Legal Hurdles

Rights Gone Wrongby By Richard Thompson FordFarrar, Straus and Giroux. 288p $27

In recent months, the Occupy Wall Street movement has spawned a slew of commentary, much of which has criticized the protesters for a lack of focus and a failure to translate their dissent into clear legal and political claims. The encampments that sprang up around the country appeared to be the product of distress over increasing economic inequality, but consensus regarding the appropriate set of remedies was in short supply. The moral clarity and singular focus of the civil rights movement in the 1960s seems a far cry from the jumble of messages emerging from the tents of lower Manhattan.

Though writing before the emergence of Occupy Wall Street, the legal scholar Richard Thompson Ford expresses concern about the direction of today’s political protests in his new book, Rights Gone Wrong. Ford accuses today’s protesters of often having “more style than substance” and of “choosing symbolic targets that make for good press even when they aren’t good examples of injustice and demanding simplistic and often unworkable solutions to complex social problems.”

The demise of meaningful social protest is not Ford’s real target, though. Today’s protesters are simply reacting to what the political system gives them, and Ford diagnoses the misguided assumptions that shape the ways in which we use law to remedy social injustice. In other words, when we have a very simplistic, shortsighted approach to using our legal system to fix social problems, we should not expect anything other than simplistic, shortsighted protests demanding more of the same solutions.

Ford points out that the valuable strides made through civil rights legislation in the struggle for racial equality during the 1960s had a significant downside, for our political system has used that model to address a whole variety of social problems for which a civil rights template is an awkward fit. Access to participation in public life, for example, has been a problem for the disabled, but current obstacles very rarely arise from outright bias. Federal law requires states to provide free instruction that meets the unique needs of a child with a disability, and if they fail to do so, then the parents can seek reimbursement of private school tuition. Ford complains that some parents who never intended to send their child to public school can thereby game the system to get the cost of private school paid for by the public.

Similarly, laws that prohibit discrimination on the basis of age have not done much to help elderly job seekers, but the laws “have distorted the job market to the benefit of an already privileged group of older workers” by making it more costly to remove an elderly worker from a position. Indeed, employers may be even less willing to hire an elderly worker because the threat of litigation makes it difficult to fire them.

Even in the paradigmatic civil rights context of race, Ford sees an overreliance on individual rights. If public schools had been permitted to adopt more gradual desegregation plans in the wake of Brown v. Board of Education, rather than the forced busing plans that became common in the 1970s, Ford believes there would have been less public backlash. The backlash in turn inspired reverse discrimination lawsuits that ended up erecting—with the help of conservative judges—new constitutional barriers to even modest desegregation plans.

Building on these and other examples, Ford argues that most of today’s social injustices are more complex than antidiscrimination statutory remedies contemplate. He notes that our civil rights laws “haven’t significantly improved job opportunities for unemployed racial minorities, elderly people, or the disabled.” Focusing on individual rights, he concludes, is not “the most effective way to attack social injustice.”

It is hardly novel to suggest that America has become too dependent on individual rights. The value of Ford’s book, though, is his willingness to trace the harms caused by that dependence in particular areas in which antidiscrimination laws loom large. Though he does not categorically disavow the power or importance of such laws, he believes that we reach too reflexively for them as the solution for social injustice.

I might quibble with his characterization of the individual claims at stake in some disputes and with his occasional underestimation of the good that has come from an antidiscrimination framework in a given area. All in all, though, Ford has written a highly accessible narrative that underscores the need for Americans to roll up their sleeves and do the heavy lifting necessary to address persistent economic and racial inequality.

In this regard, things may not have changed all that much from the 1960s. Near the end of his life, Martin Luther King Jr. realized how little the new civil rights laws had done to change the everyday lives of poor blacks in the South. He did not dismiss the legal dismantling of Jim Crow as a waste of time, of course; he simply recognized that more meaningful social progress would require more than a legislative act. The Poor People’s Campaign that he launched was subject to intense criticism, in part for its far-flung, more nebulous goals. King recognized, however, that antidiscrimination laws alone would not do the trick.

So maybe Occupy Wall Street—in all its messy, cacophonous glory—is onto something. Perhaps we really do need to step back and raise social consciousness of injustice before jumping to simplistic rights-driven solutions. Instead of the “high drama of the Freedom Summers,” Ford sees a “long, slow winter of institutional reform” ahead because tackling social injustice “will require wonkish policy intervention, frustrating compromises, and tedious negotiations with government, businesses, and other organizations.” With this book, Ford has in effect contributed a new placard to the American protest march—one that reads, “This is more complicated than you think.” As Ford himself would attest, though, that does not make the underlying struggle any less important.