But this celebratory history that Americans love has only been part of the story. The other, less popular part of the story is understandably underplayed: The Civil Rights Act of 1964, intended to dismantle racism, also spurred racist progress.
Racial disparities persisted after the law was passed because discriminatory policies persisted under a patina of colorblindness. The legacy of the Civil Rights Act’s failures abound: America is still hemorrhaging from the racism of police bullets, health disparities and environmental catastrophes. The black unemployment rate has been twice the white unemployment rate for 60 years, segregation is on the rise in public schools across America, and an unprecedented number of black and brown bodies have been mass incarcerated as a result of the war on drugs.
Discrimination persisted because legislators failed to close the oldest spring of racial poison: the accumulated gains of past discrimination. For instance, organized white labor and Congress balked at eliminating the accrued seniority of white workers. “We don’t think that one form of injustice can be corrected or should be corrected by creating another,” AFL-CIO lawyer Thomas E. Harris testified before a congressional committee in 1964.
Not addressing past discrimination was “akin to asking the Negro to enter the 100-yard dash forty yards before the starting line,” retorted Carl Rachlin, the general counsel for the Congress of Racial Equality (CORE). But that was largely what the writers of the 1964 act ended up asking the Negro to do, because the act focused on dismantling Jim Crow, not guaranteeing equal opportunity.
Ignoring the past, the 1964 act ended up principally outlawing “intention to discriminate” in the present. Intent — not outcome — became the preferred proof of discrimination. Evidence of intent to create the racial disparity — like the “white only” sign — became the principal marker of discrimination, not the racial disparity itself, nor the absence of people of color.
Jim Crow was the primary target of the 1964 act, and ended up being the primary fatality.
After the passage of the act, Americans quickly confused the death of Jim Crow for the death of racism. The result: They blamed persisting and progressing racial disparities on black inferiority. Sen. Barry Goldwater (R-Ariz.) had been complaining throughout the 1960s about those “dependent animal” creatures on welfare. Criminologists like Marvin Wolfgang were writing about urban blacks’ “subculture of violence.” Sociologist Daniel Patrick Moynihan, Johnson’s assistant secretary of labor, pointed to the black family as a “tangle of pathology” in a 1965 report.
For many Americans, it was this violent subculture, emanating from the weak and dependent black family, that caused the hundreds of urban rebellions that followed in the days, months and years after the Civil Rights Act. As the Wall Street Journal headline on Aug.16, 1965, explained: “Behind the Riots: Family Life Breakdown in Negro Slums Sow Seeds of Race Violence: Husbandless Homes Spawn Young Hoodlums, Impede Reforms.”
As new racist ideas and anti-racist demonstrations spread in the late 1960s, first Johnson and then President Richard Nixon turned away from civil rights toward “law and order” — a phrase that came to symbolize and pardon the progress of racist ideas and policies. The Nixon White House branded black people as the real source of the racial problems, rather than the Americans who quietly responded to the 1964 act by backing “race neutral” policies that were aimed at excluding black bodies.
Racial disparity, meanwhile, was reinforced and reproduced in new forms. Standardized tests, in particular, exploded in popularity over the last five decades. Section 703(h) of Title VII allowed employers “to give and to act upon the results of any professionally developed ability test.” On the very day the 1964 act took effect, Duke Power’s Dan River plant in North Carolina started requiring IQ tests and high school diplomas. These new requirements produced the same outcome as the company’s old segregationist policies: whites receiving the bulk of its high paying jobs.
In 1971, the Supreme Court prohibited Duke’s new “practices that are fair in form, but discriminatory in operation” because they cannot be “shown to be related to job performance.” But it became increasingly difficult for civil rights lawyers to win these “disparate impact” cases. If an applicant were rejected, defenders of standardized testing would argue, it was a matter of exclusion based on performance, not racism. And officials could justify racial disparities in their workplaces and schools by pointing to test scores. The gaps in the test scores proved something was wrong with the test-takers, not the tests.
As these new forms of discrimination grew, so, too, did the annual commemoration celebrating the achievement of the Civil Rights Act (and other subsequent civil rights legislation), creating a perception that something must be wrong with black people.
As much as the 1964 act closed some springs of racial poison, it opened up a new spring for poisonous racist ideas to pour out, including the most poisonous idea to date: that America has defeated racism. It was an idea that ignored the white head-start, presumed discrimination had been eliminated, assumed equal opportunity had taken over, and figured that since blacks were still losing the race, the racial disparities must be their own fault. By situating the problem as black people and not racial policies, this argument framed affirmative-action policies meant to eliminate disparities as “reverse discrimination,” entirely unnecessary in America’s “colorblind” — and now “post-racial” — society.
The Civil Rights Act of 1964 was not the beginning of the end of American racism. It was the beginning of our poisonous belief that America was ending racism.
Racism did not end — it progressed. Racism progressed when legislators did not repair past discrimination. Racism progressed when Americans refused to identify discrimination by outcome. Racism progressed when new racist ideas blamed black inferiority for persisting racial disparities. Racism progressed when Americans chose the law and order of inequality over the civil right of equality.
Racism progressed. And 53 years after the Civil Rights Act, the racist springs are still poisoning our racial atmosphere, with no cutoff date in sight.