Contributed by -

Janai Nelson

President & Director-Counsel NAACP Legal Defense Fund (LDF)

Civil rights may be codified, but, in a country where those rights have always been contested, the fight to achieve full equality for Black people is unending. The NAACP Legal Defense and Educational Fund, Inc. (LDF) has always understood this reality. Sixty years after the historic passage of the Civil Rights Act of 1964—at a time when the rights established under this, and other statutes are not only under threat but are being weaponized to subvert their fundamental purpose--that fight is as urgent as ever. 

That the Civil Rights Act of 1964 passed at all is something of a miracle. Broadly speaking, it was born of three main efforts: decades of painstaking legal groundwork laid by Thurgood Marshall, Constance Baker Motley, and other civil rights luminaries; dramatic public protests by self-sacrificing activists such as Rosa Parks, Martin Luther King, Jr., and John Lewis; and the legislative maneuvering of President Lyndon Johnson, who leveraged the national sympathy and mourning in the aftermath of the death of President John F. Kennedy, the bill’s original backer. LDF played a crucial role in the law’s drafting and passage and, later, in shaping how courts enforce it. Despite Southern segregationists’ ardent opposition, months of filibustering, and attempts to insert poison pill amendments, the bill became law on July 2, 1964.

Supporters were exalted when President Johnson signed the bill into law at a nationally televised White House event using more than 70 ceremonial pens. The 14th Amendment’s guarantee of equal protection expressly prohibited discrimination based on race, color, religion, sex, or national origin, but it was the animating provisions of the Civil Rights Act of 1964 that gave that aspiration practical meaning by barring racial discrimination in employment, and education, and by recipients of federal funding, and by outlawing racial segregation in public accommodations. 

These were groundbreaking measures but passing the Civil Rights Act of 1964 was only the start of the story. In order to secure the support needed to break the Southern senators’ filibuster, the Senate sponsors weakened the federal government’s power to enforce the Act’s protections against job discrimination and segregation by private business. Public support for the legislation was also shaky: while a Gallup public opinion poll revealed that nearly 60 percent of Americans backed it, 30 percent opposed it. Moreover, nearly 70 percent of Americans wanted to see moderation in its enforcement, and many were concerned that the Johnson administration was moving too quickly with integration.

 Into this legal and political uncertainty stepped LDF and Jack Greenberg, its second President and Director-Counsel and successor to LDF founder Thurgood Marshall. Greenberg and a team of lawyers and courageous clients at LDF worked to give life and meaning to the Act by developing litigation strategies that would push its limits and pull levers of judicial power in favor of those who had been historically excluded from protection. 

Greenberg anticipated that segregationists would again use their favored tactic—endless delay—to thwart the Act’s school desegregation mandate. Despite the Supreme Court’s 1955 opinion ordering that school desegregation occur with "all deliberate speed,” schools in the South were integrating slowly, if at all. When the federal government asked to delay the implementation of desegregation plans for thirty-three school districts in Mississippi, Greenberg requested an emergency hearing before the Supreme Court. In Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969), Greenberg argued, in part, that anything less than immediate desegregation of all schools would violate Title IV of the Civil Rights Act. The Court agreed and ruled that segregated school systems in the South should be shut down and replaced “at once” with integrated schools. 

Greenberg also knew employers, especially in the South, would refuse to comply with Title VII’s ban on discrimination in hiring, as would labor unions where white locals did not want to include Black workers. 

To counteract these forces, Greenberg brought a private suit, Griggs v. Duke Power Company, that would create a legal framework for determining racial discrimination in the workplace that endures today. The class-action suit challenged Duke Power’s practice of denying promotion to employees who did not have a high school diploma or pass two separate aptitude tests. Greenberg argued that such requirements discriminated against Black employees in direct violation of Title VII because they were not reasonably related to job performance. The Supreme Court agreed, holding that Title VII “proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.” Later, the Supreme Court confirmed that Title VII banned similarly discriminatory practices against women in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).

By winning these and dozens of other cases, Jack Greenberg and LDF gave teeth to the Civil Rights Act of 1964 and developed powerful legal tools that continue to give life to its promise of equal access to opportunity for all Americans. 

Despite these victories, Black people continue to encounter unfair barriers that bar them from equal educational, economic, and other opportunities. Due to pervasive racial inequality in primary and secondary education, as well as racial bias in standardized testing, traditional indicators of merit under-identify many talented students of color for college admission, particularly at selective colleges. Ongoing occupational segregation continues to relegate Black people to lower-paying jobs and industries compared with white people with the same level of education. The Black-white homeownership rate gap is wider now than it was in 1968, when Congress passed the Fair Housing Act, and the racial wealth gap continues to grow. 

To address these ongoing challenges, LDF’s work continues to be expansive and rests on four pillars: criminal justice, education, political participation, and economic justice. LDF’s legal teams litigate across the country to protect the rights of Black people, the principle of equal protection, and other foundational tenets of our multiracial democracy.

Presently, there is a well-coordinated attack to undermine key protections of the Civil Rights Act of 1964, especially Title VI and Title VII, as well as other civil rights statutes like Section 1981. Groups who want to hoard opportunity for the wealthy and powerful few have intensified their attacks on efforts to increase access to opportunity and create a racially-just world. In Students for Fair Admissions vs. Harvard, the Supreme Court held that Harvard’s limited use of race as a tip in college admissions violated Title VI, overturning decades of precedent. Opponents of civil rights have sought to expand that decisions’ logic to unrelated areas, bringing litigation and administrative challenges that claim that programs designed to ensure equal opportunity in employment, access to capital, and federal contracting are themselves discriminatory. These attacks are part of the same pattern of retrenchment that threatened to undermine the Civil Rights Act of 1964 in the years following its passage. We need an equally vigorous legal and policy strategy to defend these protections.

In response to these attacks, LDF launched the Equal Protection Initiative (EPI), an interdisciplinary project to protect and advance public and private sector efforts to remove barriers to equal opportunity for Black people. In the tradition of the civil rights advocates that founded LDF, EPI will marshal litigation, policy, research, organizing, and communications to fully realize the U.S. Constitution’s promise of equal protection under law. In addition, as part of this ambitious initiative, LDF—along with Asian Americans Advancing Justice-AAJC, LatinoJustice PRLDEF, the National Center for Lesbian Rights, and the National Women’s Law Center—created the Advancing Racial Equity Alliance, a multiracial and intersectional coalition to protect and affirmatively expand efforts to advance racial equality for people of color, women and girls, and LGBTQ+ individuals. Together, the Alliance will push back on attempts to divide our communities and develop innovative and targeted strategies to challenge the discriminatory status quo and prevent the subversion of equal protection and anti-discrimination law. 

By tapping into the power of people, law, narrative, and research, LDF is continuing to advance the goals of the Civil Right Act of 1964 and fulfill the promise of the civil rights movement. We hope that you will join us in this fight, and urge legislators, educators, employers, and other stakeholders to stand firm in their commitment to equal opportunity. 

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