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Issues in Equity and Law
PERSPECTIVES ON EQUALITY, FAIRNESS, AND SOCIAL JUSTICE
One might wonder how the Department of Labor and the Department
of Justice, both agencies of the federal government, could have come to
such divergent conclusions about the legality and fairness of within-group
score adjustments. One might be tempted to explain the difference by
pointing to the sharply divergent view of the law adopted by the
Department of Justice in 1981 at the beginning of a new administration.
Previously the federal agencies having responsibility for implementing the
federal fair employment practices laws, including the Department of
Justice, had been more closely aligned on the general policy of govern-
mental use of race-conscious employment practices. But on further
reflection, that contradictory assessment of the use of a race-conscious
procedure to promote equal employment opportunity for black and
Hispanic Americans reflects the ambivalent vision of the larger society.
The civil rights movement of the past quarter century, although it has
for the first time in the nation's history brought black Americans under
the mantle of equal justice, has also caused fissures in the general
consensus about the meaning of fairness and justice. From the beginning,
notions of equality under the law, fair competition, and equal opportunity
gave the movement its strong ethical appeal, providing a rationale for
ending the legalized caste system that blacks in America had been
subjected to since the abolition of slavery. The focus of government
policy and public sentiment was on getting rid of the whole edifice of
29
OCR for page 30
30 BACKGROUND AND CONTEXT
discriminatory and segregationist laws and customs that denied blacks
equal access to education, housing, and jobs; freedom of movement in
public places; the right to participate in political life the full prerogatives
of citizenship.
But, as government policy went on to address the systemic problems
that were the legacy of slavery and segregation, the earlier consensus
began to erode. Programs designed to enhance the opportunities of
minorities and women, for example, minority set-asides in federal con-
tracting and the encouragement of affirmative action hiring programs,
generated a good deal of ambivalence. Many who had supported equality
and equal competition for society's goods found that the same principles
made them strong opponents of policies of preferential treatment intended
to bring some measure of equality of life chances.
Philosophical Foundations
The policies that the committee has been asked to examine unavoidably
involve questions of equity. Whereas most people adhere to some
strongly held convictions about rights and justice and what is fair in
allotting educational or employment opportunities, and most look to the
Founding Fathers and the Constitution as important sources of their
convictions, relatively few of us could lay claim to a systematic, coherent
theory of social justice. To put the policy decisions facing the U.S.
Employment Service in context, we consider briefly the sources of some
of the ideas that have fueled public debate over the government's civil
rights policies.
When the United States was founded, it was widely considered a
radical experiment with little chance of success. Although there were
classical and contemporary examples, few observers in England or on the
Continent were confident that a society could survive without a monarch
placed atop a hierarchical social order. In contrast to the traditional
European systems based on hierarchy and subordination, the American
revolutionaries, drawing on the ideas of John Locke and other contract
theorists, advanced the concept of the state as a contractual agreement
among free and equal individuals, secular by definition, and entered into
for the mutual benefit of the participants. In this liberal that is to say,
antimonarchical view of political society, the state is in some sense the
product of the free choice of individuals, who are its members, not its
subjects. The powers of the state are limited, since they derive from the
people. And the state exists for the benefit of its members.
These ideas exerted a powerful and enduring impact on American
political thought. They found expression in the Declaration of Indepen-
dence ("We hold these truths to be self-evident, that all men are created
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ISSUES IN EQUl" AD LOW 3 ~
equal . . .") and in the adoption of our Constitution, the fundamental
contract on which the system of government rests. Ideas and reality are
never perfectly matched; to modern eyes the words of the Declaration
and the structure of the society that espoused them seem irreconcilable.
Property requirements kept most white males from full political partici-
pation in the early years of nationhood; women had few political and
limited property rights until well into this century. But the most egregious
departure from the liberal ideal was the total exclusion of blacks and
American Indians from the political community it described. Most blacks
were in a condition of chaste! slavery, with no legal status, no rights, and
no protections. As the Kerner Commission reported (National Commis-
sion on Civil Disorders, 1968), by 1776 some 500,000 blacks, comprising
nearly one of every six people in the country, were held in slavery and
indentured servitude. Yet the idea of government of, by, and for the
people was powerful and very gradually provided a motive force for
change.
Economic Liberalism
The ideas of political liberalism were reinforced in the nineteenth
century by the growing popularity of laissez-faire economics. The work of
Adam Smith and the British school of political economy knit together the
liberal idea of the state as a voluntary association of free and equal
individuals and the idea of a free-market economy based on the fair
competition of individuals. Just as the political ideal demanded liberation
from the elaborate caste systems of the past that had defined a person's
legal and political status, access to careers, and, in some European
countries, even modes of dress, so did economic liberalism seek to get rid
of the welter of feudal and mercantilistic restraints on commerce.
A fundamental premise of laissez-faire economics, or what we have
come to call capitalism, was that the operation of free and competitive
markets would make a productive economy. Put another way, the
unfettered actions of each individual to promote his own welfare were
thought to increase the overall wealth of society. The comfortable belief
that private gain promotes the public good encouraged a value system in
the United States that prized individualism, competitiveness, and entre-
preneurial spirit and inculcated a strong suspicion of government inter-
ference with economic activity.
These values fit well a society that was simultaneously undergoing
industrialization, expansion across a continent, and massive immigration.
Filtered through these economic ideas, concepts such as equality and
fairness and justice took on a new cast. Equality tended to be thought of
as the right to compete on an equal basis with others for the economic and
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32 BACKGROUND AND CONTEXT
other rewards of life in society. Fairness had to do with the rules of the
competition, not the distribution of wealth in society.
Meritocracy
The constellation of ideas described above-that society is made up of
equal individuals; that these individuals deserve equal treatment under
law; that careers should be open to all, not reserved to privileged groups;
that equal competition for rewards in a free-market economy promotes
the interests of individuals and of the society as a whole-found institu-
tionalized expression in the mid-nineteenth century establishment of the
professional civil service based on merit hiring.
Historians have suggested that the merit system in the United States
was a by-product of the egalitarian impulses of Jacksonian democracy.
Andrew Jackson and his supporters believed that any man could do the
government's work and that no man should do it for very long. They
pushed the spoils system beyond the limits of contemporary taste and, in
response, the elite classes who had traditionally staffed the federal
bureaucracy espoused the principle of hiring on the basis of merit, as
demonstrated by competitive examination (Hoogenboom, 1961~.
Whatever the motives of early proponents of merit hiring, ideas have a
power beyond the circumstances of their origin. The concept of meritoc-
racy has had great social approval over the years to the extent that we
tend to forget that it is a construct and not a description of objective
reality. The basic tenets of meritocracy in its American guise are:
1. The goods of society should be awarded to individuals on the basis
of merit.
2. The qualification that merits reward in the allocation of jobs is talent
(ability, experience), not family connection, social class, political loyalty,
virtue, need, or other criteria that are irrelevant to job performance.
3. Social, economic, and political structures should be designed to
allow open competition for positions.
4. A system of open competition and selection on the basis of compe-
tence satisfies both fairness and efficiency because every individual has
the same chance to realize his or her potential regardless of birth or
wealth and because all individuals will end up in the positions most suited
to their talents.
5. Such a system is just because everyone has an equal opportunity to
compete for positions and is rewarded as he or she deserves.
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ISSUES IN EQUITY AND LAW 33
Meritocracy Revisited
If, as Fishkin (1983) put it, the main position in the meritocratic
construct is that there should be a "fair competition among individuals for
unequal positions in society," there has also been some recognition, both
in formal and popular thought, that equality of opportunity may involve
not just the absence of irrelevant barriers, but also some manner of
equality of life chances (equality of life chances, that is, beyond the
formal equality of individuals in a society that has no caste system, and no
aristocracy). A cautious expression of this position would be that those
with similar talents should have similar life chances. One might choose
these grounds for supporting universal free public education. Many
college scholarship programs- the New York State Board of Regents and
the National Merit scholarships, for example-are intended to extend the
opportunity for higher education to deserving (i.e., very smart) but needy
students. A much more radical interpretation of equal opportunity might
call for equalizing the conditions for the development of talent throughout
society so that all children enjoy the same material and cultural advan-
tages. There is probably not much room for this sort of idea to flourish
within the liberal framework as long as liberalism is wed to the idea of a
free-market economy, but some of the child-rearing experiments in the
Israeli kibbutzim were attempts to provide just this sort of equality of
nurture.
A moderation of the meritocratic ideal was espoused by many during
the 1960s and 1970s. Borrowing from the formal thought of John RawIs,
whose Theory of Justice was published in 1971, they interpreted the goal
of equal opportunity to be promoting the self-respect of all members of
society rather than unleashing acquisitive energies. Although not neces-
sarily rejecting meritocracy as an appropriate basis for distributing social
advantages, they argued that it should not be the sole ground. Special
measures should be taken to ensure that. all members enjoy a share of the
benefits of society.
The Contemporary Impasse on Preferential Treatment
Policies of preferential treatment for members of social groups defined
by race, ethnicity, or gender are at the heart of the question of within-
group scoring. Because they also represent the broad divide between the
pertinent value systems, the discussion below focuses on the arguments
that have been marshalled for and against preferential treatment in the
past 25 years or so. For simplicity's sake, prototypical positions are
sketched, although the actual course of public debate has been far more
complex.
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34 BACKGROUND AND CONTEXT
The Case Against Preferential Treatment
Those strong proponents of the liberal tradition who have spoken out
against affirmative action and preferential treatment (many of whom now
call themselves neoconservatives) tend to focus on the ideal of equality
and not to address as intensely the matter of inequality of life chances.
The most frequent argument hinges on the idea of color-blind law.
From this perspective, the essence of equity is that all individuals are
treated equally under the law. Proponents point out that it was the failure
to realize the ideal of color-blind law that allowed the oppression of
blacks, first as slaves and then as second-cIass citizens. A policy of
preferential hiring betrays the principle of equality under the law. As one
critic (Newton, 1973:312) put it:
The practice of reverse discrimination undermines the foundation of the very ideal
in whose name it is advocated; it destroys justice, law, equality, and citizenship
itself, and replaces them with power struggles and popularity contests.
A correlate of this position is that all racial classifications are presump-
tively unconstitutional. It is argued that the equal protection clause of the
Fourteenth Amendment to the Constitution was intended to prohibit
"conduct discriminating on the basis of race" and that the principle must
hold whether the intention is benign, as in the use of race as a criterion of
selection, or invidious. This was the position taken by Wm. Bradford
Reynolds, the former Assistant Attorney General for Civil Rights, when
within-group scoring of the GATE was challenged in 1986. A repre-
sentative statement of the view appeared in a law review article in 1966
(quoted in Perry, 1977:549, n.621:
Any legal classification by race weakens the government as an educative force
.... [Al statute specifically granting Negroes a benefit tends to undermine the
principle we are working so hard to establish . . . that a person is entitled to be
judged on his individual merit alone, that race is irrelevant to the worth of the
individual. Preference for Negroes can thus be expected to be a major factor in
preventing the education we are trying to bang about through a host of other laws.
Among people who adhere to what is sometimes called the nondiscrim-
ination principle, the idea of equal treatment under the law has remained
closely associated with the liberal idea that society is made up of
autonomous individuals and that the law regulates the affairs of individ-
uals. This belief led many to oppose the change of emphasis in govern-
ment policy in the late 1960s, when the regulatory agencies charged with
implementing the Civil Rights Act of 1964 started encouraging class action
suits and otherwise judging compliance issues in terms of groups or
classes of people.
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ISSUES IN EQUAL AND LAW 35
Preferential admissions policies at universities and professional schools
caused an outpouring of prose on the fairness of racial preference in the
1970s. Indeed, the Bakke and DeFunis cases popularized the concept of
reverse discrimination, with its pejorative undertones (Regents of the
University of California v. Bakke, 438 U.S. 265 [19781; DeFunis v.
Odegaard, 416 U.S. 312 [19741~. Among the arguments brought against
preferential admissions policies were these: there is no way to identify
the individual victims of discrimination or to prove that those benefiting
from the policy of racial preference were in fact victims of past discrim-
ination; there is evidence that the beneficiaries of preferential policies in
professional school admissions come from privileged backgrounds; pref-
erential treatment for blacks as a group creates injustice for identifiable
white individuals; some whites who are innocent of any acts of past
discrimination will pay the price; many members of white and other
ethnic groups have also suffered discrimination and will want preferential
treatment too.
Clearly the most compelling of these arguments has been that prefer-
ential treatment for blacks creates injustice for whites who are thereby
denied the advantage of, in this case, professional education and the
wealth and position that would follow. The element that makes this
argument hold together is, of course, the meritocratic ideal. None of the
adherents of this position would argue for the preferment of a white
candidate over a black with better qualifications. They simply deny that
race is a relevant qualification and find counterarguments about redress,
reparations, needs, benefits to the individual, the provision of role models
for the community, or the enrichment of the intellectual atmosphere of the
university simply beside the point. From this point of view, the only fair
criterion for the allocation of scarce social resources is individual talent,
which in this context means predicted academic success.
To summarize, three principles drawn from the constellation of politi-
cal, economic, and meritocratic ideas described above have been partic-
ularly important in the literature of opposition to policies of preferential
treatment based on racial identity: equality under the law, individualism,
and merit. To those who find themselves on this side of the divide, these
three principles provide the possibility of equal opportunity in the society
and are the grounds of social justice.
The Case for Preferential Treatment
The arguments in favor of preferential treatment also draw heavily from
the liberal pantheon. Many, like Rawls, hark back to a first assumption of
the contract theorists-that individuals freely enter into society for their
mutual advantage but go on from there to say that it would be hard to
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36 BACKGROUND AND CONTEXT
make the claim on grounds of equity that the Advantaged receive their
fair share in contemporary American society.
People who espouse preferential policies, whether cautiously or with
enthusiasm, tend to have as their point of departure a recognition of the
enormous, systematic injustices to which black Americans were sub-
jected over hundreds of years. They acknowledge that -to a significant
degree many whites have benefited as a result. This line of thought has led
many to argue that justice requires compensation, that the long history of
unequal treatment has left blacks as a group so educationally, economi-
cally, and psychologically disadvantaged that, without special preference,
they will be condemned by our newly colorblind society to remain de
facto second-class citizens.
Others add that racial and sexual discrimination are not ancient relics
but are so deeply entrenched in our language, attitudes, and living
patterns that they continue to warp selection and admissions decisions.
So long as this atmosphere continues, preferential consideration will be
necessary to ensure equal justice.
From this perspective, equality cannot be restored simply by doing
away with the laws that supported segregation, or simply by telling people
they must not discriminate. The problems are systemic, not individual,
and can be overcome only at the level of structural change. Laurence
Tribe (1988), author of an important treatise on constitutional law,
proposes that the equal protection guarantees of the Constitution can be
understood within the framework of what he calls an "antisubjugation
principle," under which government actions would be judged not on the
basis of the motives of identified bad actors, but rather by their impact on
members of protected groups. Because the current condition of blacks,
women, and other identified groups in the society is the legacy of official
oppression, of a subordination that was created by law and reinforced by
the whole power of the state, he proposes that the constitutionality of
government actions can be judged by their impact on the victims of official
subjugation.
In response to the argument that the law recognizes only individuals,
not groups or classes of people, legal scholars such as Burke Marshall and
Owen Fiss point out that discrimination works not against individuals, but
against a people. And the remedy, therefore "has to correct and cure and
compensate for the discrimination against the people and not just the
discrimination against identifiable persons" (Marshall, 1984:10061. Mar-
shall, who was Assistant Attorney General for Civil Rights during the
Kennedy and Johnson administrations, contests the assertion that the
equal protection clause is concerned only with the protection of individ-
uals against discrimination, saying that it pertains to individuals only by
reason of their membership in groups. He points out that the Court in
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ISSUES IN EQUl~ AND LAW 37
Brown v. Board, 347 U.S. 483 (1954), did not say that the state had failed
to protect Ms. Brown from discrimination, but that it violated the equal
protection clause by running a segregated school system that was part of
a state-imposed caste system. The order to dismantle the dual system of
schools cannot be understood in terms of relief to individual victims
(Marshall, 19841.
A logical extension of this interpretation of the law is to avoid a blanket
rejection of racial classifications. Several authors distinguish between
invidious racial classifications intended to oppress and benign racial
classifications-Marshall uses the terms exclusionary and inclusionary
purposes. It is suggested that those policies that aim to bring groups into
the mainstream society, as transitional compensation either for past
wrongs or present disadvantage, would satisfy the requirements of the
Constitution.
Perhaps the most widely used argument in support of preferences is
that equal opportunity and fair competition require special programs. The
argument does not reject meritocracy in an absolute sense, but stresses
the need to equalize life chances to make the system equitable. In a
well-known commencement speech delivered at Howard University in
1965, President Lyndon Johnson said:
You do not take a person who for years has been hobbled by chains and liberate
him, bring him up to the starting line of a race and then say "you are free to
compete with all the others," and still justly believe that you have been
completely fair.
A strong theme running through the literature that supports special
treatment for the victims of systematic discrimination is that each
member of society is equally valuable and that a just society will be
organized to protect each member's self-esteem. Some variation of the
idea is found in the work of legal scholars, political theorists, and moral
philosophers. And it provides a rationale for distinguishing between
discrimination against blacks, which insults, and discrimination for
blacks, females, and others who are considered at risk, which does not.
Beyond Philosophy
Two lines of argument seem to cut through the intellectualization of the
issue of preferential consideration for blacks or other disadvantaged
minorities. First is the proposition, voiced by Abraham Ede! (1977) and
others, that there is nothing novel in the fact of preferential treatment as
it occurs in affirmative action programs. Almost any policy decision
brings loss to some and gain to others. We are all the beneficiaries of overt
preferential treatment, as a few examples show. There is very wide social
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38 BACKGROUND ID CONTEXT
acceptance of the income tax write-off of mortgage interest. Very
powerful forces support preferential treatment for veterans, including
hiring preference in the civil service and referral priority by the U.S.
Employment Service. There are many other less obvious examples, such
as water rights and agricultural subsidies. Preference is not novel; only
the intended recipient is.
Second is a skeptical assessment of the liberal values of equality,
color-blind law, merit, and fair competition seen from the perspective of
those who were barred from enjoying these things until the passage of the
Civil Rights Act of 1964. As one author put it (paraphrased in Bell, 1984),
the domination of blacks was sanctioned by religion in the colonial period.
It was sanctioned by Social Darwinism in the postslavery period. And
now the myth of equality provides a veneer for further oppression.
FEDERAL POLICY AND PREFERENTIAL TREATMENT
Given the deep ambivalence of our society, it is not surprising that the
policies of the federal government in its several branches have often
appeared as contradictory as the philosophical positions sketched above.
We have mentioned the example of two former Assistant Attorneys
General for Civil Rights, both of them well-respected legal thinkers,
coming to very different conclusions about the constitutional permissibil-
ity of benign racial classifications. Perhaps more telling, the government
with its administrative hand has become an important presence in
virtually every personnel office in the country, at the same time that the
Supreme Court has shown great reluctance to find constitutional justifi-
cation for highly intrusive structural remedies. Taken as a whole, federal
policy has described a difficult and halting evolution that cannot be said to
have yet reached a state of equilibrium.
Some of the ambiguities of the federal posture were built into the Civil
Rights Act of 1964 itself. The explicit language of the act did not go
beyond the principle of color-blind practices. But Title VII of the act,
entitled Equal Employment Opportunity, adopts a group-centered defini-
tion of discrimination, outlawing "employment practices" that "ad-
versely affect" an individual's status as an employee because of that
employee's race, color, religion, sex, or national origin.
Sponsors of the bill, including Hubert Humphrey, who was floor
manager of the bill in the Senate, repeatedly denied that the term
discrimination would be read as mandating racial quotas. Moreover,
Section 703(j) of Title VII states specifically that nothing written therein
should be interpreted as requiring any employer to "grant preferential
treatment to any individual or to any group . . . on account of an
imbalance which may exist with respect to the total number or percentage
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ISSUES iN EQUAL ID LAW 39
of persons of any race, color, religion, sex, or national origin employed by
any employer." Furthermore, an amendment allowing the use of profes-
sionally developed ability tests was offered successfully by Senators
Clifford P. Case and Joseph S. Clark. In support of the amendment, they
entered an interpretive memorandum into the record (110 Cong. Rec.
7231 [19641), which explained congressional intent as follows:
There is no requirement in Title VII that employers abandon bona fide qualifica-
tion tests where, because of differences in background and education, members of
some groups are able to perform better on these tests than members of other
groups. An employer may set his qualifications as high as he likes, he may test to
determine which applicants have these qualifications, and he may hire, assign, and
promote on the basis of test performance.
At the same time, the proponents of the act understood that discrimi-
natory practices were deeply entrenched in American society. They had
witnessed a widespread and sustained resistance to the Supreme Court's
school desegregation order in Brown v. Board, and they were aware that
massive resistance to integration of the work force might also occur. As
a consequence, a new agency was created by the act to foster compliance
with Title VII; in addition, the Department of Justice was given broad
authority to bring suit against employers when there was evidence of such
systematic resistance.
As we describe below, the position that the federal government has
reached through a long process of administrative and judicial interpreta-
tion of the Civil Rights Act of 1964 is one of tending to promote de facto
preferences for certain protected groups, the language of Title VII
notwithstanding. But neither Congress nor the Supreme Court has
provided a clear rationale, a legislative or constitutional mandate for such
preferences. And even though Congress appeared to approve some uses
of preferences when it amended Title VII in 1972, it failed to do so with
sufficient clarity to convince all members of the Supreme Court that it
intended to do so (Local 93, International Association of Firefighters v.
City of Clevelanci, 478 U.S. 501, 543 [1986] [Rhenquist, W., dissentingly.
One unhappy irony is that these developments have left employers,
because they control scarce employment opportunities, open to challenge
from members of minority groups if they do not extend preferential
consideration, and open to challenge from majority-group members if
they do.
Individual Rights, Group Effects, and the Law
A persistent anomaly in federal civil rights policy has been the
adherence, on one hand, to the principle that the Constitution and Title
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ISSUES IN EQUAL AD LAW 4}
resentation of minority-group members in the work force. EEOC was
created by the Civil Rights Act to provide leadership and guidance on the
meaning of Title VII, to promote compliance and conduct compliance
reviews, to summon witnesses, and to conciliate employment discrimi-
nation conflicts (it was also empowered to bring suit by- the 1972
amendments to the act).
In 1966 the new agency made what must be considered among its most
influential policy decisions when it interpreted Title VII discrimination to
consist not merely of employment practices intended to discriminate or to
treat people of protected status differently from others, but also of any
employment practices that had an "adverse impact" on members of
protected groups (Robertson, 1976:1-21. T:he legislative basis for this
policy is found in Section 703(a)~2) of T'tI:II, which makes it an
unlawful employment practice for an empower
to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin
Like pattern-or-practice litigation, thy EEOC's decision on the meaning
of Title VII discrimination focused the attention of the authorities on
work-force statistics, particularly on rates of selection.
This conceptualization of discrimination was confirmed in 1971, when
the Supreme Court handed down its now famous decision in Griggs v.
Duke Power Co. (401 U.S. 424 [197111. Saying that Title VII proscribes
"not only overt discrimination but also practices that are fair in form, but
discriminatory in operation,'' the Griggs decision moved judicial notice to
the effects of employment practices on protected groups as these effects
are manifested in the composition of the employer's work force. Hence-
forth the courts would permit a Title VII challenge to any employment
practices that had a disparate impact on people in the protected groups;
an employer's actions would be scrutinized not only on the basis of his or
her treatment of the plaintiff, but also indirectly by consequences of his or
her employment practices on racial or other relevant groups. The relative
proportions of such groups in the employer's work force compared with
the makeup of the (appropriately defined) applicant pool would become
an important question in assessing the employer's compliance with Title
VII.
Like Title VII itself, the Griggs opinion specifically states that there is
no requirement that preferential treatment be accorded to minorities or
other protected groups; rather, qualifications are to be the controlling
factor in employee selection. The problem with this formula is that it fails
to take seriously the overwhelming disadvantage visited upon most blacks
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1
42 BACKGROUND AND CONTEXT
.
in America over three centuries. There is, in other words, an important,
usually unspoken assumption underlying federal policy that there exist,
by and large, a uniform distribution of ability and a similarity of
preparation and career interests throughout the groups comprising the
larger society. Thus, any underrepresentation of females, blacks, or other
minorities can be ascribed to discrimination, unless the employer can
show otherwise. The assumption was verbalized in Teamsters v. United
States (431 U.S. 324, 342 n.20 [19771~:
absent explanation, it is ordinarily to be expected that nondiscriminatory hiring
practices will in time result in a work force more or less representative of the
racial and ethnic composition of the population in the community from which
employees are hired.
In fact, the evidence from studies of a wide variety of ability tests and
measures of performance indicates that there are substantial group
differences in attributes that are important to performance in many kinds
of jobs; although there is considerable overlap between the two, blacks as
a group consistently perform less well than the majority group. Those
who take seriously the effects of the kind of extreme economic, educa-
tional, and cultural disadvantage experienced by most blacks even today
do not find this information surprising. It would be naive to expect the
cultural patterns built over hundreds of years to be transformed in a
generation. But for a number of reasons, no doubt political as well as
philosophical, there has been little inclination on the part of Congress or
the courts to pronounce a straightforward policy of preference as, for
example, India has done to break down the lingering effects of its caste
system.
The ambiguity of government policy is evident in the 1972 amendments
to the Civil Rights Act. Through them, Congress elevated the Equal
Employment Opportunity Commission, giving it broad new powers to
bring suit and, at least by implication, endorsing the agency's aggressive
posture on promoting a work force representative of the community. This
more active stance is also evident in the amendments extending the Civil
Rights Act to federal hiring; Congress incorporated the requirement that
each federal department and agency must develop an affirmative action
plan. Each federal department must also comply with Executive Order
11,478, which grew out of President Johnson's use of executive decree to
bring more minorities into the mainstrearr~ economy by requiring federal
employers and government contractors to take affirmative action to hire
members of minority groups. Affirmative action plans are by definition
not color-blind. They fall in the category of what Burke Marshall termed
"inclusive discrimination."
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ISSUES IN EQUAL AND LAW 43
Despite these effects of the 1972 amendments, what Congress chose not
to do was equally significant. It did not remove the earlier language of
Title VII that denies any requirement that private employers grant
preferential treatment because of an imbalance in their work force.
Noting this fact, some members of the Supreme Court have opined that
when it amended Title VII in 1972, Congress did not intend to authorize
the granting of racial preferences (Firefighters v. City of Cleveland, 478
U.S. at 543 [Rhenquist, W., dissentingly. In other words, in the private
sector, the force of government pressure to increase the economic
opportunities of minorities and women remained largely indirect, through
the contracting authority and the increased power of the EEOC.
As a consequence, the government has devoted a good deal of energy
to scrutinizing the instruments, such as employment tests, that are the
proximate cause of adverse impact. The implementing agencies (EEOC,
the Department of Labor, the Office of Personnel Management) have
published the Uniform Guiclelines on Employee Selection Procedures (29
CFR Part 1607 [19851), which lays out technical requirements for the
validation of tests and other objective procedures used for selection or
promotion of employees. As a representative of the Department of Justice
(a member of the committee's liaison group) reminded the committee, the
costs of a validation study can be prohibitive, running into many hundreds
of thousands of dollars (Delahunty, 1988~. Judges have found themselves
wrestling with the arcane of psychometric validation studies to find out if
tests are sufficiently related to job performance to overcome an inference
of discrimination based on work-force statistics. Some courts and other
compliance authorities, "laboring under the spell of the 'equality of
results' doctrine," as Mr. Delahunty put it, have imposed such stringent
requirements for defending tests that many employers have quietly
instituted measures to make the numbers come out right in order to avoid
costly litigation.
Equity and Equal Protection Jurisprudence
In addition to legislative efforts to wipe out employment discrimination,
the Constitution itself provides important safeguards with respect to
governmental action. Adopted as one of three Civil War amendments
passed by a Radical Republican Congress intent on protecting the newly
emancipated blacks, the Fourteenth Amendment embodies the ideal of
equal justice under law and provides that no state "shall deny to any
person within its jurisdiction the equal protection of the laws." It has
been the major vehicle for developing substantive meaning for the
concept of equality.
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44 BACKGROUND AND CONrExr
The equal protection clause was of paramount importance in the early
stages of the civil rights movement, when the emphasis was on getting ad
of the laws and conventions of segregation, for example, in establishing
the rights of blacks to attend the same schools as whites or to patronize
restaurants, hotels, movie theaters, or other public accommodations. And
the equal protection clause has continued to be important in housing,
voting rights, and redistricting cases. But in the area of economic equity,
the Supreme Court has been very hesitant to establish broad new
constitutional remedies.
The pivotal case in setting the orientation of the Court was Washington
v. Davis (426 U.S. 229 [19761), which involved a constitutional challenge
to a cognitive test used by the District of Columbia police department to
screen applicants (Title VII protections were not available to the plaintiffs
because the case was brought before the 1972 amendments to that statute
were made applicable to public employers). Because the failure rate of
black applicants was significantly higher than that of white applicants,
plaintiffs claimed that its use was a denial of equal protection of the law.
The Court rejected plaintiffs' claim, holding that under the Constitution
the racially disproportionate results of the practice must be traced to a
racially discriminatory purpose. This holding was reaffirmed in Village of
Arlington Heights v. Metropolitan Housing Development Corp. (429 U.S.
252 [19771), which, while recognizing that statistics can be critically
important evidence in equal protection cases, held that normally such
evidence alone would be insufficient to establish a violation of the equal
protection clause.
Laurence Tribe suggests that the decision in Washington v. Davis
"symbolizes the Supreme Court's trepidation about embracing the highly
intrusive structural remedies that may be required to root out the
entrenched results of racial subjugation" (1988:15101. He points out that
under the intent approach, lawsuits involving constitutional claims be-
come a search for a bigoted decision maker. The "perpetrator perspec-
tive" views contemporary discrimination not as a social phenomenon-
the historical legacy of centuries of slavery and subjugation- but as the
misguided, retrograde behavior of individual actors in an otherwise
enlightened society (1988:1509~.
In contrast to the formula for Title VII discrimination cases established
by Griggs, which places a burden on the employer to defend practices
that are shown to have adverse effects on minorities, the primary burden
in constitutional cases lies with the plaintiff, who must show that the
injury suffered was a consequence of an act of intentional discrimination
by the defendant. In other words, motive remains crucial under the
Constitution, whereas under Title VII the outcome is paramount.
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ISSUES IN EQUITY AND LAW 45
Tribe enumerates some very strong reasons why the Court might
choose this cautious path. There is a long tradition that binds rights to
remedies, discouraging displays of broad discretionary relief. Given the
experiences of the Warren Court and massive resistance to the judgment
in Brown v. Board, the justices were sensitive to the limits on what ad hoc
judicial action can achieve in a reluctant society. Above all, he believes,
the Court was wary of a more aggressive role for fear that the federal
courts would become deeply enmeshed in the day-to-day actions of state
and local governments, reviewing choices about the allocation of public
funds, zoning of residential neighborhoods, and so on.
It is Tribe's assessment, nevertheless, that the Court should have faced
the problem of inequality squarely: "either grit the teeth and get to work
fixing the inequality, no matter what it takes, or swallow hard and
acknowledge that the constitutional wrong cannot be judicially put right"
(1988:1512~. Instead, in the absence of proof of a racially motivated
government actor, the actual circumstances of racial disadvantage
unemployment, inadequate education, poverty, and political powerless-
ness- become unfortunate conditions, not the consequences of racial
discrimination.
Affirmative Action
In previous sections we have developed the theme that the federal
government has been reluctant to embrace straightforward policies ac-
cording preferential treatment to the victims of systemic discrimination.
The pressure on employers to adopt procedures that will increase the
proportions of women and minority-group members in their work force
has been largely indirect, a product of the emphasis on work-force
statistics in EEOC compliance reviews and in Title VII litigation. The
primary exception to this generalization is in affirmative action remedies
and programs.
Authority for judicial intervention to order race-conscious remedial
measures is found in Section 706(g) of Title VII, which states:
If the [U.S. District Court] finds that the respondent has intentionally engaged in
. . . an unlawful employment practice charged in the complaint, the court may
. . . order such affirmative action as may be appropriate, which may include, but
is not limited to, reinstatement or hiring of employees, . . . or any other equitable
relief as the court deems appropriate.
Courts have ordered a wide variety of race-conscious remedies, including
the imposition of numerical hiring goals and timetables, one-for-one
promotion ratios, score adjustments, and alternative selection proce-
dures. These court-ordered affirmative action plans are uniformly tempo
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46 BACKGROUND AND CONTEXT
rary and remedial; they are expedients to be used pending the develop-
ment of nondiscriminatory hiring or promotion procedures, and they are
imposed in response to a finding of discrimination.
A second type of affirmative action program was created by Executive
Order 11,246, which addressed employers doing business with the federal
government. The executive order placed federal contractors under two
obligations: not to discriminate in any part of the work force while under
government contract and to take "affirmative action" to ensure that
employees and applicants are being treated in a nondiscriminatory
manner. Compliance is administered by the Department of Labor Office
of Federal Contract Compliance (OFCC), which monitors each contrac-
tor's affirmative action program and, in cases of extreme recalcitrance,
can blacklist the firm. The affirmative action program must include a
work-force analysis, an underutilization analysis for each minority and
sex, and planned corrective action including specific goals and timetables.
(Executive Order 11,246 and successor Executive Order 11,478 also
regulated government employment practices until they were superseded
by the 1972 amendments to the Civil Rights Act.)
In the private sector, it was not until 1978 that the Supreme Court
recognized the legality of voluntary affirmative action programs. Such
programs are not part of a court-ordered remedy or developed in
compliance with Executive Order 11,246, but are voluntarily adopted by
an organization to improve the competitive position of minority-group
members. As Justice Stevens recalled in his concurring opinion in
Johnson v. Transportation Agency, Santa Clara County, California (107
S. Ct. 1442 [19871~:
Prior to 1978 the Court construed the Civil Rights Act of 1964 as an absolute
blanket prohibition against discrimination, which neither required nor permitted
discriminatory preferences for any group, minority or majority. [But in Bakke
(1978) and Weber (19791] a majority of the Court interpreted the antidiscrimina-
tory strategy of the statute in a fundamentally different way. . . . It remains clear
that the Act does not require any employer to grant preferential treatment on the
basis of race or gender, but since 1978 the Court has unambiguously interpreted
the statute to permit the voluntary adoption of special programs to benefit
members of the minority groups for whose protection the statute was enacted.
[Emphasis in original.]
Admitting that this judicial construction of the act, so clearly at odds with
the color-blind rhetoric used by the senators and representatives who
enacted the bill, gave him pause, Justice Stevens nevertheless affirmed
the position. He cited both the public interest in the stable, orderly
development of the law and the stated interest of Congress in avoiding
undue federal interference with managerial discretion as reasons to do so.
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ISSUES IN EQUAL AD LOW 47
But the crux of the matter, as the Court had observed in a previous
decision (Firefighters v. City of Cleveland, 478 U.S. 501 [19861), was that
it would be unreasonable for the law triggered by the nation's concern
over centuries of racial injustice to be interpreted to prohibit "all private,
race-conscious efforts to abolish traditional patterns of racial segregation
and hierarchy."
As might be expected, the Supreme Court has not given a blanket
endorsement of voluntary plans that involve preferential treatment. It has
not, for example, endorsed quotas, but rather has authorized the consid-
eration of race or gender as one factor in selection or promotion
decisions. It has not altered the remedial nature of legally acceptable
race-conscious practices; there must be evidence suggestive of a prior
condition of discrimination, illustrated perhaps by a manifest imbalance in
the work force, that the affirmative action plan is intended to cure. The
Court has also been at pains to emphasize the temporary nature of
acceptable plans, and it has shown concern about the degree of burden
imposed on majority-group members. When the affirmative action in-
volved layoffs of workers with greater seniority, race-conscious measures
have been struck down on grounds of reverse discrimination. In Wygant
v. Jackson Board of Education (476 U.S. 267 [19861), the Court rejected
a broad claim of "societal discrimination" as an acceptable justification
for adopting hiring preferences or other affirmative action policies that
place burdens on others.
As an illustration of the Supreme Court's cautious approach in the
emerging case law, Tribe notes that the Court has seemingly regarded all
racially explicit set-asides and other measures that force visible burdens
on individuals because of their nonminority status as "constitutionally
problematic to some degree." No Justice, he points out, has endorsed
minimal scrutiny of race-based preferences (Tribe, 1988: 1523~. Although
developments in the law permitting voluntary affirmative action programs
may ease the contradictory impulses in federal policy in some circum-
stances, the Court's limited and cautious recognition of affirmative action
programs does not provide any general mandate to pursue racial balance.
Furthermore, employment practices that are not part of a bona fide
affirmative action plan continue to make the employer vulnerable to the
conflicting claims of individual rights and pressure to show a balanced
work force. Indeed, the situation may be further complicated by a recent
decision that extends the Griggs formula for the first time to subjective
employment criteria.
In Watson v. Fort Worth Bank and Trust (101 L. Ed. 2d 827 [19881), the
Supreme Court acknowledges the problem of the surreptitious quota
systems that have been a result of government equal employment
opportunity policy. "We agree," Justice O'Connor writes for the Court,
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48 BACKGROUND ID CONTEXT
"that the inevitable focus on statistics in disparate impact cases could put
undue pressure on employers to adopt inappropriate prophylactic
measures." Having conceded that the extension of the disparate impact
principle to subjective selection practices could increase the incentives
for employers to adopt quotas or to engage in preferential treatment,
however, the opinion offers little more than an exhortation that this
should not be the outcome, for it would be contrary to the express intent
of Congress and could violate the Constitution.
Little wonder if employers feel a bit like Alice in Wonderland. The
government's efforts to extend social justice to whole classes of people
are at odds with other important conventional values, and neither
Congress nor the Court has produced a rationale to make the new
dispensation wholly acceptable. The contradiction between a surface
adherence to color-blind law and the underlying government policy to
bring about occupational redistribution illustrates as well as anything can
the ambivalence of our society on the meaning of equity.
PERSPECTIVES ON WITHIN-GROUP SCORING
In the emerging case law, the Supreme Court has recognized the use of
race- and gender-conscious employment practices in rather closely cir-
cumscribed situations for the purpose of remedying past or present
unlawful discrimination or to foster appropriate affirmative action. Al-
though the Supreme Court has not itself had occasion to address the
subject of within-group scoring, a variety of score-adjustment mecha-
nisms intended to reduce adverse impact have been upheld at the
appellate level, particularly in the Second Circuit. In this still-evolving
area of law, commentators disagree about the boundaries of acceptable
and unacceptable race-conscious procedures in general and about the
specific procedures that have been used in pilot studies of the VG-GATB
Referral System.
As detailed above, the former Assistant Attorney General for Civil
Rights took issue with the scoring system promoted by USES because it
classifies job applicants on the basis of their race or national origin and
because it requires Employment Service offices to prefer some individuals
and disadvantage other individuals on the basis of their membership in
racial or ethnic groups. The Justice Department in the last administration
found the practice unconstitutional under Wygant and under Local 2S,
Sheet Metal Workers' International Association v. EEOC (478 U.S. 421
[198611. The Justice Department's position was that these cases make
clear that racial preferences are permissible "only as a last resort to
remedy persistent and egregious discrimination by the specific employer"
(letter from Wm. Bradford Reynolds to Richard Gilliland, Director, U.S.
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ISSUES IN EQUITY AND LAW 49
Employment Service, November lit, 1986). The GATE referral program,
however, requires government agencies to extend racial preferences
regardless of whether an employer has engaged in any racial discrimina-
tion, and it does so outside a specific remedial context. The Justice
Department also found the score conversions illegal under Title VII,
citing Section 703(jjj quoted above, which denies any requirement for
preferential treatment.
Other commentators j including the Lawyers' Committee for Civil
Rights Under Law, read the case law rather differently. They point out
that both Title VII and the Constitution permit (and sometimes require)
the- use of race-conscious selection procedures in appropriate circum-
stances. For example, the Supreme Court has held that private (United
Steel Workers of America v. Weber, 443 U.S. i93 [1~791) and public
(Johnson v. Transportation Agency) employers may, independent of any
judicial finding of past discrimination, adopt race-conscious hiring or
promotion plans as part of a voluntary affirmative action program to
address a "conspicuous . . . imbalance in traditionally segregated job
categories." As Justice Stevens wrote in a concurring opinion in Johnson
(p. 3)
since 1978 the Court has unambiguously interpreted the statute to permit the
voluntary adoption of special programs to benefit members of minority groups for
whose protection the statute was enacted. [Emphasis in original.]
In the Weber ease j in which a white employee challenged race-
conscious admission to a new program to train workers for high-paying
skilled-crafts jobs, the opinion of the Court emphasized the temporary
duration of the plan, its remedial purpose, the "voluntary" nature of the
plan j and the fact that it did not abrogate preexisting rights since the
whole training program was new. In Johnson, a woman was promoted in
preference to a man who had received a slightly higher rating, although
both were rated as well qualified for the job of road dispatcher; At the
time, none of the 238 incumbents in the job category was female. The
Court, guided by its decision in Weber, affirmed that voluntary employer
action can play a crucial role in furthering Title VIIjs goal of eliminating
the effects of discrimination in the workplace. In rejecting the district
court's finding that the affirmative action plan was illegal because it was
not temporary, the Supreme Court reasoned that: the plan was flexible
and did not impose quotas; it did not authorize blind hiring by the
numbers, but expressly directed that numerous factors be taken into
account; and the employeris plan was to "attain" a balanced work force,
not to "maintain" a permanent racial and sexual balance.
The. determination of whether or not a given race-conscious procedure
is lawful turns on the facts surrounding its use. Advocates of within-group
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50 BACKGROUND AND CONTEXT
scoring argue that since the procedure was adopted in order to comply
with the requirements of Title VII and that, without the scoring adjust-
ment, the GATE would result in significant adverse impact against
minorities, judicial precedent supports the legality of the procedure as a
reasonable measure to eliminate that impact.
Representatives of the Lawyers' Committee for Civil Rights Under
Law pointed out to our committee that the courts have approved the use
of a variety of score-adjustment mechanisms intended to reduce adverse
impact. For example, an appellate court approved adding 250 points to
the score of each minority candidate on the basis of evidence that the
scores of minority candidates on the written portion of a promotional
examination underpredicted their job performance (Kirkland v. New York
State Department of Correctional Services, 628 F.2d 796 [2d Cir. 1980],
cert. denied, 450 U.S. 980 [198111. In another case, the same court upheld
a consent decree that called for a variety of race-conscious scoring
procedures simply on the basis of a showing that the existing scoring and
rank-ordered selection procedure had an adverse racial impact (Kirkland
v. New York State Department of Correctional Services, 711 F.2d 117 [2d
Cir. 19831, cert. denied, 465 U.S. 1005 [198411. The race-conscious
scoring procedures that the court approved included: separate frequency
distributions for minority and nonminority candidates; establishing score
zones in which a group of final examination scores are deemed the same
for purposes of certification and appointment; and elimination of partic-
ular items that resulted in statistically significant adverse impact among
candidates of substantially equivalent ability.
In these and a number of other cases, courts have upheld methods of
score adjustment that, if followed, would reduce or eliminate the adverse
racial impact of the selection practice and avoid continued violation of
Title VII. These cases may or may not apply to a race-conscious scoring
system voluntarily adopted by the Employment Service outside a reme-
dial context. In addition, the emerging case law does not seem entirely
consistent. In San Francisco Police Officers' Association v. San Fran-
cisco (812 F.2d 1125 [9th Cir. 19871), the court of appeals rejected
reweighting of three selection tests to eliminate an adverse impact against
women, on the grounds that the reweighting "unnecessarily trammeled
the interests of nonminority police officers.'' The adjustment of scores, in
the court's opinion, became the sifting device, rather than the examina-
tions themselves (812 F.2d at 1125 n.5~. And in Hammon v. Barry (813
F.2d 412 [D.C. Cir. 19873, petition for reh'g denied, 826 F.2d 73 [D.C. Cir.
19871), the court of appeals rejected selection of firefighters from rank-
ordered lists compiled separately by race, sex, and ethnic group in
proportion to their representation among those who passed the test. In this
case the court failed to find the necessary "predicate of discrimination."
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ISSUESINEQUl~AND~W 5]
In addition to legal precedents, proponents of the adjustment of GATE
scores point out that Section 6(A) of the Uniform Guidelines encourages
the use of alternative selection procedures, including race-conscious
procedures, as a way of achieving compliance with Title VII or for
affirmative action purposes (there is a caveat that the procedures must be
legal). The signatories to the Uniform Guidelines joined in adopting a set
of "Questions and Answers to Clarify and Provide a Common Interpre-
tation of the Uniform Guidelines" (43 Fed. Reg. 12,001 [19791) in March
1979. The explication provided in Questions 30 and 31 strongly suggests
that no validation is required of alternative procedures adopted to
eliminate adverse impact, because federal law does not require a demon-
stration of the job relatedness of selection procedures that do not have
adverse impact. In fact, under the Uniform Guidelines, use of alternative
selection procedures to eliminate adverse impact is an option that is
available to employers in lieu of validation. It would seem, then, that a
within-group scoring procedure that eliminates adverse impact could fall
within the Uniform Guidlelines.
This committee is obviously not in a position to make a definitive
statement about these conflicting interpretations of the legality of within-
group scoring of the GATE. The evolution of fair employment law since
1964 has produced two grounds for race-conscious employment practices:
the mitigation of adverse impact and voluntary affirmative action. It
would appear that the Employment Service may not be able to justify use
of score adjustments as part of its lawful affirmative action efforts because
it is not acting as an employer. And, since in Justice Stevens's words,
Title VII permits but does not require an employer to grant preferential
treatment on the basis of race or gender, score adjustments for affirmative
action purposes by a governmental employment agency might be found to
constitute undue governmental interference with managerial discretion. If
the scoring system is not justifiable as part of an affirmative action plan,
then its acceptability would seem to depend on whether the weight of
legal opinion will recognize the adoption of a generalized score adjust-
ment, designed to prevent adverse impact, as an appropriate compliance
effort under Title VII.
Representative terms from entire chapter:
affirmative action
