From the Law Library: Arkansas Civil Rights Act of 1993

June 18-24, 2018

By Alyx VanNess

The Civil Rights Act of 1964 catalyzed a movement of state-level civil rights law in the years following its passage, but it wasn’t until the 1990s that Arkansas rectified the lack of such a law in its own books.

Act 962 of 1993, also known as the Arkansas Civil Rights Act of 1993, was the first civil rights act in Arkansas that covered discrimination based on race, religion, national origin, gender, or disability.

Although novel to Arkansas, civil rights laws had been addressed by the rest of the country in the thirty years since the Civil Rights Movement.

Some of the earliest civil rights legislation on the federal level dates back to the Reconstruction Era when in 1871, 42 U.S.C. § 1983 was enacted. A direct reaction to the violence incited by the Ku Klux Klan, Section 1983 intended to provide a civil remedy against these abuses. In reality, its protection depended on persons charged with enforcing the law being able and willing to do so, making it largely ineffectual.

Over a century later, Arkansas threw its hat into the civil rights ring when then-Governor Bill Clinton was running for President in 1992. Several national news organizations criticized his pro-civil rights stance, citing Arkansas’ absence of a civil rights act. Other candidates, including President George Bush, adopted the criticism as their own.

Clinton had tried to pass civil rights legislation before; in 1991, a bill mirroring Section 1983 was introduced during the legislative session with the Senate’s approval. However, it was drafted too broadly and was aimed at violations by the state and hate groups, making incidents of harassment, intimidation, or violence against people belonging to certain groups unlawful.

Once introduced in the House, it met strong political opposition. The Arkansas Chamber of Commerce was concerned with several aspects of the bill, arguing that certain portions overstepped even what was enacted under federal law, and the organization worried that this overreach would discourage businesses from locating to the state.

The Arkansas Chamber of Commerce introduced its own bill, but its introduction resulted in a political stalemate. As a consolation prize, the Senate created a commission to consider creating civil rights legislation during the next session.

During that next session in 1993, Act 962 of 1993 was passed. The bill’s passage sparked heated debates among legislators. They argued whether discrimination should include disability and homosexuality, on placing a cap on damages, if the number of employees at a business should determine the act’s coverage, and on the inclusion of language addressing hate crimes and housing discrimination.

Even after its passing, most Arkansans reportedly did not feel it necessary for the state to have a civil rights bill. Many residents believed the bill was passed in reaction to national criticism, and Arkansans did not believe the act would be successfully enforced.

Confirming this popularly held opinion, very few cases were filed by litigants citing the Arkansas Civil Rights Act of 1993 in the years after. Although the act gave Arkansans several advantages over similar federal laws, the act left significant areas uncovered. Some gaps included the enforcement of accommodations for people with mental and physical disabilities and the inclusion of age discrimination. Instead, plaintiffs – and their attorneys – more than often sought civil rights vindication through federal law.

One of the most notable sections contained in the Arkansas Civil Rights Act of 1993 is its treatment of housing discrimination. The original version banned discrimination in property, credit and other contractual transactions, but a provision was added in 1995 that explicitly covered fair housing.

The 1995 Arkansas Fair Housing Act (AFHA) gave Arkansans the right to housing and real estate without discrimination based on religion, race, color, national origin, sex, disability, or familial status; it also covered any person involved in a real estate transaction. In doing so, AFHA spanned a broader range of properties, covered more individuals involved in the transaction, and contained fewer exemptions than federal laws.

What’s more, in 2001, the Arkansas Fair Housing Commission (AFHC) was formed. The state now had an agency with statutory authority to enforce the housing components of the civil rights law.

Ultimately though, the Arkansas Civil Rights Act of 1993 had little bite. Its passage and subsequent amendments ignored the establishment of state agencies other than AFHC. Even today, if an Arkansan wants to pursue allegations of discrimination through administrative channels, it has to be done through federal organizations like the Equal Employment Opportunity Commission (EEOC).

In 2015, the Arkansas Advisory Committee to the U.S. Commission on Civil Rights released a report advising the state to establish other state-based agencies or to expand the AFHC to investigate and mediate civil rights complaints, including jurisdiction over employment and public accommodation issues.

The committee cited forty-six other states with state-based avenues for its citizens, saying that Arkansas’ lack of enforcement agencies to receive and process complaints limits its ability to enforce its civil rights laws and makes it more difficult, costly, and time-consuming for Arkansans.

As of 2018, Arkansas has yet to establish these types of agencies.

Sources: Arkansas Advisory Committee to the U.S. Commission on Civil Rights 2015 Summary Report, Encyclopedia of Arkansas History & Culture, Bowen Law Repository