5 THE SON OF SEPARATE BUT EQUAL: AFFIRMATIVE ACTION Orrin G. Hatch The legacy of the modern, "activist" federal judiciary has been substantial. In such diverse areas as legislative apportionment, criminal justice, civil rights, environmentalism, and abortion, this judiciary has played the key role in the development of important public policy. It would be no exaggeration to suggest that the federal judiciary-in particular, the Supreme Courthas been the major architect of much of the most important domestic and social policy of the United States during the past three decades. In few areas, however, has the high court had as great an impact as in transforming this country's public policy as in the area of what has come to be known as "Affirmative Action." The Supreme Court, in my view, in such cases as Fullilove, (1980)' Weber, (1979)2 and Bakke (1978),3 has been busily engaged in reinstituting the power of the state to distinguish between citizens on the basis of race, ethnicity, and other essentially irrelevant factors. While it took the Court more than sixty years to confess its errors in Plessy v. Ferguson (1896) in upholding the doctrine of "Separate but Equal," it has wasted much less time in moving to reverse the Brown (1954) notion that the Fourteenth Amendment to the Constitution entitled all citizens to equal protection of the laws without regard to race or ethnic origin. In a series of cases compressed within a period of less than six years, the Supreme Court has called into question some of the most enduring ideas of what the Fourteenth Amendment represents. The idea of a "color-blind" Constitution, as referred to by the elder Justice Harlan in his classic Plessy dissent, now seems more remote than during even the most entrenched days of Jim Crow and Theodore Bilbo. The idea of a society in which the law would take no account of an individual's skin color-the great goal of the civil rights movement of the 1950s and 1960s-is now regarded by many as, at best, an exceedingly naive sentiment and, at worst, as one reflecting a commitment to secondclass citizenship, even servitude, for this country's minorities. The idea of individual treatment has been replaced by the notion of collective entitlement. It is important to define what one means by the term “Affirmative Action." There seem to be nearly as many definitions of the term as there are persons commenting upon it. By "Affirmative Action," I refer primarily to color-conscious public policiespolicies which establish quotas, goals, timetables, or numerical objectives on the basis of race. While "Affirmative Action" can also refer to similar policies with respect to ethnic groups, religious groups or the sexes-and I find such policies equally offensive to the principles of the Constitution - most of the debate over this policy has been framed in terms of its treatment of discrete racial minorities. It is also difficult to disentangle from the controversy over Affirmative Action the increasingly prevalent notion in various and sundry judicial decisions of the United States that discrimination can be identified purely through the use of numerical and statistical evidence rather than through some demonstration of wrongful intent or purpose or motivation on the part of an actor. Thus, the courts have increasingly relied upon evidence of racial "imbalance" within neighborhoods or within universities or within places of employment or within legislative bodies as proof of unlawful discrimination. Rather than placing a burden upon those alleging discrimination to demonstrate some identifiable act of discrimination, the courts have allowed discrimination to be adduced through evidence that some "ideal" racial proportion had not been achieved. By "Affirmative Action," I also wish to make clear that I am not referring to policies aimed at disadvantaged persons generally- and administered without regard to race, color, sex, or national origin- but which may be expected to benefit disproportionate numbers of minority individuals. If blacks or Hispanics or Poles or Jews happen to comprise a disproportionate number of the poor, for example, it would not be surprising that they would also comprise a disproportionate number of the beneficiaries of public programs aimed at assisting the poor. A program, however, aimed only at the black poor or aimed at blacks, without regard to their income level, would fall within the scope of my definition of "Affirmative Action." What is remarkable about Affirmative Action is that such a policy, so arguably inconsistent with the traditional ideal of equality in our law, should have begun to take root within our society almost totally without the ratification of the elected, representative branch of the national government. While Congress certainly shares responsibility for this development by virtue of its acquiescence in it, the Courts and the federal executive branch have assumed the primary, active role in imposing Affirmative Action upon this country. An official public policy of racial discrimination has become institutionalized in a growing number of areas of society with little more than a whimper of protest by Congress. While it has been the executive branch that has been primarily responsible for the day-to-day implementation and administration of Affirmative Action programs-the Equal Employment Opportunity Commission (EEOC), Health and Human Services (HHS), Office of Civil Rights (OCR), Department of Justice (DOJ), and the rest of the alphabetical soup of civil rights enforcement agencies - it has been the judicial branch which has played the major role in providing impetus and according legitimacy to Affirmative Action. Through an unusual mixture of "Activist" policies and uncommon deference to the racial policies of other branches of government, the federal judiciary can take the major share of the responsibility for the rise of the present regime. THE COURT'S ROLE 6 Let me briefly summarize some of the major Supreme Court decisions that have led to the transformation of the equal protection doctrine over the past decade. Each of them has reimbedded in our law the idea discarded in decisions such as Brown, Loving, Anderson,' and Evans that the state was prohibited under the Fourteenth Amendment from taking cognizance of race in distributing the benefits of society. Each of them has contributed toward greater consideration of race and color in public and private decision-making rather than, as seems to have been the traditional objective of the Fourteenth Amendment, reduced consideration. In 1964, Congress enacted the landmark Civil Rights Act, outlawing many forms of public and private discrimination. While I am sensitive to the many constitutional controversies that surrounded the passage of this Act, had I been a member of the Senate at the time I would have been a supporter of this measure. I believe strongly that the Fourteenth Amendment poses an insuperable barrier for legal distinctions between individuals on the basis of race or color. The 1964 Act went further, of course, and brought within its coverage certain areas of private decision-making, as well. The owners of "public accomodations," such as restaurants and motels, were prohibited from discriminating by race in admitting individuals to their places of business. Employers were limited in their ability to discriminate among potential employees on the basis of race. Despite constitutional challenge, these provisions were sustained by the courts and represented a potential foundation for achieving a social structure in which important public and private decisions would be made with minimum regard for such factors as race. Hardly had this new structure been erected than the Supreme Court began to chip away at its foundations. The ideal of genuine racial neutrality-something that had taken a revolution to get and a civil war and endless political strife to maintain― began to be eroded even before it could be set in place. The first step was taken in a 1971 Supreme Court decisionGriggs v. Duke Power Company (1971)-in which the Court, under the terms of the 1964 Civil Rights Act, rejected an employment test adopted by a utility company because it resulted in higher failure rates for black job applicants than for white job applicants. One section of the 1964 Act prohibited employers from depriving individuals of employment opportunities because of race, color, sex, religion, or national origin, while another, specifically, prohibited employment tests that were "intended or used" to discriminate. In rejecting the employer's test-the completion of a high school education and passage of a professionally prepared aptitude examination-Chief Justice Warren Burger stated: What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. In creating this standard, the Court effected a subtle but critical change in the direction of the 1964 Act. Rather than placing the burden upon the state or upon the aggrieved party to demonstrate some act of purposeful discrimination by the defendant, the Court instead placed a burden upon the defendant to demonstrate that his test was not "arbitrary"; specifically, the Court held that it must be demonstrably "job-related." Thus, even in the absence of an act of discrimination (and there can be no such thing as accidental or inadvertent "discrimination" as the term has been commonly used by the Court) the Supreme Court in Griggs struck down a bona-fide employment practice that had been adopted in good faith, with utterly no ra |