Law reviews are filled with sophisticated and often impassioned debates over the use of racial and gender preferences in employment, education, and electoral districting. As a political scientist I am particularly interested in a puzzle that has received far less attention in the legal literature: How have such highly unpopular programs become so well entrenched in public policy and in the practices of employers and educational institutions? In this Article, I will suggest that part of the answer lies in the nature of the peculiar regulatory regime that has evolved since 1964 to interpret and enforce nondiscrimination rules relating to race, gender, and disability. This regulatory regime, which governs the conduct of nearly every employer, school, and unit of state and local government in the country, is notable for its lack of transparency and accountability--features that, for better or for worse, insulate it from ordinary politics.
That the use of racial and gender preferences lacks public support is hard to deny. A recent Century Foundation report noted that:
Racial preferences in higher education remain highly unpopular among voters, who consistently register opposition by a two-to-one margin. Anti-racial preference referenda have been put to voters in six states--both "blue" and "red"--and prevailed in five of those: California (1996), Washington (1998), Michigan (2006), Nebraska (2008), and Arizona (2010). (1) The most comprehensive political science analyses of the subject, Paul Sniderman and Thomas Piazza's The Scar of Race and Sniderman and Edward Carmines' Reaching Beyond Race, found that opposition to affirmative action is so intense that the mere mention of the topic early in a polling interview increased the prevalence of negative racial stereotypes and decreased support for programs designed to help racial minorities later in the interview. (2) Recognizing these political realities, colleges and graduate schools have gone to great lengths to obscure the size of the boost given to minority candidates in the admissions process. (3) In American politics one rarely finds such a huge and persistent gap between public policy and public opinion.
A possible explanation for the creation and survival of these unpopular policies is that they have been imposed by unelected judges who use constitutional interpretation to circumvent the political process. This was certainly true of busing to achieve school desegregation in the 1970s, but it does not explain the persistence of affirmative action in employment, college admission, or electoral districting, where federal regulation is based on federal statutes rather than on the Constitution. In these areas, the Supreme Court often has tried to tamp down use of gender and racial preferences only to see its decisions overridden by Congress or circumvented by regulators. The most important examples are the Civil Rights Act of 1991, (4) which reversed a number of Supreme Court interpretations of Title VII of the Civil Rights Act of 1964 that had made it more difficult for plaintiffs to win "disparate impact" suits, (5) and the the Voting Rights Act Amendments of 1982, (6) which overturned Supreme Court decisions that had reduced federal pressure to create "majority minority" electoral districts. (7) Far from demonstrating the strength of the "imperial judiciary," affirmative action illustrates the limits of the Supreme Court's control over policymaking and the extent to which Congress has been willing to step in to defend the status quo.
John Skrentny, the author of the most thorough and convincing explanation of the creation of affirmative action policies under Title VII, (8) has offered a number of explanations for their persistence. (9) Most importantly, opposition to affirmative action is broad but diffuse. It is not a top priority of many voters or of any significant political organizations. (10) Supporters of affirmative action, in contrast, care deeply about the issue, are well organized, and are quick to mobilize against threats to the status quo. (11) And in American politics, it is always far easier to defend the status quo than to promote policy change. (12) We also know that in politics people are most likely to take action to oppose losses; potential gains are usually too speculative to generate as much political passion, especially among those who are not well organized. (13) Those subject to government regulation, most importantly employers and educational institutions, have not tried to mobilize opponents of affirmative action. Business likes the certainty provided by the legal status quo, which in effect offers a "safe harbor" to those who hire by the numbers, and it is reluctant to appear insensitive to the concerns of racial minorities and women. Moreover, the human resources departments of many large corporations have been at least as enthusiastic about affirmative action as federal regulators. (14) Most colleges and graduate schools, of course, are deeply committed to the continuation of racial preferences in admissions. (15) Republican presiden-presidential candidates and members of Congress have been wary of taking the lead in opposing affirmative action, lest they appear lacking in empathy for the plight of Hispanics and women, (16) two groups of voters they have been losing in recent elections. When it comes to electoral districting, moreover, Republicans are more than happy to create majority-minority districts when "packing" of reliable Democratic voters leaves surrounding districts whiter and more Republican. (17) This means, in short, that there are few potential entrepreneurs with the ability or the resources to mobilize the large number of voters who generally oppose the use of racial and gender preferences but do not put the issue high on their list of priorities.
Mobilizing opposition to an entrenched, well-defended policy usually requires an issue that is simple and easy for the average person to understand. That is one reason why the nature of the regulatory regime for interpreting and enforcing civil rights laws is particularly important. Civil rights regulation contains few clear-cut, publicly proclaimed rules. It rests instead on layer after layer of administrative guidelines, interpretive memos, suggestions included in enforcement handbooks, judicial interpretations of statutes and of agency rules, and even more esoteric judicial doctrines on burden of proof. The sources of these multiple rules and standards are often obscure. Agencies claim to rely on the authority of courts; courts claim to rely on the expertise of administrators; and both judges and administrators claim to follow the commands of Congress. Congress, in turn, usually insists that it is merely following the constitutional interpretation of the Supreme Court. All three branches do what they can to avoid taking responsibility for the choices they make. This makes understanding civil rights policy a real challenge. The remainder of this article offers a brief glimpse at this convoluted regulatory world by focusing on two of its most important parts: federal supervision of educational institutions under Title VI of the 1964 Civil Rights Act (18) and Title IX of the Education Amendments of 1972. (19)
Title VI states that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." (20) To carry out this prohibition, Title VI gives all federal funding agencies two key powers. The first is the power to terminate the flow of federal money to any "particular program" that engages in discrimination. (21) The second is the power to issue "rules, regulations, or orders of general applicability" to "effectuate the provisions" of this section of the Civil Rights Act. (22) The most important governmental unit to exercise these powers has been the Office for Civil Rights (OCR), lodged first in the old Department of Health Education and Welfare (HEW) and, since 1979, in the Department of Education. (23)
The historian Hugh Davis Graham has noted that although "[a]lmost no attention was paid to Title VI" during the lengthy 1964 congressional debate, it "would become by far the most powerful weapon of them all...." (24) That was in part because the amount of money distributed by the federal government--particularly aid to public schools--skyrocketed after 1965. (25) Once its potential was unlocked, Title VI was quickly "cloned" to cover gender discrimination in educational programs (Title IX), as well as discrimination on the basis of handicap or age in any program receiving federal financial assistance. (26) But enforcement of Title VI (and its clones) was never quite as simple or straightforward as its original proponents had assumed. Its effectiveness depended on its transformation from an administrative alternative to constitutional litigation to a novel form of statute-based litigation that combined broad administrative rulemaking authority with judicial enforcement through private suits.
The Kennedy Administration presented Title VI as a quick and efficient alternative to the frustratingly slow and costly process of desegregating schools through litigation. President Kennedy explained that "indirect discrimination, through the use of Federal funds, is just as invidious" as direct discrimination, "and it should not be necessary to resort to the courts to prevent each individual violation." (27) The only changes that the House and Senate made to the Administration's bill were procedural in nature, designed above all to circumscribe the authority of federal agencies. The law provides state and local governments with the right to a public hearing prior to termination of funds and to judicial review after the fact. (28) It requires federal agencies to give Congress...