Death sentence for affirmative action:
Silver, Isidore
AFTER BAKKE COMES...
...When sued, a company not wishing to employees...
...The proposed remedy is, of course, race-based...
...Bakke told conceivable rationale underlying the Kaiser program- state agencies that they did not'have the ability to redress what probably this was the reason they agreed to take the case in the they thought to be past discrimination...
...race is a particular onerous criterion (the "color blindness" theory) is a particularly compelling one, as evidenced by F WALLY, IT is not at all certain that we have escaped our Justice Powell's passionate enunciation of it in the Bakke case past...
...I believe that the enigmatic than mere individual members of that group...
...and (c) it is likely that 30 March 1979: 171 minority applicants can readily qualify to fill the positions...
...Mere present Justice Powell will join the Stevens group to constitute a equality was not sufficient-and the Court agreed...
...Clearly, in Pow- To argue that diversity is relevant to promotion into craft ell's eyes the use of a sole or exclusive racial criterion-as is programs (the Weber situation) is to stretch the matter true in Weber-is almost fatal...
...Although I do not wish to equate or other than blacks have benefitted, it is clear that many judges analogize American racism to Nazism, it is undeniable that regard the case of black discrimination as unique-and there is stains on a nation cannot be readily erased from the historical much evidence that blacks were discriminated against more memory or contemporary perceptions...
...First, Weber likeBakke involved the Burger Court's general perspective...
...that decree would invite individual Title VII suits by aggrieved blacks anyway...
...ISIDORE SILVER two blacks who had been promoted, sued and argued that the dual list violated several provisions of Title VII, prohibiting I S AFFIRMATIVE ACTION, even to remedy past discrimina- discrimination in employment, of the 1964 Civil Rights Act...
...Certainly, the Court has permitted other "prophylactic I believe that the Court is ready to say "yes" and will use remedies" in similar situations...
...The formula is then embodied in a judgment ending the which they had been promoted, since those jobs were them- suit without a finding of past discrimination...
...It is startling to realize, so many years after The trial of the matter took one day, and neither side conthe civil rights push of .the 1960s, that this question has tended (or conceded) that Kaiser had been guilty of racial never been finally settled...
...Weber, so far, has sent first place...
...racial and ethnic distinctions of any sort are inherently susIn the employment context, previous deprivation, the diffi- pect and thus call,for the most exacting judicial examination," culty of identifying particular victims of discrimination, the he found that the goal of a diversified student body was recognition that some strengthening of the previously deprived "clearly a constitutionally permissible goal for an institution group also strengthens individual members of the group, all of higher education...
...Thus, parity of troversial form of the remedy since the.retention of the merit promotion in one particular plant would occur until 39 percent criterion is compatible with the added requirement of widening of all those in the new positions were black...
...The this in terms of precedent...
...Judge Wisdom, who dissented in the Weber case...
...Also, Con- majority favoring Weber on very broad grounds...
...In The arguments on behalf of affirmative action are hardly order to understand the implications of Weber and of the unknown, but, depending upon various factors, they vary Court's likely reaction to it, we must consider not only the significantly...
...Bakke and Weber intimate The Weber decision may well invalidate affirmative action that lower courts can only (and, at most) find and identify even where past discrimination existed...
...Every theory of socialization such quotas, goals or targets where there is considerable evi- stresses the continuity of social life, the persistence of attitudes dence (often, overwhelming evidence) that the particular in- ("folkways," as an early sociologist put it...
...such that skills are not too great...
...Judge Wisdom's dissent criminate in reverse can only benefit those previously vic- pointed out that the status of judicial consent decrees might be timized by discrimination, a position he made clear in Bakke, jeopardized by the rationale of the majority's invalidation of a will add the fifth vote...
...The fact that those black workers likely to have been principle of non-discrimination in other industries and crafts the victims of past discrimination are probably not available may be lacking...
...This, I needed by none...
...Powell's drastic attempt to limit the amount of historic executive order on affirmative action ("executive racial lubricant fed into the system (if even in the name of a orders may not override contradictory congressional expres- broader populism) may thwart any concerted political effort to sions"), it is somewhat comforting to know that there may be a redress general disadvantage, especially from a Congress five Justice majority for upholding broad executive and ad- which has become unduly influenced by conservative special ministrative powers...
...ably received by the Court...
...and the pros- argued on March 28...
...This, too, from accomplished...
...It decided that the state of Weber as the vehicle...
...In Bakke, he agreed benefits (business "set aside" laws for instance which require with the "Marshall group" of four (Justices White, Brennan, government contractors to use minority subcontractors) with- Blackmun and Marshall) that race can be relevant to selection out inquiring whether the particular persons to be benefitted criteria for admission to medical school...
...Those courts have not specified whether affirma- remind even the "innocent" of their culture's great spiritual tive action is designed as a remedy for past wrongs or as a rapid crisis...
...redress for individuals, he will also find it fatally flawed...
...indeed, it was a goal of "paramount support the creation of a realistic remedy for an intolerable importance...
...The remedy may I consist of little more than an injunction to employers to make extra efforts to seek out qualified minority applicants...
...By this criterion, the blacks who benefitted by admit past discrimination will often agree to a judicial finding the Kaiser contract, like the blacks who were admitted in requiring future ratios or quotas...
...Courts minimum wage and maximum hour laws were unconstitusometimes found that the necessity to root out past discrimina- tional, since all, workers and bosses, were independent and tion could justify even this kind of race preference...
...Previous of extensive evidence of past discrimination...
...Some federal courts, in permittion has not been entirely relegated to the past...
...If so, then ting "class actions" under Title VII by minorities, have government may find remedies as broad as the prima facie broadened the "class" to include those who had been deterred problem...
...Suppose there were no identifiable vic- used a variant of the same argument-couched in terms of tims...
...The principle to be announced in the Weber case will would be aided by the wisdom of the appropriately named overlook the realities of contemporary American life and will...
...minority employees of Kaiser, the only people potentially There is one ray of hope for affirmative action...
...admissibility of racial consideration-which led him into Powell's endorsement in Bakke of previous decisions by to sue, as is, of course, their right under Title VII anyway...
...tion, illegal...
...economic mainstream of our national life...
...To those five Justices, Bakke simply invalidated any effects of racism as in the principles it enunciates...
...ernment begged it to return the case for a trial on that pointThe Court will have to answer the question whether the but the broader question mentioned above, do individuals who aforementioned arguments (and many other, and probably cannot show particular discrimination against themselves have better, ones) justify such a remedy extending beyond an im- any civil right to preference at all or are they barred from such mediate wrong, a remedy which edges toward integration preference by federal law...
...But since the Davis Medical School admission 30 March 1979: 173 program "focused solely on ethnic diversity," it "hinder[ed] to merit-but also in addition to race-could be considered...
...cohesiveness alone...
...Bakke, the majority refused to recognize a state medical In Bakke, Powell thought that doctors would be better doctors school's initiative, certainly an attack on state's rights...
...but agrees to do good in the future...
...posed to their unsavory past and that "repentance" and even Although some lower federal courts have been reluctant, "reparations" (from the presumably innocent) are an appromost have found that it is legally and morally correct to impose priate recognition of that debt...
...Wisdom worried-as we should-that this 0 F COURSE, I believe that Powell is wrong, for the reasons flexible judicial weapon would be found to be as defective as previously stated...
...Stewart has been willing, in the past, to heightened concern for the poor in the '60s was fueled by the interpret the mandate given by Congress to HEW as broadly as obvious legal and social inequalities perpetrated against blacks HEW did...
...What is the justifi- collectively, in part by economic activity and in part by law, cation for such far-reaching affirmative action...
...The task of the Second Reconstruction remains unfulcases, whether under Titles VI or VII, then those agencies filled...
...and morally praiseworthy but somehow arbitrary at this point Indeed, even the Supreme Court has acknowledged that Title in our history...
...Even if the Supreme Court does not recognize the permissibilWhatever one's suspicions, the apparent pervasiveness of un- ity of such widening of the standard, there may be future equal treatment,' in both outright and subtle forms, even after litigation on the question of just what proof is necessary to the Civil Rights Act may well justify a belief that discrimina- show previous victimization...
...It should be remembered that employers once VII can be used to restore victims of discrimination to the "rightful place" they would have had if no discrimination occurred...
...dial plan devised by the company and the union to correct them Since it is evident that Congress will not act, the ray of hope was both modest and reasonable, creating new rights to promomust be refracted through the prism of the executive agencies tion within the company for both whites and blacks though it charged by.Cgngress with carrying out the provisions of the somewhat favored the latter...
...It is clear that the Supreme Court, having changed the...
...Probably the workers benefitted in "yes" then affirmative action will be all but decimated, at a Weber were not themselves previous victims of discrimina- time when it is still vitally needed...
...As with most moral issues, there is no readily of a strong moral claim or just an effective lobby...
...If the Supreme Court answers rather than mere redress...
...The lower federal courts-including several involving consent Court as a whole could either adopt the Powell position or decrees-was qualified by his requirement that they recogstand by the Stevens view, since there is nothing preventing nized the rights only of those "entitled to the preference...
...Although a future-oriented attempt to give minorities greater voting Bakke was a Title VI case (discrimination by agency receiving rights...
...Why show dustry or craft involved has had a long history of racial dis- "Holocaust" in West Germany thirty years later if not to crimination...
...after persuading the American people that this apparent equalThe dispute revolves around the moral issues of general ity of bargaining power was not genuine...
...Sadly enough, the Supreme scheme was valid was whether it was a "reasonable remedy Court's attitudes reflect the dominant, short-sighted and ultifor [an] arguable violation of Title VII...
...Although minorities the national conscience...
...That assumption, it turns out, was strike down the program...
...This should mediation has been unavailing, affirmative action up to and be true whereas in Weber (a) such action was voluntary and in including quotas, temporary in nature, is warranted and should good faith and (b) the program was modest-Weber was only be extended to those who cannot really prove that they have delayed in being considered for promotion rather than being been particular victims of discrimination...
...agreements or in endorsing consent decrees envisioned by both What about Powell's slight reservation in Bakke about the Bakkeand Weber indicates the beginnings of the withdrawal of admissability of racial considerations -which led him into the courts, a withdrawal from a task that, as I pointed out, is far limited agreement with the "Marshall group...
...If (or, perhaps, that society would be better off) if they encoun- Weber is upheld, the ability of private parties to voluntarily tered others of diverse backgrounds...
...Powell's belief that the right to dis- Weber threatens to go even further...
...Even Justice Stevens, speaking for his group of four, said findings of discrimination in craft [occupations] are so comthat "Congress's expression of its policy to end racial dis- mon" as to be virtually incontestable, but discrimination was crimination may independently proscribe conduct that the so "effective" that "it is difficult to identify past individual Constitution does not...
...that agreement is pro forma preference to Alan Bakke, could not show previous victimiza- and occurs without much, if any, factual proof of past praction...
...That withdrawal is fully consistent with appears irrelevant to Weber...
...It was obviously not in Weber's peatedly sanctioned broad affirmative action plans, including interest to do so, nor was it in Kaiser's, for such an admission ones which imposed quotas to remedy past discrimination, the would open the company to suits by blacks or to governmental Supreme Court has never directly approved these measures...
...action...
...that record engenders the Commonweal: 172 further suspicion that wholehearted compliance with the noble situation...
...his notion of "victimization" rary American life and will be based on a is closely tied to certain other beliefs which will be discussed simplistic reading of the problem of racial later...
...Powell interpreted previous Supreme voluntarily negotiated agreement, since both a consent decree Court decisions to require that an "identifable group of white and a voluntary agreement are remarkably similar in effect employees" had been benefitted "over other [identifiable] though not in form...
...minority victims, simply because it was well-known prior to the civil rights legislation of 1964 that a particular industry or trade discriminated...
...is not clear...
...Still, there was seems to be willing to leave the matter to Congress...
...Thus an errant selves created by the 1974 agreement...
...A nebulous set of congressional statutes will thus that in Weber "no litigant wanted to see past discrimination supercede both state and individual initiatives, a strange defi- found" and "no one represented the separate interests of the nition of "federalism...
...the same message to private parties...
...The Stevens group specific victims of past discrimination and then make redress will stick to the letter of the Civil Rights Act's anti- only to those victims...
...Powell Weber's fundamental importance lies as much in its demonalso ruled out any notion of "general societal discrimination" stration of the Supreme Court's willingness to remove the as a justification...
...company does not open itself to damage suits, admits no fault, InBakke, Justice Marshall bitterly, criticized Powell's view...
...30 March 1979: 175...
...a plan that focused exclusively on race...
...Although there are periodic grumbles black for one white until the number of minority employees in about "government pressure," this is probably the least conthose positions reached a certain percentage...
...Thus, he will join again with the Stevens judiciary as an institution from the task of redressing the group...
...He would have upheld the agreement since (a) membered, was based not on constitutional grounds but solely arguable violations ("egregious and recent") of Title VII's on what Congress did in enacting Title VI's anti- anti-discrimination provisions had occurred and (b) the remediscrimination clause...
...Again, the had equal bargaining power, so that the aid of government was rationale has not been clear-redress or integration...
...He thought be based on a simplistic reading of the problem of racial that the test of whether an agreed-upon afffirmative action discrimination in employment...
...Certainly, the low percentages of blacks employed in the special competence of Congress to make findings with both unskilled and semi-skilled jobs at Kaiser prior to the 1974 respect to the effects of identified past discrimination and its agreement indicated, to him, that a prima facie case of disdiscretionary authority to take appropriate remedial measures...
...Although, to Powell, had been previously deprived...
...Since Weber even questioned President Johnson's for centuries...
...The critical case is of course Kaiser Aluminum and Chemical Corporation v. II Weber, which the Supreme Court has decided to review...
...parity, separate seniority lists of black and white employees The problem becomes more complicated when government were drawn up...
...tion...
...If Weber means cases had simply never addressed that issue since they dealt the latter, what company would agree to a consent decree, with the rights of blacks concededly discriminated against since any requirement of evidence of discrimination to support seeking their "rightful place...
...Usually, this has occurred where (a) past racial Constitutional Law and History at John Jay College of Criminal discrimination is a matter of record...
...pect for affirmative action is not bright...
...His position would simply abolish most Kaiser's plan...
...The present Stewart, for instance, might well be persuaded to join the Congress is not about to alter extant political arrangements in Marshall-Blacknmn-Brennan-White quartet in Bakke on this favor of either the poor or racial minorities...
...Will it treat administrative employers might well be found to be reasonable by a majority of even this Court...
...AFTER BAKKE COMES WEBER Death sentence for affirmative action...
...denied promotion on account of race, a point which alone distinguishes the case from Bakke...
...gress has often mandated that minority groups be given certain Powell's view is the most complex...
...Many of those who in the purposes of this discussion -and of federal law as well -it this case passionately argue that the past should be set aside makes little difference whether we talk of rigid quotas or target also contend, with equal fervor, that Germans should be exgoals...
...Last December the Supreme Court premature...
...b) the nature of the job is Justice in Manhattan...
...Not all members of such groups have been Courts have been comfortable with the notion that employees equally meritorious or worthy of those gains...
...In general, affirmative action seeks, in several facts of the case itself but also the nature of, and the justifica- ways, to remedy America's disgraceful history of employment tion for, affirmative action...
...Wisdom noted mately self-defeating mood of the country...
...great social and economic gains have been made by "groups" A fundamental question is who is to be benefitted and who which managed to acquire some power often by numbers and denied the benefit by a race-based affirmative action program...
...The Court interested in showing past discrimination...
...In sum, where of voluntary remediation have been meager, some form of discrimination has been recent and pervasive and where reaffirmative action is reasonable and appropriate...
...the enigmatic Justice Powell will join national consciousness about race in Brown vBoard of Educathe Stevens group to constitute a majority tion believes that its role-and that of the judiciary in favoring Weber on very broad grounds...
...Labor unions won their rights to bargain predict, will be the critical issue in Weber...
...GenerIn 1974 Kaiser Aluminum and Chemical Corporation and ally, the higher level of skill required for a particular position, the United Steelworkers Union entered into a labor agreement the more likely it will be that government will require only a which, in part, provided that the company would create new real and "good faith" attempt to use every reasonable means skilled craft positions in six Louisiana plants and would pro- (including some innovative ones) to open up the candidate mote present employees to those positions on a ratio of one pool for the job or jobs...
...Stevens's opinion, it must be re- victims...
...In aBakke sufficient evidence, he found, that such discrimination had footnote, Powell observed, "We have previously recognized existed...
...But to think that this implied One cannot bd sure, but there is some hope that Justice invitation will be answered is overly optimistic...
...It is ironic that particular issue...
...Only then can the magnitude of the discrimination against blacks and to bring blacks into the forthcoming decision be appreciated...
...Indeed, why show "Roots" in America if not to sear means of economic integration as well...
...Thus, factors in addition institute affirmative action programs has also been underCommonweal: 174 mined...
...He noted not only that "judicial...
...Just why the apparent choice-except to note that the idea that every indi- civil rights movement should not be the (limited) beneficiary vidual should be judged on his or her own qualities and that of either our laws or conscience, in this context...
...In justify diversity, Powell's talisman, in work than in education...
...Four Justices in the Bakke case-the New York could recognize black political power,in its redis- "Stevens group" of Burger, Stewart, Rehnquist, and tricting procedu'r'es, after the state had been found to be in Stevens-clearly believe that individual, not racial, fairness is violation of the Voting Rights Act of 1965, a law that itself was the criterion established by'the Civil Rights Act...
...Brian F. Weber, a white man who did not have agencies (HEW, Labor), or the federal courts require or ensufficient seniority on the white list but had more seniority than courage something resembling quotas or target goals based ISIDORE SILVER, a frequent contributor to these pages, is Professor of upon race...
...rather than further[ed]" genuine diversity...
...The trial court upheld Weber, and a panel of the Fifth Everyone assumed that the Court's failure to review these Circuit Federal Court of Appeals sustained the decision to cases meant approval...
...While it will defer to Congress-and perhaps to administrative agencies-in the future, the Powell opinion in Bakke seeks to shape that future by suggesting to Congress the moral, legal, and political considerations that should attend any consideration of race...
...Indeed, in recent social responsibility for presumably past practices and the times, American law has singled out special groups (unions, "penalties" visited upon white workers and a resulting sense automobile franchisees) for special treatment, either because of unfairness...
...discrimination language...
...Significantly enough, Justice Powell, whose vote "The principle to be announced in the Weber will be critical in Weber, has questioned whether even "rightful place" should automatically overcome the rights of whites case will overlook the realities of contempowho were themselves innocent...
...By doing either, the Court will, in limited role of the courts in either creating remedies for past effect, now reject the rationales of the decisions it formerly discrimination or upholding private, voluntarily negotiated refused to review...
...certainly, where past discrimination is a matter of from even seeking employment and these courts have required record and has been pervasive and recent and where the results remarkably little evidence of such deterrence...
...Certainly they could not in relation to the new jobs into tices...
...If Powell reads the Kaiser considerably-of course, many thought that diversity was also program as an attempt to integrate blacks, rather than as mere irrelevant as a rationale for medical school admission...
...The current "bumped" out of jobs when a particular occupation suddenly concern for unalloyed individual "merit" is at variance from became more attractive to whites, often ethnic whites who our national tradition of "interest group politics" whereby were themselves the objects of other forms of discrimination...
...But what of the situation where there are few, if any, discrimination in employment...
...but the discrimination provisions of both Titles are similar, and Steissue was whether the law could both extend the benefit and vens cited Title VII cases to support Bakke's absolute right not shape it, by concentrating voting power, to aid a group rather to be judged by racial criteria...
...IV Minority representation for its own sake, in Bakke, was "facially invalid" and "discrimination for its own sake...
...No other minority, In the same vein, the discussions about affirmative action for instance, has had the experience of being pushed or have a strangely unhistorical air about them...
...Kaiser, in fact, had continued to discriminate after the passage Yet, the similarly compelling feeling that the present owes a of the Civil Rights Act in 1964...
...The record in the Weber case raises suspicions that last year...
...The Court seems cease when blacks made up a certain percentage of the skilled eager to decide not the issue of past discrimination-the govwork force...
...decided to review Weber, and the case was scheduled to be The moment of decision is at hand, however...
...There is even a hint of populism in judgments about future hiring or promotion quotas or goals or Powell's opinion in Bakke indicating that a program designed targets with the same deference it would accord to congres- to benefit the disadvantaged of any race would be more favorsional action...
...In these circumstances, a III pragmatic standard of seniority should not constitute a moral U NFORTUNATELY, THE acceptance of Weber by the High claim superior to that of those benefitted by affirmative action, Court indicates that recognition of affirmative action will a program, which, in addition, was only temporary and would be drastically limited rather than expanded...
...Certainly, adoption of the WisCivil Rights Act of 1964...
...crimination was present...
...It is startling to the contract in Weber did-or bars such decrees in the absence realize that both Powell and Marshall were right...
...interest groups...
...Second, it is harder to Of course, that perspective is not without certain ironies...
...To achieve the the scope of the search...
...To suddenly who had been particularly discriminated against in the past require a standard of "merit," especially in realms where that could be benefitted over and against those who had, innocently standard may not be readily identifiable, may be intellectually or otherwise, been the beneficiaries of past discrimination...
...To Wisdom, Weber either He protested that the Court had never previously required that says nothing about this practice-and thereby encourages the "specific individuals to be benefitted" prove that they had "friendly suits" to quickly and conveniently accomplish what "actually been the victims of discrimination...
...For debt to the past cannot be shrugged off...
...Of course, on either the Powell or the Stevens theory, Congress could act...
...Could newer workers-never discriminated against, individual dignity and liberty-when contending that personally-prevail at the expense of innocent whites...
...Voting may differ from employment in that extension federal grants) and Weber a Title VII case, the antiof the benefit need not be a deprivation of it for others...
...Without the lubricant of race, the engine of equality will not run-and that is the effect, if not the intent, of I F ADMINISTRATIVE determinations of past discrimination the Court's present attitudes and probable future decision in are to be the last-and only-resort in affirmative action, Weber...
...violation of Title VII, as the dissenting judge contended...
...For instance, in Weber's own plant, before for present employment and cannot benefit from a narrow 1974, of 28 employees promoted to skilled craft positions only definition of affirmative action is reinforced by a major reality two were black: did this "reflect the general lack of skills affecting the discriminated-against group-the devastating among available blacks" rather than "any unlawful practice young black unemployment rate-to argue strongly for a by Kaiser," as two Fifth Circuit judges thought, or did it widening of the principle that only those who can show previmirror a continuing "egregious and recent . . . arguable" ous victimization against themselves should now benefit...
...Will the Court grant those dom standards by federal agencies dealing with such notorious agencies-HEW, Labor-the same "discretionary authority" violators as craft and construction unions and their cooperating it professes to accord to Congress...
...general-has almost been concluded...
...pervasively than any white minority group...
...Although lower courts have re- discrimination prior to 1974...
Vol. 106 • March 1979 • No. 6
