
          The Civil Rights Act After Twenty Years.  Part Two: The
Collapse of Enforcement
          By Chambers, Julius L.Julius L. Chambers
          Vol. 7, No. 1, 1985, pp. 10-13
          
          During the past week I have attended four meetings where we were
discussing the Civil Rights Act of 1964 and the 1984 election. It has
been a very depressing week.
          At a meeting last night, for example, we were addressing the
question of whether we should continue with affirmative
action. Several very strong advocates of civil rights who were present
were talking about ways to compromise affirmative action.
          I attended another meeting this week where we were talking about
poverty. Some very strong advocates of civil rights suggested ways
that we could compromise some of the advocacy that we were pursuing in
order to make our position more palatable to our opponents.
          Then I attended a meeting in Cleveland with black educators and
heard opposition to school desegregation. I heard advocacy for the
development for black institutions because those institutions were
needed in order to protect and preserve the interest of
blacks. Reflecting on what has happened over the twenty years since
the passage of the Civil Rights Act, one can begin to appreciate why
the current pessimism exists. A brief review of the history of the
Act's provisions regarding employment discrimination (Title VII) is
instructive.
          
            Proving Employment Discrimination
          
          In 1971, the US Supreme Court held in Griggs
v. Duke Power Company that an employer did not have to intend to
discriminate to be in violation of Title VII. It was sufficient to
show that the employer used practices which had an adverse or
disproportionate impact on a group or class 

covered under Title VII,
and that such practices were not necessary to determine or to predict
successful job performance. This was the legal theory of disparate
impact.
          In 1977,in US v. Teamsters the Court discussed
the method of proof which had developed in Title VII litigation. In
addition to disparate impact, there existed the legal theory of
disparate treatment (i.e., intentional discrimination). Thus, in
employment discrimination cases, one proves a claim either by
disparate treatment or disparate impact. The problem with Teamsters is the emphasis the Court placed on proof
of intent which is required in disparate treatment cases. At best,
proof of intent is difficult to establish. The emphasis placed on
intent in Teamsters has led some lower courts to require practically
impossible standards on proof.
          During the past four years, the US Department of Justice has been
moving toward a point where disparate impact will not be valid proof
of employment discrimination. It will be necessary to establish
disparate treatment in every instance.
          Recently, this theory was laid out in the Justice Depart meet's
brief in Williams v. City of New Orleans, one of
our (Legal Defense Fund) cases which involves the exclusion of blacks
from employment in New Orleans' police department. The Department
argued that the affirmative action incorporated in a consent decree
was "reverse discrimination," in violation of Title VII. The
Department maintained that one had to be an established victim of
discrimination in order to be eligible for affirmative relief. As a
practical matter, this would rule out affirmative action in class
actions.
          In another case, Memphis Firefighters Local Union,
No. 1784 v. Stotts, the Supreme Court overturned a lower court
ruling that protected from layoff black workers hired under an
affirmative action plan. The Justice Department asserts that under
Stotts, one must be a victim of intentional discrimination in order to
be provided affirmative relief, a position which would, in fact,
abolish affirmative action.
          Under these standards of proof, nobody will be able to prove
employment discrimination. Let me give you an example:
          Three or four years ago in North Carolina, we tried Anderson v. Bessemer City, which involved a black
woman who applied to head the Bessemer City recreation department. Her
qualifications were superior. She was rejected by everyone except the
sole woman on an otherwise all-male board. A federal district court
agreed that we had proved intentional discrimination. The city
appealed.
          The Fourth Circuit sided with the city. It held that if the men on
the board employed women in other capacities, or if their wives
worked, then they obviously could not intentionally discriminate
against this particular woman. If one analyzes this rationale, one
could never prove intentional discrimination.
          Take, for instance, the case of a qualified black person who is
denied a promotion by a white employer and seeks to show
discrimination. Under the standard set by the Fourth Circuit in
Anderson v. Bessemer City, if the white employer had ever promoted a
black person, a claim by any other black employee of intentional
discrimination would not be considered. Fortunately, after hearing
oral arguments this past fall, the US Supreme Court has overturned
(March, 1985) the Fourth Circuit's decision; the earlier finding of
discrimination has been reinstated.
          Between 1965 and 1977 it was possible for a plaintiff to establish
a violation of Title VII through disparate impact, and even disparate
treatment. The proof required was a showing that one was treated
differently. Courts did not emphasize proof of intent. But, in 1977,
Teamsters changed all of that. And today, with respect to enforcement
of Title VII, plaintiffs in many instances are being denied effective
remedies.
          
            The Point of No Relief?
          
          There is another aspect of Title VII relief that has undergone
significant change. For example, previously, if one accomplished the
near-impossible and proved intentional discrimination, the courts
directed broad relief. Today, we get much less. Even when an
individual is entitled to affirmative relief, he or she is not, in the
language of the law, "made whole." Again, let me give you an
example.
          If it is proven that an individual was denied a promotion because
of race or sex, the person does not automatically move to the new
position and bump the incumbent. He or she must wait for another
vacancy to occur. In the interim, the victim is given "front pay" to
compensate for the loss, and is given preference to fill a comparable
vacancy when--or if--it occurs.
          But does that "make whole" the person who has suffered
discrimination? What about interest on the lost wages? What happens
when no vacancy occurs within a certain amount of time? Should the
employer be required to find a comparable slot and, if appropriate,
train the individual to fill it? These are pressing questions, but I,
for one, do not anticipate that courts today will deal with them.
          Another example of the difficult problems that are encountered in
Title VII litigation. We filed an employment discrimination case in
1974 on behalf of a class of four hundred black workers in a large
paper mill in North Carolina. The case, Albemarle Paper Company
v. Moody, has been to the US Supreme Court, back to the lower courts,
and through numerous legal proceedings. Despite eleven years of
litigation and over $400,000 in costs, only one hundred black workers
have moved from low-paying, dead-end jobs in the woodyard to machine
operator's jobs inside the mill. One cannot but conclude, after
examining the data, that most of the black workers have not moved up
because 

they are not able to operate the machines. Is the lack of
capability their fault? Is it the fault of the employer for not
providing training? Is it the fault of the state for not ensuring that
individuals are offered equal skills in order to enter the job market?
What kind of relief do those three hundred black workers need?
          Which leads me to mention that civil rights groups today may be
focusing too much on the problems of middle-class blacks. It is time
that all of us begin to address the needs of the two thirds of the
black population who constitute the "underclass" and the working
poor--those individuals who are not necessarily benefitting from the
advances in civil rights law of the Past twenty years.
          
            Title VII-A Dead Statute?
          
          To return to Title VII. A third problem is the question of who is
responsible for enforcement of the law. Over five thousand employment
discrimination cases were filed in 1983. The federal Equal Employment
Opportunity Commission (EEOC), which has the authority to bring Title
VII lawsuits, was involved in less than one-third of them. Most were
brought by private litigators--at extraordinary cost. It used to be
possible to litigate an individual case for $5,000 to $10,000. Today,
one case will will cost $50,000 to $70,000. A class action
that used to cost $50,000 to $100,000, now costs between $300,000 and
$500,000. I have been involved in a case for four years that was
brought on behalf of a relatively small class--about twenty-four
individuals. To date, it has cost over $400,000. The defendant has
spent over $3.2 million. If we win everything to which our plaintiffs
are entitled, the monetary relief would total approximately
$100,000--and this to obtain rights we believe are spelled out in Title
VII.
          But that is where we are today. In my visits to LDF's cooperating
attorneys around the country, I am told by most that they do not want
to litigate any more Title VII cases. It costs too much. It takes too
long for them to recover costs. And, the courts are not favorably
disposed. Even if successful, the relief is too limited and the amount
recovered in attorney fees is much too little for the time, effort and
risk that these cases entail.
          If the private bar is not going to enforce Title VII, if the
Justice Department is not going to enforce Title VII, if EEOC is not
going to do more in terms of litigating these cases--is Title VII not
going to become a dead statute?
          To summarize: Initially the courts interpreted
Title VII liberally--procedurally, substantively and with respect to
relief. Despite reluctance by the Department of Justice and the
inability of EEOC to become involved, an active private bar brought a
number of cases--most often without adequate compensation. Today,
courts are interpreting Title VII more strictly, limiting what can be
obtained in relief, and deterring individuals who want to bring
cases.
          
            Title VII and Education
          
          It is also worthwhile to discuss here the status of school
desegregation. Since 1964, I have been involved in legal efforts to
desegregate the Charlotte-Mecklenburg [NC] public school
system. Eventually, through our lawsuit, Swann
v. Charlotte-Mecklenburg Board of Education, and others, we moved
the Supreme Court from a limited interpretation of Brown to a position that effective desegregation
required affirmative steps.
          Within the Charlotte community, we have moved from al reluctance to
accept desegregation, to active support. During a pre-election visit
to Charlotte, President Reagan criticized court ordered busing,
calling it a "failure." The Charlotte Observer responded with an
editorial, "You Were Wrong Mr. President." All of us are proud of what
has been accomplished with Charlotte Mecklenburg's desegregation plan,
which includes busing.
          Many other communities have had problems in desegregating their
school systems. Those are communities in which the Southern Regional
Council, indeed all of us, must be available to help.
          Then there are communities that remain untouched by desegregation
efforts. I refer to majority black school districts in urban areas. A
recent report stated that over sixty-eight percent of the black
students in Harlem drop out of school. Many schools in urban areas are
as bad as the segregated school I attended before Brown.
          Are we devoting as much attention as we should to what goes on in
urban public schools--whether or not they are desegregated? Why are
black students not performing well on standard exams? On SAT's? Why
are more black students not entering college, graduate programs,
professional schools?
          Black high school graduates do enter college at about the same rate
as whites. But although the enrollment of black students has increased
in undergraduate schools, black enrollment in graduate and
professional schools has decreased. Our future well-being depends on
our ability to address these issues and find answers to the problems
they present.
          This must be done within the constraints of the realities we face
today. Despite lack of support from the federal government, we must
work to reinstate the approach to implementation of Title VI and other
sections of the Civil Rights Act, and to the enforcement of Brown, that we had several years ago.
          
            Deja Vu at Chapel Hill
          
          Before the November election, I returned to the University of North
Carolina campus at Chapel Hill. I was disturbed by 

what I saw. The
attitude of white students reminded me of the 1950s when I was a
student in the law school. For those three years, even as
editor-in-chief of the law review, I could not attend the school's
social functions because they were held at a segregated
establishment. This year I saw some of that same attitude among white
students. That ought to bother all of us. I could not help but wonder
whether Mr. Reagan was contributing to this attitude.
          Despite such pessimistic observations, I remain an "optimist. Even
as one considers the plight of the underclass, of minorities, of
women, it is possible to take some solace if we contrast today's
reality with the mood of the country in the 1940s and '50s. It took a
lot of work, a lot of litigation and legislation to change things. We
cannot quit now. We must press ahead.
          In the 1930s and '40s, few people would have predicted that by
1954, the Supreme Court would decide Brown v. Board of
Education the way it did. Today we can develop similar efforts to
urge the courts to consider new interpretations of the Fourteenth
Amendment, perhaps the establishment of poverty or economic status as
a protected classification. I agree that moving the Court that far
will be difficult. We can, however, begin to lay the groundwork.
          Other issues which must be considered by the Southern Regional
Council include the seventy-five vacancies on the federal
courts. President Reagan will have these, and perhaps several
vacancies on the Supreme Court, to fill during the next four
years. The Council should be prepared when appointments to the federal
courts are made. With respect to Supreme Court and other federal
judicial nominees, we should raise our concerns where necessary and
appropriate. Even the Senate may listen if it hears a unified
voice.
          Some candidates who have been advanced for appointment to the
federal bench lack qualifications. A recent nominee for the Fourth
Circuit had never practiced law a day in his life. By forming
alliances we can provide the Senate with information it needs to
investigate the qualifications of candidates for federal
judgeships.
          It has occurred to me also that we ought to focus more on the
potential for progress in civil rights at state and local levels. The
Council has been effective in helping good people get elected to state
government, state legislatures and city councils. The Voting Rights
Act has been a major and significant tool in this effort. In North
Carolina, after reapportionment, a few more blacks were elected to the
state legislature. Throughout the states, despite Mr. Reagan's
victory, we have elected legislators who are responsive to our
concerns.
          Is it not possible for us to work through the Council and other
organizations to push states and municipalities to enact laws similar
to the Civil Rights Act of 1964? This might enable us to build support
at state and local levels that will influence what happens at the
federal level.
          We have means today that we did not have years ago. We have new
attitudes among blacks and some whites that will surely result in
speeding the change we seek. The Council has a role in mobilizing
these groups and working with them to advance our agenda. We must be
more assertive in using news media outlets to present our viewpoint as
a counterbalance to the conservative "think tanks" and fundamentalist
religious groups who oppose a fully integrated society.
          As we observe the evolution of equal rights and opportunities
during the past twenty years, we can point to progress. Some of the
old obstacles have been removed, but new ones have taken their
places. But that should not and must not deter us from trying to make
this a world of equality and justice for all.
          
            During the fortieth anniversary meeting of the Southern
Regional Council, held in Atlanta this past November, Pulitzer Prize
winning journalist Harry Ashmore, Julius L. Chambers-director of the
NAACP Legal Defense Fund, and former SRG executive director Harold
Fleming reflected upon the status of civil rights twenty years after
the passage of the 1964 Civil Rights Act. An additional comment was
offered by Paul Gaston, professor of history at the University of
Virginia and current president of the Southern Regional Council. In
the following pages, we present the perspectives of these long-time
observers of, and participants in, Southern changes.
             Julius Chambers, a past president of the Southern Regional
Council, is director of the NAACP Legal Defense Fund.
          
        