1980] PRESUPPOSITIONS OF "AFFIRMATIVE ACTION" V. SUMMARY AND IMPLICATIONS 1335 The original meaning of affirmative action, as a general attempt to inform and recruit applicants from groups long excluded from employment and other opportunities, quickly gave way to its current meaning choosing among applicants on the basis of numerical group results to be approximated, whether called "goals" or "quotas" or the "correction" of "imbalances." The prospective concept of opportunity was replaced by the retrospective concept of results. Indeed, the two concepts are often used interchangeably, though to do so implies that nothing but discrimination can explain large intergroup differences in representation, remuneration, promotion, etc. Supreme Court supporters of numerical affirmative action have explicitly stated this. To the majority in Weber, there could be "little doubt that any lack of skill has its roots in purposeful discrimination of the past"107 and to the four Justices dissenting in the Bakke case, Allan Bakke "would have failed to qualify for admission" in a nondiscriminatory world, being outperformed in such a hypothetical world, by sufficient numbers of minority applicants whose current failure to qualify in this world “was due principally to the effects of past discrimination."108 These four Justices (Brennan, White, Marshall and Blackmun) see their task as "putting minority applicants in the position they would have been in if not for the evil of racial discrimination."109 Behind this staggering notion is the simplifying presupposition that discrimination must be the decisive explanation of intergroup differences. But however morally important the evil of discrimination may be, that is no measure of its causal impact, much less a reason to ignore the causal significance of such non-moral variables as age, location and cultural values. Once the causal decisiveness of discrimination is treated as an hypothesis rather than an axiom, empirical evidence seriously undermines its presumed causal primacy. Among the highest income groups in the United States are non-WASP and non-white groups with a history of suffering severe discrimination, including the mass internment of Japanese Americans in World War II. The uniqueness of the historic disabilities of blacks is often invoked by supporters of affirmative action, including Supreme Court Justices in the Bakke and Weber cases. 110 But that very uniqueness undermines both their causal and legal arguments. However much 107. 443 U.S. at 212 n.* (Blackmun, J., concurring). 438 U.S. 265, 365-66 (1978) (Brennan, White, Marshall & Blackmun, J.J., concurring in part, dissenting in part). 109. Id. 374 n.58. 110. Id. 369-72, 324-36. See also 443 U.S. at 201; 438 U.S. at 387-96 (Marshall, J., concurring in part, dissenting in part). 1336 WAYNE LAW REVIEW [Vol. 26 various data (income, education, etc.) for blacks differ from "the national average," such data are not unique. Neither the median family income, occupation level, years of schooling, I.Q., or unemployment rate of blacks is the worst among American ethnic groups. There are non-enslaved, non-Jim Crowed, non-black groups worse off in each of these respects." This is hardly a reason for complacency, but the point is that the moral uniqueness of black history does not imply a causal uniqueness. Moreover, the economic performance of West Indian blacks in the United States suggests that color discrimination as an explanatory variable will not in fact bear the weight that is placed on it. But even if the factual evidence for the current uniqueness of blacks were far stronger than it is, that would hardly be an argument for a legal principle invoked on their behalf and then extended successively to other groups lacking that uniqueness and constituting all together a substantial majority of the American population. It is ironic for the historic discrimination against a racial minority to be invoked as the basis for current discrimination against the residual minority of persons not designated as special by the government agencies armed with the unchecked power to make or withhold such arbitrary designations. Just how arbitrary (or ideological) these designations can be is shown by the fact that preferential decisions are authorized in favor of Chinese Americans over Irish Americans, for example, even though the former have higher incomes, more education, and a greater proportion of people in the professions. It is a further irony that the principle of preferential treatment is rejected by the very groups for whom it is most often invoked, blacks and women. According to the Gallup Poll, 64 percent of blacks and 80 percent of women reject preferential treatment in employment or college admission. 112 Indeed, the Gallup Poll could find no racial, regional, income, political, or other group in favor of this central principle of affirmative action. The lack of popular support or statutory authorization for affirmative action programs, in which a few fervently believe, has had broader implications for the functioning of elective government and the integrity of courts. It raises somber questions about how far we have gone, and how fast we are going, from democracy toward a judicial ad hocracy. 111. ESSAYS AND DATA ON AMERICAN ETHNIC GROUPS, supra note 19, 216, 223, 257-58, 283, 385. 112. GALLUP Opinion Index, Rep. 143, 23 (June, 1977). 84-280 0-83-25 Thomas Sowell "Affirmative Action" Reconsidered Images and labels have taken the place of facts in the controversies surrounding so-called affirmative-action. Words like quota, qualified, and underutilization are flung about, and defined in strange and tortuous ways; and images are conjured up of either massive benefits conferred on blacks and females at the expense of white males, or cynical evasions of affirmativeaction programs by employers whose discriminatory practices are ignored by inept or cowardly government agencies. For the academic world, there is the additional image of an "old-boy network," through which professors are hired by their cronies. But despite an abundance of horror stories, there has been pathetically little analysis establishing the general conditions in the academic world before or after affirmative action. To make these intricate and emotionally charged issues manageable, it is necessary to (1) distinguish the basic concepts and legal rationale of affirmative action from the many specific laws, regulations, and practices that have developed under that label; (2) measure in some general terms the magSource: The Public Interest (Winter 1976). Reprinted by permission of the publisher, with footnotes omitted. A longer, more detailed version of this article appeared as a pamphlet published by the American Enterprise Institute for Public Policy Research, Washington, D.C. 114 THOMAS SOWELL nitude and severity of the problem that was intended to be solved or ameliorated by affirmative-action programs; (3) consider the actual results achieved and general trends set in motion by such programs; and finally (4) weigh the implications of affirmative-action policies both for those directly affected and for the general society. UNDOING THE PAST The general principle behind affirmative action is that a court order to cease and desist from some discriminatory practice may not be sufficient to undo the harm already done, or even to prevent additional harm as the result of a pattern of events set in motion by the prior illegal activity. This general principle goes back much further than the civil-rights legislation of the 1960s, and extends well beyond questions involving ethnic minorities or women. In 1935, the Wagner Act prescribed affirmative action as well as cease-and-desist remedies against employers whose anti-union activities had violated the law. Thus, in the landmark Jones and Laughlin Steel case, which established the constitutionality of the Act, the National Labor Relations Board ordered the company not only to stop discriminating against those of its employees who were union members, but also to post notices to that effect in conspicuous places and to reinstate unlawfully discharged workers, with back pay. Had the company merely been ordered to cease and desist from economic (and physical) retaliation against union members, the future effect of its past intimidation would have continued to inhibit the free-choice elections guaranteed by the National Labor Relations Act. Racial discrimination is another obvious area where merely to cease and desist is not enough. If a firm has engaged in racial discrimination for years, and has an all-white work force as a result, then simply to stop explicit discrimination will mean little as long as the firm continues to hire by wordof-mouth referrals of its current employees' friends and relatives. (Many firms hire in just this way, regardless of their racial policies.) Clearly, the area of racial discrimination is one in which positive or affirmative steps of some kind seem reasonable-which is not to say that the particular policies actually followed make sense. Many different policies have gone under the general label of affirmative action, and many different organizations-courts, executive agencies, and even private organizations—have got involved in formulating or interpreting the meaning of that term. The conflicting tendencies and pressures of these various institutions have shifted the meaning of affirmative action and pro duced inconsistent concepts at the same time. There is no way to determine the meaning of affirmative action. All that can be done is to examine the particulars-the concepts, intentions, and actual effects. In a society where people come from a wide variety of backgrounds and where some backgrounds have been severely limited by past discrimination, the very definition of equality of opportunity is elusive. For example, a seniority system in a company which previously refused to hire minority individuals means that present and future discrimination occurs because of past discrimination. A Court of Appeals decision struck down such a system on the grounds of its current discriminatory effect. In another case, the Supreme Court struck down a mental test for voters in a community with a long history of providing segregated and inferior education for Negroes. Again, the rationale was that the case involved present discrimination, considering the past behavior; but this case touches the crucial question of what to do when the effects of past discrimination are incorporated in the current capabilities of individuals. Is equal opportunity itself discriminatory under such circumstances? If so, is anything more than equality of treatment justifiable under the Fourteenth Amendment and corollary statutes and court rulings? As important as the question of whether a legal basis exists for any compensatory or preferential treatment is the question of who should bear the inevitable costs of giving some citizens more than equal treatment. A question may also be raised as to whether such treatment really serves the long-run interests of the supposed beneficiaries. The legislative history of the Civil Rights Act of 1964 shows that many of these concerns and dilemmas were present from the outset. Senator Hubert Humphrey, in helping to steer this legislation through Congress, attempted to meet criticism by pointing out that the Act "does not require an employer to achieve any kind of racial balance in his work force by giving any kind of preferential treatment to any individual or group." He said that there must be "an intention to discriminate" before an employer can be considered in violation of the law, and that the "express requirement of intent" was meant to prevent "inadvertent or accidental" conditions from leading to "court orders." Senator Joseph Clark, another supporter, made it clear that the burden of proof was to be on the Equal Employment Opportunity Commission (EEOC) to "prove by a preponderance" that a "discharge or other personnel action was because of race." Clark added flatly: "Quotas are themselves discriminatory." Congress also faced the difficult question of what to do about groups whose historic disadvantages left them in a difficult position to compete on |