Equal Employment Opportunity/Disparate Impact
Primary sources of employment affirmative action are authoritatively documented in Hugh Davis Graham's magisterial The Civil Rights Era (New York: Oxford University Press, 1990). One major foundation of affirmative action was President Richard Nixon's "Philadelphia Plan," which forbade racial discrimination by federal contractors and mandated them to implement "affirmative action plans" for hiring "underutilized" members of protected groups in proportion to their availability.(1)
Another major pillar of affirmative action was the U.S. Supreme Court's determination that the ban on employment discrimination in Title VII of the Civil Rights Act of 1964(2) reached historical and societal bias against minority groups as well as intentional discrimination against minority individuals (Griggs v. Duke Power Co., 401 U.S. 424 [ 1971]). The legacy of Griggs has been a theory of Title VII liability known as "disparate impact"; if a minority/female (i.e., protected) group has been disproportionately affected by societal bias, then its members, solely because of their membership, are entitled to proportional representation in the job market. This entitlement may be defeated in a particular case only by the employer's showing of a "business necessity" for the disproportionate impact. Disparate impact and proportional representation were not mentioned in the 1964 act.
The upshot of these initiatives has been the institutionalization of minority/female protected group compensatory remedies in employment. This is the gist of affirmative action as we know it: compensatory advantage as the only authentic sanction for group discrimination. In this sense also, affirmative action was not mentioned in the 1964 act. Graham(3) and other scholars of comparable stature see in it an administrative and judicial departure from the literal statutory language in obedience to an equitable imperative, not merely to outlaw discrimination but also to repair its damages. On the other hand, much of our white majority sees in it intolerable "reverse discrimination" and compulsory minority quotas. No current domestic issue is more controversial, and in the midst of it, the Supreme Court (as of late) might be in the process of banishing disparate impact/ affirmative action for those performing government work.
As could be expected, a spate of affirmative action books pours from the presses. Some of them supplement Graham's account of disparate impact. Alfred Blumrosen's Modern Law (Madison: University of Wisconsin Press, 1993) and Herman Belz's Equality Transformed (New Brunswick, NJ: Transaction Publishers, 1991) display all the trappings of legal scholarship--weighty legalisms, copious footnotes and citations, and all the rest. Both clearly are the work of true believers, and they present totally irreconcilable views of disparate impact. Blumrosen cavalierly brushes aside the explicit statutory restriction of Title VII liability to intentional violations of individual rights. He maintains that disparate impact came into being because intentional discrimination is too difficult to prove and is, in any event, legitimately inferable from the 1964 act's failure to define discrimination.(4) Belz, on other hand, regards the notions of societal bias and group rights as anathema--gross perversions of the 1964 act.(5) Readers skilled in legal argumentation are invited to decide for themselves which of these stimulating and learned tracts has the better of it. In addition, for those who want training in the central legalisms of affirmative action, both books are highly desirable.
The theme of Graham's Civil Rights Era, which primarily covers the period 1960 to 1972, is that there have been two civil rights phases since 1960. The first ("Phase I") essentially focused on prohibiting intentional racial, national origin, and sex discrimination. The second ("Phase II"), continuing after Nixon's "Philadelphia Plan" played a major role in launching it, expanded the aforementioned "equal treatment" antidiscrimination policy to include both a ban on unintentional group discrimination and a cultivation of compensatory remediation for protected minorities and females, that is, affirmative action to secure "equal results." John F. Kennedy's failure to vigorously champion Phase I until shortly before his death is detailed by Graham and is distinguished from Lyndon B. Johnson's exuberant advocacy of the pathbreaking Civil Rights Acts of 1964, 1965, and 1968. In addition, the Graham volume, increasingly regarded as a major source for the subfield of the presidency and minority/female civil rights, focuses primarily on African Americans but also provides a good beginning (but only that) for the study of the women's and Hispanic rights movements in the twentieth century.
As Graham makes clear, civil rights concerns of the federal government during the period 1960 to 1972 focused primarily on the liberties of African Americans. "Like Lyndon Johnson, Nixon milked the Hispanic constituency of its political payoff but otherwise did not attempt to forge a self-consciously Hispanic program."(6) Hispanic groups were insufficiently organized, and were too hobbled with intramural bickering, to prompt much attention from the central members of the Nixon team.(7) Thus, "Because the wheels of the nation's scattered Hispanic organizations squeaked faintly, and rarely in unison, they got little oil."(8) Nevertheless, given the large size of the Hispanic population, federal civil rights agencies and Hispanics naturally turned to each other. The union produced some results. In 1971, the Office of Federal Contract Compliance (OFCC), which supervised the affirmative action programs required of those doing contract work for federally subsidized undertakings (e.g., the Philadelphia Plan), came to designate both Hispanics and females as protected groups entitled to affirmative action.
Graham's material on female civil rights emphasizes the dichotomous approaches to those liberties in the twentieth century. The union movement stressed protection for females in the workplace. However, the college-trained, Republican-oriented "liberationists" were classical egalitarians--equal treatment for males and females, plain and simple. To Graham, it was this egalitarian wing that produced and championed the Equal Rights Amendment (ERA), and it was this wing that developed enough potency to acquire Nixon's support for the ERA in 1971. Nevertheless, during that same year, the protectionist view was recognized by the OFCC in its declaration that females were a protected group entitled to affirmative action in federally subsidized contracts.(9)
Nixon's institutionalization of affirmative action receives virtually no attention in Thomas Edsall and Mary Edsall's Chain Reaction (New York: Norton, 1992). Rather, this richly provocative volume maintains that Nixon and Ronald Reagan mined electoral gold by exploiting the race-based grievances of disaffected lower middle-class whites, especially in the Deep South (hence, the celebrated "southern strategy"). The book describes these grievances in all too familiar detail--supposedly disadvantaged racial and ethnic minorities as undeserving beneficiaries of affirmative action advantage, minorities as habitual idlers who batten overstrained public assistance resources, and minorities who have despoiled the functional family unit that is the core of our moral fiber. As candidates for the presidency, Nixon and Reagan cynically played on these misguided perceptions, not by use of overt racist appeals but rather by resorting to "code word" themes--denunciation of racial quotas, advocacy of "workfare" in place of welfare, fulminations against school busing, and pious affirmations of "family values."(10)
Edsall and Edsall believe that Nixon and Reagan won their presidential elections, in large part, because this code-word racism succeeded. Although these writers are highly regarded political journalists and commentators, some readers might detect a faint, perhaps unintended, tinge of partiality in their racist strategy scenario. It is true that they rebuke the "liberal" wing of the Democratic party for excessive zeal(11) in promoting minority rights while neglecting the white middle class. But this complaint has a discernible "more in sorrow than in anger" tone, and the volume sometimes reads like a field manual for the achievement and maintenance of white blue-collar and other white middle-income support for the Democratic party. It is interesting to note that Edsall and Edsall rely heavily on scholarly works that reflect their own orientation (e.g., Edward G. Carmines and James A. Stimson's Issue Evolution [Princeton, NJ: Princeton University Press, 1989]). In this tome, the authors resort to statistical techniques in an effort to reveal the "racially conservative" nature of Republican electioneering.(12) But at bottom, there is much that is anecdotal and impressionistic in the Edsall and Edsall thesis, particularly in its reliance on human nature's darker dimensions. One wonders why the values of family, work, and self-reliance are not more often celebrated for their own merits rather than decried as fig leaves for racial animosity. At one point, Edsall and Edsall concede (or suggest) that Reagan's espousal of these values might have been sincere on occasion.(13) But they make no effort to conceal their distaste for Nixon.
As for Nixon, it is plain that the full verdict on this enigmatic president has yet to be rendered. In The Ironies of Affirmative Action (Chicago: University of Chicago Press, 1996), John David Skrentny aptly says that understanding Nixon's civil rights agenda "has been an exercise in futility for scholars of the American presidency.(14) Readers would be well advised to peruse Skrentny's masterful summary of the flawed explanations that have been offered, from closet racist...