Individualists in an Age of
CLASSICAL LIBERALS confronted a dilemma with the Civil Rights Act of 1964: several provisions struck down state-sponsored discrimination in the South. This was in keeping with the classical liberal tradition of civil rights—judicious use of federal law and court decisions was an acceptable means to end racial discrimination by the State. However, two sections (or “titles”) mandated nondiscrimination in the private sector, forbidding discrimination in hiring or “public accommodations.” This infringed upon the freedom of association that classical liberals also valued.
Sponsors of the Civil Rights Act mollified critics who feared that these two titles would lead to the government requiring racial discrimination in favor of preferred minorities. To allay such fears, and emphasize the colorblindness of the law, sponsors added section 703(j), stating: “Nothing contained in this title shall be interpreted to require any employer… to grant preferential treatment to any individual or to any group because of race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number of percentage of persons of any race, color, religion, sex, or national origin employed by any employer.”1 Section 706(g) required the government to show that an employer “intentionally” discriminated, rather than simply rely upon statistical underrepresentation as evidence of employment discrimination. This clear language had the backing of civil rights organizations, the Democratic and Republican leadership, and the New York