The Age of Entitlement: America Since the Sixties

by Christopher Caldwell

Title VI of the Civil Rights Act of 1964 had permitted the federal government to withhold funding from school boards and other entities found to have discriminated. The Office for Civil Rights (OCR) in the Department of Health, Education and Welfare (later the Department of Education) had been tasked with deciding when such cutoffs were justified. But within a decade it had invented a new task for itself that was at some remove from the one the statutes had given it. The OCR was now writing detailed standards for racial balance that courts accepted as grounds for ordering injunctive relief. Those standards were called quotas in 1970 and diversity after 1990. What is more, the OCR model was “cloned” in one federal agency after another. Since repairing race relations was taken as an emergency, the safeguards that had been in place to prevent abuses in regulation writing—from traditions of “notice and comment” to newer applications of the Administrative Procedure Act—were never applied. That innovation caused civil rights law to work in a very different way from laws in the past. For instance, no law required busing to desegregate schools, and the 1964 Civil Rights Act seemed to forbid it. But after 1966, the Justice Department’s OCR issued guidelines that set percentage targets for black student populations and opened the door to busing. Federal courts treated these guidelines as if they were law itself, and called on lower courts to follow future guidelines, which could onl...