American Agonistes
Caldwell's Age of Entitlement argues that the civil rights state is the anvil upon which our nation wages its incessant political contests.
Overhead view of the massive crowd assembled during the March on Washington for Jobs and Freedom, Washington DC, August 28, 1963. (Photo by Robert W. Kelley/The LIFE Picture Collection via Getty Images)Sex, Sexual Orientation, and the Separation of Powers
shutterstock.comIs There “Equality” in the Equality Act?
Image by Yuriy Golub (shutterstock.com)Tyranny on the Margin
I’m grateful for the responses to my earlier Office for Civil Rights post, especially the comments that illustrate the corrupting consequences of “government by guidance.” As I suggested, and as many readers emphasized, the subject raises much larger questions about lawful government. Herewith a few more comments on how difficult this is—and a hopefully cheerful suggestion as to what could be done.
The trajectory from lofty, well-meant enactments (the Civil Rights Act, Title IX) to the scape-goating of students, teachers, and bandleaders is a straight line: statute to regulation to “interpretation/guidance” to “voluntary” compliance. But the incentives are lousy each step of the way. Congress would rather delegate than legislate; the agency would rather bully than write a rule; and the regulated entities would rather throw people overboard and kowtow or pay money than fight back. This happens everywhere; OCR is just an example. And, no: this isn’t about the Obama administration or particularly wayward bureaucrats. If it were, things could be fixed at the ballot box, or by courts. The grim, incentive-driven march of government by guidance isn’t.
Prescription for a Banana Republic
This past Friday, Boston College’s excellent Shep Melnick (interviewed on this site not long ago) gratuitously ruined my weekend by alerting me to the latest “Dear Colleague Letter” (“DCL”) from the Education Department’s Office for Civil Rights (“OCR”). The DCL “shares” OCR’s views on “resource compatibility” at the nation’s schools, district by district. Horrendous in its own right, the letter also prompts broader thoughts on “government by guidance”: it’s a prescription for a banana republic.
Rule by Edict: Shep Melnick on the Power of the Civil Rights State
This conversation with Shep Melnick looks into the enforcement practices of the Office for Civil Rights in the Department of Education, one of the most powerful and secretive agencies in the administrative state. This agency caught the attention of many in 2011 when Russlynn Ali, Assistant Secretary for Civil Rights, sent a “Dear Colleague” letter to colleges and universities lowering the standard of guilt in a sexual harassment or sexual violence proceeding from guilt beyond a reasonable doubt to preponderance of the evidence (i.e., it is more likely than not that sexual harassment or violence occurred). Topping it off was…
Race, Rights-Talk, and Equity
W. B Allen’s essay impresses upon us how different our understanding of civil rights is from that of the Founders and the authors of the Fourteenth Amendment. Back then “civil rights”referred to our most fundamental rights, those closely tied to and only slightly more expansive than our natural rights. Today most of us think of the right to vote as one of our most important civil rights, the one that protects all the others. But in 1870 Congress enacted the Fifteenth Amendment to protect this central political right, which was generally assumed not to be covered by the Fourteenth. Since the…
Restoring the Color-Blind Foundation of the 1964 Civil Rights Act
The Civil Rights Act of 1964 banned much government and private-sector discrimination, mostly on the basis of race and ethnicity (“color” was specified in addition to “race,” and “national origin” was the term used instead of the now-more-common “ethnicity”), but often on the basis of religion, too, and sometimes on the basis of sex as well. There were eleven titles in the 1964 Act. The key ones were Title II (public accommodations), IV (school desegregation), VI (federally funded programs), and VII (employment). The others were I (voting), III (public facilities), V (expanding the U.S. Commission on Civil Rights), VIII (compilation of…
Civil Rights, the Civil Rights Act, and Martin Luther King, Jr.
The Civil Rights Act of 1964 is surely the most renowned piece of legislation enacted in 20th century America. It stands (with the Voting Rights Act passed the following year) as the culminating achievement of the Civil Rights movement, itself now enshrined in conventional opinion as the latest and greatest of America’s great awakenings. By that movement the nation was stirred at last to confront, in the matter of race, its most profound and chronic bedevilment. The moral authority now almost universally accorded the Civil Rights Act and the movement that inspired it has not foreclosed, perhaps indeed has intensified, controversy…
Our Civil Rights Rest on Fundamental Arguments, Not Racial Ones
Celebrations of the Civil Rights Act at 50 remind us just how anachronistic the common understanding of civil rights has become. They are treated as the product of a momentary movement in the latter portion of the 20th century or as a work of legislative artistry by President Lyndon Johnson. Today it seemingly suffices to name President Johnson and Dr. Martin Luther King, Jr. to say all that is necessary about civil rights. Ironically, the observations most associated with each of these men undermine their claims to be advocates of civil rights constitutionally understood. In Johnson’s case, the observation was…
