It was said of the late Justice William O. Douglas, and it was said by way of praising him, that more than any other judge in our time he dared to ask the question of what is good for the country and to translate (or, at least, to try to translate) his answers to that question into constitutional law. In this respect he was the very model of the activist judge, and it is the activist judge who has come to characterize the federal judiciary, especially the federal judiciary in Washington.
Not everyone, of course, agrees that this should be so. Some thirty years ago Justice Felix Frankfurter registered his disagreement with one of Douglas’s judgments by reminding his colleagues that a Supreme Court Justice does not (or is not supposed to) “sit like a kadi under a tree dispensing justice according to considerations of individual expediency,” or, he might have said, according to his private judgment of what is good for the country.
The general public would probably agree with that, especially since a kadi is rather like a mullah and Americans have learned something about mullahs recently. Nevertheless, it has been Douglas’s view of the role of the judge that has won out in the prestigious law schools and in the influential press—our “greatest living jurist,” pronounced Bob Woodward and Scott Armstrong in The Brethren just before Douglas died—which is one reason we now have a surfeit of kadis on the federal bench, and at every level. Even lower-court judges now do casually what Douglas was praised for daring to do. For the same reason, there is also a surfeit of kadis among lawyers generally, and particularly among lawyers in the various departments and agencies of the federal government.
This disposition to disregard the authority both in and of law represents the triumph of legal realism, the school of thought which, throughout most of the 20th century, has been trying to persuade us that the essence of the judicial process does not consist in interpreting law, whether statute or constitutional, but in making it. Of necessity, legal realists insist, judges make law, and if this makes them kadis, so be it. Besides, they say our judges are usually better qualified than our legislators to know what is good for the country.
In some circles this idea enjoys the status of self-evident truth, but the very fact that it has been iterated and reiterated for so many years is proof enough that the average person is not yet convinced. As he sees it, laws are supposed to be made by legislators, whom he elects, and applied in individual cases by judges, whom, at the federal level, he does not elect. If he is at all reflective, he will concede that, for example, given an ordinance forbidding vehicles to be driven in public parks, it will be necessary for someone—a policeman, perhaps, and ultimately a judge—to decide whether a tricycle ridden by a six-year-old child is a vehicle. But he is not ready to concede that, to take another example, when Congress makes a law forbidding discrimination, it is open to federal judges, even if they sit on the Supreme Court, to remake it into a law permitting discrimination. And whatever the New York Times might say (a way “to atone for past discrimination”), he is likely to stamp an angry foot when a federal judge tries to persuade him that a system of racial quotas is not discriminatory.
Unfortunately, while this typical citizen has been immersed in his private world, emerging occasionally to cast a ballot for those he wants to represent him in the public, there have been others who have come to understand that what really matters under our present system of government is not voting but suing: suing in the federal courts, suing the federal government, and, best of all, suing the federal government in the federal courts in the District of Columbia. Their favorite statute is Title VII of the Civil Rights Act of 1964.
Congress forbade employers to discriminate on the basis of sex; Title VII flatly forbids it. But it was not Congress that forbade sexual harassment; the idea that sexual harassment is a form of sexual discrimination could only have been conceived by someone with a fertile imagination and no respect for statutory language. After all, the employer who demands sexual favors of a particular woman, even if he demands them in exchange for a job, will surely be astonished—or would once have been astonished—to be told that this is proof of his bias against women as a class. (His trouble, he is likely to protest, is that he finds women irresistible.) Even when disabused on this point, he would protest his innocence (or the innocence of his company) by showing that whereas some of his supervisors demand sexual favors of women, there are others who demand them of men, and, though reprehensible when considered as individual acts (he might point to a company policy strictly forbidding them), this catholicity of sexual preference is proof of the absence of discrimination on the part of the company.
By now, however, every major employer in the country ought to know that the federal courts have held otherwise. Not only that, but the Court of Appeals for the District of Columbia Circuit has now ruled, in a case by the name of Bundy v. Jackson, that an employer can be held to have discriminated on the basis of sex without a showing that he had discriminated on the basis of sex.
This truly inspired reading of the statute was offered by Chief Judge J. Skelly Wright, a judge made in the mold of Douglas and not given to acquiescing in Congress’s decision as to what is good for the country. As he wrote in the Harvard Law Review a few years ago, the Warren Court especially must be praised for teaching us that there is “no theoretical gulf between the law and morality,” by which Judge Wright meant that the law must be made to conform with morality—someone else’s law and his morality.
With the help of the Equal Employment Opportunity Commission, one of Washington’s most zealous agencies, Title VII plaintiffs began, foolishly as it turned out, by filing their sexual harassment charges against private companies—Bausch & Lomb, the Bank of America, and the Public Service Electric & Gas Company. Unlike government agencies, private companies have reason to offer more than a token resistance. Furthermore, because these companies were located outside Washington, the suits were tried by federal courts outside Washington. These two factors may explain why the plaintiffs did not prevail.
Not until similar charges were brought against the Environmental Protection Agency and the Community Relations Service, both agencies of the federal government, and tried or heard on appeal in Washington, was sexual harassment held to be a form of discrimination forbidden by Title VII. This was in 1977.
Still, even after the EPA case, employers could assume that since Title VII forbids discrimination, and forbids sexual harassment only insofar as it is part of a discriminatory act, any plaintiff would have to prove not only that she (or, in principle at least, he) was the victim of a sexual advance but, by refusing to submit, that she had been denied some tangible employment benefit, whether in the form of a job, promotion, or salary increase. Not so, said Chief Judge Wright for the three-judge panel in Bundy v. Jackson. That may have been true at the time of the EPA case, but, said Wright, unless the court reads Title VII to forbid the sexual behavior in and of itself, employers might engage in such behavior with impunity. (In saying this Wright conveniently overlooked the possibility that local lechers might be dealt with under local law.) So saying, and admitting that the plaintiff had not contended her resistance had caused her to be deprived of any “tangible job benefits,” Wright sent the case back to the trial court with instructions to hold hearings on the plaintiff’s claim to deserve a promotion.
If the law of this case becomes the law of the land—Wright’s opinion was issued only in January of this year—private as well as public employers can be held to have discriminated if, like the city of Washington here, they permit their female employees to be subjected to unwelcome sexual advances. These “demeaning propositions” poison the work environment, Wright said, and a poisoned environment is a discriminatory environment. It would be the job of EEOC to clean it up.
Interestingly enough, not even the EEOC had dared to claim the authority that Wright would give it. In its so-called Interim Guidelines on Sexual Harassment, published in the spring of 1980, it had hinted it was toying with the idea, but in its Final Guidelines the EEOC noted that there had been a good deal of opposition from outside the agency, and the idea was abandoned, at least temporarily. And why should there not have been opposition? The prospect of the EEOC becoming a kind of Sexual Environmental Protection Agency is one to strike fear in the heart of any employer. To protect himself, he would have to impress on his employees that any on-the-job or even job-related sexual banter (so easily mistaken for the real thing) would cost them their employment. The consequence might be a clean working environment but not one that many of us, man or woman, would like to work in. (“Where none admire, ’tis useless to excel;/Where none are beaux, ’tis vain to be a belle.”)
These suits (most of them arising under Title VII) bear the names of their nominal plaintiffs—Williams, Barnes, Bundy, Simer, or Luevano—but in practice they are brought or instigated by public-interest law firms and the EEOC. With the assistance of federal judges, these plaintiffs have fashioned an extremely effective institution of unrepresentative government, which now threatens to entrench itself alongside the government we know from the Constitution. This is government by consent decree, a development of, if we may so call it, the sweetheart suit.
In the Simer case, a sweetheart suit if ever there was one, a couple of public-interest law firms, acting nominally on behalf of Elsie Simer and eight other plaintiffs, sued the federal government’s Community Services Administration. At issue were some $18 million of unexpended emergency energy funds appropriated by Congress to help poor people cope with rising fuel costs. With grants from still another federal agency (your tax dollars at work, as the signs at highway construction sites used to say), the law firms sued to force the expenditure of those funds. What resulted was a “negotiated” settlement, a consent decree, according to which Elsie Simer and her eight co-plaintiffs were each awarded $250, the maximum allowed under the statute, and the law firms pocketed a lion’s share of the remaining $17,997,750.
Nice work if you can get it, as the old song says. Unfortunately for them, the Wall Street Journal got wind of this last August, and in a detailed story pointed to the possible collusive aspects of the case. Armed with this information, the Capital Legal Foundation, an organization that actually deserves its designation as a public-interest law firm, intervened and forced the federal judge who had signed the consent decree to vacate it. He had, the judge confessed later, been “lulled by the appearance of an adversarial situation,” misled by the parties “both as to the facts and the law.” Perhaps he had been. At least he and CSA’s General Counsel had the decency to be embarrassed by the revelations, which is more than can be said for the principals in the Luevano case.
Luevano v. Campbell began when some public-interest law firms combined with civil-rights lawyers to file a class-action suit against the director of the Office of Personnel Management (or Civil Service Commission, as it used to be called), alleging that the Professional and Administrative Career Examination (or PACE), the principal entry-level test administered to candidates for positions in the federal government’s executive branch, discriminated against blacks and Hispanics.
Acting on behalf of those blacks and Hispanics who had failed the test (Angel Luevano being one of them), the lawyers asked the judge (1) to declare that the OPM, by using the test, had deprived the plaintiffs of rights secured by Title VII of the Civil Rights Act of 1964; (2) to enjoin the further use of the test; (3) to enjoin the defendant from acting in any way to deprive plaintiffs of their Title VII rights; (4) to award plaintiffs back pay for the work they had not had the opportunity to perform; (5) to award plaintiffs the costs of their suit, including attorneys’ fees; and (6) to provide “such other and further relief as the Court may deem just and proper.”
This is what the plaintiffs wanted and, we are asked to believe, what the defendant, the federal government, did not want to give them. For two years, with lawyers from the Department of Justice acting for the OPM, the parties “negotiated,” so to speak, and then, in January 1981, in order to resolve the dispute “without the time and expense of contested litigation,” they agreed to settle.
Some settlement. The government not only gave the plaintiffs everything they asked for; by giving them a hiring quota system, the government actually gave them more than they asked for. This did not deter the judge, Joyce Hens Green of the U.S. District Court for the District of Columbia, from giving the agreement her preliminary approval. On the same day, even as he packed his private papers and marched off to join a Washington law firm, the outgoing Associate Attorney General, John H. Shenefield, announced his pleasure with the agreement and denied that it would require the imposition of a quota system. There being no “absolute numerical requirement,” he said to the press, there is no quota.
The New York Times agreed: “The fact is that the government undertook no numerical obligation. And when the promised remedial action is completed, hiring will again be totally colorblind.” This is, at best, wishful thinking; there is no reason to think that we shall ever see the end of this “remedial action.” Even so, what the Times finds convenient to conceal is that the statute which is said to require remedial action in fact forbids it.
Title VII of the Civil Rights Act of 1964, which was amended in 1972 to cover employment by the federal government, declares it to be an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
As statutes go, this one would appear to be a model of clarity and precision. To make it even clearer that its purpose was to forbid what the Times calls remedial action, or reverse discrimination, Congress went on to declare that nothing in Title VII should be interpreted to require employers “to grant preferential treatment” to any individual or group because of race, color, religion, sex, or national origin, not even to correct “an imbalance which may exist with respect to the total number or percentage of persons of any race [etc.] employed by any employer.”
Not only did Congress forbid reverse discrimination, but, in still another section of Title VII, it made it clear that employers would continue to be permitted to screen job applicants by means of professionally developed ability tests, provided the tests were not “designed, intended, or used to discriminate because of race, color, religion, sex, or national origin.”
Remedial action, as the Times calls it, is permitted today not because the Supreme Court could not understand this language but because it ignored it, and because Congress has permitted the Court to ignore it. The Court knew very well that the Kaiser Aluminum Company was violating the statute when it reserved half the places in a training program for its black employees. But, said Justice Brennan in the Weber case, to read the statute as written would bring about an end completely at variance with the purpose of the statute. Congress’s express purpose was to eliminate discrimination against persons with specified characteristics; but Brennan said Congress’s real purpose was to provide jobs for such persons, even if this required employers to discriminate against persons with other characteristics. Besides, he added, the statute does not say that employers are not permitted to prefer one race over another, at least blacks over whites.1
Moreover, whereas Congress had made it clear that employers would be permitted to use general ability or aptitude tests, the Court said in another case that only job-related tests would be permitted: “What Congress has commanded,” it said, despite substantial evidence to the contrary, “is that any tests used must measure the person for the job and not the person in the abstract.” With this the way was paved for the Carter administration’s agreement to impose racial quotas.
Here, summarized from some 40 pages of convoluted text, are the main provisions of that agreement:
(1) Within three years following Judge Green’s final approval of it, the government will phase out the PACE and replace it with job-related “alternative examining procedures,” procedures that have no “adverse impact” on blacks and Hispanics; (2) examining procedures are understood to have an “adverse impact” not when blacks and Hispanics do not pass the tests at the same rate as non-Hispanic whites, but when they are not hired at substantially the same rate; (3) if there is “adverse impact,” the government must make “all practicable efforts” to eliminate it; (4) all practicable efforts must include the following: (a) appointment without testing of anyone with a college grade-point average of 3.5 or better, or of anyone who stands in the top 10 percent of his class; (b) appointment without reference to test score of anyone who speaks Spanish or has the “requisite knowledge of Hispanic culture” (where the job to which the appointment is made is one where performance would be enhanced by these skills); (c) appointment without testing of anyone who successfully completes a work-study program organized by a federal agency and a college, including a two-year college; (d) establishment of special programs designed to enable blacks and Hispanics to pass the PACE during the period it is still in use; and (e) in the event that adverse impact is not yet eliminated, a willingness to adopt whatever measures the plaintiffs or the court should require); (5) the government may cease these efforts to eliminate adverse impact when—the Reagan administration managed to eliminate this provision—blacks and Hispanics comprise “at least 20 percent of all incumbents at the GS-5 level and higher levels in the entire job category on a nationwide basis” and when—the Reagan administration did not succeed in eliminating this one—an agency can demonstrate the “validity” of its alternative examining procedure.
In addition to these substantive provisions, the Justice Department agreed to pay the plaintiffs sums of money ranging from $6,250 to $12,500; to help two of the plaintiffs find government jobs; to search OPM records for the names of other blacks and Hispanics who took the PACE but did not get jobs, and, if they had filed charges of discrimination, to pay each a sum of $3,000 as “back wages,” and assist each of them to find a government job; to compile records of the racial composition of the federal work force; to pay plaintiffs’ attorneys (and expert witnesses) for the work already done, and for the work they will do in connection with monitoring compliance with the decree, and for the work involved in any future judicial proceedings instituted under provisions of the decree.
On one point only was the Justice Department seemingly adamant: it refused to admit that the government’s use of the PACE violated Title VII or that it had not been properly validated in accordance with the appropriate guidelines; it therefore refused to concede that the government was “subject to any liability.” What was withheld in principle, however, was given up in practice: the government scrapped the test and doled out the money. In exchange for all this, the plaintiffs graciously agreed to accept what the government gave them.
This drastic measure, controlling the method by which, annually, hundreds of thousands of applicants for federal jobs will be examined, was adopted not by the OPM, the agency in charge of examining and hiring, but by Justice Department lawyers working in the context of a lawsuit. Many of the agencies that would be immediately affected were not even informed that there was a law suit or, indeed, until one week before it was signed, that there was an agreement. The agreement was signed over the objections of the OPM, the agency most vitally concerned; it was signed even though officials in the OPM had thought that, after the November 1980 election, the whole scheme had been shelved. It was signed even though the Reagan transition team had been told that nothing would be done until the new administration had had the opportunity to study it. It was signed without consulting private employers, although it is clear that both the plaintiffs and the government lawyers had them in mind when they negotiated the agreement. (Title VII applies to private employers as well as to the government, and the Uniform Guidelines on Employee Selection Procedures, which speak openly of the necessity to take affirmative action, are written primarily with them in mind.) It was signed simply because some lawyers in the Department of Justice and the EEOC arrogated to themselves the authority to decide what was good for the country, and it mattered not at all to them that they represented a repudiated administration.
Shortly after taking office, the new Attorney General, William French Smith, was quoted as saying that in view of the legal difficulties of withdrawing from an agreement to which the government had given its consent, the Reagan administration would, with amendments, abide by its terms. The blatant quota provision was removed, and that is surely significant, but the government is still obliged to eliminate adverse impact, and its efforts to do so must continue until it succeeds in devising examining procedures which have been validated. And this presents a problem.
There are rules for determining the validity of an examining procedure, which is to say, for determining whether it accurately measures the qualities or skills required for successful job performance; they are set down in the Uniform Guidelines on Employee Selection Procedures, a document written by the EEOC and other affirmative-action agencies. It should surprise no one familiar with the Guidelines or the agencies to learn that no examining procedure has yet been validated. Nor is it being unduly cynical to suggest that, so long as the Guidelines are in place, none ever will be.
The purpose of the Guidelines is, quite clearly, to prevent the validation of any examining procedure that does not produce a racially balanced work force; and the purpose of the consent decree, as signed by the Carter Justice Department, was, equally clearly, to see to it that any validating be done according to those Guidelines and not Guidelines written by the new administration. Fortunately, the Reagan team managed to amend the agreement to allow it to follow the Guidelines as set down in the Code of Federal Regulations, “or as subsequently modified.” If the government can change the Guidelines (which will depend on its ability to impose its will on the zealots in the bureaucracy), this change might prove to be significant.
But the Carter people set still another trap. The plaintiffs may challenge an agency’s claim to have validated an alternative examining procedure, but the agency may not meet that challenge unless it gains the consent of the Justice Department. “No agency,” reads section 12(f) of the agreement, “may assert in Court the validity of an alternative examining procedure . . . unless it has first obtained a written statement from the Attorney General or his or her designate that he or she will defend the validity of the agency’s use of the alternative examining procedure.” So the issue—hiring by merit or quotas—will turn on who is Attorney General, or more likely, who is Associate Attorney General, someone like John H. Shenefield or someone who knows what is going on.
Then, to make it virtually certain that the OPM (or any agency) will not be able to escape its obligation to hire blacks and Hispanics at the same rate that it hires non-Hispanic whites, even if it succeeds in demonstrating the validity (the job-relatedness) of its new procedures, the parties to the agreement cleverly included the following provision (and the Reagan team was not clever enough to have it removed): “Once an agency has demonstrated the validity of an alternative examining procedure in accordance with this Decree, it has no obligation under the Decree to modify the procedure or the use of the procedure, or to replace it, unless there is another selection procedure for the same job having at least substantially equal validity and less adverse impact” (emphasis added). This means that the OPM will be required to set aside its procedures in favor of procedures designed by the plaintiffs (with the help of the EEOC) unless it can prove to Judge Green that their validity is not “substantially” equal.
So, finally, we have reached the end. In the absence of validated and acceptable tests, the OPM will be obliged to continue to make all practicable efforts to eliminate adverse impact until the point is reached where the work force comprises X percent black, Y percent Hispanic, and Z percent non-Hispanic whites. This is not a quota—we have the word of John Shenefield and the New York Times on it—because there is not an “absolute numerical requirement.” If quota means fixed number or even fixed proportion, they are right: the number or proportion of blacks and Hispanics to be appointed will depend on how many of them apply for jobs and on the relation of that number to the number of non-Hispanic white applicants; and these numbers can change. In fact, they can be changed radically: one or another group can flood the applicant pool.
It must also be pointed out that the success of this bold new program of hiring will depend on the ability of the government accurately to identify, classify, and count the individual members of each group. There will have to be rules for this; the government cannot allow applicants to define themselves, as the Commerce Department learned when it began to administer the Minority Business Enterprise program. In these matters at least, our government is getting better all the time.
With the founding of the United States, it was hoped that government and, indeed, the whole public sphere, would become merely instrumental. The great political questions had been settled in principle, and in America, with the Declaration of Independence and the subsequent establishing of the Constitution, they had been settled in practice as well. For example, it was thought that there could be no further disputing the issue of who should rule, or who is entitled to rule: to the Founders it was a self-evident truth that just government is government to which the governed give their consent. Nor would there be further disputing of the issue of government’s purpose: government is instituted to secure the rights with which all men are by nature equally endowed. Beyond that, government was to leave men alone. As the late Herbert Storing put it in his last published work, government was seen by the Founders to have the narrow but still indispensable function of “facilitating the peaceful enjoyment of private life.” No longer political in the larger sense, government would be reduced to administration.
We have, however, never lacked dispute as to how that administration should be organized or, more particularly, how its members should be chosen. The original “administration by gentlemen,” as Leonard D. White called it in his history of administration, gave way in time to President Jackson’s more democratic principle of rotation of office and, when that principle was corrupted, to the principle of “to the victor belong the spoils.” Then came civil-service reform and eventually Woodrow Wilson’s science of administration: how rights were to be secured became a question of scientific management (and not one to be answered by political spoilsmen). But the story does not end here.
White, who, at the University of Chicago, taught many of the political scientists of my generation, had a good deal of influence in the design of the procedures by which the members of the public service, as he called it, would be chosen. A scientist, yes, but he was too much a gentleman in the older sense to think that public administration was a job for narrow specialists or technical experts. His model was the British public service, and especially its highest level and the system by which its members were chosen. There, recent honors graduates of the few best universities were selected by competitive examination, with a view not to their ability to perform a specific job but, rather, with a view to their ability, because of their education and intelligence, to perform well in increasingly responsible positions. Public service was understood to be a lifetime career. When President Roosevelt appointed him a Civil Service Commissioner in 1934, White was instrumental in inaugurating an American (and therefore more democratic) version of this British system.
The Junior Professional Assistant Examination, as it came to be called in 1939, was a “broad-band” examination, administered to college graduates; it assessed both verbal ability and capacity to perform a specific job. In 1955, for various reasons, it was replaced by the Federal Service Entrance Examination; differing in certain respects, the FSEE still tested for verbal, quantitative, and abstract reasoning ability. Entering at the GS-5 or GS-7 level, the successful applicants began what the Civil Service Commission hoped would be a lifetime of public service.
In 1974, the FSEE gave way to the PACE, but again there was no essential difference among the three tests. The officials who designed them dared to hope that in time the tests would gain the prestige once enjoyed by the Foreign Service Examination, and that the best of the country’s young persons—fairly selected by competitive examinations—would choose lifelong careers in the public service.
The PACE asks the sort of questions that students who have taken the College Boards would recognize. It is not an easy test; in a given year only about 40 percent will pass it, and fewer than 8 percent will pass it with a score of 90 or above, and it is from this small group that the successful applicants will be chosen. In recent years, approximately 150,000 persons annually have taken the test and 7,000 have been appointed. Unfortunately, few of these have been blacks and Hispanics. The majority of the white applicants fail the test, but as a group the whites do better than blacks as a group or Hispanics as a group. In 1978, to cite specific figures, of the blacks taking the test, only 5 percent passed, and only 0.3 percent passed with a score of 90 or better. (The corresponding figures for Hispanics are 12.9 percent and 1.5 percent.)
These are terrible statistics; they cry out for remedial action of some sort. But they also suggest the price that we are likely to have to pay if the government is required to abandon the merit system and replace it with a system of racial quotas or, in deference to Mr. Shenefield and the New York Times, a system of remedial or compensatory hiring. That price will be heavy, and the parties to the Luevano decree seem to acknowledge this even as they deny it. They know that hiring ought to be done on the basis of merit—both principle and the efficient running of the government require it—which is why, in one section of the agreement, they say that “nothing in this Decree shall be interpreted as requiring any federal agency to hire any person for a job who is unqualified to perform the job. . . .” But their commitment to affirmative action requires them to add, “under qualification standards that have been properly validated in accord with the Uniform Guidelines.” Both merit and a racially balanced work force. Unfortunately, as those terrible statistics suggest, it will be some time before the two prove to be compatible.
1 See Carl Cohen, “Justice Debased: The Weber Decision,” COMMENTARY, September 1979.