Affirmative Action and the Presidential Role in Modern Civil Rights Reform: A Sampler of Books of the 1990s

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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. …