that resistance accompanies any major change in organizational policies, and being alert to the forms that resistance to affirmative action plans may take, can help organizational leaders and affirmative action personnel plan more effectively. Such an understanding also can help organizational leaders avoid interpreting resistance as failure and abandoning affirmative action plans before implementing them effectively. One example of resistance that sabotaged an affirmative action program occurred in a municipal police department, which successfully recruited minority cadets only to see all of them fail or drop out of the training academy. Recruiting inadequately prepared candidates, or allowing discrimination in the training process, may both be signs of resistance. When such experiences are used as evidence that an affirmative action plan cannot succeed and to justify abandoning affirmative action efforts, then resistance has led to defeat. Organizations that recognize the likelihood of resistance and are prepared to allocate sufficient time, energy, and resources to overcome it are likely to avoid its negative consequences and be effective in combatting discrimination. Just as internal resistance often impedes affirmative action plans, forces outside the organization may at times slow progress. Even the best designed and most comprehensive affirmative action plans are not immune from economic setbacks. Such setbacks may influence hiring, promotion, and the overall speed with which minorities and women can be integrated into the organization. Organizations can take various actions that will prevent economic setbacks from reversing past gains in employing minorities and women. Rather than lay off minority or female workers, who tend to have the least seniority because of past exclusion, organizations can devise parallel seniority lists solely for layoff purposes, reduce the workweek for all employees, encourage the early retirement of senior white male workers, or use other such devices to assure that minorities and women are not disproportionately affected. Regardless of whether these alternatives are pursued, reductions in new opportunities do not justify abandoning affirmative action plans, which address the overall organizational climates as well as the statistical profiles of organizations. Moreover, organizations are always in flux. People are continually being hired and promoted, even during hard times. Despite their small numbers, minorities and women can thrive in an organization determined to create a climate of equality. Although an organization's affirmative action plans will be affected by and must respond to changes in the economic environment, economic reversals must not be allowed to serve as vehicles for organizational resistance to the effective implementation of affirmative action plans. Means for Evaluating Progress Use objective statistical measures. Use qualitative measures of organizational “climate" and behavior. • Take appropriate action to respond to unforeseen events. A comprehensive affirmative action plan, growing out of a specific and detailed organizational self-analysis and the active support of organizational leaders, should have built-in indicators for judging success. Some of these indicators involve the qualitative aspects of an organizational climate that are often subtle and sometimes difficult to measure. Others lend themselves more readily to quantitative expression and evaluation. Among the more easily measured organizational changes that suggest an affirmative action plan is successful are: increased number of minority and female job applicants, increased hiring and promotion of minority and female employees, long-term retention and advancement of minority and female employees, and longterm gains in organizational productivity. The relatively clear-cut nature of statistical measures of work force composition and performance make them attractive as outcome criteria. But quantitative measures, although essential, are only part of the effort to evaluate the progress of affirmative action plans. Of equal importance are qualitative measures, such as frequent "soundings" of employee morale and other aspects of organizational climate. Through surveys, interviews, and other qualitative measures, the experiences of minorities and women as well as those of white male employees can be monitored continually. Numerical measures showing more equal outcomes are signs that discriminatory processes are being eliminated, but such measures do not identify or describe the workings of the new nondiscriminatory processes. Qualitative analyses are needed to determine whether new nondiscriminatory processes have been established that will continue as a routine part of the life of the organization when the affirmative action plan is withdrawn. Affirmative action is a way of implementing national equal employment opportunity policy. It is a long-term process that has barely begun. The problem that affirmative action plans are designed to remedy has taken centuries to develop and resists quick and mechanical solutions. For women and minorities to be fully accepted in all jobs at all organizational levels, most organizations will need affirmative action plans designed to include minorities and women in sufficient numbers and with sufficient organizational backing so that a discriminatory organizational climate becomes nondiscriminatory. Only when such a climate has been established will a self-perpetuating process of equality take the place of the process of discrimination and bring to an end the need for affirmative action plans as we now know them. I' Commentary "Affirmative Action" Under Reagan Chester E. Finn, Jr. Na press conference on the anniversary of his inauguration, Ronald Reagan stated that "I have been on the side of opposition to bigotry and discrimination and prejudice, and long before it ever became a kind of national issue under the title of civil rights. And my life has been spent on that side." Yet the policies and actions of Reagan's administration during its first fourteen months were widely perceived to be unsympathetic to civilrights progress, if not overtly hostile to the interests of minorities and women. Certainly that is the view of leaders of major civil-rights organizations. The NAACP's Benjamin Hooks told a Senate subcommittee in late January that he could not point to "any action of this administration that would give any hope of comfort to minor. ities." The National Urban League opened the 1982 edition of its annual report on "The State of Black America" with the statement that "At no point in recent memory had the distance between the national government and black America been greater than it was in 1981, nor had the relationship between the two been more strained." The American Civil Liberties Union distributed a newsletter in February describing “a presidential administration whose hostility to individual rights is relentless." A lawyer with the National Women's Political Caucus says of Reagan that "his record is absolutely deplorable." Apart from an occasional expression of ironic gratitude to the President for galvanizing the sluggish civil-rights movement itself—"He's giving us the glue that's bringing us together," said one Urban League official-the White House evokes little but criticism from such spokesmen and their echoes among the editorial writers and columnists of the major metropolitan newspapers. One cannot of course know whether Ronald Reagan has ever harbored an unkind impulse or prejudiced thought, but it is now possible to glimpse the outlines of his administration's civilrights policies and to begin to appraise their ex CHESTER E. FINN, JR. is professor of education and public policy at Vanderbilt University and the author of several studies of educational and social policy, including Scholars, Dollars, and Bureaucrats. Mr. Finn would like to thank Elise Rabekoff and Neal Devins for assistance in preparing this article. ecution. The policies, unfortunately, are not as clear as they should be after more than a year in office. Their implementation has been uneven on good days, indefensible on bad ones. What is most regrettable about the administration's two or three authentic blunders, however, is that they cloud, indeed may permanently have polluted, the atmosphere of good faith that is essential if the excesses and distortions committed in the name of "civil rights" in recent years are to be corrected and the concept itself restored to a place of honor and approbation. That it does not occupy such a place today is due largely to conflict between two quite distinct ideas, both of which have carried the banner of "civil rights" since the mid-60's, and to mounting popular disapproval of some of the actions taken by the federal government in their name. The first consists of purposeful efforts to bar discrimination against individuals on the basis of their race, religion, sex, physical condition, national origin, and other such characteristics. These efforts are rooted in the Enlightenment ideas that undergird American democracy; in the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments to the Constitution; in the civil-rights legislation of the 1860's and 1870's; in a series of Supreme Court decisions beginning with Brown v. Board of Education; and, especially, in the Civil Rights Act of 1964, that great congressional mandate for equal individual opportunity within a color-blind society. In pursuit of this goal, the federal government has constructed elaborate means of safeguarding individuals against discrimination based on the attributes of groups to which they belong and has thereby sought to equalize their opportunities to succeed or to fail-as individuals. These safeguards, in the main, continue to enjoy wide public approval. The second set of actions taken in the name of "civil rights," however, has consisted of efforts to better the condition of designated groups within the society by redistributing social, economic, political, and educational resources. The underlying rationale has been variously phrased, but al ways partakes of the concept of achieving parity among groups defined according to the same characteristics that are proscribed in the treatment of individuals. 18/COMMENTARY APRIL 1982 Although foreshadowed by FDR in the "second bill of rights" described in his 1944 State of the Union message, this, too, is primarily a legacy of the mid-1960's, especially of the federal War on Poverty with its dozens of "compensatory" spending programs, and of Executive Order 11246, issued by President Johnson in 1965. That celebrated document required the government and its private contractors to 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." (Sex was added in 1967.) Every federal agency was ordered to "establish and maintain a positive program of equal employment opportunity" and the Secretary of Labor was empowered to adopt "such rules and regulations" as were necessary for government contractors to be pressed toward the same result.⚫ A few months earlier, Bayard Rustin had presciently observed that "The civil-rights movement is evolving from a protest movement into a full-fledged social movement-an evolution calling its very name into question. It is now concerned not merely with removing the barriers to full opportunity but with achieving the fact of equality." Rustin itemized the problems facing blacks, problems which, "while conditioned by Jim Crow, do not vanish upon its demise. They are more deeply rooted in our socioeconomic order; they are the result of the total society's failure to meet not only the Negro's needs, but human needs generally." Federal efforts to achieve "the fact of equality" were numerous and imaginative. Many of these sought to better the lot of the poor and disadvantaged in general, especially through the myriad social programs, ranging from Headstart to CETA to food stamps to adoption assistance, that were the building blocks of the contemporary welfare state. Others, however, responded to the demands of more limited groups-women, blacks, the handicapped, the elderly, Hispanic Americans, Native Americans-for divers benefits and services. Even as the spending programs proliferated and grew, however, Washington developed several further strategies to apportion society's rewards more "equally." The first was to eliminate such criteria as examinations for employment and tests for entry into selective schools that had the effect of distributing benefits unequally among groups even though the criteria were themselves objective or "colorblind." The second was the "earmarking," "setting aside," or reserving of certain portions of federal money and other benefits for groups who would not have to compete for them through the processes that governed the allocation of the remainder. The third was the creation of detailed regula tions and procedures for non-federal entities (such as school systems and private employers) within the reach of federal policy that obliged them to make decisions in a race- (or sex-) conscious way. It mattered little who occupied the Oval Office or which party controlled the executive branch. The Nixon administration, after all, introduced the concept of numerical hiring "goals and timetables," imposed the requirement that individual employers prepare written affirmative-action plans, and invented the "Philadelphia Plan," which amounted to a minority-hiring quota for federal construction contractors. During the brief tenure of Gerald Ford, a simple statutory prohibition against sex discrimination in federally-aided schools and colleges was translated into the voluminous Title IX regulations, intruding Washington into school dress codes, the offerings of university athletic departments, and, for a time, "fatherson" and "mother-daughter" dinners. Ford's Office of Education also promulgated the "Lau Remedies," requiring school districts with twenty or more children who speak a language other than English to teach them in their primary language and to provide them with "bicultural” education as well. B UT it was during the administration of Jimmy Carter that such "equalizing" strategies were most fully elaborated. This was due in part to the internal politics of the Democratic party that nominated him, for by 1976 the party of Thomas Jefferson had become a frac tious assembly of groups that defined themselves by race, ethnicity, physical conditions, gender, and sexual orientation and that allotted delegate seats at its own convention acording to intricate ratios and quotas. The administration that took office in 1977 set about to favor and reward these constituent groups by yielding to practically every one of their demands. Former Carter appointees in the executive agencies and the White House staff now reflect ruefully on their instructions not to turn away any group or movement that asserted rights or claims, however extravagant. In fact, of course, some-such as Catholics seeking aid for parochial schools-were turned away. But in the main, administration policy, as George Will put it, was "to divide the majestic national river into little racial The latent conflict between the color-consciousness of the executive order and the color-blindness of the previous year's Civil Rights Act continues to raise profound legal and constitutional questions about the extent of the Presi dent's authority in promulgating and enforcing the order. The Supreme Court's Weber decision quite unintentionally deepened those questions, as is incisively shown in a bril liant law note by Andree Kahn Blumstein, "Doing Good the Wrong Way: The Case for Delimiting Presidential Power Under Executive Order No. 11246," Vanderbilt Law Review, Vol. 33:921, 1980. "From Protest to Politics: The Future of the Civil Rights Movement," COMMENTARY, February 1965. and ethnic creeks," making the United States "less a nation than an angry menagerie of factions scrambling for preference in the government's allocation of entitlements." In that spirit, and pursuant to a one-paragraph congressional ban on discrimination against the handicapped, the Carter administration promulgated hundreds of pages of regulations mandating that subway stations and 19th-century college laboratory buildings alike be "retrofitted" for wheelchair use, notwithstanding the multibillion dollar cost-little or none of it reimbursed by Washington. The civil-service "reforms" that Carter pressed through Congress radically changed the basis of the federal government's own "affirmative-action" plans. Prior to 1978, those plans rested—as do private-sector plans even now-on the concept of "under-utilization," defined by the government as the presence of "fewer minorities or women in a particular job group than would reasonably be expected by their availability." That construction at least allowed agency heads and the Civil Service Commission to base their "goals and timetables" on the distribution within particular geographic locations of minority-group members and women possessing the skills and qualifications needed for specific jobs in the federal service. The 1978 reforms, however, replaced "underutilization" with "underrepresentation," defined as "a situation in which the number of members of a minority-group designation . . . within a category of civil-service employment constitutes a lower percentage of the total number of employees within the employment category than the percentage that the minority constituted within the labor force of the United States. . . ." This wiped out all consideration of individual qualifications and of local job-market conditions; it said, in effect, that no government official could rest until every "designated" minority was represented in every grade and classification of federal employment in every agency in exact proportion to its incidence in the adult population of the United States as a whole: the most explicit, exacting, and inflexible quota system of all. In its final weeks, the Carter administration also agreed to scrap the principal test that the government routinely administered to judge the qualifications of persons seeking to enter the civil service. The reason was that minority-group members often failed the examination, which meant it purportedly had an “adverse impact" on them. So much for merit in the public sector. As for non-federal employers, the Carter administration also made great “progress." Under Executive Order 11246 and its cousins, the enforcement of contract compliance had been handled by agencies with at least some general knowledge of the institutional character of their own contractors and the nature of the pertinent labor pools. Carter now consolidated the entire endeavor in "AFFIRMATIVE ACTION" UNDER REAGAN/19 the Labor Department and greatly enlarged its Office of Federal Contract Compliance Programs (OFCCP)—a zealous agency with a single responsibility and just one set of outside constituencies, namely, the groups whose interests are advanced by its enforcement efforts. That agency set about with great vigor to expand the scope and reach of its activities. It came to rely heavily on the "back-pay" sanction, whereby an employer found to have been insufficiently ardent about affirmative-action goals could be compelled to grant up to five years' pay as compensation to those who supposedly would have earned it had he acted differently at an earlier date. It welcomed hundreds of complaints against employers from civil-rights organizations generally, and women's groups particularly, thereby effectively enlisting them as scouts and informants. A FEW blocks away, the Equal Employment Opportunity Commission (EEOC), firmly led by Eleanor Holmes Norton, set out both to eliminate the huge backlog of uninvestigated discrimination complaints by individuals and to step up its self-generated antidiscrimination and affirmative-action efforts. One of its principal endeavors was to convince employers that they did not have to worry about charges of "reverse discrimination" if they gave preference to minority-group members and women. Offering its own interpretation of the history of the 1964 Civil Rights Act, the Commission published in the Federal Register its confident belief "that by the enactment of Title VII Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement. Such a result would immobilize or reduce the efforts of many who would otherwise take action to improve the opportunities of minorities and women.... " The Commission then set forth an ingenious Catch-22 in which persons who thought themselves victims of "reverse discrimination" could expect no help from the EEOC. For, after announcing that "These guidelines constitute the Commission's interpretation of Title VII and will be applied in the processing of claims of discrimination," the Commissioners explained that employers engaged in the work-force analysis that is part of affirmative action need not "establish a violation of Title VII" so long as they find that their past practices "have or tend to have an adverse effect on employment opportunities of members of previously excluded groups" or "result in disproportionate treatment.' Race- and sex-conscious actions taken to end the disproportionality would not be held by the EEOC to constitute discrimination. Hence, anyone who felt himself " • See Walter Berns, "Let Me Call You Quota, Sweetheart," COMMENTARY, May 1981. |