COLUMN RIGHT : Congress Has Ducked Its Responsibility

In the wake of several Supreme Court rulings in 1989, many civil-rights leaders declared that the decisions were “disasters for all those committed to equal employment opportunity” and called on Congress to pass laws to nullify their effects. In the words of Sen. Edward M.Kennedy (D-Mass.), “Congress must not let these decisions stand.”

But they still stand. For two years, Congress has been mired in a confrontation with President Bush, who has repeatedly stated his opposition to civil-rights legislation that he construes as a “quota bill.”

With the coming hearings on the nomination of Clarence Thomas to the Supreme Court, the debate over the 1991 civil-rights bill is on hold for a time. The pause in brawling over the bill could be used productively to consider the larger question of what Congress should be expected to do now that the Supreme Court, which liberals have regarded for so long as the ultimate architect and guardian of civil-rights progress, is seen to be tipping against them.

There is more than a touch of irony here. For more than 20 years, Congress has avoided dealing with some of the controversial issues that required policy judgments in areas where there was no political consensus. The courts frequently offered solutions to important problems--mandatory busing, for example, or the use of quotas to attain group-based equity. In so doing, the justices let Congress off the hook when elected representatives should have been addressing issues on which the range of public sentiment deserved to be heard and reflected in congressional action.

In 1964, the Civil Rights Act was passed by Congress not only to end discrimination but also to make employment opportunity independent of race, color, religion, sex or national origin. The new law was intended to bring Americans together, not to separate them into categories. During the past 25 years, however, the liberal tradition of equality of opportunity for all has undergone a major transformation, not in response to a great reversal of public opinion--there has been none--but as a result of decisions by the courts and regulations written by government agencies. Many of those actions would never have been passed by Congress if they had been taken one by one as legislative proposals.

The time has come for Congress to provide more unambiguous and conclusive evidence of how it feels about the redefinition of equality over the last two decades. It could begin by restating the purposes of the 1964 Civil Rights Act. It should then articulate the terms and standards on which its predictable endorsement of equal opportunity and affirmative action rests.

A fundamental policy question for Congress is: If race or ethnicity, once abolished by the Supreme Court as a permissible basis for governmental classification (in the Brown vs. Board of Education case in 1954), is to be reinstated as a legitimate and necessary ground for awarding jobs, social benefits or opportunities, and if rights and special preferences are to be given to certain groups (but not to others), who should approve this policy? Should Congress allow the courts or the bureaucracies to keep making political decisions about how or whether to institutionalize the “new legitimacy” without our elected representatives’ engagement in the process?

There are other important questions for Congress to consider:

--Does it support policies that try to equalize all groups in society, based on numerical goals and racial quotas?

--Should individual rights give way to group rights in the demand for equal rights?

--Should equality of conditions and result, rather than of access and opportunity, be the defining principle of a “new egalitarianism”?

Polls have repeatedly shown that the American people are committed to equal opportunity for all individuals but are opposed to racially preferential treatment for certain groups. Yet, for more than two decades, Congress has never taken the lead and, after serious and extended debate, voted on whether (or when) it believes that race-based and group-oriented preferential policies are necessary or justified to create equal opportunity.

Now there is an even more important challenge to Congress: Isn’t it time to reconsider the current emphasis on race-specific goals and, instead, fashion new policies and guidelines that go beyond race to advance the interests of blacks (and other minorities and the poor) in a reinvigorated political alliance aimed at addressing some of the massive social and economic problems facing the most desperately disadvantaged in our society?