Paul Craig Roberts and Lawrence M. Stratton

"Color Code"

Bureaucrats and judges have turned the 1964 Civil Rights Act on its head, creating a system of preferences based on race and sex. Can we restore equality before the law?

Forty years after Brown v. Board of Education, the civil rights movement has strayed far from the color-blind principles of Martin Luther King Jr. Public outrage over preferential treatment for “protected minorities” has taken the place of guilt over segregation. Americans who supported desegregation and equal rights are astonished to find themselves governed by quotas, which were prohibited by the Civil Rights Act of 1964.
In California momentum is building for a 1996 initiative, modeled on the 1964 Civil Rights Act, that would amend the state’s constitution to prohibit the use of quotas by state institutions. Polls indicate that the initiative’s objective of ending affirmative action is enormously popular, even in traditionally liberal bastions such as Berkeley and San Francisco. Citizens in other states are organizing to place similar measures on the ballot. The prospects for such measures are bright: surveys find that some
80 per cent of Americans oppose affirmative action in employment and education.
The hostility to race and gender preferments reflects a general sense that reverse discrimination violates fundamental norms of justice and fair play. Thomas Wood, a co-drafter of the California initiative and executive director of the California Association of Scholars, says he has been denied a teaching job because he is a white male: “I was once told by a member of a search committee at a university,
‘You’d walk into this job if you were the right gender.’ ” Glynn Custred, a California State University anthropology professor, says he decided to join Wood in drafting the initiative because he was concerned about the destructive impact racial quotas were having on higher education, where
“diversity” overshadows academic merit.
The California initiative has drawn support from across the political spectrum. Charles Geshekter, a teacher of African history at Chico State University and a supporter of the initiative, wrote in the August 14 Chico Enterprise Record: “As a liberal Democrat, I despise those who advocate preferential treatment based on genitalia or skin color. Having taught university classes on the history of European racism toward Africa for 25 years, I am appalled to watch sexist and racist demands for equality
of outcomes erode the principle of affirmative equality of opportunity.” University of California Regent Ward Connerly, a black businessman who supports the initiative,
lamented in the August 10 Sacramento Bee that “we have institutionalized this preferential treatment.”

The Pervasiveness of Preferences

Opposition to quotas was initially unfocused, because their impact was not widely felt. The public was aware of a few celebrated cases, but they seemed to be the exception rather than the rule. This is no longer the case. Preferential treatment based on race and sex pervades private and public employment, university admissions and hiring, and the allocation of government contracts, broadcast licenses,
and research grants. Consider a few examples:

A 1989 survey by Fortune magazine found that only 14 per cent of Fortune 500 companies hired employees based on talent and merit alone; 18 per cent admitted that they had racial quotas, while 54 per cent used the euphemism “goals.”

A Defense Depktment memo cited on the November 18 broadcast of ABC‘s 20/20 declares, “In the future, special permission will be required for the promotion of all white men without disabilities.”

The Federal Aviation Administration Officially recognizes the Council of African American Employees, the National Asian Pacific American Association, the Gay, Lesbian, or Bisexual Employees group, and the Native herican/Alaska Native Coalition, granting them access to bulletin boards, photocopiers, electronic mail, voice mail, and rooms in government buildings for meetings on government time. By contrast, the Coalition of Federal White Aviation Employees has been seeking recognition from the FAA since 1992 without success; FAA employees are even forbidden to read the group’s literature.

In the 1994 case Hopwood v. State of Texas, U.S. District Court Judge Sam Sparks found that the constitutional rights of four white law-school applicants had been violated by quota policies at the University of Texas. However, he awarded them each only $1 in damages and refused to order them admitted ahead of protected minorities with substantially lower scores.

A case that came before the U.S. Supreme Court in January shows even more clearly how preferential policies have warped basic concepts of fairness. Randy Pech, owner of Adarand Constructors, lost in the bidding for a guard-rail construction project in Colorado’s San Juan National Forest because of his skin color. Pech put in the lowest bid. However, the prime contractor was eligible for a bounty of $10,000 in taxpayers’ money from the U.S. Department of Transportation for hiring minority-owned
subcontractors, and the bounty was greater than the difference in the bids submitted by Pech and his competitor, a Hispanic-owned firm. Pech filed a discrimination lawsuit. When it reached the Supreme Court, U.S. Solicitor General Drew S. Days 111 argued that Pech had no standing to sue, even though
the U.S. Government had paid the prime contractor $10,000 to discriminate against him. Whatever the technical merits of the solicitor general’s argument, it reveals the system of racial preferments that today passes for civil rights. “Protected minorities” have standing to sue without any requirement of showing that they themselves have ever suffered from an act of discrimination. Today’s college-aged. protected minorities have never suffered from legal discrimination, yet U.S. policy assumes they are victims and provides remedies in the form of preferments. In contrast, victims of reverse discrimination have no
remedy and no legal standing.
The political repercussions of this double standard are by no means restricted to California. In November’s congressional elections, white males deserted the Democratic Party in droves, voting Republican by a margin of 63 per cent to 37 per cent. The” Wall Street Journal has identified “angry white males” as an important new political group.
But more is at stake than the plight of white males and the relative fortunes of political parties. At issue is equality before the law and the democratic process itself. As freedom of conscience, goodwill, and persuasion are supplanted by regulatory and judicial coercion, privilege reappears in open defiance of Justice John Marshall Harlan’s dictum: “There is no caste here. Our Constitution is color-blind.”
Color-blindness was the guiding principle of the 1964 Civil Rights Act. The basic act was full of language prohibiting quotas, and various amendments to it defined discrimination as an intentional act, insulated professionally developed employment tests from attack for disproportionately screening out racial minorities, and re-stricted the Equal Employment Opportunity commission (EEOC) from issuing any substantive interpretive regulations. Senator Hubert H. Humphrey (D., Minn.), the chief sponsor of the act, confidently declared that if anyone could find “any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I
will start eating the pages one after another, because it is not in there.” In less than a decade, federal bureaucrats and judges had cast aside Congress’s rejection of preferential treatment for minorities and stuffed the pages of the 1964 Civil Rights Act down Hubert Humphrey’s throat.

Two Models of Discrimination

The Civil Rights Act of 1964 undertook to put millions of employer decisions through a government filter. Such a massive intrusion into private life had not previously occurred in a free society. Congress assumed that the EEOC, the agency created by the act to run the filter, would be like the state Fair Employment Practice (FEP) commissions that had been created in some Northern states after World War 11.
Civil-rights activists regarded these commissions, many of which had more power than the EEOC, as ineffective. As University of Chicago economist Gary Becker observed, however, there was an explanation for the paucity of enforcement actions by the FEP commissions: discrimination doesn’t pay. In his 1957 book, The Economics of Discrimination, Becker showed that racial discrimination is costly to those who practice it and therefore sets in motion forces that inexorably reduce it. Meritorious employees who are underpaid and underutilized because of their race will move to firms where they
get paid according to their contributions. An employer who hires a less qualified white because of prejudice against blacks will disadvantage himself in competition against those who hire the best employees they can find.
Indeed, scholars who studied the cases handled by FEP commissions found that the complainant’s problem was usually job qualifications, not his race. Sociologist Leon Mayhew, who studied employment-discrimination complaints filed with the Massachusetts FEP commission from 1946 to 1962, found that most complaints were based on “mere suspicion” and usually resulted in a finding that the employer had not discriminated. He pointed out that most complainants were poor and lacked job
skills. Thus, ordinary, profit-oriented business decisions “regularly produce experiences that could be interpreted as discrimination.” This phenomenon “permits Negroes to blame discrimination for their troubles. Hence, some complaints represent a projection of one’s own deficiencies onto the outside world.”
This argument did not appeal to those who wanted to achieve racial integration through government policy. Activists such as Rutgers law professor Alfred W. Blumrosen, who as the EEOC’s first compliance chief became the de facto head of the commission in its formative years, rejected the complaint-based, “retail” model of FEP enforcement and envisioned a “wholesale” model attack-
ing the entrenched legacy of discrimination. In 1965 Blumrosen wrote in the Rutgers Law Review that FEP commissions focused too much on individual acts of discrimination and “did not remedy the broader social problems” by reducing the disparity between black and white unemployment. Seeking to redefine discrimination in terms of statistical disparity, he dismissed other explanations of economic differences between blacks and whites, such as education and illegitimacy, as harmful “attempt [SI to shift focus.” Blumrosen disdained the Civil Rights Act’s definition of discrimination as an intentional act, preferring a definition that Congress had rejected. In his 1971 book, Black Employment and the Law, he wrote:

If discrimination is narrowly defined, for example, by requiring an evil istent to injure minorities, then it will be difficult to find that it exists. If it does not exist, then the plight of racial and ethnic minorities must be attributable to some more generalized failures in society, in the fields of basic education, housing, family relations, and the like. The search for efforts to improvethe condition of minorities must then focus in these general and difficult areas, and the answers can come only gradually as basic
institutions, attitudes, customs, and practices are changed. We thus would have before us generations of time before the effects of subjugation of minorities are dissipated.

But if discrimination is broadly defined, as, for example, by including all conduct which adversely affects minority group employment opportunities . . . then the prospects for rapid improvement in minority emplofment opportunities are greatly increased. Industrial relations systems are flexible; they are in control of defined individuals and institutions; they can be altered either by negotiation or by law. If discrimination exists within these institutions, the solution lies within our immediate grasp. It is not embedded in the complications of fundamental sociology but can be sharply influenced by intelligent, effective, and aggressive legal action.
This view finds discrimination at every turn where minorities are adversely affected by institutional decisions, which are subject to legal regulation. In this view, we are in control of our own history. The destruction of our society over the race question is not inevitable. This is the optimistic view of the racial problem in our nation.

Blumrosen‘s Agenda

Blumrosen figured that a redefinition of discrimination to include anything that yielded statistical disparities be-tween blacks and whites would force employers to give preferential treatment to blacks in pursuit of proportional representation, so as to avoid liability in class-action suits. He set out to “liberally construe” Title VI1 of the Civil Rights Act, which prohibited discrimination in employment, in order to advance “the needs of the minorities for whom the statute had been adopted.” By promoting quotas, he could “maximize the effect of the statute on employment discrimination without going back to the
Congress for more substantive legislation.”
Blumrosen’s EEOC colleagues kidded him that he was working on a textbook entitled Blumrosen on
Loopholes. He took pride in his reputation for “free and easy ways with statutory construction.” He later praised the agency for being like “the proverbial bumble bee” that flies “in defiance of the laws governing its operation.” Blumrosen’s strategy was based on his bet that “most of the problems confronting the EEOC could be solved by creative interpretation of Title VI1 which would be upheld
by the courts, partly out of deference to the administrators.” History has proved Blumrosen right.
As inside-the-Beltway lore expresses it, “Personnel is policy.” Blumrosen had a free hand because Franklin Delano Roosevelt Jr., the EEOC’s first chairman, spent most of his time yachting. Staffers jokingly changed the lyrics of the song “Anchors Aweigh” and sang ‘‘Franklin’s Away” during his frequent absences. Roosevelt resigned before a year was out, and his successors stayed little
longer. The EEOC-had four chairmen in its first five years, which enhanced Blumrosen’s power.
The White House Conference on Equal Employment Opportunity in August 1965 indicated what was to come. Speaker after speaker described “deeply rooted patterns of discrimination” and “unde-representation” of minorities that the EEOC should counter in order to promote “equal employment opportunity.” The conference report stressed on its first page that the “conferees were eager to move beyond the letter of the law to a sympathetic discussion of those affirmative actions required to make the legal requirement of equal opportunity an operating reality.” Another telling line said that “it is not enough to obey the technical letter of the law; we must go a step beyond in order to assure equal employment opportunity.” One panel concluded that “it is possible that the letter of the law can be obeyed to the fullest extent without eliminating discrimination in hiring and promotion. For the legislative intent of Title VI1 to be met, the law will have to be obeyed in spirit as well as in letter.”
The report noted that many panelists shared Blumrosen’s suspicion that if the EEOC limited its activities to responding to complaints of discrimination, the agency would never “reach the extent of discriminatory patterns.” Blumrosen inserted a paragraph into the report suggesting that the agency should initiate proceedings against employers even in the absence of complaints of discrimination. Underutilizers of minority workers could be identified by using “employer reports of the racial composition of the work force as a sociological ‘radar net’ to determine the existence of patterns of discrimination.”
Blumrosen succeeded in setting up a national reporting system of racial employment statistics despite the Civil Rights Act’s specific prohibition of such data collection. An amendment introduced by Senator Everett Dirksen (R., Ill.), said employers did not have to report statistics to the EEOC if they were already reporting them to local or state FEP commissions. Blumrosen later admitted that the requirement he imposed on employers to report the racial composition of their work forces was based on “a reading of the statute contrary to the plain meaning.” But what was a mere statute?
Columbia University law professor Michael Sovern predicted that the EEOC would be called on the carpet for exceeding its authority. In a study for the Twentieth Century Fund, Legal Restraints on Racial Discrimination, he wrote that Title VI1 “cannot possibly be stretched to permit the-Commission to insist on the filing of reports” and predicted that Blumrosen would “encounter resistance.” But no resistance materialized. As Hugh Davis Graham observed in The Civil Rights Era, “In 1965 Congress was distracted by debates over voting rights and Vietnam and Watts and inflation and scores of other issues
more pressing than agency records.”
After Blumrosen got his way in forcing employers to submit reports, the agency developed the confidence to dispense with other statutory restrictions on its mission. The EEOC saw the reporting requirement as a “calling card” that “gives credibility to an ofierwise weak statute.”
Blumrosen knew that “with the aid of a computer,” the EEOC could now get “lists of employers who, prima facie, may be underutilizing minority-group persons” and eventually force them to engage in preferential hiring of blacks.
In mid 1965 Blumrosen sent EEOC investigators to Newport News, Virginia, to solicit discrimination complaints against the Newport News Shipbuilding & Dry Dock Company, one of the world’s largest shipyards, employing 22,000 workers. Knocking on doors in black neighborhoods, the investigators found 41 complainants, later narrowed down to 4. Blumrosen then successfully pressured the company, which received 75 per cent of its business from Navy contracts, to promote 3,890 of its 5,000 black workers, designate 100 blacks as supervisors, and adopt a quota system in which the ratio of black to
white apprentices in a given year would match the region’s ratio of blacks to whites. One shipyard worker told Barron’s that the EEOC had done its worst to “set black against white, labor against management, and disconcert everybody.”
Armed with the national reporting system’s racial data and the victory at Newport News, Blumrosen and his colleagues decided to build a body of case law under Title VI1 to impose minority-preference schemes on employers across the country. The barrier to this strategy was Title VI1 itself. An internal EEOC legal memorandum concluded “Under the literal language of Title VII, the only actions required by a covered employer are to post notices, and not to discriminate subsequent to July 2, 1965. By the explicit terms of Section 703(j), an employer is not required to redress an imbalance in his work force
which is the result of past discrimination.” Fearing a storm over quotas like the one that had occurred during the congressional debates on the Civil Rights Act, the EEOC ruled out trying to amend the Act itself. The memorandum instead urged the agency to rewrite the statute on its own and influence the courts to embrace the EEOC’s ‘‘affirmative theory of nondiscrimination,” under which compliance with Title VI1 requires that “Negroes are recruited, hired, transferred, and promoted in line with their ability and numbers.”

The Assault on Employment Tests

To implement the “affirmative theory of nondiscrimination,” the EEOC decided to assault employment tests that failed blacks at a higher rate than whites. Commissioner Samuel Jackson told members of the NAACP that the EEOC had decided to interpret Title VI1 as banning not only racial discrimination per se but also employment practices “which prove to have a demonstrable racial effect.” EEOC lawyers formed an alliance with civil-rights attorneys at the NAACP and began a litigation drive to re-
define discrimination in terms of statistical effects.
Summer riots and Vietnam protests helped activists target employment tests. The Kerner Commission’s report on civil disorders described employment tests as “artificial barriers to employment and promotion.” The Kerner Commission blamed these “artificial barriers” and the “explosive mixture which has been accumulating in our cities” on racism and concluded, “Our nation is moving toward two societies, one black, one white-separate and unequal.”
The EEOC’s chief psychologist, William H. Enneis, attacked “irrelevant and unreasonable standards for job applicants and upgrading of employees, [which] pose serious threats to our social and economic system. The results will be denial of employment to qualified and trainable minorities and women.” Enneis said the EEOC would not “stand idle in the face of this challenge. The cult of credentialism is one of our targets,” to be fought “in whatever form it occurs.”
The EEOC issued guidelines in 1966 and 1970 designed to abrogate the pro-testing amendment to the Civil Rights Act introduced by Senator John Tower (R., Tex.) by defining the phrase “professionally developed ability tests” as tests that either passed blacks and whites at an equal rate or met complex “validation” requirements for “fairness” and “utility.” Under the validation requirements that Enneis designed, employers had to prove that the tests measured skills they needed. The objective was to make
tests so difficult to defend in court that employers would simply abandon them and hire by racial quota. Enneis testified before Congress in 1974 that he knew of only three or four test-validation studies that satisfied his guidelines. As a 197 1 Harvard Law Review survey of developments in employment law deduced, the EEOC guidelines “appear designed to scare employers away from any objective standards which have a differential impact on minority groups, because, applied strictly, the testing requirements
are impossible for many employers to follow.” As a result, the guidelines “encourage many employers to use a quota system of hiring.” An EEOC staffer told the Harvard Law Review that “the anti-preferential-hiring provisions [of Title VII] are a big zero, a nothing, a nullity. They don’t mean anything at all to us.”
The EEOC’s attack on tests gutted not only Senator Tower’s amendment but also the statutory definition of discrimination as an intentional act. The commission was well aware that it was treading on legal thin ice. A history of the EEOC during the Johnson Administration, prepared by the EEOC for the Johnson Library under the direction of Vice Chairman Lutlyx Holcomb, detailed the EEOC’s strategy of redefining discrimination and suggested that it was on a collision course with the text and legislative intent of Title VII. The history said the EEOC had rejected the “traditional meaning” of discrimination
as “one of intent in the state of mind of the actor” in favor of a “constructive proof of discrimination” that would “disregard intent as crucial to the finding of an unlawful employment practice” and forbid employment criteria that have a “demonstrable racial effect without clear and convincing business motive.”
Noting that this redefinition would conflict with Senator Dirksen’s insertion of the word “intentional” into the statute, the history said “courts cannot assume as a matter of statutory construction that Congress meant to accomplish an empty act by the amendment” defining discrimination as intentional. The history predicted that “the Commission and the courts will be in disagreement as to the basis on which they find an unlawful employment practice” and concluded that “eventually this will call for the reconsideration of the amendment by Congress or the reconsideration of its interpretation by the Commission.”
As things turned out neither the EEOC nor Congress had to reconsider the meaning of discrimination, because the courts also ignored the law. In the 1971 case Griggs‘v. Duke Power, the Supreme Court accepted the EEOC’s rewrite of the Civil Rights Act. The opinion was written by Chief Justice Warren Burger, President Richard Nixon’s first appointee to the Supreme Court. Coveting the fame of his predecessor, Earl Warren, Chief Justice Burger told his clerks that he wanted to “confuse his detractors in the press” by writing some “liberal opinions.”

Blumrosen Wins His Bet

When Burger declared that “the administrative interpretation of the Act by the enforcing agency is entitled to great deference,” Professor Blumrosen won his bet that the EEOC’s “creative interpretation of Title VI1 would be upheld by the courts, partly out of deference to the administrators.” Burger got the acclaim he coveted. Blumrosen cheered the Chief Justice’s opinion as a “sensitive, liberal interpretation of Title VII” that “has the imprimatur of permanence.”
In Griggs the Court ignored clear statutory language and unambiguous legislative history. In fact, Griggs paralleled a 1964 Illinois case, Myart v, Motorola, that had troubled many of theJegislators who approved the Civil Rights Act. Myart struck down Motorola Corporation’s use of an employment test that blacks failed at a higher rate than whites. The EEOC’s history for the Johnson Library noted that “many members of Congress were concerned about this issue because the court order against Motorola was handed down during the debates. The record establishes that the use of professionally developed ability tests would not be considered discriminatory.” Nevertheless, the Supreme Court ruled that Duke Power Company was discriminating against blacks by requiring employees seeking promotions to have a high-school diploma or a passing grade on intelligence and mechanicalcomprehension tests.
The Supreme Court agreed with the lower courts that Duke Power had not adopted the requirement with any intention to discriminate against blacks. Burger admitted that the company’s policy of financing two-thirds of the cost of adult high-school education for its employees suggested good intent. But the lack of a racist motive did not make any difference to the Chief Justice. He decreed that the “absence of discriminatory intent does not redeem employment procedures or testing mechanisms
that operate as ‘built-in headwinds’ for minority groups.” Burger was mistaken when he wrote, “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” It was precisely this misinterpretation of the statute that the Dirksen Amendment was crafted to prevent.
Burger viewed the promotion requirements as “built-in- headwinds” against blacks because blacks were
less likely than whites to have completed high school or to do well on aptitude tests. He cited 1960 census statistics showing that 34 per cent of white males in North Carolina had completed high school, compared to 12 per cent of black males, and EEOC findings that 58 per cent of whites passed the tests used by Duke Power, compared to 6 per cent of blacks. Blaming these disparities on segregation, Burger said that “under the Act, practices, procedures, or tests neutral on their face, and even neutral in
terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Burger destroyed job testing when he de- clared, “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”
Burger’s casuistry was to be given a name. In the 1976 book Employment Discrimination Law, EEOC
District Counsel Barbara Lindemann Schlei and co-author Paul Grossman called the new emphasis on consequences “disparate impact” analysis. One year later, the Supreme Court used the phrase for the first time in the case International Brotherhood of Teamsters v. United States, which dealt with burdens of proof in Title VI1 cases attacking union seniority systems. “Proof of discriminatory motive,” the Court said, “is not required under a disparateimpact theory.” Henceforth, any requirement that had a
disparate impact on the races, regardless of intent or the reasonableness of the requirement, constituted discrimination. In employment and promotions, unequals had to be treated as equals. The same was soon to follow in university admissions testing. Race-based privileges had found their way into law.
In Griggs Chief Justice Burger said employers could escape prima facie Title VI1 liability only if test requirements are “demonstrably a reasonable measure of job performance.” Pulling a phrase out of thin air, Burger said “the touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” Burger invented a statutory hook for his ruling by asserting, falsely, that “Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” It was precisely this heavy- handed intrusion into job requirements that the Tower
Amendment was designed to prevent.
Burger’s deference to the EEOC meant that the agency would become the national arbiter of job tests.
Following Griggs, the agency immediately issued manuals warning employers that unless they “voluntarily” increased their minority statistics, they risked costly liability. Ultimately, it became prohibitively expensive to use job tests unless they were race-normed so that blacks could qualify with lower scores.

The Impact of Disparate Impact

In a subsequent case interpreting Griggs, Justice Harry Blackmun expressed his concern that the EEOC’s guidelines would lead to hiring based on race rather than merit. He warned that “a too-rigid application of the EEOC guidelines will leave the employer little choice, save an impossibly expensive and complex validation study, but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII.”
By then it was too late. Griggs had killed four birds with one stone: Senator Tower’s amendment on tests, Senator Dirksen’s amendment on intent, Senator Humphrey’s guarantee that the Civil Rights Act could not be used to induce quotas, and the amendment introduced by Representative Emanuel Celler (D., N.Y.) prohibiting the EEOC fmm issuing substantive regulatory interpretations of Title VII. The EEOC wanted quotas, and thanks to Griggs it would get them. “At the EEOC we believe in numbers,” Chairman Clifford Alexander declared in 1968. In pursuit of its goal, the agency assumed powers it did not have. In 1972 Blumrosen boasted in the Michigan Law Review that the EEOC’s power to issue
guidelines “does not flow from any congressional grant of authority.”
When Burger created what would come to be known as disparate-impact analysis he did not realize its quota implications. He thought he was just attacking “credentialism.” As the holder of a law degree from an obscure night school in St. Paul, Minnesota, Burger may have been thinking of himself when he wrote that “history is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees.” Surrounded by Court colleagues and clerks with prestigious Ivy League degrees, Burger might have tasted credential discrimination. He thought that the Court could take away the “headwind” of credentialism that blew against blacks without creating a position for minorities.
Yet before Griggs, any employer who was so in-clined could take the measure of prospective employees and make bets on people with obscure backgrounds who may not have had the best chances in life. After Griggs, no employer could risk hiring a white male from William Mitchell Law School in St. Paul over a black from Harvard. Griggs made race a critical factor in employment decisions. High-school diplomas, arrest records, wage garnishments, dishonorable military discharges, and grade-point averages all became forbidden considerations in hiring decisions, because they are criteria that could have a disparate impact on blacks. Farmers have even been sued for asking prospective farm hands
whether they could use a hoe, on the grounds that blacks have a greater propensity to back problems. Perfectly sensible height and weight requirements for prison guards and police officers have also been struck down for having a disparate impact on women. The EEOC strategy that led to Griggs was not created in a vacuum. Civil-rights activists needed a new cause, and preferences that would enable blacks to attain equality of result became the new goal. In January 1965, Playboy asked Martin Luther King Jr., “Do you feel it’s fair to request amultibillion-dollar program of preferential treatment for the Negro, or for any other minority group?” King replied, “I do indeed.” In 1969, the U.S. Court of
Appeals for the Fifth Circuit, the same court that had initiated school busing in the name of “racial balance,” cast aside the prohibition of quotas in Section 703(j) of the Civil Rights Act by upholding a court order that every other person admitted to a Louisiana labor union must be black. Responding to the argument that this order clearly violated Section 703(j), the three-judge panel simply wrote, “We disagree.”
President Johnson was the most prominent propo- nent of the shift away from the color-blind ideal. At his commencement speech at Howard University on June 4, 1965, Johnson said the disappearance of legal segregation was not enough:
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race, and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair.Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result. This is the next and the more profound stage of
battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.
To back up his speech with action, Johnson issued Executive Order 11246, which put the phrase “affirmative action” into common parlance. The order required all Federal Government contractors and subcontractors 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.”
Johnson’s equality-of-results rhetoric and his metaphor of helping a hobbled runner have provided the
main emotional justification for “affirmative action,” but the quotas that now web federal contractors under Executive Order 11246 were not implemented by his Administration. Facing strong opposition from the Department of Defense, labor unions, members of Congress, and Comptroller General Elmer Staats, Johnson’s labor secretary, Willard Wirtz, dropped his plans to impose quotas on federal construction projects in Philadelphia.
That task fell to George P. Shultz, Richard Nixon’s labor secretary. Just as Burger considered Griggs a blow against credentialism, Shultz, a labor economist from the University of Chicago, saw the Philadelphia Plan as a way of making an end run around the Davis-Bacon Act, which inflated the cost of federal construction contracts by setting wages at “prevailing union levels.” Davis-Bacon meant non-union contractors and laborers (many of whom were black) could not get government contract work. Sensitive to charges that he was hostile to civil rights, Nixon wrGte in his memoirs that he accepted
Shultz’s proposal to revive the Philadelphia Plan in order to demonstrate to blacks “that we do care.”
On June 27, 1969, Assistant Secretary of Labor Arthur A. Fletcher, a black former businessman who had been a professional football player, announced the Philadelphia Plan in the City of Brotherly Love. He said that while “visible, measurable goals to correct obvious imbalances are essential,” the plan did not involve “rigid quotas.” The Congressional Quarterly disagreed with Fletcher’s scholastic distinction, calling the Philadelphia Plan a “nonnegotiable quota system.”
Under the plan, the Labor Department’s Office of Federal Contract Compliance (OFCC) would assess
conditions in the five-county Philadelphia area and set a target percentage of minorities to be employed in several construction trades, with the aim of attaining a racially proportionate work force. Potential federal contractors would have to submit complex plans detailing goals and tifnetables for hiring blacks within each trade to satisfy the OFCC’s “utilization” targets. Arthur Fletcher said the Philadelphia
Plan “put economic flesh and bones on Dr. King’s dream.”
In 1971 the U.S. Court of Appeals for the Third Circuit accepted the Nixon Administration’s argument
that “goals and timetables” were not quotas and that, even if they were, the Civil Rights Act’s ban on quotas applied to Title VI1 remedies, not to executive orders. The Supreme Court avoided the controversial quota issue by refusing to review the case. Although the appeals court’s ruling had no force outside the Third Circuit, the Nixon Administration interpreted the Supreme Court’s lack of
interest as a green light. As Laurence H. Silberman, who was undersecretary of labor at the time, later wrote, the Nixon Administration went on to spread Philadelphia Plans “across the country like Johnny Appleseed.” The Labor Department quickly issued Order #4, which required all federal contractors to meet “goals and timetables” to “correct any identifiable deficiencies” of minorities in their work forces. The carrot of government contracts and the stick of disparate-impact liability under Griggs quickly established quotas. For many corporate managers, hiring by the numbers was the only protection against discrimination lawsuits and the loss of lucrative government contracts. Contractors hired minorities to guard against the sin of “underutilization,” and racial proportionality became a precondition of government largesse. Arthur Fletcher estimated that the new quota regime covered “from one-third to one-half of all U.S. workers.”
The Section 703(j) prohibition of quotas in the Civil Rights Act remained in the law but meant nothing.
Reverse discrimination was in. When the liberal William 0. Douglas, the only remaining member of the Brown Court, tried to get his Supreme Court colleagues to review the case of a white who was refused admission to the Arizona bar to make room for blacks with lower bar-exam scores, he argued that “racial discrmination against a white was as unconstitutional as racial discrimination against a black.” Douglas failed to persuade his fellow Justices. He reports in his autobiography that Thurgood
Marshall replied: “You guys have been practicing discrimi- nation for years. Now it is our turn.”

The Spread of Quotas

Although the phrase “federal contractor” conjures up images of workers in hard hats busy with construction projects or weapons systems, colleges and universities are also federal contractors, receiving federal funds through research grants and financial aid to students. Following the
Labor Department’s lead, Nixon’s Department of Health, Education, and Welfare soon required similar “goals and timetables” for faculty hiring. Before long the practice had spread to student admissions as well.
In 1974 Douglas tried to get the Court to address quotas in this area. Marco DeFunis challenged the
University of Washington Law School’s 20 per cent quota for blacks. The school had rejected DeFunis though his GPA and test scores surpassed those of 36 of the 37 admitted blacks. Using his powers as a Circuit Justice, Douglas stayed the Washington Supreme Court’s ruling against DeFunis and ordered his admission.
By the time DeFunis’s case came before the Supreme Court, however, he was about to receive his degree. This let the Court avoid the quota issue by declaring the case moot. Douglas dissented on the mootness ruling and addressed the case’s merits. He viewed DeFunis just as he had Brown: “There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.”
But time had passed Douglas by. In Douglas’s mind, discrimination was still connected with merit. DeFunis’s scores showed that he met a higher objective standard than those admitted in his place. But by this time any standard that had disparate impact was ipso facto discriminatory. In the eyes of Douglas’s colleagues, DeFunis was simply a beneficiary of a discriminatory standard. Douglas, who had supported the Griggs decision, obviously did not comprehend its implications.
The quota issue-&-emerged in 1978, when Allan Bake, a white male refused admission to the University of California Medical School, challenged the school’s policy of reserving 16 per cent of its slots for minorities. Each of the accepted minorities had academic credentials inferior to Bakke’s. In a 156-page opinion with 167 footnotes, the Justices reached the schizophrenic conclusion that Bakke
should be admitted, but that certain skin colors could nevertheless be considered grounds for college admissions if the goal was to enhance “educational diversity.”
A year later the Supreme Court ruled that companies could “voluntarily” impose quotas on themselves to avoid liability. Pressured by OFCC affirmative-action requirements and the need to forestall Title VI1 liability under Griggs, Kaiser Aluminum, like many other companies, had entered into a quota agreement with its union, the United Steelworkers of America, in 1974. The agreement stipulated that “not less than one minority employee will enter” apprentice and craft training programs “for every nonminority employee” until the percentage of minority craft workers approximated the percentage of minorities in the regions surrounding each Kaiser plant. Two seniority lists were drawn up, one white and one black, and training openings were filled alternately from the two lists.
Brian Weber, a 32-year-old white blue-collar worker who had ten years’ seniority as an unskilled lab technician at Kaiser Aluminum’s plant in Gramercy, Louisiana, applied for a training-program slot but was denied in favor of two blacks with less seniority. After his union denied his grievance, Weber wrote the local EEOC office requesting a copy of the 1964 Civil Rights Act. When the Civil
Rights Act arrived in the mail, Weber read it through and found that it said “exactly what I thought. Everyone should be treated the same, regardless of race or sex.” Encouraged by the statute’s words, he filed a class-action suit representing his plant’s white workers and won be-fore district and appellate courts.
During Supreme Court oral arguments in United Steelworkers v. Weber Justice Potter Stewart quipped that the Justices had to determine whether employers may “discriminate against some white people.” Justice William Brennan’s answer, for a 5 to 2 majority, was an emphatic “yes.” Brennan said the meaning of the 1964 Civil Rights Act could not be found in its statutory language but resided in its spirit, which Brennan had divined. He asserted that the Act’s clear statutory language and the
Dirksen, Tower, and Celler amendments conveyed a meaning that was the opposite of what Congress had really intended. A literal reading of Title VII, he said, would “bring about an end completely at variance with the purpose of the statute.” In enacting the Civil Rights Act, Brennan continued, “Congress’s primary concern” was with the plight of the Negro in our economy. Anything that
helped minorities was broadly consistent with this purpose. This included racial quotas, as long as they were voluntarily adopted by companies and not required by the Federal Government under Title VII. Brennan denied that Kaiser’s plan would lead to quotas: “The plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.”

Burger Has Second Thoughts

Chief Justice Burger had created disparate-impact analysis in his Griggs opinion without realizing its quota implications. Now that quotas were upon him, he found himself joining in dissent with Justice William Rehnquist. Brennan’s Weber opinion, they said, was “Orwellian.” In Griggs, the Court had declared that “discriminatory preference for any group, minority or majority, is precisely and
only what Congress has proscribed.” But eight years had passed, and the Civil Rights Act had been fully reconstructed. Burger and Rehnquist’s alarm showed in their dissenting language: “By a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, uncontradicted legislative history, and uniform
precedent in concluding that employers are, after all, permitted to consider race in making employment decisions.” The Court “introduces into Title VI1 a tolerance for the very evil that the law was intended to eradicate,” Rehnquist said. Moreover, Brennan’s reading of Section 703(j) was “outlandish” in the light of Title VII’s other “flat prohibitions” against racial discrimination and is “totally belied by the Act’s legislative history.” Rehnquist cited a congressional interpretative memorandum clearly stating that “Title VI1 does not permit the ordering of racial quotas in businesses or unions and does not permit interferences with seniority rights of employees or union members.” But Burger had set the stage for Weber with Griggs, and it was the pot calling the kettle black when he accused Brennan of amending the Civil Rights Act “to do precisely what both its sponsors and its opponents agreed the statute was
not intended to do.”
Having ruled in Weber that reverse discrimination was “benign discrimination,” the Supreme Court upheld other quota schemes in subsequent cases. In the 1980 case Fullilove v. Klutznick, the Court said a federal spending program setting aside 10 per cent of public-works money for minority businesses violated neither the Constitution’s guarantee of equal protection of the laws nor the 1964
Civil Rights Act. In the 1987 case Johnson v. Transportation Agency, Santa Clara County, the issue was the maleness rather than the whiteness of white males. The Court ruled that job discrimination against a white male in favor of a woman with lower performance ratings was perfectly legal under
Title VII, even though the county’s transportation agency had no record of prior discrimination remedies. Rehnquist, Byron White, and Antonin Scalia didn’t like the decision. Scalia said, “We effectively replace the goal of a discrimination-free society with the quite incompatible goal of proportionate representation by race and by sex in the workplace.” He noted that civil rights had become a cynical numbers game played by politicians, lobbyists, corporate executives, lawyers, and government bureaucrats.
In 1989 there was a brief retrenchment when the Supreme Court, with its Reagan appointees, confronted the quota implications of Griggs and the decisions that had followed it. In Wards Cove v. Atonio, the Court ruled that statistical disparities were insufficient to establish a prima facie case of discrimination. In this case, the racial minorities who made up a majority of the unskilled work force at two Alaskan salmon canneries brought a discrimination lawsuit based on the fact that whites held
a majority of skilled office positions. The suit claimed that this constituted underutilization of preferred minorities in ofice positions and was evidence of racial discrimination. The majority opinion, written by Justice White, rejected the discrimination claim. White noted that

any employer who had a segment of his work force that was- for some reason-racially imbalanced, could be hauled into court and forced to engage in the expensive and time-consuming task of defending the “business necessity” of the methods used to select the other members of his work force. The only practicable option for many employers will be to adopt racial quotas, ensuring that no portion of his work force deviates in racial composition from the other portions thereof; this is a result that
Congress expressly rejected in drafting Title VII.

A week after Wards Cove, the Court ruled in Martin v. Wilks that victims of reverse discrimination due to consent decrees that imposed quotas had the right to challenge the decrees in court. The Court noted that victims of reverse discrimination found their rights affected by lawsuits to which they were not parties. Citing a long- standing legal tradition, the majority held that “a person cannot be deprived of his legal rights in a proceeding to which he imot a party.”
These rulings caused an uproar among civil-rights activists, who charged that the new Reagan Court was racist. The illegal privileges that had evolved in the 18 years since Griggs was decided had become a squatter’s right, and Congress and the Bush Administration were bullied into enacting the new inequality into law. The 1991 Civil Rights Act in effect repealed the 1964 Act by legalizing racial preferences as the core of civil-rights law. The new Act was designed to overturn the Wards Cove and
Wilks rulings and to codify the disp9rate-impact standard of Griggs.
The statute also slammed shut the courthouse doors on white male victims of reverse discrimination. If statistical disparities or racial imbalance is proof of discrimination, white males adversely affected by quotas can have no standing in court. To give them standing would necessarily imperil the quota remedies for racial imbalance. You can- not simultaneously declare that anything short of proportional racial representation is discrimination and recognize the adverse impact of the “remedy” on white males. Under the 1991 Civil Rights Act, white males have no grounds for discrimination lawsuits until they are statistically underrepresented in management and line positions. They have no claims to be statistically represented as hirees, trainees, and promotees until preferred minorities are proportionately represented in management and line positions. Indeed, under Brennan’s interpretation of the Civil Rights Act, which says that anything that helps preferred minorities is broadly consistent with the law, the disparate-impact standard could one day be ruled inapplicable to whites.
The 1991 Civil Rights Act added the threat of compensatory and punitive damages to the pressure for
quotas. In “Understanding the 1991 Civil Rights Act,” an article in The Practical Lawyer, Irving M. Geslewitz recommended that corporations apply cost-benefit analysis to determine whether “they are safer in hiring and promoting by numbers reflecting the percentages in the surrounding community than in risking disparate-impact lawsuits they are likely to lose.” To counter charges of “hostile work environments,” company lawyers want to be able to tell juries that their clients have many minority
and women employees at all levels.
The day after the Civil Rights Act of 1991 became law, a New York Times article, “Affirmative Action Plans Are Part of Business Life,” observed that quota policies are as “familiar to American businesses as tally sheets and bottom lines.” A 1991 Business Week article entitled “Race in the Workplace: Is Affirmative Action Working?” reported that affirmative action is “deeply ingrained in American corporate culture. . . . The machinery hums along, nearly automatically, at the largest U.S. corporations. They have turned affirmative action into a smoothly running assembly line, with phalanxes of lawyers and affirmative-action managers.”
The 1964 Civil Rights Act, which undertook to eliminate race and sex from private employment decisions, has instead been used to make race and sex the determining factors. Reverse discrimination is now a fact of life. Indeed, in strictly legal terms, the situation for white males today is worse than the situation for blacks under Plessy v. Ferguson’s separate-but-equal doctrine. In practice, blacks suffered unequal treatment under Plessy, but the decision officially required equal treatment.
Under today’s civil-rights regime, by contrast, whites can be legally discriminated against in university admissions, employment, and the allocation of government contracts.
In his famous dissent from Plessy, Justice John Marshall Harlan worried that the Louisiana law requiring racial segregation on public transportation would allow class distinctions to enter the legal system, since blacks and whites were economically as well as racially distinct. Harlan was certain that he wanted no status-based distinctions in the law. Our Constitution, he said “is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before
the law. The humblest is the peer of the most powerful.” Today, civil-rights activists reject Harlan’s color-blind views. Privilege before the law has replaced equality before the law.

Mr. Roberts is Iohn M. Olin Fellow and Mr. Stratton is a research
fellow of the Institute for Political Economy.

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