386 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 14:373 dissent, as Professor Philip B. Kurland of the University of Chicago School of Law put it, is simply unanswerable in terms of statutory construction and congressional intent." To a very considerable degree it was not the Rehnquist dissent, but that by Mr. Chief Justice Burger, which comes to the heart of the matter if one wishes to abide by the imperatives of the governmental framework under which we live. For he points to the salient fact that: The Court reaches a result I would be inclined to vote for were I a member of Congress considering a proposed amendment of Title VII. I cannot join the Court's judgment, however, because it is contrary to the explicit language of the statute and arrived at by means wholly incompatible with long-established principles of separation of powers. Under the guise of statutory "construction," the Court effectively rewrites Title VII to achieve what it regards as a desirable result. It "amends" the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do.55 There is no response to the Chief Justice's admonition-for it assesses accurately the obligations accruing under our system's separation of powers and the attendant roles of the three branches. In brief, and calling a spade a spade, the Court legislated—a function in this instance demonstrably reserved to the legislature (Congress). The elusive line between "judging" and "legislating" is, to repeat, of course a monumentally difficult one to draw in a great many instances, and it represents the basic issue of controversy in the exercise of judicial power. But there is no controversy in the present instance: Congress spoke and wrote with uncharacteristic clarity! Nonetheless, a majority of five Supreme Court Justices, given the nature of the public policy issue at hand, would neither listen nor read accurately. ง. A concluding word on the desirability of "reverse discrimination" per se. I hope I have demonstrated what I regard as its tenets; what 54. Letter to author, July 7, 1979. 55.99 S. Ct. at 2734 (Burger, C.J., dissenting) (emphasis in original). 1980] "REVERSE DISCRIMINATION" 387 it is, and what it is not. Whether or not one agrees with that position, and regardless of how one perceives or reads the inherent statutory and constitutional issues, what of the merits of the proposition of racial, or sexual, or religious, or nationality quotas, or by whatever other noun they may be perfumed? It is not easy to do for me-as my students and colleagues would testify-but I will endeavor to be brief: I shall call as my star witness upon someone whose credentials on the libertarian front are indisputably impeccable, Mr. Justice William O. Douglas. In his dissenting opinion in De Funis v. Odegaard, after finding that Marco De Funis had been rejected by the University of Washington School of Law "solely on account of his race," the justice lectured at length on that classification, styling it at the outset as introducing "a capricious and irrelevant factor working an invidious discrimination,"" and insisting that the Constitution and the laws of our land demand that each application for admission must be considered in a "racially neutral way," a phrase he italicized and one, incidentally, quoted with approval by Mr. Justice Powell in Bakke." "Minorities in our midst who are to serve actively in our public affairs," he went on, “should be chosen on talent and character alone, not on cultural orientation or leanings." Warmly he cautioned that [t]here is no constitutional right for any race to be preferred. A De Funis 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. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner." . . . So far as race is concerned, any state sponsored preference of one race over another in that competition is in my view "invidious" and violative of the Equal Protection Clause."2 Mr. Justice Douglas concluded on a note that, for me, hits the 56. 416 U.S. at 333 (Douglas, J., dissenting). 57. Id. 58. Id. at 334. 59. 438 U.S. at 298. 60. 416 U.S. at 334. 61. Id. at 336-37. 62. Id. at 343-44. 388 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 14:373 essence of the entire issue: "The Equal Protection Clause," he insisted, commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. 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 the Irish. It should be to produce good lawyers for Americans. . . 63 That, I submit in all humility, is the sine qua non of the matter. It is my fervent hope, though far from a confident expectation-especially given the unsatisfactory, multi-faceted, evasioninviting response given by the Court in Bakke-that we will still, at this late hour, resolve to heed the now retired Justice's admonition and substitute for "lawyers" whatever educational, occupational, or professional noun may be appropriate in given circumstances in the justly egalitarian strivings of all Americans, regardless of race, sex, creed, age, nationality, or religion, for a dignified, happy, prosperous, and free life, blessed by a resolute commitment to, and acquiescence in, equal justice under law-which is as the cement of society. 63. Id. at 342. What's Wrong with Affirmative Action by Leonard Reed The scene was a seminar room at the Federal Executive Institute in Charlottesville, Virginia, the think tank for the U.S. government's career executives, and the discussion as animated among the half dozen or so federal managers who had been brought from various parts of the country to-well, to think. Under discussion were the impediments that an overgrown government places in the way of intelligent and efficient management, and all of the participants were leveling some blunt indictments against the powers that be (who always dwell in the next echelon up). Perhaps carried away by the heat and frankness of the bull session, one of them cited, as among the most severe problems, the government's "affirmative action" program. The animation froze as abruptly as if E.F. Hutton were about to be quoted. The executives looked around uneasily, suddenly aware that they hardly knew each other. A taboo subject had been raised, one that a person discussed frankly only with intimates. The embarrassed speaker was left to extricate his foot from his mouth as best he could. But if few executives will discuss it in public, doubts about the government's affirmative action programs are epidemic in the federal service. Leonard Reed is a contributing editor of The Washington Monthly. They are epidemic, most dramatically, among federal managers who have long considered themselves conscientious liberals. I know these people. They supported the civil rights movement, and they supported the affirmative action concept when it was first introduced. Today, when they glance around them to make sure they are alone before unburdening themselves of their doubts, one gets the feeling they are speaking with a frustration that comes from experience. There is something else too-an aura of resentment, born of the fear that prevents them from speaking more freely. How did affirmative action, an idea spawned in an era of generosity of spirit, get from there to here? Network-Busting The great civil rights movement of the sixties culminated in the Civil Rights Act of 1964. Title VII of the Act, which became effective in the summer of the following year, prohibits discrimination based on race, color, religion, sex or national origin in hiring, firing and all other terms and conditions of employment. The concept of "affirmative action" as an adjunct to Title VII developed later, as a number of amendments and executive orders ensued throughout the seventies. The concept has since taken on a life of its own, but the original impetus for it had a "If it was difficult to supervise Borman before-he is intelligent but very defensive—it was now impossible. He did virtually nothing for three years except work on his own discrimination case. Any assignment his supervisor tried to give him he regarded as an attempt to obstruct his preparation and would make notes accordingly... powerful rationale. Prejudice and discrimination, both conscious and unconscious, are facts of life. In governinent, as elsewhere, managers looking to fill vacancies lean heavily on what have recently become popularized as "networks": applicants come to their attention after being passed along by a chain of people, the first of whom is a friend of the applicant and the last of whom knows the hiring official. Because white males have dominated the positions of power in the past, most networks have been white and male as have, inevitably, the successful candidates. (True, some women and some blacks have always managed to make it big on their own, but their success only served to emphasize their exceptionality.) Adding to the unconscious creening out of all but white males was the stubborn resistance of a great many employers and managers who thought that woman's place was at home or, at best, at the typewriter, and that blacks, although not terribly reliable, could be useful at menial jobs where they were not likely to meet the public. Habits and attitudes like those, ingrained in the social and economic fabric, are not easily changed. Prohibitions against discrimination are fine, but charges of discrimination are hard to prove. If competent women and blacks were ever to get a fair crack at the job market something had to be done to break the logjam that blocked them out. Hence, "affirmative action," a concerted effort to increase the THE WASHINGTON MONTHLY/JANUARY 1981 numerical representation of women and minorities in non-dead-end jobs. It is a fair assumption that a substantial majority of the American people see that goal as one with which they associate themselves. That substantial majority, however, melts away when the "affirmative action" moves beyond active efforts to discover, recruit, train, and hire qualified women and minorities. Increasingly, the term "reverse discrimination" ruffles the surface of American life, and the word "quota" is pronounced in terms of bewilderment or disagreement. The federal government is no exception. What is exceptional about the government is the extent to which the bounds of the discussion are set by affirmative action leaders who seem to see the program as an ideology from which no heresy is permitted. "Let the issue of quotas and 'reverse discrimination' be put to rest," decreed Eleanor Holmes Norton, head of the Equal Employment Opportunity Commission, in a 1979 address. "Let 'reverse discrimination' be banished from the language." Patricia Harris, the Carter Administration's Secretary of Health and Human Services, talking of the need to increase the number of women in management, recently said, "I hear about so-called reverse discrimination' but I have never seen it." Well, to a white male denied a job or promotion simply because he is a white male, "reverse discrimination" remains a valid part of |