Restore the Civil Rights Act of 1964 : Congress should correct the Supreme Court’s egregiously faulty interpretations.

The conservative civil-rights agenda is simply a policy of race neutrality, the end of all forms of racial discrimination by public officials and institutions. Its specific objectives are the elimination of racial preferences in public employment, contracting and admission to institutions of higher education and the termination of court-ordered busing for school racial balance. This agenda, happily, requires nothing more drastic or innovative than a reaffirmation by Congress that the Civil Rights Act of 1964, rightly hailed as the greatest civil-rights advance in our history, was intended to mean what it says.

The modern civil-rights era began with the Supreme Court’s 1954 Brown decision, which prohibited school segregation and, it soon appeared, all racial discrimination by government. The purpose of the 1964 law was to extend the Brown protections to discrimination in the private sector. The history of civil-rights law since 1964, however, has been a series of misinterpretations of the various titles, which apply to specific areas of perceived discrimination. The effect has been to convert the prohibition to permission or even requirement of racial discrimination.

Title IV of the 1964 act carefully defines desegregation as “the assignment of students to public schools . . . without regard to their race.” At the insistence of Southern congressmen, Congress added, redundantly, that desegregation did not mean “the assignment of students to public schools in order to overcome racial imbalance.” In 1971, however, in Swann vs. Charlotte-Mecklenberg Board of Education, the Supreme Court upheld as “desegregation” an order requiring the racial assignment and cross-district busing of students to achieve a near-perfect racial balance.

Even though the definition of desegregation was directly contrary to the law--Sen. Sam Ervin said the court had “nullified this act of Congress”--the justices claimed to see no inconsistency. Although it had moved from prohibiting to requiring discrimination, the court insisted that it was merely continuing to enforce Brown and the Civil Rights Act. It appears that Congress can end court-ordered busing for school racial balance--surely the court’s most ambitious and most disastrous social experiment--simply by making clear that the 1971 interpretation is mistaken.

Title VII of the 1964 act prohibits employers from discriminating against “any individual” because of race. In Griggs vs. Duke Power Co. in 1971, the Supreme Court held that this prohibited such standard employment criteria as educational requirements where they disproportionately disqualified blacks, unless an employer could show business necessity. In effect, a requirement that employment decisions be made without regard to race was converted into a requirement that they not be made without taking race into account and that blacks be hired in preference to available better-qualified whites. This decision is probably the source of more litigation than any other in history.

Griggs was carried to its logical conclusion in 1979 in United Steel Workers vs. Weber, in which the court made explicit its view that Title VII was not meant to prohibit discrimination against whites.

Finally, Title VI of the 1964 act provides that “no person” shall be subjected to racial discrimination by any institution that receives federal funds. In the 1978 Bakke case, Justice William J. Brennan Jr. and three others found this prohibition “cryptic,” and Justice Lewis F. Powell Jr. found it “majestic” but equally unclear. These five justices held that Title VI was not meant to prohibit a preference for nonwhites over whites in granting admission to a federally funded medical school. The remaining four justices read Title VI in good faith to mean what it says. Except that this reading failed to get one more vote, racial preferences (“affirmative action”) in admission to institutions of higher education would have long ago ceased to be a controversial issue. Congress can end the controversy by simply reiterating that “person” in Title VI was intended to include whites equally with blacks.

The story of what the Supreme Court has done to the 1964 Civil Rights Act is a story of judicial misbehavior without parallel in law. The justices obviously believed they were pursuing an objective so highly moral as to grant them exemption from the ordinary requirements of morality--that the end justified the means. The justices not only behaved wrongly, but as it turned out, foolishly; racial preferences and compulsory integration are not means to racial equality and mutual respect. Congress got it right in 1964; the way out of our present racial morass is for Congress to reiterate that policy.