she chooses to file a lawsuit? Affirmative action has created an incentive not to hire from these various groups. In the process, it has provided some benefits to those minority individuals who have top degrees and a long list of publications. But they would have been doing all right anyway. Those who are just coming out of the graduate school untested (and given the history of minorities, these will be the great majority of the people in the group), have been made less attractive risks. "Justice" has had a high cost to the intended beneficiaries, as well as to the larger society. Perhaps observers will be physically benefited, by feeling that they are promoting a more just world. But is increasing the physic income of third parties the real purpose of income redistribution? (Thomas Sowell, a senior fellow at the Hoover Institution on War, Revolution and Peace, is author, most recently, of "Ethnic America, A History." This article, excerpted here from the summer 1981 issue of Policy Review, is adapted from the forthcoming book, "The Limits of Goverment Regulation," edited by James F. Gatti. This is the first of two articles.) WEBER AND BAKKE, AND THE PRESUPPOSITIONS OF "AFFIRMATIVE ACTION" A. The Ethnic Vision and the "National Average". 1318 The Supreme Court's upholding of racial quotas in the Weber case, just one year after striking them down in the Bakke case, adds another strange chapter to a story that began with its declaring moot the same issue in the DeFunis case.' Yet the inconsistencies may be more apparent than real. The majority in Weber, like the four concurring justices in Bakke, emphasized the narrowness of the issue they resolved, and that it turned on purely statutory construction, rather than being a constitutional landmark.3 In this sense, the two cases are consistent with each other in avoiding a once-and-for-all pronouncement on quotas which both sides had hoped for. Indeed, Bakke and Weber are also consistent with DeFunis, in avoiding a pronouncement of principle. How consistent these cases are otherwise how consis Copyright 1980 by Thomas Sowell. +Professor of Economics, University of California, Los Angeles. A.B., 1958, Harvard University; M.A., 1959, Columbia University; Ph.D., 1968, University of Chicago. - ED. 1. United Steelworkers of America v. Weber, 443 U.S. 193 (1979); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); DeFunis v. Odegaard, 416 U.S. 312 (1974). 2. United Steelworkers of America v. Weber, 443 U.S. 193, 200 (1979); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). 3. United Steelworkers of America v. Weber, 443 U.S. 193, 200 (1979); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 410-21 (1978). 1310 WAYNE LAW REVIEW [Vol. 26 tent with each other or with the Civil Rights Act or the Constitution is another and larger question. Before attempting to analyze these larger questions, it is necessary to dissect the issues behind the controversies not only the explicit points of contention, but also the barely articulated presuppositions which form the foundation of an elaborate superstructure of beliefs and imperatives. The controversies which have raged around the concept of "affirmative action" have not clarified these fundamental matters. On the contrary, they have made it even more necessary to define the basic terms of the discussion, as well as to reconsider its premises and conclusions. The discussion here will include (1) the evolution of "affirmative action" as a concept, (2) its presuppositions about social processes, and (3) the implications of the Bakke and Weber decisions specifically. I. EVOLUTION The central idea behind “affirmative action” is that it is often not enough to "cease and desist" from some harmful or proscribed activity. Sometimes the future consequences of the past activity must also be proscribed or mitigated. This idea was not new or peculiar to the civil rights issues of the 1960's. In 1935, the Wagner Act used the identical phrase, “affirmative action," to describe an employer's duty to undo his past intimidation or harassment of union organizers and members, by posting notices of a new policy and by reinstating (with back pay) workers fired for union activity. Otherwise the future effect of past intimidation (physical and financial) would inhibit the "free choice" elections guaranteed by the Act. For the employer merely to cease and desist would not end the future detrimental effects of his past conduct. Similar principles apply in the racial or ethnic area. The common employer practice of hiring new workers by word-of-mouth referrals. from existing employees meant that a formerly discriminating employer with an all-white work force would probably continue to have an all-white work force, even after discrimination among applicants had ceased, because his applicants would be the relatives and friends of his existing employees. The effects of the past racially discriminatory choices of employees would be perpetuated after the policy of racially discriminatory choices among applicants had ended. In a similar vein, general channels of information and recruiting would tend to reflect past practices in the selection of students, executives, craftsmen, and in a wide variety of other selection situations 4. National Labor Relations Act, 29 U.S.C. §§ 151-68 (1976). 1980] PRESUPPOSITIONS OF "AFFIRMATIVE ACTION" 1311 and procedures. For this reason, to eliminate discrimination only at the decisionmaking point (employment, college admission, etc.) would not eliminate de facto discrimination intentional or non-intentional - in the process as a whole, including information channels and recruiting networks established in an earlier era to reach some desired segments of the population, but not others. Therefore, “affirmative action" of some kind was considered necessary to make nondiscrimination a reality throughout a whole information-recruitingchoosing process, at least until new informal information networks could form and special recruiting activities by employers, universities, and others could overcome fears among previously excluded groups that they would not be considered eligible or would not be judged fairly. A. The Distinction Between Information Networks and Decision Points "Affirmative action," as it was first applied in a racial or ethnic context in the 1960's, meant various activities aimed at spreading information about newly opened employment or other opportunities, so as to increase the number of minority individuals in the pool of applicants from which the actual selection would then be made without regard to race, color, creed, or nationality. In such a context, it was meaningful to speak of “affirmative action" to promote “equal opportunity," as expressed in President Kennedy's Executive Order No. 10,925. The special targeting of designated groups for informational or recruiting activity was perfectly compatible, in principle, with disregarding all group designations when the time came to choosing among competing individuals. None of this implied goals, preferences, or quotas as regards the final choices. Nor was there any implication of "compensation" to individuals or groups for past societal or institutional wrongs. All these things require additional assumptions and presuppositions. "Affirmative action" as a general term therefore includes specific policies which may or may not center on numerical results. Even as a very general concept, however, it is a transitional policy. This presents. no special problems for administrative or even legislative policy. For judicial and especially constitutional decisionmaking, however, there are serious difficulties. Are courts the appropriate institutions to determine how long social transitions should last, or the principles or indicia of its duration? Can a program be transitionally constitutional? While the general principle of "affirmative action" was announced 5. Exec. Order No. 10,925, 26 Fed. Reg. 1977 (1961). "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." 1312 WAYNE LAW REVIEW [Vol. 26 in a series of Executive Orders of the President, in the Kennedy and Johnson administrations, the specific content of the term evolved in the implementing activities of administrative agencies. Tendencies toward shifting the emphasis of “affirmative action" from equality of prospective opportunity toward statistical parity of retrospective results were already observed, at both state and federal levels, by the time that the Civil Rights Act of 1964 was under consideration in Congress. Senator Hubert Humphrey, in guiding this bill through the Senate, assured his colleagues that it "does not require an employer to achieve any kind of racial balance in his work force by giving preferential treatment to any individual or group.' " He pointed out that subsection 703(j) under Title VII of the Civil Rights Act "is added to state this point expressly." That subsection declared that nothing in Title VII required an employer "to grant preferential treatment to any individual or group on account of any imbalance which may exist" with respect to the number of employees in such groups "in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section or other area." "8 Virtually all the issues involved in the later controversies over “affirmative action," in the specifically numerical sense, were raised in the legislative debates preceding passage of the Civil Rights Act. Under subsection 706(g) an employer was held liable only for his own "intentional" discrimination, not for societal patterns reflected in his work force. According to Senator Humphrey, the "express requirement of intent is designed to make it wholly clear that inadvertent or accidental discriminations will not violate the title or result in the entry of court orders."10 Vague claims of differential institutional policy impact "institutional racism" were not to be countenanced. For example, tests with differential impact on different groups were considered by Humphrey to be "legal unless used for the purpose of discrimination." There was no burden of proof placed upon employers to "validate" such tests. In general, there was to be no burden of proof on employers; rather, the Equal Employment Opportunity Commission (EEOC) created by the Act "must prove by a preponderance" that an adverse decision was based on race (or, 6. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, LEGISLATIVE HISTORY OF TITLES VII AND XI of Civil Rights Act of 1964 3005 (n.d.) [hereinafter LEGISLATIVE HISTORY]. 7. Id. 8. Id. 1007-08. 9. Id. 1014. 10. Id. 3006. |