Affirmative Action Reconsidered

I. THE CONCEPT

Among the many distinctions that need to be made is the crucial distinction between the general principle of affirmative action and the specific actions taken by the courts and administrative agencies. The general principle behind affirmative action is that a court order to “cease and desist” from some harmful activity may not be sufficient to undo the harm already done or even to prevent additional harm as the result of a pattern of events set in motion by the previous illegal activity. This general principle of affirmative action goes back much further than the civil rights legislation of the 1960s and extends well beyond questions involving ethnic minorities or women. In 1935, the Wagner Act prescribed “affirmative action” as well as “cease-and-desist” remedies against employers whose anti-union activities had violated the law.¹ Thus, in the landmark Jones & Laughlin Steel case which established the constitutionality of the act, the National Labor Relations Board ordered the company not only to stop discriminating against employees who were union members, but also to post notices to that effect in conspicuous places and to reinstate unlawfully discharged workers with back pay.² Had the company merely been ordered to cease and desist from economic (and physical) retaliation against union members, the future effect of its past intimidation would have continued to inhibit the free-choice elections guaranteed by the National Labor Relations Act.
          Racial discrimination is another obvious area where merely to “cease and desist” is not enough. If a firm has engaged in racial discrimination for years and has an all-white work force as a result, then simply to stop explicit discrimination will mean little as long as the firm continues to hire its current employees’ friends and relatives through word-of-mouth referral. (Many firms hire in just this way, regardless of their racial policies.) Clearly the area of racial discrimination is one in which positive or affirmative steps of some kind seem reasonable-which is not to say that the particular policies actually followed make sense.
          Many different policies have gone under the general label of affirmative action, and many different institutions-courts, executive agencies, and even private organizations-have been involved in formulating or interpreting the meaning of the label. The conflicting tendencies and pressures of these various institutions have shifted the meaning of affirmative action and produced inconsistent concepts as well. There is no way to determine the meaning of “affirmative action.” All that can be done is to examine the particulars-the concepts, the intentions, and the actual effects.
          In a society where people come from a wide variety of backgrounds and where some backgrounds have been severely limited by past discrimination, the very definition of equality of opportunity is elusive. For example, a seniority system in a company which previously refused to hire minority individuals means that present and future discrimination occur because of past discrimination. In 1969, the court of appeals struck down such a system on grounds of its current discriminatory effect.³ In another 1969 case, the Supreme Court struck down a mental test for voters in a community with a long history of providing segregated and inferior education for Negroes.⁴ Again the rationale was that the test represented present discrimination, considering the community’s past behavior. This case touches the crucial question of what to do when the effects of past discrimination are reflected in current individual capabilities. Is equal opportunity itself discriminatory under such circumstances? If so, is anything more than equality of treatment justifiable under the Fourteenth Amendment and corollary statutes and court rulings? As important as the question of whether a legal basis exists for any compensatory or preferential treatment is the question of who should bear the inevitable costs of giving some citizens more than equal treatment. A question may also be raised as to whether compensatory or preferential treatment really serves the long-run interests of the supposed beneficiaries.
          The legislative history of the Civil Rights Act of 1964 shows that many of these concerns and dilemmas were present from the outset. Senator Hubert Humphrey (Democrat, Minnesota), in helping to steer this legislation through Congress, attempted to meet criticism by pointing out that the act “does not require an employer to achieve any kind of racial balance in his work force by giving any kind of preferential treatment to any individual or group.”⁵ He said that there must be “an intention to discriminate” before an employer can be considered in violation of the law and that the “express requirement of intent” was meant to prevent “inadvertent or accidental” conditions from leading to “court orders.”⁶ Senator Joseph Clark (Democrat, Pennsylvania), another supporter, made it clear that the burden of proof was to be on the Equal Employment Opportunity Commission (EEOG) to “prove by a preponderance” that a “discharge or other personnel action was because of race”; Senator Clark added categorically: “Quotas are themselves discriminatory.”⁷
          Congress also faced the question of what to do about groups whose historic disadvantages left them in a difficult position when competing on tests with members of the general population. Senator John Tower (Republican, Texas) cited, as an example of what he was opposed to, a case in Illinois where a state agency had forced a company to abandon an ability test which was considered “unfair to ‘culturally deprived and disadvantaged groups.’ ”⁸ Senator Clifford Case (Republican, New Jersey) replied that “no member of the Senate disagrees” with Tower on this point, and Senator Humphrey affirmed that ability tests “are legal unless used for the purpose of discrimination.”⁹ Humphrey rejected Tower’s proposed explicit amendment on this point because he considered it "redundant”: “These tests are legal. They do not need to be legalized a second time.”¹⁰ Senator Case characterized the Illinois state agency’s actions as an “abuse”¹¹ and insisted that the Civil Rights Act did not embody “anything like” the principle of the Illinois case.¹² Humphrey brushed aside the Illinois case as “the tentative action of one man,” which he was sure the Illinois commission as a whole would “never” accept.¹³
          Despite the clear intent of both the supporters and opponents of the 1964 Civil Rights Act, the actual administration of the law has led precisely in the direction which its sponsors considered impossible. The burden of proof has been put on the employer whose work force does not reflect the racial or sex proportions deemed appropriate by the federal agencies administering the law. The chairman of the Equal Employment Opportunity Commission has demanded of employer witnesses at public hearings what has been “the action taken to hire more minority people.”¹⁴ The commission’s position is that “any discussion of equal employment opportunity programs is meaningful only when it includes consideration of their results-or lack of results-in terms of actual numbers of jobs for minorities and women….”¹⁵ Numbers and percentages are repeatedly invoked to show “discrimination”¹⁶-without any reference to individual cases or individual qualifications and with percentages below EEOC’s expectations being characterized as “exclusions” or “underutilization.” The notion of qualified applicants has been expanded to mean “qualified people to train”¹⁷-that is, people lacking the requirements of the job whom the employer would have to train at his own expense. Contrary to the congressional debates, the burden of proof has been put on the employer to show the validity of the tests used,¹⁸ and the notion of “tests” has been expanded to include job criteria in general, whether embodied in a test or not.¹⁹ As for employer intentions, a poster prepared by the EEOC itself includes among ten true-false questions the statement, “An employer only disobeys the Equal Employment Opportunity laws when it is acting intentionally or with ill motive”²⁰-and the answer to that question, is false. Despite Senator Humphrey’s assurances about “express requirement of intent,” legal action can be taken on the basis of “inadvertent or accidental” conditions.
          The EEOC is only one of many federal agencies administering the Civil Rights Act in general or the affirmative action programs in particular. There are overlapping jurisdictions of the Department of Labor, the Department of Health, Education and Welfare, the Department of justice, the EEOC, and the federal courts.²¹ There are also regional offices of all these agencies which vary significantly in their respective practices.²² Moreover, when one federal agency approves-or requires-a given course of action, following such an approved course of action in no way protects the employer from being used by-another federal agency or by private individuals because of those very actions.²³ Indeed, federal agencies have sued one another under this act.²⁴ In short, the meaning of the act is not clear even to those intimately involved in its administration.
          The courts have not gone as far as the administrative agencies in forcing numerical “goals and timetables” on employers. Numerical specifications have typically been invoked by courts only where there has been demonstrable discrimination by the particular employer in question-not simply where there are “wrong” racial proportions. In this specific context, numerical goals are “a starting point in the process of shaping a remedy” for “past discriminatory hiring practices” by the employer to whom the court order applies.²⁵ In the landmark case of Griggs v. Duke Power Company, the Supreme Court included the company’s past record of racial discrimination as a reason why the company could not use tests which (1) eliminated more black job applicants than white job applicants and (2) had no demonstrated relationship to actual job performance.²⁶ In general, the courts have rejected the notion that “any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group . . . .”²⁷
          Legal remedies under the Civil Rights Act and related executive orders of the President range from cease-and-desist orders through individual reinstatement and group preferential hiring to the cutting off of all federal contracts to the offending employer. The latter is a virtual sentence of death to any leading research university, whether public or “private,” for they are all dependent upon federal money to maintain their competitive standing and will sustain a massive loss of top faculty without it.

¹ Section 10(c) of the National Labor Relations Act of 1935.
² Harry A. Millis and Emily Clark Brown, From the Wagner Act to Taft-Hartley (Chicago: University of Chicago Press, 1950), p. 97.
³ Local 189, United Papermakers and Paperworkers, AFL-CIO vs. United States, 416 F.2d 980 (1969).
⁴ Gaston County vs. United States, 395 U.S. 285 (1969).
⁵ U.S. Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964 (Washington, D. C.: U.S. Government Printing Office, n.d.), p. 3005. Hereafter referred to as Legislative History.
⁶ Ibid., p. 3006.
⁷ Ibid., p. 3015.
⁸ Ibid., p. 3134.
⁹ Ibid., p. 3160.
¹⁰ Ibid.
¹¹ Ibid., p. 3131.
¹² Ibid., p. 3161.
¹³ Ibid., p. 3131.
¹⁴ Hearings before the United States Equal Employment Opportunity Commission on Discrimination in White Collar Employment. Hearings held in New York, New York, January 15-18, 1968 (Washington, D. C.: U.S. Government Printing Office, n.d.), p. 110. Hereinafter cited as EEOC Hearings, New York, 1969.
¹⁵ Hearings before the Equal Employment Opportunity Commission on Utilization of Minority and Women Workers in Certain Major Industries. Hearings held in Los Angeles, California, March 12-14, 1969. Hereinafter cited as EEOC Hearings, Los Angeles, 1969.
¹⁶ EEOC Hearings, New York, 1969, pp. 1, 4-13, 161, 169, 444.
¹⁷ Ibid., p. 303.
¹⁸ “Employment Discrimination and Title VII of the Civil Rights Act of 1964,” Harvard Law Review, March 1971, pp. 1132-1139.
¹⁹ Richard A. Lester, Antibias Regulation of Universities (New York: McGraw-Hill Company, 1974), p. 126n.
²⁰ G.P.O. 870-933.
²¹ Lester, Antibias Regulation, pp, 3-4.
²² Ibid., pp. 89-91.
²³ Ibid., pp. 90, 117.
²⁴ Francis Ward, “U.S. Agencies Clash in Rights Lawsuit,” Los Angeles Times, April 27, 1975, Part IV, p. 1 ff.
²⁵ Carter vs. Gallagher, 452 F.2d 315 (1971), as reported in 452 Federal Reporter, 2d series, p. 331.
²⁶ 401 U.S. 424 (1971).
²⁷ Ibid., pp. 430, 431.