“Affirmative Action” Under Reagan
In a press conference on the anniversary of his inauguration, Ronald Reagan stated that “I have been on the side of opposition to bigotry and discrimination and prejudice, and long before it ever became a kind of natiònal issue under the title of civil rights. And my life has been spent on that side.”
Yet the policies and actions of Reagan’s administration during its first fourteen months were widely perceived to be unsympathetic to civil-rights progress, if not overtly hostile to the interests of minorities and women. Certainly that is the view of leaders of major civil-rights organizations. The NAACP’s Benjamin Hooks told a Senate subcommittee in late January that he could not point to “any action of this administration that would give any hope of comfort to minorities.” The National Urban League opened the 1982 edition of its annual report on “The State of Black America” with the statement that “At no point in recent memory had the distance between the national government and black America been greater than it was in 1981, nor had the relationship between the two been more strained.” The American Civil Liberties Union distributed a newsletter in February describing “a presidential administration whose hostility to individual rights is relentless.” A lawyer with the National Women’s Political Caucus says of Reagan that “his record is absolutely deplorable.” Apart from an occasional expression of ironic gratitude to the President for galvanizing the sluggish civil-rights movement itself—“He’s giving us the glue that’s bringing us together,” said one Urban League official—the White House evokes little but criticism from such spokesmen and their echoes among the editorial writers and columnists of the major metropolitan newspapers.
One cannot of course know whether Ronald Reagan has ever harbored an unkind impulse or prejudiced thought, but it is now possible to glimpse the outlines of his administration’s civil-rights policies and to begin to appraise their execution. The policies, unfortunately, are not as clear as they should be after more than a year in office. Their implementation has been uneven on good days, indefensible on bad ones. What is most regrettable about the administration’s two or three authentic blunders, however, is that they cloud, indeed may permanently have polluted, the atmosphere of good faith that is essential if the excesses and distortions committed in the name of “civil rights” in recent years are to be corrected and the concept itself restored to a place of honor and approbation.
That it does not occupy such a place today is due largely to conflict between two quite distinct ideas, both of which have carried the banner of “civil rights” since the mid-60’s, and to mounting popular disapproval of some of the actions taken by the federal government in their name.
The first consists of purposeful efforts to bar discrimination against individuals on the basis of their race, religion, sex, physical condition, national origin, and other such characteristics. These efforts are rooted in the Enlightenment ideas that undergird American democracy; in the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments to the Constitution; in the civil-rights legislation of the 1860’s and 1870’s; in a series of Supreme Court decisions beginning with Brown v. Board of Education; and, especially, in the Civil Rights Act of 1964, that great congressional mandate for equal individual opportunity within a color-blind society.
In pursuit of this goal, the federal government has constructed elaborate means of safeguarding individuals against discrimination based on the attributes of groups to which they belong and has thereby sought to equalize their opportunities to succeed—or to fail—as individuals. These safeguards, in the main, continue to enjoy wide public approval.
The second set of actions taken in the name of “civil rights,” however, has consisted of efforts to better the condition of designated groups within the society by redistributing social, economic, political, and educational resources. The underlying rationale has been variously phrased, but always partakes of the concept of achieving parity among groups defined according to the same characteristics that are proscribed in the treatment of individuals.
Although foreshadowed by FDR in the “second bill of rights” described in his 1944 State of the Union message, this, too, is primarily a legacy of the mid-1960’s, especially of the federal War on Poverty with its dozens of “compensatory” spending programs, and of Executive Order 11246, issued by President Johnson in 1965. That celebrated document required the government and its private contractors to take “affirmative action” to “ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” (Sex was added in 1967.) Every federal agency was ordered to “establish and maintain a positive program of equal employment opportunity” and the Secretary of Labor was empowered to adopt “such rules and regulations” as were necessary for government contractors to be pressed toward the same result.1
A few months earlier, Bayard Rustin had presciently observed that “The civil-rights movement is evolving from a protest movement into a full-fledged social movement—an evolution calling its very name into question. It is now concerned not merely with removing the barriers to full opportunity but with achieving the fact of equality.”2 Rustin itemized the problems facing blacks, problems which, “while conditioned by Jim Crow, do not vanish upon its demise. They are more deeply rooted in our socioeconomic order; they are the result of the total society’s failure to meet not only the Negro’s needs, but human needs generally.”
Federal efforts to achieve “the fact of equality” were numerous and imaginative. Many of these sought to better the lot of the poor and disadvantaged in general, especially through the myriad social programs, ranging from Headstart to CETA to food stamps to adoption assistance, that were the building blocks of the contemporary welfare state. Others, however, responded to the demands of more limited groups—women, blacks, the handicapped, the elderly, Hispanic Americans, Native Americans—for divers benefits and services.
Even as the spending programs proliferated and grew, however, Washington developed several further strategies to apportion society’s rewards more “equally.”
The first was to eliminate such criteria as examinations for employment and tests for entry into selective schools that had the effect of distributing benefits unequally among groups even though the criteria were themselves objective or “colorblind.”
The second was the “earmarking,” “setting aside,” or reserving of certain portions of federal money and other benefits for groups who would not have to compete for them through the processes that governed the allocation of the remainder.
The third was the creation of detailed regulations and procedures for non-federal entities (such as school systems and private employers) within the reach of federal policy that obliged them to make decisions in a race- (or sex-) conscious way.
It mattered little who occupied the Oval Office or which party controlled the executive branch. The Nixon administration, after all, introduced the concept of numerical hiring “goals and timetables,” imposed the requirement that individual employers prepare written affirmative-action plans, and invented the “Philadelphia Plan,” which amounted to a minority-hiring quota for federal construction contractors. During the brief tenure of Gerald Ford, a simple statutory prohibition against sex discrimination in federally-aided schools and colleges was translated into the voluminous Title IX regulations, intruding Washington into school dress codes, the offerings of university athletic departments, and, for a time, “father-son” and “mother-daughter” dinners. Ford’s Office of Education also promulgated the “Lau Remedies,” requiring school districts with twenty or more children who speak a language other than English to teach them in their primary language and to provide them with “bicultural” education as well.
But it was during the administration of Jimmy Carter that such “equalizing” strategies were most fully elaborated. This was due in part to the internal politics of the Democratic party that nominated him, for by 1976 the party of Thomas Jefferson had become a fractious assembly of groups that defined themselves by race, ethnicity, physical conditions, gender, and sexual orientation and that allotted delegate seats at its own convention acording to intricate ratios and quotas.
The administration that took office in 1977 set about to favor and reward these constituent groups by yielding to practically every one of their demands. Former Carter appointees in the executive agencies and the White House staff now reflect ruefully on their instructions not to turn away any group or movement that asserted rights or claims, however extravagant. In fact, of course, some—such as Catholics seeking aid for parochial schools—were turned away. But in the main, administration policy, as George Will put it, was “to divide the majestic national river into little racial and ethnic creeks,” making the United States “less a nation than an angry menagerie of factions scrambling for preference in the government’s allocation of entitlements.”
In that spirit, and pursuant to a one-paragraph congressional ban on discrimination against the handicapped, the Carter administration promulgated hundreds of pages of regulations mandating that subway stations and 19th-century college laboratory buildings alike be “retrofitted” for wheelchair use, notwithstanding the multibillion dollar cost—little or none of it reimbursed by Washington.
The civil-service “reforms” that Carter pressed through Congress radically changed the basis of the federal government’s own “affirmative-action” plans. Prior to 1978, those plans rested—as do private-sector plans even now—on the concept of “under-utilization,” defined by the government as the presence of “fewer minorities or women in a particular job group than would reasonably be expected by their availability.” That construction at least allowed agency heads and the Civil Service Commission to base their “goals and timetables” on the distribution within particular geographic locations of minority-group members and women possessing the skills and qualifications needed for specific jobs in the federal service.
The 1978 reforms, however, replaced “underutilization” with “underrepresentation,” defined as “a situation in which the number of members of a minority-group designation . . . within a category of civil-service employment constitutes a lower percentage of the total number of employees within the employment category than the percentage that the minority constituted within the labor force of the United States. . . .” This wiped out all consideration of individual qualifications and of local job-market conditions; it said, in effect, that no government official could rest until every “designated” minority was represented in every grade and classification of federal employment in every agency in exact proportion to its incidence in the adult population of the United States as a whole: the most explicit, exacting, and inflexible quota system of all.
In its final weeks, the Carter administration also agreed to scrap the principal test that the government routinely administered to judge the qualifications of persons seeking to enter the civil service.3 The reason was that minority-group members often failed the examination, which meant it purportedly had an “adverse impact” on them. So much for merit in the public sector.
As for non-federal employers, the Carter administration also made great “progress.” Under Executive Order 11246 and its cousins, the enforcement of contract compliance had been handled by agencies with at least some general knowledge of the institutional character of their own contractors and the nature of the pertinent labor pools. Carter now consolidated the entire endeavor in the Labor Department and greatly enlarged its Office of Federal Contract Compliance Programs (OFCCP)—a zealous agency with a single responsibility and just one set of outside constituencies, namely, the groups whose interests are advanced by its enforcement efforts.
That agency set about with great vigor to expand the scope and reach of its activities. It came to rely heavily on the “back-pay” sanction, whereby an employer found to have been insufficiently ardent about affirmative-action goals could be compelled to grant up to five years’ pay as compensation to those who supposedly would have earned it had he acted differently at an earlier date. It welcomed hundreds of complaints against employers from civil-rights organizations generally, and women’s groups particularly, thereby effectively enlisting them as scouts and informants.
A few blocks away, the Equal Employment Opportunity Commission (EEOC), firmly led by Eleanor Holmes Norton, set out both to eliminate the huge backlog of uninvestigated discrimination complaints by individuals and to step up its self-generated antidiscrimination and affirmative-action efforts. One of its principal endeavors was to convince employers that they did not have to worry about charges of “reverse discrimination” if they gave preference to minority-group members and women. Offering its own interpretation of the history of the 1964 Civil Rights Act, the Commission published in the Federal Register its confident belief “that by the enactment of Title VII Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement. Such a result would immobilize or reduce the efforts of many who would otherwise take action to improve the opportunities of minorities and women. . . .”
The Commission then set forth an ingenious Catch-22 in which persons who thought themselves victims of “reverse discrimination” could expect no help from the EEOC. For, after announcing that “These guidelines constitute the Commission’s interpretation of Title VII and will be applied in the processing of claims of discrimination,” the Commissioners explained that employers engaged in the work-force analysis that is part of affirmative action need not “establish a violation of Title VII” so long as they find that their past practices “have or tend to have an adverse effect on employment opportunities of members of previously excluded groups” or “result in disproportionate treatment.” Race- and sex-conscious actions taken to end the disproportionality would not be held by the EEOC to constitute discrimination. Hence, anyone who felt himself victimized by reverse discrimination would have to look elsewhere for redress—and the EEOC would cheerfully arm the employer with evidence that in its view he had acted lawfully.
The Carter administration also accelerated the government’s efforts to set aside various pots of federal funds for the exclusive use of “minority contractors.” A 95-page document published by the Commerce Department in early 1980 listed 25 major programs of “business contract opportunities” and explained that “most of these . . . are solely for minority business.” The centerpiece was the “Section 8(a) Program” under which the Small Business Administration arranges for itself and other federal agencies to bypass the usual procurement procedures (including competitive bidding) in order to award contracts to minority firms. By the end of the Carter administration, nearly $2 billion a year was being spent in this manner, and it was clear that the idea had barely begun to tap the creativity of the executive branch. In March 1980, for example, the Department of Transportation, with no legislative sanction at all, issued a regulation stipulating that general contractors bidding on the department’s many lush construction projects (including highways, airports, and mass transit) would have to assure the government that at least 10 percent of the value of the work would be sub-contracted to minority companies.
None of this, however, could have occurred without judicial sanction. The question was how to make sure that the courts would not fall back on the principles of “equal protection” and “nondiscrimination” to deny preferential treatment, set-asides, and quotas, whether undertaken by the government itself or by corporations, universities, and others acting with its encouragement.
That was an open question when Jimmy Carter assumed the Presidency, but not when he left it. For during those four years, the Supreme Court of the United States, following the lengthy briefs and fervent pleadings of Carter’s Justice Department, gave its blessing to race-consciousness, set-asides, and quotas. The background and reasoning of the three key decisions, Bakke, Weber, and Fullilove, have been thoroughly examined in these pages and elsewhere.4 But it is essential to recall that in the realm of civil-rights litigation, the courts have regularly paid careful attention to the policies, action, and legal reasoning of the executive branch, and have often allowed themselves to be led by it. Through 1980, there was little question in what direction they were being led.
Thus Ronald Reagan assumed office after a decade and a half in which the Presidency had vigorously sought to advance group interests through regulation, judicial interpretation, and government expenditure, and in which policy conflicts between group interests and individual rights, on the one hand, and between group interests and evenhanded national standards, on the other, were almost always resolved in favor of the interested groups.
Well before the 1980 election, one could see ample evidence of popular and congressional dissatisfaction. On Capitol Hill, the House of Representatives repeatedly voted to ban school busing, employment quotas, and other involuntary or coercive federal “enforcement” efforts. Poll after poll revealed that these votes conformed to public opinion. For even as indices of individual prejudice steadily declined, and support for such voluntary programs as compensatory education and job training remained high, the American people expressed mounting displeasure with group favoritism. A 1977 Gallup survey, for example, found that only 11 percent of all respondents (including just 12 percent of women and 30 percent of nonwhites) condoned “preferential treatment in getting jobs and places in college,” while 82 percent of all men, 80 percent of women, and 55 percent of nonwhites believed that “ability, as determined by test scores, should be the main consideration.”
This did not deter the Democratic party. “[M]uch more remains to be done,” said its 1980 platform:
An effective affirmative-action program is an essential component of our commitment to expanding civil-rights protections. The federal government must be a model for private employers, making special efforts in recruitment, training, and promotion to aid minority Americans in overcoming both the historic patterns and the historic burdens of discrimination. . . . Our commitment to civil rights embraces not only a commitment to legal equality, but a commitment to economic justice as well. It embraces a recognition of the right of every citizen—Black and Hispanic, American Indian and Alaska Native, Asian/Pacific Americans, and the majority who are women—to a fair. share in our economy.
But this time the Republican alternative was clearly different. The voters, for once, were to have a choice. The 1980 GOP platform stated that:
The truths we hold and the values we share affirm that no individual should be victimized by unfair discrimination because of race, sex, advanced age, physical handicap, difference of national origin or religion, or economic circumstance. However, equal opportunity should not be jeopardized by bureaucratic regulations and decisions which rely on quotas, ratios, and numerical requirements to exclude some individuals in favor of others, thereby rendering such regulations and decisions inherently discriminatory.
As is well known, the party—and Reagan himself—also promised to shrink the welfare state, to ease the burden of regulation on employers and other institutions in the society, and to emphasize economic revitalization as the surest route to individual and group betterment. “Faster growth, higher incomes, and plentiful jobs,” said the platform, “are exactly what the unemployed, the underprivileged, and minorities have been seeking for many years.”
Immediately after the election, various task forces and transition teams undertook to convert these principles and goals into specific policy prescriptions. The most comprehensive of these were embodied in the Heritage Foundation’s celebrated 1093-page volume, Mandate for Leadership. This was not an official document, to be sure, but was widely and accurately regarded as the clearest statement of the new administration’s proper agenda as seen through the eyes of Washingtonsavvy “Reaganites.”
The Heritage document was especially clear about affirmative action, which “runs counter to American ideals” and “should be jettisoned as soon as it is politically possible to do so.” While Title VII of the Civil Rights Act, barring employment discrimination, should be scrupulously enforced, the section of Executive Order 11246 requiring affirmative action by government contractors should be replaced by language banning both discrimination and preferential treatment, and employers should be forbidden to “maintain any records indicating the race, creed, color, sex, religion, or national origin of any applicant or employee.” The Heritage recommendations, in short, were that “color-blindness” should again become the standard for employers, admissions offices, and federal agencies alike; and that “discrimination” should again be defined as a willful action, not a statistical imbalance.
Just as civil-rights policy comprised only a modest fraction of the multitudinous recommendations of Mandate for Leadership, so has it filled a relatively small space on the new administration’s agenda. Yet it resists isolation. For as individual rights have been displaced by group interests, all governmental actions affecting the economic well-being, status, and power of identifiable groups have come to be viewed and debated as civil-rights issues. Of course it is expedient for any group to marshal its crusade for advantage behind the noble banner of civil rights. But it would also be unrealistic not to recognize that reduced federal social spending and high unemployment strike particularly hard at those whose well-being in fact depends on public-sector programs or—by virtue of being marginally employed in the private sector—on general prosperity.
There can be no doubt that Ronald Reagan’s relations with civil-rights leaders, with their allies in the labor movement, and perhaps even with editorial writers of the New York Times would be warmer if he were not seeking to cut food stamps, to turn welfare over to the states, and to eliminate CETA in the middle of a severe recession. To be sure, as Rustin observed seventeen long years ago, these issues are “not civil rights, strictly speaking, but social and economic conditions,” and it is well to resist the temptation to confuse them. But that is no small task in the best of times, and Reagan’s social and economic policies make it more difficult, not least for himself, as callousness and indifference vie with kindliness and decency in the still hazy image the nation is trying to draw of the man it elected to lead it.
The first clues a new administration gives as to the directions it will actually take after assuming office are often hidden in its personnel decisions. Here, with respect to both the symbolism and the substance of civil rights, the Reagan team enjoyed one triumph (the nomination of Sandra Day O’Connor to the Supreme Court), made one blunder, and fell into a trap.
The blunder occurred so fast that few noticed. Barely four weeks after inauguration day, Attorney General William French Smith announced that the new administration would abide by rather than contest the agreement Carter had made to jettison the PACE examination that the government used to gauge the abilities of applicants for civil-service jobs. Although the new administration won minor modifications in the consent decree, the decision not to join the fundamental issue of principle suggested that Reagan’s people were unwilling to defend the concept of merit in the face of unequal test results. The special irony of this decision, as Donald J. Devine, the director of the Office of Personnel Management, observed several months later, “is that there is presently no ‘adverse impact’ upon minority-group members in filling PACE-covered positions.”
The administration seemed a bit sheepish. The Attorney General acknowledged that the “revised decree does not achieve an ideal result or reflect the framework that might have been devised had this administration been in control of the litigation from the outset.” Devine was blunter. He expressed “great reluctance” at having to carry out the agreement, and predicted that “the costs of implementation will be very high.”
The personnel trap the administration fell into may have been unavoidable. Reagan’s predecessors had encouraged civil-rights leaders to judge their commitment to equal opportunity by the number of minority-group members and women they appointed to policy-making positions in the executive branch. Embedded in this type of categorical hiring are the immediate benefit to the individuals selected, the symbolic reward of the groups they represent, and the suggestion that the policies they shape will somehow be more attentive to the long-term interests of those groups than would the actions of white males.
This practice matured during Jimmy Carter’s tenure, too, and created something of a backlash. A wry joke circulating in education circles, for example, as the enormous political superstructure of the new Department of Education was staffed with Carter appointees, held that each of the dozen assistant secretaries could hire four deputies so long as at least one of these was a woman, one a black, and one a Hispanic.
The Reagan administration did not go so far, but fell into the trap nevertheless. Rather than stating firmly that race, sex, and ethnicity would have no bearing whatsoever on personnel selection, the White House began circulating lists that identified presidential appointees by those very characteristics. Thus one learned that, as of December 3, 1981, out of some 2,865 non-career positions filled by that time, President Reagan had appointed 877 women, 80 Hispanics (many of them, of course, also women), and 130 blacks. In fact, that was a pretty good record, and many of the individuals appeared to be excellent, but merit seemed less important than their role as pawns on an affirmative-action chessboard.
The big chessboard, however, is not federal employment but the thousands of private employers and millions of employees whose moves are governed by affirmative-action rules made in Washington. Along with compulsory busing, this is the area of civil-rights enforcement that has stirred the greatest controversy, incurred the deepest resentment, and come closest to substituting group entitlements for individual rights. Here, surely, Ronald Reagan’s unambiguous ideology, the explicit policies of his party, and the mandate conferred by his landslide victory would lead to historic changes in the assumptions governing employment decisions. What was obviously needed was a clear statement of principle, a consistent government-wide policy, and a commitment to hunt down quotas in every tangled thicket of regulation, enforcement procedure, and litigation until none remained.
This, unfortunately, is not what happened in 1981. From its early months, the administration seemed unable to decide whether federally-mandated race- and sex-conscious employment practices were an issue of principle or a problem of paperwork.
The Justice Department generally took the high road. “While well intended,” Attorney General Smith told the American Law Institute in May, “quotas invariably have the practical effect of placing inflexible restraints on the opportunities afforded one race in an effort to remedy past discrimination against another. They stigmatize the beneficiaries. . . .”
William Bradford Reynolds, the Assistant Attorney General for Civil Rights, was eloquent and specific in his maiden appearance before a Congressional subcommittee in September:
We no longer will insist upon or in any respect support the use of quotas or any other numerical or statistical formulae designed to provide to non-victims of discrimination preferential treatment based on race, sex, national origin, or religion. To pursue any other course is, in our view, unsound as a matter of law and unwise as a matter of policy.
After recounting the evolution of federal equal-employment-opportunity doctrine from nondiscrimination to “goals and timetables,” he summed up:
By elevating the rights of groups over the rights of individuals, racial preferences . . . are at war with the American ideal of equal opportunity for each person to achieve whatever his or her industry and talents warrant. . . . Nor is there any moral justification for such an approach. Separate treatment of people in the field of employment, based on nothing more than personal characteristics of race or gender, is as offensive to standards of human decency today as it was some 84 years ago when countenanced under Plessy v. Ferguson.
The Justice Department, therefore, would embrace “the principle of equal opportunity without preference in the field of public and private employment” but “in no way intends to relax its commitment to remedy proven discrimination.”5
The policies and actions of the Justice Department are consequential, to be sure. It is the government’s principal litigator, it decides which cases to prosecute on what grounds, it formulates the remedies that Washington seeks from the courts, and during the Carter administration it was the author of the legal brief which urged the Supreme Court to sanction race-conscious university-admissions policies, race-conscious funding set-asides, and race-conscious decisions by private employers. At the very end of his term, Carter also gave the Attorney General the power to “coordinate” the civil-rights activities of all executive-branch agencies, though as yet this vague authority has not really been tested.
But the Justice Department does not write the regulations governing affirmative action by federal contractors, nor does it police compliance with them. Lyndon Johnson had entrusted that authority to the Secretary of Labor, and Jimmy Carter consolidated the entire enforcement bureaucracy in the Labor Department. That vast enterprise now consists of almost 1,500 civil servants who monitor the employment practices of some 17,000 corporations, universities, and other contractors with more than 26 million workers. Because an employer with facilities in more than one labor market must maintain a separate affirmative-action plan for each, approximately 108,000 such plans are now required, and these must ordinarily be updated annually. A two-inch-thick manual explains how. There are five protected classes: women, American Indians and Eskimos, Asian or Pacific Islanders, non-Hispanic blacks, and Hispanics. Each contractor must survey his own employees and the available labor pool at each facility in relation to each job classification and its necessary qualifications (also organized in federal categories) and, where “underutilization” is detected, must establish and gain Labor Department approval for numerical “goals and timetables” to correct it. But these efforts are not permitted to result in the employment of one minority group to the disadvantage of others, or in the employment of one sex within a minority group to the disadvantage of the other. And so on and on.
The burden on employers, of course, is heavy. At a recent Senate hearing, the general counsel of Johns Hopkins University displayed a 2½-foot stack of documents weighing 65 pounds that her university had produced in compliance with OFCCP requirements. The process is manifestly costly and sometimes patently absurd (as when half of a Hispanic assistant professor of German must be hired to meet a “goal”). The basic issue, however, is not burden but principle: should the federal government ever require employers who have not engaged in discriminatory acts to meet quotas based on racial, ethnic, and gender classifications that are themselves proscribed by law?
One expected the Reagan administration’s answer to be a resounding no and that its earliest actions would include, as the Heritage Foundation and various task forces had urged, replacement of the executive-order language mandating “affirmative action” by a flat ban on quotas, ratios, and preferences.
But while a suspension of “midnight regulations” did prevent some new and yet more exacting procedures devised in the last hours of the Carter administration from going into effect, it was many months before the new administration’s own intentions began to emerge from the Labor Department. And when they did it was instantly apparent that the issue of affirmative action was being construed as simply a problem of excessive paper work. The first indication was contained in Labor Secretary Donovan’s remarks to the National Press Club in late April, accurately characterized in the Wall Street Journal headline the next day: “Labor Department Will Take It Easy In Job-Bias Fight: Secretary Donovan Vows to ‘Get Off Peoples’ Backs,’ Cut Down the Paperwork.” For the Secretary had, indeed, stated that “The President and I are firmly behind affirmative action” but want to take enforcement “out of the arena of push-pull-slap-punch” and “to cut down on the damn paperwork.” He mentioned that a department task force was reviewing the problem.
The results of that review, unveiled in late August, were by then predictable. Rather than sweeping away the entire concept of goals and timetables, the proposed new regulations simply reduced the number of businesses that would be required to establish them, the number of forms that would have to be completed, and the frequency with which affirmative-action plans would have to be updated. In addition, the concept of absolute statistical parity was replaced by a somewhat looser standard: precise hiring goals and timetables would henceforth only be required when the “utilization” of women and minorities was less than 80 percent of their “availability.”
These new regulations are not yet in force, as the usual public-comment period was extended for additional months. In the meantime, seemingly no one is satisfied with the administration’s pragmatic approach. Eleanor Smeal of the National Organization for Women called it “another major setback . . . for equality for women.” Carol Grossman of the Women’s Equity Action League expressed alarm that the higher threshold levels (government contracts of $1 million rather than $50,000, 250 employees rather that 50) would exempt “some of the largest educational institutions in this country.” But the U.S. Chamber of Commerce stated that the proposed changes did not go nearly far enough; the Chamber’s position, its spokesman said, was that “voluntary use of goals, timetables, and good-faith efforts” should replace mandatory requirements.
In its report card on the administration’s first year, the Heritage Foundation also expressed considerable displeasure with the OFCCP. That agency “attempted some modest changes in its regulations,” the Heritage writer noted, but this was “patchwork” that “does not address the real problems with contract-compliance programs. . . . OFCCP is continuing to view itself as a purely punitive agency. It has failed to follow [the previous Heritage] recomendations. . . .”
The Labor Department is continuing to review the voluminous comments elicited by its proposed procedures, and will not be ready to put revised regulations into effect before late spring. When it does, those familiar with the current deliberations say, the “threshold” will again be lowered somewhat, meaning that more contractors will be subject to affimative action, and while “voluntary” compliance will be “encouraged,” there will be no backing away from the concept of compulsory hiring goals and timetables.
It is little wonder that civil-rights groups and the Heritage Foundation are both perturbed. For it appears that the bureaucracy has kept control of an issue of fundamental principle and is treating it as if it were just another federal program in need of technical refinement, marginal recalibration, and political compromise. Race- and gender-based employment quotas will continue to be required of thousands of universities, corporations, and others that hold federal contracts. Seemingly the only issue in dispute is how many thousands.
Although the Labor Department may have lost sight of the underlying policy issue in affirmative action, critics of the administration have not. Shortly before Arthur S. Flemming was dismissed by the President, the U.S. Commission on Civil Rights that he chaired published a lengthy “statement” entitled Affirmative Action in the 1980’s: Dismantling the Process of Discrimination. This document bears careful attention, for it undertakes nothing less than the permanent recodification of civil-rights doctrine.
No longer is “discrimination” to be construed as specific actions, inactions, and decisions by which individuals are denied specific rights or benefits that they would have received were it not for such immutable characteristics as race or sex. The new definition is altogether different. “Discriminatory actions,” in the view of the Civil Rights Commission,
are not only pervasive, occurring in every sector of society, but also cumulative, with effects limited neither to the time nor the particular structural area in which they occur. This process of discrimination, therefore, extends across generations, across organizations, and across social structures in self-reinforcing cycles. . . . Discrimination against minorities and women should now be viewed as an interlocking process involving the attitudes and actions of individuals and the organizations and social structures that guide individual behavior. That process, started by past events, now routinely bestows privileges, favors, and advantages on white males and imposes disadvantages and penalties on minorities and women. This process is also self-perpetuating. . . .
Not even the law can be allowed to stand in the way of progress. Although itself charged by the 1964 Civil Rights Act to “serve as a national clearinghouse for information in respect to denials of equal protection of the laws . . . ,” the Commission now holds that “because civil-rights laws do not prohibit all forms of discrimination,” because there may be “practical difficulties in establishing that a legal violation has, in fact, occurred,” and because, “despite consistently unequal results, some discrimination is entirely lawful,” then, “if civil-rights laws are interpreted to restrict the use of affirmative action to those acts that are or may be illegal, they can put beyond remedial reach essential components of the process of discrimination.”
The Commission cannot accept that possibility. Therefore it is necessary either to go entirely outside the law, to what it terms “voluntary affirmative action,” or to interpret the laws more generously. Conveniently, the Supreme Court has simplified both tasks. As the Commission exultantly explains, “The trilogy of Supreme Court affirmative-action cases (Bakke, Weber, and Fullilove), despite their limits as legal precedent, shows a strong commitment to affirmative-action measures designed to eliminate all forms of discrimination, de jure or de facto, illegal or legal. Only Bakke lacked an unequivocal outcome encouraging affirmative-action plans that include ‘preferential’ treatment and ‘quotas.’ Bakke, however, leaves ample room for effective affirmative-action efforts.”
The reasoning is extraordinary. Anything, past or present, public or private, legal or illegal, that tends to work to the benefit of white males constitutes discrimination. Any actions taken to eliminate discrimination must be deemed either to be required by law or, at least, not forbidden by law. Such actions will normally include preferential treatment and quotas. But not to worry. For “when discrimination is a current that carries along all but those who struggle against it, there can be no true ‘color-blindness’ or ‘neutrality.’ In such contexts, all anti-discrimination measures, whether or not they take race, sex, or national origin into account, will help some individuals and hinder others. To criticize such efforts on the ground that they constitute ‘preferential treatment’ inaccurately implies unfairness. . . .”
It is small wonder that President Reagan asked for Chairman Flemming’s resignation at about the time this report became public6 Not only were the Commission’s views diametrically opposed to the principles of nondiscrimination that Reagan and his party had pledged to support during their markedly successful 1980 campaign; they also reversed the principles enunciated by liberal Democrats when Congress passed the 1964 Civil Rights Act. As Justice Rehnquist recalled in his brilliant dissent to the Weber decision, such active participants in those deliberations as Emmanuel Celler, chairman of the House Judiciary Committee, and Hubert Humphrey, floor manager for the bill in the Senate, repeatedly insisted that nothing in the legislation would permit any policy save colorblindness. “Contrary to the allegations of some opponents,” Senator Humphrey said, “there is nothing in it that will give any power to the [Equal Employment Opportunity] Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial ‘quota’ or to achieve a certain racial balance. That bugaboo has been brought up a dozen times; but it is nonexistent.” Senator Thomas Kuchel added that “Employers and labor organizations could not discriminate in favor of or against a person because of his race, his religion, or his national origin. In such matters . . . the bill now before us . . . is color-blind.”
Now it can be argued, as the Civil Rights Commission does, that this is all water long since passed over the dam: that the legislative history of the 1964 legislation has been superseded by the Supreme Court’s blessing of race-consciousness in Bakke, of minority set-asides in Fullilove, and of “voluntary” affirmative-action programs that entail reverse discrimination in Weber. But the Court did not require race-consciousness, set-asides, or quotas; it merely said they were not forbidden. Besides, the Court may be persuaded to change its mind. There is ample scope for a President who knows what he thinks and who acts on the basis of his convictions to take specific actions to restore the definition of civil rights to the doctrine of nondiscrimination; to ask Congress to take complementary actions; and to go back to the judiciary with briefs very different from those the Carter administration submitted in the major cases of the previous four years.
But it is not clear that the Reagan administration has any such resolve. One need not dwell overmuch on the President’s own confusion, when asked in a December press conference what he thought of the Weber decision. For the reporter explained only that this concerned a “voluntary agreement to conduct affirmative-action programs for training minorities and moving them up in the workforce,” and made no mention of quotas or reverse discrimination. Reagan remarked that “if this is something that simply allows the training and the bringing up so there are more opportunities for them, in voluntary agreement between the union and management, I can’t see any fault with that. I’m for that.” This elicited a cheer from the New York Times, but embarrassed White House aides explained later that “the President and the Department of Justice find this racial quota unacceptable,” and that Assistant Attorney General Reynolds had indeed spoken for Reagan when he said that the Weber case was “wrongly decided” and that the Justice Department would seek to persuade the Supreme Court to reverse itself in another case. Perhaps one day it will.
But there have been enough other instances of confusion and embarrassment. The worst disarray was to be found at the Equal Employment Opportunity Commission, whose acting chairman told Congress in October that he disapproved of the Labor Department’s proposal to reduce the number of federal contractors required to file affirmative-action plans. Indeed, he opposed any lessening of vigilance or narrowing of scope. Yet a few months later, the EEOC’s own new general counsel instructed staff attorneys to switch their emphasis from “class-action” lawsuits to individual suits, and to confine the employer’s liability in sex-harassment cases to situations where management is itself accused of such harassment rather than—as in the current situation—holding the employer responsible for harassment of one employee by another.
In the meantime, the White House had nominated to be the next EEOC chairman a man whose only qualifications were his color (black) and his party affiliation (Republican). Faced with bitter protests from civil-rights groups, and mounting congressional opposition, the administration was forced to withdraw the nomination in February. (The young black attorney subsequently nominated is quite able indeed.)
Turf fights and bickering have also characterized the relationship between the Education and Justice Departments. Secretary Bell made two sensible proposals intended both to reduce the regulatory burden on colleges and universities and to curb harassment of them in the name of “civil rights.” He suggested that Title IX, barring sex discrimination by federally-aided schools and colleges, was meant by Congress to cover only the treatment of students, not of employees, an interpretation that has some support in the legislative history and that has been sustained by some lower courts. He also urged the administration to assert that federal aid to college students did not constitute aid to the institutions they attended—an interpretation that would spare about 1,000 colleges and universities from compliance with the major aid-based civil-rights regulations (though not from others, such as Title VII, that apply to all employers). But in both instances, Justice said no, and the White House sided with it.
Common sense and Republican principle did prevail in most school and college desegregation cases. A number of protracted and acrimonious lawsuits involving state colleges and universities were settled through mediation and negotiation (though this administration, like its predecessors, has maintained the schizophrenic policy of requiring black and white colleges to integrate while spending hundreds of millions of dollars a year to assist “traditionally black” colleges to maintain their distinctive institutional identities). And the executive branch has repeatedly signaled its opposition to mandatory busing at the grade-school level.
Finally, it seemed, federal officials were unafraid to acknowledge what most people had long known: involuntary pupil transfers for the sake of racial balance often do more harm than good. “[I]n many communities where courts have implemented busing plans,” Attorney General Smith told the American Law Institute,
resegregation has occurred. In some instances upwardly mobile whites and blacks have merely chosen to leave the urban environment. In other instances, a concern for the quality of the schools their children attend has caused parents to move beyond the reach of busing orders. Other parents have chosen to enroll their children in private schools that they consider better able to provide a quality education. The desertion of our cities’ school system has sometimes eliminated any chance of achieving racial balance even if intra-city busing were ordered.
Assistant Attorney General Reynolds advised a Senate subcommittee in mid-October that in future school-segregation cases, the Justice Department would “define the violation precisely and seek to limit the remedy only to those schools in which racial imbalance is the product of intentionally segregative acts of state officials.” And even in those instances, while seeking “removal of all state-enforced racial barriers to open access to public schools,” the Department would abjure compulsory busing. “We are not going to compel children who don’t choose to have an integrated education to have one,” Reynolds bluntly explained to a House subcommittee on November 19, and Justice appears to have followed this doctrine, most recently by approving a voluntary desegregation plan for Chicago.
Reynolds did, however, urge Congress, then pondering an array of anti-busing bills and court-limiting measures, “not to draft the statutory prohibition so broadly that it bans as well other desegregation techniques” such as “involuntary transfers of teachers to break up state-created racially identifiable faculties.” That, of course, implies the race-conscious assignment of teachers to schools as a remedy for segregation. And it recalled the one large inconsistency in Reynolds’s testimony on employment discrimination the previous month. Then he had suggested that, while the Justice Department would not ask courts to order employers to use anything but “fair and nondiscriminatory selection procedures” in deciding whom to hire, the government would “seek percentage recruitment goals for monitoring purposes. . . . These recruitment goals will be related to the percentage of minority or female applicants that might be expected to result under a nondiscriminatory employment policy” (emphasis added).
If governmental race consciousness is unconstitutional, and if constancy is a virtue, one can infer from Reynolds’s willingness to seek statistical recruitment goals, and his openness to race-conscious teacher assignments, that the nation’s senior civil-rights enforcer has not entirely clarified the principles that undergird his department’s policies and actions.
Unfortunately, this is not uncharacteristic of the Reagan administration’s overall handling of civil-rights issues during its first year: a fitful and uneven process, in which the nation’s long slide into color-coded policies and group entitlements was somewhat slowed but hardly stopped by an administration that seemed uncertain whether it really wanted to apply the brakes and not altogether sure where to find them.
In one excruciating instance, however, Reagan hit the wrong pedal and hit it hard. This, of course, was his decision to grant tax exemptions to segregated private schools. Although he attempted to recoup a few days later by asking Congress to outlaw such exemptions, and later still by asking the Supreme Court to resolve the matter, much harm was done. The problem is not that many private schools engage in racial discrimination as a matter of policy. The Internal Revenue Service is aware of only about 100 such institutions among more than 20,000 private schools. The problem, rather, is that in this instance the administration indicated its willingness to tolerate overt racial discrimination against individuals by institutions that, while unmistakably private, are nevertheless seeking favorable treatment from Washington. This was no case of group entitlements, of government-mandated equality of result, or of requiring preferential treatment for those previously disadvantaged by their sex or color. It was purely and simply a matter of old-fashioned racism and of what the government’s policy ought to be toward those few schools that openly deny admission to black youngsters on account of their color.
No matter that Congress had never written a law specifically stating that such schools could not obtain tax exemptions. The Reagan administration inherited eleven years of court-sanctioned precedent. True, it also inherited a lively dispute about how to enforce the ban—how, for example, to handle a school that professed not to discriminate but that had only white students in attendance—and an even livelier debate occasioned by a handful of fundamentalist schools that assert a religious basis for their discriminatory practices. But there was no need to reverse the underlying policy. Worse, the decision to do so resurrected the ghost of Jim Crow. It signaled that perhaps the administration is not really color-blind, an impression reinforced by subsequent documentary evidence that the White House had yielded to heavy pressure from Mississippi’s Trent Lott and other Southern Congressmen acting on behalf of all-white private schools that had in fact been founded as refuges from public-school desegregation. Although the President had the grace to acknowledge that the whole issue was badly handled, it did lasting damage to his administration’s credibility in the field of civil rights, as well as to the nation’s image of private education.
The administration inflicted another wound on itself with clumsy and irresolute handling of the delicate voting-rights legislation.7 Because the right to vote is at once the most elemental of civil rights and the one with the most direct impact on elected officials, attention began to focus on it more than a year before the August 1982 expiration of portions of the existing federal law. But the administration refrained from taking a clear position on several complex issues when the House of Representatives considered them in the spring and summer of 1981. Not until the House overwhelmingly approved its version in October did the administration begin to get specific, and throughout the autumn the papers carried frequent reports of internecine warfare among Reagan’s advisers. This generated considerable suspicion among civil-rights groups, which were also beginning to accuse the Justice Department of yielding to political pressure in its handling of voting-rights cases under the existing law, an allegation that administration officials, of course, vehemently denied.
With exquisitely bad timing, the administration finally chose to state its position on key details of the voting-rights bill to a Senate committee in late January 1982, in the midst of the controversy over private-school tax exemptions. Thus when Senator Kennedy declaimed that the administration faced a “crisis of confidence” in its handling of women and minority rights, and Attorney General Smith responded that “the President doesn’t have a discriminatory bone in his body,” the hearing room full of civil-rights activists erupted into laughter.
The major issue now in dispute, however, is grave indeed, and deserves solemn attention. The President would have been well-advised to spell out his position on it earlier. The question is whether an action is “discriminatory” only when it can be shown that the actor intended to discriminate, or whether an action with unequal effects or consequences can reasonably be termed “discriminatory” without reference to motivation or intent.
This is a familiar debate in school-segregation and employment-discrimination cases, but it did not enter the domain of voting rights until 1980 when the Supreme Court held that neither the Fifteenth Amendment nor the existing Voting Rights Act barred electoral arangements that were adopted without discriminatory intent even if their practical effect was to dilute the black vote in a particular community. At issue in the 1980 case was the constitutionality of the “at large” election that Mobile, Alabama has used to select its city commissioners since 1911. Although the population of Mobile is more than one-third black, no black had ever won election to the commission. Regrettable though, this may be, Justice Stewart wrote, the Fifteenth Amendment “imposes but one limitation on the powers of the states. It forbids them to discriminate against Negroes in matters having to do with voting. . . . [R]acially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation,” and the lower court had found that Mobile’s black citizens “register and vote without hindrance.” The Fifteenth Amendment, Stewart said, “does not entail the right to have Negro candidates elected.”
Civil-rights leaders strongly objected to this decision, contending that it is virtually impossible to prove “intent,” particularly with respect to local arrangements made decades earlier. They prevailed upon the House of Representatives to amend the Voting Rights Act to make explicit that plaintiffs need only prove discriminatory or unequal effects. (Another 1980 Supreme Court decision held that Congress has the power to adopt such a standard.) But critics of this change, now concentrating their efforts on the Senate, contend that the “effects” standard is tantamount to imposing racial quotas on election outcomes. It could mean, they say, that a community in which blacks comprise 20 percent of the electorate would be violating the law unless 20 percent of those elected to public office were also black. This, they suggest, might lead to federally-imposed “proportional representation” in local and state elections and would, contends Senator Orrin Hatch, “turn this country upside down.”
President Reagan appears to agree with that view. In his December 17, 1981 press conference, he said that “the effect rule could lead to the type of thing in which effect could be judged if there was some’ disproportion in the number of public officials who were elected at any governmental level. . . . You could come down to where all of society had to have an actual quota system.” Attorney General Smith testified on January 27, 1982 that “quotas would be the end result” and that “the only ultimate logical result would be proportional representation.” A number of distinguished legal scholars have separately arrived at much the same conclusion.
The bill itself provides that “the fact that members of a minority group have not been elected in numbers equal to the group’s proportion of the population shall not, in and of itself, constitute a violation.” But all parties agree that an “effects” test in the statute would make it far easier for civil-rights attorneys to prove discrimination and that actual election results, rather than simply electoral arrangements and voter participation, would be factors in subsequent litigation.
This is an authentically difficult issue, for the right to vote is basic; vigorous and successful voter participation by minority groups is the surest and least controversial means of enhancing their power and improving their condition; and it is indeed difficult to prove discriminatory intent in cases such as these. Yet it is also the case that to concentrate on “effects” is to move from equality of opportunity to equality of results; from colorblindness to color-consciousness; from nondiscrimination to something resembling quotas.
As it happens, the renewal of the Voting Rights Act is the first significant civil-rights legislation to move through Congress since the mid-70’s. It is the first since Bakke, Weber, and Fullilove sensitized the nation to the issues of quotas, set-asides, preferential treatment, and reverse discrimination. Certainly it is the first since the political and ideological upheaval of 1980. And it entails a major role reversal. For nearly all civil-rights “advances” of recent years have been made by the federal judiciary in partnership with the executive branch, often to the dismay of the Congress. Here we have a markedly different sequence: a traditional definition of discrimination by the Supreme Court followed by a major effort in the Congress to give voting rights a broader construction and to make their violation far easier to prove.
This, then, is a significant event as well as a fundamental issue, and it is regrettable that the Reagan administration dithered and equivocated for so long. It is a shame that the administration’s previous policies and actions were so erratic as to call into question both its opposition to quotas and its devotion to nondiscrimination. And it is unfortunate that the present debate over “intent” and “effects” in connection with the Voting Rights Act binds the two issues so tightly. For if hard cases, as the lawyers say, make bad law, so too does a pair of unpalatable options often lead to troublesome policy decisions.
Whither civil rights under Ronald Reagan? As with foreign affairs, it seems to depend more than it should on what day it is, who is in charge of a particular decision, what constituency is raising the loudest ruckus, and which agency is responsible for formulating the alternatives and executing the decision. The most ideological administration in recent history seems not to have its ideas sorted out, almost as if it had not realized that avoiding the Orwellian future so lovingly described by the Civil Rights Commission requires a coherent, alternative vision, a steady hand, personnel of unimpeachable character and competence, and the courage to rebuff all who seek governmental sanction for discriminatory practices, whether their intentions are benevolent or malign.
Even within the President’s party, and well before the private-school and voting-rights contretemps, Elizabeth Drew reports that “several Republican politicians in Congress and elsewhere—the South included—were troubled by the administration’s treatment of blacks. They saw an administration that, in its policies explicitly covering race and in its cutbacks in social programs, appeared to be systematically removing the props from under blacks.” At the same time, one hears denunciations of the administration from tough-minded critics on the Right who accuse it of following a pattern of appeasement, muddle-headedness, and business-as-usual.
It is tempting to conclude that an administration that has managed to anger and disappoint its most conservative supporters as well as the most militant of civil-rights activists might be doing something right. But civil rights at home, like human rights abroad, is not a policy domain that takes well to pragmatism, compromise, or vacillation. It demands firm ideas, constancy, and high principle. Else the “angry menagerie” of which George F. Will wrote may grow angrier, and the prospect of reuniting the nation around shared ideals ever more remote.
1 The latent conflict between the color-consciousness of the executive order and the color-blindness of the previous year's Civil Rights Act continues to raise profound legal and constitutional questions about the extent of the President's authority in promulgating and enforcing the order. The Supreme Court's Weber decision quite unintentionally deepened those questions, as is incisively shown in a brilliant law note by Andree Kahn Blumstein, “Doing Good the Wrong Way: The Case for Delimiting Presidential Power Under Executive Order No. 11246,” Vanderbilt Law Review, Vol. 33:921, 1980.
2 “From Protest to Politics: The Future of the Civil Rights Movement,” COMMENTARY, February 1965.
3 See Walter Berns, “Let Me Call You Quota, Sweetheart,” COMMENTARY, May 1981.
4 See William J. Bennett and Terry Eastland, “Why Bakke Won't End Reverse Discrimination,” September 1978; Carl Cohen, “Why Racial Preference is Illegal and Immoral,” June 1979, and “Justice Debased: The Weber Decision,” September 1979; and the remarkable 122-page insert that Senator Orrin Hatch placed in the Congressional Record on September 3, 1980.
5 The Justice Department, particularly its Civil Rights Division, is now the focus of criticism by activists inside and outside the government who are displeased with Reagan administration civil-rights policies. Staff attorneys regularly leak copies of documents thought to be damaging, and a number of them have publicly threatened to resign in protest. (Their boss, Assistant Attorney General Reynolds, replied that they were most welcome to do so.)
6 Mr. Reagan proposed to replace Flemming with Clarance M. Pendleton, former president of the San Diego Urban League, who is black, and to replace Commission Vice Chairman Stephen Horn with Mary Louise Smith, former chairman of the Republican National Committee, who is white. The administration's third candidate for the six-member Civil Rights Commission was to have been B. Sam Hart, an evangelical minister from Philadelphia, who is black, but Hart's name was withdrawn, ostensibly because of irregularities in his personal financial affairs. It was also the case, however, that Hart's views stirred considerable controversy within the civil-rights community and on Capitol Hill, for the President had had the audacity to pick a person who disapproved of busing and quotas and who stated that “I do not consider homosexuality a civil-rights issue.”
7 See Walter Berns, “Voting Rights and Wrongs,” in last month's COMMENTARY.