Since the Civil War, Congress has adopted a number of statutes designed to supplement and expand upon the prohibitions of the Thirteenth, Fourteenth and Fifteenth Amendments in an effort to eliminate racial discrimination in a broad range of governmental, economic and social activity.
(a) The 1866 and 1871 Civil Rights Acts. These post-Civil War, Reconstruction Era statutes prohibit racial discrimination in both the civil and criminal arenas. As codified at 42 U.S.C. sec. 1981-85, racial discrimination is prohibited in the making and enforcement of private contracts, including employment, education, health care and recreational facilities (sec. 1981) and in the inheritance, purchase, sale or lease of real and personal property (sec. 1982). They also create a cause of action for civil damages against anyone who under "color of law" subjects another to unlawful discrimination (sec. 1983), as well as those who conspire to deprive individuals of their federally secured rights (sec. 1985). Similar prohibitions apply in the criminal context, including the prohibition against conspiracies (public or private) to "injure, oppress, threaten or intimidate" any person in the exercise of any Constitutional or other federally protected right (18 U.S.C. sec. 241); and against the willful deprivation of rights under "color of law" (18 U.S.C. sec. 242) (used most frequently to prosecute law enforcement officials for acts of excessive force).
With its review of The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, in 1873 the U.S. Supreme Court had its first opportunity to examine the scope of the Reconstruction amendments to the U.S. Constitution, and thereby establish the extent of the Federal government's authority to legislate in the area of civil rights. In rejecting a Thirteenth and Fourteenth Amendment challenge to a Louisiana statute granting a monopoly to engage in the slaughterhouse business in New Orleans, the Court concluded that neither the Thirteenth Amendment nor the privileges and immunities or due process clauses of the Fourteenth Amendment could be interpreted to create a prohibition against discrimination by the States against groups of their citizens. Such a reading, the Court held, would "radically [change] the whole theory of the relations of the State and Federal governments to each other and both of these governments of the people."
The Supreme Court's opinion in the Slaughter-House Cases substantially slowed the momentum to provide federal civil rights protections during the Reconstruction Era. Based on the Court's reasoning, numerous statutes enacted for the protection of the newly freed slaves were invalidated. This judicial dismantling of Reconstruction Era legislation was accompanied by a collapse in the political coalition behind the Reconstruction movement. The result was a hodge-podge of state civil rights protections, many of which were either weak, non-existent, or rarely enforced. It was not until the mid-twentieth century and the passage of the Civil Rights Act of 1964, when strong, comprehensive federal protection for civil rights was established.
(b) The Civil Rights Act of 1964. Often described as the most important civil rights legislation in U.S. law, this statute prohibits discriminatory acts involving public accommodation (Title II), education (Title IV), federally-funded programs (Title VI) and employment (Title VII). This legislation has been repeatedly amended in the years since 1964. See, e.g., Pub.L. 102-166 (1991) (establishing the burden of proof in Title VII disparate impact cases, prohibiting the discriminatory use of test scores, refining the definition of an unlawful business practice, and extending coverage to U.S.-controlled foreign corporations); Pub.L. 92-261, sec. 2(2) (1972) (extending the statute to state and local government employers, eliminating the exemption for the employment of individuals engaged in the educational activities of non-religious educational institutions, and extending its coverage to applicants for employment or membership in organizations); see also Glass Ceiling Act, Pub.L.102-166, Title II (1991) (establishing a commission to study issues related to the under-representation of women and minorities in management and decision-making positions in business).
(i) Title II of the Act, codified at 42 U.S.C. sec. 2000a, prohibits discrimination on the basis of "race, color, religion or national origin" in places of "public accommodation," which are defined to include establishments affecting commerce that are hotels, motels and other lodging, restaurants and other places serving food, theaters, concert halls, sports stadiums and other places of entertainment or exhibition and gasoline stations.
(ii) Title IV, codified at 42 U.S.C. sec. 2000c et seq., provides for the orderly desegregation of public schools and for non-discriminatory admissions to public colleges and universities.
(iii) Title VI, codified at 42 U.S.C. sec. 2000d et seq., provides that no person in the United States shall be excluded from participation in, or denied the benefits of, any federally-funded or assisted program or activity on account of race, color or national origin. This provision has had a particularly salutary effect in the continuing efforts to eliminate de jure school and housing segregation.
(iv) Title VII, codified at 42 U.S.C. sec. 2000e et seq., is the primary federal statute addressing discrimination in employment. Subject to certain exceptions, it prohibits discrimination on the basis of, inter alia, race, color and national origin in hiring, compensation, conditions of employment and dismissals by employers (defined as those that employ more than fifteen employees), labor organizations and employment agencies affecting commerce. In addition, employers are prohibited from engaging in intentional discrimination on the basis of race by 42 U.S.C. section 1981. Complaints under Title VII are initially filed with the Equal Employment Opportunity Commission. Those complaints filed against state or local government employers can be referred to the Department of Justice for enforcement in federal court. In 1991, Congress amended Title VII to provide additional remedies for intentional discrimination in the workplace.
(c) The Voting Rights Act of 1965. Among the most fundamental rights in any democratic system is the right to participate freely in the government of one's country without discrimination on the basis of race, color or national origin. In the United States, the Fifteenth Amendment, ratified in 1870, prohibits denial or abridgement of the right to vote on account of race, color or previous condition of servitude. While in the northern, non-slave-holding states, Blacks frequently (but not uniformly) were already enfranchised, the Fifteenth Amendment and legislation adopted at that time to enforce it did not lead to the permanent enfranchisement of Blacks in the former slave-holding states. In response to the Fifteenth Amendment, many states, through a combination of physical and economic coercion and through the use of state legal systems, almost totally excluded Blacks from the political process in several southern states by the end of the 19th century. Through the work of civil rights activists such as Martin Luther King, Jr., the NAACP Legal Defense Fund and others, a nation-wide political movement created a sea-change in the country by the middle of the 20th Century.
As a result, through a series of lawsuits decided by the Supreme Court of the United States, Civil Rights Acts enacted by the United States Congress in 1957, 1960, and 1964, and especially the Voting Rights Act of 1965, Blacks and other racial and ethnic minorities have gained the right to vote free from racial discrimination in every part of the United States.
The Voting Rights Act has been extended or strengthened by Congress on several occasions (1970, 1975, 1982, and 1992) and has been interpreted or amended to protect all racial or ethnic minority groups, including language minorities. The Act authorizes the United States Attorney General and private parties to bring lawsuits in federal court to enforce the Fifteenth Amendment to ensure that minority voters are afforded an equal opportunity to elect their candidates of choice to state, local, and federal office. The Act also bans the use of literacy tests and other tests and devices which had been applied in a discriminatory manner to disqualify eligible minority applicants from being able to register to vote. In addition to general provisions banning discriminatory practices that apply to the entire nation, the Act has specialized mechanisms that apply to areas of the country with the most severe history of discrimination against Blacks. This part of the Act requires federal pre-approval for any proposed changes in voting laws and practices to prevent the implementation of new discriminatory laws and practices; authorization of federal observers to monitor elections to assure that minority voters are permitted to vote free from discrimination or intimidation, and that their votes are actually counted; and the provision of bilingual voting information and assistance is required in certain areas of the country.
(d) The Fair Housing Act. This statute, originally enacted as Title VIII of the Civil Rights Act of 1968 and amended by the Fair Housing Amendments Act of 1988, is codified at 42 U.S.C. sec. 3601-19. It prohibits discrimination on the grounds, inter alia, of race, color, religion, or national origin in the sale or rental of housing as well as in other real estate related transactions (i.e., lending, insurance, and appraisal practices) and brokerage services. Exceptions are provided for private clubs, single family dwellings and owner-occupied boarding houses with no more than three other family units, except when the owner uses the services of real estate brokers or others. It also includes a criminal provision, 42 U.S.C. sec. 3631, which makes it a federal crime for any person to use force or the threat of force willfully to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with any person because of his or her race, color, religion, sex or handicap, and because he or she is exercising federally protected housing rights. This statute is used, for example, to prosecute cross-burnings and other racially-motivated threats and violence directed at people in their homes.
(e) Civil Rights Act of 1968. One of the statutes promulgated under this Act was 18 U.S.C. sec. 245, a criminal statute which, inter alia, prohibits any person from using force or willful threats to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with any person because of his or her race, color, religion or national origin, and because he or she is engaging in certain federally protected rights, including rights related to education, employment, and the use of public facilities and establishments which serve the public.
(f) Protection of Religious Property. Passed in 1988, and amended in 1996, 18 U.S.C. section 247 makes it a crime to deface, damage or destroy religious property because of the race, color, or ethnic characteristics of any individual associated with that property. This statute has been used, for example, to prosecute racially-motivated church arson, and the painting of anti-Semitic graffiti on and within a Jewish synagogue.
(g) American Indian Religious Freedom Act, 42
U.S.C. sec. 1996. Enacted in 1978, then amended in 1996, this Act resolves that it shall be the policy of the United States to protect and preserve for the American Indian, Eskimo, Aleut and Native Hawaiian the inherent right to freedom to believe, express and exercise their traditional religions, including, inter alia, access to religious sites, use and possession of sacred objects and freedom to worship through ceremonial and traditional rites. Federal agencies are directed to evaluate their policies and procedures to determine if changes are needed to ensure that such rights and freedoms are not disrupted by agency practices. The courts have interpreted this act to require that the views of Indian leaders be obtained and considered when a proposed land use might conflict with traditional Indian religious beliefs or practices, and that unnecessary interference with Indian religious practices be avoided during project implementation.
(h) Protection of Traditional Rights in American
Samoa, 48 U.S.C. sec. 1661(a). In 1929 the Congress accepted and ratified the cessions of Tutuila and Aunu'u (1900) and Manu'a (1904) by the islands' traditional leaders and thereby confirmed that the Federal government would "respect and protect the individual rights of all people dwelling in Tutuila and Aunu'u to their lands and other property" and "no[t] discriminat[e] in the suffrages and political privileges between the present residents of said Islands [Manu'a] and citizens of the United States dwelling therein, and also [recognize] . . . the rights of . . . all people concerning their property according to their customs."
(i) Equal Credit Opportunity Act, 15 U.S.C. sec. 1691 et seq. The Equal Credit Opportunity Act makes it unlawful for any creditor to discriminate in a credit transaction on the basis of race, color, religion, national origin, sex, marital status, age, or source of income (e.g., public benefits). Enforcement has focused on all aspects of the lending process from marketing to underwriting and pricing. For example, in 1997 the U.S. Department of Justice filed and settled a case alleging that Albank of New York engaged in so-called "redlining" by refusing to take mortgage loans from areas with significant minority populations. The settlement included an agreement by the bank to provide $55 million dollars at below market rates to previously redlined areas. Cases have been brought on behalf of Blacks, Hispanics, Native Americans, women and the elderly both in major metropolitan areas such as Boston and Los Angeles and in less populated areas such as Mississippi and South Dakota.
(j) Violent Crime Control and Law Enforcement Act of 1994. The Violent Crime Control and Law Enforcement Act of 1994 includes a provision, 42 U.S.C. sec. 14141, that authorizes the Department of Justice to file suit to enjoin a pattern or practice of unconstitutional or unlawful conduct by a state or local law enforcement agency. Misconduct that may be addressed includes discriminatory police practices, use of excessive force, false arrests, and improper searches and seizures.
(k) Anti-discrimination Provision of the Immigration and Nationality Act
(INA), 8 U.S.C. sec. 1324b. This law was enacted in 1986 in response to concerns that employers, faced with sanctions against knowingly hiring unauthorized immigrants, would refuse to hire people they perceived to be foreign based on their accent or appearance. The law prohibits citizenship status and national origin discrimination with respect to hiring, firing, or referral or recruitment for a fee. The law also prohibits unfair documentary practices with respect to employment eligibility verification. All U.S. citizens and nationals and work-authorized immigrants are protected from national origin discrimination and unfair documentary practices. U.S. citizens and nationals, permanent residents, asylees, refugees, and temporary residents are protected from citizenship status discrimination
(l) Youth Conservation Corps Act of 1970, 16
U.S.C. sec. 1704. This Act requires assurances of nondiscrimination in employment within the State Youth Conservation Corps in order for states to receive funds to cover Youth Conservation Corps projects.
(m) Emergency Insured Student Loan Act of 1969, 20 U.S.C. sec. 1078(c)(2)(F). This act requires adequate assurances that the loan guaranty agency will not engage in any pattern or practice which results in a denial of a borrower's access to loans under this part because of the borrower's race, sex, color, religion, national origin, age, disabled status, income, attendance at a particular eligible institution within the area served by the guaranty agency, length of the borrower's educational program, or the borrower's academic year in school.
(n) Higher Education Act of 1965, 20 U.S.C. sec. 1011 et seq. This law provides funds to higher education institutions and prohibits the schools from using these funds in programs or contracts with discriminatory provisions barring students on the basis of race, national origin, sex, or religion. Through subsequent amendments, particularly those made in 1992 and in 1998, the Act has added programs which provide insurance assistance to historically Black colleges and universities, Hispanic serving institutions, and tribal colleges, and which encourage youth from disadvantaged backgrounds to gain early awareness and readiness for post-secondary education, e.g. through the "Gear-Up" program, which funds partnerships of high-poverty middle schools, colleges and universities, community organizations, and businesses.
(o) Bilingual Education Act of 1967, 20 U.S.C. sec. 7401 et seq. This statute was enacted to ensure equal educational opportunities for all children and youth, through developing and funding programs to assist limited-English proficient children meet the same standards for academic performance expected of all children.
(p) The Equal Educational Opportunities Act of 1974, 20
U.S.C. sec. 1703. This law requires the provision of equal educational opportunities in all public schools, whether or not they are federally funded, and it prohibits discrimination on the basis of race, national origin, color, or sex; including the failure to take appropriate action to overcome language barriers that impede equal participation in instructional programs.
(q) Elementary and Secondary Education Act of 1965, 20
U.S.C. sec. 6301 et seq. This Act provides federal aid to elementary and secondary schools, reinforcing the civil rights protections included in the 1964 Civil Rights Act. In particular, it provides for services to meet the special education needs of educationally deprived children, especially those children from low-income families.
(r) Federal Family Education Loan Program, 20
U.S.C. sec. 1087-1(e)(3). This Act provides special allowance payments for loans financed by proceeds of tax-exempt obligations. It prohibits denial of a borrower's access to loans under this part because of the borrower's race, sex, color, religion, national origin, age, handicapped status, income, attendance at a particular eligible institution, length of the borrower's educational program, or the borrower's academic year in school.
(s) Improving America's Schools Act of
1994, 20 U.S.C. sec. 7502(b)(4). This Act applies to any federally assisted education program. It prohibits exclusion of students on the bases of surname or language-minority status. This Act also made far-reaching changes in the Elementary and Secondary Education Act to enable schools to provide opportunities for children to meet challenging State content and performance standards.
(t) Alaska Natural Gas Transportation Act of
1976, 15 U.S.C. sec. 719o. This Act provides funding for delivery of Alaska natural gas. It requires implementation of affirmative action policies to prevent discrimination on the basis of race, color, national origin, sex or religion in the issuance of certificates, permits, rights-of-way, leases, or other authorizations under this Act.
(u) Federal Energy Administration Act of
1974, 15 U.S.C. sec. 775. This Act also addresses funding for the delivery of Alaska natural gas. It requires implementation of affirmative action policies to prevent discrimination in programs given certificates, permits, right-of-ways, lease, or other authorizations under this Act. It prohibits discrimination based on race, color, national origin, sex, or religion.
(v) Federal Non-nuclear Energy Research and Development Act of 1974, 42
U.S.C. sec. 5919(v). This Act provides funds for developing new non-nuclear energy options. It prohibits discrimination based on race, color, national origin, sex, or religion.
(w) Energy Conservation in Existing Buildings Act of
1976, 42 U.S.C. sec. 6870. This Act provides weatherization assistance for low-income persons. It prohibits discrimination based on race, color, national origin, sex, or any other factor specified in any federal law prohibiting discrimination.
(x) Violent Crime Control and Law Enforcement Act
of 1994, 31 U.S.C. sec. 6711. This Act provides funding for crime prevention through education treatment, substance abuse or job programs. It prohibits discrimination based on race, color, national origin, sex, religion, age, and disability.
(y) Housing and Community Development Act of 1974
(Title I), 42 U.S.C. sec. 5309. This Act authorizes the Community Development Block Grant. It prohibits discrimination based on race, color, national origin, sex, religion, age, and disability.
(z) Home Investment Partnerships
Act/National Affordable Housing Act of 1975, 42 U.S.C. sec. 12832. This Act provides funding to increase affordable housing (including rental housing) for very low-income Americans. It prohibits discrimination based on race, color, national origin, sex, religion, age, and disability.
(aa) Mining and Mineral Resources Institutes Act of 1984, 30 U.S.C. sec. 1222. This Act sets out recommendations regarding funding for mining and mineral resources research institutes. The Act stipulates that funding is to be provided without regard to, or on the basis of, race, sex or religion.
(bb) Trans-Alaska Pipeline Authorization Act of 1973, 43 U.S.C. sec. 1651(note). This Act provided funds for the construction of the Trans-Alaska Pipeline. It requires the implementation of affirmative action policies to prevent discrimination on the bases of race, color, national origin, sex, and religion in the issuance of certificates, permits, rights-of-way, leases or other authorizations under the Act.
(cc) Federal Land Policy and Management Act of 1976, 43 U.S.C. sec. 1747(10). This Act provides loans to states to relieve social/economic impacts from certain mining. It prohibits discrimination on the bases of race, color, national origin, sex, and religion.
(dd) Outer Continental Shelf Lands Act Amendments, 43 U.S.C. sec. 1863. This Act provides funds under the Outer Continental Shelf Lands Act and prohibits discrimination on the bases of race, color, national origin, sex, and religion.
(ee) 48 U.S.C. sec. 1708. This section addresses conveyances of certain submerged land of U.S. territories and prohibits discrimination on the bases of race, color, national origin, sex, religion and ancestry in making such conveyances.
(ff) Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. sec. 3789d. This Act provides funding for state and local justice system improvements. It prohibits discrimination on the bases of race, color, national origin, sex, and religion.
(gg) Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. sec. 5672. This Act, enacted to provide federal assistance to juvenile justice programs nationwide, incorporates the non-discrimination provisions of 42 U.S.C. sec. 3789d, which prohibit discrimination on the bases of race, color, national origin, sex, and religion.
(hh) Justice Assistance Act of 1984, 42 U.S.C. sec. 10504. This Act provides assistance for emergency law enforcement and incorporates non-discrimination provisions at 42 U.S.C. sec. 3789d, which prohibit discrimination on the bases of race, color, national origin, sex, and religion.
(ii) Victims of Crime Act of 1984, 42 U.S.C. sec. 10604. This Act provides assistance for emergency law enforcement and incorporates non-discrimination provisions at 42 U.S.C. sec. 3789d which prohibit discrimination on the bases of race, color, national origin, sex, and religion.
(jj) Workforce Investment Act of 1998, 29 U.S.C. sec. 2938. This Act provides funding for employment, training, literacy, and vocational rehabilitation programs. It prohibits discrimination on the bases of race, color, national origin, sex, religion, age, disability, and political affiliation or belief.
(kk) Foreign Assistance Act of 1961, 22 U.S.C. sec. 2314(g). This Act provides for foreign assistance. It prohibits discrimination on the basis of race, national origin, sex, or religion against U.S. persons participating in the furnishing of this assistance.
(ll) Federal-Aid Highway Act of 1968, 23 U.S.C. sec. 140. This Act provides employment assurances for the receipt of funds for the federal-aid highway systems. It prohibits discrimination on the basis of race, color, national origin, sex, or religion.
(mm) Federal Transit Act, 49 U.S.C. sec. 5332. This Act provides funds for mass transportation programs and prohibits discrimination on the basis of race, color, national origin, sex, religion, or age.
(nn) Airport and Airway Improvement Act, 49 U.S.C. sec. 47123. This Act provides funds for airport and airway improvements and prohibits discrimination on the basis of race, color, national origin, sex, or religion.
(oo) Domestic Volunteer Service/Volunteers in Service to America Act of 1973, 42 U.S.C. sec. 5057. This Act provides funds to foster and expand voluntary citizen service in communities throughout the nation in activities to help the disadvantaged. It prohibits discrimination on the basis of race, color, national origin, sex, religion, age, political affiliation, or disability.
(pp) National and Community Service Act of 1990, 42 U.S.C. sec. 12635. This Act provides federal assistance for national service as job or education training and prohibits discrimination on the basis of race, color, national origin, sex, religion, age, disability, or political affiliation.
(qq) General Education Provisions Act, 20 U.S.C. sec. 1228a. This statute directs the Secretary of Education to require an applicant for assistance under an applicable program administered by the Department to describe in the application the steps the applicant proposes to take to ensure equitable access to, and equitable participation in, the project or activity to be conducted with such assistance by addressing the special needs of students, teachers, and other program beneficiaries in order to overcome barriers to equitable participation, including barriers based on gender, race, color, national origin, disability and age.