Act. As Justice Rehnquist recalled in his brilliant dissent to the Weber decision, such active participants in those deliberations as Emmanuel Celler, chairman of the House Judiciary Committee, and Hubert Humphrey, floor manager for the bill in the Senate, repeatedly insisted that nothing in the legislation would permit any policy save colorblindness. "Contrary to the allegations of some opponents," Senator Humphrey said, "there is nothing in it that will give any power to the [Equal Employment Opportunity] Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial 'quota' ́ or to achieve a certain racial balance. That bugaboo has been brought up a dozen times; but it is nonexistent." Senator Thomas Kuchel added that "Employers and labor organizations could not discriminate in favor of or against a person because of his race, his religion, or his national origin. In such matters. .. the bill now before is color-blind."

us..

it can be argued, as the Civil Rights Commission does, that this is all water long since passed over the dam: that the legislative history of the 1964 legislation has been superseded by the Supreme Court's blessing of race-consciousness in Bakke, of minority set-asides in Fullilove, and of "voluntary" affirmative-action programs that entail reverse discrimination in Weber. But the Court did not require race-consciousness, set-asides, or quotas; it merely said they were not forbidden. Besides, the Court may be persuaded to change its mind. There is ample scope for a President who knows what he thinks and who acts on the basis of his convictions to take specific actions to restore the definition of civil rights to the doctrine of nondiscrimination; to ask Congress to take complementary actions; and to go back to the judiciary with briefs very different from those the Carter administration submitted in the major cases of the previous four years.

But it is not clear that the Reagan administration has any such resolve. One need not dwell overmuch on the President's own confusion, when asked in a December press conference what he thought of the Weber decision. For the reporter explained only that this concerned a "voluntary agreement to conduct affirmative-action programs for training minorities and moving them up in the workforce," and made no mention of quotas or reverse discrimination. Reagan remarked that "if this is something that simply allows the training and the bringing up so there are more opportunities for them, in voluntary agreement between the union and management, I can't see any fault with that. I'm for that." This elicited a cheer from the New York Times, but embarrassed White House aides explained later that "the President and the Department of Justice find this racial

"AFFIRMATIVE ACTION" UNDER REAGAN/25

quota unacceptable," and that Assistant Attorney General Reynolds had indeed spoken for Reagan when he said that the Weber case was "wrongly decided" and that the Justice Department would seek to persuade the Supreme Court to reverse itself in another case. Perhaps one day it will.

But there have been enough other instances of confusion and embarrassment. The worst disarray was to be found at the Equal Employment Opportunity Commission, whose acting chairman told Congress in October that he disapproved of the Labor Department's proposal to reduce the number of federal contractors required to file affirmative-action plans. Indeed, he opposed any lessening of vigilance or narrowing of scope. Yet a few months later, the EEOC's own new general counsel instructed staff attorneys to switch their emphasis from "class-action" lawsuits to individual suits, and to confine the employer's liability in sex-harassment cases to situations where management is itself accused of such harassment rather than as in the current situation-holding the employer responsible for harassment of one employee by another.

In the meantime, the White House had nominated to be the next EEOC chairman a man whose only qualifications were his color (black) and his party affiliation (Republican). Faced with bitter protests from civil-rights groups, and mounting congressional opposition, the administration was forced to withdraw the nomination in February. (The young black attorney subsequently nominated is quite able indeed.)

Turf fights and bickering have also characterized the relationship between the Education and Justice Departments. Secretary Bell made two sensible proposals intended both to reduce the regulatory burden on colleges and universities and to curb harassment of them in the name of "civil rights." He suggested that Title IX, barring sex discrimination by federally-aided schools and colleges, was meant by Congress to cover only the treatment of students, not of employees, an interpretation that has some support in the legislative history and that has been sustained by some lower courts. He also urged the administration to assert that federal aid to college students did not constitute aid to the institutions they attended-an interpretation that would spare about 1,000 colleges and universities from compliance with the major aid-based civil-rights regulations (though not from others, such as Title VII, that apply to all employers). But in both instances, Justice said no, and the White House sided with it.

Common sense and Republican principle did prevail in most school and college desegregation cases. A number of protracted and acrimonious lawsuits involving state colleges and universities were settled through mediation and negotiation (though this administration, like its predecessors, has maintained the schizophrenic policy of requir ing black and white colleges to integrate while

26/COMMENTARY April 1982

spending hundreds of millions of dollars a year to assist "traditionally black" colleges to maintain their distinctive institutional identities). And the executive branch has repeatedly signaled its opposition to mandatory busing at the grade-school level.

Finally, it seemed, federal officials were unafraid to acknowledge what most people had long known: involuntary pupil transfers for the sake of racial balance often do more harm than good. “[I]n many communities where courts have implemented busing plans," Attorney General Smith told the American Law Institute,

resegregation has occurred. In some instances upwardly mobile whites and blacks have merely chosen to leave the urban environment. In other instances, a concern for the quality of the schools their children attend has caused parents to move beyond the reach of busing orders. Other parents have chosen to enroll their children in private schools that they consider better able to provide a quality education. The desertion of our cities' school system has sometimes eliminated any chance of achieving racial balance even if intra-city busing were ordered.

Assistant Attorney General Reynolds advised a Senate subcommittee in mid-October that in future school-segregation cases, the Justice Department would "define the violation precisely and seek to limit the remedy only to those schools in which racial imbalance is the product of intentionally segregative acts of state officials." And even in those instances, while seeking "removal of all state-enforced racial barriers to open access to public schools," the Department would abjure compulsory busing. "We are not going to compel children who don't choose to have an integrated education to have one," Reynolds bluntly explained to a House subcommittee on November 19, and Justice appears to have followed this doctrine, most recently by approving a voluntary desegregation plan for Chicago.

Reynolds did, however, urge Congress, then pondering an array of anti-busing bills and courtlimiting measures, "not to draft the statutory prohibition so broadly that it bans as well other desegregation techniques" such as "involuntary transfers of teachers to break up state-created racially identifiable faculties." That, of course, implies the race-conscious assignment of teachers to schools as a remedy for segregation. And it recalled the one large inconsistency in Reynolds's testimony on employment discrimination the previous month. Then he had suggested that, while the Justice Department would not ask courts to order employers to use anything but "fair and nondiscriminatory selection procedures" in deciding whom to hire, the government would "seek percentage recruitment goals for monitoring purposes.... These recruitment goals will be related to the percentage of minority or female applicants that might be expected to result under a nondis

criminatory employment policy" (emphasis added). If governmental race consciousness is unconstitutional, and if constancy is a virtue, one can infer from Reynolds's willingness to seek statistical recruitment goals, and his openness to race-conscious teacher assignments, that the nation's senior civil-rights enforcer has not entirely clarified the principles that undergird his department's policies and actions.

NFORTUNATELY, this is not uncharac

Uteristic of the Reagan administra

tion's overall handling of civil-rights issues during its first year: a fitful and uneven process, in which the nation's long slide into color-coded policies and group entitlements was somewhat slowed but hardly stopped by an administration that seemed uncertain whether it really wanted to apply the brakes and not altogether sure where to find them.

In one excruciating instance, however, Reagan hit the wrong pedal and hit it hard. This, of course, was his decision to grant tax exemptions to segregated private schools. Although he attempted to recoup a few days later by asking Congress to outlaw such exemptions, and later still by asking the Supreme Court to resolve the matter, much harm was done. The problem is not that many private schools engage in racial discrimination as a matter of policy. The Internal Revenue Service is aware of only about 100 such institutions among more than 20,000 private schools. The problem, rather, is that in this instance the administration indicated its willingness to tolerate overt racial discrimination against individuals by institutions that, while unmistakably private, are nevertheless seeking favorable treatment from Washington. This was no case of group entitlements, of government-mandated equality of result, or of requiring preferential treatment for those previously disadvantaged by their sex or color. It was purely and simply a matter of old-fashioned racism and of what the government's policy ought to be toward those few schools that openly deny admission to black youngsters on account of their color.

No matter that Congress had never written a law specifically stating that such schools could not obtain tax exemptions. The Reagan administration inherited eleven years of court-sanctioned precedent. True, it also inherited a lively dispute about how to enforce the ban-how, for example, to handle a school that professed not to discriminate but that had only white students in attendance and an even livelier debate occasioned by a handful of fundamentalist schools that assert a religious basis for their discriminatory practices. But there was no need to reverse the underlying policy. Worse, the decision to do so resurrected the ghost of Jim Crow. It signaled that perhaps the administration is not really color-blind, an impression reinforced by subsequent documentary

84-280 0-83-51

evidence that the White House had yielded to heavy pressure from Mississippi's Trent Lott and other Southern Congressmen acting on behalf of all-white private schools that had in fact been founded as refuges from public-school desegregation. Although the President had the grace to acknowledge that the whole issue was badly han dled, it did lasting damage to his administration's credibility in the field of civil rights, as well as to the nation's image of private education.

HE administration inflicted another

Twound on itself with clumsy and ir

resolute handling of the delicate voting-rights legislation. Because the right to vote is at once the most elemental of civil rights and the one with the most direct impact on elected officials, attention began to focus on it more than a year before the August 1982 expiration of portions of the existing federal law. But the administration, refrained from taking a clear position on several complex issues when the House of Representatives considered them in the spring and summer of 1981. Not until the House overwhelmingly approved its version in October did the administration begin to get specific, and throughout the autumn the papers carried frequent reports of internecine warfare among Reagan's advisers. This generated considerable suspicion among civil-rights groups, which were also beginning to accuse the Justice Department of yielding to political pressure in its handling of voting-rights cases under the existing law, an allegation that administration officials, of course, vehemently denied.

With exquisitely bad timing, the administration finally chose to state its position on key details of the voting-rights bill to a Senate committee in late January 1982, in the midst of the controversy over private-school tax exemptions. Thus when Senator Kennedy declaimed that the administration faced a "crisis of confidence" in its handling of women and minority rights, and Attorney General Smith responded that "the President doesn't have a discriminatory bone in his body," the hearing room full of civil-rights activists erupted into laughter.

The major issue now in dispute, however, is grave indeed, and deserves solemn attention. The President would have been well-advised to spell out his position on it earlier. The question is whether an action is "discriminatory" only when it can be shown that the actor intended to discriminate, or whether an action with unequal effects or consequences can reasonably be termed "discriminatory" without reference to motivation or intent.

This is a familiar debate in school-segregation and employment-discrimination cases, but it did not enter the domain of voting rights until 1980 when the Supreme Court held that neither the Fifteenth Amendment nor the existing Voting

"AFFIRMATIVE ACTION" UNDER REAGAN/27

Rights Act barred electoral arangements that were adopted without discriminatory intent even if their practical effect was to dilute the black vote in a particular community. At issue in the 1980 case was the constitutionality of the "at large" election that Mobile, Alabama has used to select its city commissioners since 1911. Although the population of Mobile is more than one-third black, no black had ever won election to the commission. Regrettable though this may be, Justice Stewart wrote, the Fifteenth Amendment "imposes but one limitation on the powers of the states. It forbids them to discriminate against Negroes in matters having to do with voting.... [R]acially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation," and the lower court had found that Mobile's black citizens "register and vote without hindrance." The Fifteenth Amendment, Stewart said, "does not entail the right to have Negro candidates elected."

Civil-rights leaders strongly objected to this decision, contending that it is virtually impossible to prove "intent," particularly with respect to local arrangements made decades earlier. They prevailed upon the House of Representatives to amend the Voting Rights Act to make explicit that plaintiffs need only prove discriminatory or unequal effects. (Another 1980 Supreme Court decision held that Congress has the power to adopt such a standard.) But critics of this change, now concentrating their efforts on the Senate, contend that the "effects" standard is tantamount to imposing racial quotas on election outcomes. It could mean, they say, that a community in which blacks comprise 20 percent of the electorate would be violating the law unless 20 percent of those elected to public office were also black. This, they suggest, might lead to federally-imposed "proportional representation" in local and state elections and would, contends Senator Orrin Hatch, “turn this country upside down."

President Reagan appears to agree with that view. In his December 17, 1981 press conference, he said that "the effect rule could lead to the type of thing in which effect could be judged if there was some disproportion in the number of public officials who were elected at any governmental level. You could come down to where all of society had to have an actual quota system." Attorney General Smith testified on January 27, 1982 that "quotas would be the end result" and that "the only ultimate logical result would be proportional representation." A number of distinguished legal scholars have separately arrived at much the same conclusion.

The bill itself provides that "the fact that members of a minority group have not been elected in numbers equal to the group's proportion of the population shall not, in and of itself, constitute

• See Walter Berns, "Voting Rights and Wrongs," in last month's COMMENTARY.

28/COMMENTARY APRIL 1982

a violation." But all parties agree that an "effects" test in the statute would make it far easier for civil-rights attorneys to prove discrimination and that actual election results, rather than simply electoral arrangements and voter participation, would be factors in subsequent litigation.

This is an authentically difficult issue, for the right to vote is basic; vigorous and successful voter participation by minority groups is the surest and least controversial means of enhancing their power and improving their condition; and it is indeed difficult to prove discriminatory intent in cases such as these. Yet it is also the case that to concentrate on "effects" is to move from equality of opportunity to equality of results; from colorblindness to color-consciousness; from nondiscrimination to something resembling quotas.

As it happens, the renewal of the Voting Rights Act is the first significant civil-rights legislation to move through Congress since the mid-70's. It is the first since Bakke, Weber, and Fullilove sensitized the nation to the issues of quotas, setasides, preferential treatment, and reverse discrimination. Certainly it is the first since the political and ideological upheaval of 1980. And it entails a major role reversal. For nearly all civil-rights "advances" of recent years have been made by the federal judiciary in partnership with the executive branch, often to the dismay of the Congress. Here we have a markedly different sequence: a traditional definition of discrimination by the Supreme Court followed by a major effort in the Congress to give voting rights a broader construction and to make their violation far easier to prove.

This, then, is a significant event as well as a fundamental issue, and it is regrettable that the Reagan administration dithered and equivocated for so long. It is a shame that the administration's previous policies and actions were so erratic as to call into question both its opposition to quotas and its devotion to nondiscrimination. And it is unfortunate that the present debate over "intent" and "effects" in connection with the Voting Rights Act binds the two issues so tightly. For if hard cases, as the lawyers say, make bad law, so too

does a pair of unpalatable options often lead to troublesome policy decisions.

HITHER civil rights under Ronald

W Reagan? As with foreign affairs, it

seems to depend more than it should on what day it is, who is in charge of a particular decision, what constituency is raising the loudest ruckus, and which agency is responsible for formulating the alternatives and executing the decision. The most ideological administration in recent history seems not to have its ideas sorted out, almost as if it had not realized that avoiding the Orwellian future so lovingly described by the Civil Rights Commission requires a coherent, alternative vision, a steady hand, personnel of unimpeachable character and competence, and the courage to rebuff all who seek governmental sanction for discriminatory practices, whether their intentions are benevolent or malign.

Even within the President's party, and well before the private-school and voting-rights contretemps, Elizabeth Drew reports that "several Republican politicians in Congress and elsewherethe South included-were troubled by the admin-· istration's treatment of blacks. They saw an administration that, in its policies explicitly covering race and in its cutbacks in social programs, appeared to be systematically removing the props from under blacks." At the same time, one hears denunciations of the administration from toughminded critics on the Right who accuse it of following a pattern of appeasement, muddle-headedness, and business-as-usual.

It is tempting to conclude that an administration that has managed to anger and disappoint its most conservative supporters as well as the most militant of civil-rights activists might be doing something right. But civil rights at home, like human rights abroad, is not a policy domain that takes well to pragmatism, compromise, or vacillation. It demands firm ideas, constancy, and high principle. Else the "angry menagerie" of which George F. Will wrote may grow angrier, and the prospect of reuniting the nation around shared ideals ever more remote.