(1) the Class Is So Numerous That Joinder of All Members Is Impracticable
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Rule 23. Class Actions
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
1 (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses. (1) Certification Order.
(A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the
2 class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).
(C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.
(2) Notice.
(A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.
(B) For (b)(3) Classes. For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3). 3 (3) Judgment.
Whether or not favorable to the class, the judgment in a class action must:
(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and
(B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.
(4) Particular Issues.
When appropriate, an action may be brought or maintained as a class action with respect to particular issues.
(5) Subclasses.
When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.
(d) Conducting the Action. (1) In General.
In conducting an action under this rule, the court may issue orders that:
(A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;
(B) require — to protect class members and fairly conduct the action — giving appropriate notice to some or all class
4 members of:
(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;
(C) impose conditions on the representative parties or on intervenors;
(D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or
(E) deal with similar procedural matters.
(2) Combining and Amending Orders.
An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16.
(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. 5 (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval.
(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
(g) Class Counsel. (1) Appointing Class Counsel.
Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
(A) must consider:
6 (i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class;
(B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;
(C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs;
(D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and
(E) may make further orders in connection with the appointment.
(2) Standard for Appointing Class Counsel.
When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of 7 the class.
(3) Interim Counsel.
The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.
(4) Duty of Class Counsel.
Class counsel must fairly and adequately represent the interests of the class.
(h) Attorney’s Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement. The following procedures apply:
(1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.
(2) A class member, or a party from whom payment is sought, may object to the motion.
(3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a).
(4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d)(2)(D). http://www.law.cornell.edu/rules/frcp/Rule23.htm
8 Wal-Mart’s Questions to the United States Supreme Court:
1) Whether common questions existed under rule 23(a)(2)
The Ninth Circuit observed that there were common questions: “whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies” and whether those “policies or practices are discriminatory.” Do the common questions heavily implicate the case’s merits?
To some extent we believe that consideration of a class should be different from a case’s substantive merits. Eisen v. Carlisle & Jacquelin “We find nothing in either the language r history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” (But the facts of this case applied to class notice and not class certification.) General Telephone Co. v. Falcon – The court considering certification must “probe behind the pleadings” and satisfy itself after a rigorous analysis that the class meets Rule 23’s prerequisites.
9 Wal-Mart’s arguments and the arguments of the Dukes dissenters: The plaintiffs must produce “‘significant proof that an employer operated under a general policy of discrimination’ before a class can be certified.” How far should the Courts go in evaluating the plaintiffs’ evidence?
“Under Daubert, a court must first make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." The Daubert court identified the following factors that, although not mandated or exclusive, might be helpful to a court's inquiry:
1. whether the scientific knowledge either can be or has been tested; 2. whether the "theory or technique has been subjected to peer review and publication"; 3. whether the technique has a "known or potential rate of error"; and 4. whether there is "general acceptance" of the scientific technique.13 The Daubert court emphasized that the focus of a Rule 702 inquiry "must be solely on principles and methodology, not on the conclusions that they generate." http://pediatrics.aappublications.org/cgi/content/full/118/5/2192
The Dukes Ninth Circuit Opinion did not conduct a full Daubert analysis. It as “enough that Dr. Bielby presented scientifically reliable evidence tending to show that a common question of fact – i.e., ‘Does Wal’Mart’s policy of decentralized, subjective employment decision making operate to discriminate against female employees?’ exists with respect to all members of the class.” The Dukes dissenters wanted a full Daubert analysis. Wal-Mart challenged whether the theories had been scientifically tested and whether the expert had considered contrary facts and research. Dr. Bielby for the plaintiffs relied on social framework analysis. He concluded ‘that discretionary and subjective elements of Wal-Mart’s personnel system and inadequate oversight and ineffective anti-
10 discrimination efforts contribute to disparities between men and women in their compensation and career trajectories at the company.’ (Mitchell, 136) Social Framework Analysis is identifying policies and practices that are factors in creating and sustaining bias.
“In other words, Dr. Bielby read discovery materials from the case looking for evidence that, in his judgment, indicated whether uniform biased practices were present at Wal-Mart. “ (Mitchell, p. 137)
But there are standard scientific procedures for gathering reliable, representative data for:
1) corporate culture, the uniformity of personnel practices, and diversity measures
2) analyzing archival records
3) providing a fair and reliable narrative review of the literature
4) and for drawing causal inferences.
In Dr. Bielby’s own words, “social framework analysis is a legal term and not a scientific term…Isssues of causality in the social sciences have a long and rich methodological tradition that has nothing to do with social framework analysis.” (Mitchell, 139)
Now, most judges wait to hear motions for class certification until after ruling on motions to dismiss and on motions for summary judgment.
2) whether back pay and punitive damages could be included within a (b)(2) class without running afoul of the due process clause Back pay can be included within a Rule 23(b)(2) class but punitive damages are far more questionable, said the Ninth Circuit.
11 The idea of a mandatory non-opt out class comes from Rule 23(b)(2): (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
“This is exactly what the 1966 Advisory Committee had in mind to further desegregation litigation.” (Burch, 99)
“When Congress enacted Title VII of the 1964 Civil Rights Act, its menu of remedies included a declaratory judgment that the defendant violated the Act in its employment practices and an injunction to prevent the defendant from continuing to discriminate – both clearly equitable remedies. But as civil-rights litigation evolved, the Supreme Court added back pay to the list of available remedies.” (Burch, 99)
People insisted that Title VII back pay was not the same thing as a legal remedy of monetary damages. A legal remedy of monetary damages poses Seventh Amendment issues. The Seventh Amendment In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
1985 – Phillips Petroleum v. Shutts – class members have the right to opt out of a class when their claims involve legal relief. Monetary damages are “property” in the sense of the 5th Amendment Due Process Clause. The Court said that this Due Process right only applied where the claims were wholly or predominately for money damages. 1991 – Congress amended Title VII to add compensatory damages for emotional distress and punitive damages to plaintiffs’ remedial options. But this made it harder for back pay to seem to apply to Rule 23(b)(2).
12 Why not have a (b)(3) claim? 1) Plaintiffs don’t automatically have the right to receive notice or opt out. 2) Common issues don’t have to predominate over individual issues when the class definition includes everyone from “hourly ‘demo girls,’ a women’s-only job handing out free food samples, to cashiers, greeters, and salaried managers.” 1994 – Brown v. Ticor Title Insurance – The Supreme Court granted certiorari to this price-fixing antitrust class action certified in the 9th Circuit under Rule 23(b)(1) and (b)(2), but then dismissed the writ as improvidently granted because the parties settled the dispute.
Afterwards there has been a Circuit Split on the Due Process issue.
5th, 6th, 7th, and 11th Circuits took a strict approach and certified only classes with “incidental damages”. See the 5th Circuit’s Allison v. Citgo Petroleum Corp. “By incidental we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” This allowed wiggle room for back pay but no room for punitive or compensatory damages.
2nd Circuit – A contextual balancing approach – “This approach allowed district courts to certify (b)(2) classes so long as the injunctive or declaratory relief predominated over compensatory and punitive damages and class treatment furthered judicial economy by making the case more efficient.” 9th Circuit – explicitly rejected the majority circuit approach and the 2nd Circuit approach it previously had in Molski v. Gleich. “District courts should evaluate ‘the objective effect of the relief sought’ by considering whether monetary relief will ‘determine[] the key procedures that will be used,’ ‘introduce[] new and significant legal and factual issues,’ ‘require individualized hearings,’ and ‘raise particular due process and manageability concerns.’” (Burch, 102) Back pay was appropriate. “Punitive damages, on the other hand, are unlikely to withstand the new test on remand: they would be decided by a jury, not a judge; they would introduce a new factual question because a punitive-damage award could raise manageability concerns.” (Burch, 102) 13 This suggests a hybrid approach approved by Rule 23(c)(4). But then we still have 7th Amendment concerns about the Seventh Amendment’s Re-examination Clause, preclusion, Wal-Mart’s claim to have the right to rebut the discriminatory inference as to each class member. See the 7th Circuit’s Allen v. International Truck and Engine Corp. for a case that tackles these issues. This could be a way to give Wal-Mart the right to present individual defenses to each plaintiff’s claim for monetary relief. Appellate courts review both class certification and Daubert questions under the abuse of discretion standard, which means that appellate courts reverse district court decisions only after a strong showing that the district court abused its discretion.” (Burch, 98)
Burch, Elizabeth Chamblee, “Introduction: Dukes v. Wal-Mart Stores, Inc.”, 63 Van. L. Rev. 91-104, Oct., 2010. Mitchell, Gregory, “Good Causes and Bad Science”, 63 Van. L. Rev. 133-147, Oct. 2010.
A Case History: The 1964 Civil Rights Act
OverviewThe 1964 Civil Rights Act was a landmark in legislative attempts to improve the quality of life for African Americans and other minority groups. Although civil rights had a long history as a political and legislative issue, the 1960s marked a period of intense activity by the federal government to protect minority rights. The Act did not resolve all problems of discrimination. But it opened the door to further progress by lessening racial restrictions on the use of public facilities, providing more job opportunities, strengthening voting laws, and limiting federal funding of discriminatory aid programs.
The story of the 1964 Civil Rights Act is interesting and instructive because it illustrates how an historically important piece of legislation became part of our nation's heritage. An examination of the Act also provides a way to understand the climate of opinion regarding African American rights, the nature of civil rights activity, the obstacles to political and social change, the role of politics in the way issues are handled, the actions of individual senators and representatives, and the nature of legislative activity in general. The intricate 14 process that makes a bill become law is a combination of all these factors.
Historical Pressure for Legislative ActionAlthough the United States Constitution contains no express reference to federal protection of minority rights, amendments ratified after the Civil War directly addressed the civil rights matter. The 13th, 14th, and 15th amendments outlawed slavery, provided for equal protection under the law, guaranteed citizenship, and protected the right to vote for African American Americans. The amendments also allowed Congress to enforce these provisions by enacting appropriate, specific legislation.
In the nine years spanning 1866 through 1875, Congress passed five major pieces of legislation designed to enact the spirit of the amendments. By the early 20th century, however, further legislative modifications and judicial decisions rendered by the United States Supreme Court restricted severely the application of civil rights measures. As a result, individual states controlled the treatment of blacks, with southern states generally the harshest in their abuse of civil rights. The federal government took very little action to enforce civil rights after 1900. The climate of opinion did not yet favor comprehensive legislative action by Congress to remedy the increasing disregard for the rights of African Americans.
Historical momentum for civil rights legislation picked up speed after 1945 as a result of black migration to northern cities and the experiences of black soldiers in World War II. Bills introduced in Congress regarding employment policy brought the issue of civil rights to the attention of representatives and senators. In 1945, 1947, and 1949, the House of Representatives voted to abolish the poll tax restricting the right to vote. Although the Senate did not join in this effort, the bills signaled a growing interest in protecting civil rights through federal action. The executive branch of government, by Presidential order, likewise became active by ending discrimination in the nation's military forces and in federal employment and work done under government contract.
The Supreme Court joined the civil rights forces in the 1950s and, in the process, added to the historical pressure for sweeping legislation a decade later. In a number of cases after World War II, the federal courts began to protect the civil rights of minorities in certain specific circumstances, gradually making it possible for African Americans to participate in some activities on an equal basis with whites. The Supreme Court took its most memorable step in this direction when it agreed in 1954 to hear a case dealing with racial segregation in public schools.
The practice of separating African American and white children in public schools had always been unpopular among civil rights leaders who viewed proper education as a means for African Americans to escape racial 15 discrimination. They argued that the mere fact of segregation in schools doomed African Americans to inferior education and deprived whites and African Americans of an important educational experience. In Brown v. Board of Education of Topeka, Kansas, the Supreme Court struck down the legal support for maintaining "separate but equal" educational facilities:
To separate black children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way never to be undone . . . We conclude that in the field of public education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.
The Brown decision meant that white and African American children could not be forced to attend separate public schools.
The Supreme Court s landmark decision was one of the single most important features of the climate of opinion that began to encourage federal action to protect civil rights. Yet the Brown ruling did not settle the controversy surrounding the treatment of minorities in the United States. Although the Supreme Court made its commitment to equal rights unmistakably clear, the cause of civil rights still required affirmative action by Congress to become a reality for most African Americans.
The United States Congress began to take its first, tentative steps to enact major civil rights legislation soon after the Brown decision. Although Congress considered a civil rights bill each year from 1945 until 1957, every measure failed to pass into law. It was not until Congress turned its attention to voting rights in 1957 that the first civil rights act of the 20th century actually became law. Congress followed the 1957 Civil Rights Act with another in 1960. Together these measures made moderate gains for minorities. More importantly, they foreshadowed increasing support for more substantial civil rights guarantees in the 1960s and contributed to a climate of opinion favoring these guarantees.
By the early 1960s, the nation s congressional history contributed to growing legislative pressures for a comprehensive civil rights law. Although political pressures prevented President John F. Kennedy's administration from proposing legislation to Congress in 1961 and 1962, the President took steps to ensure minority rights in voting, employment, housing, transportation, and education by executive action. The stage was set for a new legislative initiative to deal with the problem of federal protection of civil rights.
Social ConditionsThe nature of American society also hastened the movement towards civil rights legislation. The Civil Rights Act of 1964 not only represented a period of intensity in legislative activity but it also reflected the changing nature of social conditions in the United States. Minority groups grew 16 more vocal and persuasive in their demands, and many white Americans began to see the need for civil rights laws. These social conditions contributed mightily to the climate of opinion demanding congressional action.
African American Americans became increasingly vocal and better mobilized for political action after World War II. During the 1950s, they began to protest their treatment more publicly and actively as they demanded comprehensive protection of their civil rights.
African American protesters pointed to a number of social inequalities from which they suffered. Segregation prevented them from using a variety of public facilities on an equal basis with whites. African Americans were restricted in their use of public city buses, park facilities, and restrooms, for instance. Educational opportunities were limited sharply by the practice of separating African Americans and whites and providing African Americans with inferior instructional equipment. As late as 1963, for example, only 12,000 of the 3,000,000 African Americans in the South attended integrated schools, in spite of the Brown decision. Finally, employment practices throughout the South and in many northern cities restricted African Americans' ability to advance economically.
In addition to challenging segregation in the courts, African Americans relied increasingly upon direct action to publicize their plight by staging sit-ins and boycotts. Perhaps the most dramatic of the early protests was Martin Luther King, Jr.'s demonstration in Montgomery, Alabama, in 1955. Protesting rules that required them to sit in the backs of buses, African Americans refused to use public transportation and picketed against the regulations. The protest soon spread as African Americans boycotted white Montgomery businesses in an effort to slow down business and to force businessmen to support African American demands. After months of confrontation and some violence, the city agreed to end seating requirements on buses, signaling a symbolic victory for civil rights workers in the South. Similar protests grew up throughout the South, highlighted by violence in Little Rock, Arkansas, in 1957 during school desegregation demonstrations.
Building upon the legacy of the 1950s, the pace of social protest increased dramatically in the four years before passage of the 1964 Civil Rights Act. In February 1960, African American students demonstrated against segregation at a department store lunch counter in Greensboro, North Carolina, by conducting a sit- in protest that soon spread to more than one hundred other communities. Later that year, after violence erupted over New Orleans's school racial policies, the Supreme Court struck down a Louisiana statute blocking integration. In January 1961, two African American students enrolled in the University of Georgia at Athens marking the first desegregation in public
17 education in Georgia.
As isolated protests against segregation increased, many civil rights organizations gained new strength through increasing membership and financial support. The Congress of Racial Equality (CORE) set an example of non-violent direct action that proved effective even though whites dominated CORE. The National Association for the Advancement of Colored People (NAACP) set up legal defense funds to aid jailed protestors. The Southern Christian Leadership Conference (SCLC), the Student Non- Violent Coordinating Committee (SNCC), and the Urban League all prospered as organizations representing the civil rights movement.
A major development in the civil rights direct action protest movement occurred with the formation of the Freedom Rides in the early 1960s. Groups of African Americans and whites entered southern cities by bus to test segregation barriers in transportation facilities. Frequently, they were met with violence. In May 1961, while riders were in Alabama, rioting broke out, forcing the U.S. Attorney General to protect civil rights workers with U.S. marshals. During the fall of 1962, James Meredith's attempt to enroll as the first African American in the University of Mississippi in Oxford generated extreme hostility. Two men were killed and 375 injured as the state resisted Meredith's admission.
Social pressures continued to mount in 1963. Martin Luther King organized peaceful demonstrations in Birmingham, Alabama, to protest segregation in public facilities, but many whites responded angrily. Throughout the spring, an escalating cycle of violence consumed Birmingham, forcing President Kennedy to alert federal troops and to warn Governor George Wallace that continued violence against peaceful civil rights marchers would bring the troops into action. The murder of civil rights workers Medger Evers and William L. Moore added fuel to the controversy. Birmingham whites killed several other African Americans, including four young girls who were attending Sunday school when their church was bombed.
The nation's news media covered the Birmingham episodes in depth, bringing pictures into homes throughout the country of whites beating African Americans, of dogs snarling at protesters, of fire hoses being turned against marchers, and of police using electric cattle prods to control the crowd. Civil rights leaders and sympathizers protested the senseless violence through letters and telegrams to their congressmen. Many African Americans expressed their outrage by rioting. By 1964, there were unmistakable signs that social conditions for African American Americans required legislative attention in the U.S. Congress.
Moreover, civil rights ceased to be only a southern problem as the social pressure for action surfaced in northern cities. During the summer of 1963, New York, Philadelphia, Chicago, Trenton and Newark, New Jersey, joined 18 other cities in taking action to bar discrimination in the construction industry. To respond to civil rights activists, a number of communities established biracial committees to examine the human rights of citizens and to explore ways of guaranteeing civil rights.
Major legislation rarely occurs unless there are social pressures encouraging action. The Civil Rights Act of 1964 certainly was no exception. As African Americans organized and demonstrated, other groups formed in reaction. On many occasions the result was peaceful accommodation between the two groups and a working out of difficulties. In several cases, however, violence resulted, forcing the nation as a whole to review its treatment of African Americans and other minorities.
The climate of opinion had changed dramatically between World War II and 1964. It appeared that a vocal majority of churches, representatives and senators, and the nation favored civil rights legislation. The National Opinion Research Center discovered this change of attitude in a sample survey of northern whites in 1963. The Center determined that the number who approved neighborhood integration had risen 30% in twenty years, to 72% in 1963. The proportion favoring school integration had risen even more impressively to 75%.
The nature of social conditions for African American Americans had created an atmosphere ripe for civil rights activity. According to the government, there were nearly 1,000 civil rights demonstrations in 209 cities in a three-month period beginning May 1963. Newsweek published a survey in July showing that 40 % of African Americans interviewed had taken part in a civil rights protest. Pressure mounted in the nation's Capitol to respond.
Representatives and senators could not ignore the impact of social protest. In a confidential memorandum, one Republican senator asked in May 1963 that Republicans meet the challenge by proposing a legislative initiative to revise Senate rules to make it easier to pass a civil rights bill which would cut off federal funds to programs that discriminated against African Americans. In suggesting this action, the senator made the link between social conditions and legislation clear when he said that "recent events in racial relations in Birmingham, Alabama and elsewhere, in the North and the South, have demonstrated the critical need for further action by the Congress . . . toward righting the wrongs and ending the disadvantages of the past."
Political FactorsThe politics of civil rights legislation can be viewed from a number of perspectives. In general, the political situation reflected the nation's social transition in its uncertainty and ambiguity. Although a consensus favoring civil rights legislation eventually emerged, it is difficult to point to specific political trends that dominated the process. Political factors influenced 19 different people in contrasting ways. The impact of politics was complicated and diffuse. One way to understand the role of politics in the enactment of civil rights legislation, however, is to look at the way President John F. Kennedy approached the legislation. In a very important sense, Kennedy came to endorse a civil rights bill because political circumstances allowed him to support what once had been a controversial and unpopular legislative program.
John F. Kennedy's civil rights record before 1963 was neither a clear endorsement nor rejection of civil rights legislation. As a senator from Massachusetts, he had an opportunity to vote on the 1957 Civil Rights Act, the first passed in the 20th century. Kennedy apparently had enough reservations about the bill to vote to send it to the conservative Senate Judiciary Committee where it probably would have been pigeonholed. Another indication of his lukewarm support for the Act was his vote to allow juries to hear contempt cases. Southerners preferred jury to bench trials since all-white juries rarely convicted white civil rights violators. At the same time, Kennedy supported efforts to end discrimination in education. His record in the 1950s did not mark the future President as a civil rights activist. It indicated that Kennedy, much like the rest of the nation, had complicated and sometimes contradictory views about civil rights.
As a presidential campaigner in 1960, Kennedy largely avoided the civil rights issue for basically political reasons. Although he endorsed some kind of federal action, he could not afford to antagonize southern Democrats whose support he desperately needed to defeat Republican candidate Richard M. Nixon. In outlining the most important issues for the campaign early in 1960, Kennedy ignored civil rights rather than jeopardize his political support.
After his election in November 1960, the new President failed to suggest any new civil rights proposals in 1961 or 1962, again for political reasons. He needed southern support in Congress for his other foreign and domestic programs. It was particularly risky to introduce specific civil rights legislation in the Senate. The Senate filibuster rule made it possible for a minority of senators to prevent passage and to obstruct other Senate business. To overcome this obstacle, 67 members would have to support some version of civil rights legislation and vote to end the inevitable filibuster. It was difficult for the Kennedy administration to propose a bill without considering carefully the politics of congressional passage.
Although Kennedy accomplished some strictly limited improvements in equal rights by executive action, the civil rights movement generally proceeded without Presidential support. When Kennedy did act in June 1963 to propose a civil rights bill, it was because the climate of opinion and the political situation forced him to act.
Sources of LegislationIdeas for legislation can come from many different 20 sources. When an issue is as important and controversial as civil rights was in 1963, the final bill may reflect the ideas of individual citizens, organized groups, members and committees of Congress, congressional staff, and the executive branch.
The specific source of the 1964 Civil Rights Act was the President of the United States. John Kennedy began the process of gaining support for the legislation in a nationally televised address on June 11, 1963. Discouraged by the violence accompanying the Birmingham demonstrations, Kennedy urged in eloquent language that Americans take action to guarantee equal treatment of every individual, regardless of color.
Kennedy proposed that Congress consider a civil rights act dealing with the following subjects: voting rights, public accommodations, desegregation of public schools, establishment of a Community Relations Service, continuation of the Civil Rights Commission, nondiscrimination in federally assisted programs, and formation of an Equal Employment Opportunities Commission. One hundred years after Abraham Lincoln announced his Emancipation Proclamation, the executive branch of government readied itself to ask Congress to pass a major civil rights bill into law. (Click for link to Press Release of Kennedy's Request)
Click for link to letter from Senator Thomas Dodd
The Bill is WrittenThe Justice Department was charged with the responsibility of converting the President's words into legislative form. Department officials developed a proposal to address the serious problems of racial discrimination which at the same time recognized the politics of the situation. After consulting with congressional leaders in both parties, drafters of the bill avoided any controversial and unnecessary language that could have alienated potential support in Congress. The bill's sponsors kept a close eye on the 67 votes needed in the Senate to overcome any filibuster against civil rights.
After outlining specific recommendations and lining up bipartisan support, the Kennedy administration sent its proposal for a bill to Congress on June 19. Political factors continued to shape the President's attitude. He worked to secure Republican congressional assistance; he sought unsuccessfully to ward off opposition from the southern wing of his own party; and he urged African American leaders to control demonstrations more carefully so as not to scare off potential supporters by inciting violence in the streets. Kennedy likewise marshaled support by conducting discussions with businessmen, religious leaders, labor officials, and other groups. He sought by these means to stimulate Congress to action by mobilizing pressure for passage without at the same time jeopardizing the fragile political coalition needed to pass the bill.
21 The Bill is Introduced It was against this background that the administration's proposal went to Congress. On the Senate side, the bill was introduced in three forms: the entire bill, introduced by Senate majority leader Mike Mansfield, went to the Judiciary Committee for consideration as did the entire bill minus Title II; controversial Title II, co-sponsored by Mansfield and Everett Dirksen, went to the Commerce Committee for special study. Title II barred discrimination in a wide range of public accommodations, regardless of whether or not they were owned privately, and was the object of a good deal of criticism. The strategy here was to isolate the most objectionable part of the bill so as not to jeopardize consideration of the remainder. Eventually, 42 senators joined in co-sponsorship of the omnibus civil rights bill. On the House side, the entire bill was sent as a unit to the House Judiciary Committee.
Committee Consideration in House and SenateAlthough either house of Congress could have taken the lead in considering civil rights legislation in 1963 and 1964, the Senate preferred to delay action until the House considered the legislative package proposed by the President. Senate leaders prevented the Judiciary Committee and the Commerce Committee from formally reporting any of the several civil rights proposals they considered in 1963, including S.1731 and S.1732 which contained the Justice Department's proposals. (For a legislative history, click here.) If a bill had been reported, it could have been called up for consideration and debate on the Senate floor. The leadership did not want to risk a filibuster they knew would result because it would delay other Senate business. It was more difficult to get a bill through Senate committee for another reason: both the Judiciary and the Commerce committees were chaired by southern conservative senators.
As a result of this strategy on the part of the Senate leadership, the initial focus of activity on what was to become the Civil Rights Act of 1964 took place in the House of Representatives.
Senate Republicans meet in conference to plan legislative strategies during May 1964 [64/5/0-3]
Committee Action in the House: Judiciary CommitteeH. R. 7152 was referred for consideration to the House Judiciary Committee chaired by civil rights supporter Emanuel Celler. As is the case with most major bills, a subcommittee considered the proposal in depth. From the perspective of civil rights advocates, the choice of Celler as chairman of Subcommittee Number 5 was fortunate in that Celler had a strong, positive civil rights record. The ranking Republican member of Judiciary, William M. McCulloch, joined Celler in maneuvering the bill through the committee process.
Subcommittee Number 5The subcommittee conducted lengthy hearings from 22 May into August of 1963 on the civil rights bill, inviting many witnesses to testify in favor of, or in opposition to, the proposal. The subcommittee, in weighing the evidence, actually rewrote the Justice Department's draft of H. R. 7152 to make it stronger. In general, the subcommittee draft made it more difficult to prevent African Americans from voting, outlawed discrimination in all public accommodations, gave the Attorney General the right to sue on behalf of integration in education, and guaranteed equal employment opportunities.
Members of the subcommittee approved the bill with little trouble. Northern Democrats welcomed the measure, and Republican subcommittee members voted for the bill in order to receive some credit for its passage. More interesting is the fact that some southern Democrats who opposed the administration's bill favored the more liberal subcommittee bill because they felt that a stronger bill would be impossible to pass on the floor of the House.
Committee Recommendations The Kennedy administration apparently saw the correctness and the danger of the southern Democrats' reasoning. When the entire Judiciary Committee considered the subcommittee's draft of the bill, Attorney General Robert Kennedy appeared before the full committee in executive session in mid-October to urge that it report a more moderate bill. The Kennedy administration knew that a strong civil rights bill would be more difficult to pass because Republicans would find little in it to support. Republican support was absolutely crucial for Senate passage and only slightly less so for House passage. The administration's successful efforts to moderate the bill naturally aroused suspicion among some civil rights groups, but Kennedy probably had little choice: compromise or no bill.
As a result of the administration's urging, Democratic and Republican House leaders on the Judiciary Committee worked together to produce a more acceptable piece of legislation. Republicans were able to modify voting registration procedures, the status of the Civil Rights Commission, and enforcement procedures. The resulting compromise received the Judiciary Committee's endorsement, 23 to 11, on October 29, 1963, after the original subcommittee proposal was defeated, 19 to 15. The Judiciary Committee formally reported H. R. 7152 on November 20.
The new bill accomplished more in the areas of civil rights protection than the Kennedy administration's first request. The process of legislative bargaining and compromise produced a much different bill than had been introduced earlier in the year by the Justice Department. This is true of most major legislation. The bipartisan civil rights bill exceeded early versions by extending the Justice Department's enforcement powers; by requiring government agencies to seek nondiscrimination in federal programs; by establishing an Equal Employment
23 Opportunities Commission; and by other modifications.
Rules Committee ActionAlthough the Judiciary Committee issued a favorable report on H. R. 7152 in November, the House Rules Committee still had to grant it a rule before it could be considered on the House floor and voted upon. It was the Rules Committee that determined when and under what conditions bills could be brought up for formal consideration by the entire House membership. Rules Committee chairman Howard W. Smith of Virginia, a longtime opponent of civil rights, refused to grant the bill a rule before the end of 1963. When civil rights advocates, including Congressman Celler, threatened to sign a discharge petition to free the bill from the Rules Committee, Smith promised to grant a rule early in January 1964. The Rules Committee finally cleared H.R. 7152 for floor consideration on January 30, 1964.
Everett Dirksen and Lyndon Johnson compare notes on the legislative agenda in January 1964. Hubert Humphrey is on the left; House Speaker Carl Albert is at the right. [64/1/8-8]
House Debate and PassageThe House of Representatives debated the bill for nine days and rejected nearly one hundred amendments designed to weaken the bill before passing H.R .7152 on February 10, 1964. Of the 420 members who voted, 290 supported the civil rights bill and 130 opposed it. Republicans favored the bill 138 to 34; Democrats supported it 152-96. It is interesting to note that Democrats from northern states voted overwhelmingly for the bill, 141 to 4, while Democrats from southern states voted overwhelmingly against the bill, 92 to 11. A bipartisan coalition of Republicans and northern Democrats was the key to the bill's success. This same arrangement would prove crucial later to the Senate's approval of the bill.
House action on the bill had been nearly exhaustive. In total, the House held 70 days of public hearings, listened to 275 witnesses, and published 5,792 pages of testimony. It was now up to the Senate to decide the bill's ultimate fate: Would H. R. 7152 become the most important civil rights law of the century or would it die like so many previous attempts?
Bill Introduced in SenateEven before civil rights legislation came up for consideration in 1964, the Senate set the stage for a lengthy civil rights debate when it considered changing the Senate rule governing the shutting off filibusters. The filibuster permitted one or more senators to speak on any subject without a time limit. In contrast to the House where debate is limited, Senate Rule XXII stated that the only way to limit debate was for two-thirds of the senators present and voting* to vote for cloture. Cloture ends debate and makes it possible to vote on a bill. Senate liberals who anticipated a filibuster by opponents of civil rights wanted to make it easier to shut off debate by 24 decreasing the number of votes needed to end debate. The Senate, however, refused to change Rule XXII on January 31 by a 53 to 42 vote. This set the stage for the impending Senate consideration of the House passed version of the civil rights bill by making it possible for a minority of senators to block action with a filibuster. * Changed March 7, 1975, to three-fifths of the total membership of the Senate.
After the House-passed H. R. 7152 on February 10, the bill went to the Senate for its consideration. It was held for a few days by the House before it was "messaged" to the Senate on February 17. The bill promptly went to the desk of the president pro tempore of the Senate where it received its first reading.
Committees Bypassed Senate leaders had prepared for the legislative controversy over H. R. 7152 in a number of ways. The Senate Judiciary Committee, which was the logical committee to consider a civil rights bill, was manned by conservatives who probably would have delayed or even pigeonholed the bill. Senate leaders knew that since the bill had passed the House, it could be placed directly on the Senate calendar without having to go through committee. Although the Senate rules permit this bypassing of its committee structure, the tactic is employed rarely. Opponents of the civil rights bill opposed the leadership strategy, but supporters gathered enough votes to place H.R .7152 directly on the Senate calendar by a 54 to 37 vote on February 26,1964. This action was crucial since it meant that southern conservatives could not kill the bill in committee and would have to rely on the filibuster to defeat civil rights legislation on the Senate floor.
The parliamentary maneuvering did not cease immediately, however. After the bill reached the Senate calendar, the Senate considered a motion to take up, or debate, the bill on March 9. This preliminary proposal to begin debate itself caused a sixteen-day debate before, on March 26, the Senate voted 67 to 17 to begin formal consideration of the civil rights legislation. Another effort to refer the bill to the Judiciary Committee failed by a vote of 50 to 34.
Senate Floor Debate: Leadership StrategyWhen the House-passed bill reached the Senate floor in March 1964, three groups of senators formed: pro-civil rights Democrats, southern Democrats opposed to the bill, and Republicans. Senator Hubert H. Humphrey led the Democrats who supported the bill and worked actively for its passage. As Senate majority whip, Humphrey enjoyed the support of Mike Mansfield, Senate majority leader. Together they were determined to pass the legislation and even arranged grueling twelve-hour daily sessions to wear down the opposition. Humphrey's task was to line up supporters to defend the bill in debate, to persuade reluctant members of his party to vote for passage, to encourage publicity, and to count votes. The Senator from Minnesota labored hard for passage and sought cooperation from
25 many sources, including the Republicans.
Senator Richard Russell, Democrat from Georgia, led the so-called opposition forces. The group was also known as the "southern bloc." It was composed of eighteen southern Democrats and one Republican, John Tower of Texas. Although a hopeless minority, the group exerted much influence because Senate rules virtually guaranteed unlimited debate unless it was ended by cloture. The "southern bloc" relied on the filibuster to postpone the legislation as long as possible, hoping that support for civil rights legislation throughout the country would falter. The Democratic leadership and Humphrey could not control the southern wing of the party.
Russell's forces disliked civil rights legislation for several reasons. Many feared that their southern constituents would vote them out of office if, as senators, they voted for equal rights for African Americans. The "southern bloc" held up consideration of the bill from March into June hoping that presidential candidate George Wallace, a segregationist from Alabama, would do well in the early presidential primaries. If Wallace seemed popular, Russell would argue that the nation as a whole did not support federal civil rights legislation and that the Senate should not pass an unwanted bill. Southern senators could not compromise. Only by forcing cloture could they demonstrate to their constituents that they had fought to the end against hopeless odds.
From Filibuster to ClotureThe filibuster forces knew that they faced a long and tiring battle. Their opponents had anticipated and planned for the filibuster. In fact, Humphrey personally opened full-fledged debate on the civil rights bill on March 30 with a three hour, eleven-minute speech from a 68 page speech of his own in defense of H. R. 7152. Both Humphrey and Thomas Kuchel (R-CA), Senate Minority Whip gathered enough senators together so that at any time a quorum call came up, the pro-civil rights forces could answer it. Northerners also combated the "southern bloc" by answering southerners' criticisms of the bill on the floor rather than simply letting the filibusterers speak indefinitely without response. To respond to the organized opposition, southerners formed a platoon system composed of three six- member filibuster teams. When one team had the floor for the filibuster, the other two would rest and then prepare to take turns speaking on the floor.
The Republican Party was not so badly split as the Democrats by the civil rights issue. Only one Republican senator participated in the filibuster against the bill. In fact, since 1933, Republicans had a more positive record on civil rights than the Democrats. In the twenty-six major civil rights votes since 1933, a majority of Democrats opposed civil rights legislation in over 80 % of the votes. By contrast, the Republican majority favored civil rights in over 96 % of the votes.
The Republican pro-civil rights forces were blessed with gifted leadership. 26 Although Senate minority whip Thomas Kuchel initially managed the party's forces, it increasingly became clear to Democrats, Republicans, the press, civil rights groups, and the White House that Everett McKinley Dirksen was the key man in the entire civil rights legislative effort.
After criticizing H. R. 7152 in March, Dirksen began to work more closely in late spring with Humphrey and the civil rights forces to fashion a strategy that would secure passage of the bill. Dirksen organized Republican support for the bill by designating a floor captain for each of the bill's seven sections. He and the bipartisan leaders believed that five or six "swing" votes held the key to cloture and the end of debate. Almost all of these uncommitted senators were conservative Republicans from rural states without racial difficulties. Their constituents opposed the legislation because it involved expanded federal powers. The problem facing the leadership was how to enlist the support of these uncommitted senators.
By working with Dirksen to swing key votes and by marshaling public opinion and constituent support for the civil rights measure, Senate leaders moved forward with the legislation.
Pressure for Senate ActionInterest in the legislative course of H. R. 7152 was not confined to Congress. Outside pressure on Congress came from ordinary citizens, civil rights organizations, church organizations, and the executive branch of government.
Individual citizens responded to the civil rights battle in the Senate in amazing numbers. In June 1964, for example, Senator Dirksen estimated that he had heard from at least 100,000 people about the bill. Senate offices could not keep up with the thousands of letters they received daily and had to respond by form letter. Many citizens urged adoption of H. R. 7152 without change in the Senate; others clamored for a seemingly endless variety of modifications. Public opinion was at fever pitch. "Sharp opinions have developed," Dirksen observed before continuing:
Incredible allegations have been made. Extreme views have been asserted. The mail volume has been heavy. The bill has provoked many long-distance telephone calls, many of them late at night or in the small hours of the morning....Thousands of people have come to the Capitol to urge immediate action....
Telegrams, petitions, and letters all expressed the climate of opinion that shaped the legislative struggle and pressured Congress to act.
Civil rights and church organizations joined in the massive lobbying effort. The National Association for the Advancement of Colored People, the Congress of 27 Racial Equality, the National Urban League, the Southern Regional Council, the Southern Christian Leadership Conference, and others sought to represent the African American interest in civil rights. These groups combined, for example, to sponsor the successful March on Washington in 1963. At times, however, the vocal pressure exerted by African American groups worked to their disadvantage.
One such case involved Senator Dirksen. African American groups in Illinois had not supported Dirksen for reelection to the Senate in 1962 and suspected his loyalty to African Americans during the civil rights debate. African American organizations knew the importance of Dirksen's vote and intended to force him to support an unchanged H. R. 7152 by demonstrating and picketing his Chicago office. James Farmer, director of CORE, publicly declared that there would be "extensive demonstrations" in Illinois against the Senator personally. Farmer added that "people will march en masse to the post offices there to file handwritten letters" protesting Dirksen's ambivalent attitude.
Everett Dirksen meets with black leaders in 1964. [64/0/0-3]
The protestors had almost directly the opposite impact. Dirksen strongly objected to what he believed were uncalled-for tactics by African American groups; he resented their lack of trust in his judgment and his favorable civil rights record. On February 17, 1964, Dirksen complained on the Senate floor about the harassment and let it be known that such pressure would not affect his judgment. "When the day comes that picketing, distress, duress, and coercion can push me from the rock of conviction, that is the day," Dirksen announced, "that I shall gather up my togs and walk out of here and say that my usefulness in the Senate has come to an end." Richard Russell, leader of the filibuster forces, thought that Dirksen might desert the civil rights proponents because of the incident, but the minority leader did not forsake the northern Democrats. Hubert Humphrey made sure, however, that African American groups did not risk Dirksen's support by similar tactics. Click here.
In spite of CORE's mistake, group pressure generally proved effective in creating support for civil rights legislation. Labor unions, including the powerful AFL-CIO, joined the lobbying effort in impressive numbers. The National Council of Churches, the National Catholic Conference for Interracial Justice, the National (Jewish) Community Relations Advisory Council, and the National Student Christian Federation added potent strength to the cause of civil rights by marshaling organized religious support behind the bill. Other interest groups which testified for the bill, or coordinated support for it, included the Americans for Democratic Action, the American Civil Liberties Union, the Japanese-American Citizens League, the Women's International League for Peace and Freedom, and the American Veterans Committee. In all, 28 nearly one hundred major national organizations representing multiple interests combined to favor the omnibus civil rights act. Click here.
The executive branch of government conducted a lobbying campaign of its own. Both President John Kennedy and Lyndon Johnson had worked out legislative strategy with; a view toward persuading Congress to accept civil rights legislation. President Johnson even assigned two members of his White House staff to cultivate Dirksen's commitment to H. R. 7152 . Conferences between the executive and Congress abounded. lt was very clear to contemporary observers that the administration had brought its full persuasive powers to bear on the civil rights legislation.
Senate Debate, "The Long Hard Furrow"As the civil rights debate unfolded, it became increasingly clear that the southern bloc objected most strongly to two sections of the bill, the cut-off of federal funds to projects that discriminated against African Americans and the provision for fair employment practices enforcement. Many Republicans, including the "swing" senators, joined the southerners in their concern about the impact of fair employment provisions on business, particularly small businesses. Even in states with no racial problem, the prospect of making employers comply with the law seemed to many Republican to be an unwarranted expansion of federal power. Early in April 1964, Everett Dirksen, who had expressed reservations about the bill, indicated to the press that he might offer amendments to the fair employment practices title. Although President Johnson had made it clear that the administration wanted the Senate to accept the House bill without change, the Republicans met in study groups throughout April in an effort to make the bill more acceptable through modification.
Dirksen first discussed his proposals to modify the bill with the Senate Republican Policy Committee on March 31 and then with all Republican senators. Dirksen knew that to persuade Republicans to support northern Democrats in their effort to end the filibuster, he would have to make the bill itself acceptable to the "swing" senators. He met repeatedly with his Republican colleagues in an attempt to forge a consensus on appropriate changes. The task was not an easy one, and several senators objected to Dirksen's tactics and recommendations. At one point Dirksen explained his goal as ". . . first, to get a bill; second, to get an acceptable bill; third, to get a workable bill; and, finally, to get an equitable bill." Slowly the rough consensus that Dirksen sought began to emerge.
Rather than stressing the moral or racial questions involved, Dirksen focused on a compromise that emphasized state responsibility for civil rights enforcement. The Senate minority leader realized that the "swing" votes would not be persuaded social arguments but by assurances that federal government
29 intervention in local affairs would be kept to a minimum. Dirksen eventually proposed ten amendments for his colleagues' consideration that assured the states primary jurisdiction over complaints about discrimination during a transition period before the federal government entered the picture. Dirksen's modified bill appeared to satisfy enough Republicans to guarantee that the prolonged filibuster would be ended when a vote could be scheduled.
Meanwhile, the filibuster continued throughout the entire month of April into May. Two- hour speeches were common, but occasionally a senator would speak without interruption for eight hours. Senator Dirksen remembered that one of his colleagues brought a 1,500 page speech to deliver on the Senate floor. The filibuster virtually immobilized the Senate in all its other activities.
The Johnson administration realized that it would have to fashion some kind of compromise with the Republicans and Everett Dirksen in order to persuade the "swing" votes under Dirksen's influence to favor cloture.
"Clean Bill" SubstituteDuring the first week in May, Dirksen began talks in his office with Senate Democratic and Republican civil rights advocates and with Justice Department officials to achieve an acceptable package of civil rights legislation. On May 13, after 52 days of filibuster and five negotiation sessions, Dirksen, Humphrey, and Attorney General Robert Kennedy agreed to propose a "clean bill" as a substitute for H. R. 7152. Senators Dirksen, Mansfield, Humphrey, and Kuchel would cosponsor the substitute. This agreement did not mean the end of the filibuster, but it did provide Dirksen with a compromise measure which was crucial to obtain the support of the "swing" Republicans.
The compromise civil rights bill worked out in Dirksen's office did not seriously weaken the original H. R. 7152 . The bargainers were careful not to include any changes that might cause the House to reconsider the entire bill once the Senate had finished its work. The "clean bill" made somewhat over seventy changes in H. R. 7152 , most of them concerning wording and punctuation and most of them designed to win over reluctant Republicans and to allow cloture. The major change in what was called the Dirksen-Mansfield substitute was to lessen the emphasis on federal enforcement in cases of fair employment and public accommodations violations. The substitute gave higher priority to voluntary compliance than the House bill. It encouraged more private, rather than official, legal initiatives. The compromise also reserved a period for voluntary compliance before the U.S. Attorney General could act in discrimination suits.
What Dirksen had done was to put together a substitute for the House-passed H. R. 7152 that was near enough to the original version that it satisfied the Justice Department and the bipartisan civil rights coalition in Congress, and sufficiently different in tone and emphasis to win a few Republican converts to support cloture. 30 Armed with the compromise bill and moving toward consensus within his own party, Everett Dirksen became the man of the hour. The fate of civil rights legislation rested squarely on his shoulders. Dirksen overcame the continuing reluctance of some of his party colleagues to cooperate during a June 5 Senate Republican conference and indicated to Senate majority leader Mike Mansfield that the time had come to vote on cloture. Dirksen and Mansfield then joined to offer a motion to invoke cloture and thereby end the filibuster.
ClotureOn June 10,1964, after an impassioned plea by Dirksen on behalf of the compromise bill, the Senate voted 71 to 29 to close off the civil rights filibuster. Every member of the Senate was present for the vote, including Senator Engle of California who had suffered a stroke and could not speak but pointed to his eye as a sign of his "aye" vote. The margin was four votes larger than the 67 required. It ended 57 days of debate, the longest debate since the cloture rule had been adopted in 1917. Forty four Democrats and 27 Republicans supported cloture; 23 Democrats and 6 Republicans opposed it.
Supporters of the civil rights bill in the Senate celebrate the cloture vote on June 10, 1964 [64/6/10- 10]
Several factors combined to impel senators to vote for cloture besides the merits of bill. Many simply wished to move on to other Senate business. Some were candidates for reelection in 1964 and wanted to speed up the work so they could return home to campaign. Still others needed to prepare for the up- coming national party conventions. Finally, there were the "swing" Republicans who had listened to Dirksen and had senators voted for cloture because Dirksen had persuaded them: Carl Curtis and Roman Hruska of Nebraska; Karl Mundt of South Dakota; and Jack Miller of Iowa. Without Dirksen's assistance, there is little doubt that the civil rights forces would have been defeated in their attempt to end debate.
Senator Everett Dirksen and Hubert Humphrey share in the victory as the Senate ends debate on the civil rights bill. Humphrey holds the vote tally sheet on the cloture motion. June 10, 1964. [64/6/10-6]
Final VotesUnder the Senate rules, after cloture is invoked each senator may speak for one hour on the bill or pending amendments. Although southerners called up many amendments between June 10 and June 17 to stall action further, the Senate leadership allowed only those it wanted to be adopted. Most of the amendments were defeated by large margins. On June 17, the Senate voted by a 76 to 18 margin to adopt the bipartisan substitute worked 31 out by Dirksen in his office in May and to give the bill its third reading. Two days later, the Senate passed the bill by a 73 to 27 roll call vote. Six Republicans and 21 Democrats held firm and voted against passage. In all, the the 1964 civil rights debate had lasted a total of 83 days, slightly over 730 hours, and had taken up almost 3,000 pages in the Congressional Record.
Return to the HouseSince the Senate-passed version of the bill differed from the House passed H. R .7152, the measure returned to the House of Representatives for reconsideration.
During the long months of debate in the Senate, the House leadership had watched anxiously. Neither the Senate nor the House wanted to jeopardize passage of the bill by making wholesale changes in it that would undermine its support in the other body. Consequently, when the Senate sent its approved compromise substitute bill back to the House for action, every attempt was made to accept compromise in the House without change to avoid beginning another lengthy debate and to avoid sending the bill to conference committee.
Compromise Bill Accepted by House; Conference Committee Avoided The chief stumbling block in the plan was the southern-dominated Rules Committee. A bipartisan coalition of committee members quickly surmounted this obstacle by seizing control from chairman Howard Smith and, on June 30, the House Rules Committee reported H. Res.789 providing for the acceptance of the Senate bill without change.
House leaders brought the resolution up for floor consideration on July 2 where members quickly approved the Senate-passed civil rights bill, 289 to 126. Only six representatives changed their votet from February when the House first sent H. R. 7152 to the Senate. Because there were no differences in the two bills, there was no need for a conference committee and the bill went immediately to the White House for President Johnson s signature.
White House ApprovalPresident Johnson welcomed the bill he had sought for so long. Within a few hours of passage, he signed it into law in a nationwide television broadcast from the White House. On July 2, 1964, President Johnson spoke the following words before signing the bill:
We believe that all men are created equal -- yet many are denied equal treatment. We believe that all men have certain inalienable rights. We believe that all men are entitled to the blessings of liberty -- yet millions are being deprived of those blessings, not because of their own failures, but because of the color of their skins.
The reasons are deeply embedded in history and tradition and the nature of man. We can understand without rancor or hatred how all this happens. But it cannot continue. Our Constitution, the foundation of our Republic, forbids it. 32 The principles of our freedom forbid it. Morality forbids it. And the law I sign tonight forbids it....
Lyndon Johnson signs the Civil Rights Act of 1964 [64/7/2-3]
The National Law Journal
Fair pay? No way
Gary Siniscalco and Lauri Damrell October 18, 2010
President Obama has called for immediate passage of the Paycheck Fairness Act, and on Sept. 28, the U.S. Congress Joint Economic Committee held a hearing at which proponents continued the push for its passage. Despite its appealing title, the Paycheck Fairness Act is anything but fair. Gender pay discrimination has been outlawed for almost 50 years with the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. If passed, the legislation would eliminate common-sense defenses now available to employers in pay discrimination claims while bankrolling the well-funded trial bar. Although ostensibly aimed at narrowing the gender pay gap, the act ignores market realities and threatens to put well- intentioned employers out of business and eliminate countless jobs. Worse yet, there is simply no credible evidence that systemic workplace discrimination is taking place or that employers are to blame.
Several major, independent studies, including one in 2003 by the U.S. General Accounting Office, now the U.S. Government Accountability Office (GAO), and a March 2010 European study by the Organisation for Economic Co-operation and Development (OECD), show that the remaining wage gap persists largely because of societal, cultural and other unexplained factors — not employer bias. Indeed, the number of nonmeritorious sex discrimination cases that are filed against employers each year is astronomical. In 2009, the Equal Employment Opportunity Commission (EEOC) found "reasonable cause" in only 5% of the Equal Pay Act and Title VII sex discrimination charges filed with the agency.
To the extent that isolated employer bias cases still exist, the current Equal Pay Act and Title VII have sharp teeth, as evidenced by the recent decision of the U.S. Court of Appeals for the 9th Circuit approving a 500,000-plus woman class in Dukes v. Wal-Mart, and the historic $250 million punitive damages verdict awarded in May in Velez v. Novartis Pharmaceuticals Corp. Nevertheless, the president and various congressional leaders continue to push their pro-plaintiff agenda by urging Congress to pass the Paycheck Fairness Act and overhaul existing equal pay laws.
Under the current Equal Pay Act, an employer can defeat a gender-based pay claim by showing that the wage difference is "based on a factor other than sex." This practical defense allows employers to adjust employee compensation as the world around them changes. For instance, an employer may raise starting 33 salaries in competitive job markets and lower them as demand wanes. An employer can also offer a raise as needed to a single employee threatening to head to a competitor.
Proponents of the new legislation contend that the factor-other-than-sex defense "excuses far too much pay inequality" and "accepts virtually any superficially gender-neutral explanation for paying women less." The act thus shifts the burden to employers to prove that the factor other than sex is job-related and consistent with business necessity. Furthermore, the defense would not apply if the employee can show that "an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice." This would all but eliminate the "factor other than sex" defense.
Supporters contend this new framework simply "mirrors" that used in Title VII "disparate impact" cases, i.e., those in which employees allege that neutral employment practices adversely affect members of a protected class. In those cases, employers must also show job-relatedness and business necessity to avoid liability. Yet proponents have failed to acknowledge that, unlike the Equal Pay Act, Title VII balances the scales in those cases by allowing for only equitable (rather than monetary) relief and requiring employees to specify an employer practice giving rise to the alleged wage disparity. This is likely why the original Equal Pay Act gave employers more room to defend nondiscriminatory pay decisions that were based on holistic, albeit indefinable, analyses of employees' worth. Although courts so far have split on whether the "factor other than sex" must have a "business purpose," they have universally granted employers reasonable business leeway to present their rationales without questioning from less business-savvy judges or juries.
The Paycheck Fairness Act strikes another blow to employers by allowing for unlimited compensatory and punitive damages, which are otherwise capped at $300,000 under Title VII (with sensible lower caps for smaller employers). According to the congressional record, this advances the goal of more severely punishing employers that discriminate and deterring others. Yet innocent employers would be equally vulnerable to the risks imposed by this potential bonanza in contingent fees for the trial bar and the possibility of runaway jury awards. Even in the cases with no merit, many employers, especially smaller and midsize employers, will feel pressured to settle once they weigh the possibility of crippling damage awards and litigation costs against their slimmer chance of success under the Paycheck Fairness Act.
The president and Congress have patched together a hodgepodge of expanded health care laws. Now they want to perform a slipshod legislative operation that will materially harm employers and, yet, likely do little to correct the underlying causes of the wage gap described by the GAO and the OECD. Fair pay is a good idea, but the Paycheck Fairness Act misses the mark.
Gary Siniscalco is an employment law partner in the San Francisco office of Orrick, Herrington & Sutcliffe. He was formerly regional counsel and senior trial attorney for the U.S. Equal Employment Opportunity Commission in San Francisco. Lauri Damrell is a managing associate in the firm's employment group, based in the Sacramento, Calif., office.
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