The administration is not going to be able to defeat the powerful affirmative action lobby outside as well as inside the government-I'm thinking primarily of the EEOC, the Civil Rights Division in Justice, and the Labor Department's Office of Federal Contract Compliance Programs-unless it acquires more vocal public support than it now has.

And that support will not be forthcoming so long as the persons who ought to be leaders of that public can be cowed into silence or gulled into thinking that the equal employment opportunity law is being used only, or nowadays even primarily, to eliminate discrimination.

That was Congress's intention when it enacted Title VII; indeed, Title VII forbids what has come to be called affirmative action or reverse discrimination, to say nothing of quotas, but the government now uses it to promote affirmative action as well as quotas.

It would be interesting to know how many private corporation executives-the CEOs, not personnel managers-even know of the existence of the Uniform Guidelines on Employee Selection Procedures. They ought to know about them; these guidelines were adopted in 1978 and are avowedly designed require affirmative action hiring on the part of private and public employers alike.

If the Justice Department has its way-which is to say, if that consent decree is given final approval by the federal judge with jurisdiction in the case-the guidelines will be used to impose a quota hiring system, on the federal government imme diately and on private employers eventually. Fortunately, it is formally within the power of the new administration to modify or even abolish those guidelines, but to do this it will need more support than it seems to be getting.

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

[From the Wall Street Journal, Apr. 27, 1982]

TEACHERS WHO LOST JOBS BECAUSE OF RACE

(By Walter Berns)

Last year, I introduced an article on this page with the statement: "Seventeen years ago Congress set out to eliminate discrimination in the workplace. To accom plish this, it enacted the Civil Rights Act of 1964, Title VII of which declares it to be unlawful for an employer 'to fail or refuse to hire or to discharge any individual because of such individual's race, color, religion, sex, or national origin." ("The Carter Agreement That Creates Racial Quotas," Feb. 5, 1981.) Presumably hiring and firing were now to be done on a nondiscriminatory basis.

The occasion for the article was a consent decree, approved a month earlier by a federal judge, according to which the government agreed to scrap an aptitude test used to screen applicants for civil service jobs. The test was said to be discriminato ry because too few blacks and Hispanics managed to pass it, and very few with scores high enough to insure their being employed. In place of the test, the govern ment agreed to inaugurate what in effect is a racial quota system. So much for hiring on a nondiscriminatory basis. What about firings?

This past February, even as the press was excoriating the Reagan administration for failing to move swiftly on the affirmative-action front, the U.S. Court of Appeals in Boston affirmed an order discharging over 600 of Boston's public school teachers solely because of their race.

They were white; or more precisely, they were not black. They were also tenured professionals with an average of 10 years seniority and working under a contractpart of a valid collective bargaining agreement-specifying that, in the event reduc tions in force became necessary, they would be discharged in reverse order of senior ity. Except insofar as it honored this seniority principle in the selection of the whites to be laid off, the Boston school committee violated this contract. No black teachers, however junior, were laid off; indeed, during this same period, 15 blacks were newly hired. So much for discharging on a nondiscriminatory basis.

HIRING ON A ONE-FOR-ONE BASIS

This mass layoff of teachers is the latest episode in the Boston public school crisis that began, or, at least, that came to the attention of a wider-than-Boston public, in 1974 when Judge W. Arthur Garrity of the U.S. District Court ruled that Boston was maintaining a dual school system, one for whites and one for blacks. The following year, having determined there was racial discrimination not only in pupil as

signment but in faculty and staff hiring and assignment, Judge Garrity ordered the city to hire teachers on a one-for-one basis until the proportion of black teachers reached 20 percent (thus approximating the proportion of blacks in the city) and to pursue a policy of affirmative recruitment of black teachers until that figure reached 25 percent. By early 1981, the proportion of black teachers had reached 19.09 percent.

Meanwhile, and thanks in large part to Judge Garrity's desegregation orders, the proportion of white students in Boston's public schools, 61 percent in 1971-72, had fallen to approximately 30 percent. And public school enrollment itself had experienced a steady and severe decline.

The schools also faced a fiscal crisis, brought on in part by the taxpayers' revolt that culminated in the passage of Proposition 22. The five-person school committee (now three whites and two blacks) faced the prospect of having to reduce the number of teachers. It also had to decide whether to respect the contract with the Boston Teachers Union or obey the court's order to reach-and, presumably, maintain-that 20 percent quota of black teachers. It decided to obey the court order, and, to the surprise of no one, Judge Garrity approved this decision. (Untypically, but graciously, he permitted the school committee temporarily to suspend its efforts to recruit black teachers until their proportion reached 25 percent.) It was Judge Garrity's approval of this layoff plan that the Court of Appeals affirmed last Feb. 17. So it came about that, the contract notwithstanding, teachers were discharged on a racial basis.

To say the least, that contract did not figure prominently in Judge Campbell's opinion for the Court of Appeals; he disposed of it in a brief footnote. The contract, he said, cannot "bar a federal court from granting effective relief for constitutional violations." And that was that. Of course, neither the discharged teachers nor the union had been responsible for any constitutional violations; the Constitution had been violated by the Boston school committee when it maintained the dual school system. Then, too, the black teachers who benefited from the layoff plan had never been victims of hiring discrimination; if anything, having been hired under the quota system, many of them were the beneficiaries of reverse discrimination. By what right should they, in the face of a nondiscriminatory contact, be preferred at the expense of teachers who had done no wrong to them or to anyone else?

The union asked this question in the appeals court and was told that it did not understand the nature of the case. The Court of Appeals said this was not a case pitting white teacher against black teacher; it was a case brought by black school children against the school board. Judge Garrity's original order requiring the school board to hire black teachers-now interpreted to forbid their being fired— was issued not to protect them, but, rather, to protect the black children. The hiring and firing orders were "designed to make the children whole, to vindicate their rights, and that is indeed their effect." It was not a question of preferring black teachers over white teachers who, admittedly, had done no wrong; it was a question of observing a contract or of benefiting the children-vindicating their rights and making them "whole"-and a labor contract could not stand in the way of action that benefits children who had been deprived of constitutional rights.

It seems important to know whether the children have been benefited by Judge Garrity's orders. The children were to be made "whole" through their attendance at nonsegregated schools-an idea one can readily accept-and by being taught by an integrated faculty, a faculty at least 20 percent black. Such a faculty, said the Court of Appeals, "provides black students with role models." This idea may have some validity, but when the Boston school committee used it back in 1974 to defend its assignment of black teachers to mostly black schools, Judge Garrity rejected it. "The record," he said, "is barren of evidence by supporting the argument." There may now be such evidence, but if so, the Court of Appeals didn't bother to point to it. Race-conscious remedies have apparently become so much a part of our law that evidence of their efficacy is no longer required.

TEACHERS' UNION IS APPEALING

By upholding this remedy, the First Circuit federal courts have created still one more racially based entitlement. Just as the consent decree created a racially based entitlement to federal jobs, and the amended Voting Rights Act, soon to be enacted by Congress, will create a racially based entitlement to representation in proportion to population, so we now have a racially based entitlement to job security, one that supersedes a job-security entitlement negotiated by a union on behalf of its members of all races.

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 discrimi nate 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 nondiscrimina tion 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 pro curement power, the District of Columbia Court of Appeals justified President Car ter'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 cri teria 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