Introduction
This policy analysis examines the passage of the Civil Rights Act of 1964, a milestone piece of legislation that outlawed segregation and racial discrimination at schools, the workplace, and public accommodations and banned unequal application of voter registration prerequisites. I will first examine the importance of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) in paving the path towards reform. Next, I will explore the political, economic, and social conditions in 1964 that allowed civil rights activists to push the issue of civil rights onto the decision agenda. I will then discuss the essential role of public opinion in enactment of the Act. Finally, I will examine the evolving role of the Supreme Court in achieving a more equitable society during this period. The courts and a small group of civil rights activists acting alone failed to achieve real change. Only when Congress, the executive, and popular opinion were aligned did the proposed bill secure passage.
Brown v. Board and “Softening Up”: Paving the Path for Reform
While the work of civil rights activists is far from complete, in the 1960s African Americans obtained social, political, and economic opportunities in sectors that traditionally barred their entry. Brown v. Board, a case that overturned Plessy v. Ferguson and determined that black children were denied equal educational opportunities in segregated schools, legitimized the claims of those who demanded more opportunities for African Americans, thereby planting the seed for change (Bumiller, 9). Brown v. Board of Education raised awareness of blatant inequalities and demonstrated that the courts would be receptive to calls for change. With Brown v. Board, the Supreme Court helped transform the issue of segregation from a ‘social condition,’ to be settled in the private sphere, to a ‘public problem,’ which demanded enhanced state attention and activity (Baumgartner and Jones, 167). As John Kingdon explains, “The content of ideas themselves, far from being mere smokescreens or rationalizations, are integral parts of decision making in and around government” (Kingdon, 125). The rapid increase in media attention to the ills of school segregation after Brown served to “soften up” the policy community and general public to the notion that separate but equal is inherently unequal (Kingdon, 117).
Brown v. Board encouraged civil rights organizations such as the National Association for the Advancement of Colored People (NAACP) to continue their lobbying and litigation activities as well as to leverage the support of the larger African American community. Indeed, by demonstrating the possibility to obtain new opportunities for African Americans, the NAACP expanded its support base and opened several more Youth Council chapters throughout the country (Williams, 122). As Frank Baumgartner and Bryan Jones explain, losers gain from conflict expansion and the “small beginnings of criticism can be compounded through the interaction of image and venue” (Baumgartner and Jones, 101). Civil rights activists, mobilized with the victory of Brown v. Board, widened the conflict by pressuring state and local governments, Congress and courts to become more involved in promoting racial equality. In the same way as the ‘hunger lobby,’ these activists benefited from combining litigation with lobbying, or “fighting on two fronts” (Melnick, 188). Indeed, as Tammy Frisby explains, “There is not always a clear separation between litigation and legislation strategies… The court decision is often not seen as the final goal” (Class Discussion, 4/26/10). At the same time the venue widened, the media increasingly highlighted the ills of segregation and other forms of racial discrimination. In accordance with Baumgartner and Jones’ theory that public attitudes respond to elite activity, the public became more concerned about the issue of racial inequality as the press criticized Southern politicians who catered to their constituencies and barred African American children from entering integrated schools (Wicker, A19). Click here.
Before Brown v. Board, the executive branch failed to apply pressure on segregationists to end discriminatory practices (Tushnet, 1706). With the Supreme Court’s declaration that de jure racial segregation in public schools was unconstitutional, however, the federal government finally had to take a more active role in protecting civil rights. Even though President Eisenhower was largely apathetic to the struggle of African Americans, he felt compelled to deploy federal marshals to Little Rock High School when Governor Faubus attempted to prevent nine black students from enrolling (Nichols, 10). Brown v. Board, as well as the dramatic intervention at Little Rock, ensured that the federal government would finally commit itself to improving the condition of the African American. The Civil Rights Division of the Department of Justice, established soon after the court’s decision, is the institutional legacy of Brown v. Board and governmental and media attention to civil rights during the Little Rock High School case. In accordance with the “dual mobilization” ideas of Downs and Schattschneider, new organizations created to deal with a problem during periods of high governmental attention “work in the future to ensure their own continual survival, which generally means maintaining some degree of official interest in the issue” (Baumgartner and Jones 163). While beginning with fewer than ten attorneys, the division kept the issue of civil rights alive in the public consciousness by intervening on behalf of numerous plaintiffs who experienced discrimination or racial violence.
Coupling of the Streams: Passage of the Civil Rights Act of 1964
While Brown v. Board planted the seed for change, meaningful legislation such as the Civil Rights Act of 1964 secured passage only when the issue of civil rights “suddenly got hot” in the mid-1960s and the proposal moved into position for legislative enactment. As Kingdon’s theory would suggest, the key to understanding why civil rights was pushed on the decision agenda is a coupling of three factors. Indeed, during this period, increasing numbers of Americans recognized the problem of racial disparity, the political environment facilitated reform, and the focusing event of President John Kennedy’s assassination allowed a policy entrepreneur to press an available alternative.
The issue of civil rights gained prominence in the 1960s as the problem became more defined to policymakers and the general public. Studies conducted during this period revealed that the unemployment rate for blacks by the mid-1960s was double that for whites (Schaller, 235). While middle and upper class white Americans moved to the suburbs, bought multiple television sets and purchased the latest model of the Ford automobile, African Americans suffered from high levels of poverty, were prohibited from moving to prosperous communities and were forced into vocational schools that prepared them for blue collar jobs (Schaller, 88). Martin Luther King Jr. voiced the growing frustrations of African Americans across the nation when he described his dream that “One day all children will have food… one day the rat-infested slums of our nation will be plowed into the junk heaps of history” (Jackson, 2). With the increase in the sales of televisions, for the first time the majority of Americans were exposed to the social and economic hardships faced by racial minorities. Media coverage of Eugene “Bull” Connor and the Birmingham Police Department using high-power hoses and police dogs against peaceful high school and elementary children served as a powerful symbol of the civil rights struggle and brought a strong backlash to segregationists in the South. As Freedom Riders traveled through the South to desegregate public accommodations and buses, reporters taped numerous scenes of white policemen and racist Southerners attacking unarmed activists. One journalist in Harper’s magazine, conveying the power of direct action, explained that, “The demonstrations have shifted the desegregation battles from the courtroom to the marketplace” (Williams, 136). Gruesome images, more than hearings in courtrooms, distressed Americans and mobilized the mass support necessary to obtain civil rights legislation.
In addition to enhanced publicity of the problem, the political climate of the 1960s made civil rights reform possible. In the preceding years, millions of African Americans had migrated north to escape racism and search for better job opportunities. In this more hospitable environment, African Americans could exercise their voting power. Largely because he promised a new civil rights bill during the 1960 presidential election, Kennedy received over 70 percent of the African American vote. One newspaper explained that even Southerners have begun to accept the fact that “any candidate for the Presidency now has to woo the big blocs of Negro and Northern liberal votes to win” (Tanner, A1). Click here. In addition to garnering the African American vote, an executive or presidential hopeful would enjoy approval from an increasing number of Caucasians for supporting a new civil rights bill. While most young Americans did not fight in the Vietnam War, millions of young men spent a substantial part of their young adulthood worrying about being conscripted and seeking ways to avoid the draft. When the Students for a Democratic Society endorsed draft resistance, a powerful coalition developed between anti-war and civil rights groups that supported civil rights legislation (Schaller, 289). When Kennedy proposed what would become the Civil Rights Act of 1964, the bill languished in Congress. Southern state and local representatives obstructed passage of the bill, using the filibuster to prevent a vote and protect the interests of their constituencies. However, as one newspaper explained, “organized opposition to the bill is close to non-existent outside Dixie” (Sullivan, A1). Click here. Northern Republicans, likely influenced by pressure from their constituents, began to support the bill in increasing numbers.
With a clearly defined problem and an increasingly conducive political environment, Kennedy’s assassination was a focusing event necessary to push the issue of civil rights on the decision agenda. In the midst of the national emergency, opposition to the bill by Southern congressmen as well as industry and trade groups fearful of new business prohibitions, declined. Indeed, one article in the Wall Street Journal explained, “Southern Foes are isolated by Kennedy’s ‘martyrdom’…though Southerners will renew their protests in this week’s House debate, many of the charges first hurled against the late President’s plan have since faded away” (Sullivan, A1). While, before Kennedy’s assassination, only 19% of Americans in a Gallup Poll asserted that the administration should “keep on pressing for further civil rights legislation,” a few months after his murder almost 70% of polled respondents said they favored the passage of a civil rights bill (Roper Commercial Survey, 1960; Harris Survey, 1964). Coupling the streams at the window, President Lyndon Johnson urged Congress to vote on the Civil Rights Act, a viable alternative or solution that Kennedy had proposed to combat discrimination in public places. The new executive appealed to conservative Southerners by promising to cut the budget and provide tax relief, a negotiating tactic that helped him succeed as a policy entrepreneur. In addition, Johnson’s authoritative decision-making position and the fact that he had worked on the issue in the Senate in 1957 ensured he had a claim to a hearing (Kingdon, 180). During his first State of the Union address, he expressed a desire to fulfill Kennedy’s aspirations and linked the issue of civil rights to the war on poverty in America (Johnson, A8). Click here. By capitalizing on a liberal national mood, Johnson helped push forward historic and long-awaited legislation.
The civil rights issue appeared on the decision agenda in the mid-1960s because of a convergence of three streams: the problem of racial discrimination became increasingly difficult to ignore, the political environment encouraged reform, and an acceptable proposed bill had already been worked-out. When Johnson capitalized on the occurrence of a focusing event, legislation passed that abolished legal forms of discrimination and encouraged all levels of government officials to enforce laws against racial violence (Karst, 20; Smith, 99). Passage of the Act illustrates the importance of timing and the significance of unanticipated events. The problem of racial discrimination existed since the establishment of our nation and numerous individuals had devoted their lives to fighting for civil rights long before 1964. Yet, only when unforeseen circumstances created a favorable environment, did activists garner sufficient support from key individuals in power and the general public to achieve real reform.
The Role of Public Opinion in Passage of the Act
While the civil rights issue became prominent with a convergence of three streams, the passage of the Civil Rights Act of 1964 supports the theory that public opinion is the prime mover in American policy (Brady, 4). Brown v. Board legitimized the claims of those who demanded more opportunities for African Americans, yet white Americans during the 1950s often refused to acknowledge the ills of racism and refrained from exerting pressure on their government officials to address blatant inequities. In the 1960s, a public mood swing to the left inspired Congress and the executive to become increasingly liberal on a number of issues. Only when public opinion became favorable to the legislation, due to civil rights activists who widened the venue and incorporated a larger segment of the populace into their struggle, did government officials became accountable for their views and supportive of the bill.
Although Brown v. Board of Education laid the foundation of the civil rights movement, without public support for racial equality, the implementation of the Supreme Court ruling was slow and disappointing. Elisabeth Gerber explains there is strong “evidence that legislators are constrained by their districts’ preferences and tend to vote with their district’s majority” (Gerber, 276). In a Roper Commercial Survey conducted in 1958, only 21% of polled respondents explained that schools should become integrated immediately (Roper Commercial Survey, 1958).
There have been a number of different viewpoints about the Supreme Court decision against separate schools for Negro students. Which one of these comes closest to expressing your own personal opinion?
Roper Commercial Survey, Oct, 1958
Traditional Southern constituents supported local leaders such as Senator Harry Byrd and Governor George Wallace who obstructed enforcement of the decision by leading the massive resistance movement and preventing black students from enrolling at universities in their districts (Rountree, 9). The 1955 passage of Brown II, which delegated the task of implementing Brown I to district courts and allowed them to desegregate “with all deliberate speed,” further relieved schools from government interference in racial practices (Romero, 816). While King and organizations such as the Southern Christian Leadership Conference attempted to work directly with courts, policymakers, and economic leaders in the community to pass progressive reforms, frequent betrayals and slow progress taught that more radical action would be necessary to ensure lasting change.
King and a growing number of dissatisfied African Americans turned to boycotts, protests, and sit-ins to garner the public support necessary for passage of meaningful civil rights legislation (King, 34). The liberal public mood of the 1960s contributed significantly to this end. According to a number of scholars, public opinion shifts between liberal and conservative and “shifts in congressional voting and presidential position-taking generally follow public moods” (Brady, 4). During the 1960s, universities served as places where students, disgruntled with society, could offer each other encouragement and demand change from an older generation in a wide range of policy areas (Gomes, 141). Thousands of white students, inspired by direct action techniques led by groups such as SNCC, joined civil rights organizations, participated in Freedom Summer activities, and traveled from across the nation to join the March on Washington (Perlstein, 320). Because of the media’s double standards, white students often brought more attention to the movement than black students could attract themselves. For example, while there was little publicity about the numerous blacks murdered for their involvement in the movement, when two white CORE activists were lynched at the beginning of the Freedom Summer of 1964, the national news channels and newspapers closely followed the case and galvanized the public (Devlin, A19). Click here. Activists, including King, “appealed to the broad white middle class, whose idealism and political energies were essential to dreams of a renewed liberalism” (Jackson, 6). The liberal mood, largely emanating from the universities, guaranteed the necessary mass support, resources, and electoral pressure to beget reform.
The Birmingham Campaign, March on Washington for Jobs and Freedom, and Selma to Montgomery marches highlight the impact public opinion had on successful passage of the bill. In Birmingham, the Southern Christian Leadership Conference (SCLC) and King mobilized the black community to engage in boycotts, sit-ins, and marches that would lead to mass arrests and overflow of the city’s jails. In the same way media coverage of extreme poverty in the rural South drastically raised awareness about the issue of hunger, images of belligerent local police with clubs and tear gas convinced countless Americans that civil rights was a pressing issue (Melnick, 198; Williams, 273). Mass protests increased the salience of the issue and, by doing so, served to constrain Kennedy in the direction of his constituents’ preference (Gerber, 271). While President Kennedy had originally stated that the deliberate speed provisions of Brown v. Board was a “satisfactory agreement,” the campaign and accompanying media attention moved him to deploy federal marshals to Alabama and introduce legislation to Congress that would outlaw racial discrimination in hiring practices and public services (Wright 6; William, 140).
Despite Kennedy’s efforts to achieve reform, only after his death did civil rights advocates have the public support necessary to push the issue of civil rights on the decision agenda. Opposition in Dixie waned due to the fact that the new president was a Southerner (Tanner, A2). One Nashville resident explained, “Johnson can do essentially the same things Kennedy did and ruffle 30% fewer feathers” (Tanner, A2). Following Kennedy’s death, civil rights supporters were able to portray the bill he had proposed as a moral imperative that would honor his memory. While, before the assassination, less than 20 percent of Americans asserted that the administration should push for civil rights legislation, a few months after his murder almost 70 percent favored passage of the civil rights bill (Roper Commercial Survey, 1960; Harris Survey, 1964). As these polls gauged attitudes on a specific bill, there is little ambiguity concerning the relationship between public opinion and the issue at hand (Brady, 1). Public approval for the legislation is reflected in the presidential election of 1964. Brady notes that, “The one case where we have opinion data and major change was the 1964 election which gave one party control of government with majorities sufficient to pass path-breaking legislation on civil rights and Medicare, among other legislation” (Brady, 5). As their constituents became more resigned to passage of the legislation, hard-line Southern congressmen increasingly abandoned the filibuster as a delaying tactic. Mass action and the death of a popular president stirred the nation’s conscience, paving the way towards legislation that would abolish legal forms of discrimination.
Civil rights reformers, seeking change through institutional means, often failed to achieve concrete results from their labors. Despite the fact that King was an intellectual with impressive credentials, his efforts to achieve reform were unsuccessful until he inspired and engaged a broad coalition of Americans (Horton, 156). Court decisions that were ignored and government promises that were not fulfilled contributed to a legacy of bitterness among African Americans. Brown v. Board and a small group of intellectuals pushed the idea of achieving racial equality into the public consciousness. Direct action and nonviolent resistance garnered the public support necessary to ensure that the civil rights movement would bring more than eloquent rhetoric and unfulfilled promises.
The Courts: From Declaring Principles to Advocating Change
While public support was necessary to secure passage of the Act, the Supreme Court was instrumental in advancing the idea of racial equality during the early stages of the Civil Rights Movement and defining the problem to be addressed (Kingdon, 109). Brown v. Board “profoundly affected national thinking and served as the principal ideological engine of the Civil Rights Movement” (Rosenberg, 205). However, until passage of the Civil Rights Act of 1964, the Court restricted itself to setting forth broad principles of educational equality while avoiding enforceable judgments or rulings that would necessitate the implementation of desegregation. Kingdon explains that proposals which fail to meet criteria including “technical feasibility, value acceptability within the policy community, tolerable cost, anticipated public acquiescence, and a reasonable chance for receptivity among elected decision makers—are not likely to be considered as serious, viable proposals” (Kingdon, 131). Only after passage of the Civil Rights Act of 1964, which demonstrated that the Supreme Court no longer had these hurdles, did the judiciary branch contribute to the implementation of civil rights reform.
While the Supreme Court stimulated national dialogue on this issue by announcing a general proposition that schools should desegregate, for many years after Brown the Court did little to encourage the implementation of its ruling by setting forth clear remedies for nationwide segregation (Greenberg, 1524). Similarly, in Bennett v. Butz Judge Lord ordered the USDA and the states to launch outreach initiatives yet offered no hint of what sort of outreach program the law obligated. As a result, “All the states submitted new outreach plans within a few months. But state efforts remained meager except where FRAC and Legal Services threatened further legal action” (Melnick, 213). With the second Brown opinion, the Court set forth the general principle that schools must integrate with “deliberate speed,” demonstrating to many Southerners judicial unwillingness in interfering with the status quo (Ogletree, 289). With few exceptions, between 1955 and 1963 the Court declined to review school cases, whether brought up by plaintiffs or by defendant school boards (Greenberg, 1524). In the rare cases it did review, including Goss v. Board of Education, the Court followed the tradition of emphasizing general principle while avoiding the details of implementation (Greenberg, 1525).
Kingdon’s theory concerning successful policy proposals helps explain the Court’s reluctance in grappling with details in the school cases. As a proposal is not likely to survive if it is not technically feasible, the Court “spoke in generalities and avoided details because its determinations could be of only limited utility in the overall desegregation process” (Kingdon, 132; Greenberg, 1539). Before passage of the Civil Rights Act, there was no federal authority to file suit and oblige change. While the NAACP Legal Defense and Educational Fund had initiated almost 300 nongovernmental southern school desegregation cases since 1954, approximately 3,000 more districts could not be sued because of limited funds to bring private suit (Greenberg, 1539). As desegregation had to proceed on a strictly case-by-case basis, Brown impacted only a small percentage of school districts in the South (Gunther, 199). In addition, value acceptability is also important in considering the viability of a proposal. Specialists’ values may be “composed of their view of the proper role or size of the federal government vis-à-vis the states and localities, and their view of the proper size of the public sector vis-à-vis the private sector” (Kingdon, 133). If the Court had mandated immediate racial reform, it would have further enraged Southern policymakers who asserted that the federal government should not interfere with an issue they believed solely concerned the state and the private sphere (Dudziak, 5). The lack of a technically feasible plan to desegregate and insufficient value acceptability for such a proposal obstructed the Court’s vision for an equitable nation.
Perhaps most importantly, the Supreme Court refrained from pushing implementation of its ruling because of anticipation of future constraints. In the 1950s, the courts lacked sufficient support from Congress and the general populace to pass meaningful civil rights legislation (Read, 23). As R. Shep Melnick states, Congress has an abiding concern about costs to the federal budget and must consider the “mood” of the country and their constituents (Melnick, 211, 217). Many congressmen were hesitant to support the establishment of expensive agencies and programs to protect civil rights (Katznelson, 286). David Brady explains that when the policy under consideration is salient to the pubic, members of Congress are especially responsive to public opinion (Brady, 9). Until passage of the Civil Rights Act, the general public had not yet demonstrated its support for the principles articulated by the Supreme Court in Brown. Indeed, even in 1969, polls revealed that only 33% of respondents opposed granting school districts in the South extensions on deadlines for racial desegregation (Nixon Poll, 1969).
Recently, some school districts in the South have been given an extension on deadlines for complete racial desegregation if the federal government thinks their situation justifies it. Do you believe such extensions should be allowed, or should not?
In the years following the Brown decision, articles in the major newspapers described strong cases of resistance in the South. For example, one stated, “In the Deep South states of Georgia, South Carolina, Mississippi and Louisiana, the political leadership has taken a defiant position and declared that it will keep segregated public schools regardless of the terms of the implementation decrees” (Popham, 1A). Click here. The Supreme Court realized that federal and state officials, under pressure from their constituents to resist segregation, could advocate legislation that would undermine its authority. Indeed, the people of Arkansas passed an amendment to the Constitution of the State of Arkansas which called upon the General Assembly to pass laws opposing desegregation decisions of the Supreme Court, which they explained infringed upon the sovereignty of the state and were a “dangerous invasion of or encroachments upon rights and powers not delegated to the United States” (Dudziak, 5). Similarly, the 1977 amendments that restricted the court’s role in food stamps demonstrate that “Congress has power to rebuke the judiciary if it oversteps its bounds” (Melnick, 225). As a resolute minority can obstruct judicial rulings, the Court avoided recommending detailed programs to desegregate that could have met with widespread nonobservance and heavily damaged its jurisdiction (Gunther, 199).
The passage of the Civil Rights Act of 1964 and the vesting of authority to implement Brown in the Department of Health, Education, and Welfare (HEW) and the Justice Department marked a watershed in the Court’s treatment of school desegregation cases (Greenberg, 1527). As Baumgartner and Jones explain, new legislation commits funds and creates new institutions that remain, even after public or media concern with the problem dwindles. Indeed, these institutions perpetuate themselves by providing studies that demonstrate a need for enhanced governmental vigilance (Baumgartner and Jones, 169). Jack Greenberg argues that uniformity became possible for the first time in 1964 as HEW “enforces guidelines embodying a distillation of judicial opinion. To the extent that the Court upgrades specific standards, they are then capable of widespread enforcement by an agency with potentially large staff and appropriations” (Greenberg, 1540). Passage of the Civil Rights Act altered the attitudes of the lower courts and the Supreme Court. In Bradley v. School Board, Gilliam v. School Board, and Rogers v. Paul, all 1965 rulings, the Court finally demonstrated a willingness to grapple with details of enforcement in school cases. These cases, along with Green v. County School Board (1968), highlighted a major new focus on immediate integration (Read, 23). Largely because of the Court’s new approach, “In the first five years after the Act’s passage…more substantial progress was made toward desegregating schools than in the 10 years immediately following the Brown decision” (The Leadership Conference). Click here. While only approximately one percent of African American students in the South attended school with whites in 1964, the figures had risen to 32 percent a mere four years later (The Leadership Conference). By the 1970s, “schools in the South were more integrated than schools in any region” (Cascio, 8). With the support of Congress, the Court was no longer content with remaining a mere advocate of guiding doctrines and became committed to ensuring the execution of school desegregation.
In the wake of Brown, the Court evaded addressing how to implement desegregation, choosing to focus on the challenge of educating the country rather than of compelling concrete reform. In order for a new proposal to be implemented, there often has to be a long period where the general public, more specialized publics, and the policy community become acclimated to the idea (Kingdon, 143). While the Supreme Court may have been tempted to adopt a strictly rights-based vision of the school desegregation program, it realized that most of the country was not supportive of dramatic change and needed time to become accustomed to the possibility of racial equality (Melnick, 217). The Court’s restricting of its role before 1964 to articulating basic principles may well have reflected its belief of the wisest course available. Indeed, the leeway provided by the deliberate-speed formula enabled the Court to react “flexibly and politically in accordance with their assessment of local situations, and to feel their way toward the kind of decree which in this place or in that would be most likely to strengthen influences working toward ultimate compliance” (Bickel, 203). The judiciary branch acting alone failed to achieve real change. Once passage of the Civil Rights Act of 1964 singled that Congress and popular opinion were aligned, however, the Supreme Court felt free to involve itself more intimately in implementation and make meaningful strides to achieving an equitable society.
Conclusion
Brown paved the way towards reform, yet the courts alone could not, or were not willing to, uproot an established way of life. The courts, president, popular opinion, and members of Congress all contributed to passage of the Civil Rights Act of 1964. The Act had a tremendous impact on the civil rights struggle. Not only did the Act have an institutional legacy that secured the necessary resources to combat racial discrimination, but passage of the bill also altered the way most Americans viewed the future of their country. The Civil Rights Act had a “spillover” effect by establishing a principle that would guide future decisions within the policy arena (Kingdon, 190). Soon after the Civil Rights Act passed, Johnson signed the Voting Rights Act of 1965, a statute that promised African Americans equal opportunities to participate in the democratic process. Indeed, legislative successes achieved during this period continue to mobilize proponents of greater change and provide civil rights activists with legitimacy and precedent.
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