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Issues in Equity and Law PERSPECTIVES ON EQUALITY, FAIRNESS, AND SOCIAL JUSTICE One might wonder how the Department of Labor and the Department of Justice, both agencies of the federal government, could have come to such divergent conclusions about the legality and fairness of within-group score adjustments. One might be tempted to explain the difference by pointing to the sharply divergent view of the law adopted by the Department of Justice in 1981 at the beginning of a new administration. Previously the federal agencies having responsibility for implementing the federal fair employment practices laws, including the Department of Justice, had been more closely aligned on the general policy of govern- mental use of race-conscious employment practices. But on further reflection, that contradictory assessment of the use of a race-conscious procedure to promote equal employment opportunity for black and Hispanic Americans reflects the ambivalent vision of the larger society. The civil rights movement of the past quarter century, although it has for the first time in the nation's history brought black Americans under the mantle of equal justice, has also caused fissures in the general consensus about the meaning of fairness and justice. From the beginning, notions of equality under the law, fair competition, and equal opportunity gave the movement its strong ethical appeal, providing a rationale for ending the legalized caste system that blacks in America had been subjected to since the abolition of slavery. The focus of government policy and public sentiment was on getting rid of the whole edifice of 29

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30 BACKGROUND AND CONTEXT discriminatory and segregationist laws and customs that denied blacks equal access to education, housing, and jobs; freedom of movement in public places; the right to participate in political life the full prerogatives of citizenship. But, as government policy went on to address the systemic problems that were the legacy of slavery and segregation, the earlier consensus began to erode. Programs designed to enhance the opportunities of minorities and women, for example, minority set-asides in federal con- tracting and the encouragement of affirmative action hiring programs, generated a good deal of ambivalence. Many who had supported equality and equal competition for society's goods found that the same principles made them strong opponents of policies of preferential treatment intended to bring some measure of equality of life chances. Philosophical Foundations The policies that the committee has been asked to examine unavoidably involve questions of equity. Whereas most people adhere to some strongly held convictions about rights and justice and what is fair in allotting educational or employment opportunities, and most look to the Founding Fathers and the Constitution as important sources of their convictions, relatively few of us could lay claim to a systematic, coherent theory of social justice. To put the policy decisions facing the U.S. Employment Service in context, we consider briefly the sources of some of the ideas that have fueled public debate over the government's civil rights policies. When the United States was founded, it was widely considered a radical experiment with little chance of success. Although there were classical and contemporary examples, few observers in England or on the Continent were confident that a society could survive without a monarch placed atop a hierarchical social order. In contrast to the traditional European systems based on hierarchy and subordination, the American revolutionaries, drawing on the ideas of John Locke and other contract theorists, advanced the concept of the state as a contractual agreement among free and equal individuals, secular by definition, and entered into for the mutual benefit of the participants. In this liberal that is to say, antimonarchical view of political society, the state is in some sense the product of the free choice of individuals, who are its members, not its subjects. The powers of the state are limited, since they derive from the people. And the state exists for the benefit of its members. These ideas exerted a powerful and enduring impact on American political thought. They found expression in the Declaration of Indepen- dence ("We hold these truths to be self-evident, that all men are created

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ISSUES IN EQUl" AD LOW 3 ~ equal . . .") and in the adoption of our Constitution, the fundamental contract on which the system of government rests. Ideas and reality are never perfectly matched; to modern eyes the words of the Declaration and the structure of the society that espoused them seem irreconcilable. Property requirements kept most white males from full political partici- pation in the early years of nationhood; women had few political and limited property rights until well into this century. But the most egregious departure from the liberal ideal was the total exclusion of blacks and American Indians from the political community it described. Most blacks were in a condition of chaste! slavery, with no legal status, no rights, and no protections. As the Kerner Commission reported (National Commis- sion on Civil Disorders, 1968), by 1776 some 500,000 blacks, comprising nearly one of every six people in the country, were held in slavery and indentured servitude. Yet the idea of government of, by, and for the people was powerful and very gradually provided a motive force for change. Economic Liberalism The ideas of political liberalism were reinforced in the nineteenth century by the growing popularity of laissez-faire economics. The work of Adam Smith and the British school of political economy knit together the liberal idea of the state as a voluntary association of free and equal individuals and the idea of a free-market economy based on the fair competition of individuals. Just as the political ideal demanded liberation from the elaborate caste systems of the past that had defined a person's legal and political status, access to careers, and, in some European countries, even modes of dress, so did economic liberalism seek to get rid of the welter of feudal and mercantilistic restraints on commerce. A fundamental premise of laissez-faire economics, or what we have come to call capitalism, was that the operation of free and competitive markets would make a productive economy. Put another way, the unfettered actions of each individual to promote his own welfare were thought to increase the overall wealth of society. The comfortable belief that private gain promotes the public good encouraged a value system in the United States that prized individualism, competitiveness, and entre- preneurial spirit and inculcated a strong suspicion of government inter- ference with economic activity. These values fit well a society that was simultaneously undergoing industrialization, expansion across a continent, and massive immigration. Filtered through these economic ideas, concepts such as equality and fairness and justice took on a new cast. Equality tended to be thought of as the right to compete on an equal basis with others for the economic and

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32 BACKGROUND AND CONTEXT other rewards of life in society. Fairness had to do with the rules of the competition, not the distribution of wealth in society. Meritocracy The constellation of ideas described above-that society is made up of equal individuals; that these individuals deserve equal treatment under law; that careers should be open to all, not reserved to privileged groups; that equal competition for rewards in a free-market economy promotes the interests of individuals and of the society as a whole-found institu- tionalized expression in the mid-nineteenth century establishment of the professional civil service based on merit hiring. Historians have suggested that the merit system in the United States was a by-product of the egalitarian impulses of Jacksonian democracy. Andrew Jackson and his supporters believed that any man could do the government's work and that no man should do it for very long. They pushed the spoils system beyond the limits of contemporary taste and, in response, the elite classes who had traditionally staffed the federal bureaucracy espoused the principle of hiring on the basis of merit, as demonstrated by competitive examination (Hoogenboom, 1961~. Whatever the motives of early proponents of merit hiring, ideas have a power beyond the circumstances of their origin. The concept of meritoc- racy has had great social approval over the years to the extent that we tend to forget that it is a construct and not a description of objective reality. The basic tenets of meritocracy in its American guise are: 1. The goods of society should be awarded to individuals on the basis of merit. 2. The qualification that merits reward in the allocation of jobs is talent (ability, experience), not family connection, social class, political loyalty, virtue, need, or other criteria that are irrelevant to job performance. 3. Social, economic, and political structures should be designed to allow open competition for positions. 4. A system of open competition and selection on the basis of compe- tence satisfies both fairness and efficiency because every individual has the same chance to realize his or her potential regardless of birth or wealth and because all individuals will end up in the positions most suited to their talents. 5. Such a system is just because everyone has an equal opportunity to compete for positions and is rewarded as he or she deserves.

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ISSUES IN EQUITY AND LAW 33 Meritocracy Revisited If, as Fishkin (1983) put it, the main position in the meritocratic construct is that there should be a "fair competition among individuals for unequal positions in society," there has also been some recognition, both in formal and popular thought, that equality of opportunity may involve not just the absence of irrelevant barriers, but also some manner of equality of life chances (equality of life chances, that is, beyond the formal equality of individuals in a society that has no caste system, and no aristocracy). A cautious expression of this position would be that those with similar talents should have similar life chances. One might choose these grounds for supporting universal free public education. Many college scholarship programs- the New York State Board of Regents and the National Merit scholarships, for example-are intended to extend the opportunity for higher education to deserving (i.e., very smart) but needy students. A much more radical interpretation of equal opportunity might call for equalizing the conditions for the development of talent throughout society so that all children enjoy the same material and cultural advan- tages. There is probably not much room for this sort of idea to flourish within the liberal framework as long as liberalism is wed to the idea of a free-market economy, but some of the child-rearing experiments in the Israeli kibbutzim were attempts to provide just this sort of equality of nurture. A moderation of the meritocratic ideal was espoused by many during the 1960s and 1970s. Borrowing from the formal thought of John RawIs, whose Theory of Justice was published in 1971, they interpreted the goal of equal opportunity to be promoting the self-respect of all members of society rather than unleashing acquisitive energies. Although not neces- sarily rejecting meritocracy as an appropriate basis for distributing social advantages, they argued that it should not be the sole ground. Special measures should be taken to ensure that. all members enjoy a share of the benefits of society. The Contemporary Impasse on Preferential Treatment Policies of preferential treatment for members of social groups defined by race, ethnicity, or gender are at the heart of the question of within- group scoring. Because they also represent the broad divide between the pertinent value systems, the discussion below focuses on the arguments that have been marshalled for and against preferential treatment in the past 25 years or so. For simplicity's sake, prototypical positions are sketched, although the actual course of public debate has been far more complex.

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34 BACKGROUND AND CONTEXT The Case Against Preferential Treatment Those strong proponents of the liberal tradition who have spoken out against affirmative action and preferential treatment (many of whom now call themselves neoconservatives) tend to focus on the ideal of equality and not to address as intensely the matter of inequality of life chances. The most frequent argument hinges on the idea of color-blind law. From this perspective, the essence of equity is that all individuals are treated equally under the law. Proponents point out that it was the failure to realize the ideal of color-blind law that allowed the oppression of blacks, first as slaves and then as second-cIass citizens. A policy of preferential hiring betrays the principle of equality under the law. As one critic (Newton, 1973:312) put it: The practice of reverse discrimination undermines the foundation of the very ideal in whose name it is advocated; it destroys justice, law, equality, and citizenship itself, and replaces them with power struggles and popularity contests. A correlate of this position is that all racial classifications are presump- tively unconstitutional. It is argued that the equal protection clause of the Fourteenth Amendment to the Constitution was intended to prohibit "conduct discriminating on the basis of race" and that the principle must hold whether the intention is benign, as in the use of race as a criterion of selection, or invidious. This was the position taken by Wm. Bradford Reynolds, the former Assistant Attorney General for Civil Rights, when within-group scoring of the GATE was challenged in 1986. A repre- sentative statement of the view appeared in a law review article in 1966 (quoted in Perry, 1977:549, n.621: Any legal classification by race weakens the government as an educative force .... [Al statute specifically granting Negroes a benefit tends to undermine the principle we are working so hard to establish . . . that a person is entitled to be judged on his individual merit alone, that race is irrelevant to the worth of the individual. Preference for Negroes can thus be expected to be a major factor in preventing the education we are trying to bang about through a host of other laws. Among people who adhere to what is sometimes called the nondiscrim- ination principle, the idea of equal treatment under the law has remained closely associated with the liberal idea that society is made up of autonomous individuals and that the law regulates the affairs of individ- uals. This belief led many to oppose the change of emphasis in govern- ment policy in the late 1960s, when the regulatory agencies charged with implementing the Civil Rights Act of 1964 started encouraging class action suits and otherwise judging compliance issues in terms of groups or classes of people.

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ISSUES IN EQUAL AND LAW 35 Preferential admissions policies at universities and professional schools caused an outpouring of prose on the fairness of racial preference in the 1970s. Indeed, the Bakke and DeFunis cases popularized the concept of reverse discrimination, with its pejorative undertones (Regents of the University of California v. Bakke, 438 U.S. 265 [19781; DeFunis v. Odegaard, 416 U.S. 312 [19741~. Among the arguments brought against preferential admissions policies were these: there is no way to identify the individual victims of discrimination or to prove that those benefiting from the policy of racial preference were in fact victims of past discrim- ination; there is evidence that the beneficiaries of preferential policies in professional school admissions come from privileged backgrounds; pref- erential treatment for blacks as a group creates injustice for identifiable white individuals; some whites who are innocent of any acts of past discrimination will pay the price; many members of white and other ethnic groups have also suffered discrimination and will want preferential treatment too. Clearly the most compelling of these arguments has been that prefer- ential treatment for blacks creates injustice for whites who are thereby denied the advantage of, in this case, professional education and the wealth and position that would follow. The element that makes this argument hold together is, of course, the meritocratic ideal. None of the adherents of this position would argue for the preferment of a white candidate over a black with better qualifications. They simply deny that race is a relevant qualification and find counterarguments about redress, reparations, needs, benefits to the individual, the provision of role models for the community, or the enrichment of the intellectual atmosphere of the university simply beside the point. From this point of view, the only fair criterion for the allocation of scarce social resources is individual talent, which in this context means predicted academic success. To summarize, three principles drawn from the constellation of politi- cal, economic, and meritocratic ideas described above have been partic- ularly important in the literature of opposition to policies of preferential treatment based on racial identity: equality under the law, individualism, and merit. To those who find themselves on this side of the divide, these three principles provide the possibility of equal opportunity in the society and are the grounds of social justice. The Case for Preferential Treatment The arguments in favor of preferential treatment also draw heavily from the liberal pantheon. Many, like Rawls, hark back to a first assumption of the contract theorists-that individuals freely enter into society for their mutual advantage but go on from there to say that it would be hard to

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36 BACKGROUND AND CONTEXT make the claim on grounds of equity that the Advantaged receive their fair share in contemporary American society. People who espouse preferential policies, whether cautiously or with enthusiasm, tend to have as their point of departure a recognition of the enormous, systematic injustices to which black Americans were sub- jected over hundreds of years. They acknowledge that -to a significant degree many whites have benefited as a result. This line of thought has led many to argue that justice requires compensation, that the long history of unequal treatment has left blacks as a group so educationally, economi- cally, and psychologically disadvantaged that, without special preference, they will be condemned by our newly colorblind society to remain de facto second-class citizens. Others add that racial and sexual discrimination are not ancient relics but are so deeply entrenched in our language, attitudes, and living patterns that they continue to warp selection and admissions decisions. So long as this atmosphere continues, preferential consideration will be necessary to ensure equal justice. From this perspective, equality cannot be restored simply by doing away with the laws that supported segregation, or simply by telling people they must not discriminate. The problems are systemic, not individual, and can be overcome only at the level of structural change. Laurence Tribe (1988), author of an important treatise on constitutional law, proposes that the equal protection guarantees of the Constitution can be understood within the framework of what he calls an "antisubjugation principle," under which government actions would be judged not on the basis of the motives of identified bad actors, but rather by their impact on members of protected groups. Because the current condition of blacks, women, and other identified groups in the society is the legacy of official oppression, of a subordination that was created by law and reinforced by the whole power of the state, he proposes that the constitutionality of government actions can be judged by their impact on the victims of official subjugation. In response to the argument that the law recognizes only individuals, not groups or classes of people, legal scholars such as Burke Marshall and Owen Fiss point out that discrimination works not against individuals, but against a people. And the remedy, therefore "has to correct and cure and compensate for the discrimination against the people and not just the discrimination against identifiable persons" (Marshall, 1984:10061. Mar- shall, who was Assistant Attorney General for Civil Rights during the Kennedy and Johnson administrations, contests the assertion that the equal protection clause is concerned only with the protection of individ- uals against discrimination, saying that it pertains to individuals only by reason of their membership in groups. He points out that the Court in

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ISSUES IN EQUl~ AND LAW 37 Brown v. Board, 347 U.S. 483 (1954), did not say that the state had failed to protect Ms. Brown from discrimination, but that it violated the equal protection clause by running a segregated school system that was part of a state-imposed caste system. The order to dismantle the dual system of schools cannot be understood in terms of relief to individual victims (Marshall, 19841. A logical extension of this interpretation of the law is to avoid a blanket rejection of racial classifications. Several authors distinguish between invidious racial classifications intended to oppress and benign racial classifications-Marshall uses the terms exclusionary and inclusionary purposes. It is suggested that those policies that aim to bring groups into the mainstream society, as transitional compensation either for past wrongs or present disadvantage, would satisfy the requirements of the Constitution. Perhaps the most widely used argument in support of preferences is that equal opportunity and fair competition require special programs. The argument does not reject meritocracy in an absolute sense, but stresses the need to equalize life chances to make the system equitable. In a well-known commencement speech delivered at Howard University in 1965, President Lyndon Johnson said: 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. A strong theme running through the literature that supports special treatment for the victims of systematic discrimination is that each member of society is equally valuable and that a just society will be organized to protect each member's self-esteem. Some variation of the idea is found in the work of legal scholars, political theorists, and moral philosophers. And it provides a rationale for distinguishing between discrimination against blacks, which insults, and discrimination for blacks, females, and others who are considered at risk, which does not. Beyond Philosophy Two lines of argument seem to cut through the intellectualization of the issue of preferential consideration for blacks or other disadvantaged minorities. First is the proposition, voiced by Abraham Ede! (1977) and others, that there is nothing novel in the fact of preferential treatment as it occurs in affirmative action programs. Almost any policy decision brings loss to some and gain to others. We are all the beneficiaries of overt preferential treatment, as a few examples show. There is very wide social

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38 BACKGROUND ID CONTEXT acceptance of the income tax write-off of mortgage interest. Very powerful forces support preferential treatment for veterans, including hiring preference in the civil service and referral priority by the U.S. Employment Service. There are many other less obvious examples, such as water rights and agricultural subsidies. Preference is not novel; only the intended recipient is. Second is a skeptical assessment of the liberal values of equality, color-blind law, merit, and fair competition seen from the perspective of those who were barred from enjoying these things until the passage of the Civil Rights Act of 1964. As one author put it (paraphrased in Bell, 1984), the domination of blacks was sanctioned by religion in the colonial period. It was sanctioned by Social Darwinism in the postslavery period. And now the myth of equality provides a veneer for further oppression. FEDERAL POLICY AND PREFERENTIAL TREATMENT Given the deep ambivalence of our society, it is not surprising that the policies of the federal government in its several branches have often appeared as contradictory as the philosophical positions sketched above. We have mentioned the example of two former Assistant Attorneys General for Civil Rights, both of them well-respected legal thinkers, coming to very different conclusions about the constitutional permissibil- ity of benign racial classifications. Perhaps more telling, the government with its administrative hand has become an important presence in virtually every personnel office in the country, at the same time that the Supreme Court has shown great reluctance to find constitutional justifi- cation for highly intrusive structural remedies. Taken as a whole, federal policy has described a difficult and halting evolution that cannot be said to have yet reached a state of equilibrium. Some of the ambiguities of the federal posture were built into the Civil Rights Act of 1964 itself. The explicit language of the act did not go beyond the principle of color-blind practices. But Title VII of the act, entitled Equal Employment Opportunity, adopts a group-centered defini- tion of discrimination, outlawing "employment practices" that "ad- versely affect" an individual's status as an employee because of that employee's race, color, religion, sex, or national origin. Sponsors of the bill, including Hubert Humphrey, who was floor manager of the bill in the Senate, repeatedly denied that the term discrimination would be read as mandating racial quotas. Moreover, Section 703(j) of Title VII states specifically that nothing written therein should be interpreted as requiring any employer to "grant preferential treatment to any individual or to any group . . . on account of an imbalance which may exist with respect to the total number or percentage

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ISSUES iN EQUAL ID LAW 39 of persons of any race, color, religion, sex, or national origin employed by any employer." Furthermore, an amendment allowing the use of profes- sionally developed ability tests was offered successfully by Senators Clifford P. Case and Joseph S. Clark. In support of the amendment, they entered an interpretive memorandum into the record (110 Cong. Rec. 7231 [19641), which explained congressional intent as follows: There is no requirement in Title VII that employers abandon bona fide qualifica- tion tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance. At the same time, the proponents of the act understood that discrimi- natory practices were deeply entrenched in American society. They had witnessed a widespread and sustained resistance to the Supreme Court's school desegregation order in Brown v. Board, and they were aware that massive resistance to integration of the work force might also occur. As a consequence, a new agency was created by the act to foster compliance with Title VII; in addition, the Department of Justice was given broad authority to bring suit against employers when there was evidence of such systematic resistance. As we describe below, the position that the federal government has reached through a long process of administrative and judicial interpreta- tion of the Civil Rights Act of 1964 is one of tending to promote de facto preferences for certain protected groups, the language of Title VII notwithstanding. But neither Congress nor the Supreme Court has provided a clear rationale, a legislative or constitutional mandate for such preferences. And even though Congress appeared to approve some uses of preferences when it amended Title VII in 1972, it failed to do so with sufficient clarity to convince all members of the Supreme Court that it intended to do so (Local 93, International Association of Firefighters v. City of Clevelanci, 478 U.S. 501, 543 [1986] [Rhenquist, W., dissentingly. One unhappy irony is that these developments have left employers, because they control scarce employment opportunities, open to challenge from members of minority groups if they do not extend preferential consideration, and open to challenge from majority-group members if they do. Individual Rights, Group Effects, and the Law A persistent anomaly in federal civil rights policy has been the adherence, on one hand, to the principle that the Constitution and Title

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ISSUES IN EQUAL AD LAW 4} resentation of minority-group members in the work force. EEOC was created by the Civil Rights Act to provide leadership and guidance on the meaning of Title VII, to promote compliance and conduct compliance reviews, to summon witnesses, and to conciliate employment discrimi- nation conflicts (it was also empowered to bring suit by- the 1972 amendments to the act). In 1966 the new agency made what must be considered among its most influential policy decisions when it interpreted Title VII discrimination to consist not merely of employment practices intended to discriminate or to treat people of protected status differently from others, but also of any employment practices that had an "adverse impact" on members of protected groups (Robertson, 1976:1-21. T:he legislative basis for this policy is found in Section 703(a)~2) of T'tI:II, which makes it an unlawful employment practice for an empower to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin Like pattern-or-practice litigation, thy EEOC's decision on the meaning of Title VII discrimination focused the attention of the authorities on work-force statistics, particularly on rates of selection. This conceptualization of discrimination was confirmed in 1971, when the Supreme Court handed down its now famous decision in Griggs v. Duke Power Co. (401 U.S. 424 [197111. Saying that Title VII proscribes "not only overt discrimination but also practices that are fair in form, but discriminatory in operation,'' the Griggs decision moved judicial notice to the effects of employment practices on protected groups as these effects are manifested in the composition of the employer's work force. Hence- forth the courts would permit a Title VII challenge to any employment practices that had a disparate impact on people in the protected groups; an employer's actions would be scrutinized not only on the basis of his or her treatment of the plaintiff, but also indirectly by consequences of his or her employment practices on racial or other relevant groups. The relative proportions of such groups in the employer's work force compared with the makeup of the (appropriately defined) applicant pool would become an important question in assessing the employer's compliance with Title VII. Like Title VII itself, the Griggs opinion specifically states that there is no requirement that preferential treatment be accorded to minorities or other protected groups; rather, qualifications are to be the controlling factor in employee selection. The problem with this formula is that it fails to take seriously the overwhelming disadvantage visited upon most blacks

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1 42 BACKGROUND AND CONTEXT . in America over three centuries. There is, in other words, an important, usually unspoken assumption underlying federal policy that there exist, by and large, a uniform distribution of ability and a similarity of preparation and career interests throughout the groups comprising the larger society. Thus, any underrepresentation of females, blacks, or other minorities can be ascribed to discrimination, unless the employer can show otherwise. The assumption was verbalized in Teamsters v. United States (431 U.S. 324, 342 n.20 [19771~: absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. In fact, the evidence from studies of a wide variety of ability tests and measures of performance indicates that there are substantial group differences in attributes that are important to performance in many kinds of jobs; although there is considerable overlap between the two, blacks as a group consistently perform less well than the majority group. Those who take seriously the effects of the kind of extreme economic, educa- tional, and cultural disadvantage experienced by most blacks even today do not find this information surprising. It would be naive to expect the cultural patterns built over hundreds of years to be transformed in a generation. But for a number of reasons, no doubt political as well as philosophical, there has been little inclination on the part of Congress or the courts to pronounce a straightforward policy of preference as, for example, India has done to break down the lingering effects of its caste system. The ambiguity of government policy is evident in the 1972 amendments to the Civil Rights Act. Through them, Congress elevated the Equal Employment Opportunity Commission, giving it broad new powers to bring suit and, at least by implication, endorsing the agency's aggressive posture on promoting a work force representative of the community. This more active stance is also evident in the amendments extending the Civil Rights Act to federal hiring; Congress incorporated the requirement that each federal department and agency must develop an affirmative action plan. Each federal department must also comply with Executive Order 11,478, which grew out of President Johnson's use of executive decree to bring more minorities into the mainstrearr~ economy by requiring federal employers and government contractors to take affirmative action to hire members of minority groups. Affirmative action plans are by definition not color-blind. They fall in the category of what Burke Marshall termed "inclusive discrimination."

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ISSUES IN EQUAL AND LAW 43 Despite these effects of the 1972 amendments, what Congress chose not to do was equally significant. It did not remove the earlier language of Title VII that denies any requirement that private employers grant preferential treatment because of an imbalance in their work force. Noting this fact, some members of the Supreme Court have opined that when it amended Title VII in 1972, Congress did not intend to authorize the granting of racial preferences (Firefighters v. City of Cleveland, 478 U.S. at 543 [Rhenquist, W., dissentingly. In other words, in the private sector, the force of government pressure to increase the economic opportunities of minorities and women remained largely indirect, through the contracting authority and the increased power of the EEOC. As a consequence, the government has devoted a good deal of energy to scrutinizing the instruments, such as employment tests, that are the proximate cause of adverse impact. The implementing agencies (EEOC, the Department of Labor, the Office of Personnel Management) have published the Uniform Guiclelines on Employee Selection Procedures (29 CFR Part 1607 [19851), which lays out technical requirements for the validation of tests and other objective procedures used for selection or promotion of employees. As a representative of the Department of Justice (a member of the committee's liaison group) reminded the committee, the costs of a validation study can be prohibitive, running into many hundreds of thousands of dollars (Delahunty, 1988~. Judges have found themselves wrestling with the arcane of psychometric validation studies to find out if tests are sufficiently related to job performance to overcome an inference of discrimination based on work-force statistics. Some courts and other compliance authorities, "laboring under the spell of the 'equality of results' doctrine," as Mr. Delahunty put it, have imposed such stringent requirements for defending tests that many employers have quietly instituted measures to make the numbers come out right in order to avoid costly litigation. Equity and Equal Protection Jurisprudence In addition to legislative efforts to wipe out employment discrimination, the Constitution itself provides important safeguards with respect to governmental action. Adopted as one of three Civil War amendments passed by a Radical Republican Congress intent on protecting the newly emancipated blacks, the Fourteenth Amendment embodies the ideal of equal justice under law and provides that no state "shall deny to any person within its jurisdiction the equal protection of the laws." It has been the major vehicle for developing substantive meaning for the concept of equality.

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44 BACKGROUND AND CONrExr The equal protection clause was of paramount importance in the early stages of the civil rights movement, when the emphasis was on getting ad of the laws and conventions of segregation, for example, in establishing the rights of blacks to attend the same schools as whites or to patronize restaurants, hotels, movie theaters, or other public accommodations. And the equal protection clause has continued to be important in housing, voting rights, and redistricting cases. But in the area of economic equity, the Supreme Court has been very hesitant to establish broad new constitutional remedies. The pivotal case in setting the orientation of the Court was Washington v. Davis (426 U.S. 229 [19761), which involved a constitutional challenge to a cognitive test used by the District of Columbia police department to screen applicants (Title VII protections were not available to the plaintiffs because the case was brought before the 1972 amendments to that statute were made applicable to public employers). Because the failure rate of black applicants was significantly higher than that of white applicants, plaintiffs claimed that its use was a denial of equal protection of the law. The Court rejected plaintiffs' claim, holding that under the Constitution the racially disproportionate results of the practice must be traced to a racially discriminatory purpose. This holding was reaffirmed in Village of Arlington Heights v. Metropolitan Housing Development Corp. (429 U.S. 252 [19771), which, while recognizing that statistics can be critically important evidence in equal protection cases, held that normally such evidence alone would be insufficient to establish a violation of the equal protection clause. Laurence Tribe suggests that the decision in Washington v. Davis "symbolizes the Supreme Court's trepidation about embracing the highly intrusive structural remedies that may be required to root out the entrenched results of racial subjugation" (1988:15101. He points out that under the intent approach, lawsuits involving constitutional claims be- come a search for a bigoted decision maker. The "perpetrator perspec- tive" views contemporary discrimination not as a social phenomenon- the historical legacy of centuries of slavery and subjugation- but as the misguided, retrograde behavior of individual actors in an otherwise enlightened society (1988:1509~. In contrast to the formula for Title VII discrimination cases established by Griggs, which places a burden on the employer to defend practices that are shown to have adverse effects on minorities, the primary burden in constitutional cases lies with the plaintiff, who must show that the injury suffered was a consequence of an act of intentional discrimination by the defendant. In other words, motive remains crucial under the Constitution, whereas under Title VII the outcome is paramount.

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ISSUES IN EQUITY AND LAW 45 Tribe enumerates some very strong reasons why the Court might choose this cautious path. There is a long tradition that binds rights to remedies, discouraging displays of broad discretionary relief. Given the experiences of the Warren Court and massive resistance to the judgment in Brown v. Board, the justices were sensitive to the limits on what ad hoc judicial action can achieve in a reluctant society. Above all, he believes, the Court was wary of a more aggressive role for fear that the federal courts would become deeply enmeshed in the day-to-day actions of state and local governments, reviewing choices about the allocation of public funds, zoning of residential neighborhoods, and so on. It is Tribe's assessment, nevertheless, that the Court should have faced the problem of inequality squarely: "either grit the teeth and get to work fixing the inequality, no matter what it takes, or swallow hard and acknowledge that the constitutional wrong cannot be judicially put right" (1988:1512~. Instead, in the absence of proof of a racially motivated government actor, the actual circumstances of racial disadvantage unemployment, inadequate education, poverty, and political powerless- ness- become unfortunate conditions, not the consequences of racial discrimination. Affirmative Action In previous sections we have developed the theme that the federal government has been reluctant to embrace straightforward policies ac- cording preferential treatment to the victims of systemic discrimination. The pressure on employers to adopt procedures that will increase the proportions of women and minority-group members in their work force has been largely indirect, a product of the emphasis on work-force statistics in EEOC compliance reviews and in Title VII litigation. The primary exception to this generalization is in affirmative action remedies and programs. Authority for judicial intervention to order race-conscious remedial measures is found in Section 706(g) of Title VII, which states: If the [U.S. District Court] finds that the respondent has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may . . . order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, . . . or any other equitable relief as the court deems appropriate. Courts have ordered a wide variety of race-conscious remedies, including the imposition of numerical hiring goals and timetables, one-for-one promotion ratios, score adjustments, and alternative selection proce- dures. These court-ordered affirmative action plans are uniformly tempo

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46 BACKGROUND AND CONTEXT rary and remedial; they are expedients to be used pending the develop- ment of nondiscriminatory hiring or promotion procedures, and they are imposed in response to a finding of discrimination. A second type of affirmative action program was created by Executive Order 11,246, which addressed employers doing business with the federal government. The executive order placed federal contractors under two obligations: not to discriminate in any part of the work force while under government contract and to take "affirmative action" to ensure that employees and applicants are being treated in a nondiscriminatory manner. Compliance is administered by the Department of Labor Office of Federal Contract Compliance (OFCC), which monitors each contrac- tor's affirmative action program and, in cases of extreme recalcitrance, can blacklist the firm. The affirmative action program must include a work-force analysis, an underutilization analysis for each minority and sex, and planned corrective action including specific goals and timetables. (Executive Order 11,246 and successor Executive Order 11,478 also regulated government employment practices until they were superseded by the 1972 amendments to the Civil Rights Act.) In the private sector, it was not until 1978 that the Supreme Court recognized the legality of voluntary affirmative action programs. Such programs are not part of a court-ordered remedy or developed in compliance with Executive Order 11,246, but are voluntarily adopted by an organization to improve the competitive position of minority-group members. As Justice Stevens recalled in his concurring opinion in Johnson v. Transportation Agency, Santa Clara County, California (107 S. Ct. 1442 [19871~: Prior to 1978 the Court construed the Civil Rights Act of 1964 as an absolute blanket prohibition against discrimination, which neither required nor permitted discriminatory preferences for any group, minority or majority. [But in Bakke (1978) and Weber (19791] a majority of the Court interpreted the antidiscrimina- tory strategy of the statute in a fundamentally different way. . . . It remains clear that the Act does not require any employer to grant preferential treatment on the basis of race or gender, but since 1978 the Court has unambiguously interpreted the statute to permit the voluntary adoption of special programs to benefit members of the minority groups for whose protection the statute was enacted. [Emphasis in original.] Admitting that this judicial construction of the act, so clearly at odds with the color-blind rhetoric used by the senators and representatives who enacted the bill, gave him pause, Justice Stevens nevertheless affirmed the position. He cited both the public interest in the stable, orderly development of the law and the stated interest of Congress in avoiding undue federal interference with managerial discretion as reasons to do so.

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ISSUES IN EQUAL AD LOW 47 But the crux of the matter, as the Court had observed in a previous decision (Firefighters v. City of Cleveland, 478 U.S. 501 [19861), was that it would be unreasonable for the law triggered by the nation's concern over centuries of racial injustice to be interpreted to prohibit "all private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy." As might be expected, the Supreme Court has not given a blanket endorsement of voluntary plans that involve preferential treatment. It has not, for example, endorsed quotas, but rather has authorized the consid- eration of race or gender as one factor in selection or promotion decisions. It has not altered the remedial nature of legally acceptable race-conscious practices; there must be evidence suggestive of a prior condition of discrimination, illustrated perhaps by a manifest imbalance in the work force, that the affirmative action plan is intended to cure. The Court has also been at pains to emphasize the temporary nature of acceptable plans, and it has shown concern about the degree of burden imposed on majority-group members. When the affirmative action in- volved layoffs of workers with greater seniority, race-conscious measures have been struck down on grounds of reverse discrimination. In Wygant v. Jackson Board of Education (476 U.S. 267 [19861), the Court rejected a broad claim of "societal discrimination" as an acceptable justification for adopting hiring preferences or other affirmative action policies that place burdens on others. As an illustration of the Supreme Court's cautious approach in the emerging case law, Tribe notes that the Court has seemingly regarded all racially explicit set-asides and other measures that force visible burdens on individuals because of their nonminority status as "constitutionally problematic to some degree." No Justice, he points out, has endorsed minimal scrutiny of race-based preferences (Tribe, 1988: 1523~. Although developments in the law permitting voluntary affirmative action programs may ease the contradictory impulses in federal policy in some circum- stances, the Court's limited and cautious recognition of affirmative action programs does not provide any general mandate to pursue racial balance. Furthermore, employment practices that are not part of a bona fide affirmative action plan continue to make the employer vulnerable to the conflicting claims of individual rights and pressure to show a balanced work force. Indeed, the situation may be further complicated by a recent decision that extends the Griggs formula for the first time to subjective employment criteria. In Watson v. Fort Worth Bank and Trust (101 L. Ed. 2d 827 [19881), the Supreme Court acknowledges the problem of the surreptitious quota systems that have been a result of government equal employment opportunity policy. "We agree," Justice O'Connor writes for the Court,

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48 BACKGROUND ID CONTEXT "that the inevitable focus on statistics in disparate impact cases could put undue pressure on employers to adopt inappropriate prophylactic measures." Having conceded that the extension of the disparate impact principle to subjective selection practices could increase the incentives for employers to adopt quotas or to engage in preferential treatment, however, the opinion offers little more than an exhortation that this should not be the outcome, for it would be contrary to the express intent of Congress and could violate the Constitution. Little wonder if employers feel a bit like Alice in Wonderland. The government's efforts to extend social justice to whole classes of people are at odds with other important conventional values, and neither Congress nor the Court has produced a rationale to make the new dispensation wholly acceptable. The contradiction between a surface adherence to color-blind law and the underlying government policy to bring about occupational redistribution illustrates as well as anything can the ambivalence of our society on the meaning of equity. PERSPECTIVES ON WITHIN-GROUP SCORING In the emerging case law, the Supreme Court has recognized the use of race- and gender-conscious employment practices in rather closely cir- cumscribed situations for the purpose of remedying past or present unlawful discrimination or to foster appropriate affirmative action. Al- though the Supreme Court has not itself had occasion to address the subject of within-group scoring, a variety of score-adjustment mecha- nisms intended to reduce adverse impact have been upheld at the appellate level, particularly in the Second Circuit. In this still-evolving area of law, commentators disagree about the boundaries of acceptable and unacceptable race-conscious procedures in general and about the specific procedures that have been used in pilot studies of the VG-GATB Referral System. As detailed above, the former Assistant Attorney General for Civil Rights took issue with the scoring system promoted by USES because it classifies job applicants on the basis of their race or national origin and because it requires Employment Service offices to prefer some individuals and disadvantage other individuals on the basis of their membership in racial or ethnic groups. The Justice Department in the last administration found the practice unconstitutional under Wygant and under Local 2S, Sheet Metal Workers' International Association v. EEOC (478 U.S. 421 [198611. The Justice Department's position was that these cases make clear that racial preferences are permissible "only as a last resort to remedy persistent and egregious discrimination by the specific employer" (letter from Wm. Bradford Reynolds to Richard Gilliland, Director, U.S.

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ISSUES IN EQUITY AND LAW 49 Employment Service, November lit, 1986). The GATE referral program, however, requires government agencies to extend racial preferences regardless of whether an employer has engaged in any racial discrimina- tion, and it does so outside a specific remedial context. The Justice Department also found the score conversions illegal under Title VII, citing Section 703(jjj quoted above, which denies any requirement for preferential treatment. Other commentators j including the Lawyers' Committee for Civil Rights Under Law, read the case law rather differently. They point out that both Title VII and the Constitution permit (and sometimes require) the- use of race-conscious selection procedures in appropriate circum- stances. For example, the Supreme Court has held that private (United Steel Workers of America v. Weber, 443 U.S. i93 [1~791) and public (Johnson v. Transportation Agency) employers may, independent of any judicial finding of past discrimination, adopt race-conscious hiring or promotion plans as part of a voluntary affirmative action program to address a "conspicuous . . . imbalance in traditionally segregated job categories." As Justice Stevens wrote in a concurring opinion in Johnson (p. 3) since 1978 the Court has unambiguously interpreted the statute to permit the voluntary adoption of special programs to benefit members of minority groups for whose protection the statute was enacted. [Emphasis in original.] In the Weber ease j in which a white employee challenged race- conscious admission to a new program to train workers for high-paying skilled-crafts jobs, the opinion of the Court emphasized the temporary duration of the plan, its remedial purpose, the "voluntary" nature of the plan j and the fact that it did not abrogate preexisting rights since the whole training program was new. In Johnson, a woman was promoted in preference to a man who had received a slightly higher rating, although both were rated as well qualified for the job of road dispatcher; At the time, none of the 238 incumbents in the job category was female. The Court, guided by its decision in Weber, affirmed that voluntary employer action can play a crucial role in furthering Title VIIjs goal of eliminating the effects of discrimination in the workplace. In rejecting the district court's finding that the affirmative action plan was illegal because it was not temporary, the Supreme Court reasoned that: the plan was flexible and did not impose quotas; it did not authorize blind hiring by the numbers, but expressly directed that numerous factors be taken into account; and the employeris plan was to "attain" a balanced work force, not to "maintain" a permanent racial and sexual balance. The. determination of whether or not a given race-conscious procedure is lawful turns on the facts surrounding its use. Advocates of within-group

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50 BACKGROUND AND CONTEXT scoring argue that since the procedure was adopted in order to comply with the requirements of Title VII and that, without the scoring adjust- ment, the GATE would result in significant adverse impact against minorities, judicial precedent supports the legality of the procedure as a reasonable measure to eliminate that impact. Representatives of the Lawyers' Committee for Civil Rights Under Law pointed out to our committee that the courts have approved the use of a variety of score-adjustment mechanisms intended to reduce adverse impact. For example, an appellate court approved adding 250 points to the score of each minority candidate on the basis of evidence that the scores of minority candidates on the written portion of a promotional examination underpredicted their job performance (Kirkland v. New York State Department of Correctional Services, 628 F.2d 796 [2d Cir. 1980], cert. denied, 450 U.S. 980 [198111. In another case, the same court upheld a consent decree that called for a variety of race-conscious scoring procedures simply on the basis of a showing that the existing scoring and rank-ordered selection procedure had an adverse racial impact (Kirkland v. New York State Department of Correctional Services, 711 F.2d 117 [2d Cir. 19831, cert. denied, 465 U.S. 1005 [198411. The race-conscious scoring procedures that the court approved included: separate frequency distributions for minority and nonminority candidates; establishing score zones in which a group of final examination scores are deemed the same for purposes of certification and appointment; and elimination of partic- ular items that resulted in statistically significant adverse impact among candidates of substantially equivalent ability. In these and a number of other cases, courts have upheld methods of score adjustment that, if followed, would reduce or eliminate the adverse racial impact of the selection practice and avoid continued violation of Title VII. These cases may or may not apply to a race-conscious scoring system voluntarily adopted by the Employment Service outside a reme- dial context. In addition, the emerging case law does not seem entirely consistent. In San Francisco Police Officers' Association v. San Fran- cisco (812 F.2d 1125 [9th Cir. 19871), the court of appeals rejected reweighting of three selection tests to eliminate an adverse impact against women, on the grounds that the reweighting "unnecessarily trammeled the interests of nonminority police officers.'' The adjustment of scores, in the court's opinion, became the sifting device, rather than the examina- tions themselves (812 F.2d at 1125 n.5~. And in Hammon v. Barry (813 F.2d 412 [D.C. Cir. 19873, petition for reh'g denied, 826 F.2d 73 [D.C. Cir. 19871), the court of appeals rejected selection of firefighters from rank- ordered lists compiled separately by race, sex, and ethnic group in proportion to their representation among those who passed the test. In this case the court failed to find the necessary "predicate of discrimination."

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ISSUESINEQUl~AND~W 5] In addition to legal precedents, proponents of the adjustment of GATE scores point out that Section 6(A) of the Uniform Guidelines encourages the use of alternative selection procedures, including race-conscious procedures, as a way of achieving compliance with Title VII or for affirmative action purposes (there is a caveat that the procedures must be legal). The signatories to the Uniform Guidelines joined in adopting a set of "Questions and Answers to Clarify and Provide a Common Interpre- tation of the Uniform Guidelines" (43 Fed. Reg. 12,001 [19791) in March 1979. The explication provided in Questions 30 and 31 strongly suggests that no validation is required of alternative procedures adopted to eliminate adverse impact, because federal law does not require a demon- stration of the job relatedness of selection procedures that do not have adverse impact. In fact, under the Uniform Guidelines, use of alternative selection procedures to eliminate adverse impact is an option that is available to employers in lieu of validation. It would seem, then, that a within-group scoring procedure that eliminates adverse impact could fall within the Uniform Guidlelines. This committee is obviously not in a position to make a definitive statement about these conflicting interpretations of the legality of within- group scoring of the GATE. The evolution of fair employment law since 1964 has produced two grounds for race-conscious employment practices: the mitigation of adverse impact and voluntary affirmative action. It would appear that the Employment Service may not be able to justify use of score adjustments as part of its lawful affirmative action efforts because it is not acting as an employer. And, since in Justice Stevens's words, Title VII permits but does not require an employer to grant preferential treatment on the basis of race or gender, score adjustments for affirmative action purposes by a governmental employment agency might be found to constitute undue governmental interference with managerial discretion. If the scoring system is not justifiable as part of an affirmative action plan, then its acceptability would seem to depend on whether the weight of legal opinion will recognize the adoption of a generalized score adjust- ment, designed to prevent adverse impact, as an appropriate compliance effort under Title VII.