The Error of ‘Separate and Proportional’

Last week the U.S. Supreme Court handed down an affirmative-action decision that can only be called appalling. In response, President Reagan issued a statement that was even more so.

In the case of Johnson vs. Transportation Agency of Santa Clara County, the court held for the first time that sex can be the determining factor in promotions (and, by extension, hiring) under a voluntary affirmative-action plan. What is particularly shocking about the opinion of Justice William J. Brennan Jr. for the 6-3 majority is that it establishes the premise that there need be no proof of present or past discrimination on the part of the employer in order to legitimize the choosing by race or sex in the workplace.

President Reagan’s response was even more troubling. The Supreme Court has made its decision, he remarked, “and I am not going to quarrel with that.” To those who have long believed in Ronald Reagan’s commitment to the principle of non-discrimination, his reaction to the decision in the Johnson case may be the darkest cloud yet to appear on the domestic horizon.

The fact is that the Johnson opinion is an outrage. It is an opinion at war with the intention and clear language of Title VII of the Civil Rights Act. It is an opinion at war with the best moral impulses of the civil-rights movement that led to the Civil Rights Act. And it is an opinion at war with common sense and fundamental notions of fairness. Most important, it is an opinion at war with our most basic and--until now--most enduring principle: the idea that each person should be treated equally regardless of immutable and legally meaningless characteristics such as race and sex.

By turning Title VII on its head and perverting the clear and compelling meaning of its simple language, the majority opinion, as Justice Antonin Scalia pointed out in his scathing dissent, takes a statute designed to establish a colorblind and sexblind workplace and converts it into a powerful engine of racism and sexism.

By allowing public institutions to employ race- and sex-conscious hiring and promotion policies, absent a clear showing of discrimination, is not simply to validate the use of affirmative-action plans as heretofore understood. This opinion goes much further. It allows public institutions to engage in social engineering in pursuit of what one view holds to be the desired social configuration of American society. But such a pursuit--the representation of minorities and women in the work force in the same proportion in which they appear in society at large--defies, in Scalia’s words, both “normal expectations and laws of probability.”

This case establishes a judicially improvised rule as noxious to our best principles as was the justly despised “separate but equal” doctrine of Plessy vs. Ferguson in 1896. This new maxim is the doctrine of “separate and proportional.” No less than separate but equal, this doctrine undermines the very foundation of our public sense of justice and our common commitment to the ideals of equal liberty under law. With a broad ideological brush, Brennan has swept the idea of individual merit and achievement under the morally tattered rug of special preference and gross discrimination. What he leaves in full view is an amorphous and unenforceable standard--a radically egalitarian standard--of proportional representation in the work force.

One is obligated to ask how the court can reach such a conclusion so at odds with the clear letter of the law as spelled out in Title VII. The answer is to be found less in the opinion by Brennan than in the more candid concurrence of Justice John Paul Stevens. The fact is, Stevens confessed, that since Title VII was enacted the country has been blessed with Supreme Court opinions in the cases of Bakke vs. Regents of California and Weber vs. United Steelworkers. “Bakke and Weber,” Stevens said, “are now an important part of the fabric of the law.” As a result, he concluded, “I must adhere to an authoritative construction of the act that is at odds with my understanding of the actual intent of the authors of the legislation.” Thus the court reached its bizarre conclusion in Johnson by ignoring the law in question and applying instead its own earlier misconstructions of that law.

The Supreme Court has erred. It is essential that this issue be brought back again and again until the court can be persuaded of its error. Scalia’s opinion is pregnant with the promise of future reversal. An opinion so at odds with our most cherished principles cannot be long standing.

This is why Reagan must in fact dedicate himself to “quarrel with that” ruling. Discrimination is a moral issue. To allow the court to stand without criticism from our highest office is to risk, as another President once said, “turning over the powers of our government to that eminent tribunal.” To abandon the quest for a discrimination-free society is to further risk, as that other President also said, “blowing out the moral lights around us.”