A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci

Article excerpt

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 


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. …