Michael Barone: Advancing Civil Rights By Overturning Old Laws

Two Supreme Court cases demonstrate that retaining outdated standards doesn't prevent racial discrimination, it promotes it

By Michael Barone | Published on 06.03.2009

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Two cases likely to be decided this month by the Supreme Court — one of them an appeal in a Connecticut case decided by a panel including Supreme Court nominee Sonia Sotomayor — could result in significant changes in our civil rights laws.

Michael Barone
Michael Barone

One case involves a utility district in Texas that is challenging the Voting Rights Act requirement that any changes in its election procedures receive approval — “preclearance” is the technical term — from the Justice Department. The other involves the city of New Haven’s refusal to promote several white firefighters and one Hispanic after they passed a promotion test but no black firefighters did.

The betting among Supreme Court analysts is that a majority of the court will rule for the Texas utility district and the New Haven firefighters. Defenders of the status quo will view this as a dangerous undermining of equal rights. Others — include me on the list — will see it as a step forward for equal rights and for Martin Luther King’s entreaty that Americans be judged on the content of their character and not the color of their skin. That’s because in both cases, the legal rule the court seems likely to overturn is no longer relevant to life as it is in America today.

Take the Voting Rights Act. First enacted in 1965, it required appointment of federal registrars and federal approval of any changes in election procedures in several states and local jurisdictions where less than half of eligible voters had voted in 1964. This was a drastic intervention by the federal government — and thoroughly justified at the time.

Officials in Southern states were using subterfuge and intimidation to prevent blacks from registering and voting. Local whites threatened violence to any black who tried to vote, and in Mississippi three civil rights workers were murdered in 1964. The Voting Rights Act got blacks on the rolls and to the polls, and very quickly, too. It was the most effective civil rights law in U.S. history.

Is it still needed today? Yes, to address the very rare cases of voter intimidation, as in the 2007 case against a black political boss who was blocking whites from voting in Noxubee County, Miss. But are the preclearance provisions still needed in states that had low voter turnout 45 years ago? Not really, it seems — the very few that are questioned by the Justice Department suggests that such problems are no greater in those states than anywhere else, and that they can probably be addressed through the political process.

The Texas utility district appealing to the Supreme Court has no history of racial discrimination; it was created long after 1965. If preclearance is important, let Congress apply it to all the states. If it’s not, why burden states and localities for misconduct that almost entirely ceased soon after 1965?

The New Haven firefighters were denied their promotions because, the city of New Haven claims, it feared that the promotion tests would be challenged under a 1971 Supreme Court decision raising a presumption against tests that have “disparate impact” on blacks and whites. That presumption made empirical sense in 1971, when many employers used any stratagem they could to avoid hiring and promoting blacks. But those days are mostly gone, too. The city of New Haven wants to promote blacks. That’s why it denied the white and Hispanic firefighters the promotions they had earned on a test the city paid thousands of dollars to develop as fair and racially unbiased.

Similarly, most employers these days want to hire and promote blacks, both to prevent bad publicity and to avoid lawsuits — and because the vast majority of Americans today want to be fair. But fairness, as the New Haven case shows, inevitably produces disparate impacts.

Talents and abilities are not distributed evenly among people whom we insist on categorizing as white, black, Hispanic, and Asian and Pacific Islander. The Supreme Court’s 1971 disparate impact standard, like the Voting Right Act’s 1964 standard for voter turnout, was fashioned at a time when racial discrimination was exceedingly common and was pursued cunningly so as to escape legal detection.

That is not the America we live in today. It is not the America that elected Barack Obama president. Retaining these standards today does not prevent racial discrimination, it promotes it — as the New Haven firefighters can attest.

— Michael Barone is a senior writer for U.S.News & World Report and principal coauthor of The Almanac of American Politics. Click here to contact him.

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» Marcel Kincaid on 06.05.09 @ 06:26 AM

“Martin Luther King’s entreaty that Americans be judged on the content of their character and not the color of their skin.”


This is the ONLY thing MLK said that Barone and his ilk repeat, as they rip it out of context. MLK said “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character”—but we don’t yet live in such a nation, certainly not when people like Barone and Limbaugh and Hannity and Tancredo and Buchanan attempt to turn reality on its head and claim that it’s Sonia Sotomayor who is the racist—just for being a Latina.

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» dcp on 06.05.09 @ 08:23 AM

We’ll know - when we know, won’t we?

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» San Roque Resident on 06.05.09 @ 09:21 AM

Some interesting points.

Perhaps if Mike Barone had had a chance to interview the Texas man dragged to his death over dirt and gravel roads tied to the back of a pickup truck primarily because he was ... black, his outlook on maintaining “civil rights laws ‘targets’ ” in some notorious states might be a bit different.

But if Mike Barone is really the doctrinaire ideologue in person that he writes like
in his columns, perhaps not.

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» Mas Gaviota on 06.05.09 @ 11:26 AM

“Talents and abilities are not distributed evenly among people whom we insist on categorizing as white, black, Hispanic, and Asian and Pacific Islander.”

I wonder if the author of this article has any proof of this outlandish statement.  If not, it proves the underlying racism of the author.  On the contrary, every scientific study has shown that there is no difference in abilities between the “races.”

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» tired on 06.05.09 @ 05:57 PM

To all of you who think the they have been wronged,  get over it and prove everyone wrong.  Don’t be victims, show everyone that your character and strong will can surpass any discrimination.  Unless you want to live forever blaming others for your short comings,

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» dcp on 06.05.09 @ 10:51 PM

MARCEL - Thank you for the full context of MLK, Jr’s comment. HOWEVER: Once we move beyond current hyperbolic rhetoric [and IT HAS been excessive but from not just some GOP quarters - truly and admittedly] let’s do something here on the Left (West) Coast, which even “The New York Times” is afraid to do - because each time the subject comes up, the Times strangely censors their own blog - by blotting out some actual US history - rather than its revision to which it has clung mercilessly for too many decades, for purposes of its own political gain.  TWO REFERENCES NEED TO BE READ THEN PONDERED BETWEEN NOW(!) and the US Senate’s Committee on the Judiciary eventual confirmation hearings on the nominee for US Supreme Court associate justice: (#1) = The actual legislative intent of “The Civil Rights Law (1964)” in the words on the Floor of the upper house—US Sen. Hubert Horatio Humphrey [D - Minn], who carried that bill!  THEN (#2) = Theodore H. Whyte’s book “America in Search of Itself” - ESP. SECTION ON ‘AFFIRMATIVE ACTION’ —- THOSE ARE OUR TWO READING ASSIGNMENTS BEFORE A NEXT CIVIL DISCUSSION, OK?  ;-)

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» Marcel Kincaid on 06.12.09 @ 07:33 AM

DCP, your references have nothing to do with Sotomayor or her confirmation.

TIRED, that’s a tiresome piece of sophistry, a false dichotomy. It is not me but OTHERS who have been wronged, systematically, and it’s important to oppose bigotry and racism, just as it is important that individuals do the best they can. As for “short comings”, you’ve put yours on display.

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