No longer could Martin Luther King say that "Negroes are almost entirely a working people [whose] needs are identical with labor's needs.” These court orders pit black worker against white worker in a matter that is vital to their lives. And by abrogating the principle of seniority, they strike at the heart of trade unionism, which is why the teachers' union is appealing the case to the Supreme Court.

It bears repeating, however, that the case being appealed is, formally at least, a school segregation case and not an employment discrimination case, which probably explains why Title VII of the 1964 Civil Rights Act does not figure in it. If the Boston Teachers Union were also to file a Title VII action against the Boston school committee and on behalf of the white teachers, who are the aggrieved parties here, the discrimination issue could be squarely faced. If the case were to reach the Supreme Court, the union might even win it. There is, after all, a section of Title VII that permits employers to apply different "conditions of employment pursuant to a bona fide seniority or merit system."

A few weeks ago, in a case involving this proviison, the Supreme Court upheld a seniority system against the charge that, while racially neutral in its terms, it had a discriminatory impact. That fact, the Court ruled 5-4, is not alone sufficient to invalidate the system. So, as I said, the union might yet win on this issue. Statutory language ought to carry some weight with our judges.

NOTE: Mr. Berns is a resident scholar at the American Enterprise Institute.

[From the Washington Post, May 4, 1982]

OUT OF THE AFFIRMATIVE ACTION QUAGMIRE

(By Diane Ravitch)

At present, it seems that there is nothing new to be added to the onging controversy about affirmative action. So much has been written by now that the issue itself seems to have grown stale, mired in tired rhetoric and unthinking assertion. On one side are the advocates of women, blacks, Hispanics, gays the handicapped, veterans and others who have or seek protected status, and on the other are those who find special treatment of any kind objectionable. The former insist that their rights will be trampled if affirmative action ends, while their critics complain that preferences based on such criteria as race, sex and national origin turn the meaning and purpose of the Civil Rights Act upside down. By now, we have many times heard the arguments from both sides, and there seems to be no way out of the dilemma, other than through the marshalling of political power to impose the views of one side on the other.

Yet, the quagmire that this aspect of social policy is stuck in may be an artifact of the language of the Civil Rights Act. The deadlock, I suggest, results from the manner in which civil rights protections are written, not from any lack of clarity about their purpose. Anyone who has read the testimony before Congress in 1963 and '64, and the speeches of the sponsors of the Civil Rights Act, knows that the intent of Congress was to end invidious discrimination, whatever is source.

In passing the Civil Rights Act of 1964, Congress specified that certain kinds of discrimination would henceforth be illegal. In the years since then, groups that wish to have the special protection of the law have clamored to be added to the official list of protected minorities. In practice, this has meant competition for preferences, even for quotas, in hiring and in admission to competitive schools.

So long as we stick to the original practice of listing those groups that may not be discriminated against, those who are outside the mantle of civil rights protection will continue to seek protected status. The possibilities for the future were suggested in a report of the United States Commission on Civil Rights last year, which held out hope that white European ethnic groups might eventually receive the same federal protection now extended to blacks, Hispanics, women, American Indians and Asian-Americans. Despite the efforts of the present administration to undo affirmative action, there is already a substantial body of judicial opinion directing the allocation of jobs and status by race, sex, ethnicity and other such criteria.

There is a sensible and relatively painless way out of this deadlock. In accordance with our civil rights laws, every institution should adopt a straightforward declaration of nondiscrimination without naming the specific groups that will not be discriminated against. Every university, government agency, private employer and public institution might adopt as its policy the following statement: "We discriminate only in preferring those with the professional competence to perform the job for which they are hired. On no other grounds do we discriminate."

Each institution should clearly state the grounds on which it does discriminate. For exmple, a women's college might say in its catalogue, "In the selection of students, we admit only women, because we are a college historically committed to the higher education of women; furthermore, we prefer to admit students who have demonstrated the academic capacity to benefit by the kind of education that we offer. On no other grounds do we discriminate."

Would it not be eminently reasonable to reverse the customary language in this manner, so that each institution acknowledges the grounds on which it does discriminate and foreswears every other form of discrimination? This would remove no present rights: if a woman or black or gay or Hispanic or handicapped person failed to gain a job or promotion for which he or she was competent, then the courts would still be available for redress. Indeed, the protection against discrimination would be extended even more fully to cover not just those on a politically determined list of protected minorities, but also people who are discriminated against because of their height, weight, age, facial characteristics, or any other quality other than their competence to do the job.

The present semantic stalemate has become the province of vested interest groups, who have no interest in changing the rhetoric of preferences and quotas and affirmative action. Yet, in that direction, unless we change course, lies a society in which all jobs, promotions and admissions to competitive institutions will be allocated on the grounds of race sex religion and national origin, rather than without regard to such factors. Fresh thinking by Congress is needed now to restore the original equalitarian goals of the Civil Rights Act.

NOTE: The writer is an associate professor of education and history at Teachers College, Columbia University.

[From the Wall Street Journal, Nov. 28, 1980]

CHALLENGE TO AFFIRMATIVE ACTION

(By James F. Blumstein)

Everybody complains about the peasoup fog of the government's affirmative action requirements, but until recently nobody has done much about it.

Under the program federal regulations threaten to cut off or cut out government contracts for companies that don't actively strive to have a work force with racial balance that precisely mirrors the racial composition of the relevant labor pool. While there have been a few challenges to the government's procrustean enforcement of the program, only Firestone Tire & Rubber Co. has recently challenged the validity of the entire program itself. A hearing in the case has been set for Monday in U.S. District Court in Beaumont, Texas.

It is difficult to overestimate the potential importance of the core separation of powers issues raised in the Firestone litigation.

Typically, attention has focused on the details of conforming to the program. A government contractor must determine the racial composition of the relevant labor pool and compare that ratio to the racial balance of its own work force. If there is a difference, the employer must declare "underutilization" and take "affirmative action" to "overcome" that imbalance. No finding of racial discrimination is necessary.

FINE POINTS

Nice technical questions arise, such as how to define the appropriate labor pool, or how to define various job categories. In the Firestone situation, the technical issue is how to determine whether there is "underutilization" of minorities within the employer's work force. The government's position is that an employer must declare underutilization and adopt an affirmative action plan whenever there is any difference at all between the percentage of women or minorities in the available labor pool and the percentage of women or minorities in the employer's labor force. Firestone urges a more flexible approach than the government's absolute parity concept.

Although these technical issues are significant, emphasis on the details of implementation, has shoved into the background what could well be the Achilles heel of the entire affirmative action program-namely, its origin.

The entire bureaucratic enforcement structure rests not on legislation by Congress, but on an Executive Order issued unilaterally by President Johnson in 1965

after Congress, in passing the 1964 Civil Rights Act, refused to permit use of the federal funds cutoff technique to combat discriminatory employment practices.

Each President has the constitutional duty to determine the proper balance of power between the legislative and executive branches. Since the affirmative action program is completely a product of executive action, the new administration is in a position to annul the program with a stroke of the executive pen. Then it would be up to Congress to take the initiative, if it chose, to establish such affirmative action policies.

Title VI of the 1964 Civil Rights Act bars race discrimination in all federally funded programs; federal agencies are authorized to cut off the flow of federal funds to noncomplying recipients. However, Title VI has several limitations that undermine the validity of the Executive Order program.

First, funds can be withdrawn only from specific programs guilty of non-compliance. In the Firestone case, the government's charge is that Firestone mistakenly refused to declare underutilization at a single plant. The debarment from Federal contracts was for all Firestone's contract work with the entire federal government. Second, Title VI is explicitly inapplicable to “any employment practice of any employer." Employment discrimination under the statute is exclusively covered under Title VII. Nothing in Title VII authorizes the use of the funds cutoff remedy.

The numerical orientation of the Executive Order program may also conflict with Title VII, which mandates non-discrimination, not affirmative action. In the "Weber" case last year, the Supreme Court upheld an agreement between Kaiser Aluminum & Chemical Corp. and the United Steelworkers that called for an explicitly race-conscious affirmative action plan to eliminate racial imbalances in certain portions of the work force. The court held that private, voluntary affirmative action programs were legal under Title VII; the government could not require affirmative action, although the statute permits it.

The mandatory provisions of the Executive Order program are hardly voluntary, since the government requires its contractors to overcome underutilization (ie., racial imbalance). The Weber case, by drawing the require/permit distinction, suggests that mandatory affirmative action imposed by government is inconsistent with Title VII.

Not only does the Executive Order program seem to conflict with the 1964 Civil Rights Act, it is also questionable whether there is an adequate source of either constitutional or statutory authority for the program. Under the Constitution, Congress makes the laws and the President enforces them. As Justice Black noted in the 1952 steel seizure case, a presidential order must "direct that a congressional policy be executed in a manner prescribed by Congress"; it cannot direct "that a presidential policy be executed in a manner prescribed by the President."

No explicit constitutional provision authorizes presidential action of the type taken in the affirmative action Executive Order. Enforcement of a nondiscrimination rule would be compatible with the constitutional prohibition against governmental complicity with private racial discrimination. The Executive Order, however, goes considerably beyond enforcement of a norm against purposeful discrimination The pending Firestone case is a good example. Firestone was found in violation of the Executive Order not because of any discriminatory conduct on its part but be cause it disagrees with the enforcement agency about how to measure whether there is "underutilization" of certain categories of workers.

At least since 1976, the Supreme Court has ruled that no constitutional claim of racial discrimination can be established without proof of discriminatory intent No such intent was alleged or proved in the Firestone situation. Because the Executive Order program does not require a finding of discriminatory intent or purpose, it cannot be designed to enforce a constitutional mandate.

If no convincing constitutional basis for justifying the Executive Order exists, a statutory source of authority must be identified. On the basis of the statutory procurement power, the District of Columbia Court of Appeals justified President Carter's wage and price control program under which federal contractors were required to certify their compliance with the voluntary wage and price guidelines. In upholding the President's order, the court said that any Executive Order based on procurement powers must accord with the values of "economy" and "efficiency" regarding government contracts. Since the objective of the program was to contain procurement costs, the majority held there was a "sufficiently close nexus" between the criteria of efficiency and economy and the wage and price control program.

In upholding the Philadelphia Plan of affirmative action hiring in 1971, the Third Circuit Court of Appeals found that the plan was not mainly designed to achieve equal rights but rather to increase the labor pool available for government contract work. As the program has evolved since 1971, however, it is questionable whether

the Third Circuit's characterization is still accurate, especially in light of the Firestone litigation.

HIGH COURT DUBIOUS

It is very dubious that the affirmative action program is primarily designed or enforced to achieve economy or efficiency in governmental contract procurement. Indeed, in a different context the Supreme Court in 1979 held that the Executive Order program is not "authorized by law" and expressed doubt about the statutory source of authority for the program.

It thus seems very possible that the affirmative action Executive Order program lacks a source of either constitutional or statutory authority, and in addition seems to conflict with the 1964 Civil Rights Act. Because there is no allegation of discrimination, the Firestone case provides an excellent vehicle for addressing the basic issues of executive authority.

It would be disappointing if the court should decline to deal directly with the fundamental separation of powers issues in the Firestone litigation. Regardless of how the court rules-whether or not it ducks the core issues and relies on a technical implementation matter-the new administration has an obligation to reconsider the propriety of executive action in an area in which the exercise of executive authority rests on such a shaky foundation.

NOTE: Mr. Blumstein is a professor of law at Vanderbilt University School of Law.

[From the Boston Herald American, June 29, 1980]

AFFIRMATIVE ACTION: ARE THE BENEFICIARIES REALLY THE VICTIMS?

(By Midge Decter)

Despite the fact that the policy known euphemistically as "affirmative action" is held in disfavor by an overriding majority of the American people, it seems safe to say that racial and sexual quotas are solidly established in our midst and will remain so for the foreseeable future. During that time, it is unlikely that any policy Iwill have done more than affirmative action to unsettle the series of delicate balances-between democracy and republic, individuals and pluralities, private rights and public necessities-it was once the unique political talent of this society to have struck.

Much has already been observed about the harmful impact of quotas on such institutions as the schools and universities, the political parties, the agencies of government, and the economy. Moreover, that quotas are themselves indisputably unjust has been frequently and forcefully pointed out. One issue, however, has so far not been paid the attention it deserves. That is the question of the impact of quotas on those who are their intended beneficiaries. How does preferential treatment affect those who are, in actuality or even only potentially, its recipients? Beyond this, how does it affect the feelings of others toward them? And finally, how does it affect the attitude of everyone toward the society he is living in?

The two main groups at whose behest quotas have been instituted are, of course, blacks and women. Their linkage under the common heading of disadvantaged minorities is, literally, an incongruous one. For historical reasons that remain to be properly explicated, however, the "causes" of women and blacks came to be treated as one. In examining the issue of public attitude, we are consequently bound to find the groups, with certain inevitable variations, in an ever more similar condition.

It would be impossible to test an idea about that condition with any degree of scientific authority, but a good deal of so-called soft evidence is all around us. And what this evidence points to is that recipients of preferential treatment tend to suffer from a serious decline in self-respect. The advantages gained appear to be bringing little sense of private or public satisfaction, but only more strident assertions of grievances yet to be addressed. For an outsider to remark upon any improvement is for him to call down upon his head heated accusations of heartlessness and bigotry. The tone is not of people impatient for more but rather of people who have discovered that their sought-for special privileges, being unearned and therefore unmerited, are doing them no good.

It is an open secret in this country, alluded to only in whispers but commonly recognized alld the same, that students admitted to colleges and professional schools by virtue of helping to fulfill a racial or sexual quota tend quickly to feel defeated there. Even the qualified, insofar as they know themselves to have won a competi

tion through the added benefits of a special allowance, sooner or later undego crises of self-doubt.

How could all this be otherwise? At the heart of affirmative action, no matter how the policy is defined, lies the simple proposition that the individuals being hired or admitted or promoted would not in their own individual right be so. No matter how passionately affirmative action is sought and defended by its client groups, this underlying proposition is one that must breed painful resentment.

But if these are the inevitable consequences for the beneficiaries, what can we imagine about the emotions of the people among whom they work and live? In the daylight world, Americans have undergone a massive diminution of racial prejudices. In the dark night of the soul, however, affirmative action itself is creating a new wave of racism and sexism. The new wave differs from the earlier sort in that it is not based on fear, hatred, or guilt but on contempt. Whatever people think about the justice or unjustice of making special allowances, what they feel is that the objects of these allowances are somehow inferior.

Before long, the irony will have escaped no one: by means of a policy intended to short-cut past discriminatory practice, the American populace will have become subject to a kind of prejudice which, if more subtle, is also by the same token infinitely more difficult to overcome. This prejudice, moreover, is no unforeseen accident. Affirmative action is in its very inception based on a racist (or sexist) idea, which is that blacks (or women), given the removal of all barriers to opportunity, could not every fairly compete.

Affirmative action is not simply a legal or administrative arrangement; it is a frame of mind—a frame of mind best characterized by the term "double standard.” A lowering of standards follows naturally and seeps into the whole fabric of the culture.

The assault on the old idea that in America equality means equal opportunity has an impact on attitudes far wider than merely those toward race and sex. The message being hammered home is, to put it bluntly, that society is a racket. There are no such things as standards of performance. There is no such thing as achievement Above all, there is no such thing as justice. To live in accordance with the belief that standards of achievement or justice have a reality, that they matter, is to be a sucker.

A society cannot long remain vigorous and productive when so massive a cynicism about its principal beliefs is permitted to spread through the underground consciousness.

NOTE: Midge Decter, Senior Editor of Basic Books, Inc., is the author of "Liberal Parents, Radical Children" and several other works. This article is excerpted from the current issue of "Policy Review," the quarterly journal of the American Heritage Foundation in Washington.

[From the Wall Street Journal, Apr 17, 1981]

TOWARD A NEW POLICY ON EQUALITY

(By Terry Eastland)

Consider the following proposition: What keeps blacks and minorities from achiev ing equality is racism, and the way to eliminate racism is through the adoption of affirmative action "goals," or quotas.

The foregoing is not merely the belief of liberals and civil rights leaders. It also fairly describes the government's implicit policy on equality, a policy developed since passage of the Civil Rights Act of 1964. Whether the branch of government involved has been the Executive, the Legislative or the Judicial, each has understood racism as the fundamental problem for America's minorities, and each branch, in its own way, has taught the American public to believe that affirmative action will eradicate racism and bring about equality.

President Reagan has taken issue with affirmative action of this kind, and it seems clear that he will take steps that will put at least his own Executive Branch out of the quota business.

The administration is trying to modify the Carter-initiated consent decree under which blacks and Hispanics effectively would be guaranteed federal jobs in proportion to the number of each group being tested for the jobs. And if Mr. Reagan follows the recently announced recommendation of the transition team studying the Equal Employment Opportunity Commission, that agency will change. No longer will it pressure employers to adopt numerical quota schemes simply because their