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Freedom Summer is considered pivotal in President Lyndon Johnson’s decision to introduce the Voting Rights Act in the spring of 1965. But during that same summer, Congress passed a legal landmark that was arguably even more significant: the Civil Rights Act of 1964, which prohibited racial discrimination in public accommodations.
It wasn’t the first such effort, says Maya Sen, assistant professor of political science at Rochester. The legal twists and technicalities on the road to ending legal segregation began nearly a century earlier. Sen, who joined the faculty in 2012, holds a law degree in addition to a doctorate in political science and teaches courses on law, judicial politics, and the politics of race and ethnicity in the United States.
From a legal standpoint, why was the Civil Rights Act of 1964 so significant?
It was significant in two major ways. First, we think of the Supreme Court ruling in Brown v. Board of Education in 1954 as being that definitive moment when we knew that separate was inherently unequal and that segregation was no longer the law of the land. It galvanized the civil rights movement, starting with the Montgomery bus boycott. Segregation was still the informal law of the land, even if it had been declared unconstitutional. As several political scientists have shown, the percentage of African-American children attending desegregated schools in the South was close to zero for many years after the Brown rulings. It wasn’t until passage of the Civil Rights Act that things changed. The new law called for desegregation of schools and empowered the federal government to sue for enforcement. One could say that the Civil Rights Act really implemented the spirit of the Brown rulings.
Second, it outlawed discrimination in places of public accommodation, such as hotels and restaurants.
President Ulysses Grant signed into law the Civil Rights Act of 1875, also outlawing discrimination in public accommodations. Why did the 1964 law succeed while this one has been all but forgotten?
The 1875 act was enacted under Congress’s authority under the Enforcement Clause of the 14th Amendment, and the Supreme Court ruled very soon after that Congress had exceeded its authority under that clause. But the 1964 act was not passed under the 14th Amendment. It was actually passed under Congress’s authority to regulate interstate commercial activities, what we would call the Commerce Clause. This is an important distinction, and it led the court to uphold the constitutionality of the Civil Rights Act in 1964. It’s hard to know where we would be today were it not for the 1964 law.
Do you think the constitutionality of the Civil Rights Act is secure?
There have been challenges as to whether the law usurps Congress’s authority under the Commerce Clause—i.e., whether this really constitutes interstate commerce as the founders intended it. It appears to be settled that the constitutionality of the law isn’t in question.
Whether there continues to be popular will in support for the Civil Rights Act is a different question. And I think there continues to be. We’ve agreed as a society that it’s wrong for hotels, movie theaters, and restaurants to discriminate against customers solely because of their race or ethnicity.
Next year marks the 50th anniversary of the Voting Rights Act. Last year, the Supreme Court struck down a portion of that law. What was the significance of that ruling?
In Shelby County v. Holder, the Supreme Court struck down the formula used to determine which jurisdictions were “covered” for purposes of the Voting Rights Act, a designation that triggers additional scrutiny from the Department of Justice. The coverage formula struck down by the Supreme Court is based on historical data. Chief Justice John Roberts, who wrote the opinion, said we can’t rely on a formula that uses 40-year-old data. He argued, quite reasonably to a lot of people, that a lot has changed in the last few decades.
It’s not that the entire act is invalid after Shelby County, or that it can’t be worked through. But it does raise the question of whether Congress will try to rewrite the coverage formula that Shelby County struck down. The Voting Rights Act has in the past enjoyed broad, bipartisan support. For example, the last time it was reauthorized was in 2006, and that was under a Republican president and a Republican Congress. So there is good support for it. In addition, the Voting Rights Act has been by most markers quite successful. In some states, the percentage of eligible black registered voters went from approximately 10 percent to 60 or 70 percent.
Time will tell whether Congress will take up the challenges posed by the Shelby County decision.
—Interview by Karen McCally ’02 (PhD)
