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• Fifty years ago on July 2, President Lyndon B. Johnson signed the Civil Rights Act. This momentous piece of legislation promised to establish individual equality of opportunity under the law for all Americans.

The goal was--and is--a noble one. Yet the ink was hardly dry on the new law before it became an instrument for racial classifications and preferences that the bill's sponsors swore would be prohibited. This was largely the work of legal academics, bureaucrats and judges. Officials elected by and accountable to the public hardly ever consented to what has come to be called affirmative action.

The 1964 Civil Right Act was a large, comprehensive bill with 11 sections (or "titles") covering racial segregation and discrimination in places of public accommodation, schools, voting and employment. It was the subject of the longest debate in the history of Congress.

Ironically, the most controversial part of the law, Title II--covering public accommodations (hotels, restaurants, movie theaters and the like)--was the easiest to implement. In the decade following the Supreme Court's rejection of public-school segregation in Brown v. Board of Education (1954), southern whites engaged in a campaign of "massive resistance." Title II met no such resistance. The Civil Rights Act, as the product of democratic deliberation and consent, had a legitimacy that the Brown decision initially lacked.

Title II also was the only important part of the law that was not turned into a race-conscious program. Federal officials did not insist that hotel and restaurant owners go out and actively solicit black customers; it only required that they treat all individuals alike, regardless of race. This was not the case in voting, education and especially employment.

Ensuring that blacks and other minorities could register and vote was no easy matter in the South even after the Civil Rights Act, and Congress passed the Voting Rights Act a year later, which gave the Justice Department the power to approve ("pre-clear") any voting-law changes that Southern states, municipalities and other political entities wanted to make. The Justice Department used its power to devise a system of racial gerrymandering, with the goal of establishing as many "minority-majority" electoral districts--and thus, of elected black officials--as possible.

After several decades of acquiescence in this practice, the Supreme Court in 1993 ( Shaw v. Reno) struck down one of the most "bizarre" racial gerrymanders (as Justice Sandra Day O'Connor called it). And in 2013 the court began to rein in the 1965 Voting Rights Act's preclearance provisions that treat Southern states as if they were still in the 1950s.

Title VI of the 1964 Civil Rights Act stated that "racial balance" would not be required for school desegregation, or in educational programs receiving federal financial assistance. Nevertheless, by 1971 federal courts were ordering school districts to bus children out of their neighborhoods to achieve just that. Meanwhile, preferential admissions in public and private colleges became commonplace in the 1970s.

Busing provoked a backlash in the North, and the Supreme Court in 1974 ( Milliken v. Bradley ) drew the line at city-to-suburban busing. Intracity integration has also been whittled away, most recently when the court struck down an integration plan in Parents Involved v. Seattle (2007).

For higher education, the Supreme Court in 1978 (University of California v. Bakke ) held that explicit racial quotas for admission were prohibited, but that race could be taken into account to promote "diversity." The court has stuck by Bakke, permitting subtle racial preferences but striking down those that are too overt--allowing racial quotas, as Justice Ruth Bader Ginsburg put it, if pursued via "winks, nods and disguises."

Employment is the area in which the Civil Rights Act was taken the furthest from its stated commitment to equal rights. Title VII was explicit that, "Nothing contained in this [section] shall be interpreted to require any employer" to "grant preferential treatment to any individual or to any group" on the basis of race, including "on account of an imbalance" in the "total number or percentage of persons of any race" in the workplace. In the Senate debate over the bill, Minnesota's Hubert Humphrey famously promised Virginia's Willis Robertson that "if the Senator can find in Title VII . . . any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another, because it is not in there."

Regardless, Congress (and many states and cities) adopted outright "set-asides" for women and minorities in the workplace, and the Labor Department required "goals and timetables" for government contractors. All of these were plain violations of the nondiscrimination provisions of Title VII, but the Equal Employment Opportunity Commission and the federal courts found a way around that by redefining discrimination. In 1971, the Supreme Court ( Griggs v. Duke Power Co.) accepted what has come to be called the "disparate impact" standard of discrimination--that no deliberate intent to discriminate needs to be shown. A statistical demonstration that standards and qualifications filter out more women and minorities is sufficient to establish unlawful discrimination.

In 1989 the Supreme Court shifted the burden of proof in disparate-impact claims, making it harder to prove discrimination by statistics (Wards Cove Packing Co. v. Atonio). Congress responded by amending the original Civil Rights Act in 1991 to include disparate impact as a form of unlawful discrimination.

A quarter-century later, the question today is no longer whether disparate impact violated the 1964 Civil Rights Act, but whether the 1991 amendment of the original act violates the Constitution's guarantee of "equal protection of the law." The Supreme Court is perhaps closer to this position than at any time since 1989. It would be an appropriate recognition of the original goal of the Civil Rights Act that it adopt this rule.

Mr. Moreno, a history professor at Hillsdale College, is the author of several books including "From Direct Action to Affirmative Action: Fair Employment Law and Policy in America, 1933-1972" (Louisiana State University, 1997).

Based on what you read, discuss the following questions. Give your views and arguments to support them and critique and reply to the arguments of other participants.

1. The article raises an important question that even though Title VII does not set any quotas, organizational policies and federal government requirements lead to preferential treatment. Do you agree, why and why not?

2. Do you think that as argued in the article, disparate impact is a violation of the principle of equal treatment or not?