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5 I Have a Dream Deferred: The Fall of Fair Employment and the Rise of Affirmative Action As late afternoon turned into dusk on July 2, 1964, Lyndon B. Johnson must have felt a keen sense of exultation as he strode into the East Room of the White House. It was the zenith of his short tenure as president. After clearing a path through the treacherous political thickets of the 88th Congress and enduring one of the longest and most acrimonious filibusters in the history of the Senate, Johnson and his administration had managed to secure safe passage for the Civil Rights Act of 1964. Parts of the bill had been greatly weakened by the political compromises that made it possible, but it was nonetheless an unparalleled legislative achievement. Congress had not passed a comprehensive civil rights bill of such latitude since Reconstruction, nearly a century earlier. Today, only five hours after the House voted to accept the Senate’s version of the bill, Johnson would sign the bill into law. Standing around Johnson during the ceremony was a bipartisan group of congressmen whose support had been critical. In the past three months he had drawn on his legendary political skills to flatter, cajole, implore, and bully Sen. Everett Dirksen (R-IL), Rep. Emanuel Celler (D-NY), Rep. William McCulloch (R-OH), and Sen. Hubert Humphrey (D-MN). Now they took their places next to him as a burst of flash bulbs illuminated their visages for the triumphant, front-page photographs that would appear the next day in newspapers across the country.1 Arrayed beyond the congressmen were many of the men—but few of the women—who had led a decades-long struggle to make the federal government the final guarantor of civil rights. The group included the venerable A. Philip Randolph, president of the Brotherhood of Sleeping Car Porters (BSCP); Roy Wilkins, long-time official and now executive director of the National Association for the Advancement of Colored People (NAACP); Whitney Young, director of the National Urban League (NUL); and Clarence Mitchell, chief lobbyist for the NAACP. Hovering close by was the Reverend Martin Luther King, Jr., head of the Southern Christian Leadership Conference (SCLC) and representative of a more confrontational generation of black leadership, whose campaign of nonviolent direct action against segregation dramatized the dimensions of I HAVE A D RE AM DE FE RR ED 171 the moral dilemma that sociologist Gunnar Myrdal had so eloquently delineated two decades earlier. The significance of the day was not lost on Johnson, who used over seventy-five pens to sign the bill, giving them away as mementos of the occasion. It was indeed a time of celebration and commemoration.2 Yet the high spirits hid the fact that key liberal demands had gone unheeded by Congress. Of these, one of the most important was a provision for the establishment of a robust agency akin to the National Labor Relations Board (NLRB), with the regulatory scope and authority to eradicate job discrimination root and branch. Title VII of the Civil Rights Act covered employment discrimination, but it provided for a rather different system. Its centerpiece was the frail Equal Employment Opportunity Commission (EEOC). Unlike the agency that liberals had sought and conservatives had feared, the EEOC did not wield any direct administrative enforcement powers. If mandatory conciliation proceedings between the aggrieved parties failed, it could only direct workers to federal district court, where they would be forced to pursue their claims against employers or unions through costly, time-consuming litigation. In the years that followed, liberals tried hard to remedy what they viewed as the inherent deficiencies of the legislation. Through the first Nixon administration, they proposed numerous bills that would have turned the EEOC into a regulatory agency in the mold of the NLRB. Such proposals were not without prospects of success. Yet none of them passed in full form. Once in 1966 and then again in 1970, legislation aimed at strengthening the enforcement powers of the EEOC passed one house of Congress only to perish in the other. In 1972, Congress finally did respond with legislation, passing the Equal Employment Opportunity Act. But the new law made only incremental adjustments to the law and left the court-based regulatory model largely intact. In the absence of a strong and centralized federal agency with statutory authority, antidiscrimination policy issued forth from varying and sometimes contradictory institutional sources. Indeed, equal employment opportunity (EEO) policy came...


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