Have We Moved beyond the Civil Rights Revolution?
Skrentny, John D., The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. ACKERMAN'S WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION II. STRATEGIES FOR MANAGING EMPLOYMENT IN THE 2000S III. THE PEOPLE AND RACIAL REALISM, PART I: GOVERNMENTS AND THE PROMOTION OF RACIAL REALISM A. Racial Realism in the Schools B. Racial Realism in Law Enforcement IV. THE PEOPLE AND RACIAL REALISM, PART II: THE PRIVATE SECTOR AND THE RACIAL REALIST STRATEGY V. IS RACIAL REALISM THE PEOPLE'S AMENDMENT TO THE CIVIL RIGHTS REVOLUTION?
The constitutional significance of the Civil Rights Revolution, according to Bruce Ackerman's new book, lies not in a series of court cases, but in popular sovereignty and the separation of powers. (1) He identifies Martin Luther King, Jr., Lyndon Johnson, Hubert Humphrey, and Everett Dirksen as key spokespersons (2) for the revolution that had at its heart the elimination of "institutionalized humiliation" based on racial discrimination. (3)
My purpose here is to assess current race relations in America, focusing on employment, in light of Ackerman's argument. My emphasis is not on the current state of employment discrimination, (4) but on what employers or other advocates say they want to be the case in the management of racial difference in workplaces. I argue that the current employer focus on managing racial differences for organizational effectiveness and profit making--a strategy of management that I call "racial realism"--is a significant departure from Ackerman's vision of the Civil Rights Revolution in several respects.
First, though racial realism is prominent in business, the professions, government employment, and media and entertainment, this strategy of managing racial difference has no national spokespersons comparable to King and Johnson. Second, though officials of the executive branch and local governments sometimes practice racial realism when making appointments, racial realism has surprisingly little legal authorization from the courts and no statutory basis. Third, racial realism can harm the interests of nonwhites in ways that sometimes may lead to the kinds of humiliation that Ackerman claims civil rights laws were designed to prevent. Fourth, while some employers and other advocates have used or promoted the benefits of racial realism, this is not the same as the "We the People" popular sovereignty that Ackerman identifies as the foundation for the civil rights developments of the 1960s. While these employers and other advocates are indeed "The People" in a direct sense, they are not popularly elected, and the strategy of racial realism in employment has not been meaningfully debated in any public, deliberative forum.
In my title, I ask whether we are beyond civil rights. What I mean is that there is considerable advocacy for practices occurring in a context of--at best--legal ambiguity. These practices were not a part of the Civil Rights Revolution, and without proper legal guidance, they can violate the values of that revolution, and even result in the kind of institutionalized humiliation that Ackerman argues the revolution was designed to eliminate.
I. ACKERMAN'S WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION
It is impossible to summarize Ackerman's magisterial achievement in these pages. I will instead focus on key parts of his argument that have inspired my own thoughts here. The most important of these is the notion that popular sovereignty provides a quasi-constitutional foundation for the Civil Rights Revolution.
By "Civil Rights Revolution" (capitalized), Ackerman is referring only to the American establishment of racial equality in the twentieth century, (5) but this nevertheless refers to something quite broad. He is interested in the key court decisions, the key statutes (the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Civil Rights Act of 1968), and these statutes' various implementing regulations. …