JOHN S. ROSENBERG: Misremembering the Civil Rights Act of 1964.

The crystal clear text of the 1964 Civil Rights Act runs directly counter to current orthodoxy — prevalent especially on college campuses — equating civil rights with affirmative action and affirmative action with race preferences. Of special concern because of its jurisdiction over aid to higher education, for example, Title VI provides that “no person” — not no black, Hispanic, or minority person — “shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Nor was the meaning of “discrimination” unclear or ambiguous in 1964. As Senator Humphrey said during floor debate, “What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin.” (110 Cong. Rec. 5864 [1964], quoted by Justice Stevens in his Bakke opinion.) The Democrats in Austin not surprisingly neglected to note — if, indeed, any of them even know — that the 1964 Democratic Platform renounced not only “quotas based on the same false distinctions we seek to erase” but also forthrightly rejected “the expedient of preferential practices.”

Before the 50th anniversary celebrations of the civil rights act fade away there will no doubt be many other attempts, as there were in Austin, to enlist LBJ as the progenitor of affirmative action. Those attempts, though ubiquitous, are unpersuasive and should be rejected.