The Public Policy/Quota Quashing
Belz, Herman
THE PUBLIC POLICY QUOTA QUASHING The Supreme Court's recent decision in Firefighters Local Union No. 1784 v. Stotts is the most significant affirmative action ruling since the Weber...
...Of course the conflict in Memphis between the layoff procedure specified by a seniority system and a quota hiring agreement is one that occurs infrequently and affects small numbers of workers...
...And in fact courts have generally acted as though they had inherent unlimited authority to impose quotas for racial balance and, as in the Memphis case, to modify consent decrees to maintain preferential treatment...
...Internationalism became the refuge of a Nehru who simply could not see what went on under his nose...
...Blackmun further offers the non sequitur that limitation of remedial action under Title VII to cases of individual discrimination because of race "is no indication whatever that the amendment was intended to broaden its prohibition to include all forms of prospective raceconscious relief...
...it could be "internationalized...
...Nehru's ancestral home...
...SPECTATOR'S JOURNAL THE SIKHNESS OF INDIA by Victor Anant The pun is of course vulgar, but apt...
...She sent her troops into East Pakistan and turned it into Bangladesh...
...and upheld so-called private and voluntary racial quotas as consistent with the purposes of the Civil Rights Act (Weber, 1979...
...After several rebuffs by the Supreme Court, the Department can take satisfaction in the justices' acceptance of its narrow view of judicial remedial authority...
...He also cites the interpretive memorandum placed in the Congressional Record by Senators Clark and Case explaining that courts are not authorized to give preferential treatment to persons who have not been discriminated against...
...E] Sarkes Tarzlan Inc Bloomington Indtana linguistic sub-nations, the Chinese came to Nehru's rescue with what is endearingly referred to as a border clash...
...each individual must prove that the discriminatory practice had an impact on him...
...His tough, down-to-earth home minister, Sardar Patel, chewed up the princely Native States with no more rhetoric than a spit and a cough, while Nehru had to send the Indian Army to take "police action" against the Nizam of Hyderabad and, later, Goa, "the Portuguese pimple on the face of India...
...Where not the product of judicial legislation, quotas are the result of agreements between employers and complainants that are legally regarded as private and voluntary, but are in fact required by courts and the civil rights bureaucracy under threat of costly Title VII discrimination charges...
...This was the argument of the minority in Weber, but has become the argument of the majority in the Memphis case...
...During much of his reign, 1947-64, the Punjab and Bengal, two volatile provinces clumsily cut up, allowed Nehru room for periodic bloodletting...
...In 1965, after three days on the road with him in the northern Uttar Pradesh, I asked Shastri whether the Congress party had reconciled itself to the existence of Pakistan...
...it was a tourist paradise...
...But it will be necessary to apply the principles announced in the Memphis case to a Weber-type situation...
...It has been a hopeless task in a brutally partitioned and hastily decolonized subcontinent which harbors every conceivable species of religious humbuggery, and caste, cult, clan, class, or culture...
...As seen in Justice Blackmun's dissent, however, defenders of quotas argue that consent decrees are private contracts that can contain whatever the negotiating parties want, and can be enforced without regard to the stated policy and requirements of Title VII...
...If government officials under Title VII are prohibited from requiring quotas, it stands to reason that private parties seeking to fulfill the goals of antidiscrimination law are similarly restricted...
...After Teal it appeared the Court either was deciding cases simply on the basis of racial favoritism, or was hopelessly confused about the purpose of the Civil Rights Act...
...If the Supreme Court upholds the individual rights purpose of Title VII against the Weber doctrine of preferential treatment, it will have gone far toward restoring civil rights policy to the foundation intended by Congress in the historic statute of 1964...
...In Weber, for example, Justice Brennan said for the Court that the purpose of Title VII was to promote the economic interests of blacks as a group...
...He states that the policy of Title VII--that the beneficiaries of court orders must have been the actual victims of illegal discrimination w''affects the remedies available in Title VII litigation...
...It is this escalating style of militancy which set the stage for Nehru's real successor, his daughter Indira Gandhi...
...The broader question that now has to be answered is whether consent decrees aimed at fulfilling the policy goals of Title VII, and judicial authority to enforce the decrees, are subject to the requirements of Title VII...
...This will require time, but the decisive political and intellectual groundwork has been laid...
...For forty years the secular Republic of India has grappled with the task of trying to invent a nationality pervasive enough to claim the allegiance of its inhabitants, now around the 700 million mark...
...There may be irreconcilable factions within the 15 million Sikhs of India but, dammit, there's not one Sikh who does not bear the name of Singh: fifteen million people with one surname...
...r m fJ ATNIJITIC CALIHIOAIi OF HOUSTON AUSTIN I firmative action plan, the Court has for the first time called a halt to the spread of racial quotas...
...What has perhaps most alarmed defenders of affirmative action is that the Memphis decision has struck at the judicial power which has been the principal source and sanction of quotas...
...William Bradford Reynolds has said his goal is to overturn this egregious decision, and now the Memphis decision provides a way of doing so...
...Racial egalitarianism-defined as racial preference--can no longer be considered immune from responsible criticism...
...It is not the legality of Indira's decision to hack the Sikh community to size which will be questioned but the historical implications: Has she, unwittingly, created a Sikh nation...
...As the structure of affirmative action has been built up by reciprocal efforts of courts and administrative agencies, it is the Supreme Court that has provided the appearance of legal validity and constitutional legitimacy...
...sanctioned class action judgments benefiting members of racial groups who have not been discriminated against (Albemarle Paper Co...
...Alas, it became the touchstone of India's foreign policy, forever damning a vast and weighty nation with the vision of a Peeping Tom...
...Now thanks to the majority opinion of Justice Byron R. White in the Memphis case, we have much needed and one hopes conclusive clarification of this fundamental question...
...Common sense says that voluntary agreements intended to carry out the purposes of a statute must conform to the requirements of the statute...
...In the former case the Court rejected a white worker's claim of reverse discrimination...
...Fortunately for Nehru, a selfproclaimed agnostic ruler of a massively Hindu Congress party, right from Victor Anant has written for the London Spectator and other publications...
...He quotes from Hubert Humphrey's statement that nothing in Title VII gives any court or government agency the power " t o r e q u i r e . . , firi n g . . , of employees in order to meet a racial 'quota' or to achieve a certain racial balance...
...Again the point is that the circumstances of the Memphis case are less important than the general principle that it evokes...
...For years the Court has carried water on both shoulders in addressing this question, trying to balance the demand for racial preference with the principle of racially impartial individual rights...
...it justified a grotesquely imbalanced defense budget for a fledgling, "non-aligned," impoverished country...
...Yet the Supreme Court has always held back from giving unequivocal support to the two principal methods by which quotas have been imposed on public and private employers: federal court orders and Equal Employment Opportunity Commission regulations enforcing Title VII, and guidelines of the Office of Federal Contract Compliance Programs and other executive agencies which have forced government contractors and recipients of federal funds to adopt preferential treatment...
...It is not too much to say that the decision has the potential for reforming national civil rights policy...
...These documents, staples of the antiquota argument, were highlighted in Justice Rehnquist's withering dissent in Weber and have been repeatedly submitted in Justice Department amicus briefs opposing quota hiring and promotion orders...
...Weber upheld the fiction that racial quotas acquiesced in under the threat of discrimination charges are private voluntary agreements that need not conform to the requirements of Title VII...
...Kashmir had a Hindu ruler with a Muslim majority population...
...the start internal fissiparous tendencies could be contained by invoking Kashmir...
...Reaction to the Memphis decision has ranged from Assistant Attorney General William Bradford Reynolds's sanguine prediction that it will abolish all racial quotas, to the insistence of the NAACP Legal Defense Fund and other liberal groups that it will merely settle future controversies involving layoffs under affirmative action programs...
...Hence the enormous significance of the Memphis case: The Supreme Court, in its first formal review of a government-mandated quota plan, has decided against preferential treatment...
...On the contrary, White is concerned to express the general principle illustrated by the case: "Mere membership in the disadvantaged class is insufficient to warrant a seniority award...
...To understand how this might happen it is necessary to examine the Court's opinion in the context of existing antidiscrimination law and policy...
...In fact the Court's ruling has relevance going far beyond the scope of the case itself...
...The Congress party, an opposition created by liberal Britons, should have been dismantled once its purpose was served, namely, to ensure some kind of orderly transition from Imperial rule to educated natives...
...And now she has muscled her way into the Sikh fortress of the Golden Temple, in Amritsar, to prevent the establishment of another breakaway nation, Khalistan...
...I n flagrant contradiction of Title VII by Herman Belz of the Civil Rights Act of 1964, quotas and racial preference exist by judicial fiat and administrative decree in over 325,000 businesses and institutions employing millions of American workers...
...His successor, the diminutive and shortlived Lal Bahadur Shastri, an orthodox Hindu in his habits, homespun, gave India's search for nationhood a fillip with two thunderingly bizarre wars against Pakistan...
...But stating that courts in Title VII litigation are bound by the policy of Title VII does not mean that the Memphis decision will automatically dismantle race-conscious affirmative THE AMERICAN SPECTATOR AUGUST 1984 31 action...
...permitted Congress to award public works contracts exclusively to specified racial groups (Fullilove v. Klutznick, 1980...
...The Supreme Court has now admonished them to the contrary...
...This authority turns out to be nothing more than subsequent lower court opinions and law review treatises...
...it is a border state...
...v. Moody, 1975...
...Phew...
...During the first two decades as Indians regrouped themselves into There opportun, ity I n America...
...This amounts to a confession that the policy of racial preference has no legitimate foundation in congressional history...
...This unwillingness to defend quotas explicitly has been an Achilles' heel in affirmative action policy, and a continuing source of encouragement to its critics...
...FREE ENTERPRISE WORKS...
...At most the Court has chosen not to disturb lower court decisions requiring quotas or approving executive agency quota stipulations...
...I wonder how many more partitions we have to see...
...The reason is that most quota programs are in a technical legal sense the result not of Title VII litigation, but of voluntary agreements entered into in order to avert Title VII discrimination charges...
...I n rejecting quotas, the Court in the Memphis d~cision has also resolved much of the intellectual and moral confusion concerning the basic purpose of federal antidiscrimination law...
...The Justice Department has argued in numerous cases involving hiring quotas that courts lack the authority to order specific affirmative relief for persons who are not the actual victims of unlawful discrimination practices...
...32 THE AMERICAN SPECTATOR AUGUST 1984...
...1784 v. Stotts is the most significant affirmative action ruling since the Weber case gave broad approval to quotas in 1979...
...Against Justice White's argument from original congressional intent, Justice Blackmun's dissenting opinion lamely asserts that there is authority that supports a different view of Title VII...
...Their appearance now in a majority opinion written by the centrist Democrat White tells much about the internal dynamics on the Court which produced this antiquota ruling...
...Today she is putting up a tortuously long barbed-wire fence along the border with the Bengali nation...
...Instead, it tried to be all things to all Indians...
...It has said that illegal discrimination could be proved by showing racial imbalance rather than acts of deliberate and intentional discrimination (Griggs v. Duke Power Co., 1971...
...He answered: "Partition...
...Justice White makes unmistakably clear the majority's belief that federal courts, in their exercise of remedial authority under the Civil Rights Act of 1964, should be governed by an individual rights view of Title VII...
...Justice White states that the purpose of Title 30 THE AMERICAN SPECTATOR AUGUST 1984 VII "is to provide make-whole relief only to those who have been actual victims of illegal discrimination...
...In Connecticut v. Teal (1982), on the other hand, Brennan's majority opinion declared the Civil Rights Act was intedaded to protect the rights of individuals...
...approved race as a legitimate factor in university and professional school admission decisions (Bakke, 1978...
...But in no way is the individual rights conception of Title VII relief for discriminatory treatment limited only to this sort of case, as defenders of quotas have asserted...
...a strategic area...
...Signed, sealed, and delivered as consent decrees, affirmative action plans come under the equity jurisdiction of the federal courts...
...Moreover Justice White introduces extensive portions of legislative history to support his view of Title VII...
...In holding that a district court may not order the city of Memphis to lay off white workers to maintain the minority hiring percentages required by an afHerman Belz teaches history at the University of Maryland...
...Entirely within the tenure of conservative Chief Justice Warren E. Burger, the Court has transformed individual equal opportunity into racial group entitlement aimed at equality of result...
...in the latter it upheld blacks' charges of discrimination against an employer who, though using a test that had an adverse impact on minorities, had hired the requisite number of minorities in accordance with an affirmative action plan...
Vol. 17 • August 1984 • No. 8
