784 The University of Chicago Law Review [46:775 paired racially identifiable schools, redrafted attendance lines, or mandated busing. In each instance, the fulcrum of judicial leverage was an existing governmental race line, which the particular judicial order sought to remove." The object was thus to disestablish particular, existing uses of race, not to establish new ones. Indeed, decrees that would subsequently presume to require race-conscious decisions for any other purpose, for example, to maintain "proportions" or "balances" by race designation, were swiftly reversed." This second rite of passage was accompanied by consistent developments in the 1960s in the Supreme Court and then, encouragingly, in Congress and the executive branch as well. For the Court's part, long dormant Reconstruction statutes were revived and given a reinvigorated and uniformly race-blind application. An early act of Congress had provided that all citizens shall have "the same" right as white citizens to acquire and to hold real and personal property." It was applied to disallow race-based refusals to deal in real estate, even in the private sector." A related Reconstruction act provided that all persons shall have "the same" right as white citizens to make contracts." It was similarly read to disallow race-based refusals to contract." In 1976, when a commercial employer treated an employee worse than another because of his race (this time the less favored employee was white and the more favored black), the Court held to the same view: "[T]he Act was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.' 9731 Similarly, in adopting the omnibus Civil Rights Act of 1964, Congress appeared to regard the matter likewise: the race line was to be removed altogether. Title VI of that Act, applicable to all See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971). See also Dayton Bd. of Educ. v. Brinkman, 99 S. Ct. 2971 (1979); Columbus Bd. of Educ. v. Penick, 99 S. Ct. 2941 (1979). "E.g., Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976). See also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977); Milliken v. Bradley, 418 U.S. 717 (1974); Keyes v. School Dist. No. 1, 413 U.S. 189 (1973). "Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27 (current version at 42 U.S.C. § 1982 (1976)). "Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). "Act of May 31, 1870, ch. 114, § 16, 16 Stat. 144 (current version at 42 U.S.C. § 1981 (1976)). "Runyon v. McCrary, 427 U.S. 160 (1976); Johnson v. Railway Express Agency, 421 U.S. 454, 459-60 (1975) (dictum). " McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295 (1976) (emphasis added). But cf. id. at 280 n.8 ("Santa Fe disclaims that the actions challenged here were any part of an affirmative action program . . . and we emphasize that we do not consider here the permissibility of such a program, whether judicially required or otherwise prompted."). 1979] Rites of Passage 785 programs receiving federal financial assistance, states: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."" And Title VII, applicable to all large-scale employers, provides: It shall be an unlawful employment practice for an employer 33 (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . . Addressing the meaning of this provision in 1971, in the first case to come before it for review, the Court, in a unanimous opinion by Chief Justice Burger, said that "[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.”“ Conformably, the executive branch of the national government appeared to understand matters in the same fashion. For in cutting and revising an Executive Order that regulated enterprises doing business with the federal government, the President framed the Order itself precisely and exclusively in terms of strict nondiscrimination. Federal contractors were advised to review their practices to determine whether, if even by neglect, racial discrimination figured in their businesses; if it did, the contractors would have to take affirmative action-to eliminate that racial discrimination and to insure that no racial favoritism was built into their operations. Thus, the revised Executive Order required the insertion of the following provision in most government contracts: "Title VI of the Civil Rights Act of 1964, § 601, 42 U.S.C. § 2000d (1976) (emphasis added). Compare the several differing interpretations provided in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). "Title VII of the Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1) (1976) (emphasis added). This, of course, is simply what Congress said. Compare United Steelworkers v. Weber, 99 S. Ct. 2721, 2724-30 (1979) (Brennan, J.) with id. at 2734-35 (Burger, C.J., dissenting) and id. at 2736-53 (Rehnquist, J., dissenting). "Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (emphasis added). And reiterating that view in 1976, the Court declared: "We . . . hold today that Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes...." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976) (emphasis added). But see United Steelworkers v. Weber, 99 S. Ct. 2721 (1979). 786 The University of Chicago Law Review [46:775 The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex or national origin." In light of these several developments, it should have come as no surprise that in 1974, in the first case that came before the Supreme Court involving race lines deliberately drawn to place a racial disadvantage on white applicants-drawn out of fear that if no such disadvantage were imposed upon them, then fewer nonwhite individuals might be admitted than the faculty of a state university preferred to have—the one Justice of the Supreme Court who addressed the merits of the case said this: A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. . . The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. . . So far as race is concerned, any state-sponsored preference to one race over another. . . is in my view "invidious" and violative of the Equal Protection Clause." Justice Douglas then directly addressed the law school's contention that the race-preferential admission of some students would be a salutary way of producing a larger complement of such racially identifiable professionals more likely to practice in racially identifiable communities. He rejected the propriety of the very idea underlying that contention: "The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. ..That is the point at the heart of all our school desegregation cases."" And neither was Justice Douglas persuaded that the deliberate selection of Exec. Order No. 11246, 202, 3 C.F.R. 339, 340-41 (1964-1965 Compilation), as amended by Exec. Order No. 11375, 3 C.F.R. 684, 685-86 (1966-1970 Compilation), reprinted in 42 U.S.C. 2000e, at 1233 (1976) (emphasis added). This, too, is simply what the President said. Compare id. with 42 Op. Att'y Gen. 405 (1969). * DeFunis v. Odegaard, 416 U.S. 312, 337, 342, 343-44 (1974) (Douglas, J., dissenting) (emphasis added). " Id. at 342-43 (Douglas, J., dissenting). 1979]. Rites of Passage 787 students by race, to produce a given cohort of racially identified students known to have been admitted with less excellent qualifications than the balance of the students, was by any means the gesture of generosity it purported to be. A segregated admissions process that seeks certain minimum proportions of racial cohorts, he said, “creates suggestions of stigma and caste no less than a segregated classroom, and in the end it may produce that result despite its contrary intentions."" The refusal to permit rationing of opportunity according to the fortuity of racial proportion was not a novelty invented by Justice Douglas. In 1949, the Supreme Court had reviewed a case arising in " Id. at 343 (Douglas, J., dissenting). See also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298 (1978) (Powell, J.): “[P]referential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.” Not all race-specific “preferential" government-utilized plans involve separate and lower standards of selection. Some (as illustrated by the Bakke case itself) plainly do. And these plans unquestionably impose a racial stigma on those who benefit by them, for reasons that cannot be avoided by the beneficiaries. This may be a cost that others would regard as utterly trivial when weighed against the benefits and overall good of such arrangements. Others may also say that this is a matter they do not wish to judge—that whether there is a stigmatizing effect and whether it renders such a plan undesirable is emphatically not for them to say. Such persons might feel that it is, rather, a matter to be determined by those eligible for the plan-and that these persons will show, by their participation, that they overwhelmingly regard the very material benefits, with whatever stigma may attach, to be vastly superior to the status quo ante. But the stigma is spread to others identified only by race, who are helpless to avoid it. Indeed, it will have been the government itself that fastened the stigma upon them, a new badge of implied inferiority, assigned as an incident of governmental noblesse oblige. Explicit in state, local, or federal plans using separate and lower standards by race is a statement by government that certain persons identified by race are in fact being placed in positions they may be presumed not likely to hold but for their race (because they are presumed to be unable to meet standards the government itself otherwise requires to be met). The message from government is written very large when these plans proliferate: a double (and softer) standard for admission, a double (and softer) standard for hiring, a double (and softer) standard for promotion, a double (and softer) standard for competitive bidding, and so on. Without question, this is a systematic racial tagging by government—a communication to others that the race of the individual they deal with bespeaks a race-related probability, created solely by the government itself, of lesser qualification than others holding equivalent positions. With respect to some such persons, the supposition will be true, according to the government's own usual standards of “qualifications." With respect to others of the same race, the proposition will be false; but outsiders dealing with them will not know it is false unless "affirmative action” beneficiaries are specially to be labelled as such-surely an unthinkable practice and will, solely because of the government's own practice, be encouraged to subject them to a racial stereotype. In brief, the government's entrenched practices impose a label of inferior excellence that the government itself declares to be true of some persons; simultaneously, the government fastens a racial stereotype on all other persons of the same race holding similar positions, irrespective of their actual excellence. Whether this is unconstitutional remains to be seen. That it is not "stigmatizing" seems implausible. 788 The University of Chicago Law Review [46:775 California where public policy had already forbidden racial discrim- court granted an injunction to forbid picketing meant to induce Even when the sole use of race by government was to suggest that race is at least an important political datum-the government itself not presuming to say of what kind of significance-the Supreme Court dissallowed the mere encouragement to be “race conscious." A case that expresses that view as well as any other case was Anderson v. Martin," decided succinctly and unanimously in 1964." The case involved a state statute that facilitated voter information respecting the racial identification of each candidate for local public office-by designating each candidate's race on each ballot, accurately and truthfully. Voters who might think that datum germane (as a white person to vote white, a black to vote black, a white to vote black, a black to vote white-as each might see a different, but steadfast significance in the idea) could hardly be kept from using it even in the absence of such specific ballot information. As the ballot designation by state law was nonetheless Hughes v. Superior Court, 339 U.S. 460 (1950). The earlier California case establishing the policy of nondiscrimination was James v. Marinship Corp., 25 Cal. 2d 721, 155 P.2d 329 (1944), recently extended and applied in Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 480-85, 595 P.2d 592, 606-09, 156 Cal. Rptr. 14, 28-31 (1979). Hughes v. Superior Court, 32 Cal. 2d 850, 856, 198 P.2d 885, 889 (1948), aff'd, 339 U.S. 460 (1950). " Id. " Id. " Hughes v. Superior Court, 339 U.S. 460 (1960). "375 U.S. 399 (1964). • Compare id. with United Jewish Orgs. v. Carey, 430 U.S. 144 (1977) (redistricting to favor Hispanics held permissible). 84-280 0-83-8 |