The Puzzling Gaps in Federal Civil Rights Law

Yesterday on this blog, I reproduced my supplemental statement to the U.S. Commission on Civil Rights for its campus antisemitism investigation. I simultaneously published a Verdict column describing and praising the Commission's final report on that subject. In today's essay, I want to explore some oddities of federal civil rights law raised by the topic.

In my column, I state that discrimination (or inadequate measures to respond to discrimination) against Jews by a federally funded entity violates Title VI, where the discrimination is based on "Jewishness as a matter of ancestry." Readers unfamiliar with the details of federal civil rights law may wonder why I didn't simply say that such discrimination would violate Title VI as religious discrimination. The short answer is that Title VI forbids discrimination "on the ground of race, color, or national origin" but not on the basis of religion. Anti-Jewish discrimination is sometimes covered only because Jewishness can be an ethnic or national identity as well as a religion.

But why doesn't Title VI expressly apply to religious discrimination? And while we're at it, why does Title II forbid discrimination based on "race, color, religion, or national origin" but not sex? Why, when Congress enacted Title IX, which does bar discrimination based on sex in federally funded educational institutions, did it do so as a freestanding new statute rather than as an amendment to Title VI? Here, I'll give a brief causal account but then question the normative justification for the resulting hodgepodge.

Let's begin with the topic that inspired this exploration: religious discrimination per Title VI. The omission was not accidental. During the congressional debate over the 1964 Civil Rights Act, Tennessee Senator Al Gore Sr. specifically objected to the fact that religious discrimination, which is covered by Titles II and VII, was left out of Title VI. Pennsylvania Senator Joseph Clark answered that it was unnecessary to include discrimination based on religion in Title VI because it was already barred by the Establishment Clause. Clark said "it would be quite improper, under the Constitution to give aid to a religious institution which deliberately excluded anyone from any other faith." That was a bad answer when it was given and an even worse one today.

Senator Clark's answer made little sense even when he gave it because, even if the federal government were giving no funds to any religious institutions, there is value in forbidding religious discrimination by secular ones. Harvard was founded in 1636 by Puritans "dreading to leave an illiterate ministry to the churches" but by the early 18th century it was known as a liberal secular bastion, which led some pious and disaffected Harvard men to found Yale as a more religious college. Harvard added and then dropped "Christ" from its shield in the 19th century, and it has been fully secular and non-denominational ever since. Yet that did not prevent Harvard from imposing a cap on the number of Jews admitted in the 1920s. Thus, in 1964, it should have been obvious that a federally funded secular institution can engage in religious discrimination.

In any event, now that the Establishment Clause has been gutted, it makes no sense to say that Title VI is unnecessary as applied to religious institutions. The Rehnquist and especially Roberts Courts have utterly transformed Religion Clause doctrine, converting what was once a constitutional prohibition on aid to religious institutions into an obligation to provide such aid on the same basis as aid to comparable (broadly defined) secular institutions.

To be sure, it can be and has been argued that religion is rightly excluded from Title VI to preserve the ability of religious colleges, universities, and other grantees to favor co-religionists. (Note that this argument is inconsistent with Senator Clark's contention that no such institutions get federal aid, but never mind.) But that is an inadequate explanation. If one is concerned about such things, one could give religious institutions a carveout in exactly the way that Title VII contains a carveout for religious employers.

Accordingly, there never was and still isn't a good reason why Title VI doesn't cover religious discrimination.

What about Title II's omission of sex discrimination? Here the question might be better posed as its mirror image: why did the original Civil Rights Act forbid sex discrimination in employment but not in either public accommodations or federally funded entities? According to one familiar but hotly contested story, Representative Howard Smith of Virginia, who was a segregationist, moved to amend Title VII to include "sex" in the hope that this would act as a poison pill and thus kill the whole bill, but it backfired. I'm not sufficiently familiar with the original sources to have a strong opinion about whether that account is correct, but whether or not it is, it leaves a small puzzle and a larger puzzle. The small puzzle is why, whether Smith was trying to poison the bill or was genuinely a feminist, he sought to amend the bill to forbid sex discrimination in employment but not in public accommodations or federally funded entities.

The larger puzzle is why Title II to this day doesn't cover sex discrimination. In 1972, Congress enacted Title IX, forbidding sex discrimination (with some qualifications in the original version and in later amendments) in federally funded educational institutions. Thus, Congress certainly was aware of the possibility of adding "sex" as a forbidden ground to federal civil rights law. So why has it never done so with respect to public accommodations?

I don't have a good answer to that question. It's not as though there's something special about public accommodations laws that makes a prohibition on sex discrimination a poor fit. Every state and the District of Columbia has a public accommodations law that covers sex discrimination. And when Congress enacted the Americans With Disabilities Act, it included a public accommodations provision. It imposes an obligation  "to make reasonable modifications in policies, practices, or procedures" to accommodate "individuals with disabilities." Thus, compliance with the ADA public accommodations provision is almost certainly more costly for businesses than would be an expansion of Title II to cover sex. And yet Congress hasn't expanded Title II to cover sex.

We are thus left with a bit of a mystery. Perhaps another way of putting the point is that federal civil rights law includes a jumble of inconsistencies as a result of unprincipled political compromises. A cynic might say: What else is new? That's the nature of legislation. I don't disagree, but given the status of the 1964 Civil Rights Act as what Bill Eskridge and John Ferejohn called a "super-statute," it's worth noting that in its mishmash of coverage, it's not all that super.

-- Michael C. Dorf