From Colorblind to Quota-Bound : Equality: Both the President and Sen. Kennedy would undo seniority rights, slamming the door on white males.

It appears that part of President Bush’s legacy will be racial quotas chiseled forever into American employment law with devastating economic and social effects.

The Bush Administration and Sen. Edward M. Kennedy (D-Mass.) are proposing legislation that would overturn the Supreme Court’s colorblind decisions of June, 1989, upholding equality before the law.

Bush wants to overturn the protection that the 1964 Civil Rights Act provides for bona fide seniority systems, and he wants to make minority-rights litigation even more financially rewarding by expanding the use of punitive damages. By legislatively overturning the Supreme Court’s ruling that “seniority is a contract right” (Lorance vs. AT&T; Technologies), Bush’s bill would make it easy for favored minorities--blacks, women, American Indians and others--to challenge seniority systems as de facto discrimination.

The President’s bill is especially unfair because it allows existing seniority systems to be challenged decades after they were established. This would result in workers losing their accumulated seniority rights through no fault of their own.

Kennedy’s bill would do all of this and more. It would shut courthouse doors to white victims of discrimination and make statistical imbalances in a company’s labor force, whether racial, gender or religious, prima facie evidence of discrimination.

Kennedy’s bill seeks to overturn the Supreme Court’s (Martin vs. Wilks) decision that protects the ability of whites to challenge court-imposed racial quotas that discriminate against them. His bill also seeks to overturn the court’s decision in Wards Cove Packing Co. vs. Atonio, which recognized that the statistical-imbalances test forces employers to adopt discriminatory racial quotas as a protection against extortion by minority-rights litigants.

By slamming the door on white males, Kennedy’s bill would strip them of the protection provided by the basic legal principle that, in the words of Chief Justice William H. Rehnquist, “a person cannot be deprived of his legal rights in a proceeding to which he is not a party.”

Moreover, the assumption in Kennedy’s bill that statistical disparities are the result of discrimination is not supported by scientific data. Myron Weiner of the Massachusetts Institute of Technology; Donald L. Horowitz of Duke University; Cynthia Enloe of Clark University, and Thomas Sowell of the Hoover Institution have found statistical imbalances in incomes, occupations and educations to be natural characteristics of multi-ethnic societies. Proportional representation is a social anomaly.

Sowell argues that “the essence of lynch law” is statutes based on unwarranted assumptions and visceral convictions. The Kennedy bill fits this definition. It allows a plaintiff to prevail on the basis of statistical imbalance without requiring evidence of intentional discrimination. Under the Kennedy bill, the plaintiff only has to make an allegation and the employer can disprove guilt only by proving that the allegedly discriminatory practice is “essential to effective job performance.”

The Kennedy bill shows how far the minority-rights movement has strayed from real civil rights and degenerated into a demand for special legal privileges.

The 1964 Civil Rights Act expressly rejected discriminatory racial preferences to promote racial balances. The Leadership Conference on Civil Rights, which now strongly advocates the Kennedy bill, argued in 1964 that the civil-rights bill did not require employers to “maintain any kind of racial or religious balance.” A 1964 Senate Judiciary Committee memorandum explaining the bill similarly noted that “an employer with 100 employees who may be all white cannot be required to meet a quota even though his plant is located in a neighborhood that is 50% Negro.”

The minority-rights forces are preparing a media campaign in behalf of this proposed expansion of their special privileges. The Bush Administration should aggressively preempt the crusade by vigorously emphasizing a recommitment to equality under the law. Kennedy’s special-interest bill is benefiting from a pusillanimous Bush Administration that, fearful of being smeared by minority-rights groups as “anti-civil rights,” is offering a watered-down version of Kennedy’s bill.

It is incredible that the United States is abandoning equality under the law at the same time that this great legal achievement is being discovered by the Soviet Union and Eastern Europe. Because of failed leadership, the United States is creating an aristocracy of racial and sexual preferences in what San Diego State Prof. Shelby Steele calls “shaking hands with the devil.” If this trend continues, the country will eventually experience not only capital flight, but white flight as well.