Presswatch/Andrea's Abomination

...But every one of the four "claims" had some basis in fact and was well within the realm of political advocacy—which, after all, is the context in which legislation is hamThe American Spectator January 1992 57 mered out, but which context Mitchell manages to leave out of her piece entirely...

...Ergo, a cave...

...Allow me to digress to consider the merits of the White House claims...

...Trucking companies would be forced to hire drivers with drunk driving convictions...

...instead, it simply states that employers must show their selection criteria are "job related for the position in question and consistent with business necessity...

...It's hard to imagine a more biased lead-in...

...The Court could well give the country Wards Cove all over again, without citing it...

...It claims state police forces would have no defense for refusing to hire ex-convicts...

...And Congress—as Linda Greenhouse of the New York Times pointed out in one of the few sensible pieces on this subject—did not try to overrule the Court's most important civil rights ruling in 1989, the Croson case, which struck down as unconstitutional local and state "set-aside" programs based on race and ethnicity...

...As for the other three claims, they may be lumped together because they were about the same thing: the kind of case that could arise if the Danforth bill became law...

...To support the President's claim, the White House lists a number of worst case examples...

...Since when did Andrea Mitchell become such an authority on Title VII of the Civil Rights Act of 1964...

...Effectively forcing Congress to think more about the law it makes—indeed, forcing it to legislate—is part of what it means to have a conservative Court...

...It permits employers to set legitimate job-related qualifications...

...But none of these situations would arise under Danforth's bill...

...Flagrantly biased," he wrote, citing Mitchell's piece as an example of news coverage that had been "marred by glaring inaccuracies as well as tendentious oversimplifications...

...It is only proper that Congress and the Court converse about the law, and that Congress is the institution making the law, whatever one might think of the law it makes...

...Andrea's Abomination by Terry Eastland On October 24, "NBC Nightly News" ran the year's most disgraceful bit of breaking-news journalism: Andrea Mitchell's "coverage" of the last political round before compromise civil rights legislation was reached (hours after her piece ran...

...The conventional view, expressed by columnist Anthony Lewis, was that Congress had defeated the Court by overruling a series of decisions opposed by the civil rights establishment...

...So egregious was her reporting that it drew the wrath of Legal Times's Stuart Taylor, not normally a press-watcher...

...So Danforth lifted eight words from the ADA—"qualification standards, employment tests or other selection criteria"—in order to rewrite the definition as follows: "Employment practices that are used as qualification standards, employment tests or other selection criteria" must meet this same test...

...n their October 28 account of the events that led to compromise legislation, the Wall Street Journal's Michel McQueen and Jeffrey H. Birnbaum cited the NBC story in writing that the memo opposing the Danforth bill "contained glaring inaccuracies...

...Evan Kemp, who succeeded Clarence Thomas as chairman of the Equal Employment Opportunity Commission, pointed out in a September press release (largely unreported) that discrimination on the basis of disability is so different from discrimination on the basis of race or gender as not to be comparable...

...Since he lacked the space for a full critique of the NBC broadcast, Taylor has left it to this presswatcher to report the details of this abomination...

...Consider his effort back in September to incorporate language from the 1990 Americans with Disabilities Act (ADA) into his civil rights bill...

...Note the superlatives that immediately spin the story in favor of the Danforth bill: the most sweeping civil rights bill in years...

...This, of course, sows confusion...

...On the first claim—that the Danforth bill would allow compensatory damages even if the discrimination were unintentional—the White House prevailed...

...More fundamentally, to say Congress or the Court "wins" or "loses" is to misconceive legislative and judicial functions...

...I wonder whether McQueen or Birnbaum or Mitchell have any idea of how the Bush Administration fared in the compromise legislation on the substance of those "dead wrong" claims containing "glaring inaccuracies...

...The Danforth bill defined that term so narrowly that employers would have to hire people capable of doing only the job at issue—and little more...

...Mitchell thus sides with her sources and proceeds to buttress her conclusion with some sound-bites from Danforth...

...I missed the stories (other than those written by the knowledgeable Taylor of Legal Times) that pointed out the following: that Title VII of the Civil Rights Act of 1964 proscribed intentional discrimination only and rejected the disparate impact approach...

...To understand whether the scenarios were plausible requires attention to technical aspects of Title VII law...

...The other two Bush claims legitimately spoke to the same issue...

...at's so wrong...

...The defendant can counter that the challenged practice is a "business necessity...

...William Cohen, who says Bush's advisers are either "inept" or "intentionally distorting the product .. . to achieve a political agenda...

...But the two most important holdings of Wards Cove were not overruled (and indeed one was accepted by Congress...

...Of course, Bush could have made the press cover this larger perspective on the quota issue had he raised it...

...It is the most sweeping civil rights bill in years and it is sponsored by one of the most senior Republican senators [Sen...

...This definition allowed more flexibility than some lower courts, in their elaborations of Griggs, had been willing to accept...

...Or it may reflect the Court's effort to make sense of judge-made law (as in the case of Wards Cove...

...If the "source of those presidential objections" can be discredited, then the President must reject the advice it provided and accept the most sweeping civil rights bill in years...

...Wards Cove defined business necessity by saying that a challenged practice must serve, "in a significant way, the legitimate employment goals of the employer...

...As for the first, the Danforth bill was drafted in a way that permitted the reading Bush's lawyers gave it...

...0 The American Spectator January 1992 59...

...After all, someone once caught for drunk-driving might do fine as a dock worker only...

...She states that one Republican says the purveyor of "false information" should be fired...

...Had the Democrats and Danforth prevailed, Wards Cove, which insisted that the plaintiff must specify which of the employer's practices was causing the disparate impact, would have been overruled on this point...

...Mitchell: "Republican senators say George Bush has been misinformed by his own staff about key features of the [Danforth] bill he's been opposing...

...Thus do journalists incorporate the mistakes of their brethren into their own work...

...Obtained by NBC News, it compares the White House bill with...

...and that the Court in Wards Cove was trying to place some sensible constraints upon an approach that was fostering quotas and perhaps even signaling its intention someday to do away with disparate impact in favor of the original theory of Title VII...

...And that would have enormously increased the pressure on employers to resort to quotas in order to avoid liability...

...And, redundantly, she presents Sen...

...Of course, it was also too flexible for many in Congress...

...Since her anonymous sources told her what to say...

...Danforth does get off easy with the press...

...The administration memo, he says, is a "mischaracterization" containing "serious flaws" about "what the bill does...

...But the non-definition in the compromise legislation, together with the exclusive legislative history that advises the courts to follow Griggs and "the other Supreme Court decisions prior to Wards Cove," very well could resurrect the 1979 case New York Transit Authority v. Beazer...

...From Bush's perspective, this was a far better deal than any previously offered him...

...To the tape and Tom Brokaw: "Good evening...

...If the Court interprets a statute in a way Congress does not like, that does not necessarily mean its interpretation is wrong...

...If the press had examined Danforth's use of the ADA language, it would have found that the eight words couldn't have been used to define business necessity in the civil rights bill, for the simple reason that they don't really define it in the ADA...

...But don't hold your breath waiting for the press to herald Hard-liner Gray as a skilled negotiator...

...At the administration's insistence, new, unambiguous language was written: Compensatory damages are available only in cases of intentional discrimination...

...At that time the Danforth bill required that "employment practices that are used as job qualifications or used to measure the ability to perform the job" must "bear a manifest relationship to the employment in question...

...The legislative history agreed to by all parties directs the federal courts to interpret these terms in accordance with Supreme Court decisions prior to Wards Cove v. Atonio (1989...

...that the Court in Griggs gave us the latter...

...John Danforth, we soon learn] and yet, President Bush has repeatedly rejected it, making a variety of claims many thought were more political than factual...

...After all, the Court's interpretation may precisely reflect what the enacting Congress intended...

...The only problem, most of its claims are dead wrong...

...Because administration officials had recently praised the ADA, signed by Bush into law, Danforth argued that using its language should allay White House concerns about quotas...

...Back to the tape: Having brushed near the thick-et of Title VII law without entering it, Mitchell has Republican senators finger the culprits feeding the President this "misinformation": White House lawyer Boyden Gray, whom she calls "a hardliner," and chief of staff John Sununu...

...The truth is far more complicated...

...Danforth's compromise measure...

...Accordingly, the administration offered to put the eight words in the President's bill—if that would make everyone happy...

...These are the cases in which a company (or a public employer) uses some seemingly neutral employment practice that a plaintiff challenges as a violation of Title VII because it has a significantly adverse impact upon some minority group or women...

...Did not cave: What Bush managed on business necessity can hardly be called a cave...

...The administration had objected to this definition of business necessity...

...Note that the Danforth bill contained language that would have overruled Wards Cove on this issue...

...As important, Bush also managed to stop the effort led by Democrats and embraced by Danforth that would have enabled plaintiffs to complain about an employer's practices in general...

...Note the careful placement of the conjunction yet to contrast Bush with the now sainted senior Republican senator...

...hence the effort to write a new definition...

...Brokaw continues: "Well, tonight NBC's Andrea Mitchell has come up with a source of those presidential objections...

...They merely describe which practices might be covered in a disparate impact case...

...False, it wouldn't...

...Brokaw's grammar and syntax are revealing...

...On the other three claims, which involved the definition of "business necessity," the White House got more than it gave...

...Did cave: The most underreported aspect of the entire legislative effort to overrule Wards Cove was perhaps the biggest story: that in responding to Wards Cove, Congress for the first time would be codifying disparate impact theory, and that disparate impact, based as it is on statistics, will inevitably create some incentives for employers to use quotas in order to avoid liability...

...In this kind of reporting, there's no need to confront the accused...

...Mitchell does not go into these, asking viewers in effect to trust, NBC- for legal analysis...

...Part of Wards Cove has been overturned, but not its most important parts...

...Neither Gray nor Sununu makes an appearance in Mitchell's piece...

...Changing constitutional law is harder than changing statutory law...

...It has "examples that purport to say what the bill would do and the examples are just wrong...

...For the most part, the press reflected the view of the civil rights lobby that Bush, in supporting the compromise bill, had caved in on the quota issue...

...When the President tried to persuade Republican senators to support hiscivil rights bill yesterday, this two-page White House memo was on the table...

...Not a good idea...

...The compromise does not define business necessity...

...Watch for more conversations between Congress and the Court during this decade...

...The American Cancer Society would not be able to refuse jobs to cigarette smokers...

...The job of Congress is to make law, that of the Court to interpret the law...

...Note the clause indicating that Bush cannot possibly have substantive objections over which reasonable people might disagree...

...Dead wrong, in other words...

...many folks (inTerry Eastland is resident fellow at the Ethics and Public Policy Center...

...Let me explain: The first Title VII disparate impact case, Griggs v. Duke Power Co...

...n addition to the struggle between the President and Congress, there was a story about the Court...

...eluding those who work at NBC) think Bush's claims are more political than factual...

...Thus, it was fair enough for the Bush Administration to argue that under the Danforth bill a trucking company would have to hire dock workers with drunk-driving convictions, even if it wanted dock workers who could be promoted as drivers...

...At issue was the way "disparate impact" cases under Title VII should be litigated...

...1971), introduced the idea of "business necessity," defining it in various ways, including "manifest relationship to the employment in question...

...Congress did overrule in whole or in part seven civil rights cases decided over the past two years...

...Discrediting, then, we go...

...Mitchell has not really come up with "a source"—it was planted with her by her actual sources, Republican and presumably Democratic senators (and staffers), hoping to influence the negotiations...

...The administration's objection to what it regarded as poor wording was well known to Danforth staffers, if not to Danforth himself...

...It's a story line the press—even NBC—might eventually notice...

...Mitchell: "The memo says Danforth's bill would allow compensatory damages even if the discrimination is unintentional...

...There is both acase to be made that Bush did not cave and that he did cave—but don't expect nuanced coverage from the press...

...The compromise bill states, in a clear victory for the administration, that plaintiffs must show "that each particular challenged employment practice causes a disparate impact...

...Business necessity," then, was sent back to the same judges who decided Wards Cove with instructions that could easily allow them to do on this issue what they did in that case...

...While it was advertised as aimed only at making damages available in Title VII cases of intentional discrimination, the bill's actual wording left the door open for damage claims in cases where an employer intentionally adopted certain practices that, even without any intent to discriminate, had a discriminatory impact in statistical terms...

...For it was in Beazer that the Court said that a practice having a disparate impact could be justified whenever an employer's "legitimate employment goals . . . are significantly served by—even if they do not require"—the practice...

...the compro58 The American Spectator January 1992 mise legislation eliminated this provision...

...To accept legislation of disparate impact is to accept a legal structure that to some extent encourages hiring and promoting by race and gender . . . quotas, if you like...

...one of the most senior Republican senators...