Powell says, incongruously, "The time cannot come too soon when no governmental decision will be based upon immutable characteristics of pigmentation or origin." But by joining the majority, he said; now would be too soon.

Eighty-four years ago, in a noble dissent against a ruling that segregation was constitutional, Justice John Marshall Harlan insisted that "our Constitution is color-blind." It wasn't then; it isn't now; and because of what the court has done, it may never be. To the civil rights movement-when there was a civil rights movement; before it became just another movement maneuvering for economic redistribution-Harlan was a hero.

Burger concluded his opinion with a bromide from Justice Brandeis: "To stay experimentation in things social and economic is a grave responsibility." But the law the court has condoned just puts a different, "progressive" spin on the familiar evil of conditioning government favors on the basis of race. The chief justice bears grave responsibility for rationalizing, as Congress did not bother to do, congressional “experimentation" with racism.

[From the Washington Post, Mar. 4, 1981]

EQUAL MERIT, EQUAL OPPORTUNITY

(By James Q. Wilson)

No issue better illlustrates the gap between elite and mass opinion than that of affirmative action-the requirement that, in the selection of persons for valued positions, some rule other than equal opportunity for persons of equal merit be applied. Whether called targets, goals, quotas or compensation, the principle is opposed by the great majority of Americans: Indeed, they deny it is a principle. The spokesmen for civil rights and feminist and liberal organizations defend the practice and lament the threat to it posed by President Reagan.

Jimmy Carter's Justice Department, in one of many eleventh-hour regulations adopted by the outgoing administration, signed a consent decree that, in effect, required that any examination used to select persons for the civil service would result in the hiring of minoritiles in the same proportion as those who took the test. The panel on social justice of Carter's Commission for a National Agenda for the Eighties calls for affirmative action plans "that take race into consideration" because a "colorblind remedy" would not remedy past abuses. The object is not equality of opportunity, the panel states in all candor, but an increase in the number of blacks, Hispanics, women and minorities in a particular labor force.

The faculty of arts and sciences of Harvard University has recently debated a proposal to accomplish the same thing in faculty appointments-that is, to find ways of ensuring not simply that all suitable candidtates are vigorously recruited and fairly judged but that the numbers of women and blacks in the faculty will increase.

The political cost of such measures-the rage they induce in citizens who see in such measures little more than political patronage—will, in the long run, be less than their moral cost. What is at stake, I think, is the motive force, the emotional wellsprings, of the long and still-unended struggle for human decency. The abused and oppressed descendants of American slaves did not enlist the attention or arouse the compassion of America by force of arms or superiority of numbers but by dramatizing, in ways that most Americans could no longer ignore, the elementary justice of their claims for the right to vote, to enter public accommodations, to find jobs and to buy houses. When Sen. Everett Dirksen said that civil rights was an idea whose time had come, he meant, I think, that it was an idea whose moral claim could no longer be denied.

I was taught, in school and in college, that there were no grounds for excluding a person from the enjoyment of a fundamental right because of race or religion. The Constitution was, or ought to be, colorblind. I never heard or read a plausible argument against that view; I think there is none. It has that clarity and power that, when evoked by a suitable issue or test case, will sweep all else before it. What can one say in response? Only that some race or religion is inferior, and that argument is not only wrong, it is unintelligible.

Race, religion or sex may still be taken into account in human affairs, but only with respect to those matters where men and women do not have presumptively equal claims. Where no claim of fundamental right is at stake, then the degree to which the accidents of group identity are properly considered should be decided by the purposes of the offices or resources being distributed.

In one sense, affirmative action is as old-and as unobjectionable-as the first ethnically balanced ticket for municipal office got up by the sachems of Tammany Hall. We do not object to an Irishman, an Italian, a Jew and a black being nominated for office because we know that a government does not govern simply, or even chiefly, by virtue of the competence of its governors, but rules as much by the confidence it can inspire in the diverse community over which it claims authority, and that confidence will depend in no small part on how representative of the community its chief officeholders appear to be.

Similarly, a college may decide that its purpose is not simply to find the brightest students and make them still brighter but also to have a competitive athletic program, retain the support of generous alumni and offer to students an opportunity to mingle among young persons of different background, talents and interests. Accordingly, it may admit students by a variety of criteria, including strength, speed, familial connections, race and sex.

But where the institution to which access is sought is to be judged solely, or principally, by the merit of its members and the excellence of its practices, then to admit any standard other than merit, fairly determined, is to deny the reason for the institution's existence. We do not wish to be served by a "representative" collection of brain surgeons, or naval aviators, or physicists, but by the very best such persons we can obtain, provided we are confident that no one has been unfairly excluded from consideration. Our objection to unfair exclusion is not so much that anyone has a right to be a brain surgeon or whatever, but that excluding any group from fair consideration reduces our chances of finding all of the very best surgeons. It is possible, in short, to distinguish between circumstances where representativeness is more or less desirable as a consideration in appointment. But other difficulties remain. One involves the cost: Who is to be denied a position in order to favor another?

Those who bear the costs of affirmative action are rarely those members of the elite who most vigorously defend it; it is, rather, the (typically) less advantaged white male who does not receive the appointment or office, even though he may be personally, blameless for whatever discrimination once prevented blacks or women from receiving it. Affirmative action is often thought of as a form of restitution, but those who pay the restitution are not those responsible for the earlier evil, or even those most able to pay. Allan Bakke did not, so far as we know, oppress blacks, but Justices Brennan and Marshall were prepared to act as if he had.

The other difficulty is graver: the implied racism and sexism of the view that without special privileges women, blacks and other minorities would lose out in any fair competition. What is a “fair competition" is, of course, not easily decided; clearly, a person deprived of educational and economic advantages will be less able to compete than one who has had every such advantage. But a black or a woman of middle-class parents who graduates from a prestigious college with a good record is not disadvantaged in any subsequent competition for position or office; indeed, he or she is greatly advantaged, compared to a poor white with a high school diploma and little else. To suggest that these blacks and women will be "underrepresented" compared with the latter unless they are given privileged access to subsequent careers is to libel the former and enrage the latter.

That presidential commissions, Supreme Court justices and members of an otherwise distinguished faculty are so eager to embrace an unexamined and undifferentiated slogan without offering, or thinking it necessary to offer, reasoned arguments and useful distinctions is a sad measure of the intellectual poverty and moral bankruptcy of contemporary discussion of what was once-not so long ago—a shining crusade on behalf of great principle: equal opportunity for all persons of equal merit.

NOTE: The writer is Shattuck professor of government at Harvard University.

[From the New York Times, Jan. 10, 1982]

AN AFFIRMATIVE LOOK AT HIRING QUOTAS

(By Barbara R. Bergmann)

Is affirmative action a burden on American business? Bradford Reynolds, the head of the Justice Department's Civil Rights Division, apparently thinks so. At a press conference recently Mr. Reynolds said that he hoped to get the Supreme Court to reverse the action it took in the Weber case, in which the Court upheld the voluntary use by companies of numerical goals in advancing minority candidates.

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Without a reversal in that case, in which steelworker Brian F. Weber, a white, unsuccessfully argued that a special training program for blacks discriminated against whites, there is little prospect of an end to use of compulsary hiring goals as a judicially ordered remedy for proven discrimination.

One of the reporters who heard Reynold's remarks called around to get some reaction from private attorneys who might be expected to support the Justice Department's campaign against affirmative action. He apparently found none.

An attorney who usually represents business concerns accused of race and sex discrimination told the reporter that such a move, in the unlikely event it succceeded, would be counter to corporate interests. It would seem that at least part of the American business community thinks that the setting of numerical goals for employment and promotion by race and by sex is useful and proper.

One reason for business to favor affirmative action is fairly easy to understand, since it concerns short-run pocketbook interests. As long as the antidiscrimination laws remain on the books, companies will want to position themselves so that they are less vulnerable to judgments for expensive class-action claims of discrimination. Usually it is the upper management of a company that is most acutely aware of the possibility of such suits. It needs an effective way to instruct middle and lower management to change longstanding habits controlling the choice of people to hire, train and promote. Vaguely worded directives to hire and promote in a nondiscriminatory way seldom lead to change.

Many of today's executives have been taught in business school to "go by the numbers." They are used to making and following numerical plans in the fields of production, sales and finance. Extending this to hiring and promotion seems perfectly natural.

Quite apart from a desire to reduce vulnerability to lawsuits, at least some companies see progress against race and sex discrimination through affirmative action as not in conflict with their long-run economic interest.

The usual case made against affirmative action by its opponents assumes that companies will be forced to hire and promote unqualified people in order to meet numerical goals. The likelihood of this is reduced if the goals are set and implemented in a reasonable manner. Furthermore there are circumstances where hiring to goals can be expected to improve the average quality of a company's employees rather than the reverse.

White males now account for less than 50 percent of the United States labor force. The other 50 percent contains good candidates for many of the work groups currently monopolized by white males.

What makes it difficult for business to integrate these situations is that some of the white males currently employed may feel shamed and degraded at having to interact with a black or a woman as an equal, or at having to take orders from such a person. Behavior based on such feelings can interfere with the learning opportunities of a new employee of the "wrong" race or sex and can lower the productivity of the entire establishment. The use of legally mandated goals helps employers to deal with internal opposition more effectively.

Opponents of affirmative action emphasize that such procedures may cause unfairness to white males who are passed over despite being the best qualified. That this may occur under affirmative action cannot be doubted. On the other hand, in the absence of affirmative action, women and blacks are routinely passed over in favor of less qualified white men, as attested to by mountains of evidence presented in hundreds of Federal courtrooms.

Whether we welcome or reject affirmative action depends on a judgment about which set of circumstances will hurt our consciences and our economy the least. The Supreme Court in the Weber case has said essentially that in passing the civil rights act, we have chosen to give priority to eliminating injustices against blacks and women.

Having said this, it must be remarked that the conscience of business people has never been very tender cluded candidates of superior talents, when it has come to the rights of excluded candidates of superior talents. Favoritism and nepotism are common and accepted in American business, particularly for the best jobs.

While they may not be sticklers for exact justice, many American business people believe that the stability and prosperity of business in the long run will be improved by the improvement of employment opportunities for blacks and for women.

Taking this longer-run perspective, J. Richard Munro, the president of Time Inc., recently suggested that American business work harder on voluntary affirmative action, now that government activity has slowed down. Executives like Mr. Munro understand that exclusion of blacks from many jobs has a lot to do with the perpetuation of high crime rates, which degrade the business environment. They know

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.

In 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 equality of housing opportunity has little practical significance if an individual is discriminated 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 discrimination 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 patterns.

"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 impressive 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 designed 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