Civil Rights Act of 1968

Background

The first shift towards equality for African Americans occurred when President Abraham Lincoln passed the Emancipation Proclamation in 1863, which declared that "all persons held as slaves... shall be then, thenceforward, and forever free...". The Civil Rights Act of 1866 declared all people born in the United States are legally citizens. That means they could rent, hold, sell and buy property. It was meant to help former slaves, and those who refused to grant the new rights to ex-slaves were guilty and punishable under law. The penalty was a fine of $1000 or a maximum of one year in jail. The 1866 act provided no means to enforce the provisions.

The Civil Rights Movement (1954–1968), beginning after the Brown v. Board of Education case, paved the way for the passage of a few civil rights bills. The Civil Rights Act of 1957 created the United States Commission on Civil Rights and the United States Department of Justice Civil Rights Division. The Civil Rights Act of 1960 enacted federal legislation of local registration polls and if anyone obstructed someone's right to vote, there were severe penalties. It also extended the Civil Rights Commission, so it could oversee registration and voting practices. The Civil Rights Act of 1964 outlawed discrimination on the basis of race, color, religion, sex, and national origin. Unequal application of voter registration requirements, racial segregation, and employment discrimination were also prohibited. The Voting Rights Act of 1965, similar to the Civil Rights Act of 1964, prohibited racial discrimination in voting. The Act was later expanded to help protect the right to vote for racial minorities throughout the country (mainly the South).

Another impetus for the law's passage came from the 1966 Chicago Open Housing Movement, led by Martin Luther King Jr., James Bevel, and Al Raby. Also influential was the 1963 Rumford Fair Housing Act in California, which had been backed by the NAACP and CORE. and the 1967 Milwaukee fair housing campaigns led by James Groppi and the NAACP Youth Council. Senator Walter Mondale advocated for the bill in Congress, but noted that over successive years, a federal fair housing bill was the most filibustered legislation in US history. It was opposed by most Northern and Southern senators, as well as the National Association of Real Estate Boards. A proposed "Civil Rights Act of 1966" collapsed completely because of its fair housing provision. Mondale commented:

A lot of [previous] civil rights [legislation] was about making the South behave and taking the teeth from George Wallace…. This came right to the neighborhoods across the country. This was civil rights getting personal.

Summary of Titles

Title I: Hate crimes

The Civil Rights Act of 1968 also enacted 18 U.S.C. § 245(b)(2), which permits federal prosecution of anyone who "willingly injures, intimidates or interferes with another person, or attempts to do so, by force because of the other person's race, color, religion or national origin" because of the victim's attempt to engage in one of six types of federally protected activities, such as attending school, patronizing a public place/facility, applying for employment, acting as a juror in a state court or voting.

Persons violating this law face a fine or imprisonment of up to one year or both. If bodily injury results or if such acts of intimidation involve the use of firearms, explosives or fire, individuals can receive prison terms of up to 10 years, while crimes involving kidnapping, sexual assault, or murder can be punishable by life in prison or the death penalty.

Though sexual orientation and gender identity were also excluded from this law, they are included in a more recent Federal hate-crime law, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.

Title II–VII: Indian Civil Rights Act

The Indian Civil Rights Act of 1968 granted Native Americans full access to the United States Bill of Rights. The first minor section focuses on re-establishing amendments now granted to Native Americans. The main portion of the section focuses on Native Americans in the United States legal system. The last section of this act points out other materials related to more constitutional rights of Native Americans, such as the "Indian Affairs, Laws and Treaties" doctrine.

Title VIII–IX: Fair Housing Act

Title VIII of the Civil Rights Act of 1968 is commonly referred to as the Fair Housing Act of 1968. Since 1968 its protections have been expanded significantly by amendment. The Office of Fair Housing and Equal Opportunity within the U.S. Department of Housing and Urban Development is charged with administering and enforcing this law.

The Civil Rights Act of 1968 prohibited the following forms of housing discrimination:

Refusal to sell or rent a dwelling to any person because of their race, color, religion or national origin. Discrimination on the basis of sex was added in 1974, and people with disabilities and families with children were added to the list of protected classes in 1988.

Discrimination against a person in the terms, conditions or privilege of the sale or rental of a dwelling.

Advertising the sale or rental of a dwelling indicating preference of discrimination based on race, color, religion or national origin. This provision was also amended to include sex, disability, and having children.

Coercing, threatening, intimidating, or interfering with a person's enjoyment or exercise of housing rights based on discriminatory reasons or retaliating against a person or organization that aids or encourages the exercise or enjoyment of fair housing rights.

Neglecting maintenance and repairs of the units rented by people based on race, religion, sex, or any other discriminatory demographic.

Restricting access to services and amenities on the basis of the renter's race, gender, religion, or nationality.

In 2012, the United States Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity issued a regulation prohibiting LGBT discrimination in federally assisted housing programs. The Supreme Court ruled in 2020 that discrimination on the basis of "sex" includes discrimination on the basis of sexual orientation and gender identity. It was not until February 2021 that Housing and Urban Development issued a rule change under President Joe Biden to implement this decision. In addition, many states, cities and towns have passed laws prohibiting discrimination in housing based on sexual orientation and gender identity.

Title X: Anti-Riot Act

The Act included the "Anti-Riot Act," enacted at 18 U.S.C. § 2101 (with its key terms, "riot" and "incite a riot," defined in 18 U.S.C. § 2102), which makes it a federal crime to use interstate or foreign commerce routes or facilities (such as by crossing state lines or through mail, use of the Internet, or phone calls) to incite a riot, organize, promote or participate in a riot or to extend activities of a riot, or to aid and abet any person performing such activities. The provision has been informally referred to as the "H. Rap Brown Law" since the arrest and trial of H. Rap Brown in 1967 for carrying a gun across state lines. Rulings by the 4th Circuit in 2020 and 9th Circuit in 2021 struck down in those circuits the portions of the law which prohibit "urging" a riot on the grounds of freedom of speech, leaving in place bans on inciting and participation in riots.

Legislative history

In 1966, President Johnson proposed a new civil rights bill, but it was not passed through by the Senate. On February 17, 1967, the bill was introduced in the House by Rep. Manny Celler and in the Senate by Senator Philip A. Hart.

The House Judiciary Committee cleared H.R. 2516 (civil rights bill) and HR 10805 (extended life of Civil Rights Commission for another five years). House Judiciary Subcommittee No. 5 June 22 approved a package combining H.R. 2516 and H.R. 421 (Administration bill) in order to strengthen protections for civil rights workers.

H.R. 2516 was taken up on the floor of the House of Representatives for an initial vote on August 16, 1967. The total result of the vote was 327–92. This bill, as passed, did not yet contain any fair housing provisions. The House Republican Conference voted 161 in favor and 25 against. The House Democratic Caucus voted 166 in favor and 67 against, with 1 member voting present and 11 members abstaining.

The bill, with amendments, was then taken up in the Senate and subsequently amended to include several new provisions, including what became the Fair Housing Act. Opponents of the bill filibustered, hoping to either prevent the bill's passage or to require the deletion of the fair housing provision. Three attempts to invoke cloture (which required two-thirds of the Senate's concurrence) were unsuccessful. However, on the fourth—and what would have been the final attempt if it had been unsuccessful—cloture was obtained on March 4, 1968, with no votes to spare, 65–32. On March 11, 1968, the Senate approved H.R. 2516 by a vote of 71–20, with Senate Republican Conference voting 29 in favor, 3 against, with 4 not voting. The Senate Democratic Caucus voted 42 in favor, 17 against, with 5 members not voting.

The bill then returned to the house to be reconsidered with the new amendments. The House Rules Committee, by a vote of 8–7, decided not to send the bill to a conference committee as is customary, and instead brought it to a floor vote, where it subsequently passed by a total vote of 250–172. House Republicans voted 100 in favor, 84 against, and 3 present. House Democrats voted 150 in favor, 88 against, 3 present, and 4 not voting.

After being officially passed by both chambers of the 90th United States Congress, it was signed by the 36th President of the United States, Lyndon B. Johnson on April 11, 1968.

Titles

Note: Most of the information provided in this Section was paraphrased from the Titles. If you are interested at looking through the original titles, feel free to look at the Civil Rights Act of 1968.

Title I—interference with federally protected activities

Section 101 holds that Chapter 13, civil rights, title 18, United States Code, is amended by inserting a new section (Section 245) called Federally protected activities. It establishes that this section isn't set as an intent on the part of Congress, or is constructed to limited the authority of Federal officers (or Federal grand jury) to investigate possible violations in this section. In this section of the bill sets the standard for preventing any kind of threat of force by someone who willfully injures, intimidates, interferes with or even attempts any of these actions upon a person of color (full discrimination set as race, color, religion, or national origin) when the minority in question is:

Voting or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as a poll watcher, or any legally authorized election official in any election

Participating in or enjoying any benefit, service, privilege, program, facility

Applying for or enjoying employment

Serving, or attending upon any court in connection with possible service, as a grand or petit juror in any court

Participating in or enjoying the benefits of any program or activity receiving Federal financial assistance

Enrolling in or attending any public school or public college

Traveling in or using airy facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air

Enjoying the goods, services, facilities, privileges, advantages, or accommodations of any inn, hotel, motel, or other establishment

Any citizen who has been ordered to discourage these citizens from aiding/encouraging other persons to participate without discrimination in any activities listed above will be:

Title II—rights of Indians

The Indian Civil Rights Act of 1968 applies to the Indian tribes of the United States and makes many but not all of the guarantees of the Bill of Rights applicable within the federally recognized tribes. The Act appears today in Title 25, sections 1301 to 1303 of the United States Code.

The US Supreme Court had made clear that tribal internal affairs concerning tribal members' individual rights were not covered by the Fifth Amendment to the US constitution. However, the tribes were ultimately subjected to the power of Congress and the Constitution. The court case Talton v. Mayes helped establish the principles. There were other court cases over the following years to continue the thoughts "that tribes were not arms of the federal government when punishing tribal members for criminal acts and that Indian tribes were exempt from many of the constitutional protections governing the actions of state and federal governments."

In the 1960s, Congress held a series of hearings on the subject of the authority of tribal governments. The hearings told about the abuses that many tribal members had endured from the "sometimes corrupt, incompetent, or tyrannical tribal officials." In response, the Indian Civil Rights Act was enacted.

No Indian tribe in exercising powers of self-government shall—

make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;

violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

subject any person for the same offense to be twice put in jeopardy;

compel any person in any criminal case to be a witness against himself;

Title III—model code governing courts of Indian offenses

The Secretary of Interior is supposed to recommend (to Congress) a model code to govern the administration of justice when it comes to Indian offenses on Indian reservations on July 1, 1968. The title also mentions some provisions for individuals being tried in the court of Indian offenses:

Any individual being tried shall have the same rights, privileges, and immunities as any other individual granted by the United States Constitution.

Any individual being tried will be advised and made aware of these rights and any other tribal constitution applicable.

Establish proper qualifications for the office of judge

Provide training for judges through educational classes

In order to carry out these provisions, the Secretary of Interior was also encouraged to consult with Indians, Indian tribes, and agencies of the U.S.

Title IV—jurisdiction over criminal and civil actions

Section 401 covers assumptions by states. It's the main foundation for Indian rights. It states that Indians shall not be alienated or deprived of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation.

Section 402 covers assumptions by states of civil jurisdiction. The main point to focus on here is to note how the States don't have jurisdiction over civil causes of action between Indians or Indian parties. However, this section also brings up more Indian rights. It states that nothing shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community.

Section 403 covers retrocession of jurisdiction by states. The United States is authorized to accept a retrocession by any state of all or any measure of the criminal or civil jurisdiction (or both).

Section 404 covers consent to amend state laws. The United States is given to the people of any state to amend their state constitution or existing statutes, in order to remove any legal impediment to the assumption of civil or criminal jurisdiction in accordance with the provisions of this title.

Section 405 covers actions not to abate. It states that no action pending immediately prior to any cession of jurisdiction shall abate by reason of that section. For the action or proceeding, such cession shall take place on the day after the date of the final determination of the action or proceeding. Also, it states that no cession made by the United States shall deprive any court to hear, determine, render judgment, or impose sentence in any criminal action instituted against any person for any offense committed.

Section 406 covers special elections. State jurisdiction is created by a majority vote of adult Indians in a special election. For this special election, the Secretary of the Interior calls the rules and regulations for the election, when the tribal council or other governing body requests to do so.

Title V—offenses within Indian country

Amends section 1153 of title 18 of the United States Code. With the new addition, it reads: "weapon assault resulting in serious bodily injury".

Title VI—employment of legal counsel

An Indian, Indian tribe, Indian council, or any group of Indians have a right for the employment of legal counsel, and includes the choice of counsel and the fixing of fees. If any application made requiring the approval of the Secretary of Interior or the Commissioner of Indian Affairs is not granted or denied within 90 days, then the approval shall be deemed to have been granted.

Title VII—materials relating to constitutional rights of Indians

In this title, there are two materials mentioned to help strengthen the constitutional rights of Native Americans: "Indian Affairs, Laws and Treaties" and "Federal Indian Law". This Act only mentions for these documents to be revised and printed on September 1, 1967. However, it is crucial to truly understand what these materials contain.

The "Indian Affairs, Laws and Treaties" material is full of treaties between Natives and the U.S. government. For this bill, however, the protection was originally created by the Treaty of Peace between the Navajo Indian Tribe and the United States. On June 1, 1868, with the signing by 29 Navajo headmen and 10 officers of the United States Army, the sovereignty of the Navajo Tribe was officially recognized. (It was later ratified by the Senate on July 23 and proclaimed by President Andrew Johnson on August 12). With this treaty, it brought the end to a four-year period of the hardships and exile brought upon the Navajo Tribe.

On May 17, 1968, Congress, with a joint resolution, requested the President for a centennial signing of the treaty. Therefore, President Lyndon B. Johnson established the centennial of the signing of the 1868 Treaty of Peace between the Navajo Indian Tribe and the United States.

The "Federal Indian Law" material, on the other hand, is much broader than the other source. Basically, "Federal Indian Law" contains treaties, statutes, executive orders, administrative decisions and court cases that defines the political and legal status of federally recognized Native Americans. Within this material, the relationship of tribes and the U.S. government is defined as well as what the role of tribes are in states and the federal government. The three fundamental legal principles* in "Federal Indian Law" are:

American Indian and Alaska Native tribes that are recognized by the federal government are independent sovereign governments, separate from the states and from the federal government.

Unless Congress provides otherwise, the sovereignty of federally recognized American Indian and Alaska Native tribes generally extends over their federally recognized geographic territory (e.g., reservations, allotments, trust and restricted Indian lands, and other Indian country), including over the activities and conduct of tribal members and non-tribal members within that territory

Title VIII—fair housing

The 1968 Fair Housing Act is a federal act in the United States intended to protect the buyer or renter of a dwelling from seller or landlord discrimination. Its primary prohibition makes it unlawful to refuse to sell, rent to, or negotiate with any person because of that person's inclusion in a protected class. The goal is a unitary housing market in which a person's background (as opposed to financial resources) does not arbitrarily restrict access. Calls for open housing were issued early in the twentieth century, but it was not until after World War II that concerted efforts to achieve it were undertaken.

The legislation was the culmination of a civil rights campaign against housing discrimination in the United States, including the 1966 Chicago open housing movement, and was approved by President Lyndon B. Johnson one week after the assassination of Martin Luther King Jr.

The Fair Housing Act was enacted as Title VIII of the Civil Rights Act of 1968, and codified at 42 U.S.C. 3601-3619, with penalties for violation at 42 U.S.C. 3631. It is enforced by the United States Department of Housing and Urban Development.

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968) introduced meaningful federal enforcement mechanisms. It outlaws:

Refusal to sell or rent a dwelling to any person because of race, color, disability, religion, sex, familial status, or national origin.

Discrimination based on race, color, religion, sex, disability, familial status, or national origin in the terms, conditions or privileges of sale or rental of a dwelling.

Advertising the sale or rental of a dwelling indicating preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, disability or national origin.

Coercing, threatening, intimidating, or interfering with a person's enjoyment or exercise of housing rights based on discriminatory reasons or retaliating against a person or organization that aids or encourages the exercise or enjoyment of fair housing rights.

Title IX—prevention of intimidation in fair housing cases

As the title states, this section of the bill sets the standard for preventing any kind of threat of force by someone who willfully injures, intimidates, interferes with or even attempts any of these actions upon a person of color (full discrimination set as race, color, religion, or national origin) when the minority in question is:

Selling, purchasing, renting, financing, occupying, contracting, or negotiating for the sale

Applying for or participating in any service, organization, or facility relating to the business of selling or renting dwellings

Participating or encouraging others to participate in any of the activities, services, organizations or facilities

Participating lawfully in speech or peaceful assembly

Any citizen who has been ordered to discourage these citizens from aiding/encouraging other persons to participate without discrimination in any activities listed above will be:

Fined $1,000 or imprisoned for a year (or both)

Fined $10,000 or imprisoned for ten years (or both) if there was any sort of bodily injury

Imprisoned for any term of years or for life if death has occurred

Title X—civil obedience

Section 231 covers civil disorders. The civil disorders mentioned in this section are:

Teaching or demonstrating to any other person the use, application, or making of any firearm or explosive or incendiary device, or technique capable of causing injury or death to people

Transporting or manufacturing for transportation in commerce any firearm, or explosive or incendiary device, knowing that it will be used in furtherance of a civil disorder

Whoever commits or attempts to commit any of these acts will be fined no more than $10,000 or imprisoned no more than 5 years, or both.

Section 232 covers definitions in this title. The definitions that are defined are: civil disorder, commerce, federally protested function, firearm, explosive or incendiary device, and law enforcement officer.

Section 233 covers preemption. None of the provisions contained in the title are intended on the part of Congress to occupy the state or local laws with the same subject matter nor are constructed to invalidate any provision of state law unless it is inconsistent. This section also holds an edit for the United States Code, where a chapter called Civil Disorders is inserted.

Amendments

In 1988, Congress voted to weaken the ability of plaintiffs to prosecute cases of housing discrimination. But the Fair Housing Act was also amended in 1988 to allow plaintiffs' attorneys to recover attorney's fees. Additionally, the 1988 amendment added people with disabilities and families with children to the classes covered by the Act.

Case law

In the early 1990s, in Trouillon v. City of Hawthorne, the NAACP Legal Defense and Educational Fund successfully challenged an urban renewal plan on the basis of race discrimination by bringing suit under the Fair Housing Act. Previous litigation under the Act had largely been limited to discrimination in buying or renting housing.

Although he ruled in favor of the plaintiffs, Judge Davis nevertheless disputed the allegations of discrimination. He said he based his ruling in part on the city's failure to prove that the area had a higher crime rate and lower property values than other parts of the city. The city "did not act in bad faith or fraudulently," Davis wrote. It "did not discriminate against any minority or low or moderate income person and did not violate any person's Due Process, Equal Protection or other Civil Rights."

The Anti-Riot Act of Title I had been rarely used; it notably had been used to prosecute the Chicago Seven, but had not faced strict legal scrutiny. In the late 2010s, with growing concerns over activities of the far right, white nationalists, and white supremacists, the Anti-Riot Act had been used to prosecute organizers of various rallies that had turned violent, such as the Unite the Right rally in 2017. However, in June 2019, a federal district court in California, overseeing the case of members of the Rise Above Movement related to both the Unite the Right rally and other protests in California, ruled that the Anti-Riot Act was unconstitutional in that it was "overbroad in violation of the First Amendment."

Legacy

National Fair Housing Month honors the Fair Housing Act in April, the month of its passage.

U.S. states

Extends the protection to marital status and age, aimed to prevent non-racial discrimination.

Further extends the protection to include dwellings with children and mobile home parks. That is meant to protect renters and sellers from discriminating based on number of children in a family. Currently the Fair Housing Act protects against discrimination of race, color, national origin, religion, sex, familial status, and disability. The law applies to all types of housing, rental homes, apartments, condos and houses. The only exception to the act is if an owner of a small rental building lives in the same building he lets. Since he owns the building and also resides there, he can decide who lives there.

Violations of the Fair Housing Act

There are an estimated 2 million cases of housing discrimination each year according to HUD. The National Fair Housing Alliance, the largest fair housing non-profit in the country, estimates that number to be closer to 4 million per year, excluding instances of discrimination due to disability or familial status. Housing projects have also come under fire by researchers and NGOs alike. Housing advocates Elizabeth Julian and Michael Daniel state:

in addition to the inequality in the actual housing provided to low-income African-American families under the federal programs, the neighborhoods in which they receive assistance are usually subject to various adverse conditions not found in the neighborhoods surrounding the housing units in which whites receive the same assistance. The conditions include inferior city-provided facilities and services, little or no new or newer residential housing, large numbers of seriously substandard structures, noxious environmental conditions, substandard or completely absent neighborhood service facilities, high crime rates, inadequate access to job centers, and little or no investment of new capital in the area by public and private entities.