A revolution at war with itself? Preserving employment preferences from Weber to Ricci.

• Author: Lee, Sophia Z.
• Position: The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. REVERSE STATE ACTION AND GOVERNMENT BY NUMBERS IN ACKERMAN'S REVOLUTION A. Sphere by Sphere B. Government by Numbers C. Reverse State Action II. THE STATE ACTION DOCTRINE PRESERVES GOVERNMENT BY NUMBERS IN WEBER A. The Growing Constitutional Threat to Racial Preferences B. Employer Preferences' State Action Shield 1. Narrowing State Action 2. Dodging the Equal Protection Bullet in Weber 3. A Weber What If? III. STATE ACTION'S LINGERING PROTECTIVE EFFECTS A. The Reagan Administration's Attack on Preferences B. Weber's Protective Effects 1. Equal Protection Not Title VIT, Public Not Private 2. Precedential Effects IV. STATE ACTION TO THE RESCUE AGAIN? CONCLUSION INTRODUCTION

In January 1973, the Equal Employment Opportunity Commission (EEOC) reached a pathbreaking settlement with American Telephone & Telegraph (AT&T). The agency, created to implement the employment discrimination title (Title VII) of the 1964 Civil Rights Act, (1) had a rough start, plagued by uneven leadership, insufficient staff, and underfunding that resulted in enormous backlogs. (2) The AT&T settlement marked a turn in its fortunes. The case was sui generis. As the district court asked to approve the agreement noted, "there was no significant pending litigation in the federal courts when this consent decree was signed or ... when the extensive negotiations that led to the decree took place." (3) The EEOC's Chairman, William H. Brown III, called it "the most significant legal settlement in the civil rights employment history." (4) The agency's "comparatively low profile ... was strikingly altered" by the agreement. (5) Nowhere was this more the case than within the business community: "There is a lot of teeth-chattering going on around here," a vice-president of a large retail chain observed; equal employment consulting firms multiplied as their market of worried employers grew. (6)

The AT&T case plays a small but pivotal role in Bruce Ackerman's compelling new book, The Civil Rights Revolution. (7) This is the third volume in his series contending that Americans have developed an alternate system of "higher-lawmaking" in response to the near impossibility of formally amending the Constitution via Article V. According to Ackerman, all three branches periodically interact with each other and a mobilized electorate in a sustained way over time to formulate new extra-textual constitutional commitments. (8) His latest installment claims that the "Second Reconstruction" was an instance of this extra-Article V amendment process and elaborates the substance of the resulting commitments. (9) One of Ackerman's key claims is that rather than adopt a universal, abstract notion of equality, Americans employed what he calls a "sphere-by-sphere" approach in which the legitimate means for achieving equality were fitted to different structures of inequality. So, for instance, although there was a general commitment to achieving "real-world egalitarian gains," (10) Ackerman explains that the constitutionally acceptable means for doing so varied for voting rights as opposed to public accommodations. (11)

For Ackerman, the AT&T case typified one foundational feature of the constitutional revolution regarding employment discrimination and helped forge another. First, by targeting private employers such as AT&T, Ackerman argues that Title VII fundamentally altered "the state action doctrine of the nineteenth century," which he notes typically "insulate[d] private actors from [the Constitution's] egalitarian principles but impose [d] them rigorously on all state actors." (12) Second, the AT&T case helped refine how the employment discrimination dimension of this constitutional revolution would employ what Ackerman refers to as "government by numbers": the use of statistics to identify and remedy civil rights violations. (13) In a 20,000-page report replete with statistical analyses, the EEOC used AT&T to model employment discrimination systemically and nationwide. (14) The AT&T settlement also set numerical hiring goals and timetables for their fulfillment. (15) According to Ackerman, the acceptance of the AT&T case in the executive branch and Congress secured the legitimacy of using numerical measures to remedy, not only identify and prove, employment discrimination. (16)

Ackerman is right to highlight the significance of the AT&T settlement. As described above, it was the kind of lightning-rod case that could generate the public and governmental response that fuels Ackerman's theory. Going forward, it also became the template for government enforcement of Title VTI. (17) During the summer of 1973, the EEOC filed 150 cases against major corporations and assembled a national team of lawyers to "do the same thing as [AT&T] all over again." (18) As Ackerman observes, over the next few years, the EEOC secured court-approved consent decrees implementing similar number-based remedies in a range of industries. (19)

The AT&T case, however, also illuminates unexplored tensions within Ackerman's argument. In the two years after the federal district court approved the AT&T agreement, a number of the company's unions petitioned the court to modify its consent decree. (20) They contended, among other things, that by imposing numerical goals, the consent decree violated Title VII and the Constitution's equal protection guarantees. (21) The district court easily dismissed their claims in 1976, citing abundant precedent. (22) The Third Circuit Court of Appeals quickly affirmed, but cautioned that preferential remedies were not categorically constitutional and "must be held invalid under the ... Fifth Amendment unless" they satisfied "strict scrutiny." (23) In the appeals court's judgment, the AT&T agreement met this test. (24) The Supreme Court had not yet applied strict scrutiny to racial preferences adopted to remedy or prevent discrimination. (25) But over the next decade, the Supreme Court found an increasing number of preferential schemes to be unconstitutional. (26) During this same period, the Court gave greater leeway to preferences under Title VII. (27)

The "reverse-state-action" and "government-by-numbers" aspects of Ackerman's constitutional revolution were on a collision course. With preferential treatment more liberally allowed under Title VII than under the Constitution, using numbers to address employment discrimination became incompatible with applying the Constitution to the private sector. Instead, ensuring that the state action doctrine "insulate[d] 'private' actors from the [Constitution's] egalitarian principles" ended up protecting the "government-by-numbers" approach to employment discrimination. (28)

Part I explains in greater depth Ackerman's claim that the civil rights revolution included a major reworking of the state action doctrine and an embrace of numerical approaches to achieving equality. It also explains why employment is a particularly ripe site to explore the tensions between them. Part II demonstrates how the Court's preservation of the nineteenth-century state action doctrine helped preserve the use of numbers to achieve equality in the workplace when employers' voluntary use of preferences first came before the Court in the 1970s. Part III explains how this state action shield further protected these preferences in the 1980s, both before the Supreme Court and within President Ronald Reagan's administration. Part IV argues that the state action doctrine could once again rescue voluntary employer preferences. The Conclusion raises some possible implications of this history for the stability of the civil rights revolution Ackerman documents and for his broader theory of constitutional change.

1. REVERSE STATE ACTION AND GOVERNMENT BY NUMBERS IN ACKERMAN'S REVOLUTION

   Ackerman's civil rights revolution has three key characteristics: it took a "sphere-by-sphere" approach to codifying the Constitution's equality guarantee, it employed "government by numbers" to achieve this constitutional goal (albeit to varying degrees in each of the spheres), and it extended this constitutional mandate to the private sector. The result was targeted statutes and tailored administrative regimes customized to the particular structures of inequality in voting, public education, housing, public accommodations, and employment. As I explain below, these latter two characteristics coincided to the greatest degree in employment, making it a prime site to explore the tensions between them.

   1. Sphere by Sphere

      Ackerman argues that the Supreme Court's increasingly consistent insistence that equal protection is achieved through colorblind policies betrays a central tenet of the civil rights revolution. (29) Ackerman traces this tenet back to Chief Justice Earl Warren's opinion in Brown v. Board of Education. (30) "In making its case against 'separate-but-equal,'" Ackerman contends, Brown's reasoning "doesn't apply to all social relationships across the board" but instead "requires the law to single out crucial spheres for the vindication of equality." (31) When Congress enacted a series of civil rights statutes in the 1960s and early 1970s, it adopted this approach, Ackerman argues, "self-consciously dividing] the world into different spheres of life: public accommodations, education, employment, housing, voting." (32) Congress's goal in each sphere was the same: "the pursuit of real equality of opportunity." (33) But Congress had a "contextual understanding of the constitutional meaning of equality in different spheres of social and political life." (34) As a result, it "displayed great creativity in crafting different administrative setups for different spheres," which in turn "led to the development of different rules and principles in different spheres." (35) For Ackerman, it was these "landmark statutes," with their sphere-by-sphere approach, not the Court's increasingly formalist, homogenous approach to equality in...