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In March 1977 a Gallup poll showed that an overwhelming proportion of the public-eight in ten-opposed preferential treatment (see Figure 1). In April 1979 eight in ten college students took the same position, with nonwhites rejecting preferential treatment by 49 percent. Other polls have also confirmed the strong opposition to "giving blacks a preference over whites in certain jobs" (Harris in 1970) or "giving Negroes a chance ahead of whites in promotions where they have equal ability" (82 percent were opposed in the University of Michigan's Survey Research Center study in 1971). In 1974 Gallup found 96 percent favored promoting the "best qualified" regardless of race; over 80 percent of the blacks polled agreed.

The Washington Post and Harvard's Center for International Affairs asked this question in 1976: "Which statement do you agree with more: 1) Quotas in job hiring should be used to increase the number of women in good jobs, OR 2) Job hiring should be based strictly on merit." Whites (82 percent), blacks (63 percent), and women (79 percent) voted for merit hiring. Other polls on quotas for minorities have also revealed strong disapproval.

In contrast to the public's rejection of quotas and preferential treatment, a majority of Americans (as Harris found in his 1978 study) support more government spending and special assistance programs for women and minorities to make up for past discrimination (see Figure 3). A New

It was not always the case that voters felt that the Congress and the bureaucratic functionaries in Washington, who continue to increase the flow of rules and regulations from the executive agencies, were beyond their reach. Sixteen years ago the public supported its elected representatives when Congress decided how to go about achieving the profoundly important goal of equality of opportunity for all Americans. In 1964, when the Civil Rights Act was passed, Congress reflected the general consensus that Americans wanted not only to end discrimination but also to make employment opportunity independent of race, color, religion, sex, or national origin. The new law was to bring Americans together, not separate them into categories. Individuals and groups from every walk of life who participated in the legislative process did not sanction preferential treatment, or special privileges for some, or the estab lishment of numerical or racial goals, or the concept of statistical parity among groups. They wanted to eliminate deliberate discrimination against anyone.

During the last decade, however, congressional policy has undergone many changes, not by legislators responding to a great reversal of public opinion--as verified by every poll, there has been no such reversal-but by the courts and such enforcement agencies of the government as the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance (OFCC). Former United States Solicitor General Robert H. Bork is right in saying that many of their actions would never be passed by Congress if taken one by one as legislative proposals.

One reason the power of the courts and the federal bureaucracy has increased in recent years (apart from the fact that Congress does not have the time to review the flood of bureaucratic regulations) is that the members of the House and Senate have not always wanted to "take the heat" and deal with some of the controversial issues that require policy judgments in areas where there is no political consensus. (At a private meeting last year, a liberal Democratic member of Congress acknowledged that in the area of affirmative action many of the decisions and policies of the courts and federal agencies do not reflect the feelings of the majority of Americans and have gone beyond the intent of Congress. When asked why he did not draw attention to the problem, he answered candidly, "I do not want to be called a racist by the civil rights activists." His further comments also went on to confirm the growing importance and

fervor of single-issue groups and their skill in wielding influence out of proportion to their size.) The result has been that the courts and government agencies have frequently offered solutions that should have been provided by our elected representatives addressing themselves to problems that are fundamentally political and about which the full range of public sentiment deserves to be heard and ultimately reflected in congressional policy.

The liberal tradition of equality of opportunity is presently undergoing a major transformation, not principally through congressional legislation but (in addition to the courts) by aggressive affirmative action policymakers in the bureaucracy who seek to bring about social change through a succession of rules, procedures, and investigatory techniques. The time has come, therefore, for Congress to provide more than ambiguous and inconclusive evidence on how it feels about the redefinition of equality-whether, for example, an explicit (or even implicit) policy of racial preferences in hiring (or school admissions) is the will of the popularly elected branch of our government. Congress could begin by restating the purposes of the Civil Rights Act, and go on to develop additional policy guidelines for the courts and federal agencies. Our elected officials should articulate the terms and standards on which the deeply divisive issue of affirmative action will finally be vigorously debated and then voted on through direct involvement of the political process.

A fundamental policy question for Congress is this: If race or ethnicity, once abolished by the Supreme Court as a permissible basis for governmental classification (the Brown case of 1954), is to be reinstated as a legitimate and desirable ground for awarding jobs, social benefits, or opportunities, and if rights and special preferences are to be given to certain groups (but not to others), should the courts or the rule makers in EEOC, OFCC, or elsewhere make political decisions about how to institutionalize the "new legitimacy" without the legislative process being engaged?