Battle Against Bias Waged on Shifting Legal Ground : Civil rights: Discrimination was banned in a 1964 law. But the prevailing view of the measure changed greatly.
To read the landmark Civil Rights Act of 1964 and hear the words of those who fought for it, you would think the bitterness that exists today over the ideas of affirmative action, racial quotas and preferential treatment for minorities could never have happened.
“It shall be unlawful to discriminate” in employment or education, the statute says, “against any individual because of such individual’s race, color, religion, sex or national origin.”
Moreover, “nothing contained in this (law) shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group.”
Lest there be any doubt, the great liberal Democrat Hubert H. Humphrey himself stood on theSenate floor during debate on the measure and declared: “I will start eating the pages” of the law if anyone can find a clause that calls for quotas, preferences or racial balance in jobs or education.
Within a decade, however, the prevailing view of the 1964 civil rights law changed profoundly--and with consequences that fuel today’s rising controversy.
The simple ban on discrimination gave way to a policy of “affirmative action” and what the Supreme Court later called “benign race-conscious decision-making.” Employers and colleges began to hire, promote or admit minorities and women not without regard to their race, ethnicity or gender but because of them.
“By the end of the first (Richard) Nixon Administration, a significant part of the ‘civil rights’ being enforced by the federal government could be described more plainly as a system of compensatory preferences for racial and ethnic groups,” wrote Emory University law professor Andrew Kull in “The Color-Blind Constitution,” a 1992 book tracing the evolution of the law.
How could this have happened? How did words clearly understood to mean one thing in 1964 come to mean something far different just a few years later?
The answer lies in the peculiar mix of law, politics, history and the sometimes-contradictory ideals that are the heart of the American system. And the story of how a widely applauded effort to wipe out discrimination evolved into something that many now say encourages a new form of discrimination stands as a pointed reminder of how difficult it is to achieve equality--or even a consensus on what that word means.
The change in civil rights law came in three steps, one following logically on the other.
The basic law, as its text and legislative history made clear, was a huge “stop” sign on discrimination. “To discriminate means to make a distinction . . . based on any of the five forbidden criteria: race, color, religion, sex or national origin,” Humphrey said.
Henceforth, the cruel biases and prejudiced practices that had blocked minorities for 300 years of American history were prohibited in the areas of jobs, education and public accommodations. But declaring discrimination to be illegal was only the beginning. Racial bias was too ingrained to yield to mere words.
By its very nature, the anti-discrimination law imposed a duty on executive branch officials to make its promise a reality. Clearly, they could not send investigators and undercover agents into every business in the land, seeking hints of illegal bias. They could, however, gather statistics to see whether hiring and promotions appeared to follow biased patterns.
Employers could avoid federal intrusion into their hiring practices, regulators said, if the numbers showed that the ethnic and gender makeup of their work force roughly matched that of the available labor pool. It was a neat measuring stick, relatively easy to put in place and monitor. And it was the beginning of quotas.
From that large step, a smaller one followed. If employers needed to hire more racial minorities and women to meet their race and gender goals, they could be excused for giving preference to those groups. Business embraced the idea. Get the numbers up and you keep the Feds out of your personnel department.
The third step came in the courts. When white males filed lawsuits protesting the creep of hiring preferences, the courts looked back at the language of the 1964 law and decided its most important element was the government’s desire to stamp out discrimination against minorities--not its literal pledge to do so without discriminating against non-minorities and men. Preferences were OK, judges said, if given for the right reason.
The circle of steps was complete. Preferring minorities and women over white males was permitted, the regulators said, as part of an effort to remedy discrimination from the past.
Before long, however, this results-driven approach to civil rights law collided with one of America’s oldest and most cherished principles: That individuals are to be judged on their own merits and that no group or class of people should be favored over another by law or policy. That argument is heard often today, especially now that official discrimination is three decades in the past.
“I don’t see how it is fair, for example, to say that the son of a Mexican American lawyer should get a scholarship and special treatment when an Italian firefighter’s kid can’t even get into the university” with the same academic record, says Linda Chavez, director of the U.S. Civil Rights Commission under President Ronald Reagan.
Public opinion surveys consistently find that while the vast majority of voters support equal opportunity and non-discrimination, they oppose “preferential treatment” by race.
In a recent Times Poll, even 58% of black respondents said they opposed preferential treatment for minorities.
These days, the growing backlash against civil rights law speaks the language of the early civil rights movement.
Conservative Republicans in Congress are planning legislation to bar the use of “racial and ethnic preferences” by federal agencies.
The Supreme Court is considering a case that urges the justices to declare unconstitutional the use of race and ethnic status as a basis for awarding highway construction contracts.
And a proposed initiative in California would bar the state, its schools and contractors from using “race, sex, color, ethnicity or national origin as a criterion for either discriminating against or granting preferential treatment to any individual or group.”
In legal terms, it is a case of back to the future.
In one sense, it was all inevitable, given the depth of resistance to ending bias.
Throughout the 1960s, white-controlled trade unions defiantly continued to exclude blacks and women. Many more employers professed a policy of non-discrimination but continued to hire and promote only white males.
Impatient for visible progress, civil rights leaders and government lawyers demanded results. Employers and colleges were told to collect data by race and gender and to correct any “deficiency in the utilization of minority groups and women,” as the 1972 regulations blandly put it. To head off a lawsuit, employers were told they must adopt “goals and timetables” for hiring and promoting blacks, Latinos, Asians and women.
But it is also fair to say the goal of civil rights advocates changed.
By the late 1960s, civil rights lawyers, both inside and outside the government, no longer spoke of just eradicating bias. Rather, they pressed to assure minorities and women had something akin to a proportionate share of jobs, promotions and college slots.
Among African American leaders, Martin Luther King Jr.'s dream of no longer judging people “by the color of their skin” was superseded by Malcolm X’s demand for black progress “by any means necessary.”
The transformation of the civil rights law began with the man who drove its successful passage through Congress: President Lyndon B. Johnson. In 1965, he addressed a Howard University commencement and signaled a pronounced shift in thinking.
“You do not take a person who for years has been hobbled by chains and liberate him, bring him to the starting line of a race and then say: ‘You are free to compete with all the others,’ ” Johnson said in an oft-quoted line.
“Legal equity” is not enough, he said. “We seek not just equality as a right . . . but equality as a fact and as a result.”
Thereafter, the government lawyers who enforced the 1964 law pushed for Johnson’s goal. No longer was it good enough for employers or educators to assert they did not engage in bias. Now civil rights enforcers wanted to see the numbers.
At first, the mere gathering of such data was controversial, even with some civil rights leaders.
Clarence Mitchell, the renowned lobbyist for the National Assn. for the Advancement of Colored People, told a White House conference in 1965 that the government must bar the collection of data by race. “The minute you put race on a civil service form, the minute you put a photo on an application form, you have opened the door to discrimination.”
But a year later, Willard Wirtz, the labor secretary charged with enforcing the law, declared that the government needed “statistical tools” to target areas where “concentrated action” was needed.
Construction unions in Philadelphia, Cleveland, New York and other cities were refusing to hire blacks. During the hot summers of the ‘60s, black sections of Los Angeles, Detroit, Washington and Newark, N.J., exploded in riots. Progress could wait no longer.
Upon taking office in 1969, Nixon’s labor secretary, George P. Shultz, issued the so-called Philadelphia Plan, which required federal contractors to submit “affirmative action compliance programs” that set forth “specific steps to guarantee equal employment opportunity keyed to . . . the needs of members of minority groups.”
In 1970, a regulation applying broadly to employers said bluntly: “The rate of minority applicants recruited should approximate or equal the rate of minorities in the population in each location.”
By the early 1970s, numbers drove the enforcement process. Proponents say it was absolutely necessary. “The colorblind approach made no difference. It was business as usual,” said Constance Rice, counsel for the NAACP’s western regional office in Los Angeles.
“Every single public contract, every education institution, city governments, all were virtually 100% white,” Rice said. “There was a natural set of advantages that benefits the people in the old boys’ network.”
The Supreme Court entered the picture in the late 1970s, issuing rulings that ratified the “race conscious” view of the civil rights act.
Deciding in 1979 against a white Louisiana steelworker who had been passed over for an apprenticeship in favor of a slightly less senior black worker, the court majority rejected “a literal construction” of the 1964 law and instead looked to its purpose.
Congress was concerned with “the plight of the Negro in our economy,” the court said, also citing the words of Humphrey. “It would be ironic indeed if a law triggered by the nation’s concern over centuries of racial injustice” would be read to prohibit “all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy,” William J. Brennan wrote in United Steelworkers vs. Weber.
In the next decade, the court went a bit further and said employers could hire or promote less-qualified women or minorities over white males in order to correct “a manifest imbalance” in their work force.
In 1987, the court upheld a Santa Clara County affirmative action plan that resulted in promoting a woman to a job as a road dispatcher over a more qualified man on the grounds that no women had held top jobs in the road maintenance unit.
But the court has not cut out a consistent path on affirmative action, and its rulings have usually depended on the swing vote of a single justice. The case of University of California regents vs. Bakke in 1978 set the tone for all that followed.
Four justices said the medical school at UC Davis violated the 1964 law by giving an explicit preference to black and Latino applicants. Four other justices up-held this “benign” discrimination because it was intended to give minority applicants an equal opportunity.
The ninth and deciding justice, Lewis F. Powell Jr., issued a split decision. He agreed that the university had violated the law by discriminating against Allan Bakke, a white man, because of his race. He must be admitted, Powell said.
However, he also agreed that universities may consider race as a “plus factor” in admissions so as to foster “diversity” in their classes.
The most memorable passage came in Justice Harry A. Blackmun’s brief concurring opinion: “In order to get beyond racism, we must first take account of race. There is no other way.” He hoped, however, that affirmative action would soon be “only a relic of the past” and that “we could reach this stage within a decade at the most.”
Since the Bakke and Weber decisions, colleges and employers have sought to walk a fine line. While explicit racial or gender preferences are deemed illegal, the status of minority and female can be considered as a “plus factor.”
Lawyers who specialize in management or civil rights law can recite a series of rules about affirmative action that have been gleaned from court rulings or federal regulations.
Quotas and fixed numerical formulas are out. “Goals and timetables” are in.
Employers in most instances cannot be required to succeed in meeting an affirmative action goal, but they must make a “good faith effort” to do so.
Only “qualified” minorities or women are to be included, and affirmative action efforts should not “unnecessarily trammel the interests of white employees,” as the court said. In practice, that means employers have lots of leeway in hiring and promotions, but they may not dismiss or demote a white worker to preserve the job of a minority or female employee with less seniority.
In recent years, as its membership has changed, the Supreme Court has increasingly moved to restrict affirmative action as violating the Constitution’s guarantee of “equal protection of the laws.” These cases involve the government, either as an employer or funding source.
In 1989, the court struck down a city’s affirmative action program that reserved some contracts for minorities.
On a 6-3 vote, the justices said racial discrimination, whether against whites or blacks, is generally unconstitutional, except where the government acts to remedy a clear pattern of past discrimination.
This year, the court is considering whether the same restrictions on affirmative action apply to the federal government. On Jan. 17, the justices heard arguments on behalf of a white contractor from Colorado who submitted the lowest bid to build guardrails along a federal highway but lost out to a Latino businessman.
The court case, combined with possible congressional action and the pending California initiative, is generating a broad debate about civil rights law that some say is overdue.
“I think this is a good time to ask: What have we wrought?” said George Washington University law professor Mary Cheh. “Affirmative action has brought some real achievements, but I also sense it is now causing deep divisions and a social backlash. We have gone from a time of opening the doors, a temporary, transitional program, into something like an entitlement program for minorities.
“I think it’s time to take stock now and ask whether the positives still outweigh the negatives.”
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About This Series
In this series, The Times examines affirmative action, a policy that has left its imprint on the American workplace and college campuses over the past 30 years. With some now questioning whether the practice of giving preferences to minorities has been fair to all, this series, which will appear periodically throughout 1995, will measure the effect on America--its institutions, ideas and attitudes.
* Sunday: Affirmative action comes under fire in California in what activists on both sides say is the first battle in a looming national war over the legacy of the civil rights movement.
* Today: The Civil Rights Act of 1964 said no employer should be required to grant preferential treatment to anyone. But within a decade, the prevailing view of the law changed, setting the stage for today’s controversy.
* Tuesday: Affirmative action re-emerges as a crucial dividing line in national politics, with particular danger for Democrats.