HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A Comcast Case Study

This essay reviews the impact of President Ronald Reagan’s policies on civil rights enforcement in the 1980s, as he tried to turn back the clock on civil rights. Reagan devastated the civil rights enforcement agencies, as he pandered to the white nationalists who helped him win election. But Reagan’s attempts ultimately failed, and leave behind an important lesson for President Donald Trump. Reagan’s appointments to and policies at the Equal Employment Opportunity Commission (EEOC), the Department of Justice’s Civil Rights Division, and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) seriously damaged civil rights enforcement. But employment discrimination law has survived and continues to be an often-effective tool against racism, misogyny, homophobia, religious hatred, and other forms of discrimination. Title VII cases (and claims under parallel statutes) continue to be a major part of the caseload in federal courts. Why? Because the Civil Rights Act is largely enforced by private civil rights groups and lawyers in private practice who bring cases before independent judges pursuant to a private right of action. Did a progressive Congress have the foresight to recognize that a private right of action would protect the victims of discrimination from future administrations hostile to civil rights, and thus include it in the statute as a check against enforcement agencies captured by civil rights opponents? Hardly. Rather, moderate and conservative Senate Republicans, resigned to the fact that an employment discrimination law was inevitable, and fearful of a powerful federal agency that would restrict business autonomy in the manner of the National Labor Relations Board (NLRB), substituted a private right of action for agency adjudication in an attempt to sabotage the effectiveness of Title VII. In 1964, the adoption of a private right of action was widely seen as a great loss for civil rights advocates, turning Title VII from an enforceable law to an ineffectual call for voluntary compliance with anti-discrimination policies. Almost no one foresaw the development of a private bar of plaintiffs’ employment discrimination lawyers. Those who tried to sabotage the enforcement of civil rights through a private right of action should be turning in their graves, having inadvertently given civil rights advocates a powerful tool to resist assaults on civil rights.

I.WhatVintage ofCivilRights?In this paper I wish to compare and contrast two separate conceptions of civil rights and to argue that the older, more libertarian conception of the subject is preferable to the more widely accepted version used in the modern civil rights movement. The first conception of civil rights focuses on the question of individual capacity. The antithesis of a person with civil rights is the slave. But even if individuals are declared free, they are nonetheless denied their civil rights if they are unable to own property, to enter into contracts, to make wills, to give evidence, and to sue (and be sued) in courts. With all these civil rights claims, the target of the individual grievance is the state; it has denied large classes of individuals the formal capacities that it recognized and protected in others. The Civil War was fought largely over slavery. In its aftermath, civil rights claims protecting individual capacity received explicit, if imperfect, statutory and constitutional protection. The postbellum protections didnotguarantee these rights in absolute fashion – that is, in a way that would not be susceptible to abridgment under any circumstances. Instead, civil rights were protected in what might be called a relative fashion: whatever rights of this sort were enjoyed by white citizens were to be enjoyed by the newly freed black citizens as well.

Many scholars and activists consider civil rights to be a powerful, effective way to frame diverse causes, but do civil rights claims actually resonate? Building on social movements, collective memory, and public opinion scholarship, we conceptualize civil rights claims in three non-mutually-exclusive ways: as a highly resonant “master frame” grounded in core American ideals of equal rights, as an appeal to the idealized memory of the Civil Rights Movement, and as racialized messaging that is likely to provoke backlash. Using these conceptualizations, we derive expectations about the effectiveness of civil rights claims across diverse issues, beneficiaries, and audiences, which we test using two large-scale survey experiments. Respondents viewed “civil rights” very positively in the abstract and broadly agreed about the meaning in both closed and open-ended survey responses: civil rights are about ensuring equal rights and treatment, rather than addressing material needs. Yet, surprisingly, framing contemporary problems—even unequal treatment—as civil rights violations reduced support for government intervention. Indeed, we find widespread frame backfire : civil rights framing was counterproductive across issues (material deprivation, unequal treatment), beneficiaries (African Americans, Mexican Americans, White Americans, undocumented Mexican immigrants), and audiences (liberals, conservatives, Whites, African Americans, Latinos). Given the consistently negative effects across respondents, these findings cannot be adequately explained as racialized backlash. Instead, we propose that civil rights claims evoke comparisons to the historic Civil Rights Movement, making contemporary hardships appear less significant and prompting unfavorable contrasts with idealized claims-making of the past. Our findings challenge assumptions that frames resonate when they align with audiences’ values or appeal to positive collective memories; indeed, invoking idealized memories risks undermining support for contemporary causes.

Resisting “Law and Order” in California: Howard Moore Jr., Angela Davis, and the Politics of Prison Radicalism

Kodanikuõiguste peatükk Eesti 1919. aasta ajutises põhiseaduses [Abstract: Civil Rights Chapter in Estonia’s 1919 Preliminary Constitution

“Down Where the South Begins”: Black Richmond Activism before the Modern Civil Rights Movement, 1899–1930

Police officers stationed in public schools, commonly referred to as school resource officers (SROs), have become commonplace in the United States over the past twenty-five years. Their primary responsibility is to maintain order and safety in schools, but they also serve as counselors and mentors for students, and teach classes related to drug and alcohol abuse, gang avoidance, and other topics. SROs’ presence in schools raises important legal questions because they interact with students on a daily basis and are directly involved in schools’ efforts to control student behavior through school discipline and security. Additionally, a series of Supreme Court decisions has created an environment of limited rights for students in America’s public schools, which is compounded by the heightened security environments found in the majority of schools. Amidst this environment, it is important to consider whether students have any recourse if SROs take actions that seemingly infringe on students’ rights. This article seeks to address this specific question by analyzing students’ civil rights claims against SROs under Section 1983. The available case law demonstrates that the involvement of SROs in school discipline matters can quickly escalate these situations to include aggressive, physical confrontations and arrests for relatively minor misbehavior. Yet, Section 1983 rarely provides students with viable civil rights claims against SROs, even when the SROs’ behavior seems egregious. These cases lend strong support to scholars and advocates’ concerns that the use of SROs, along with other heightened school security and punitive discipline measures, “criminalizes” public school students. They also demonstrate that changes in the ways SROs operate in schools are needed to protect students’ rights.

Until Justice Be Done: America's First Civil Rights Movement, from the Revolution to Reconstruction

The Sit-In Cases: Explaining the Great Aberration of the Warren Court CHRISTOPHER W. SCHMIDT The Warren Court is remembered for its commitment to advancing the rights of the disempowered. In cases involving conten­ tious national issues—school desegregation, criminal justice, voting rights—the Supreme Court under the leadership of Chief Justice Earl Warren (1953-1969) offered bold new interpretations of the Constitution. But in a line of cases in the early 1960s—cases many at the time believed to be as significant as any the Warren Court faced—the Court broke pattern. When faced with cases involving appeals of criminal convictions for involve­ ment in lunch counter sit-in demonstrations, the Court ducked, again and again. The Court overturned convictions of the sit-in protest­ ers, but always on narrow grounds. A majority of the Justices never squarely faced the difficult constitutional question at the core ofthe sit-ins: did the Equal Protection Clause of the Fourteenth Amendment allow private businesses that cater to the general public to use race as a qualification for service? In other lines of cases, when the struggle for racial equality faced constitutional bar­ riers to achieving its objectives, the Warren Court reworked constitutional law. This was particularly true when civil rights activists in the streets were able to secure broad constitutional support for the constitutional claims the civil rights lawyers were pressing in the courts. When it came to the sit-in cases, public opinion had clearly swung behind the cause of the sit-ins protesters. By the middle of 1963, an overwhelming majority of Americans supported equal access to eating facilities.1 In 1964, when Congress was about to pass the Civil Rights Act, which included a national prohibition on racial discrimination in public accommodations, most ofthe nation lived under state or local laws requiring nondiscriminatory access to public accom­ modations.2 Despite this transformation tak­ ing place outside the Court, the Court still refused to align itself squarely with the students. In fact, in late 1963, a majority of THE SIT-IN CASES: THE GREAT ABERRATION 295 the Justices were poised to squarely reject the students’ constitutional claim. The sit-in cases stand as the great—and largely forgot­ ten—aberration of the Warren Court. Why did the Justices, such stalwart defenders of other civil rights claims during this period, have so much difficulty with the sitin cases? When the Justices approached the constitutional claim ofthe sit-ins, they saw the same basic issues that captured the attention of the American people.3 They appreciated the powerful egalitarian message ofblack students sitting at lunch counters, denied their share of American citizenship for no reason other than the color of their skin. They supported the passage of federal legislation ending this shameful situation once and for all. But they also faced concerns that were particular to their places in the institution perched at the apex of the American judicial system. The Justices worked with a distinctive tool, the language of constitutional doctrine, with its particular cate­ gories ofanalysis and reliance on precedent. And they were moved by distinctive institutional interests, the most significant of which was an overriding concern with protecting the legiti­ macy and integrity of the judicial process. The Justices differed among themselves as to the nature, import, and relative weight of these factors, but taken as a whole, they explain why the Court fell out of step with the rest of the nation when it came to the fundamental constitutional question raised by the sit-ins. This article breaks down the Supreme Court’s confrontation with the sit-in cases into four acts. Act One examines two cases, each originating in challenges to racial discrimination that predated the sit-in move­ ment, that arrived at the Court in late 1960 and early 1961, in the aftermath of the sit-ins. I use these cases to introduce the central constitutional issues raised in the sit-in cases A majority of the Justices on the Warren Court never squarely faced the difficult constitutional question at the core of the sit-ins: did the Equal Protection Clause of the Fourteenth Amendment allow private businesses that cater to the general public to use...

This Article re-considers the relationship between federal and state courts as fora for the resolution of civil rights claims. In his renowned 1977 article, The Myth of Parity, 90 Harv. L. Rev. 1105, Professor Burt Neuborne set forth the argument that the federal courts were institutionally superior to state courts in handling federal constitutional claims. In the succeeding 22 years, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. This might, of course, be nothing more than a consequence of the political orientation of the federal judges appointed by Presidents Reagan and Bush during these years. However, this Article argues that the gay rights experience reveals certain institutional characteristics of state courts that make them systemically better-situated (or at least no less well-situated) to demonstrate empathy for minority concerns in certain carefully-defined situations. In so concluding, the Article urges that forum-shopping civil rights attorneys abandon an irrebutable presumption in favor of federal courts.

For the fifteen years prior to the Supreme Court's 1954 decision in Brown v. Board of Education, did not refer to a unified, coherent category. Rather, the content of the term was open, changing, and contradictory. The lawyers of the Civil Rights Section of the Department of Justice, which was created in 1939, were among those thinking about, and experimenting with, different ways of practicing and framing civil rights in the 1940s. Their practice shows how, as the Great Depression faded and World War II loomed, the most prominent civil rights issues shifted from the labor arena to the rights of minorities, especially African Americans. Because of the doctrinal uncertainties that accompanied the demise of the Lochner era, the lawyers of the Civil Rights Section looked to Reconstruction for inspiration, constitutional authority, and federal power. As the Section's lawyers explored the boundaries of their new authority, they emphasized enforcement of the Thirteenth Amendment and involuntary servitude statutes. They came to use the Thirteenth Amendment as a vehicle for attacking legal and economic coercion broadly defined. This Article narrates the history of the Civil Rights Section and analyzes its practice as a moment in the creation of modern civil rights law. Emphasizing that the wartime turn to racial issues did not eliminate labor from the Section's civil rights practice, it describes the resonances between the Section's civil rights framework - and its uses of the Thirteenth Amendment in particular - and both Reconstruction era and New Deal notions of free labor. Viewed against the backdrop of a historical concern with labor and the mid-century realities of involuntary servitude, we can see in the Section's practice a framework for a labor-infused civil rights that has, for the most part, since been lost.

In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York. In a recent article, Randy Barnett and Evan Bernick canvass more than two decades of my historical work on the Fourteenth Amendment and claim that I have failed to present a persuasive argument in favor of what they call the “Enumerated Rights Only” reading of the Privileges or Immunities Clause. In particular, they argue that (1) antebellum evidence suggests that the term “privileges and immunities of citizens of the United States” was understood to include unenumerated rights, (2) the man who drafted the Privileges or Immunities Clause, John Bingham, described the clause as protecting unenumerated absolute rights, (3) the debates of the Thirty-Ninth Congress suggest that most members would have understood the Privileges or Immunities Clause as transforming the relative rights of Article IV, Section 2 (the Comity Clause) into absolute unenumerated rights, (4) Reconstruction-era references to the “Bill of Rights” as representing the rights of national citizenship are unreliable due to that fact that there was no fixed meaning to the term at that time and (5) because my account fails to explain how the Privileges or Immunities Clause authorized the 1866 Civil Rights Act, it cannot stand as a persuasive reading of the Clause. In this article, I respond to all of these arguments and synthesize the evidence I have gathered over the years which I believe supports the Enumerated Rights reading of the Privileges or Immunities Clause. In brief: The only antebellum voices describing the rights of national citizenship as including unenumerated absolute rights were proponents of slavery who insisted they had an unenumerated “right” to own slaves. The abolitionist voices most likely to influence Reconstruction Republicans uniformly described the rights of national citizenship as enumerated constitutional rights. The most significant of these Republicans, John Bingham, always described the privileges or immunities of citizens of the United States as involving constitutionally enumerated rights, and never as unenumerated absolute rights. Bingham’s colleagues in the Thirty-Ninth Congress were well-informed about, and shared a consensus view of, Article IV, Section 2 and cases like Corfield v. Coryell as protecting nothing more than the relative rights of equal treatment in regard to a limited set of “fundamental” rights. Thus, when Jacob Howard named Corfield and the enumerated rights of Article IV as “privileges or immunities of citizens of the United States,” he and his audience understood the limited relative nature of those rights. On the other hand, when members like Bingham and Howard referred to the federal Bill of Rights as privileges and immunities of citizens of the United States, listeners in and outside of Congress would have understood this to be a reference to enumerated constitutional rights. In particular, this is how the public would have understood Bingham’s insistence that he sought to enforce the Bill of Rights against the states and nothing more. Finally, there is no need to force a reading onto the Privileges or Immunities Clause that authorizes the Civil Rights Act. As John Bingham explained, the Civil Rights Act represented an effort to enforce the equal right not to be deprived of life, liberty or property without due process of law—rights covered by the final two clauses of Section One.

Teaching (Cooperative) Business: The “Bluefield Experiment” and the Future of Black Business Schools

Foreword: The Rocky Road to Freedom-Crucial Barriers to Abolition in the Antebellum Years, by David Brion Davis1. Introduction: The Thirteenth Amendment's Revolutionary Aims, by Alexander TsesisPart 1: Historical Settings 2. In Pursuit of Constitutional Abolitionism, by James M. McPherson3. The Civil War, Emancipation, and the Thirteenth Amendment: Understanding Who Freed the Slaves, by Paul Finkelman4. Citizenship and the Thirteenth Amendment: Understanding the Deafening Silence, by Michael Vorenberg5. Emancipation and Civic Status: The American Experience, 1865-1915, by William M. Wiecek6. Convict Labor in the Post-Civil War South: Involuntary Servitude After the Thirteenth Amendment, by David M. Oshinsky7. The Thirteenth Amendment and a New Deal for Civil Rights, by Risa L. Goluboff8. The Workers' Freedom of Association Under the Thirteenth Amendment, by James Gray PopePart 2: Current Legal Landscapes 9. The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment, by George A. Rutherglen10. The Promise of Congressional Enforcement, by Rebecca E. Zietlow11. Protecting Full and Equal Rights: The Floor and More, by Aviam Soifer12. Forced Labor Revisited: The Thirteenth Amendment and Abortion, by Andrew Koppelman13. The Slave Power Undead: Criminal Justice Successes and Failures of the Thirteenth Amendment, by Andrew E. Taslitz14. Toward a Thirteenth Amendment Exclusionary Rule as a Remedy for Racial Profiling, by William M. Carter15. Immigrant Workers and the Thirteenth Amendment, by Maria L. Ontiveros16. A Thirteenth Amendment Agenda for the Twenty-first Century: Of Promises, Power, and Precaution, by Darrell A. H. Miller17. Epilogue: The Enduring Legacy of the Thirteenth Amendment, by Robert J. KaczorowskiAcknowledgmentsList of ContributorsIndex

This article focuses attention on state civil rights remedies that provide a civil cause of action against those who commit acts of gender-based violence and frame the harm as a violation of the survivor’s civil rights. Though many of these laws long have been on the books, they are not widely used. The #MeToo movement has rightly focused public attention on the ways gender violence persists, and on the gaps in legal remedies for survivors. At the same time that law and policy-makers work to enact new laws to fill gaps, existing laws should be invoked to promote accountability and provide redress for survivors. State civil rights remedies do just that. In 1994, after four years of hearings, Congress enacted a civil rights remedy as part of the Violence Against Women Act (VAWA) (“VAWA Civil Rights Remedy”), which provided a private right of action against an individual who committed an act of gender violence. The law was modeled after other federal civil rights legislation and authorized a survivor of gender-motivated violence to bring a civil cause of action against the individual who committed the harm. The Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down the federal law as an unconstitutional exercise of Congress’ Commerce Clause powers and of Congress’ enforcement powers under the Fourteenth Amendment. While the law provided redress for survivors during the six years it was in effect, both pre-existing and later-enacted state and local remedies also provide a private right of action for gender violence as a civil rights violation. This article reviews those state statutes and the associated case law interpreting them. It demonstrates that those state laws can more widely be used by those who seek to hold those who commit acts of gender violence accountable. In the wake of the #MeToo movement, when high-profile and high-net-worth individuals are being held to account, and when reports of sexual violence that occur outside traditional employment settings are capturing public attention, those laws may be of increased utility. Trends in employment in which fewer workers are employed in settings covered by traditional federal and state anti-discrimination laws expose the gaps in existing civil rights frameworks and render additional remedies all the more important. The state laws reviewed here have not been the focus of much advocacy, scholarship, or litigation. This article advances an additional and under-utilized theory of recovery for gender violence survivors that offers a useful tool for accountability, redress and equality.