexander v. Sandoval, 2001); new limitations on suits to enforce Congressional spending statutes against the government using the basic federal civil rights statute, 42 U.S.C. Section 1983 (Gonzaga Univ. v. Doe, 2002); reinterpretation of the 1976 Civil Rights Attorneys Fees statute after nearly two decades to eliminate the award of such fees to plaintiffs who settle successfully without a written court order (Buckhannon v. West Virginia, 2001); and questioning the power of Congress to legislate civil rights at all, outside an increasingly narrow definition of rights protected by the 14thAmendment (U.S. v. Morrison, 2000).
These are not the most easily accessible judicial opinions, and the “Civil Rights Rollback” is thus a difficult issue to organize around. But at the same time, because these cutbacks cut a wide swath through different advocacy arenas — disability rights, racial justice, poverty law, women’s rights, older persons’ rights and even basic civil liberties — they present the possibility of a unifying coalition. Theis piece describes one of two current efforts to organize against the “Civil Rights Rollback.”


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