Stripping Away the Quota Barnacles : Court Has Reaffirmed Commitment to Civil Rights for All

The Supreme Court is closing the 1988 term with a ringing reaffirmation of America’s unyielding commitment to civil rights for all its citizens, whatever their race, gender, religion or ethnic background. The principle of nondiscrimination, for which so many marched in the 1960s, has at last been stripped of the quota barnacles that became an encrusted feature in the 1970s and is once again restored atop the equal- opportunity pedestal.

To be sure, the court has struggled to reach this point, speaking more often than not with multiple voices, and, in some instances, even with forked tongue. But a solid and reliable majority has emerged to provide the kind of clarity of thinking and purpose needed to fulfill Dr. Martin Luther King Jr.’s dream of a nation that will one day judge its children “not by the color of their skin but by the content of their character.”

What the Supreme Court held in its series of civil rights decisions can be simply stated: All who have a claim of discrimination, whether it moves in forward gear or reverse, shall have access to the courts (Martin vs. Wilkes). Once through the courthouse door, plaintiffs must prove their case, not simply by reference to statistical imbalances or numerical under-representation (although statistics are certainly an acceptable “starting point”), but also, and most important, with hard evidence showing that the disproportionate numbers are indeed the result of discriminatory conduct (Ward’s Cove Packing Co. vs. Atonio). The remedy that then follows must be “narrowly tailored” to fit the proven wrong and cure the identified injury, not cast more broadly to provide group-oriented relief in the form of racial quotas or minority set-asides, except as a rare last resort measure (Richmond vs. J.A. Croson).

The court’s message is unmistakably clear. Discrimination, whether labeled benign or pernicious, will not be countenanced. This includes remedial programs that favor some but disfavor others because of race. The negative preference has at last been expunged from affirmative action. No more is race to be pitted against race for openings in the workplace or the classroom. Latinos, Asian-Americans, blacks, whites and all others are to be treated equally; none can use skin color or ethnic background for advantage, or turn to those characteristics to disadvantage others.

No one loses under these court decisions; everyone is a winner. The promise of equality means nothing to anyone if it does not mean the same thing to everyone. What once was almost exclusively a black-white issue is that no more. Asian-Americans are outperforming other minorities in college admissions exams in such numbers that some universities have placed a quota limit on the number to be admitted under their so-called “affirmative action” programs (shades of an earlier discriminatory quota used against Jewish students seeking college admission). Latinos, too, often face employee preferences that benefit only blacks and women; there is nothing very “affirmative” about that action.

We can now put such racially inspired programs behind us. The Supreme Court has said that all must play by the same rule and can expect the same intense scrutiny. Affirmative action in its traditional sense--active recruitment, outreach and training programs to ensure a wide open selection process based on individual talent and worth--is back in vogue, cleansed of the negative preference that has for too long needlessly and cynically divided society along racial lines. It is the content of one’s character and quality of performance that must now determine who gets into and through school or is hired or promoted. No longer must minorities live with the nagging self-doubts that come with the certain knowledge that their “affirmative action” selection was under a more relaxed standard that devalued their achievement. Success will have to come the hard way: It must be earned. Is that not what equal opportunity and civil rights are all about?

That is the question that will now be put to Congress as some disgruntled quota advocates take their cause to the Hill. The public-policy debate is one that should be waged. Stripped of all its polemical rhetoric, it reduces to a most straightforward question: Are we for or against resurrecting the negative preference of affirmative action?

Do we want enforcement of our civil rights to depend on whether racial proportionality has been achieved or will be maintained? If so, Congress will have to legislate that employers run afoul of the civil-rights laws on no more than a statistical showing of racial imbalance in their work force. And if the “racial quota” is indeed to be the public-policy preference in this country for correcting under-representation--if we are really intent on buying into “benign” discrimination as the corrective for that which is pernicious--then it is for Congress to make that legislative judgment specifically.

The Supreme Court has declined such an invitation. It has recognized--as should we all--that the principle of nondiscrimination is indeed colorblind. For that ideal to be compromised, in whatever fashion and for whatever reason, is to lose the principle, perhaps forever, to the poorer compromise. I agree with the court’s majority: We have fought for civil rights too often and too long to allow so ignoble a surrender of so important and so cherished an ideal.