The regional economic impact of the civil rights act of 1964

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759
THE REGIONAL ECONOMIC IMPACT OF THE CIVIL
RIGHTS ACT OF 1964
GAVIN WRIGHT
∗
INTRODUCTION ............................................................................................... 759
I. PUBLIC ACCOMMODATIONS ................................................................ 761
II. RACIAL DISCRIMINATION IN LABOR MARKETS: THE REGIONAL
CONTEXT OF TITLE VII........................................................................ 764
III. BLACK ECONOMIC GAINS UNDER TITLE VII ...................................... 766
IV. REGIONAL PERSISTENCE AFTER 1980 ................................................. 774
CONCLUSION ................................................................................................... 778
INTRODUCTION
The Civil Rights Act of 19641 was a genuine landmark, “the most important
piece of legislation passed by Congress in the twentieth century,” according to
one recent history.2 But did the Act have economic as well as moral and legal
significance? If there were important economic gains for African Americans
during the Civil Rights era, can we attribute these with confidence to federal
legislation, as opposed to ongoing progress in schooling and racial attitudes? If
the Act was “an idea whose time has come”3 as Senator Dirksen suggested,
then perhaps it merely ratified and facilitated a process already underway.
This Article argues that the Civil Rights Act did indeed precipitate new
economic advances for African Americans in income, occupational status, and
educational attainment. But this statement is subject to two stipulations that are
not always clearly recognized. First, these gains were only realized through a
combination of grassroots mobilization, legal activism, and resolute
enforcement by the executive branch and the courts—much of which extended
the meaning and implications of the Act beyond what might have been
understood from the explicit language of the 1964 law. Despite this element of
∗William Robertson Coe Professor of American Economic History, Stanford University.
Professor Wright acknowledges helpful comments on the conference paper from Linda
McClain, Bruce Schulman, Jenny Bourne, and Sophia Lee, and superb editorial assistance
from Michael Tartaglia.
1Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 5 U.S.C.,
28 U.S.C., and 42 U.S.C.).
2CLAY RISEN, THE BILL OF THE CENTURY: THE EPIC BATTLE FOR THE CIVIL RIGHTS ACT 2
(2014).
3Id. at 220.

760 BOSTON UNIVERSITY LAW REVIEW [Vol. 95:759
temporal contingency, the Act still deserves prime credit for initiating
historical change. Its passage broke the back of the southern filibuster and sent
a powerful signal that a new era in race relations was dawning.
The second stipulation is that most of the economic gains from the Civil
Rights Act occurred in the South. This geographic disparity was partly a matter
of design, since the Act was written with the South primarily in mind. It also
reflects the relatively low economic starting point for black southerners in
1964, and the more readily targeted explicit segregation systems that
characterized workplaces in the South. But because the southern advantage for
African-Americans has persisted well beyond the period of intense legal
enforcement, its underlying basis is by no means as obvious as may appear at
first glance.
This Article concentrates on public accommodations under Title II4 and
private employment under Title VII5 of the 1964 Civil Rights Act. Thus it
makes no claim to completeness in considering all of the potential economic
consequences of the Act. The 1964 Act said nothing about housing
discrimination, and its mild provisions on voter registration under Title I6 and
Title VIII7 had little effect until amended and expanded by the Voting Rights
Act of 1965.8 In addition, Title IV9 empowered the Attorney General to file
suits to enforce school desegregation, while Title VI10 allowed federal agencies
to withhold funding from any institution that failed to comply with the
agency’s anti-discrimination requirements. These provisions were important in
accelerating the pace of school desegregation in the South, especially when
combined with the 1965 passage of the Elementary and Secondary Education
Act,11 which dramatically increased federal funding for public schools.12 But
school desegregation is a distinct and complex historical topic, albeit one with
significant economic content. It will be set aside here for another occasion.
442 U.S.C. § 2000a (2012).
5Id. §§ 2000e to 2000e-17.
6Id. § 1971 (1964) (current version at 52 U.S.C. § 10101 (2012)).
7Id. § 2000f.
8Id. §§ 1973 to 1973bb-1.
9Id. § 2000c.
10 Id. § 2000d.
11 Pub. L. No. 89-10, 79 Stat. 27 (codified at 20 U.S.C. §§ 236, 236-38, 240-41b (1988)),
repealed by Improving America’s Schools Act of 1994, Pub L. No. 103-382, § 3(a)(3)(B),
108 Stat. 3519.
12 Elizabeth Cascio et al., Paying for Progress: Conditional Grants and the
Desegregation of Southern Schools, 125 Q. J. ECON. 445, 473-74 (2010) (“[M]aking receipt
of the substantial new federal funds offered through Title I ESEA contingent on
nondiscrimination through the CRA played a role historically in desegregating Southern
schools.”).

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I. PUBLIC ACCOMMODATIONS
This section considers public accommodations and Title II as economic
phenomena. It may appear that this topic is more social than economic, but the
economic content is significant not only because of both the hardships and
constraints on mobility imposed on African Americans, as well as the
implications of desegregation for commercial activity, but also because of the
basis on which constitutionality was settled, using the Commerce Clause as
opposed to the Fourteenth Amendment. This issue was regional virtually by
definition because nearly all non-southern states (and most cities) had public
accommodation anti-discrimination laws by 1964, while no southern state
came close to doing so.
Contrary to much casual commentary, gaining access to public
accommodations was not a matter of abolishing de jure segregation. Because
federal courts after Brown v. Board of Education13 consistently ruled that state-
enforced racial discrimination was illegal, most laws requiring segregation had
been repealed by the 1960s.14 Nor was it a case of farsighted business groups
taking the lead in abolishing archaic racial restrictions in pursuit of their own
self-interest. Business acquiescence was reluctant, coming only after heavy
economic losses from years of protest, primarily in the forms of sit-ins and
boycotts. Although the racial attitudes of managers undoubtedly played a role,
their opposition to desegregation was fundamentally economic: the fear that
accepting black customers would result in the loss of white customers. When
asked in late 1959 by James Lawson and others to begin serving African
Americans, Nashville department store owners Fred Harvey and John Sloan
declined, saying they would lose more business than they would gain.15
Business fears operated not just at the level of individual firms but often for an
entire downtown area. Thus the owner of Meyer’s Department Store in
Greensboro predicted that desegregation would make “a kind of ghetto out of
this section of the city.”16
Throughout this period, the legal issues were cloudy, with both sides
appealing to competing and long-standing common-law traditions. Although
many cases against protesters were dismissed on narrow grounds, the Supreme
Court never issued a definitive ruling on the core state action question.17 Title
13 347 U.S. 483 (1954).
14 Marian A. Wright, Public Accommodations, in LEGAL ASPECTS OF THE CIVIL RIGHTS
MOVEMENT 87-88 (Donald B. King & Charles W. Quick eds., 1965).
15 Ernest M. Limbo, James Lawson: The Nashville Civil Rights Movement, in THE
HUMAN RIGHTS TRADITION IN THE CIVIL RIGHTS MOVEMENT 165-66 (Susan M. Glisson ed.,
2006).
16 WILLIAM H. CHAFE, CIVILITIES AND CIVIL RIGHTS: GREENSBORO, NORTH CAROLINA,
AND THE BLACK STRUGGLE FOR FREEDOM 136 (1980).
17 Christopher W. Schmidt, The Sit-ins and the State Action Doctrine, 18 WM. & MARY
BILL RTS. J. 767, 771 (2010) (“Between 1961 and 1963, the Court found ways to side with
the students, overturning trespassing and breach-of-peace convictions on narrow, fact-based

762 BOSTON UNIVERSITY LAW REVIEW [Vol. 95:759
II of the Civil Rights Act was crucial in bringing resolution to this hotly
contested matter.18
By the summer of 1963, merchant groups in most major metropolitan areas
had made their peace with the protesters, discovering that white customer
reaction was far milder than anticipated, and that desegregation actually proved
to be a good business move.19 Despite these successful local settlements, it
soon became clear that a purely voluntary approach to the problem would not
be adequate. In November 1963, a memo from Assistant Attorney General
Louis Oberdorfer acknowledged, “Reports of progress in desegregation of
privately owned public facilities show virtually no breakthroughs since the
middle of October . . . very little change is now taking place.”20 Worse yet,
partial desegregation often seemed only to make the situation worse. In a
follow-up memo Oberdorfer noted the “curious patchwork pattern” that had
emerged in which most lunch counters were integrated but not restaurants,
theaters but not drive-ins, and so on.21 The unevenness of outcomes generated
strong feelings of inequity on the part of businesses and threatened to unravel
existing agreements. Recalling the period in later years, Mayor Ivan Allen of
Atlanta reported: “Everything I had tried in those areas [hotels and restaurants]
had failed. There had been endless meetings with the hotel and restaurant
people over the past three or four years, and no matter what agreement was
reached everyone involved would be split in every direction.”22
Title II enacted a clear, bright-line principle with virtually universal
application. The shift in assessments of political feasibility was remarkably
rapid, surprising many veteran observers. The reason for the swing, however,
is not difficult to identify. Behind the scenes, the administration was hearing
from national drug and variety store chains, who recognized that limited,
narrowly defined desegregation would perpetuate uncertainty and could put
complying firms at a competitive disadvantage. In the House of
Representatives, which fended off all efforts to water down Title II, debate was
marked by the virtual absence of organized business opposition.23
grounds, while avoiding the looming constitutional issue.”).
18 Id. (explaining how support for a draft opinion concluding that the Constitution did not
require racially integrated public accommodations evaporated with Senate approval of the
Civil Rights Act of 1964).
19 GAVIN WRIGHT, SHARING THE PRIZE: THE ECONOMICS OF THE CIVIL RIGHTS
REVOLUTION IN THE AMERICAN SOUTH 84-89 (2013) (quoting contemporary interviews with
metropolitan business owners expressing surprise and relief at the positive impact of
integration on their businesses).
20 Memorandum from Burke Marshall to Robert F. Kennedy 1 (Nov. 13, 1963), available
at http://www.jfklibrary.org/Asset-Viewer/Archives/BMPP-030-006.aspx#, archived at
http://perma.cc/YT7U-Y76Y.
21 Id. at 7.
22 IVAN ALLEN, JR. WITH PAUL HEMPHILL, MAYOR: NOTES ON THE SIXTIES 103 (1971).
23 WRIGHT, supra note 19, at 94-95.

2015] ECONOMIC IMPACT OF CIVIL RIGHTS ACT 763
Nevertheless, the new principle might have been far less effective if not for
the active participation of civil rights groups (who stood ready to test the new
law from the day it went into effect), meaningful enforcement by the
Department of Justice, and consistent support from the courts. Civil rights
leaders launched a massive effort to test compliance and seek implementation
of Title II within minutes of President Johnson’s signing.24 Morrison’s, the
largest cafeteria chain in the South, announced that it would serve “Negroes”
“rather than buck the Federal Government.”25 Resistance flared in a number of
well-publicized cases, primarily in smaller towns and rural areas that had not
seen sit-ins and protests. The Justice Department brought ninety-three cases in
the first three years (supplemented by many private suits), serving notice that
outright defiance would be prosecuted. By the early 1970s, litigation had
moved on to socially sensitive areas such as bowling alleys and skating rinks,
ultimately bringing almost all of these facilities under Title II coverage, even
where a connection to interstate commerce was remote or absent altogether.26
As public accommodations complaints dwindled, the last attorney general’s
report with a section devoted to Title II appeared in 1977.27
The speed and relative completeness of the public accommodations
revolution may convey the sense that the entire issue was of secondary
importance, but this perception is only plausible in retrospect. In its day, this
was a hot-button issue. Joseph Singer has noted that many areas of commerce
such as retail trade are probably not covered by Title II, even though most
Americans (including law professors) assume that they are.28 The reason for
this disjuncture, he argues, is that “the civil rights statutes passed in the 1960s
had a revolutionary impact on public attitudes . . . the prevailing social
assumption now is that businesses open to the public have no right to exclude
customers on the basis of race and that the law backs up that assumption.”29
The case of public accommodations thus stands as a prime example of social
norms transformed by change in the law. Realignment of business interests
24 James C. Tanner, Civil Rights Test: Negroes in South Ready Immediate, Broad Drive
to Try Out New Law, WALL ST. J., July 2, 1964, at 1.
25 Id.
26 Richard Seldin, Eradicating Racial Discrimination at Public Accommodations Not
Covered by Title II, 28 RUTGERS L. REV. 1, 4 (1974) (“Recent decisions, however, have
rejected this distinction [between spectator- and participant-oriented places of exhibition or
entertainment] and have held that roller skating rinks, ‘amusement parks,’ recreational areas,
and bars with mechanical entertainment devises are covered as places of entertainment.”
(citations omitted)).
27 Lisa Gabrielle Lerman & Annette K. Sanderson, Discrimination in Access to Public
Places, 7 N.Y.U. REV. L. & SOC. CHANGE 215 (1978); U.S. DEP’T OF JUSTICE, ANNUAL
REPORT OF THE ATTORNEY GENERAL (including sections devoted to Title II in each year’s
report from 1965-77).
28 Joseph William Singer, No Right to Exclude: Public Accommodations and Private
Property, 90 NW. U. L. REV. 1283 (1996).
29 Id. at 1293.

764 BOSTON UNIVERSITY LAW REVIEW [Vol. 95:759
under political and economic pressure was an important contributor to this
outcome.
II. RACIAL DISCRIMINATION IN LABOR MARKETS: THE REGIONAL CONTEXT
OF TITLE VII
At the time of the Civil Rights Act, racial discrimination was pervasive in
all parts of the country, but the underlying political and economic structures
differed markedly by region. Unlike the rest of the country, firms in the South
had explicit racial job classifications and segregated “lines of progression.” As
with public accommodations, it is misleading to characterize these systems as
“de jure” segregation, as very few aspects of these systems were codified into
law. Even without legal buttress, segregation lines were extremely stable.
Donald Dewey, virtually the only white economist at a southern university to
devote research to the race issue, reported in the mid-1950s that in most plants,
“the racial division of labor . . . remained fixed as far back as anyone can
remember.”30 Segregation served to define and protect racial wage
differentials; typically black wages peaked about where the white wage
distribution began. Textiles, the region’s largest industry, was an extreme case,
in that black workers were almost completely excluded from machine-tending
positions, a tradition entrenched since the Civil War.31 Earlier
antidiscrimination efforts such as the wartime Fair Employment Practices
Committee and state fair employment laws had some success in improving
black employment status, but virtually none in the South.32
In the northern states, by contrast, labor market surveys conducted during
the 1930s show no evidence of a racial wage gap.33 Discrimination instead
occurred on non-wage margins, such as assignment to hot, grueling, dangerous
foundry jobs in the auto industry, or failure to hire altogether. From the 1930s
onward, black unemployment rates were persistently higher in northern than in
southern states.34 These regional differences were reflected in the very name of
30 Donald Dewey, Four Studies of Negro Employment in the Upper South, in SELECTED
STUDIES OF NEGRO EMPLOYMENT IN THE SOUTH 175 (Nat’l Planning Ass’n ed., 1955).
31 Richard L. Rowan, The Negro in the Textile Industry, Report No. 20, in THE NEGRO IN
THE TEXTILE INDUSTRY 1 (1970) (“Negroes were excluded from the textile industry, almost
as a matter of policy, from 1880 to 1960.”).
32 William J. Collins, Race, Roosevelt, and Wartime Production: Fair Employment in
World War II Labor Markets, 91 AM. ECON. REV. 272, 284 (2001) (“The FEPC . . . was
surprisingly effective in its efforts to promote Roosevelt’s antidiscrimination policy outside
of the South, though the Committee appears to have been powerless in the South.”); William
J. Collins, The Labor Market Impact of State-Level Anti-Discrimination Laws, 1940-1960,
56 INDUS. & LAB. REL. REV. 244, 244-72 (2003).
33 See, e.g., Jacob Perlman & Edward K. Frazier, Entrance Rates of Common Laborers in
20 Industries, July 1937, 45 Monthly Lab. Rev. 1491, 1494 (1937) (showing no difference
in average entry-level compensation for white and black common laborers in non-southern
states).
34 Jenny Bourne, “A Stone of Hope”: The Civil Rights Act of 1964 and Its Impact on the

2015] ECONOMIC IMPACT OF CIVIL RIGHTS ACT 765
the 1963 March on Washington for Jobs and Freedom, where the twin goals
represented the distinct keywords of the southern and non-southern
movements.35
Early drafts of the Civil Rights Act contained no fair employment section,
an omission reversed in response to vigorous lobbying by groups allied in the
Civil Rights Coalition. The administration may have felt that it had already
addressed the issue through President Kennedy’s 1961 executive order
requiring government contractors to take “affirmative action” towards fair
employment, and the voluntary Plans for Progress program.36 But early reports
from these programs indicated that “[n]umerical gains are slight.”37 Political
pressures for a federal law that applied to private employers came from both
regional branches of the movement, and the resulting Title VII prohibited
discrimination in either employment or compensation, adding color, religion,
national origin, and sex to race as protected categories.
Nonetheless, prevailing expectations for significant progress under the Act
were low because of compromises during the legislative process. The text
contained glaring loopholes, such as exemptions for “bona fide” seniority or
merit systems, and protection for “professionally developed ability test[s]” so
long as they were not “intended or used” to discriminate.38 More
fundamentally, the newly created Equal Employment Opportunity Commission
(“EEOC”) could neither initiate lawsuits nor issue cease-and-desist orders. The
EEOC was essentially a conciliatory agency for resolving allegations of
employment discrimination by individuals. Although these provisions limited
enforcement efforts in all regions, Daniel Rodriguez and Barry Weingast argue
persuasively that their primary purpose was to protect northern employers
against discrimination charges, reflecting a major constituency of the
Republican minority whose support was needed to overcome the Southern
filibuster in the Senate.39 Thus the stipulation that employers must exhibit a
Economic Status of Black Americans, 74 LA. L. REV. 1195, 1215 (2014); William A.
Sundstrom, Last Hired, First Fired? Unemployment and Urban Black Workers in the Great
Depression, 52 J. ECON. HIST. 415-429 (1992) (discussing black unemployment rates in the
1930s); Christopher L. Foote, Warren C. Whatley, & Gavin Wright, Arbitraging a
Discriminatory Labor Market: Black Workers at the Ford Motor Company, 1918-1947, 21
J. LAB. ECON. 493, 493-532 (2003) (explaining job assignments and the absence of a racial
wage differential in the auto industry).
35 WILLIAM P. JONES, THE MARCH ON WASHINGTON: JOBS, FREEDOM, AND THE
FORGOTTEN HISTORY OF CIVIL RIGHTS 163-74 (2013) (describing how northern activists
expanded plans for a proposed March on Washington for Jobs to include demands for
expanded protection of civil liberties in order to accommodate southern activists).
36 Exec. Order No. 10,925, 3 C.F.R. 448, 450 (1959-1963).
37 Memorandum from Burke Marshall to Robert F. Kennedy (March 2, 1963) (on file
with the John F. Kennedy Presidential Library), available at
http://www.jfklibrary.org/Asset-Viewer/Archives/BMPP-008-001.aspx#.
38 42 U.S.C. § 2000e-2(h) (2012).
39 Daniel B. Rodriguez & Barry R. Weingast, The Positive Political Theory of

766 BOSTON UNIVERSITY LAW REVIEW [Vol. 95:759
“pattern or practice” of discrimination seemed to target explicit southern
segregation systems as opposed to subtler forms of bias elsewhere. Similarly,
the requirement that petitioners must first exhaust remedies under state fair-
employment offices was also decidedly regional, since the twenty-eight states
that had such commissions were all non-southern.
Like the rest of the Act, Title VII was passed with the South primarily in
mind. In light of the structural weaknesses of the enforcement system,
however, Title VII might have been of no more consequence than earlier
efforts, even in the South. What made this time different were ongoing
political mobilization in the South, lawyers aggressively pursuing private
discrimination suits, and a federal government responsive to these pressures.
III. BLACK ECONOMIC GAINS UNDER TITLE VII
Despite the impression of legislative weakness, the economic status of
African Americans began to improve at an accelerated pace after passage of
the Civil Rights Act, especially in the South. The discontinuity in relative
black incomes around 1965 has been established by several empirical studies.40
The predominance of the South in these gains has also been confirmed by
studies that disaggregate by region.41 Supplementary confirmation comes from
the finding that black employment gains were greater at large employers
covered by Title VII relative to others; and that these gains were extended to
newly covered employers when the Act was amended in 1972.42
Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation,
151 U. PA. L. REV. 1417, 1492-96 (2003) (arguing that Senator Dirksen blunted the impact
of the 1964 CRA on Northern states in order to attract Republican support necessary to
defeat a filibuster of the Act).
40 Charles Brown, The Federal Attack on Labor Market Discrimination: The Mouse that
Roared?, 5 RES. LAB. ECON. 33, 33 (1982) (“In general, time series studies find significant
improvements in the relative labor market position of blacks compared with whites since
1965.”); Richard B. Freeman, Black Economic Progress after 1964: Who Has Gained and
Why?, in S
TUDIES IN LABOR MARKETS 247, 247 (Sherwin Rosen ed., 1981) (“[B]lack
Americans made substantial advances in the job market after 1964.”); Richard B. Freeman,
R. A. Gordon, Duran Bell & Robert E. Hall, Changes in the Labor Market for Black
Americans, 1948-1972, BROOKINGS PAPERS ON ECON. ACTIVITY 67-131 (1973); Wayne
Vroman, Changes in Black Workers’ Relative Earnings: Evidence from the 1960s, in
PATTERNS OF RACIAL DISCRIMINATION 167, 187 (George M. von Furstenberg et al. eds.,
1974) (concluding that census data showed “evidence of a post-1964 acceleration of
earnings gains for blacks”).
41 John J. Donohue III & James J. Heckman, Continuous Versus Episodic Change: The
Impact of Civil Rights Policy on the Economic Status of Blacks, 29 J. ECON. LITERATURE
1603-43 (1991); Vroman, supra note 40, at 181-84; Bourne, supra note 34, at 1205-09.
42 William J. Carrington, Kristin McCue & Brooks Pierce, Using Establishment Size to
Measure the Impact of Title VII and Affirmative Action, 35 J. HUM. RESOURCES 503, 504-14
(2000); Kenneth Y. Chay, The Impact of Federal Civil Rights Policy on Black Economic
Progress, 51 INDUS. LAB. REL. REV. 608, 611-12 (1998).

2015] ECONOMIC IMPACT OF CIVIL RIGHTS ACT 767
Some recent surveys have conveyed the impression that determining the
impact of Title VII on black labor market outcomes is a tough statistical
challenge because the near-universality of coverage meant that this was a
policy experiment with no control group.43 The fact of black economic
progress, especially in the South, can hardly be denied. But how can we know
with confidence that these changes would not have happened anyway, in the
absence of federal legislation, as the result of long-term trends in education and
economic development?
Once one recognizes that discriminatory structures in the South were very
different than in other parts of the country, the story is not that complicated.
Within the South, there is virtually no evidence of any positive pre-trend in
relative black incomes or occupational status, nor any weakening of
employment segregation, prior to the 1960s. Figure 1 offers some sense of just
how abrupt the change was in the important case of the textiles industry. The
figures are for South Carolina because only that state tracked industry
employment by race on an annual basis. But all indications are that the timing
in other textile states was similar. It is true that wages for textile workers were
rising in the 1960s so that employers had an incentive to tap into a new source
of labor. But Figure 1 shows that earlier episodes of labor-market tightness,
including both world wars, had no more than modest transitory effects on black
exclusion. During the 1960s, in contrast, the break in industry demand for
black labor occurred almost simultaneously in the textile counties of the state,
regardless of local demographic or economic conditions.44 One could hardly
ask for a clearer before-and-after test.
43 David Neumark & Wendy A. Stock, The Labor Market Effects of Sex and Race
Discrimination Laws, 44 ECON. INQUIRY 385, 387-89 (2006); Joni Hersch & Jennifer
Bennett Shinall, Fifty Years Later: The Legacy of the Civil Rights Act of 1964, at 13-21
(Vand. U. L. Sch. L. & Econ. Working Paper No. 14-33, 2014).
44 Richard J. Butler, James J. Heckman, & Brook Payner, The Impact of the Economy
and the State on the Economic Status of Blacks: A Study of South Carolina, in MARKETS IN
HISTORY 231, 247-50 (David Galenson ed., 1989) (discussing previous research by Alice E.
Kidder and concluding that “government policy played a significant role in improving black
economic status . . . rather than merely reflecting changes that were already taking place”).

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der, The Impa
c
8
8 (2011).
-tabulation data
:759
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ins
the
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48
mic
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s: A
t
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of
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ern
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ON
.
c
t of
and

2015] ECONOMIC IMPACT OF CIVIL RIGHTS ACT 769
forward from 1964, studies that control for education understate the change
associated with Title VII, because of dynamic complementarity between
schooling and occupational progress.
Federal Census data show no evidence of progress in southern black
occupational status between 1950 and 1960, though in other regions black
employment shares drifted upward in such categories as clerical, sales, and
skilled blue-collar jobs.50 Any positive pre-trend was therefore confined to
non-southern states. Annual income data from the Current Population Survey
confirm this picture of slow progress in the Northeast and Midwest versus
stagnation or even retrogression in the South until the 1960s (Figure 2).
Despite a decade of robust real wage growth for most Americans, median real
income for black male southerners was no higher in 1963 than it had been ten
years earlier. For black women, the turning point may have been a year or two
earlier, but the pattern was essentially similar. Thus the most that a Title VII-
skeptic can claim is that the economic tide for black southerners had begun to
turn shortly prior to enactment.
concluding that “the rise in the return to education for Southern-born blacks was driven by
improvements in the quality of black schools, and not simply by an economywide reduction
in discrimination against better-educated black workers”). For the black cohort born
between 1940 and 1949, the sharpest increase in returns to education was for those residing
in the South, whether northern-born or southern-born. Indeed, the increase was greater for
the northern-born. Thus the evidence suggests that the crucial locus of change during the
1960s and 1970s was labor markets in the South.
50 WRIGHT, supra note 19 at 133 (compiling census data showing “little to no progress in
[black occupational status] in the 1950s” in three large Southern cities and in the region as a
whole).

770
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[Vol. 95
a
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esponsible j
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53
Civil ri
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a
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n
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R
ights Move
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55
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NAL
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Yet
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and
T
S IN
I
CAN

2015] ECONOMIC IMPACT OF CIVIL RIGHTS ACT 771
An additional problem in trying to isolate the effects of Title VII is that in
the same year its provisions went into effect (1965), President Johnson issued
Executive Order 11,246,56 requiring government contractors to undertake
affirmative action towards nondiscrimination and creating the Office of
Federal Contract Compliance (“OFCC”) (later the Office of Federal Contract
Compliance Programs (“OFCCP”)) to enforce these rules. Studies have shown
that black occupational and employment gains were greater at firms with
government contracts, particularly those undergoing compliance reviews.57
Even controlling for the effects of executive-order compliance, class-action
litigation under Title VII is found to have had additional favorable effects on
black employment.58 But clearly both channels were parts of a single federal
campaign to expand black employment opportunities. Since the OFCCP, the
Justice Department, and the EEOC influenced each other and often worked
together, trying to distinguish their separate effects with precision seems futile.
The futility of the effort is underscored by considering that all of the tests rely
on cross-sectional comparisons between firms directly affected and others.
They therefore do not include actions taken by firms in order to avoid or
preempt litigation or compliance reviews. In all likelihood, this category
comprised the better part of the historical change.
How was it that an enforcement system designed to be weak had such
powerful effects, and why were these effects so much larger and more lasting
in the South? For the early post-Act years, answers to both questions include
the strength of southern grassroots mobilization and legal activism. These
pressures fostered an expansive reading of Title VII on the part of the EEOC
and in turn by the courts. In the previously all-white southern textiles industry,
firms were flooded with job applications from aspiring black workers,
encouraged by the EEOC. Floyd Harris, one of the first black textile workers in
West Point, Georgia, recalled:
I was active in the social revolution that went on from the fifties, through
the sixties and early seventies, so I was aware of what the black leaders
were talking about. We wrote the laws and they passed the Civil Rights
bill, and I knew that if the federal government made it a law it’d have to
be followed. Our management here is smart and they knew it too.59
Textile management may have been “smart,” but not many were farsighted
enough to see in advance that their interests would be served by racial
56 3 C.F.R. 339 (1964-1965).
57 Jonathan S. Leonard, The Impact of Affirmative Action on Employment, 2 J. LAB.
ECON. 439, 446-51 (1984); Jonathan S. Leonard, Employment and Occupational Advance
Under Affirmative Action, 66 REV. ECON. & STAT. 377-85 (1984).
58 Jonathan S. Leonard, Antidiscrimination or Reverse Discrimination: The Impact of
Changing Demographics, Title VII, and Affirmative Action on Productivity, 19 J. HUM.
RESOURCES 145, 147-55 (1984).
59 Mary Fredrickson, Four Decades of Change: Black Workers in Southern Textiles,
1918-1981, in WORKERS’ STRUGGLES, PAST AND PRESENT 62, 73 (James Green ed., 1983).

772 BOSTON UNIVERSITY LAW REVIEW [Vol. 95:759
integration. They did not speak out in favor of Title VII, and when the EEOC
held hearings in Charlotte in 1967, employers declined to participate.
Managers shared many of the same racial prejudices held by white workers,
anticipating that new black hires would undermine work performance. When
the experiment was actually tried, however, the typical result was “no
discernible difference in productivity” between blacks and whites.60 By 1969,
The New York Times reported: “Virtually all of the large companies have
begun to preach a doctrine of equal, color-blind employment.”61
Other southern industries took longer to integrate, often requiring extensive
litigation. But here too, grassroots activism was crucial. The landmark case
Griggs v. Duke Power62 originated when a group of janitors in the all-black
Labor Department of the Dan River Steam Station submitted a letter requesting
transfers to previously white departments when vacancies became available.63
The janitors had strong incentives to transfer, as the maximum wage any of
them earned was $1.645 per hour, whether or not they had a high school
education, while the minimum paid to any white worker (many of whom also
did not have a high school degree) was $1.875 per hour.64 They were informed
that standards were being raised and that they were welcome to take the new
test, instituted on the same date that Title VII went into effect. The group
forwarded its complaint to the EEOC, which attempted conciliation but was
essentially snubbed by the firm. Only then did the janitors turn to the NAACP
Legal Defense Fund, which assisted them in filing suit. The upshot five years
later was a Supreme Court ruling that tests having a disparate impact on
minorities could be invalid regardless of intent, unless shown to be related to
job performance.65 Griggs and related rulings gave new credibility to EEOC
guidelines and impelled far more thoroughgoing change than firms had
initially anticipated. Citations to the case rose steadily through the 1970s,
peaking in 1980 before declining in the next decade.66
Thus, the ongoing Civil Rights Movement shaped an expansive
understanding of Title VII that went well beyond what might have been
understood from the text itself. Under pressure to produce tangible results, the
60 WRIGHT, supra note 19, at 112.
61 Roy Reed, Industry in South Woos Negro Labor, N.Y. TIMES, May 19, 1969, at A1.
62 401 U.S. 424 (1971).
63 Id. at 426.
64 ROBERT BELTON, THE CRUSADE FOR EQUALITY IN THE WORKPLACE: THE GRIGGS V.
DUKE POWER STORY 109 (2014).
65 Griggs, 401 U.S. at 431 (“The [Civil Rights] Act proscribes not only overt
discrimination but also practices that are fair in form, but discriminatory in operation.”). See
generally BELTON, supra note 64; ROBERT SAMUEL SMITH, RACE, LABOR AND CIVIL RIGHTS:
GRIGGS VERSUS DUKE POWER AND THE STRUGGLE FOR EQUAL EMPLOYMENT OPPORTUNITY
(2008).
66 Alfred W. Blumrosen, The Legacy of Griggs: Social Progress and Subjective
Judgments, 63 CHI. KENT L. REV. 1, 11 (1987).

2015] ECONOMIC IMPACT OF CIVIL RIGHTS ACT 773
EEOC moved within its first few years away from its original focus on
mediating disputes towards a more “wholesale approach,” targeting industries
and metropolitan areas where under-representation was severe, and
emphasizing numerical goals for minority employment.67 The EEOC and the
NAACP Legal Defense Fund assisted each other in developing legal theories
to support these measures. The EEOC revised its guidelines on testing in 1970,
after Griggs had been argued in the court of appeals, and the Solicitor General
urged the Supreme Court to give great deference to these guidelines.68 Thus the
Court had a well-developed body of theory to draw upon. It has been argued
that the combination of strongly motivated private lawsuits and an ostensibly
weak agency exercising persuasive powers was more potent than a more
centralized enforcement structure would have been.69 We can only guess at the
historical alternative, but activism clearly made a difference.
For similarly pragmatic reasons, the OFCC moved towards a “numbers-
oriented affirmative action approach” in its reviews to determine whether
federal contractors were in compliance.70 A key step was OFCC’s Order 4 in
early 1970, which required employers to submit explicit affirmative action
plans, including “goals and timetables” specifying how many minorities the
contractor would attempt to hire in a specified period.71 Sociologist Frank
Dobbin reports that by the end of the 1970s, the majority of large U.S. firms
had adopted explicit antidiscrimination policies; personnel offices; job
postings; and centralized hiring, promotion and discharge practices. “By the
early 1980s,” he writes, “leading firms had troops on hand who were fighting
for equal opportunity programs. They had internalized the civil rights
movement.”72 This statement may overstate the level of corporate idealism, but
when the Reagan Administration proposed to dismantle affirmative action in
the mid-1980s, business groups successfully opposed these measures, making
it clear that they planned to maintain their programs despite cutbacks in
government enforcement.73
67 JOHN DAVID SKRENTNY, THE IRONIES OF AFFIRMATIVE ACTION: POLITICS, CULTURE,
AND JUSTICE IN AMERICA 121-33 (1996).
68 BELTON, supra note 64, at 171.
69 Nicholas Pedriana & Robin Stryker, The Strength of a Weak Agency: Enforcement of
Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965-1971, 110
AM. J. SOC. 709, 745-47 (2004).
70 SKRENTNY, supra note 67, at 133-39.
71 Erin Kelly & Frank Dobbin, How Affirmative Action Became Diversity Management,
in C
OLOR LINES: AFFIRMATIVE ACTION, IMMIGRATION, AND CIVIL RIGHTS OPTIONS FOR
AMERICA 91-92 (John David Skrentny ed., 2001).
72 FRANK DOBBIN, INVENTING EQUAL OPPORTUNITY 158 (2009).
73 Anne B. Fisher, Businessmen Like to Hire by the Numbers, FORTUNE, Sept. 16, 1985,
at 26 (“[P]ersuasive evidence indicates that most large American corporations want to retain
their affirmative action programs, numerical goals and all.”).

774 BOSTON UNIVERSITY LAW REVIEW [Vol. 95:759
IV. REGIONAL PERSISTENCE AFTER 1980
Not yet explained in this formulation is why advances in black economic
status mainly occurred and persisted in the South. Between 1965 and 1971, the
majority of charges filed with the EEOC and an even larger share of Title VII
legal cases came from the South.74 This regional pattern might have been an
indicator of the severity of southern discrimination, but it also reflected the
strong southern black record of mobilization, represented by a Legal Defense
Fund network of more than 200 cooperating lawyers, most of them African
Americans working in the South.75 Although it was certainly not inevitable that
the courts would rule as aggressively as they did during this era, in retrospect
these were relatively easy cases. Southern firms maintained labor systems that
were explicitly racial and undeniably unequal, excluding blacks from all job
categories except the lowest. So distinct were the legal issues that the body of
legal doctrine emerging from court decisions came to be known as the
“Southern jurisprudence” of employment discrimination.76
The gains from breaking down these structures in blue-collar occupations
were large and immediate. Most relative black wage growth between 1960 and
1970 was due to the shift from “laborer” into higher-paying “operative” and
“craftsman” positions, plus relative wage increases within these categories.77
Figure 3 displays black employment shares after 1966 in white-collar and blue-
collar occupations by region. Between 1966 and 1980, blue-collar employment
gains were by no means limited to the South, but the size of the southern shift
(as well as its economic payoff) was far larger during that period. Impelled by
urban riots, the EEOC made serious efforts to address discrimination
elsewhere, conducting a series of highly publicized hearings in northern and
western states beginning in 1968.78 These non-southern forms of
discrimination proved less responsive to legal and political pressure.
Throughout the 1970s, however, advocates and government officials could
point to steady gains in minority employment in higher-paid jobs, despite the
economic turbulence of that decade.79
74 Jerome M. Culp, A New Employment Policy for the 1980s: Learning from the
Victories and Defeats of Twenty Years of Title VII, 37 RUTGERS L. REV. 889, 899 (1985).
75 BELTON, supra note 64 at 33.
76 Alfred W. Blumrosen, The Law Transmission System and the Southern Jurisprudence
of Employment Discrimination, 6 INDUS. REL. L.J. 313, 316, 352 (1984).
77 Butler et al, supra note 44, at 233-34 (showing that relative black wage growth
between 1960-70 was due largely to a shift in occupation from lower- to higher-paying job
types).
78 Konrad Mark Hamilton, From “Equal Opportunity” to “Affirmative Action”: A
History of the Equal Employment Opportunity Commission, 1965-1980, at 151-54 (May
1998) (unpublished Ph.D. dissertation, Stanford University) (on file with the Stanford
University Special Collections and University Archives).
79 See, e.g., HERBERT HAMMERMAN, A DECADE OF NEW OPPORTUNITY: AFFIRMATIVE
ACTION IN THE 1970S (1984).

2015]
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r
and No
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776 BOSTON UNIVERSITY LAW REVIEW [Vol. 95:759
towards relaxed regulatory activity.83 William Bradford Reynolds, Assistant
Attorney General for Civil Rights, stated his support for “individual
opportunity” as opposed to “group entitlements,” specifically opposing “race-
conscious affirmative action.”84 The administration was true to these words.
EEOC cases recommended to the General Counsel and lawsuits filed each fell
by fifty percent.85 More importantly, the agency ceased its efforts to identify
patterns of bias in industries or firms and no longer pursued class action suits,
concentrating instead on individual discrimination complaints.86 Compliance
reviews by the OFCCP actually increased but became perfunctory, rarely
imposing penalties. Jonathan Leonard, the foremost economic analyst of anti-
discrimination programs, concluded that “affirmative action under the contract
compliance program virtually ceased to exist in all but name after 1980.”87
Did this major policy shift have an effect on real-world outcomes? It would
be rash to argue that all or most of the slowdown in black economic progress
after 1980 was directly attributable to changes in affirmative action policy, and
few if any economists advance this claim. But many experts do argue that the
virtual withdrawal of the federal government from active enforcement efforts
had deleterious consequences, which were especially damaging in combination
with adverse developments in labor markets and international manufacturing
competition.88
Surprisingly, however, in the South, the black share of skilled blue-collar
jobs resumed its growth after 1982, and the black share of white-collar
positions continued to rise steadily through the 1990s, and more moderately
thereafter (Figure 3). This is not a simple matter of adjustment to racial
demographics, or of regional “convergence” in degrees of representation.
When the figures are normalized to reflect regional or metropolitan differences
in black population shares, the distinctiveness of the southern track record
stands out even more clearly.
Perhaps the best evidence for the reality of black occupational progress in
the South has been the reversal of migration patterns that had prevailed for
83 Howell Raines, Reagan Sends Mixed Signals on Civil Rights, N.Y. TIMES, July 16,
1981, at A1.
84 TERRY H. ANDERSON, THE PURSUIT OF FAIRNESS: A HISTORY OF AFFIRMATIVE ACTION
169 (2004).
85 Compare EEOC, 16TH ANNUAL REPORT 29 (1981) (showing 307 Title VII cases
recommended to the General Counsel), with EEOC, 19TH ANNUAL REPORT 17 (1984)
(showing 162 Title VII cases recommended to the General Counsel).
86 ANDERSON, supra note 84, at 178.
87 Jonathan S. Leonard, The Impact of Affirmative Action Regulation and Equal
Employment Law on Black Employment, 4 J. ECON. PERSP. 47, 58 (1990).
88 See John Bound & Richard B. Freeman, What Went Wrong? The Erosion of Relative
Earnings and Employment Among Young Black Men in the 1980s, 107 Q. J. ECON. 201, 228-
29 (1992) (“[Government pressures to increase minority employment lessened in the 1980s .
. . . [T]here is reason to expect that [this] contributed to the observed erosion of gains [in
minority employment].”).

2015] ECONOMIC IMPACT OF CIVIL RIGHTS ACT 777
more than a century. Since 1970, net black migration has been persistently
southward, increasingly so over time. Between 1980 and 2010 more than 1.5
million African Americans moved south from all other regions of the
country.89 Demographic studies show that although the South attracted a larger
absolute number of white migrants, blacks in other regions were substantially
more likely than whites to choose the South as their destination. This “reverse”
black migration into the South was highly selective both on education and
stable family structure, relative to black movers elsewhere.90
We do not yet know all of the reasons for this pattern, but the list of likely
factors includes: economic growth in southern cities with large black
populations; “network effects” associated with historically black southern
communities; greater black political representation in the South; the impact of
black representation on recruitment and retention of new black employees.
Particularly suggestive are studies showing that the variable most strongly
related to new black employment is the percentage of job applicants who are
African American, in turn strongly influenced by the race of the hiring
officer.91 One exceptional study was able to exploit manager turnover at a large
U.S. retail firm to isolate the effect of the hiring officer’s race or ethnicity on
the race or ethnicity of new hires. The authors found not only that own-race
hiring bias was significant, but that these effects were most pronounced in the
South.92
What we can say with more confidence is that these advances have not been
driven by increasingly forceful applications of Title VII to private employers in
89 WRIGHT, supra note 19, at 142-46.
90 William H. Frey, The New Great Migration: Black Americans’ Return to the South,
1965-2000, in 2 REDEFINING URBAN AND SUBURBAN AMERICA 87, 95-100 (Alan Berube,
Bruce Katz & Robert E. Lang eds., 2005) (“More educated blacks are now migrating to
Southern destinations at higher rates than those with lower education levels.”); Larry L.
Hunt, Matthew O. Hunt & William W. Falk, Who Is Headed South? U.S. Migration Trends
in Black and White, 1970-2000, 87 SOC. FORCES 95, 103-10 (2008) (analyzing data showing
that married blacks moved to the South at much higher rates than married blacks in the
South moved elsewhere); Matthew O. Hunt, Larry L. Hunt & William W. Falk, “Call to
Home?” Race, Region, and Migration to the U.S. South, 1970-2000, 27 SOC. FORUM 117,
126-36 (2012) (analyzing the status advantages of blacks who migrated to the South relative
to blacks who migrated outside of the South).
91 Michael A. Stoll, Steven Raphael & Harry J. Holzer, Black Job Applicants and the
Hiring Officer’s Race, 57 INDUS. & LAB. REL. REV. 267, 283-84 (2004) (finding that “the
propensity of blacks to apply for jobs in the establishments where blacks occupy positions
of authority” contributed significantly to the likelihood of employers with African American
hiring agents to hire blacks).
92 Laura Giuliano, David I. Levine & Jonathan Leonard, Manager Race and the Race of
New Hires, 27 J. LAB. ECON. 589, 626 (2009); see also Laura Giuliano, David I. Levine &
Jonathan Leonard, Racial Bias in the Manager-Employee Relationship: An Analysis of
Quits, Dismissals and Promotions at a Large Retail Firm, 46 J. HUM. RESOURCES 26, 30,
50-51 (2011).

778 BOSTON UNIVERSITY LAW REVIEW [Vol. 95:759
the South. Historical analyses of employment litigation have shown that racial
employment discrimination cases sharply declined relative to other types of
employment issues as of the 1980s.93 Evidently enactment and early
enforcement of Title VII launched a dynamic that has continued long after the
Civil Rights era, but only in the South. This record is testimony, on the one
hand, to the historic impact of the law. On the other, it stands as a refutation of
the notion that the nation has moved beyond race consciousness in
employment as in other realms of life.
CONCLUSION
The Civil Rights Act of 1964 was primarily prompted by the race issue in
the South. In this realm, it was a great success, generating lasting gains for
African Americans through major reductions in racial exclusions and
inequities, with few signs of significant inefficiencies in the process. These
accomplishments did not simply flow as consequences from passage of the
Act, but required ongoing moral and political pressure from the Civil Rights
Movement, plus mutually supportive enforcement efforts from several bases in
the federal government. Bringing important interest groups around to
understanding that the civil rights revolution served their economic interests as
well was also important for the legislation’s success. These accomplishments
were by no means limited to the South, but black economic progress in other
regions proved more vulnerable to changes in prevailing judicial philosophies
in the wake of the regime change in national politics after 1980.
What the Civil Rights Act did not do is create a post-racial society. Title VII
prohibits discrimination by race or color, yet progress did not come mainly
from ignoring race but by taking race systematically into account. The largest
and most lasting gains came in a region where racial consciousness remains
strong. This uneasy partnership between universalist rhetoric and race-
consciousness has been historically productive. But it is difficult to see this
formula as the major vehicle in current and future struggles against economic
inequality. Racial prejudice and discrimination undoubtedly continue. But they
have been overwhelmed by structural changes in the U.S. labor market that
could not have been foreseen in 1964.
The principles of Title VII are still important and should clearly be retained.
They were extended to women in the original legislation and by subsequent
court rulings to sexual harassment. Later legislation extended protected status
to age, pregnancy, and disabilities, and we may soon see a further extension to
93 Sara Wakefield & Christopher Uggen, The Declining Significance of Race in Federal
Civil Rights Law: The Social Structure of Employment Discrimination Claims, 74 SOC.
INQUIRY 128, 131 (2004) (showing a sharp decline in the percentage of EEOC employment
discrimination complaints filed on the basis of race), available at
http://www.socsci.umn.edu/~uggen/Wakefield_Uggen_SI.pdf, archived at
http://perma.cc/9ETV-XAVT; see also John J. Donohue III & Peter Siegelman, The
Changing Nature of Employment Discrimination Litigation, 43 STAN. L. REV. 983 (1991).

2015] ECONOMIC IMPACT OF CIVIL RIGHTS ACT 779
sexual orientation. Individuals in all of these categories deserve protection
against discrimination in employment and on the job. But with a majority of
the labor force now in protected status, Title VII is not likely in the future to
raise the living standards or life prospects of large numbers of low-income
Americans, as it did during the civil rights era. Nevertheless, if this historical
record does not provide us with a template for the future, it continues to stand
as an inspiration, illustrating the power of a concerted government policy with
grass-roots support, and demonstrating the positive economic value of
inclusiveness.