that high divorce and illegitimacy rates mean that the only alternative to better jobs for women is more welfare dependency, for which business will be forced to pay a good share.

If the antidiscrimination laws were not on the books, the business community would probably not be campaigning for their enactment. But since they are there and are not likely to come off, business people can see that they are not without their advantages.

NOTE: Barbara R. Bergmann is a professor of economics at the University of Maryland and one of a panel of four economists appearing regularly in the Sunday Business Section.

[From the Washington Post, Sept. 16, 1981]

RACE, MERIT, AND JOBS

(By William Raspberry)

Back in 1972, a federal judge ordered the Alabama Department of Public Safety to hire one black highway patrolman for every new white trooper until the overall force was 25 percent black.

I thought the order made sense.

In 1981, the D.C. Office of Human Rights ordered the District fire department to fill 60 of its 70 vacancies with minority applicants and, after that, to give preference to minorities until the racial makeup of the department approximates the racial makeup of the city.

I don't know whether that one makes sense or not, and neither, so far as I can tell, does human rights director Anita Shelton, who issued the order.

In the Alabama case, the problem was clear-cut racial discrimination. There were some 600 state troopers, and all of them were white. A federal judge found evidence of overt discrimination and was upheld on appeal.

There has been no similar finding of discrimination against minorities by the local fire department. The principal evidence-so far as I can tell, the only evidence of bias is the fact that in a city whose population is some 70 percent black, 63 percent of the firefighters are white.

And on the basis of that evidence, Shelton ordered the department to fill 60 of its 70 vacancies with minority applicants, even though most of those who made the top scores on the entrance exam were white.

She has now been ordered by the city administrator's office to hold public hearings to determine whether the skewed racial makeup of the department is the result of racial discrimination. It's something that might have occurred to Shelton without prodding from Veronica Pace, the aide who issued the order.

While there are superficial similarities between the 1972 situation in Alabama and the 1981 situation in the District, there are also important differences. All the relevant officials involved in the Alabama case were white. White people ran the state and were quite obviously determined to run it for the benefit of white people. In the District, the key officials-the mayor, the city administrator, the fire chief-are black. It takes a good deal of imagining to suppose that these officials are guilty of discriminating in favor of white firefighter applicants.

Indeed, Shelton has not made such a charge. Her contention is that the discriminatory instrument is the entrance exam, on which white applicants tend to score higher than blacks. But for this fact to translate into discrimination, there ought to be some showing-in public hearings or otherwise-that the test is biased in favor of whites in ways that have nothing to do with competency in firefighting or in training for the job.

It would have made more sense if Shelton had ordered the establishment of a cutoff score for success on the entrance exam, with selections to be made randomly from those who passed the exam, as Mayor Barry did in the case of the police department.

The unspoken issue is whether jobs and other privileges are to be awarded on the basis of merit, however determined, or on the basis of racial proportion. A case can be made either way.

You can establish criteria and make appointments based on how well applicants meet those criteria, without regard to race or other considerations. Or you can make the appointments reflect the racial makeup of the city, without regard to test scores or other measures of merit. You can even combine the two, ordering in effect, the establishment of two lists, one white, one black, with 30 percent of the appoint

ments to be made from the top of the white list, 70 percent from the highest-scoring blacks. The same choices hold for promotions to supervisory ranks. One of the two assistant chief positions could be reserved for blacks; two of the five deputy chiefs would be white. The chief would automatically be black, since more than half the population is black.

My suspicion is that those who support Anita Shelton's order would want no part of such a two-track personnel system. If the five best-qualified applicants for the deputy jobs were black, they would insist that the five blacks be appointed.

În other words: merit, where merit works to the advantage of blacks; proportional appointment where merit favors whites.

Isn't it about time we opted for simple fairness? It's legitimate to debate the qualities (intelligence, reliability, physical condition and so on) we want in firefighters, it's legitimate to argue about how best to measure these qualities.

What strikes me as illegitimate, fundamentally unfair and destructive of popular support for affirmative action is to insist on bending the rules and requirements until they produce some arbitrary racial proportion.

[From the Washington Post, Oct. 5, 1981]

A BEAN BALL Aimed at AFFIRMATIVE ACTION

It was a beautiful windup.

(By William Raspberry)

"If a person is denied employment because of race, national origin or sex," the assistant attorney general for civil rights said, “the consequences may well be so serious as to make other civil rights largely academic. For example, access to equali ty of housing opportunity has little practical significance if an individual is discrim nated against in the job market and cannot earn a wage to purchase decent housing. Similarly, a diploma becomes less valuable if it fails to open doors to positions for which the person was trained."

Then came the delivery: a sweeping curve so wide of the plate as to constitute a wild pitch. Or a bean ball. William Bradford Reynolds, the administration official charged with civil rights enforcement, called for an end to affirmative action as generally understood.

"We no longer will insist upon, or in any respect support, the use of quotas or any other numerical statistical formulae designed to provide to non-victims of discrimi nation preferential treatment based on race, sex, national origin or religion."

It was a definition calculated to cut the moral ground from under affirmative action. After all, who (except white men, for whom it is a matter of routine) can countenance preferential treatment for "non-victims of discrimination"?

The remarkable thing is that he seems to understand the problem that led to such concepts as "goals and timetables" for correcting racially skewed hiring pat terns.

"Affirmative action," as originally promulgated by President Lyndon Johnson, involved expanded recruitment of minority applicants. It quickly became apparent. however, that employers who wished to continue to discriminate could do so, even while casting a wider recruitment net. The question arose as to what might properly be done if such an employer met the Johnson requirement by interviewing impres sive numbers of minorities without significantly changing his hiring patterns.

The answer: insist on changed results-or at the very least an explanation of why the results had't changed.

Reynolds, naturally, describes it differently. Some, he said, "were impatient with the progress of minorities and began to urge use of new hiring requirements de signed to achieve immediate numerical equality among the races in the place of work."

He would handle the recalcitrant employer by supporting suits by applicants who could show they had been discriminated against in the personnel office. Lots of luck To begin with, the person who is rejected by a large company usually cannot know who got "his" job, let alone whether his qualifications were equal or better. Under the present rules, the rejected applicant could point to the dearth of minorities or females on the employer's work force as evidence of discrimination. If the complaint were upheld, the employer could be required to do something about the makeup of his staff.

Not under the Reynolds rule. To the extent that "doing something" about evident discrimination involved a requirement to hire members of a discriminated-against

group-without regard to whether the individuals hired had themselves been discriminated against by the employer-it would amount to preferential treatment at the expense of white potential employees; reverse discrimination.

Where an applicant is able to prove that he has been discriminated against, Reynolds would require that he be hired and-another big windup-"seek injunctive relief directing the employer to make future employment decisions on a nondiscriminatory, race-neutral and sex-neutral basis." Then:

"To ensure that the injuction is followed, we will require as part of the remedy that the employer make special efforts to reach minority or female workers through comprehensive use of employment recruitment techniques, such as media advertising and visiting high schools and college campuses (and) regularly file records detailing its recruitment efforts and revealing the number of minority and female applicants being attracted." He would even seek, "where appropriate," percentage recruitment goals.

And again the wide-breaking pitch: Reynolds is talking recruitment, not hiring. This whole elaborate scheme of injunctions and follow-up and record-filing deals only with getting minority applicants.

Victims of discrimination could tell him that it doesn't help a lot to require a biased employer to take your application. It's getting the job that counts.

[From the Washington Star, July 22, 1980]

THE INEQUALITY DOCTRINE

(By James J. Kilpatrick)

If nominations are in order for the worst Supreme Court decision of the term, let me porpose Fullilove vs. Klutznick, decided on July 2. This was the case in which the court held that when it comes to equal access to federal contracts, some are more equal than others.

One of the oldest and most cherished doctrines of our constitutional law is that constitutional rights are individual rights. Another doctrine, not so old but just as precious, is that the Constitution is color-blind. The Fifth Amendment says that "no person" shall be treated unjustly, and the Fourteenth Amendment prohibits discrimination-implicity, racial discrimination-against "any person."

But with its decision in Fullilove, a majority of the court cast these old doctrines to the four winds. The effect is to rule that some persons may be treated unjustly, that some persons may be excluded from federal programs solely because of the color of their skins.

We are talking, of course, of white persons.

These are the facts: Through the Public Works Employment Act of 1977, Congress appropriated $4 billion for projects across the country. The law contained this express provision: "Except to the extent that the Secretary of Commerce determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 percentum of the amount of each grant shall be expressed for minority business enterprises."

The act went on to define acceptable minority group members as "Negroes, Spanish-speaking, Orientals, Indians, Eskimos and Aleuts."

The effect of this racially discriminatory provision was absolutely to bar non-minority contractors from even bidding upon $400 million in federal contracts. The provision precisely echoes the anti-Catholic notices that once were posted in parts of New England: No Irish need apply. The law is a racist law.

But, ah, said the court, the provision is benignly racist. It is remedially racist. It is temporarily and experimentally racist. Nothing in the Constitution prohibits Congress from enacting racially discriminatory laws if the laws are intended to assist minorities who have been socially or economically disadvantaged in the past.

And, besides, $400 million really isn't much. Barring non-minority contractors from this paltry sum is only "an incidental consequence" of the program. The burden imposed upon the barred contractors is "relatively light." And after all, the 1977 appropriation is limited in its scope.

Incredibly, these specious contentions were accepted by such ordinarily sound justices as Burger and Powell. Three members of the court-Stewart, Rehnquist and Stevens-emphatically dissented. Stevens said bluntly that the $400 million setaside "creates monopoly privileges for a class of investors defined solely by racial

characteristics." And he warned that the court was creating a precedent for racial quotes that will come back to haunt the law.

Stewart had the last word: "The equal protection standard of the Constitution has one clear and central meaning-it absolutely prohibits invidious discrimination by government Racial discrimination is by definition invidious discrimination. The rule cannot be any different when the persons injured by a racially biased law are not members of a racial minority. The guarantee of equal protection is universal in its application."

In Stewart's view, the majority had abandoned a long line of decisions attempting to get away from racial classification. Now, the majority had placed and imprimatur "on the creation once again by government of privileges based on birth." Statutes will have to be drawn to define such terms as "Nergo" and "Spanish-speaking." The result will be to foster notions of “racial entitlement”—a system of rewards and ap portionments geared to racial criteria.

Thirteen times in his opinion for the court, Burger remarked upon the "limited or "narrow" scope of the 1977 act. But in upholding this unjust and evil law, he opened broad doors to a return of discrimination by race. Sound law would slam them shut.

[From the Wall Street Journal, Aug. 5, 1981]

SPEAKING UP ON AFFIRMATIVE ACTION

(By Walter Berns)

Not so long ago, in a seminar room at the Federal Executive Institute in Char lottesville, Va., (a sort of "think tank" for high-level civil servants), a number of federal government career executives, mostly strangers to one another, were chatting informally about their management problems. At a certain point, one of them blurted out, no doubt inadvertently, that in his experience the greatest obstacle to intelligent and efficient management was the government's own affirmative action program. At which point the conversation came to an abrupt end, just as if he had said. "Well, my broker is E. F. Hutton, and E. F. Hutton says

I have never had occasion to learn what it is that E. F. Hutton has to say, nor was I present in Charlottesville on the reported occasion-the episode is recounted in a recent issue of the Washington Monthly-but I have no reason to doubt its authen ticity; it has the ring of truth about it.

Every federal executive knows, or ought to know, that the equal employment op portunity program has been corrupted beyond recognition, but it is the rate execu tive who is willing or, as we shall see, is permitted, to talk about this. I mean talk about it publicly; there are many who are willing to say much if they can say it privately or, better yet, anonymously.

I learned this immediately after publishing my first article on this subject in these pages ("The Carter Agreement That Creates Racial Quotas," Feb. 5, 1981 That piece, and a subsequent article in the May issue of Commentary ("Let Me Call You Quotas, Sweetheart") brought me a flood of letters and phone callls from feder al officials (Most of them anonymous) assuring me that the situation was even worse than I had depicted.

I had written critically of the consent decree "negotiated" by the Justice Depart ment on behalf of the Office of Personnel Management, according to which the OPM was required to phase out its practice of hiring by competitive examination and to replace it with a system of hiring by racial quotas. In the course of reciting the details of this devious business, (I called it a sweetheart deal, coming out of a sweetheart suit, because the Justice Department, asking nothing in return, actually gave the plaintiffs more than they publicly dared to ask for) I pointed out that the Justice Department had signed the agreement without informing the agencies that would be most affected by it, and had signed it over the objections of the OPM, the agency principally concerned with Executive Branch hiring.

THE NAME OF THE GAME

The mail brought me a mountain of materials-in-house journals, memoranda and the like-demonstrating that the name of the game now being played in many if not most major federal agencies is not equal employment opportunity, but unequal employment opportunity, otherwise known as affirmative action.

Almost every one of these agencies has its own Office of Civil Rights, staffed, as these ancillary operations usually are, by misfits and discards from offices where

real work has to be done, and they stand ready and eager to hear complaints of discriminatory treatment (on the basis of race, sex, national origin and even age.) Of discrimination there is, I am assured, very little; but of complaints there is a growing avalanche. Some employes apparently do little but file complaints-eight in six months is the individual record in one agency, and 30 in just over a year in another—and superviors can do nothing about it (except, of course, to recommend the transfer of the complainer to the agency's Office of Civil Rights).

To threaten to discharge someone because he spends his time filing complaints is itself a ground for formal complaint. The point has been reached where time spent Filing and otherwise working on complaints is considered time spent on the job, the ob for which one is being paid, and to be asked to forgo the former in favor of the atter justifies the filing of still another complaint.

It takes a lot of time to pursue a complaint. If the complainant is not satisfied with the judgment rendered within his own agency, he is entitled to a hearing efore an examiner in the Equal Employment Opportunity Commission, the agency hat became notorious under the recently retired Eleanor Holmes Norton. After hat, to skip over a few of the stages in this almost infinite process, he can always go to court.

Many do and, in one way or another, they all win because the accused supervisor an only lose. For even if the supervisor manages to escape dismissal or reprimand, n the climate now prevailing he cannot escape the suspicion of deserving dismissal r reprimand. Besides, he can be made the object of a personal damage suit, a pros>ect made much more likely by a recent Supreme Court decison. Having personally o meet the costs of defending such actions, to say nothing of the damages if the laintiffs prevail, is enough to persuade most federal supervisors to tread carefully and keep their mouths shut.

They will want to avoid the fate of-let us call him-Mr. Jones, who, after reviewng the resumes of many applicants and interviewing some of them, offered a posiion to-let us call her-Ms. Smith, who, after being "cleared," as they say (for this vas a sensitive agency), came back to Mr. Jones and informed him that she was expecting a child and could work only on a part-time basis, at which point Mr. lones made the mistake of saying that he was sorry but it was a full-time position. What happened after this can be summed up as follows: (1) she sued him and the gency; (2) the agency, ever eager to avoid the charge of being soft on sex discrimilation (and, besides, it was the taxpayers' money), settled with her and joined in the suit against him; (3) he was formally reprimanded, which, being made a part of his official record, will preclude his ever again being promoted; and (4) he was left to Jay some $1,800 in legal expenses out of his own pocket.

The mail also brought me copies of what might be called Eleanor Holmes Noron's legacy to the federal civil service: a test to end all tests by discrediting testing. When she was still "chair" of the EEOC, Eleanor Norton said that "tests do not tell us very much about who is qualified to do the job," and while this was not true of the former test, the one scrapped by the Justice Department as part of that sweetheart deal, it is emphatically true of the test that replaced it.

The old one, the Professional and Administrative Career Examination (the PACE), was a real test, one that most applicants failed: white as well as black and Hispanic, male as well as female. It is difficult to imagine anyone failing the new one.

On one form, applicants are asked to give their names, addresses and Social Security numbers; on another “supplemental form," to be completed at home and returned "in the enclosed envelope within 15 days," they are asked merely to describe what they "consider to be [their] major accomplishments."(Those without accomplishment or the ability to compose a narrative describing them are free to rely on their friends for assistance, or perhaps some friendly commercial resume-writing service.) One would like to think there is someone in the new administration with the courage to blow the whistle on this business.

LEAVE IT TO HILLSDALE

Unfortunately (and here I am no longer relying on my mail), federal executives are not the only ones to hold their public tongues on affirmative action. So do university presidents-the major universities appoint "vice presidents for compliance" and leave it to little Hillsdale College to take the government to court-and, most surprisingly, so do the executives of the major private corporations.

If they think what is going on within the federal workforce won't eventually affect them, or, if it has already begun to affect them, that they have seen the worst of it, or, even, that the Reagan administration will be able to put an end to it, the should wake up.