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The other civil rights movement

Lawyers, bureaucrats, and even Richard Nixon empowered minorities. Is their work finished?

SIXTY YEARS AGO, the Carnegie Corporation commissioned a Swedish economist named Gunnar Myrdal to investigate what was then called ``the Negro problem.'' ``The American Dilemma,'' Myrdal's 1,500-page report, won him an international reputation and eventually the Nobel Prize. ``There is no doubt,'' Myrdal wrote matter-of-factly, ``that the overwhelming majority of white Americans desire that there be as few Negroes as possible in America.''

The civil rights revolution set out to change all that. While only the willfully self-deluded believe that we have remade ourselves into the Peaceable Kingdom, what's remarkable is the extent to which this revolution has succeeded. Between the mid-1960s and the mid-1970s an epiphany decade in American politics officially sanctioned discrimination was wiped off the books.

John Skrentny's important recent book, ``The Minority Rights Revolution'' (Harvard), adds new twists to this oft-told story: While blacks led the way, Asians, Hispanics, women, gays, and the disabled benefited just as much from the civil rights movement. But if African-Americans could rely on powerful leaders and mass activism, the groups that followed in their footsteps won their powerful new rights not in the streets but through the work of bureaucrats, lawyers, and judges. Those victories changed America dramatically, and perhaps irreversibly. As recent Supreme Court decisions supporting affirmative action and gay rights show, the minority rights revolution continues to unfold, even in what might appear an unpropitious time.

. . .

So much has changed, and so quickly, that it is difficult even to recall practices that were taken for granted barely two generations ago. Consider what was commonplace in education. School principals in the Southwest expelled students who dared to speak Spanish on the playground, and the same treatment was given to native French-speakers in Louisiana. Miscreant students had fewer rights than accused criminals. Athletics was a boys' club, with girls relegated to the cheerleading squad. Native American children were shipped off to government-run boarding schools, where they were drugged with Ritalin into submissiveness as their history and traditions leeched out of them. Mildly retarded or emotionally troubled youngsters got little more than babysitting in classrooms far from ``normal'' students. Severely disabled youngsters, regarded as ``uneducable,'' were locked away in institutions or left to vegetate at home.

It's widely believed that it took a tsunami of protest to make these practices illegal. This was certainly true for African-Americans. Forty years ago today, a quarter of a million people came to Washington, D.C. to hear Rev. Martin Luther King Jr. deliver his ``I Have a Dream'' speech, and in 1964 70,000 volunteers defied death threats to help register disenfranchised Southern blacks in ``Freedom Summer.'' But Skrentny draws on mountains of government memos and reports to show how radically different was the situation for Native Americans, Latinos, and the disabled. Here, progressive-minded bureaucrats, reformist lawyers, and savvy advocacy groups collaborated to bring about lasting change. By the early 1970s, Indian boarding schools were being shuttered, non-English-speaking children were being taught in their native languages, and millions of disabled children were ``mainstreamed'' into normal classrooms.

. . .

I myself was a bit player in this revolution. Barely six months after graduating from law school in 1968, I became the first director of the federally funded Harvard Center for Law and Education. Those were heady times for a group of twentysomething attorneys who barely knew the way to the courthouse. We successfully sued school districts for misspending federal funds earmarked for poor kids and won the right for misbehaving students to tell their side of the story rather than simply being expelled.

On a sweltering spring day in 1971 I sat in a Philadelphia courtroom, one of the attorneys representing the Pennsylvania Association of Retarded Children in a case challenging Pennsylvania's refusal to provide any education for severely handicapped youngsters. During the first day of a trial scheduled to run for several weeks, the judge heard from a bevy of experts who testified that all children, even the most severely handicapped, could benefit from an education. The state's lawyers didn't ask a single question, and that same night they threw in the towel. The court-sanctioned agreement between the advocacy group and the state became the template for the federal legislation that entitles all children to a ``free and appropriate public education.''

What seemed to be a sweeping legal victory was really a setup. Although no one said so out loud, the young lawyers and the state education bureaucrats were in perfect accord about what needed to be done. But the legislature wasn't prepared to pony up more money for handicapped children unless forced to do so, and so the advocates for these youngsters, inside as well as outside government, used the court to raid the state treasury on behalf of their clientele.

This end run around majority rule wasn't so unusual. Whether the beneficiaries were Latinos or Asian-Americans or women, the new rules didn't emerge from grass-roots political pressure. Instead they were crafted by a handful of self-styled reformers. Whether they ran shoestring advocacy groups or migrated to work inside the government, these advocates ``meaning entrepreneurs,'' Skrentny calls them changed the way their constituencies were understood. They effectively created new official minorities who could then demand special help from the government. And if those who weren't part of an official minority - the working class, for instance, or old-line ethnic groups - resented losing out, there wasn't much they could do about it. Remarkably, this process seemed so politically cost-free at the time that Johnson Democrats and Nixon Republicans alike became minority rights enthusiasts.

. . .

In 1964, few people predicted the direction that the minority rights revolution would take. When the landmark civil rights legislation of that year was being drafted, it was not entirely obvious who, besides African-Americans, merited government protection against discrimination. The NAACP had pushed civil rights legislation for decades, but no national organization actively lobbied or litigated on behalf of any other group.

Native Americans and Asian-Americans had suffered through generations of discrimination, and without any urging on their part `60s-era civil rights regulations covered them under the legal umbrella that bars discrimination on the basis of race or color. The racial and ethnic diversity of Hispanics - a category that includes white Chileans, black Dominicans and Mexico mestizos - made their minority status more problematic. Yet from the outset officials in the fledgling civil rights agencies ignored this inconvenient fact and designated Hispanics as an official minority, victimized by their ``national origin.''

Women also came under the rights umbrella, even though the provision in the Civil Rights Act outlawing discrimination on the basis of sex was inserted at the twenty-third hour by a conservative Southern congressman as a ploy to kill the bill. Many prominent women, unwilling to dilute the focus on blacks, had argued against the provision. But no matter. The legislation made women a legally recognized minority, the National Organization for Women emerged in its aftermath, and with some prodding from the new women's rights movement the mandarins in the civil rights agencies took it from there.

The rights movement reached its zenith early in Richard Nixon's first term. A 1969 executive order demanded ``goals and timetables'' for hiring minorities in the construction industry. Working in tandem, the Justice Department, the Department of Health, Education and Welfare, and the courts desegregated hundreds of schools across the South. But Nixon soured on minority rights in his second term, when he played to the ``silent majority.'' Heavy-handed Carter administration regulations aroused widespread hostility; and the Reagan administration did almost nothing to enforce civil rights laws. While George Bush pere did sign the Americans with Disabilities Act, the most far-reaching civil rights legislation since the 1960s, he also picked Clarence Thomas to head the Equal Employment Opportunity Commission, effectively ending aggressive enforcement in that area. Bill Clinton, despite a remarkable talent for using the bully pulpit to promote social justice, was too mired in sexual politics of his own making to move much beyond rhetoric.

These days, the talk among civil rights advocates is all about the counter-revolution in minority rights. School desegregation has been undone by demographic reality, judicial fatigue and the absence of a vocal pro-integration constituency. Voters in several states, most recently Massachusetts, have rejected bilingual education. In California, polls show a slim majority support an upcoming ballot measure, sponsored by anti-affirmative action crusader Ward Connerly, which bans all racial data-gathering.

But minority rights are hardly on life support. Consider the case of Title IX. When that measure became law in 1970, just one high school girl in 27 played a sport. Now the figure is one in three. At the collegiate level, women's participation has gone up five-fold, and a new cadre of fans has emerged: 9.5 million spectators attended women's basketball games last year. While there's a case to be made that Title IX has unfairly penalized smaller men's sports like wrestling and gymnastics, that argument has no political traction. Last winter, after a storm of protest, Education Secretary Rod Paige swiftly disowned a report calling for modest relaxation of the equity rules.

Much the same is true for affirmative action. Even as the Bush administration filed a brief against the University of Michigan's policies, the president also spoke up in favor of ``racial diversity in higher education'' and quietly praised the Court's decision. Meanwhile, 64 briefs were filed in support of the university, representing a ``Who's Who'' of the business and higher education establishment. Although Ward Connerly vows to put California-style bans on affirmative action on the ballots in other states, California's public universities have found ingenious ways to skirt these rules. By whatever name, affirmative action is likely to endure.

Fundamental questions about minority rights are still being debated: Who counts as a minority? And what policies truly serve a minority's interests? Those who argue against bilingual education, for example, aren't engaged in old-fashioned immigrant-bashing. On the contrary, they contend - and not without empirical justification - that by failing to teach students English as quickly as possible, bilingual education can harm those it is supposed to help. In California, a ballot measure called ``English for the Children'' passed with 60% of the vote; nearly 40 percent of the Hispanic voters, and a majority of Asian-Americans, voted yes.

The meaning of minority rights will keep evolving, even as the population changes. Yesterday the issue was school segregation; today it's the treatment of immigrants and asylum seekers; tomorrow, perhaps, it will be collecting racial data. But the revolution hasn't run its course. While bigotry persists, it has no constituency. Remember what happened to Trent Lott?

David L. Kirp is Professor of Public Policy at the Goldman School of Public Policy, at the University of California at Berkeley. His new book, ``Shakespeare, Einstein, and the Bottom Line: The Marketing of Higher Education,'' will be published by Harvard University Press in November.

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