Rand Paul's criticism of the federal civil rights legislation of the 1960s can be better evaluated by looking at the workings of similar legislation that appeared on the state level two decades before.
In 1945, New York became the first state since Reconstruction to pass anti-discrimination legislation. At the time, there was plenty of biased behavior in the state based on race, religion, and nationality. Naturally, members of New York's diverse ethnic population—plus many liberals of all backgrounds—found these discriminatory practices deeply offensive. As a result, the new legislation banned discrimination in employment on the basis of race, creed, color, or national origin and established a New York State Commission Against Discrimination to enforce this ban. In subsequent years, the law was expanded to cover discrimination in public accommodations, with gender discrimination added to the list of violations.
This law has a personal dimension for me. In 1946, my father, Jacob ("Jack") Wittner, went to work as a field representative for the New York State Commission Against Discrimination. For nearly two decades, he took complaints of discrimination from aggrieved individuals, investigated these complaints, and wrote up determinations for the commissioners, who issued such determinations more or less as he wrote them. In the mid-1960s, he became director of investigations for the New York City Commission on Human Rights, and in later years worked for the federal government at enforcing its equal employment opportunity guidelines.
Although my father did not begin his work with much knowledge of discriminatory behavior, he quickly became aware of the high level of irrational bias swirling under the placid surface of 1940s and 1950s America—bias that led to denials of employment, of admission to hotels, restaurants, and other places of public accommodation, and of rental or sales of housing. Naturally, this resulted in some very interesting anecdotes and dinner table conversations during my childhood years.
One anecdote that I recall had to do with a complaint filed with the State Commission by an African American man, who contended that he had been denied an advertised job—one for which he was well qualified—by a large New York City company on the basis of race. As part of his investigation of the complaint, my father looked through the company records, walked around the shop floors, and spoke with supervisory personnel. It was pretty clear that the work force was entirely white and always had been—and this in a city with a large non-white population.
Finally, my father met with the boss (whom I will call Mr. Jones). "Let's discuss this over lunch, Jack," he said, and off they trotted to a fancy restaurant he suggested. During the lunch, Jones, after a few drinks, grew increasingly garrulous and candid. And why not, he must have thought. My father, after all, despite his suspicious employer, was a white man! Thus, when my father got around to asking Mr. Jones why everyone who worked for him happened to be white, Mr. Jones moved into his Good Old Boy mode. "Confidentially, Jack," he said, "colored people have a certain smell. You know what I mean?"
When my father returned to his office, he wrote up his findings on the case, including a full account of his conversation with Mr. Jones. Then he submitted this material to Commissioner Elmer H. Carter III. Commissioner Carter, it should be noted, was a very dignified, upper class, African American Republican.
Some weeks later, Commissioner Carter called in my father to discuss his disposition of the Jones case. "Jack," he remarked, "I had Mr. Jones come to my office, told him I was issuing a determination that he had engaged in discriminatory practices, and ordered a program of remedial action that would put his business in compliance with the state's anti-discrimination law." Carter added that, following his comments, Jones fell all over himself promising to comply with the State Commission's orders. "In fact," Carter added, "Mr. Jones became quite sycophantic." As the Carter-Jones conversation concluded and they shook hands at the door, Carter looked the fawning businessman in the eyes and said: "By the way, Mr. Jones, they don't make Lifebuoy Soap only for colored people."
Mr. Jones's company dropped its discriminatory practices. Thanks to the anti-discrimination law and its effective enforcement, most of the biased behavior by other private enterprises in New York State ended as well.
Thus, we can see that, in one way, Rand Paul is quite right. Anti-discrimination laws do turn the tables on businessmen, who find that they can no longer mistreat employees and customers on the basis of race, religion, national origins, or gender.
And isn't that ban on discriminatory behavior a good idea?
Dr. Wittner is Professor of History at the State University of New York/Albany. His latest book is Confronting the Bomb: A Short History of the World Nuclear Disarmament Movement (Stanford University Press).