April 27, 1987
Everything about the latest Supreme Court decision on affirmative action -- lumpily labeled Johnson v. Transportation Agency, Santa Clara County, California, et al. -- seems totally unastonishing. Possibly this is because all the principal actors have become so predictable. In the wake of Johnson , there was the American business community professing as usual to be delighted with an opinion guaranteeing still more quotas in employment. The Reagan Administration was as usual looking like a loser. The union of liberal commentators, led by the New York Times , was as usual enthusing over the court's murky reasoning. ("On Giving Women a Break" was the smarmy headline atop the Times 's editorial.) The Supremes themselves were as usual divided, but the nose count revealed still another majority in the grip of a certain idea.
The idea is this: All people are inherently equal in ability and motivation, and so inequalities in employment and income must stem from inequities in our social arrangements. The idea is never stated explicitly in the court's opinions, and its empirical foundations are rather wobbly; indeed an avalanche of research in biology and psychology has been demonstrating more and more human differences to be innate. Yet the idea continues to sustain Justice Bill Brennan and the court's other instinctive egalitarians, and it enables them to keep finding that we have a problem needing to be solved any time some ethnic group or sex is "underrepresented" in various jobs. The unstated ideal is proportional representation; The Brennanites' usual way of attaining it is via reverse discrimination.
They have long since made clear that they will not be deterred by the plain language of the law. The Civil Rights Act of 1964 unambiguously states that you cannot require preference "on account of an imbalance which may exist with respect to the total number or percentage of persons of any race . . . (or) sex . . ." In the 1979 Weber case, which is the main ancestor of Johnson , Brennan nevertheless upheld a quota plan designed to rectify long-standing imbalances. How did he do it? No sweat: He argued that, sure, the law didn't "require" any such reference, but it "permitted" Kaiser Aluminum to set up preferential plans voluntarily. (In fact, the voluntariness of the plan was a bit of a charade: Kaiser had entered into the plan because its arm was being twisted by federal regulators.) The court also labored to make Weber more palatable by saying that any such plans had to be temporary. This created a difficulty in Johnson, because Santa Clara county had labeled its goals "long range." This time Brennan got around the difficulty by arguing that they couldn't really be long range because they envisioned only that the county would "attain" a certain balance (the figure for women was 36.4% of all jobs), not "maintain" it. Pretty smooth, eh?
Not dealt with in Brennan's opinion was another logical difficulty about those goals. In moving mindlessly toward proportional representation, the county had looked around to see who was in the local labor force and then come up with the following goals for minorities: blacks, 1.6%; Hispanics, 14.8%; Asian-Americans, 2.9%, American Indians, 0.4%, handicapped individuals, 6.5%. But unlike the women, who were underrepresented in most job categories, several of these groups were over represented. Blacks, for example, were overrepresented in five out of the seven job categories for which the county was hiring. By the logic of the court's decision, whites should be given preference over blacks in these positions. The American civil rights establishment managed to ignore this awkward fact; both the Urban League and the NAACP expressed delight with Johnson .
The formal posture of business toward the decision was equally ecstatic. The National Association of Manufacturers, the Business Roundtable, and the Chamber of Commerce were all for Johnson , and the press printed encomiums to the decision by spokespersons from General Electric, Du Pont, Campbell Soup, Champion International, Eastman Kodak, Philip Morris, and many more. Also weighing in on the side of proportional representation was the American Society for Personnel Administration, a kind of trade association for the human
resources folk, which filed an amicus curiae brief that sought to help the court justify group preferences over merit. Laboring to prove that merit isn't all that important, and that it was okay for Santa Clara county to choose a woman over a man who had scored higher on the relevant exam, the ASPA came up with a doctrine that your correspondent had not previously heard of. Said the brief: "It is a standard tenet of personnel administration that there is rarely a single, 'best qualified' person for a job." Somehow one senses that, if the U.S. has a problem with "competitiveness" (see Competition), it is not going to be solved by the personnel department.
Why is American business in this posture? Partly, we assume, because all large corporations now have huge affirmative action bureaucracies representing an insistent internal pressure to support quotas. And partly, we sense, because a lot of C.E.O.s have been sold on the doctrine of corporate social responsibility and actually believe they are doing good by enforcing quotas.
The posture of the Reagan Administration is even harder to make sense of. In one case after another, we sit here watching Ron's solicitor general go before the Supreme Court and get clobbered when he tries to make a case against reverse discrimination. The suits in question typically involve large principles but, as in Johnson , only a few employees. Meanwhile, Reagan has steadily refused to lift up his fountain pen and, with a stroke thereof, rescind the executive order that now requires all federal contractors to have goals and timetables -- and that represents the major source of employment quotas in the U.S. We gather that the President is in this weird position because he just can't bring himself to resolve the dispute between Labor Secretary Bill Brock (who thinks the present system is fine) and Attorney General Ed Meese (who wants to end it). Looking back in dismay, a lot of Reaganites are now telling themselves that the time to have acted decisively against quotas was in the Administration's first few months, when Ron seemed irresistible. They had their chance, and blew it, and the logic of proportional representation is now set in concrete.
February 16, 2009
The country is very slowly waking up to the realization that we need to become more competitive. One obvious luxury that hurts America's economic competitiveness are quotas. But this logic is hardly obvious to the punditariat. One problem is that most quotas are secretly imposed by employers themselves to prevent "disparate impact" lawsuits, as Daniel Seligman explained more than two decades ago in his Keeping Up column in Fortune