Rights Gone Wrong
Why civil rights lawsuits are becoming irrelevant in the fight for social justice.
This is the last of three articles adapted from Richard Ford’s new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality.
Since the 1960s, the ideas developed during the civil rights movement have dominated American race relations. Courts and governmental agencies enforce legal prohibitions against discrimination, and private businesses and universities follow suit, fashioning their own diversity policies. Even private individuals think about race relations in civil-rights terms: We aspire to the ideal of “colorblindness” and condemn the evils “discrimination” and “bias.” American civil rights legislation has been a model for other nations, and the American civil rights movement has inspired important struggles against injustice, such as the South African anti-apartheid movement and the international movement for gay rights.
For a long time this way of thinking made perfect sense. When it comes to outright discrimination and overt prejudice, civil rights have been an astonishing success. But today’s most serious social injustices aren’t caused by bias and bigotry. In the context of race, they stem from segregation—a legacy of past racism but not by and large the result of ongoing discrimination—and the many disadvantages that follow from living in isolated, economically depressed and crime-ridden neighborhoods. Civil rights litigation and activism have hardly made a dent in these formidable obstacles. In fact, civil rights thinking can distract attention from the real problems, emphasizing dramatic incidents that aren’t good examples of the larger injustices.
Civil rights haven’t been a panacea for the illness of social prejudice, but like a patient who keeps popping pills because the prescription isn’t working, we’re now at risk of an overdose. Civil rights litigation has exploded since the 1970s, far outpacing the growth in civil litigation generally. In 1991 the federal courts heard about 8,300 employment discrimination cases; in 2000 they heard more than 22,000. Civil rights laws, properly framed and limited, serve a vital social purpose, but too many civil rights can be as bad as too few, and an overly aggressive civil rights regime can be as destructive as an ineffectual one.
Photo by AFP/AFP/Getty Images.
Civil rights litigation and activism don’t do enough to redress today’s most serious social injustices, many of which aren’t caused by overt prejudice or simple discrimination. Inner city blacks are more isolated from, and less likely to succeed in, the prosperous American mainstream than they were in the 1970s. Joblessness among blacks without a high school education is higher than at any time in American history: In 2004, 72 percent of black men who didn’t finish high school are unemployed, and more than half of inner city black men don’t finish high school. By the time they reach their mid-30s, roughly 60 percent of these young men will have been incarcerated. Women still earn about 75 cents for every dollar men earn for comparable work. The unemployed elderly are more likely to stay that way than younger job seekers, because of a complex set of economic and institutional factors. The disabled still lack the access to jobs, education, and public buildings—things that most of us take for granted. Gay men and lesbians face widespread hostility and contempt. These problems remain entrenched despite more than 40 years of comprehensive civil rights enforcement; numerous new civil rights laws at the federal, state, and local level extending entitlements to an increasing number of new groups; countless costly and acrimonious lawsuits; and the constant drumbeat of civil rights activism.
At the same time, opportunists and special interest lobbying groups have used civil rights laws to get an edge in competitive schools and job markets, demanding special privileges and even cold hard cash as a matter of civil rights. Civil rights laws prohibiting discrimination have been pressed to perverse and illogical extremes: Laws against sex discrimination are used to require coed public restrooms and outlaw “Ladies’ Nights” at singles bars; one litigant even sued to stop Mother’s Day. Cynical opportunists and reckless extremists on both the left and the right have hijacked civil rights, using them to gain personal advantage at public expense, to push radical schemes despite democratic opposition and in some cases, even to reverse and undermine the social justice goals civil rights were supposed to achieve.
It’s not just that civil rights laws are abused or taken too far: Some may be doing more harm than good. For instance, the 14th Amendment to the Constitution was enacted after emancipation, to ensure that newly freed slaves would have a chance at a decent and dignified life, and it has been one of the most important constitutional guarantees of equality for most of the 20th century, serving as the legal foundation of desegregation in 1954’s Brown v. Board of Education. But more recently the 14th Amendment guarantee of equal protection has stymied sensible, if controversial, efforts to correct racial inequality, in direct contravention of its historical purpose. Most dramatically, in 2007 the 14th Amendment was used to prevent racial integration in the public schools.
Civil rights have “occupied the field” of social justice, crowding out alternative ways of thinking and new solutions. It’s hard to think of a social cause that isn’t framed in terms of rights, and a growing number of social groups seek to define themselves as embattled or despised minorities in order to qualify for civil rights–style public sympathy, if not formal legal entitlements. Rights against discrimination on the basis of age, disability, sexual orientation, height, weight, and physical appearance followed hard on the heels of the right against race, sex, and religious discrimination created by the omnibus civil rights legislation of the 1960s. Civil rights are an important part of many social justice struggles, but they are subject to the law of diminishing returns. Rights can offer limited improvements in a narrow set of circumstances. But the effectiveness of the civil rights approach diminishes, and its costs increase, as it is applied to more novel, complex, and elusive social problems.
Those working for social justice all too often eschew the difficult and unpleasant task of popular persuasion, lured by the false hope of a short cut by way of judicially mandated civil rights. Even policy reform pursued through the democratic process often takes the form of new individual entitlements, following the lead of the Civil Rights Act of 1964. It’s now common to think of individual rights as the most effective way to attack injustice. Few remember that when the law was passed, enforcement by private individuals was a second-best compromise that the act’s strongest supporters thought risked making the new law ineffectual. In many ways, they were right: The most disadvantaged victims of America’s long-lived racial hierarchy, trapped in poverty-stricken ghettos and quarantined in prisons, have enjoyed few of the benefits of the civil rights legislation.
Meanwhile, what we could call “rights consciousness” occupies a larger part of our culture than ever before. Today the rights to life, liberty, and the pursuit of happiness seem almost quaint in a field crowded with novel and ambitious new rights. International human rights were developed as a response to torture and genocide, but they quickly expanded to guarantee a variety of substantive goods and social services, including housing, medical care, dignified employment, and cultural integrity. The Bill of Rights of the Constitution has inspired the Taxpayers’ Bill of Rights, the Airline Passenger’s Bill of Rights, the Consumer’s Bill of Rights (a telling reflection of our national priorities), and the Pizza Lover’s Bill of Rights (ditto). Each of these new rights is inspired by a laudable and important aspiration (with the exception of pizza). But is the language and logic of rights the best way to think through or address all these concerns? And what does it say about public confidence in political and economic institutions and our relationships with our fellow citizens that we pursue so many of our goals and imagine so much of our life in terms of formal entitlements?
Civil rights are remarkably effective against overt prejudice perpetrated by identifiable bigots. But they have proven impotent against today’s most severe social injustices, which involve covert and repressed prejudice or the innocent perpetuation of past prejudice. Like an overprescribed antibiotic that kills beneficial micro-organisms and eventually encourages resistant strains of bacteria, the civil rights approach to social justice, once a miracle cure, now threatens to do more harm than good.
Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.