Affirmative on Civil Rights: The Reagan Record
Belz, Herman
Herman Belz AFFIRMATIVE ON CIVIL RIGHTS: THE REAGAN RECORD Since when does opposition to Affirmative Action mean a rejection of the Civil Rights Act of 1964? In contrast to their preprimary...
...The Justice Department argues that the Civil Rights Act of 1964 specifically protects bona fide seniority systems, with the qualifier that individual victims of discrimination may be given their rightful place in them...
...We can never be too often reminded that from Reconstruction until just recently civil-rights law rested firmly on the principle of individual rights without reference to race...
...It is ironic and a measure of how attitudes on civil rights have changed that liberal opposition to the idea of race-neutral equal rights now threat-tens to destroy the agency...
...Commission on Civil Rights has announced that if the anti-quota argument prevails, it will "sound the death knell for effective judicial enforcement of Federal equal employment opportunity laws...
...As we know, however, the past 20 years have seen the equal employment opportunity provisions of Title VII of the act transformed into race-conscious affirmative action, so much so that in 1981 the former head of the Equal Employment Opportunity Commission, Eleanor Holmes Norton, called the Civil Rights Act a "fully mature Statute" which had already wiped out employment discrimination...
...In consequence, the Civil Rights Commission was not reauthorized by September 30, when its most recent five-year extension expired...
...Now, while it might be natural for politicians and political activists to be something less than rigorously objective, it is nonetheless hard to imagine any record becoming the subject of greater distortion than the Reagan civil-rights record...
...With constitutional law clearly on his side, the President in late October ended further speculation about a compromise by dismissing the three pro-quota Democrats on the Commission, whom Abram, Bunzel, and Destro were intended to replace...
...This theory holds that specific features of an employer's hiring procedure need not be validated- i.e., proved to be job-related when shown to have an adverse impact on minorities-if a sufficient number of minority group members are employed in the work force as a whole, or at the "bottom line...
...Instead, they contended that the President lacked the constitutional power to remove members of the Civil Rights Commission, which they said Congress had intended to be an independent agency...
...it has no rule-making or adjudicatory authority...
...A compromise was proposed enlarging the Commission to eight members and allowing the President to make two appointments...
...The Justice Department further requires employers found guilty of Title VII violations to make special efforts to recruit minority employees...
...If it stands its ground it may yet succeed...
...Suddenly, it discovered a lack of executive removal power, as well as the "independence" of this allegedly unique agency, an issue never raised when the Administration proposed appointments to the Commission in 1982...
...It could continue to do so in the future if brought back within the mainstream of national thinking on civil rights and given a greater degree of institutional integrity and independence...
...A decision against quotas would, of course, do nothing of the sort, as current Justice Department policies make clear...
...The Department further observes that the act expressly prohibits racially preferential policies, that its purpose is to protect the rights of individuals, not groups...
...The reaction of the Civil Rights Commission, however, does suggest the profound unease with which civil-rights activists react to plain talk about race-conscious affirmative action...
...The Justice Department has also supported the "bottom line" theory in equal employment opportunity law, one of the major legal underpinnings of affirmative action in the 1970s...
...In August, it passed a bill extending the life of the agency for five years and restricting the President's removal power...
...Whether Teal, which deals with public employment, will have this effect is not yet clear...
...Though you'd never know it, the Administration has actually followed a rather affirmative civil-rights strategy of its own...
...The Reagan Administration has thus been under fire not because it has failed to enforce civil-rights law, but because it has been critical of how affirmative action "works...
...It resented the challenge to its civil-rights monopoly represented by the Reagan appointments, a resentment made all the greater for the fact that two of the appointees, Abram and Bunzel, had appeared before the Commission in 1981 to argue against racial quotas...
...It entered a 60-day transition period after which, if Congress takes no action, it will cease to exist...
...In the important though little known case of Connecticut v. Teal, the Justice Department entered an amicus brief arguing that the state, because it employed an adequate number of minorities, did not violate the rights of individual blacks under Title VII by using tests that had an adverse impact on blacks as a group...
...Yet if the present deadlock continues, it is liberals, like Southerners of the 1950s resisting change and clinging to whatever power they can, who will bear principal responsibility for the Commission's demise...
...It follows, then, that innocent third parties have a right not to be discriminated against on account of race...
...principle was honored more in the breach than in the observance...
...The argument for such quota-relief is that past societal discrimination has created a compelling need for racial balance and hence for race-conscious remedies...
...This argument doesn't hold...
...The Department has simply drawn the line in litigation that would lead to the spread of race-conscious affirmative action...
...Although the Court is likely to decide the case on narrow grounds, any curtailment of judicially administered race-conscious remedies will have far-reaching implications...
...A deadlock has ensued in the Senate with conservatives holding up the bill and liberals continuing to block the President's nominations...
...Individuals who have been excluded from employment may petition for relief, as may those who were discouraged from seeking employment by knowledge of an employer's discriminatory practices...
...The ball is back in Congress's court as the termination of the Commission approaches...
...The main task in civil-rights enforcement in the 1980s, she added, would be to "re-educate the public concerning affirmative action and how it works...
...Senate liberals on the Judiciary Committee, backed by defenders of affirmative action from the House and lobbyists from civil-rights organizations, refused even to consider their qualifications...
...It was not really a compromise at all, but a scheme to allow the advocates of quotas to maintain their hold on the agency and almost surely exacerbate its politicization...
...and that "there is nothing magical about seniority," as the first circuit court of appeals put it in ordering lay-offs by racial quota...
...This was presented as a happy resolution which civil-rights organizations support and which all reasonable people ought therefore to endorse...
...This story has been ignored, while the Adminis-tration's opposition to the Equal Rights Amendment, its reservations in extending the Voting Rights Act in amended form, and its preference for congressional rather than IRS policy-making on tax exemptions for schools have been seized upon as evidence of hostility toward civil rights...
...And it has done so not out of bureaucratic inertia, but because of a clear commitment to individual civil-rights on the part of William Bradford Reynolds and other Reagan appointees...
...The Civil Rights Division has made it clear that race may be taken into account in redressing the denial of individual rights,but when it comes to racial quotas as compensation for historic discrimination against minority groups, such quotas are inconsistent with the Civil Rights Act of 1964...
...The Reagan Justice Department has neither ignored nor tried to dismantle the civil-rights law fashioned during the 1970s...
...Joining a chorus of condemnation emanating from the "civil rights community," Democrats have attacked the Reagan Administration for what they describe as its attempt to reverse the civil-rights gains of blacks and other minority groups over the past two decades...
...Moreover, in language about as clear as can be, the act prohibits policies of racial group preference, or reverse discrimination...
...Until well into the twentieth century this Herman Belz teaches history at the University of Maryland...
...The civil-rights establishment was all in favor of this proposal-until the President sent his nominations to the commission...
...Moreover, it did not address the problem of the agency's institutional independence, a major concern of the Administration's original reauthorization bill, and it conceded the opposition argument that the President lacks the power to remove and appoint members of this agency...
...In contrast to their preprimary disagreements on most issues, Democrats adhere to a fixed party line on the question of civil rights...
...Yet the White House did not endorse it, and there was little reason why it should...
...Such relief, under the relevant Supreme Court holdings, takes the form of backpay awards, retroactive "slotting" in seniority systems, reinstatement in appropriate positions, and access to hiring and promotion priorities...
...The Civil Rights Act of 1964 has been the principal instrument of modern civil-rights enforcement...
...Lost in the hysteria was the Administration's own proposal from several months earlier to reauthorize the Commission for a 20-year period, and to make it more independent by giving its members staggered six-year terms...
...that judicial orders are proper if they are "reasonably related" to achieving this end...
...Like every previous President trying to use the Commission to promote his civil-rights policy, President Reagan last summer proposed three new appointments to the agency: Morris Abram, John Bunzel, and Robert Destro...
...The point of several recent cases dealing with police and firefighters unions has been whether judges may issue remedial orders to require local governments to hire, promote, and lay off employees according to racial quotas, without regard to whether the minority group members benefiting from the orders have been victims of discrimination...
...Nevertheless, no contrary standard was ever written into public law, and when the modern civil-rights movement came into existence in the 1950s, the constitutional requirement of racially impartial, equal protection under the law became a major source of its moral and political legitimacy...
...The Civil Rights Division has declared that Section 706 (g) of Title VII limits the scope of judicial remedies to cases involving identifiable victims of discrimination...
...The President was again depicted as unfriendly to civil rights...
...For example, the Justice Department has actively enforced the Voting Rights Act, reviewing election law changes, reapportionment plans, and election procedures for discriminatory intent and effects...
...In a letter to the attorney general, the chairman of the pro-quota Equal Employment Opportunity Commission has stated that recognition of the Justice Department position would invalidate innumerable EEOC consent decrees and rulings...
...In scores of public employment cases, in addition to moving against discriminatory practices, the Division has sought remedial relief for individuals who have been discriminated against...
...The latest case in which the Justice Department has entered an amicus brief against racial quotas-Firefighters Local Union 1784 v. Stotts- has been accepted for review by the Supreme Court...
...Its Civil Rights Division has adhered to the seminal Griggs decision in defining discrimination as the adverse impact of employment practices on minority group members, as well as unequal treatment of individuals on account of race...
...In any event, in Teal as in other cases, the Justice Department has adhered to the controlling precedents in recent civil-rights law...
...Even more unsettling for its critics has been the Administration's rejection of racial quotas and its attempt to restore the much-eroded principle of equal rights without distinction of color as the foundation of civil-rights policy...
...Southern opposition often made re-authorization of the Commission in its early years a touch-and-go affair...
...It protects individuals against discrimination on account of race, color, religion, sex, or national origin, whether in voting, education, employment, or access to public accommodations...
...The House has reacted to the controversy by moving to protect the incumbent commissioners...
...This is what the Administration has tried to do in its reauthorization of and appointments to the Commission...
...The Reagan Administration, in fact, has been carefully applying federal civil-rights law as developed by the courts in the 1970s...
...Moreover, the President was well within his constitutional powers in seeking to replace commission members...
...Created in 1957 as a temporary fact-finding agency in the executive branch, the Civil Rights Commission has in recent years become a major disseminator of affirmative action doctrine and a highly politicized arm of the "civil-rights community...
...Nowhere has this unease been more evident than in the ongoing struggle over the Civil Rights Commission...
...The Department's enforcement of existing law has brought significant compensation to victims of discrimination, as in the recent award of $2,750,000 against Fairfax County, Virginia, on behalf of 685 plaintiffs...
...Meanwhile the U.S...
...The opposition was bewildered at the prospect of the Commission's no longer enjoying a pro-quota majority...
...To begin with, the Civil Rights Commission is not an independent regulatory agency in any of the senses in which that term is used in constitutional law...
...The Supreme Court decided otherwise, delivering what specialists in labor law see as a blow to the structure of affirmative-action programs in private industry...
...The Civil Rights Commission for most of its 26-year existence has served a useful purpose in national civil rights policy...
Vol. 16 • December 1983 • No. 12
