owl 94th Congress ICOMITTEE PRIT
A2d Session C
;, MAR 1977 V
CIVIL RI "
A STAFF REPORT
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE
COMMITTEE ON THE JUDICIARY UNITED STATES SENATE
Printed for the use of the Committee on the Judiciary
The views contained in this Staff Report are the views of the
indiviual authors and do not necessarily reflect the views of any
member of the Committee or its staff.
U.S. GOVERNMENT PRINTING OFFICE 580-76 WASHINGTON : 1976
For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 Price $2.75
COMMITTEE ON THE JUDICIARY JAMES 0. EASTLAND, Mississippi, Ohairman
JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska
PHILIP A. HART, Michigan HIRAM L. FONG, Hawaii
EDWARD M. KENNEDY, Massachusetts HUGH SCOTT, Pennsylvania BIRCH BAYH, Indiana STROM THURMOND, South Carolina
QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS, Ja., Maryland ROBERT C. BYRD, West Virginia WILLIAM L. SCOTT, Virginia
JOHN V. TUNNEY, California JAMES ABOUREZK, South Dakota
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS JOHN V. TUNNEY, California, Ohabrman JOHN L. McCLELLAN, Arkansas HUGH SCOTT, Pennsylvania
EDWARD M. KENNEDY, Massachusetts ROMAN L. HRUSKA, Nebraska BIRCH BAYH, Indiana HIRAM L. FONG, Hawaii
PHILIP A. HART, Michigan STROM THURMOND, South Carolina
JAMES ABOUREZK, South Dakota
JANE L. FRANK, Chief Cou7 and gStaff Director ROBERT A. MALSON, 0ounsel
The right of every American citizen to. select his own -society and invite whom he will to his own parlor and table should be sacredly respected. A man's home is ish castle, and he has a right to admit or refuse admissioni to it as he may please, and defend his house from all intruders even with force, if need be. This right belongs to the humblest not less than the highest, and the exercise of It by any of our citizens toward anybody or class who may presume to intrude, should cause no complaint, for each and all may exercise the same right toward whom he Will.
When he quits his home and goes upon the public street, enters a public car or a public house, he has no exclusive right of occupancy. He is only a part of the great public, and while he has the right to walk, ride, and be accommodated with food and shelter in a public conveyance or hotel, he has no exclusive right to say that another citizen, tall or short, black or white, shall not have the same civil treatment with himself.
The distinction between the two sorts of equality is broad and- plain- to the understanding of the most limited, and yet, blinded by prejudice, men never cease to confound one with the other, and allow themselves to infringe the civil rights of their fellow-citizens as if those rights were, in some way, in violation of their social rights.
-Frederick Douglass, September 24, 1883. The history of the United States of America reflects a 400-year attempt to reconcile, the distinctions in attitude and public policy' that Frederick Douglass spoke -of nearly a century -ago. 'When I became chairman of the Constitutional Rights Subcommittee of the Senate Judiciary Committee in 1975, 1 asked the staff to prepare, for the benefit- of the "subcommittee, a broad overview of the current issues that form the core of the dialogue surrounding civil rights.
This report, not surprisingly, indicates that the most pressing problems remain those associated with the fundamental needs of survivalthe economy, employment, housing, education, and even life and death.
Robert A. Malson, counsel to the subcommittee, is responsible for the selection of the topics and the contributors and is the editor of this staff report. He was assisted by Joseph Allen and Sheri ley of the subcommittee's research staff and by three undergraduate interns, Thomas Beckett of Brown University, Benjamin Pollock of Williams College, and Henry Schmeltzer of Princeton University.
I wish to express my personal appreciation to the individuals who agreed to contribute the thoughtful articles that have not been previously published. They are: William L. Taylor (chapter 1), Harry Kranz (chapter 6), Richard F. America (chapter 8), Martin E. Sloane (chapter 9), Ernest Erber and Daniel Searing (chapter 10), Elias Blake (chapter 12), Arthur J. Goldberg (chapter 16) and Eruk 'W. D. Young (chapter 17).
The excellent introduction written by Armand Derfner (chapter 2), for the paper prepared for delivery by Professors Goldberg and Schwartz to the Society of American Law Teachers, enhances our appreciation of the chapter. Similarly, the introductory note drafted by Michael S. Yesley (chapter 13) was of particular assistance in
explaining the context of research involving prisoners and the Federal role in the debate. I am also appreciative of the careful assistance given by Karl Pilger, a third-year student at Georgetown Law School, In the selection of the excerpts of the Supreme Court's death penalty opinions (chapter 15).
The articles, reports and speeches authored by M. Carl Holman (chapter 3), Clifford L. Alexander, Jr. (chapter 4), Miro Todorovich and Howard Glickstein (chapter 5), Andrew F. Brimner (chapter 7), the U.S. Commission on Civil Rights (chapter 11), and Franklin E. Zimring, Joel Eigen, and Sheila O'Malley (chapter 14), were reprinted here because of their contribution to our understanding of the perceptions and problems that exist in the areas of their expertise.
No attempt was made to cover the entire breadth of civil rights issues in this single volume. Voting rights and the right to public accommodations are only two of the traditional civil rights subjects which were not addressed.
The increasing awareness of the civil rights problems associated with illegal aliens, gay rights, and the handicapped were not identified for separate emphasis although, in many instances, the contributors have analyzed the impact of various programs and policies on these groups.
It is my hope that this volume will be of assistance to the members of the subcommittee in understanding the conflicting facts and perceptions that often operate in the background of our legislative efforts in the field of civil rights.
JoHN V. TuoEY,
Chairman, Consti~tutiona2 Rights Subcomittee.
1. William L. Taylor, "The Role of Law in Civil Rights Progress" ---------1
2. Carole E]. Goldberg and Herman Schwartz, "Closing the Federal Courthouse to Public Interest Litigation" ------------------------------ 25
PARIT 1. EMPLOwYMENT
3. M. Carl Holman, "The First Ten Years of Equal Employment Opportunity Law"------------------------------------------------- 41
4. Clifford L. Alexander, "Inside the Equal Employment Opportunity
5. Miro Todorovich and Howard Glickstein, "Affirmative Action: Two Views"------------------------------------------------------ 69
6. Harry Kranz, "The Myths of Civil Service Merit and Equity---------- 91
PART 2. THME ECONOMY
7. Andrew F. Brimmer, "The Right to Jobs--National Economic Outlook and Employment Prospects for the Black Community"--------------1III
8. Richard F. America, "Antitrust and Economic Disparities" ----------- 123
PART S. HOUSING
9. Martin E. Sloane, "Federal Programs and Equal Housing Opportunity" ----------------------------------------------------- 131
10. Ernest Erber and Daniel Searing, "Mortgage Credit Practices: Discrimination and Disinvestment"-------------------------------- 153
PART 4. EDUCATION
11. U.S. Commission on Civil Rights, "'Desegregation of the Nation's Public
12. Elias Blake, Jr., "Public Policy and the Higher Education of Black
Americans" ------------------------------------------------- 191
PART 5. LIFE AND DEATH
13. National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research "Research Involving Prisoners"_.~ 203 14. Franklin E]. Zimring, Joel Eigen, and Sheila O'Malley, "Punishing
Homicide in Philadelphia: Perspectives on the Death Penalty" -------219 15. The U.S. Supreme Court, "Excerpts from Six Recent Opinions on
Capital Punishment"---------------------------------------- 237
16. Arthur J. Goldberg, "The Death Penalty, Courts, Legislatures and
17. Erult, W. D. Young, "Euthanasia: A New Civil Right?"--------------- 277
Digitized by the Internet Archive in 2013
The Role of Law in Civil Rights Progress
Willi am L. Taylor*
The 1960s were a decade of revolution in the law governingy the relationship of the races in the United States. In 1254, the.Supreme Court had begun the great work of removing the imprimatur that the law had placed upon the inferior status of black people in the period after Reconstruction. The Court, in Brown v. Board of Education1" and succeeding cases,2 renounced the massive legal fiction constructed almost 60 years earlier that legally sanctioned segregation of blacks aud whites in public facilities and institutions could constitute equal treatment before the law.
But, in the face of widespread resistance, the Court's command that "separate but equal" public facilities be abolished could not become effective until other doctrines that had served as bulwarks of a legal caste system were attacked. The dismantling of two of these doctrinesthat black citizens were not legally entitled to equal treatment by private institutions no matter how critical to their survival and that ordinarily the victims of discrimination must shoulder the burden of vindicating their rights unaided by the law enforcement agencies of the Federal Government-was the major legal accomplishment of the 1960s?
Once these supports for racial injustices were removed, black people for the first time in this century began to derive tangible benefits from the promise of the fourteenth amendment that all citizens would receive the equal protection of the laws. But, for many reasons, the gap between promise and performance remains very wide.
Only recently have the courts, the Congress, the executive branch and the Nation been confronted with the task of giving affirmative content to the concept of equality in the light of the impact that long years of deprivation and maltreatment have had upon black people. The task has been made more complex by new barriers created by the rapid urbanization of the Nation and by a blurring of distinctions between racial and economic injustice. And questions of the will of government and the availability of resources to enforce legal guarantees remain unresolved.
In the law, as elsewhere, the task of defining equality in terms that will be meaningful to racial minorities and of enforcing declarations of legal rights, provides the challenge of the 1970s.
William L. Taylor, Esq., Is the Director of the Center for National Policy Review, School of Law. Catholic University of America. The author Is indebted to Terry X. Banks of the Washington law firm of Hogan & Hartson, for the valuable research assistance he provided on this article.
1 347 U.S. 483 (1954).
2See, e.g., May~or of Baltimore v. Dawson, t50 U.S. 877 (19.55) (public beaches) -, Holmnes Y. City of Atlanta, 350 U.S. 879 (1955) (municipal golf courses) ; Gayle v. Browoder, 352 U.S. 903 (1956) (statute requiring segregation on buses).
IL. MAJOR PosrrrvE DEvELOPMNT IN THE LAW
A. THE EXTENSION OF EQUAL OPPORTUNITY TO THE PRIVATE SECTOR
In the struggle after Reconstruction to prevent emasculation of the thirteenth, fourteenth and fifteenth amendments, one of the crucial battles lost was the effort to protect black citizens from discrimnation at the hands of private agencies. In the Civil Rights Cases 1 decided in 1883, the Supreme Court invalidated as beyond the power of Congress a statute outlawing racial discrimination in transportation and in hotels, theaters and other places of pblc accommodation. The fourteenth amendment, the Court declar orbade only States not private agencies to deny to citizens the equal protection of the laws. Nor could such discrimination be reached as a badge of slavery prohibited by the thirteenth amendment. From this reasoning arose a distinction between political rights which were Subject to Federal protection (with major. qualifications) and social rights which were not. The latter. category comprehended not only the right to equal treatment in places of -public accommodation, but the right not to be denied the opportunity to earn a living or to obtain shelter because of one's race. Power to deal with such forms of discrimination remained with the States, but no redress was available from the refusal of the great majority of State governments to exercise this authority.
The great break in the shackles imposed by this legal doctrine came when Congress, responding to a massive expression of national conscience, passed the Civil Rights Act of 1964.' Title VII of the law prohibited job discrimination based on race, color, religion, sex, or national origin by employers of 25 or more people, unions and employment agencies.5 Discriminatory practices were forbidden in hiring, promotions, in setting the terms and conditions of employment, in apprenticeship and training programs, in referrals and in union memnbership. In short, for the first time millions of job opportunities' in the nation were to be governed by rules that guaranteed to black and other minority citizens the right to be treated fairly.
Title 11 of the 1964 Act,6 the public accommodations section, was the other provision establishing a legal duty on the part of nongovernmental institutions to treat citizens without discrimination. Title II declared a right, to equal enjo-yment of the goods, services, facilities and privileges of places of public accommodation and covered most hotels and motels, restaurants and other eating facilities, gasoline stations and entertainment facilities such as theaters, concert halls and sport arenas.
The impediments to Congressional action cited in the Civil Rights Cases were removed by predicating both titles on Congr~ess' broad authority under the Comnmerce Clause of the Constitution (Article I, KSec. 8) to remove obstructions to commerce and travel, as well as uponl its power to act affirmatively to enforce the guarantees of the fourteenth amendment. Quickly and with little apparent difficulty, the Supreme Court resolved in favor of the rights of black people an issue
8 109 U.S. 3.
442 T. S. C. No. 2000 Pt seq.
5 Tn "I (7f) tho lqw was nniendpid 1-0 Ineltide te0vptra2 of #nnpihverq of 15 or more people. 42 U.S.C. No. 2000Pe as amended Mar. 24, 1972, Public Law 92-261, Sec. 2.
e42 U.S.C. No. 2000a.
on which the Federal Government had been paralyzed for almost a century.7
The one large remaining gap in establishing a legal duty on the part of private institutions to treat black people fairly was closed 4 years later with the enactment of title VIII of the Civil Rights Act of 1968.8 That provision prohibited racial discrimination by all of the major elements of the housing industry--developers, landlords, real estate brokers, and lending institutions. Coverage of the law is broad, the major exceptions being single family homes sold without the aid of a broker and owner-occupied rooming houses of no more than four families.
These actions of Congress, in extending the obligation to refrain from racial practices to major private institutions, were foreshadowed and later significantly buttressed by legal principles developed in the courts and, to a lesser extent, by the executive branch. As early as the 1940s and 1950s, courts began to recognize that in the post-New Deal era, any previously clear distinctions between private and governmental activities were blurred by the maze of arrangements providing government subsidies, supports and protected status to private agencies and regulating their activities. The result was a rule of law perhaps best expressed in the Supreme Court's 1961 decision in Burton v. Wilmington Parking Authority that private conduct otherwise insulated from the reach of the fourteenth amendment would be prohibited where Government either through action or inaction places its "power, property, and prestige behind the admitted discrimination." 9 This principle has been applied by the courts to bar discrimination in federally assisted private hospitals, in private schools benefitting from tax exempt status, in private recreation facilities benefitting from city care, maintenance and tax exemptions.10 To meet the test, Government's involvement in the discrimination need not be purposeful; indeed it maybe indirect and peripheral. With the enactment of title VI of the Civil Rights Act of 1964," this judicial interpretation of the fourteenth amendment gained statutory support and every Federal dpTartment and agency was placed under a duty to assure that private institutions that received Federal money did not discriminate on the basis of race.
Perhaps the most devastating blow to what remained of the requirement of "state action" as a limitation of the rights of black people to full citizenship came with the Supreme Court's resurrection of two laws passed during the Reconstruction period. In Jones v. Alfred H. Mayer O o.,12 the Court applied an 1866 law,'3 stating that all citizens of the United States shall have the same rights as white citizens to
7 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) ; Katzenbach v. McClung, 379 U.S. 294 (1964).
S4 2 U.S.C. No. 3601 et seq.
3A5 U.S. 725 (1961).
10 See. e.S.. l'imkins v. Moseq Cone Yospifal, 323 F. 2d 959 (4th Cir. 1963) G Green. v. Kennedit. 309 F. Sun 1127 (D.D.C. 1970) : Evans v. Newton, 382 U.S. 296 (1966). Earlier, the octrine of "state action" had been eroded by the Sunreme Court In other ways. In Shl7y v. Kraemer, 334 U.S. 1 (1948) the Court had held that racially restrictive covenants. otherwise purely private contracts, took on a public character when enforcement was sought in the courts and thus could not be enforced consistent with the fourteenth amendment. Tn Steele v. Loni.'iille and Nashville Railroad. 323 U.S. 192 (1944) the Court held that when a private labor union is given exclusive bargaining status through leislation it is plothed with eovernmental powers which require it to fairly represent minorities.
142 U.R.C. No. 2000d.
123 U.. 409 (1968).
13 42 U.S.C. No. 1982.
purchase, lease and sell real and personal property, to prohibit racial discrimination in the sale of homes by private parties. This law and a companion statute enacted under the thirteenth amendment 14 declaringr that Negroes have the same rights as whites '-to make and enforce contracts", provide an independent basis for victims of discrimination in attacking racial practices in housing and employment and in eradicating remnants of private discrimination not reached by the laws of the 1960s.1.5
It is true that some areas of private discrimination have not been reached by the Constitution and~ Federal laws. For example, the Supreme *Court several years ago decided that the licensing of a fraternal organization to serve liquor did not amount to sufficient, state involvemenit to bring the club's discriminatory refusal to serve black citizens within the reach of the fourteenth amendment."8 But the remaining areas of legal doubt generally concern the racial practices of private clubs, an area not widely regarded as having much, significance to the efforts of minorities to gain full equality before the law.
In short, the legal and political efforts of civil rights groups and the moral pressures generated by the protest movement Iproduced a remarkable turnabout during the 1960s. In the eyes of the law, if not in practice, black citizens were extended the right to equal treatment not only at the hands of government but by every important private institution whose practices affected access to jobs, housing, health facilities and places of public accommodation.
B. THE ASSUMPTION OF FEI)ERAL RESPONSIBILITY POR PROTECTING CIVIL R=GTs
If arbitrary constraints upon the rights of black citizens that the law would respect constituted one legal pillar in a racist society, a second, equally critical support was the refusal of the Federal Government to assist citizens in vindicating even those rights that were recognized. The courts might afford a remedy against racial discrimnination by states and local governments if citizens were courageous and resourceful enough to bring their own law Suits; but, in the name of "ccomity" or the limited role of the national government in a federal system, neither the resources of the UnitedfState Attorney General nor any other enforcement agency were to be made available to assist citizens in vindicating those rights.
Nowhere was the debilitating impact of this self-imnposed limitation more clear than. upon the efforts of blacks to gain the franchise and to obtain equal educational opportunity. The right of black people not to be treated differently from whites in the electoral process was clearly set out in the fifteenth amendment ratified in 1870, and the Supreme Court soon afterwards underscored the importance of the franchise,
14 42 U.S.C. No. 1981.
15 See, e.g., Larsen, "'The New Law of Race Relations." 1969 Wis. L. Rev. 470; Sullivan V. Little Hunting Park, Inc., 396 U.S. 229, (1969) and other cases cited In Bell, Race, Racism and American Law pp. 646-650. 754-756 (1M7). The Su~preme Court has recently held that No. 1981 provides relief for black parents whose children are discriminatorily denied admission to privatee elementary school which was not the beneficiary of a tax exemption or any other form of government assistance. Runyon v. Mecrary, 76 S. Ct. 1211 (1976).
"$Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). On the other hand. "private clu~bs" whose membership Is based on residence have been held iable under No. 1972 for excluding black citizens from community recreational facilities. Sullivan v. Little Hunting Park, supra note 15.
noting that the right to vote is a "fundamental political right because preservative of all rights."
Yet, by the end of the 19th century the principal devices adopted by the states of the old Confederacy to disenfranchise blacks-literacy and "understanding' tests, poll taxes and residency requirements-were all in place, and they were soon followed by State laws authorizing white primaries. The history of the first half of the 20th century was of the frustration of the legal efforts of the NAACP and other private groups to win the franchise by removing these impediments in the courts. As one device was struck down as violative of the Constitution, it was quickly replaced by another and where southern legislators did not evade the law, southern registrars disregarded it."" During all of this long and unequal struggle in which civil rights groups pitted their meager resources against the power of State governments, the United States Government remained a silent spectator, intervening only occasionally to prosecute persons who violently or fraudently interfered with the right to vote. It was not until passage of the Civil Rights Act of 1957, the first such statute since the days of Reconstruction, that Congress authorized the Attorney General to seek injunctions in Federal Court against public and private interference with the right to vote on racia grounds.19 The history of efforts to implement the Brown decision and to put an end to racially dual school systems in the South was shorter but equally frustrating. During the decade after Brown, the Southern States adopted a vast array of techniques for "massive resistance" including pupil placement laws, private tuition grants, school closing bills, andstatutes directed at curbing the legal activities of the NAACP and the Legal Defense Fund. Yet, only when southern governors took the extreme step of utilizing force to thwart the implementation of court orders was the Federal Government impelled to intervene directly to uphold the rule of law.0 In other instances, the Government was content to allow black plaintiffs to fight their battles with State and local officials in the courts, participating occasionally as an intervenor or friend of the court to assist the civil rights forces. It was only with enactment of title IV of the Civil Rights Act of 1964 21 that the Attorney General was given specific authority to respond to complaints by instituting law suits for equitable relief against school districts that continued to discriminate.2
With passage of the Civil Rights Act of 1964 and 1968, the Attorney General was granted broad authority to seek injunctions in Federal courts on behalf of citizens who were discriminated aaainst in education, employment, housing, public accommodations and in federally-assisted activities. While the Attorney General's authority was in some cases hedged in by conditions (such as the requirement that
'1 Yickc Wo v. Hopkins, 118 U.S. 356. 370 (1886). Is See, e.g., the succession of white primary cases: Nixcon v. Herndon. 273 U.S. 536 (1924); Niron v. Condon. 286 U.S. 73 (1932); Grovey v. Toiwnsend, 295 U.S. 45 (1935) ; Smith v. A7wri.qht. 321 U.S. 649 (1944) : Terry v. Adams. 345 U.S. 461 (1953). See, also, MeKay. "Racial Discrimination in the Electoral Process," 407 The Annals, 102 if. (May 1973).
1942 U.S.C. No. 1971.
20 See Cooper V. Aaron, 358 U.S. 1 (1958).
2142 U.S.C. No. 2000e.
2 Some lawyers had argued previously that the Attorney General possessed authority to initiate sich actions even without a specific Conaressional mandate. See Taylor, "Actions in Equity to Enforce School Desegregation," 29 Geo. Washington L.R. 539 (1961).
suits in housing and employment be directed only against "patterns or practices" of discrimination), Congress had for the first time elevated civil rights to the status of antitrust and other categories of rights deemed important enough not to be entrusted solely to private action for protect ion.
Although this broad grant of power to the Attorney General was a useful instrument in the struggle, experience under the Civil Rights Act of 1957 demonstrated that individual law suits, even when brought by the Justice Department, were an inadequate means for curing mass deprivations of voting rights by State and local officials. Successive amendments to the 1957 Act could not halt the dilatory and evasive tactics of southern registrars or prod into action the unsympathetic Federal judges who held court in a number of key jurisdictions, and from 1957 to 1965 gains in the registration of black voters were minimal (from 5 percent to 7 percent) in the hard-core counties of the South.
When the crisis over voting rights came at the Edmund Pettus bridge in Selma, Alabama in March, 1965, it was clear as President Johnson said a week later that "[n]o law we now have on the books... can ensure the right to vote when local officials are determined to deny it." 23 The Voting Rights Act of 1965 24 provided for a greater assumption of Federal responsibility than any civil rights statute, before or since.25 Section 4 of the act dealt with literacy tests, the major device for disfranchising black applicants, by prohibiting their use in all jurisdictions where less than 50 percent of the black voting age population had voted in the 1964 elections-a rule that brought 6 Southern States and 26 counties in North Carolina within the coverage of the law. Section 5 provided for the suspension of all new voting regulations unless the Attorney General or a Federal district court in the District of Columbia certified that they would not have a discriminatory impact. Most important, other sections of the law authorized the Attorney General to dispatch Federal voting examiners to the South to register qualified applicants, allowed the appointment of Federal poll-watchers in areas where examiners had been appointed and excused the payment of accumulated poll taxes in places where tests and devices were suspended.26 To the claim that principles of federalism would be undermined by assigning national officials to perform functions traditionally considered local, the answer of the President and Congress was that experience had shown that no lesser step would suffice to secure the rights of citizenship to those who had been denied them.
Similarly, the authority to seek equitable relief granted to the Attorney General in the Civil Rights Act of 1964 undoubtedly would have been insufficient to desegregate public schools in resistant areas of the South. But in title VI of the Act, Congress furnished additional support by mandating the Department of Health, Education, and Welfare to assure that no person was subjected to discrimination
2 111 Cong. Rec. 4924 (March 15, 1965).
24 42 U.S.C. No. 1973.
25In 1871. Congress had amended the voting laws to provide for detailed supervision of the electoral process from registration through the certification of returns. But little enfne-,,%p-nt qelion tonk nlnei- under the law and It was ultimately repealed.
20 42 U.S.C. No. 1973d-h. Poll taxes as a condition for voting were later deelarefi unconstitutional In Harper v. Virginia Board of Election, R383 U.,S. 663 (1966). The Supreme Court qistained the Voting Rights Act of 1965 ag a valid exercise of authority under the fifteenth amendment In South Carolina v. Katzenbach, 383 U.S. 301 (1966).
under any program receiving Federal financial assistance and providing for the use of administrative remedies. including the termination of Federal funds where recipients did not come' into -compliance voluntarily. With passage of the Elementary and Secondary Education Act 1 year later, Federal aid to education became a significant factor in State ,and local school budgets-particularly in the Southand title VI became the most effective tool available to secure desegregation of the public schools.
Moreover, title VI was a directive nrot only to HEW, but to more than twenty other departments and agencies that administered about ,$15 billion in programs of grant-in-aid assistance .27 Thus, in a single stroke Congress had enlisted the resources of most of the agencies of the executive branch in ending discrimination in health, welfare, housing, recreation, and other facilities and services, and offered an administrative remedy that could avoid the delays encountered in case-bycase litigation in the courts.
One other important constraint upon the movement toward equality that persisted until the 1960s was the set of limitations imposed by courts and the Executive branch upon us3 of the criminal process to deter and punish violent interference with the exercise of rights by black citizens. While no right is more critical than the right to be secure in one's person from physical attack, the courts were concerned that the exercise of Federal authority to protect black people would require the assertion of a national- police power that could pose a threat to freedom. Thus, the criminal statutes. enacted after the Civil War to deal with vigilante action in, the South were narrowly construed by the courts to prohibit only "gwillful"l action by local police officials that was intended to interfere with specified Federal rights and to deal with private vigilante action -in an even narrower range of situations2 In addition, while theFerlBuauoIn stgin
and other enforcement- agencies possessed authority to make arrests for violations of the criminal civil rights laws and to protect the physical security of citizens when State and local officials failed, to d~o so, this authority was not used even in extreme circumstances.29
As in other areas, this policy of Federal abstention cracked under the great stresses generated during the mid-sixties. When violence against black citizens and civil rights workers reached a peak in MAississippi in 1964, the Justice Department, perceiving the. problem to have grown beyond manageable proportions, changed its policies. FBI agents were dispatched to Mississippi in numbers and their presence helped to persuade State and local law enforcement officers to carry out their responsibilities.311 The Civil Rights. Act of 1964 and succeeding laws included specific prohibitions against intimidation and violent interference with the rights guaranteed and the penalties for violation of the criminal civil rights laws were substantially creased by title I of the Civil Rights Act of 1968.31
27 With the advent of other Great Society programs, the amount has since risen to close to $50 billion.
28 See, e.g., ScreW8 V. United States, 325 U.S. 91 (1945); United State's V. Williams, 341 U.S. 70 (1951).
29 See U.S. Commission on Civil Rights, "Law Enforcement; A Report on Equal Protection in the South" (1965).
-1 See, e g. Taylor. "Law as a Catalyst for Change: The Mississippi Experience," 50 U. of No. Carolina L.R. 1038 (1972).
31 18 U.S.C. Nos. 241-243, 245.
Despite the unlikelihood of obtaining convictions by all-white juries (a problem that had previously detrred action), the Justice Department began to brlng criminal prosecutions in civil rights cases, and in 1966 the Supreme Court broadened its interpretation of the law to permit prosecution of the local sheriffs and private parties accused of the murders of three young civil rights workers who had been arrested in Philadelphia, Mi SiSSippi.32 While the law guaranteeing the rights of black people not to be systematically excluded from service on juries remained in flux, the increasing participation of black citizens in the agencies of justice generated by the Voting Rights Act (see infra) and changes in whibe attitudes spurred by the exercise of Federal authority made the possibility of criminal conviction a deterrent to violent action.
When the 1960s began, the posture of the Federal Government was that of a neutral bystander, prepared only to adjudicate controversies between the victims and perpetrators of racial injustice. At -the end of the decade, the Federal Government had become an active participant in asserting and protecting the rights of black citizens, and Congress, the courts and the executive branch had furnished a wide array of tools to carry out that role.
C. BROADER JUDICIAL DEFINITION OF RIGHTS AND REMEDIES
Removal of the constraints that had long prevented the extension of equal rights to private employment and housing and that had cast the Federal Government in the role of passive observer was a key turning point in the civil rights movement. But for new legal principles to be translated into tanLible gains, especially in such complex areas as employment and education, a further step was needed: The definition of rights and remedies in terms concrete enough to permit their applicat ion to large numbers of black citizens.
For example, if after the crumbling of massive resistance, the duty to desegregate public schools could be satisfied simply by the application of facially neutral policies of student and teacher assignment, the right to equal educational opportunity would have had little practical meaning for large numbers of black students in the South. If, against the background of long years of economic and educational deprivation, equal employment opportunity meant only a duty of employers and unions to avoid the most blatant kinds of exclusionary practices, it would have provided n eligible benefits for thousands of minority job applicants.
During the closing years of the 1960s and into the 1970s, the focus of much court litigation and administrative policymaking has been on development of the law in areas where the nature of rights and remedies had previously been sketched only in the broadest terms. In some areas, the courts, often relying upon creative rulemaking by Federal agencies, have made full use of their equitable powers to assure that tangible gains would flow from the decisions.
In employment, for example, in the years following enactment of title VII, it became increasingly apparent that even after overt and intentional practices of racial discrimination were stripped away,
United states v. Price, 383 U.S. 787. See also, United States V. Guest, 383 U.S. 745 (1966).
blacks, Hispanic Americans and other minorities might still be effectively barred from employment and advancement by a variety of practices: the use of written tests, educational requirements or other qualifications that tended to exclude minorities; continued reliance for advancement on seniority accrued in a company's formerly segregated departments; the use of informal "word of mouth" methods of recruiting; the restriction of entry into some fields by favoritism to relatives of employees or other standards unrelated to merit and having a racially exclusionary effect. If proof that these practices were invidiously designed to discriminate against m inorities was required to establish a violation of Title VII most cases would fail.
In the critical case on the issue, black employees of the Duke Power Co. challenged the company's use of aptitude tests not on grounds that the tests were racially designed, but rather that they operated to exc lude minorities from employment and promotion an~d were not shown to be related to successful performance of the job, The Supreme Court sustained the claim, holding that the employer had not met the burden of demonstrating that the tests were job related and dictated by business necessity.3 In doing so, the Court relied in part upon guidelines developed by the E~qual Employment Opportunity Commission setting standards for the validation of tests, noting that such administrative interpretations by the agency charged with enforceing the law are entitled to great deference,
The "absence of discriminatory intent," the Court said, "does not redeem em-ployment procedures or testing mechanisms that operate as 'built-in -headwinds' for minority groups and are unrelated to measuring job capability."
In other important decisions, courts have held that once it is shown that minorities, are significantly underrepresented in a company the employer bears the burden of demonstrating that he has engaged in
program of vigorous affirmative action to remedy past exclusion
that seniority systems must be revised so that black workers do not continue to suff er the effects of past segregatory practices; 35 that the use of height requirements 'and arrest records as bars to employment must be dropped unless justified by business necessity; .3ta word of mouth recruiting by a predominantly white work force must be modified because of its exclusionary effect; 37 that nepotistic practices in the construction trades must be eliminated even when their predominant purpose is to favor -relatives, not exclude minorities.881
Within a relatively short span of years, the courts, responding to suits brought by minority plaintiffs and the Justice Department and aided by administrative rulemaking by the EEOC, have developed the law of fair employment creatively to meet the immediate needs of minority job applicants. While employers have been required to incur financial costs and some inconvenience in acting affirmatively to remedy
83 Griggs v. Duk~e Power Co,, 401 U.S. 424 (1*71). see also, Albemarle Paper Co. v. Moody, 43 U.S.L.W. 4880 (June 24, 1975). But, see Washington v. Davis, 76 S. Ct.'2090 (1976).
34 Parham v. Southwest Bell Telephone Co., 433 F. 2d 421 (8th Cir. 1970).
35 Frankts v. Bowman Transportation Co., 76 S. Ct. 1251 (1976) ; United States v. Local 189, U~nited Papermalcer8, 416 P. 2d 980 (5th Cir. 1969) ; Robinson v. Lorillard, 444 F. 2d 791 (4th Cir. 1971).
M6Smith v. City of East Cleveland, -, F. Supp -(D.C. Ohio 1973) ; Gregory v. Litton Systems, 472 F. 2d 631 (9th Cir. 1972).
37 Parham v. Southwest Bell Telephone Co., supra note 34.
113Local 58, Asbestos Worker8 v. Vogler, 407 F. 2,d 1047 (5th Cir. 1969).
past practices of discrimination, their essential interest in maintaining a competent and efficient work force have been preserved.
In education, once massive resistance had finally run its course, school authorities began to rely upon somewhat more sophisticated devices for maintaining segregation. In rural areas where blacks lived in close proximity to whites, "freedom of choice" plans were instituted, ostensibly offering black families the opportunity for integra eucation, but in reality placing the burden of change upon them and relying upon their dependent status to maintain the staus quo. In cities where residence patterns were racially segregated, school officials frequently relied upon geographical assignment, buttressed by site selection and teacher assignment policies that helped to reinforce se(regation.
The first major test came in a challenge to the use of a "freedom of choice" plan in the rural county of New Kent, Virginia where use of the plan had resulted in the continuance of segregation. Noting that school districts had an affirmative duty to convert to unitary systems in which "racial discrimination would be eliminated root and branch," the Supreme Court reversed lower court decisions and invalidated the use of a freedom of choice plan in New Kent County.3 Here, as in Grigsqs, the Court was acting in support of administrative standards, in this case guidelines promulgated by HEW. In the Court's view, the operative standard for desegregation plans was one of effectiveness:
The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.
Three years later, the Court applied these principles to the urban county school district of Charlotte-Mecklenburg where black children were concentrated in the central city and whites in the suburbs. It held that a district that had never eliminated the dual system could not satisfy its obligation simply by adopting a policy of geographical assignment and that busing of students could be required if necessary to produce intergration.40
The persistence of one-race schools in a formerly dual system created a presumption of illegality that school authorities had the burden of rebutting. A "neighborhood" assignment plan was not to be deemed acceptable "simply because it appears to be neutral." Desegregation plans could not be "limited to the walk-in school" and remedies might have to be "administratively awkward, inconvenient and even bizarre in some situations" to cure the evil of segregation.
Once again, the test applied was one of effectiveness, limited only by feasibility. The continuation of segregation could ordinarily be justified only if the time or distance of busing required to remedy it was "so great as to risk either the health of the children or significantly impinge on the educational process." In hundreds of Southern communities, rural and urban, application of the rules of the Green and Swann cases meant that great numbers of black and white children would attend the same schools.
In employment as well as in education, courts have increasingly tended to make specificity and effectiveness the standard for judging
39 Green v. County School Board of NTew Kent County, 391 U.S. 430 U.S. 1 (1971).
4o Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).
the acceptability of proposed remedies. Thus, in the context of failures to achieve substantial change in job patterns in the construction trades through generalized requirements of affirmative action, courts have endorsed Department of Labor requirements that construction contractors meet specific goals and time tables for minority hiring.41 And once findings of discrimination, have been made, courts have not been reluctant to set out specific quotas as part of the'remedy, requiring for example that the Minneapolis fire department hire one black fireman for every two whites employed .42 These specific hiring requirements, along with substantial back pay awards43 and the granting of attorneys' fees to the prevailing party, have provided a major inducement to employers to come into compliance with title VII without w aiting to be sued.al h u h b no m a s l ,t ec ur s av
In other areas of the law,alhuhbnom nsltecursav
pursued parallel lines of development, establishing effect rather than racial intent as the gauge of validity. In a voting case, the Supreme Court sustained action by the Attorney General under the Voting Rights Act to invalidate a proposed annexation by the City of Petersburg, Virginia that would have increased the city's white population substantially and eliminated the black majority.4 While conceding that the annexation may have been based on legitimate, nonracial 1purposes, the lower courts had held that in light of Virginia's long history of discrimination, defendants were compelled to prove that the annexation would not have had the effect of diluting- the exercise of black voting power, a burden they could not meet.
In sum, case-hardened by years of defiance'and evasion in the South, the courts have been drawn increasingly to pragmatic approaches designed to cut through the obstacles to actual enjoyment of rights to equal treatment. In this endeavor, stressing the effect rather than the intent of challenged actions and placing a premium on remedies that produce results, the courts have been aided by the rulemaking activities of Federal agencies as well as affirmative plans developed by civil rights litigants.
D. PROGRESS THROUGH LAW
In the views of most observers, the radical change in the law of race relations has not been simply a revolution in theory or doctrine; the legal changes in the 1960s have touched the lives of thousands of black citizens in the South in tangible and beneficial ways. If one seeks evidence that law can produce social change, it is to be found in many of the Southern communities where in protest and reprisal, the seeds of legal change were sown.
A part of the evidence is to be found in bare statistics. At the time the Voting Rights Act was passed it was estimated that about 1.5 million black people were registered to vote in the 11 States of the old
41 Contrac tori Association of Eastern Pennsylvania v. Secretary of Labor, 442 F. 2d 159 (Ord Cir. 1971).
42Carter v. Gallagher, 452 P. 2d 315. modified en bane 452 P. 2d 327 (8th Cir. 1972). See also, United States v. Central Motor Lines, 352 F. Supp. 478 (W.D.N.C. 1970); NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972). 43See, e.g., Robinson v. Lorillard, supra note 35. A 1972 amendment to title viir, however, limits recovery of- back pay to 2 years prior to the filing of a discrimination charge. 42 1.S.C. No. 2000e-5(g) [as amended March 24. 1972, Public Law 92-261, See. 4.1 "4City of Petersburg V. United States, 410 U.S. 962 (1973). Cf. City of Richmond, Va. v. United States, 43 LTSLW 486~5 (June 24, 1975).
Confederacy. Two years later black registration had almost doubled to more than 2.8 million people." In every State a majority of voting age black citizens was registered. The increase was most dramatic in Mississippi where the percentage of black registrants was 6.7 percent in November 1964 and 59.8 percent in September 1967.
With the rapid growth in registration and voting came a steady increase in the number of black citizens elected to public office. In 1965, only 79 blacks held elective office. By 1973 there were 1,307 black office.holders, including Representatives Andrew Young of Georgia and Barbara Jordan of Texas, the first black members of Congress from the South since Reconstructi on.4'1 In 1975, the Joint Center f or
Political studies reported a total of 3,503 black elected officials throughout the United Sates.4""
When the Civil Rights Act of 1964 was passed, fewer than 2, black children in 100 attended schools with whites in the 11 States of the South. After a period of strong enforcement of title VI by HEW and broad court rulings, the situation changed dramatically. By the 197273 school year less than 9 percent of the black children of the South remained in totally segregated schools and more than 46 percent attended schools that were predominantly white in racial composition.4
Parallel with the increase in integration was a major increase in the number of black students in the South who completed high school. While social scientists around the Nation continue to argue about the educational benefits of desegregation, school districts in the South receiving Federal aid to integrate have reported educational gains for black high school students and the maintenance of previous levels of achievement for whites.481 And even those most skeptical about the impact of integration on achievement scores conceded that black children in desegregated schools were more likely than those in segregated schools to go on to college."9
By common consensus, the 1960s were also a decade of unmatched. economic progress for black citizens, although spirited debate continues on the numbers untouched by progress and the likelihood of maintaining or even preserving these gains without major changes in national policy.50 Interestingly, the major advances in income and employment status of black citizens took place mainly in the South. In the Southern States, the ratio of black to white family income rose from 51 percent in 1959 to 61 percent in 1970 while the ratio remained almost unchanged in other areas of the Nation.5' In the view of economist Andrew Brimmer, the most striking change in the employment status of blacks during the 1960s and early 1970s is the sharp expan45 U.S. Commission on Civil Rights, Political Participation at 12-43 (1968). 46a Washington Research Project, The Shameful Blight 61 (1972) ; The New York Times, "Black Gains Cited In States In South," March 3, 1974, p. 46. 4"b Joint Center for Political Studies, Guide to Black Politics 1976, 107 (1978). 47 HEW news release, Apr. 12,'1978.
48 See The New York Times, Feb. 20, 1914, p. 8. 49 See Armor, "The Evidence on Busing," Public Interest No. 28. p. 91, 105-105 (Summer 1972). The methodology of the Armor study, which led to negative conclusions on other Issues, has been heavily attacked. See, Smith, Useem, Normand and Pettigrew, "A Critique of 'the Evidence on Busing'"1 Public Interest No. 30. (Winter 1973). A review of the current literature on whether schools "make a difference" aind what school-related factors have an impact on achievement Is found in II Clearinghouse for Civil Rights Research No. I (Center for National Policy Review, Spring 1973). A common misconception about the views of those such as Coleman and lencks, who have questioned the assumption that school have a major Impact on achievement and economic success, is that they have also challenged the value of Integration. In fact, they agree that racial and economic Integration In the classroom Is one of the few school factors that does make a difference.
80 A review of the debate on black progress is found in I1 Clearinghouse on Civil Rights Res~earch No. 2 (Center for National Policy Review, Summer 1978). 51 See Connolly In Commentary, August 1978, 99. 9-10.
sion in the South of white collar jobs held by black workers, although Southern cities still lag farthest behind in the integration of blacks into white collar jobs.52
The factors that have influenced these gains in the South are complex. At least in part they are a function of the continuing migration of blacks from rural areas to the cities of both the South and North and of accelerated economic expansion in the South that has opened rungs at the bottom of the industrial ladder for blacks from rural areas. To the extent that these are predominant influences, it has been postulated that the rate of progress is not likely to continue as migration ebbs and fewer people are affected by the increases in income that stem from a change from rural to urban status.53
In this web of causation, it is difficult to assess the role that title VII and other fair employment laws have played in bringing about economic gains for blacks. Brimmer finds indirect support for the proposition that the activities of the Equal Employment Opportunity Commission under title VII have produced favorable results in the fact that the reports of companies subject to the law indicate that they are opening jobs to blacks faster than is true for employers in the country as a whole.54 The more persuasive evidence that title VII has had a positive impact is fragmentary or nonstatistical: That the great hostility to employing blacks in many areas of the South and in many sections of the job market that existed prior to enactment of the 1964 Act has abated; that gains have not been limited to the lowestpaying blue-collar jobs; that in companies that have been directly subjected to enforcement action marked changes in employment patterns have taken place.55
By the account of almost all civil rights leaders in the South, the most important and effective legal agent of change has been the Voting Rights Act of 1965. Its value, they say, lies not only in the immediate increases in registration and voting and in the election of black officials but in the use of growing black political power to maintain and expand other rights.5"
Other laws, of course, have made an important contribution. The fact that black people can now move freely about in almost all areas of the South and can command equal and civil treatment in most restaurants, hotels, and other public accommodations is due directly to title II, providing as it did a definitive Federal resolution of the conflict generated by the sit-ins and freedom rides.
The dissolution of much of the fear of private vigilante violence and police brutality that pervaded the deep South through the mid1t Os is due to a complex of fatrs-not least the great concern of Southern business and political leaders that violence was leading to Federal and business disinvestment in the South and the readiness that the Federal Government ultimately demonstrated in Mississippi
52 Brimmer, "Widening Horizons: Prospects for Black Employment," commencement
-adress at Prairie View A. & M. University, May 5, 1974.
1 See Clearinghouse, supra note 50.
54 Brimmer, supra note 52. Under the Civil Rights Act of 1964, all employers of 25 or more people were covered. In 1972, the law was amended to reduce the number to 15. ,Query whether there might be a difference In minority employment patterns between larger employers and smaller companies, many of which are family owned, even In the absence of a fair employment law.
5 Brimmer, supra note 52; Adams, Toward Fair Employment and the EEOC p. 93 ff (U.S. Equal Employment Opportunity Commission 1972); Rosenthal, Employment Discriminalion and the Law, 4-07 The Anals 91, 98-1 (May 1978). 57 Unpublished interviews of Julian Bond, John Lewis and others, Atlanta, Ga., Marct 1974.
to assume law enforcement responsibilities where State and local government defaulted.
Granted this diversity, civil rights leaders say that it is growing black political power facilitated by the Voting Rights Act that has st-abilized and expanded gains in other areas. In Selma, Alabama and Green County, Alabamp, two areas of violent confrontation in the 1960s., local government has come under the control of black officials and black citizens today can ordinarily anticipate fair treatment and protection from local law enforcement officers. 57 In other communities where increases in black voting participation have not yet resulted in the election of black mayors, councilmen or sheriffs, some gains in law enforcement and other areas have occurred nonetheless. In Panola County, MNississippi, political scientist Frederick Wirt reports that the accumulation of a modicum of black political power (an increase in voting registration f rom 7 percent in 1964 to 67 percent) has brought modest gains-paved or gravelled roads in Negro neighborhoods, the employment of a few black policemen, the end of overtly racist political campaigning, better treatment for the black community in the local press.58
The process of change is reciprocal, of course. In Tifton, Georgia, economic expansion and the civil rights laws have opened new job opportunities for blacks as skilled' factory workers. The factory worker, it is reported, is a new breed, less dependent upon white largesse than agricultural workers, teachers and ministers, and ready to exercise his franchise in a more independent way.59 Conversely, in economically depressed communities where blacks are poverty stricken and dependent, they have developed little political power.
Perhaps most difficult to determine is whether the changes in practice compelled by law have also produced durable changes in white attitudes. The evidence is varied and contradictory even within the same community. In Jackson, Mississippi school desegregation produced white flight to private schools (as it has in many other places), white lawyers still resist representing black clients or advocating civil rights causes in the courts, and a momentary trend toward increasing the number of black students at the University of Mississippi Law School was reversed when the dean who had le'd the effort resigned. Yet it is reported that the white and black parents who have remained in the public schools are working together on educational improvements, that black and white policemen have banded together to seek wage grains, and it is clear from the fairer treatment of blacks in the media and in many other ways that Mississippi's closed society has begun to dissolve.60
In assessing school integration in Yazoo, Mississippi, Willie Morris found hopefulA signs of emerging changes in white attitudes. When
67 Interview with Leon Hall, Southern Regional Council, supra note 56. 58 Wirt, Politics and Southern Equality (Aldine 1970). 69 Obatala, "Back Home In Tifton", The New York Times Mlagazine, p. 37 (December 2, 1973).
0 Unpublished Interviews with Frank Parker. Kenneth Dean. Jack Young and others. .Taekson, Mississippi, March 1974. To this observer, returning to MissIssinpi for a brief visit after a lapse of about six years, some of the surface changes were striking. During the 1960f; the Jackson Clarion Ledger, a family owned newspaper, was notorious for Its refusal to report news of the black community and for Its distortion of civil rights Issues in news stories. In Its March 14, 1974 edition, among several Items and pictures on events in the black community, the Ledger reported that Rev. Emmett C. Burns, field director of the NAACP. was about to receive his Ph.D from the University of Pittsburgh. It even noted the title of his dissertation: "Love. Power and Justice as Central Elements in a View of Social Change: A Comparison and Evaluation of the thought of Neibuhr and Martin Luther King, Jr."
integration came, he noted, it was accepted by some not simply as inevitable or a result of superior Federal force, but because it was right-a necessary preparation for "real life" or because people have to learn to live together. Some black leaders are not as sanguine that basic or lasting changes have taken place in white attitudes. In their view, alternations of white attitudes stem from the ability of black people to command respectful treatment because of their developing political and economic power. If the Federal guarantees that form the base of this growing influence are weakened, these black leaders foresee regression and the reemergence of racist attitudes that have been suppressed.
With all of the necessary qualifications, conflicting patterns and diverse views, on one proposition there is widespread agreement: Federal civil rights laws where clear in their command and effectively enforced have produced dramatic changes in the lives of black and white people in the South.
III. LIMITATIONS ON PROGRESS THROUGH THE LAW
Amid the signs of progress previously noted, there remains the stark reality that the legal revolution of the 1960s has failed to bring tangible benefits to the great majority of black people mired most deeply in poverty.
In economic terms, almost every trend toward progress is matched by an indicator of stagnation or negative movement. While the percentage gap between black and white family earnings is being narrowed, the dollar gap is widening. In 1971, the median income of nonwhite families was $6,516 and of white families $10,236-a dollar gap of $3,700. In 1960, the dollar gap was $3,400 and in 1947 it was only $2,700.62 While significant numbers of black families have attained incomes of more than $10,000, many have done so not by moving into better paying, more skilled jobs, but by having two or more full time wage earners in the same family.
Perhaps the most discouraging part of the statistical picture is the persistence of racial disparities in poverty and unemployment. In 1971, 7.4 million black citizens, about one in every three, had incomes below the poverty line (then officially set at about $4,000 for a family of four) while only one white person in ten remained below the poverty line.63 There is also a discouraging constancy in racial disparities in employment. For two decades, in good times and bad, the unemployment rate for blacks has remained about twice that for whites. In 1971, the jobless rate for nonwhites was about 10 percent while the rate for whites was 5.4 percent. To the million unemployed may be added about 900,000 black people who live in low income areas of the Nation's cities and who are not counted in the labor force only because they are not actively seeking jobs. And when the Nation entered a severe recession in 1975 unemployment for blacks rose above 13 percent. M'anv of the hard won zains of the 1960s dissolved as minority workers who had been the last hired were the first to be laid off. For black teenagers seeking to enter the labor force for the first time, the situation was even more catastrophic with unemployment rates reaching 40 percent or higher in many cities.
6 Morris. Yazoo (Harpers Magazine Press 1971) at 33-14. eU.S Rhir-nn of the Census. The Social snd Economic Stats of the Black Population In thb Unitpd States, 1971 (Current Population Reports, series P-23 No. 42).
Many rural areas of the South remain largely untouched by the changes of the 1960s. Black residents of these areas are still unregistered and living in economic dependency. Their children still attend segregated or otherwise inadequate schools and danger still lurks for any citizen bold enough to assert his right.64
In large cities of both the South and North, the achievement scores of black children continue to lag in deteriorating and demoralized schools. Black families confined to ghetto areas lack access to jobs, standard housing and other facilities and institutions that might contribute to their mobility, and the pathology of the ghetto that Keneth Clark described in the 1960s is unameliorated.3
The persistence of major racial disparities in the economic status of blacks and whites cannot be attributed to a very large degree to failures in the civil rights laws. For civil rights law is, after all, mainly a set of ground rules which does not directly establish equality in the actual status of the races, but merely the conditions which will permit society to seek equality. Nonetheless, few careful observers would argue that the end of the road has been reached in the utilization of civil rights law as a useful instrument in the struggle for equality. There remain major gaps in the enforcement of law and in the definition of rights and unanswered questions about the effective reach of the law in dealing with institutional practices that have only recently surfaced as more overt racial barriers have been eliminated.
A. NONENFORCEMEIT BY THE ExECUTIVE BRANCH
While almost every Federal department and agency was vested with enforcement responsibilities by the laws of the 1960s, there is great unevenness in performance and in some cases the record has been so deficient as to seriously impede progress.
As noted, the use of the examiner provisions of the Voting Rights Act of 1965 has brought major gains in the exercise of the franchise both in counties to which examiners were dispatched and in others where local practices were changed to avoid Federal action. Yet there remain areas in the South (for example, three counties in Georgia where less than 10 percent of the black residents are registered), where black registration is very low and lags far behind white registration." Under the regime of Attorney General John Mitchell and his successors., no Federal examiners were assigned to conduct registration after 1971. While some of these counties are so severely depressed that it is unlikely that major change in the status of blacks will occur without economic help, resources for voter and citizen education and other assistance, there appears no excuse for the failure of the Justice Department to implement clear provisions of the Voting Rights Act. Similarly, until recently there has been little action by the Department
64 Wqshington Research Project. supra note 46 at 17-12 (1972). 6*See, Clark, "Dark Ghetto" (Harper Torchbooks 1965). See also, Taylor, "Hanging Together : Equality in an Urban Nation" ('Simon and Schuster 1971). 66 Washington Research Project, supra note 46 at 51.
to deal with the manipulation by State and local officials of election rules and boundaries to dilute the impact of the black vote.,"
In education, the enforcement program of the Department of Health, Education and Welfare was brought to a screeching halt by the repeated strictures of President Nixon against using busing as a means of achieving school desegregation. Even after the Supreme Court ruled in 1969, over the objections of the Justice Department, that school desegregation in the South must proceed without further delay, HEW failed to take any action under title VI to compel compliance. When the Court ruled in the ,Swann case in 1971 that busing must be used to eliminate segregated schools, HEW failed again to insist that many Southern cities take action to eliminate their one-race schools. Nor has the agency acted under title VI on charges of discrimination in Northern schools despite the ruling of the Supreme Court in a Denver case 68 setting forth standards which could bring many Northern school systems under an obligation to desegregate.
The Department of Housing and Urban Ievelopment has failed to mount a program to counter the trend toward -increasing racial and economic segregation in metropolitan areas. Indeed, the Department has reinforced the trend by surrendering to suburban opposition to Federally subsidized and assisted developments, permitting their construction only in raci .ally and economically segregated areas of the inner city.69 Even in the, less politically sensitive area, of extending fair housing opportunities. to middle class black families, HUD has defaulted. Unlike its counterparts at HEW and EEOC, it took HUD more than three years to issue administrative standards requiring builders to adopt affirmative practices in marketing homes in new subdivisions and the agency has since failed to enforce its own guidelines. Nor have the agencies that regulate lending institutions effectively challenged mortgage lending policies that operate to exclude minority applicants and that cannot be justified as business necessitieS.70
61 Hunter, Federal Review of Voting Changep 74 (Joint Center for Political Studies et al. 1974). Enforcement was spurred by two ecisions of the Supreme Court broadly Interpreting Section 5 to cover any new device having the effect of diluting black votes. Allan v. State Board of Elections, 393 U.S. 544 (1960) ; Per1~ins v. Matthews, 400 U.S. 379 (1971). Additional pressure on the Attorney General came from Congress and from a decision by a three-judge federal court that the Attorney General could not permit a state law to go into effect by Inaction but must make a determination under Section 5. Evers V. State Board of Election Commissioners, 327 F. Supp. 640 (S.D. Miss. 1971). See, also, Banks and Taylor, Background Paper on the Voting Rights Act of 1965 (unpublished). pp. 18-20.
68Keyes V. School District Y'o. I of Denver, 413q U.S. 189 (1978). HEW's Inaction in the North Is documented In Center for National Policy Review, Justice Delayed and Denied: HEW and Northern Stwhool Segregation (19-74).
1U.S. Commission on Civil Rights, "Home Ownership for Low Income Families" (19,71). 70Among the practices that adversely affect minorities are "redlining". the refusal of lending institutions to make mortgage loans In older neighborhoods that areprdmntl black or Integrated; the discounting of a spouse's Income in determining eigibility for a mortgage loan, and the discounting of other types of Income such as bonus and overtime pay. The Federal Home Loan Bank Board, the agency that regulates most savings and loan associattions, has recently promulgated guidelines to deal with these practices but has not yet adopted effective procedures for enforcement. Other federal agencies that regulate mortgage lenders are even further behind. See complaint, National Urban League, et al1. V. Office of CJomptroller of the Currency (CA. No. 76-718 D.C.D.C.).
As noted, progress in achieving fair employment goals has been facilitated by EEOC's development of administrative standards and i he Justice Department's vigorous litigation program. But in other spheres of employment activity, deficiencies in enforcement have retarded progress. The EEOC has permitted an enormous backlog of complaints to accumulate and it has been reported that the agency's conciliation efforts have produced minimal results.7'a The contract cornpfliance program, first initiated by President Franklin Roosevelt, has been generally accounted a failure because of the unwillingness of Federal contracting agencies to impose sanctions against companies with whom they do business. An effort during the Nixon administration to use the program to help minorities overcome resistance to their entry into the skilled construction trades was short-lived. Despite the fact that tde "Philadelphia Plan" establishing goals and timetables was sustained in the courts and produced positive results, it was dropped as part of a political effort to win the "hard hat" vote. In 1974, under the regime of a Secretary who had been a construction trade leader in New York City, the Department of Labor sought to block the city's efforts to pursue the very type of program the Department abandoned.
Other agencies, such as the Law Enforcement Assistance Administration and the Office of Revenue Sharing, which have a duty to prevent discrimination in public employment and in services because of the large grants they make to state and local governments have been slow to act upon their responsibilities. The Office of Revenue Sharing, a unit of the Treasury Department, administers the single largest domestic grant program, distributing some $6.5 billion yearly to some 39.000 State and local governments.
Yet in its first three years of operation, the Office initiated only one enforcement proceeding against a recipient of revenue sharing funds and then only because it was compelled to do so by a Federal court.71b This record of abdication was in the face of a specific congressional mandate and the receipt of many complaints alleging racial discrimination in municipal services 72 and in public employment. The agency's default has reinforced fears among civil rights groups that the vaunted "new federalism" may become a vehicle for dissolving existing Federal protections for minority groups.
Politics, of course, looms large as the explanation for much of the widespread default in the civil rights performance of Federal agencies. Many of the more recent failures represent efforts by the Ford Administration to appease and exploit public resistance to school in-tegration, scatter-site housing and employment remedies that are seen as job quotas. But other problems, not directly related to particular administrations or changes in political climate, impede civil rights enforcement. With the great spate of civil rights legislation in the 1960s (after a long hiatus) has come duplication, overlap and a lack of coordination. Programs (such as job training and equal employment enforcement) where success might be best achieved by working together have operated separately. Bureaucrats responsible for enforce,In TT, Commiiqslon on Civil Riehtq. "Thbe Federal Civil RIhts Enforcement EfortA Po seqsment." pp. R1 ff. (1973) ; Adams. sunra note 55 at 95-96. 7Th rTmo of Wom-on Voters Education Fund et al., "General Revenue Sharing: The en-, for Reform" 5-12 (1976).
: lThiql di.4eriminatlon in tbh provision of mimtcini1 qervtesq wa3 EPl(rPe n vi',latioii of thp -l,1l protection clause in Hawkins v. Town of Shaw, Miss., 461 F. 2d 1171 (5th (ir. 1972).
ment have lacked the vision or know-how to set priorities and evaluate results, to establish compliance procedures that work expeditiously and effectively, or to secure the resources needed to carry out their missions. Steps to provide leadership, direction and uniform policy have been half-hearted and quickly abandoned.73 In an effort to cope with the nonfeasance of Federal agencies, civil rights litigators have instituted a relatively new form of lawsuit, directed not at individual discriminators, but at the agency responsible for preventing discrimination. While courts are ordinarily reluctant to interfere with prosecutorial discretion, the suits have met with some success.4 Other public interest law groups have sought to provide representation for minority complainants in their dealings with Federal agencies and to assist community organizations in monitoring the enforcement of civil rights laws at the local level.
During the 1970s a substantial portion of the resources available to civil rights groups is being expended, not in the search for new legal frontiers but, in seeking to redeem the promise of the 1960s that the Federal Government would serve as an ally in enforcing the law and to extend the gains made to communities where the writ of Federal law has yet to run.
B. PROBING THE LIMITS OF LEGAL REFORM OF KEY iNSTITUTIONS
With the advent of school desegregation in many Southern communities, many black children and their parents have been confronted with a new set of problems within the physically desegregated school. While the problems are varied, all in one way or another concern efforts to achieve equality of status or treatment within the desegregated school.
Among the most common concerns are: the segregation of children in classes often based on rigid systems of tracking or ability grouping; the classification and assignment of students on the basis of ability tests that may be culturally biased or (in the case of Spanish-speaking or Chinese American students) that may fail to take into account linguistic difficulties; racial discrimination in the application of disciplinary measures or in the conduct of extracurricular activities; suppression of the history and culture of minority groups in the curriculum; differential treatment of children in the classroom based on racial biases, overt or unconscious, of teachers and administrators.
Although these "second generation" problems are not the inevitable result of desegregation, they have arisen frequently enough to make the desegregation process a troubling and even traumatic experience for many minority families. While some have responded by abandoning integration as a goal, the great majority have sought community, political, and legal initiatives that would provide a remedy.
When the initiative taken is a legal one, the underlying issue often is how far it is necessary or appropriate for a court to intervene in the
'13ee Taylor. "Fede,1 Civil Rights Laws: Can They Be Made To Work?" 39 Geo. Wqbington I.I. 971 (1971).
7 See e.q., Hills v. fTautreaux, 96 SCt. 1538 (1976) Adams v. Richardson, 356 F. Supp. 92 -(D.D.C. 1973), aff'd en bane, 480 P. 2d 1159 (D.C. Cir. 1973); Brown v. Mathews,
F. Sipp. (C.A. No. 75-1068. D.C. D.C. July 20, 1976). But the Surreme Court
has recently resurrected more strict rules of "standing" and made it more difficult to sue governmePt aL-Pneies which are only the indirect causes of injury. See, Simon v. Eastern Kentucky Welfare Rights Org. 44 USLW 4724 (June 1976).
educational process in order to protect the rights and interests of minority children. In a number of cases that have arisen so far, courts have found a basis for dealing with the more patent practices of segregation and classification. An d, in a related area, the recent decision of the Supreme Court that the failure of the San Francisco school system to offer English language instruction to students of Chinese ancestry violates titfe VI of the 1964 Civil Rights Act 71 may open up new questions about the extent to which school authorities may be required to initiate special programs for children with identifiable learning disabilities.
As courts probe more deeply into these issues, they are faced with claims that they are being asked to make judgments about educational methods best left to professional educators. While there is merit to this contention, the responsibility of judges is to assure fairness in the educational process, a duty which may occasionally bring them close to the realm of policy making. Without judicial intervention into the educational process, the basic legal guarantee of equal educational op. portunity may be undermined.
The overallquestion-determining the appropriate reach of law in dealing with institutional reform-is not confined to education and the courts. It arises in many other contexts, for example, how far EEOC and the courts may go in intervening in employers' judgments an goo inq ineveigin1p about qualifications standards in order to assure that minor s wil have access to jobs.
In the 1970s, much creative energy and many resources are already being devoted to cases involving this underlying question. The effectiveness of the legal guarantees of the 1960s may well rest with the answers that emerge.
C. OTHER JUDICIAL PESTRATS: INTENT V, EFFECT, RACIAL V. ECONOMIC DISCRIMINATION
The failure of the legal revolution to produce practical gains in the North comparable to those achieved in the South has not been disputed. Nor has the law provided for poor black residents of central cities, North or South, access to jobs, schools or services located outside the ghetto.
Among the reasons for these failures is judicial confusion about the underlying basis for the guarantee of equal protection that has persisted since the Brorn decision. To most lawyers, Brown was a decision based fundamentally upon racial intent rather than the sociological effects of segregated schools. A contrary conclusion, in the words of legal scholar Edmund Cahn, would have allowed "fundamental rights [to] rise, fall, or change along with the latest fashions of psychological literature," a view that in many ways has proved prophetic.
Bit preoccupation with intent has led some courts in Northern qehool cases to conclude that absent the massive insult of segregation laws intended to place black people in a subject status, no racial wrong
See, e.g., Hobson v. Haneen, 269 F. Supp 401 (D.D.C. 1967); Mose-. v. Wqshington Parish School Board, 456 F. 2d 1285 (5th Cir. 1972); Lemon v. Bossier Parish School Roird, 444k F. 2d 1400 (5th Cir. 1971) ; Larry P. v. zese, 348 F. Supp. 1306 (N.D. Cal. 1972).
', Lait v. Nichols, 414 U.S. 563 (1974).
Cahn, Jurisprudence, 30 New York U.L.R. 150, 167 (1955).
has been committed 1 To counter the. assumption that segregation in Northern schools is not a deliberate racial practice, black plaintiffs have had to produce exhaustive evidence on the-history of school board actions and the network of policies relating to boundaries, transfers, site selection and teacher assignments that have produced segregation. With the decision of the Supreme Court in, the Denver case,7,9 the courts appeared to have arrived at a sensible accommodation: while intent is, the relevant legal standard it, does, -not require a showing of racial malice; rather, intent may be inferred from the effect of government policies unless school authorities can demonstrate that they, had no practical alternatives. But new confusion about the appropriate constitutional standard has been introduced -by the, Supremne Court's recent decision in Washington v. Davi4.80 That decision, while embracing Keyes (the Denver school case) appears to require a rather strict showing of racial purpose wheneve r minorities seek. to assert rights under the equal protection clause.
The Denver decision offers the promise of a good deal more school desegregation in smaller Northern communities. But in the big, cities where most black people live, integration is not possible without a further legal step-requiring~ the breaching of political boundaries that separate suburbs from cities. How this issue, is ultimately resolved may devolve again around the issue of "intent.." If it must be shown that school officials are singularly culpable for the -patterns of segrega-. tion that exist in metropolitan areas, the result may be negative. If, instead, the issue is framed more broadly in terms of whether segregation is the product of free, individual choices or of a netw ork of, institutional decisions in which government has been involved, the rights of black children may be expanded. In its first decision on thq subject, the Supreme Court, by a 5-4 vote, took the narrower view, ruling out a metropolitan remedy to cure unconstitutional school segregation in the Detroit public schools on grounds that the scope of the remedy could not exceed the scope of the violation and that the violation was not shown to be interdistrictc" in nature."' Yet the court left the way open to future metropolitan efforts, with one justice in the Majority suggesting that proof of deliberate government housing discrimination that contributed to school segregation would-be sufficient to justify an interdistrict school desegregation remedy."".
In dealing with the access of minorities to housing and other services, the courts have faced another knotty problem-the blurring of distinctions between racial and economic discrimination. Is it a violation of the Constitution for a community to use restrictive zoning laws or other exclusionary devices to keep poor black people from becoming residents when the laws have an impact on poor whites as well?. Is it unlawful for -a State to refuse to fund fully the Ai d to Dependent Children program whose participants are largely but not exclusively black while completely funding other welfare programs for the elderly and disabled who are mostly white? Does a school finance system
See, e.g ., Bellv. School Ofty of Garyi, 324 F. 24 209 (7th Cir. 19073), cert. denied, 377 U.S. 924 (1964).
"'Keyes, supra note 68.
00 76 S. Ct. 2040 (1976) Washington Involved a challenge to employment testing requirements that was brought under the fourteenth amendment rather than title VII because Federal employment was at issue.
*2Id. at 755 (Stewart, J). In~ a later case the Supreme Court without opinion affirmed a finding of interdistrict segregation. Ewins v. Buchaznan, 423 U.S. 963 (1975).
that favors suburbs over cities and rural areas run afoul of the Fourteenth Amendment because minorities and poorer people are concentrated in the disfavored areas? The Supreme Court and lower Federal courts have tended to answer all these frontier legal questions negatively.8' Even where effect is accepted as the appropriate legal standard, the courts have frequently insisted upon proof of a distinctly racial impact.
Underlying these cautious decisions are a variety of judicial concerns. In many instances, sustaining challenges to housing, welfare and school finance systems would implicitly involve the courts in requiring State and local legislatures to appropriate new funds, a step courts are reluctant to take, although it occasionally became necessary in the 1960's (e.g., in dealing with the closing of schools under massive resistance laws). Entry into the school finance area might enmesh the courts deeply in reforming the systems by which States finance and deliver services, a step some courts again view as treading on the legislative function.
And lying not far beneath the surface is a keen awareness of judges that there is strong public resistance to the steps they are being asked to take and that little support appears to be forthcoming from the other branches of government.
Yet the dilemma remains: blacks have not benefitted from civil rights laws because past discrimination has mired them in poverty and because as the last arrivals in the cities they came at a time when cities no longer had the resources and institutions to provide them with mobility. It may not be possible to make civil rights guarantees effective without dealing with barriers created by poverty and the structure of urban areas-barriers that affect many white people as well.
The process of establishing an egalitarian legal order and of translating legal change into social progress has proved far more complex than anyone could have imagined. The Supreme Court's decision in 1954 promised an end to legally sanctioned racism in this country. But the promise was not fulfilled when the decision was massively resisted and the legislative and executive branches failed to support the judiciary. When the expectations aroused by Brown (and later by john Kennedy's pledges of Presidential assistance) were disappointed the result was widespread protest and the birth of a mass civil rights movement. Protest was met with violent resistance, resulting in an ex-ression of national conscience that at long last brought Congress and the Executive to the rescue.
While the combined resources of the three branches of national government have produced important changes in the status of black people, particularly in the South, major barriers remain. Again, the courts have advanced further than the other branches in dealing with obstacles posed by poverty and the structure of urban government, and again, substantial progress may be impeded until ways are found to stimulate more public support for legislative and executive action.
8 8amesR v. Valtivrra. 402 U.S. 137 (1971) [refPrendum renntred for construction of low income houninz] Jeffersm v. Hacneit. 397 U.S. 471 (1970) lesser funtline, for AFDC nroLrvm1: an Anfonio Independent School District v. Rodriguez, 93 S. Ct. 1278 (1973) [inequity in school finance].
Contrary to conclusions drawn frequently in the pages of Commentary and Public Interest, the civil rights struggle of the 1970s is not an effort to convert legal guarantees of equal opportunity into legal guarantees of equal results. Rather, since the early 1960s, the struggle Tias been to convert paper promises into effective guarantees of eual opportunity. While the law has moved part of the way toward at
goal, the effort has become more difficult as initiatives to overcome the effects of past oppression of black people in order to secure true opportunity are viewed as threatening to other groups in society.
The challenge to law in all of its manifestations is to define rights and structure remedies in ways that will offer genuine equality of opportunity to all citizens and that will be perceived as in harmony with the ideal of fairness that has always been the bedrock of the American legal system.
Closing the Federal Courthouse To Public Interest Litigation
Carole E. Goldberg* and Herman Schwartz**
Introduction by Armand Derfner***
INTRODUCTION: PRIVATE ENFORCEMENT OF CIVIL RIGHTS
Everyone knows that not all "wrongs" have legal remedies. If I lose my job because my supervisor wants to give it to his incompetent nephew, I have no remedy (at least unless the employer is public), because the courts and legislatures have not created nor recognized any rights of mine to be free of such conduct.
This is easily understood. But it is another matter to have legal "rights," recognized as such by courts or legislatures, for which remedies are unavailable or largely so. In most areas of the law, rights and their remedies generally go hand in hand. Ironically, it is only in civil rights cases-and particularly those involving constitutional violations by public officials-that there is an enormous gap between the rights thought to exist and the remedies available to enforce those rights. This cannot be regarded as mere happenstance, of little significance since, unquestionably, the availability of remedies is a measure of the weight we place on the underlying rights. As Justice Harlan said in Biven2 v. Six Uinowin Names Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in considering whether a cause of action should be implied by the Fourth Amendment prohibition against unreasonable searches and seizures:
[ P]he question appears to be how Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of stockholders defrauded by misleading proxies. See X. I. Case Co. v. Borak [a case in which a private cause of action had ben implied from the regulatory provisions of the securities laws.] Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express value judgment on the comparative importance of classes of legally protected interests.
The discussion that follows is not designed to give a detailed account of the law of private enforcement of civil rights, but rather to remind us, in considering the state of civil rights, as described in this volume, that our Nation is, sadly, still at a point where the ability of private citizens to enforce their civil rights is a sometimes thing.
In our federal system, we have civil rights of both Federal and State origin, and, even as to the Federal rights, we are entitled to enforce them in both State and Federal courts. Nonethele~s. w-ith few exceptions, the major sources of civil rights are the provisions of the Federal Constitution and Federal statutes, and the major forum for
*Carole E. Goldberg is a Professor of Law at the University of California at Los Angeles.
**Herman Schwartz is A Professor of Law at the State University of New York at BuIffalo.
***Armand Derfner Is a member of the Executive Committee of the Lawyers Committee for Civil Rights and practices law in Charleston, S.C.
enforcing those rights has been the Federal court system. Therefore, as a practical matter, when we discuss the enforcement of civil rights, we mean the enforcement of Federal civil rights in Federal courts.
This was not always the case. Indeed, for the first century of our history, principal reliance for enforcement of Federal rights was left ini the State courts, and the Federal courts were given no jurisdiction to enforce rihts, created or guaranteed by the Federal Constitution or laws unless the cuse involved diversity of citizenship or one of the other restricted bases of jurisdiction. This approach to federalism was fundamntally transformed as a result of the- Civil War, whose legacy went far beyond the uprooting of the institution of slavery. The legacy of the War also included a vast transformation of the relationship between the State and Federal Governments, represented principally in the Fourteenth Amendment and augmented in five major Reconstruction Acts-the Civil Righits Acts of 1866 and 1875, the First and Second Enforcement Acts of 1870 and 1871, and the Ku Klux Klan Act of 1871. "Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that State instrumentalities could not protect those rights; it was realized that State officers might, in fact, be antipathetic to the vindication of those rights: and it believed that these failings extended to the State courts." Mitctum v. Foster, 407 U.S. 225, 242-43 (1972).
Out of this background also came a sweeping change in the distribution of responsibility between the State and Federal courts. It began with the Jfudiciary Act of 1867, which for the first time (with minor exceptions) authorized~ Federal judges to issue writs, of habeas corpus for State prisoners; continued with the jurisdictional provision of the Ku Klux Klan Act, which gave Federal courts jurisdiction to hear cases involving civil rights violations committed under color of State law; and culminated in the Judiciary Act of 1875 which gave the Federal courts jurisdiction of all "Federal question cases," i.e., all cases in which the claim was based on a right created by the Federal Constitution, treaties or statutes. The Act of 1875, the most far-reaching jurisdictional statute in our history (save the original Judiciary Act of 1789), was described by then-Professor Frankfurter (in terms very different from the approach he later took as a Justice to the construction of the Act) :
In the Act of March 3, 1875, Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789. These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the principal and powerful reliances, for vindicating every right given by the Constitution, the laws, and treaties of the United States.-[Frankfurter & Landis. The Business of the Supreme Court 65 (1928).]
It was to be many years, however, before the expanded jurisdiction camne to he frequently invoked by private citizens seeking to enforce their civil rights. At first, principal enforcement of the newly created civil rights came--as the Reconstruction Congresses had expectedfrom the Federal Government, through criminal prosecutions. Between 1870 and 1894, there were over 7,000 Federal prosecutions for civil rights violations. As the century drew to a close, the massive retreat from the earlier mood, accompanied by extraordinarily restrictive (and often disingenuous) decisions by the Supreme Courts slowed civil rights enforcement to a trickle. It was not until the 1940's and 1950's that real advances in civil rights enforcement began again.
During the quarter century which began roughly at the time of World War II, the growing national feeling ofsupport for civil rights was accompanied by several factors stimulating enforcement; the reentry of the Federal Government into enforcement (beginning with te c tio o the C i berties Section of the Justice Departmet in 1939); the passge byrCQ of a whole new body of law, with
heavy emphasis on nforcement provisions; concerted effort by priv.te citizens and orgai ions to make planned assaults on systems
of discrimination anl deprivation of civil rights and liberties; and adoption by the Federal ourts, for the first time in history, of judicial doctrines which were conducive to the carrying out of the directions contained in our Constitution and laws. The improved performance of the Federal courts was especially marked in dealing with jurisdictional questions. The high water mak was represented by Justice Brennan's description of the function of Federal courts in entertaining civil rights claims:
We yet like to believe that whenever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline exercise of that jurisdiction simply because the rights asserted may be adjudicated in some forum.-[Zwiokler v. Koota, 3S9 U.S. 241 (1967).]
From that high mark the water has steadily and rapidly receded. The following article gives a detailed summary of the changes and of the barriers to access to Federal courts which have been erected in a few short years. The course from Zwickler to the present may well be typified by a case in which the Federal courts were held barred from interfering with State civil proceedings before the conclusion of those proceedings, on the ground that Federal intervetion would most appropriately be sought after completion of the State proceedings while simultaneously suggesting that intervention at the latter URIC would be barred as well! In a paragraph that repays careful rg, the Court all but laid to rest the Zwickler case, the Judiciary Act of 1875, and the hopes of those who think thatthe function of a Federal court is to devise-not to bar-effective remedies for Federal civil rights:
Apell's argument, that because there may be no civil counterpart to federal habeas it should have contemporaneous access to a federal forum for its federal claim, apparently depends on the unarticulated major premise that every litigant who ssets a federa elim is entitled to have it decided on the merits by a federal, rather than a state, court. We need not consider the validity of this premise in order to reject the result which appellee seeks. Even assuming, arguendo, that litigants are entitled to a federal forum for the resolunf federal issues, that entitlement is most appropriately assrted by a state litigant.when he seeks to relitigate a federal issue adversely determined in completed state court proceedings We do not understand why the federal. rum must be available prio o completion of the state pr whcthe federal issue arises,
ad the cnid ns anvassd in Younge te agant such a result.
CLoSING Tf FERAL COURTHOUSE TO PUBLIC N TREST LITIGAIO
The most vntributioa o the Warren Court may turn out t i be noti jisi artic r ares, importnt ,as these
""We in no way Intend to suggest that there is a right of access to a federal forum for the disposition of, ll federal issues, or that the normal rules of res jud cata andj udicial es e n t 42. 198 e issues
i3v. Ro drJguez. 4 4 497 36 L. Ed 2d
S 9 m sley as of disp of
appellee's contentions without confronting issues which have not been briefed or argued in this case.- [Hoffman v. Pursue, Ltd., 420 U.S. 592, 606 (1975).]
have been. Rather that Couit's greatest impact may result from its efforts to make the Federal courts more available and responsive to the claims of those wroncred by governmental and private miscondtict, and concomitant with that, the development of a vigorous and skillful public interest bar. Minorities, women, victims of consumer fraud, poor people, victims of legislative malapportionment, environmentalists, prisoners, mental patients, victims of governmental irregulfirities-all of these interests have rarely had a forum in which to press their interests, or adequate legal representation. Most if not all of them, saw the Federal courts as just another part of a generally indifferent governmental apparatus, not particularly interested in social change. The Warren Court changed that and revived the notion that the Federal courts are and ought to be vigorous protectors of rights guaranteed by the Constitution's meaningful remedies-in these and other contexts, the Supreme Court has sharply restricted the Federal courts' power to protect basic rights. Instead, protection of these rights has been relegated to the State courts, few of which have shown themselves particularly sympathetic to such interests.
The cases can be usefully though roughly categorized as follows: 1. Those procedurally curtailing access to the Federal court actions traditionally in those courts-these include the cases on standing and class actions.
2. Those requiring great deference to State court proceedings,these include restrictions on Federal court injunctions against State enforcement and forfeiture of the right to Federal habeas corpus review of constitutional defects in State court convictions.
3. Those denvinz the lower courts the power to fashion appropriate remedies for constitutional violations, including the grant of attorneys' fees, as well as other decisions cutting back on a Federal court's power to redress or prevent harms by State officials.
1. RESTRICTIONS ON WHO CAN SUE IN FEDERAL COURTS
No matter how clear Government or private misconduct may be, Fedeml law sets certain threshold requirements before a person or group may challenge those actions in a Federal court; the cost of litigation imposes additional burdens. In both these respects, the Supreme Court has made it more difficult to bring such a challenge in Federal court.
In recent years, the Burger Court has revived the requirement of standing as a major obstacle to litigation in Federal court. Contrary to Warren Court decisions as well as to some of its own earlier precedents, the Burger Court has made it difficult for plaintiffs to demonstrate that they have satisfied the article III standing requirement of 94inj ury in f act." Furthermore, the Burger court has interpreted more narrowly certain prudential standing doctrines-such as the rules limiting assertion of another's rights, and the rules demanding some indication that plaintiff was designed to be protected by laws he-or she relies on.
The, thrust of the Burger Court decisions on these issues has not been consistently restrictive of Federal jurisdiction. However, the
absence of specific guidelines in the. prudential standing doctrines in particular has enabled the Court to deny standing to members of groups whose substantive rights have been disfavored by the Court (such as the poor), and to allow standing to members of groups whose interests have been favored. This modus operandi is contrary to the approach of the Warren Court, as well as to the recommendations of legal scholars, who have written in recent years that the standing doctrine is a poor substitute for consideration of a case on the merits. See, e.g., Albert, Standing toChallenge Administrative Action. An Inadequate, Surrogate for Claim for Relief, 83 Yale L.J. 425 (1974).
Article III Doctrine
1. The Burger Court's reluctance to find the existence of "injury in fact" is exemplified by two recent ewes, "WartA v. Seldin, 422 U.S. 490 (1975) and Simon v. Eastern Kentucky Welfare Rights Organizationi 96 S. Ct. 1917 (1M). In Warth, low and moderate income minority group members who resided in Rochester, N.Y. but worked in the suburb of Penfield challenged Penfield's exclusionary singlefamily and low density zoning ordinances as unconstitutionally discriminatory in purpose and effect. A 5-4 majority of the Supreme Court denied them standing, ar i that they hakl failed to demon state "injury in fact" because t revy could not point to any particular housing project that they could have afforded that would actually have been built but for Penfield's ordinances. The majority indicated that its standing requirement could have been satisfied only if a developer of such a low or moderate income housing project had applied to Penfield for permission to build and had been turned down. Forth plaintiffsl that requirement meant they would have to find a developer willing to invest the tens of thousands of dollars necessary to produce project plans just to bring a, constitutional challenge. It should be noted that the majority's insistence on specific cause and effect relationships between Penfield's ordinances and the plaintiffs' housing plight occurred at the pleading stage, when Federal procedural requirements usually are, liberal.
2. Similarly, in Simon v. Eastern Kentucky "Welfare Rights Organization, the Burger Court majority denied standing at the pleading stacre m, a suit by low-income individuals unable to afford hospital services challenging favorable tax treatment granted by the I.R.S. to certain private hospitals. The claim was that an I.R.S. revenue ruling, eliminating a requirement that non-profit hospitals serve indigents -to the extent of their financial ability, violated the Internal Revenue Code, and encouraged hospitals to -deny services to, indigents. The Court failed to find sufficient allegations of "injury in fact," because plaintiffs could not demonstrate that if the revenue ruling were changed to require more extensive services to indigents, the hospitals would choose to provide, these services rather than abandon theirfavorable tax treatment. Since plaintiffs obviously could not gain. access to such information in the absence of the discovery that litigation makes possible, they were effectively foreclosed from raising their legal claim in federal court.
By contrast, in an earlier case, United States v. SCRAP, 412 U.S. 669 (1973) plaintiff environmentalists were able to establish standing
to challenge an increase in railroad m tes, "ly by alleging that the increase would affect environmental quality by increasing use of nonrecyclable commodities. The causal relationship between the rate increase and these consequences did not have to be demonstrated with particularity at the pleading stage. The Court's willing to find standing seems to be a function of its sympathy to the underlying claims of the plaintiff.
Prudential Standing 1ictrine8
3. A similar double standard on the part of the Court is found in cases concerning the prudential standing rule that limits a plaintiff's ability to assert the rights of another. In Warth, supra, taxpayer citizens of Rochester were denied standing to assert the rights of low and moderate income individuals unable to find housing in Penfield. The taxpayers' claim was that Penfield's exclusionary policies imposed "extra costs of services on Rochester citizens. The Court insisted that nothing interfered with the low and moderate income individuals
-asserting their own'rights, and that the taxpayers' rights were not 'being violated indirectly. If the Court had found to the contrary on either of these points, it could have triggered an exception to the general rule prohibiting plaintiffs from aserting the rights of others.
4. By contrast, in Singleton v. Wulif, 96 S. Ct. 2871 (1976), a 5-4 majority of the Oounrt granted standing to doctors to challenge the constitutionality of a State law denying payment of Medicaid benefits to patients who underwent certain abortions. The Court allowed them not only to assert their own rights, but permitted them to sue on behalf of the women whose exercise of the right to an abortion was hindered. The Court relied on the physicians' relationship to their patients; however, it is uncertain from the Court's opinion what makes this relationship special for purposes of standing doctrine. It appears that it was the sympathy of several justices with the particular groups of people bringing suit, and with their substantive claims, that kept the restrictive standing views of the majority from carrying the day. Again, the Court seems to be opening the door to the Federal courts according to its sympathies with the particular groups of people bringing suit and their substantive claims.
5. The Burger Court also has revived a prudential standing doctrine that precludes individuals from suing when the harm they have suffered is not peculiar to them, but rather is shared by citizens in general. According to this doctrine, courts may not examine and review what appear to be flagrant abuses of Government power so long as everyone in the country is harmed equally. Reasoning backwards, the Court infers from the fact that the harm is undifferentiated that the Government action in question is outside the scope of judicial review. This approach departs considerably from that of the Warren Court.
Thus, for example, in Schlesivger v. Resermists Committee to Stop the War, 418 U.S. 208 (1974) citizens and taxpayers were denied standing by a 6-3 majority to challenge the military reserve membershlip of Members of Congress. Plaintiffs relied on Art, IL q 6, ci. 2 of the Constitution, which provides that "no Person holding any Office under the United States, shall be a member of either H(use during his Continuation in Office," and claimed that the reserve
officer/Cougressmen would be compromised in~ fuilliiing both sets of duties. And in Uinited Statag v. Richrdo, 418 US 166 (1974)) a 5-4 majrity denied a Federal taxpayer standings5 to challenge the provson oftki Central Intelligence Agency Act tat permits with~holdin the C.I.A. budget from public scrutiny. Hie relied on th~e constitutional provision requiring a~ regular statement aIIId account of expenidit~ures of Federal moneys, and~ claimed he couJl not makeq sen se of th~e overall Federal budget or intelligently exercise his frzanchise~ without information about the C.I.A. In either case, it would be difiut to find someone who had a more particular interest iin suing tha his or her interest as taxpayer or citizen. Hence, denying citizen and taxpayer standing was tantamount to precludingr judicial review. A reading of the opinion suggests the Burger Cou art's underlying antipathy to the merits of the claims involved, and its, use of standing doctrine as a substitute for decision on the merits.
By contrast, the Warren Court, in Flast v. Cohen, 392 U.S. 83, (1968) -allowed standing to taxpayers to challenge certain Federal expedtures that. benefited parochial schools. The~ plaitiff taxpayers were not harmed by the expenditures in some manner specific to them. While the Warren Court did insist on some "logical nexus" between the plaintiffs' status as taxpayers and the Constitutional clause they relied on for their claim (in Flast, the First Amendment's "establishment of religion" clause), this reqiriement was relatively easy to satisfy in Flast. By contrast, in Schlesinger and Richardson, the Burger Court raised this requirement to a. major obstacle to bringing suit. It seems, for example, that the constitutional provision at issue in Richardson is much more directly related to the protection of taxpayers~ than the prohibition on establishment of religion involvedi in Fl~at.
B. Class actions
In many cases of business or governmental abuse, harm to any individual person is too small to make it financially feasible f or that p eson to sue, whether in Federal court or anywhere else. This can
truee for excessive utility rates, consumer frauds, harm from pollution, harm from antitrust violations and the like. Class actions have b~een developed partly in order to facilitate the banding together of people with similar claims. In many cases, the wrongdoer will escape liability completely if no class action is possible, thus defeatigboth the deterrent and compensatory purposes of many Federal
1. In a series of decisions starting in 1969, Snyder v. Harris, 394, TJ.S. 332 (1969), but going far beyond that in the last three years, the Court has set up almost insuperable barriers to the maintenance of cls actions by a large number of people with small claims. In Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), a purchaser of odd lots of stock on the -New York Stock Exchange sued two, brokerage firms under the antitrust laws for monopolizing the business and charging excessive fees. The suit wars on behalf of a class. consisting of himself and some six million ot~hers. The District Court found that some 21,4 million members of the class could be identified, and that it would cost $225,000 to notifyv them individually. The District Court therefore devised a scheme involving notice by publication
in the Wall Street Journal and other newspapers, and individual notice to over 7,000 key individuals and groups; that would have cost only $21,750. The Court also ruled that 90 percent of this cost should be borne by the defendants since it had found, after a hearing, that they were "~more than likely" guilty of having violated the antitrust laws, and that the plaintiffs would prevail.
In a 6-3 decision, the Supreme Court ruled that personal notification of all the 2.25 million people had to be made by the plaintiff, and that he had to bear the entire cost. The decision effectively killed class actions where a great number of people have been wronged, but none to a sufficiently great extent to justify that person's spending a small fortune in niotifying all the others of the action.
2. Where Federal court jurisdiction is based on the parties being citizens of the different States, the "matter in controversy" must exceed the value of $10,000, to -avoid wasting the Federal courts' time on minor disputes. Sometimes, few or none of the complainants individually suffered that much damage. In 1969, the Supreme Court ruled that where none of the plaintiffs individually claimed more than $10,000, it wasn't enough that their claims totalled more than $10,000 in the aggregate. Snyder v. Harris. Four years later, the Burger Court went far beyond Snyder to limit class actions for jurisdictional. amount reasons. In Zathn v. Int'l Paper Co., 414 U.S. 291 (1973),9 200 lakefront owners sued the International Paper Co. for polluting Lake Champlain in Vermont. This time, four of the plaintiffs did have claims of more than $10,000 and the matter obviously involved a very substantial sum. Completely ignoring a long line of cases allowing "ancillary jurisdiction," which would have allowed all those with claims of less than $10,000 to join their claims' with those plaintiffs whose claims were in the requisite amount, the same 6-3 majority as in EFisen insisted that each class. member have the jurisdictional amount and refused to allow a class action, leaving those with smaller claims probably without, a viable and inexpensive remedy.
3. This past term, the Court extended its restrictive approach to
-ancillary. jurisdiction in public interest cases to another context. In AlIdingqer v. Howard, 96 S. Ct. 2412 (June 24, 1976), a school teacher was dismissed from her job without a hearing because she was allegedly "living with [her] boyfriend" though her work was considered "excellent". She brought a civil rights action against the County Treasurer and tried to include in her suit a State-law claim against the county itself on a theory of ancillary jurisdiction; although the Civil Rights Act has been construed as not permitting suits against governmental agencies,, but only against individual officials, State law apparently allowed a suit against the county. Her purpose, of course, was to resolve everything in one proceeding and thereby avoid the expense and duplication of two separate suits in Federal and State courts. Although the Supreme Court has allowed the parties to add State claims to Federal suits when they grew out of a "common nucleus of operative fact", UMW v. Gibb8, 383 U.S. 715 (1966),9 and though many other courts and commentators had approved such expeditious handling as the plaintiff tried in Aldinger, a 6-3 majority of the Supreme Court forced the plaintiff in that case to split her suit and relegated her to a separate State court proceeding for
the suit against the county. Since State courts can adjudicate Fed-, eral Civil Rights Act claims, see 96 S. Ct. at 2421, tis means that the only way a person can simultaneously sue both the official agency and the individual who violated his civil rights is by staying out of Federal court.
11I. OMITY AND FEDERALISM
In the name of comity and federalism, the B urger Court has steadily reduced the Federal courts' ability to protect constitutional rights in civil and criminal matters by forcing the Federal tribunals to defer to State court adjudication. The movement has been reflected primarily in two areas : "Federal court injunctions against State criminal and civil proceedings when the latter threaten constitutional rights; State prisoners' rights to Federal habeas corpus. A. Comit y and injunctions against State proceedings
Decisions of the Burger Court have severely restricted individuals' ability to sue in Federal court to protect their Federal rights against invasions by State officers. These denials of Federal jurisdiction have occurred in the name of "comnity"-that is, deference to the adequacy of State court proceedings to protect Federal rights. Thus Federal courts have refused to entertain suits for injunctions or declaratory judgments with respect to certain State court proceedings, even where plaintiffs claim that the subjection to the State -court proceedings will itself chill the exercise of federally protected rights.
1. The first Burger Court decision to make this point was Younger v. Harris, 401 U.S. 37 (1971). In Younger, plaintiff sued to enjoin enforcement of the California Criminal Syndicalism Act, under which he was being prosecuted, for distributing leaflets advocating change in industrial ownership through political action. He claimed that his prosecution under the Act, as well as the very existence of the Act, inhibited him in his exercise of his First Amendment rights of free speech and press. An 8-1 majority of the Supreme, Court found that the alleged overbreadth of the statute and its chilling effect on First Amendment rights were not circumstances 'so compelling as to warrant Federal intervention to stop the State criminal proceeding. The Court found that in the absence of a showing that the prosecutions were in bad faith or intended to harass, someone such as Harris should place his Federal rights initially in the care of the State criminal courts, and rely on the slim possibility of U.S. Supreme Court review. or a much-delayed Federal habeas corpus petition for his Federal hearing. The Court apparently believed that deference to State court pro-ceedings was more important than the discouragement of speech that might follow were individuals required to undergo a State trial before obtaining a Federal hearing.
2. The Burger Court seemed to be lessening the impact of Younge'r in its later unanimous decision in Ste ff4l v. Thompson, 415 U.S. 452 (1974). Ste ifel permitted Federal courts to issue declaratory j*udgments (but not injunctions) with respect to the constitutionality of imminently threatened, though not yet pending, State criminal prosecutions. If a plaintiff -were sufficiently skillful to provoke the police
int providing him with a "ripe case, without provoking them much they arrested him, he could obtain a Federal hearing. Hwever, in Hick-s v. Mirqnda 422 U.S. 332 (17), the~ ourt, by a 5-4 major'itv, hield that a- Federal proceeding, properly Lbrought under the terms~ of SIte ifel, could be placed beyond Federal jurisdiction if a State criml~inal prosecution were comenced after the Federal suit was filed. Thus in Hicks the plaintiff movie theater 6wnes had not been inicted it the time they sued to enjoin enforcement of the State antiobseenity laws on first amendment grounds. Two of their employees at the theater had been arrested, and several reels of their filmliad been seized before the Federal suit was filed. The Court found that State indictments entered against the Federal plaintiffs soon after commencement of their Federal suit rendered the comity considerations of Younger v. Ha)-ris applicable, and Federal jurisdiction inappropriate. The likely consequence of this decision is encourageruent of State court prosecutions once a Federal action has been filed. See also Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).
3. Although Younger was premised on the importance of State criminal proceedings, the Burger Court extended its approach to certain civil proceedings in Huffman v. Pursue, Ltd., 420 U.S. 5.92 (1975). There plaintiff had leased a movie theater, and the State had brought a civil action under its obscenity laws to "abate" the showing of obscene movies in that theater. After the final abatement order had been entered, plaintiff sued in Federal court, alleging the obscenity statute was unconstitutional and seeking an injunction against future abatement proceedings. A 6-3 Court majority rejected his arguments that deference to State civil proceedings was less warranted than deference to State criminal proceedings. Plaintiff had argued that more safemards existed against the initiation of criminal proceedings, and that Federal consideration ultimately was available only in State criminal pioceedings due to the existence of Federal habeaS corpus.
These Burger Court precedents stand in sharp contrast to the Warren Court decision in Dombrowski v. Pfster, 380 U.S. 479 (1965). Plaintiffs in Dombrowski sued in Federal court to enjoin pendirg and threatened prosecution against them under the Louisiana Subversive Activities and Communist Control Law. Plaintiffs had been subjected to repeated arrests, their offices had been raided, and their papers had been seized. The claim was that the law was overbroad, and that the prosecutions under it chilled expression protected under the First Amendment. Emphasizing the primary role of the Federal courts in vindicating Federal rights, as well as the importance of protecting speech in particular, the Court upheld Federal jurisdiction. The Burger Court's contrary emphasis on respect for State court proceedings will probably render dissidents much less willing to challenge the constitutionality of State legislation. B. Habeas corpus
The Burger Court's most vigorous effort to cut down the protections for constitutional rights erected by the Warren Court has come in the criminal area. This effort has involved not only a whittling down of the substance of the various First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights, but also the denial of a Federal forum
to remedy violations of these rights, no matter how egregious or clear
Three cases decided in the lastl mo1nt~hs of this pst iterm shw this
tendency: Frwi v.Hwero,9 S t78(a 3, 1976;Stn
1. InA Fraci v. eniderson, a 17-year old black youth was indicted in the early 1960's by a Louisiana grand jury for felony murder. Two months later, the State~ appointed-witou~t conpensation-a lawyer in failing health, with little recent criminal law experience. Hie did ahnost nothing to prepare for the defense and, among other things, failed to challenge the racial composition of the grand jury. The trial took one day, and the defedant was convicted anud sentenced to life imprisonment; his accomplices pled guilty and received 8-year prison terms. A Federal district court later found that blacks had indeed been
anontitutienally exce d from the grand jury.
.In Fay v. Noi, 312 U.S. 39~1 (1963),7 the Court had ruled that a person convicted in a State court could bring a habeas corpus proceeding in Federal court to challenge a violation of his constitutional rights in teSte prosecution, unless the prisoner himself had deliberatelyy souglht to subvert or evade the orderly adjudication of his F'ederal defes in the State cor .. A choice made~ by counsel, not participated in by the ptitioner does not automatically bar relieff. 372 U.S. at 433-34, 438-9. Nevertheless, in Francis v. Hienderson, a 6-2 mnajority of the Supreme Court ruled that a State prisoner could be permanently denied a Federal forum for his constitutional claim of a ra&cially biased grand jury-even thouh as ini Franci, the claim was valid-if his lawyer hTad ngetdto raise it- at the time required by State proceduire; Fay v. Niwanoevndiscussed.
2.lIn Soev. Powell, a 6-3 majority of the Supreme Court wiped out Federal habeas corpus review of a claim that a State court conviction was bas on illegally seized evidence so long as a State court had concluded that the search was legal. In Stone, a seizure was maide puirsuant to an arrest under a vagrancy statute found unconstitutional. The result of the decision is that except for the very few instances in which the Supreme Court, reviews a State criminal case on direct review, the Federal courts are ousted from examining unconstitutional State statutes or policies resulting in allegedly unconstitutional seiziires. The Court based its decision on an explicit hostility to the exclusionary rule, but as the dissenters pointed out, Congress and the habeas corpus statute did not give the Federal, courts the power to refuse to redress violatios of a person's constitutional rights simply because the Court doesn't approve of a particular remedy for the violation. The logic of the majority opinion justifies a fear that other rights will soon be excluded from Federal habeas corpus protection where the Court is unhappy with either the scope of the right, or the remedy for its violation.
3. The Court took a somewhat more circuitous route to curtail Federal court jurisdiction in Estelle v. Willianu. In a Texas criminal, persecution, a defendant claimed he was forced to stand trial in prison
yr, a clear violation of the Constitution. Bcuse the prisoner failed tomake a timely objection, teCourt denied him the right to take
his case to a Federal habeas corpus court, ruling that he was therefore not compelled to wear prison garb, thus transforming a procedural rule about how and when to make an objection into a defeat of the claim. on the merits. Here again, the Court ignored Fay v. Noia's stringent standards for determining when a procedural mistake results in a forfeiture of the right to raise a valid Federal constitutional claim on habeas corpus.
III. FEDERAL COURT POWER
In a, miscellaneous variety of decisions, the Supreme Court has stripped the Federal courts of power to create effective and practicable remedies and in some cases, even to consider certain kinds of wrongs.
1. In Rizzo v. Goode, 96 S. Ct. 598 (Jan. 12, 1976), the Federal district court found that public officials in Philadelphia had steadily refused to do anything to stop a pattern of police misconduct in gross violation of the rights of black people in Philadelphia in particular, and of Philadelphians in general. With the assent of the Philadelphia Police Department, and with the approval of the Commonwealth of Pennsylvania and many others, the Court ordered the police department. to put into effect a, complaint procedure which, incidentally, fell quite a bit short of what the plaintiffs had requested. In a 643 decision, the Supreme Court ruled that the Federal court had no power to issue such a ruling where the attack .wa only on the officials' failure to control their subordinates, ignoring a long line of cases and the clear legislative history of the Civil Rights Act, 42 U.S.C. 1983 which makes it clear that the Act reaches situations where, "by reason of
* ** neglect" 'constitutional rights may be denied. Monroe v. Pape, 365 U.S. 167, 187 (1961) ; Hague v. ('10, 307 U.S. 496 (1939) ; and see cases collected in Justice'Blackmnun's dissent, 9685. Ct. at 610, 611 n.2.
2. As the class action cases show, financial barriers to litigation can be as effective as legal restrictions. As Federal and foundation funds for public interest litigation have dried up, many Federal courts have invoked their equity power over costs, to grant attorneys' fees to the winners at the expense of the losers. Although this is not common in American law, some statutes authorize such awards in public interest cases, and there were several lines of cases *that support the courts' use of their equity power in this manner. As Justice Frankfurter noted in 1939, "allowance of [attorneys'] costs in appropriate situations is part of the historic equity jurisdiction of the Federal courts." Sprague v. Ticonic National Bank, 307 U.S. 161, 164 (1939). In reliance on this authority, numerous Federal courts have awarded attorneys' fees to the prevailing parties in public-interest litigation on the theory that those parties were serving as "private uttorneys-general", performing a valuable function in supplementing the ineitably limited efforts of public officials in proteting the public interest. In a 5-2 decision last year, the 'Supreme Court put a stop to this and ruled that Federal courts had no power to award such fees. It explicity disapproved the decisions of almost every other Federal circuit, refused to find that the precedents for attorneys' fees were, applicable, and set aside an award to attorneys for environmentalists who had challenged construction of the Alaska oil1 pipeline. A lyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) ; the many lower court decisions allowing such fees are collected in fn. 46 of the majority
opinion. The result is that unless Congress provides for attorneys' fees,' public interest groups may be financially unable to undertake complex and expensive litigation.2
3. Eleventh Amendment. The Burger Court has closed the, Federal courts to plaintiffs seeking damages from State officers, at least w here the relief sought is so sizable that its cost almost certainly will be borne by the State treasury. In Edelman v. Jordan, 415 U.S. 651 (1974), a 5-4 majority of the Court invoked the Eleventh Amendment to deny welfare recipients the right to sue in Federal court to recover unlawfully withheld benefits. Their suit was brought under 42 U.S.C. 1983 and asserted that the withholding of benefits violated provisions of there Federal Society Security Act as well as the equal protection and due process clauses of the Fourteenth Amendment. Defendants in fact were enjoined from the challenged practices, which included failure to process welf are applications as quickly as a Federal timetable re,quired. However, plaintiffs were not permitted to sue to recover the back benefits they had been unlawfully denied, the Court minimizing the need for the recovery by labelling it a "windfall" at that late date.
This holding departed from from earlier Burger and Warren Court precedents upholding injunctive remedies against State officers that. surely would cost the State large sums of money (e.g., Goldberg v. Kelly, 397 U.S. 254 (1970), requiring hearings before termination of welfare benefits to recipients). Edelman refused to treat Congress' enactment of 42 U.S.C. 1983, pursuant to its power to enforce the Fourteenth Amendment, as an action superseding the Eleventh Amendment where retroactive monetary relief was involved. Much earlier, the Court had found that ~ 1983's authorization of injunctive suits against State officers superseded the Eleventh Amendment, EM~ parte Young, 209 U.S. 123 (1908). It should be noted, however, that the Burger Court has held that congressional legislation, adopted pursuant to its Fourteenth Amendment enforcement powers, is capable of superseding Eleventh Amendment restrictions if it specifically authorizes recovery of money damages against State entities. Fitz patr-ick v. Bitzer, 96 S. Ct. 2666 (1976) (upholding back pay award under 1972 Amendments to Title VII of Civil Rights Act of 1964).
The Court in Edelman was presented with the argument that even if the State enjoyed immunity from retroactive welfare awards under the Eleventh Amendment, it had waived that immunity by participating in the Federal welfare program. This program requires that States administer their welfare systems in accordance with Federal rules if they want to receive Feder~al subsidies. The Burger Court's refusal to. find a waiver under these circumstances contra-sts with the Warren Court's holding in Parden v. Terminal R. Co., 377 U.S. 184 (1964), finding a waiver immunity from suit under the Federal Employers Liability Act when the State continued operating a railroad after passage of the Act.
4. As in the criminal-law area, the Court has occasionally used rulings on specific substantive issues to adopt a decisional rationale that affects more than the specific issue before the Court. See the prison
1Legislation to allow attorneys, fees in actions under the Civil Rights Acts has been enacted. P.L. 94-559, 90 Stat. 2641.
2The Council for Public Interest Law surveyed public Interest lawyers on the Impact of Alyeska and found that "SO2 percent * reported that the Alyeslca decision will nmean that their firms can do less public Interest work." Pipeline, Dec. 1, 1975, p. 1.
garb case, Este v. Williams, above. One example is a suit for damages to reputation under the Civil Rights Act, in which a 6-3 majority of the Supreme Court reversed a lower court and denied relief. Paul v. Davis, 96 S. Ct. 1976 (March 23, 1976).
In 1972, police officials in Louisville, Kentucky, di ributed a flyer to businessmen in the metropolitan area containing "mug shots" of "active shoplifters." Plaintiff Davis' picture was included. He had been arrested before the flyer was distributed but not convicted; ultimately, the case against him was dismissed. When the flyer appeared, Davis was called m by his boss and told "not [to] find himself in a similar situation" agai.
Davis sued the police officials for a violation of his civil rights, relyIng on a recent Supreme Court decision in 1971 which had held that a State could not harm an individual's reputation by labelling him an "excessive drinker" without affording him procedural due process. Wisconsin v. Constattneau, 400 U.S. 433 (1971). The Court of Appeals relied on this decision to uphold Davis' claim.
Nevertheless, the Supreme Court held in a 6-3 decision, with an opinion by Justice Rehhquist, that damage to reputation wa not actionable under the Federal Civil Rights Act. Paul v. Davis, 96 S. Ct. 1155 (Mar. 23, 1976). While accepting Davis' claim that his future employment opportunities had been impaired by the police officials' wrongly circulating his photograph as an "active shplifter", it ruled that "reputation alone apart from some more tangible interests suh as employment, is [neither] 'liberty' or 'property' by itself sufficient to invoke the procedural protection of the Due Process Clause"- 96 Ct. at 1161. The Court distinguished A long line of c hiding that
injury to reputation was sufficiently serious to trigger the proceral protections of the Fourtbenth Amendment on the ground that these
-involved "interests *** initially recognized and proteced by state law * a right or status previously recognized by State law," id at 1165, rather than injury to reputation as such.
The requirement that only an interest "recognized by State law" is protected by the Federal Civil Rights Act is newly sprung. It was reiterated several months later in a prisoners rights case whet e a risoner claimed he should not be punitively transferred far from his ome to another State, at great personal hardship to himself or his family, without a hearing on the propriety of the transfer. Meachum, v. Fano, 96 S. Ct. 2532 (June 25, 1976) ; Montanye v. Haymes, 96 S. Ct. 2543 (June 25, 1976). Reversing several lower courts a 6-3 majority of the Court held that because State law gave the prisoner no right to be in a particular institution, the degree of hardship resulting frm the transfer was irrelevant.
In both these case. the majority of the Court has construed the "liberty" or "property" protected by the Constitution and Civil Rights Act in a way inconsistent with prior decisions and dependent on the vagaries of State Law.3 Over 50 years ago, the Court declared that "without doubt ["liberty"] denotes not merely freedom from bodily
3These transfer decisions are but the latest in a series of prisoners rights decisions dtrin the last three terms which have steadily refused to allow prisoners the cotitutional rights qoiizht. See. e.g.. Richardson v. Ramirez, 418 U.S.2d (1974) ; Baxter v. P, 7niiliano, 97 S. Ct. 1551 (1976) ; Pell v. Procunier, 417 U.S. 817 (1974).
Even where some of the rights have been permitted, they have falen far short of what anyTiv lowror federal courts thought necessary and appropriate. See, e.g., Wolff v. MoDoneaU, 41S U.S. 539 (1974).
restraint, but also the right of the individual ** generally to enjoy
those privileges long recognized * as essential to the orderly pursuit of happiness by men." Meyer v. Nebraska, 262 U.S. 390 (1923). The Court has never made the definition of "liberty" turn on recognition by State or Federal law, and it has long considered reputation as a vital interest.4
Moreover, with the rarest of exceptions, almost all earlier cases had focused on the extent of the loss inflicted on the citizens by the State officials' wrongful acts, and in many cases, reputation had been protected. See cases cited in Justice Brennan's dissent, 96 S. Ct. at 1172. See especially Jenkins v. Mcffeithren, 395' U.S. 411 (1969), which struck down a Louisiana statute creating a Labor-Management Commission that had the power to brand people as criminals without trial or other procedural safeguards.
There are, of course, exceptions to these cases: The dissenting justices have occasionally been able to pick up a few extra, votes. See, e.g., Allee v. Medrctno, 416 U.S. 802 (1974) (5-3, Burger, C.J., White and Rehnquist, J.J. dissenting on many of the procedural issues, and Powell not participating) ; Ste ifel v. Thompson, 415 U.S. 452 (1974). And on the other hand, even the Warren Court and some of the dissenters have sometimes joined in a restrictionist holding. See Snyder v. Harris3, supra; Younger v. Harris, supra.. But for the most part, the pattern is clear: the Nixon appointees who now constitute the majority of the Court are forging a set of restrictive doctrines which will substantially reduce the availability of the Federal courts for public interest litigation. Since State courts have not been especially receptive to such law suits, many rights will remain without a remedy.
&See Justice Stevens' dissent In Meaclhum: [Jeither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause -protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law Is essential to the exercise and enjoyment of Individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source. I had thought It selfeviilent that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It Is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations., ** 96 S. Ct. at 2541.
The First Ten Years of Equal Employment Opportunity Law
M. Carl Holman*
A decade is a short time indeed in which to measure any social, economic or political development. The almost inevitable tendency is is either to read much more or much less into such an assessment than will prove justified later by those who are not attempting their examination, as we are, from much too close a distance. Certainly T have been uncomfortably conscious of this problem since I first agreed, perhaps too readily, to accept Charles Markham's generous request that T attempt on "a large canvas" a "broad brush" review that would include the "broad trends, movements and themes of the past decade" which coincided with what we all know to be the relatively short life span of the Equal Employment Opportunity Commission.
As I am neither economist, social historian, manpower expert, nor legal scholar, it was especially dangerous for Dean Markhamto offer me wide latitude to draw upon some of my own very personal judgements and perspectives in carrying out the assignment of providing a reasonably credible overture to the weightier matter to follow. At any rate, I will risk infusing from time to time the unscholarly recollections and reflections of one Black American who-sometimes as involved participant, sometimes Ps a more detached observer of the, events of the past decades and the period preceding-has tried to determine what may have had some significance not only for EEOC but for civil and human rights over the past ten years. T am somewh-at comforted by the knowledge that the errors T must unavoidably make in trying to include my sense of how it felt, ,is -well as to touch on some of the relevant factual history, will be corrected b-y those who have the proven experience and expertise to set the record straight.
Looking back on ihe problems and achievements, the promises and betrayals of the Sixties and the Seventies, one is reminded how arbitrary and misleading neat time frames like decades can be.
For the decade 1965-75 must itself be seen against a much longer history too complex to be dealt with here, but worth at least passing notice, as we commence. Consider first that the economic history of American Blacks in this country began with all but a microscopically sTnall number of them providing their labor with zero return to themselves and with no rights, either as workers or human beings, which anyone bad to respect. Tn the period of more than 350 years which have elapsed as Blacks passed from legally enforced bondage to the legalized status of free citizens and workers, it is no discredit to the efforts of a great many leaders and anonymous Americans that none of the laws, executive orders, court decrees, and governmental agencies created during that time have yet managed to close the economic gap
*M. Carl Holman is the President of the National Urban Coalition. This article Was given as a speech at the Rutgers Law School in Newark, New Jersey on November 28, 1975.
between Bl1acks and Whites. Nor have any of them managed to eliminate either the institutionalized discrimination or the individual and group prejudices which continue to disadvantage in the labor market and elsewhere not only B~lacks, but Latinos, Women, Native Americans and other racial an eiiu minorities.
Whien I came to Washington in 1962 to work for the U.S. .ommissin oni Civil Rights, an agency that had been created soinewhat reluctantly by the 1957 Civil Rights Act, that agency was engaged in puttfig together a document that would satisfy President John F. Kennledy's request for "a report on the civil rights progress of the Nation" over the one hundred year year period since the signing of the Emancipation Proclamation. After some vicissitudes, the report was completed and duly presented to th~e Presid'ent at a meeting in the W1'hite House-along with -what Mr. Kennedy clearly considered a rather untimely suggestion from the Commission that it promptly hold some public hearings in Mississippi. The Report took its title f romn a phrase written by Abraham Lincoln who had said that the Emancipation Proclamation was intended to secure "freedom to the free".
Re-reading that 196~3 volume today, it is hard not to feel somewhere under the surface of its controlled language, a persistent pulse that was peculiarly typical of those years in Washington during the early 'Sixties. The Report duly chronicles the Black Codes, the 1866 Civil Rights Act, the Hayes-Tilden Compromise, the Plessy v. Ferguson decision, the installation of Jim Crow, and the lynchings and riots which led up to and followed the first war to make the world safe for the flowerifig of democracy. But somehow it is hard not to believe, even as one reads, that the brutalities and false starts of the past are 'now about to give way to brave new beginnings. It is much like following the course of a stream that is often puny anid brackish, balked for a time and forced to flow underground, but which is almost inevitably on the verge of broadening and flowing freely into the open sea. Or in this case, more appropriately perhaps into that Americani. ,mainstream for which all of us supposedly yearned before this decade began.
Despite frequent reminders that Blacks themselves had more than a little to do with such liberation as they were able to get their hands on, the Report's more ready sources are laws, court decrees and the activities of 'political leaders of another hrue. T'he South is naturally given a good deal of attention, though it is noted in the latter sections of 'the Report that the North shows signs of posing some special problems. The Broiirn v. Topeka~ decision of 1954 is-rightly, I thinkseen as the most momenitous etront of the 1948-1962 period. Though today one is brought up short by the flat assertion that "Segegtion is a dead letter in every area of public activity." 1 .Certainly no one in this gathering would make a similarly optimistic claim this morning about employment discrmination. But hindsight wisdom comes easy. Most o~f the Civil Rights Commission delegation which left the White House that day in 1963 were -not overjoyed at the fact that, at least for a time, we would be planning for a hearing in Indianapolis rather than Jackson, 34issisippi. IBut we were still buoyed by a confidence we 'would certainly niot ha~ve felt, could we have
1Freedom to tle Free, p. 199, Comission on Civil Rf~hts, 1963.
been given a glimpse of what was ahead for Johni Kennedy and. tie rest of his cutrymen over the next few months and years. For~ if it is hard to be sure just~ where we have come in 100 years, or 350 yer, it is if anythngevn harder to sort out, much less assimilate thekaeidosoi decade behind us or its immediate foreground.
A part of that foreground for me as a child was first hearing of Frederick O'Neul not as the New York actor he later became but as the leader of a~ troublemaking local group called the "Colored Clerks"~ Circle." O'Neal's group was only one of several scattered local movement in !Dopression-raoked cities around the country protesting thef ailure to hire Blacks in White stores located in Black neighborhoods.. Some of us were public school students when Lloyd Gaines sued to enter the U~niversity of Missouri (which W.E.B. iDubois shocked a, school assembly by describing as "Just another mediocre State school") ; and later used to walk past the Law School "for Negroes"
whi was established inta in St. Louis in a building long known as Poro College. Poro College, as it happens, had been built by a strongwilled and rsucful Black beautician who learned more the hard way about "Black Caitalism" than any handbook put out by ONME could have told her. Though I was, like a good many of my elders and
conempraresa supporter of the NAACP, I had no notion later still
tha Blck lawyers like Ch~arles Houston and Thurgood Marshall, William Jiastie, James Nabrit, Robert Ming, Constance Motley and
Robet Crterwer enggedin taking the giant step from "separate but equal" which would make the 1954: S upreme Court decision a
diviing ine between one seot of possibilities an~d another.
We had a friend and college mate who flew combat missions in a seg~egtedAir Force and camne back to die in an airplane crash and to have his as name made part of the hyphenated name of a high-rise homn project in our home town. It was this -project, before it was
desroydwhih hd ome t stand as a symbol for all that was wrong with public housin. Wendlell Piruitt grew u~p knowing as I did that if you went "Down Home" to Dixie wearing the wrong skin col or, neither a lieutenant's bars or any amount of brainpower or skill or good behiavior enitled you to eat except behind & curtain on a train, or ait a side ~wnow of cafe. We knew, too, just h~ow far into Iniana and Southern Illinois and parts of New Jersey and New York "Down Home"' reached.
Ju~-aswe later had no trouble understanding that young Martin King could iwork on th Connrecticut tob~acco farms but that there were other placeswhere Black college students were barred from serving more plesan ad prftblo summer appreniticeships. Even before I joined my father for a time in the steel mill where he worked after migrating from IA3Flpre -Cuny, Mississippi, I knew about separate seniority line& I was also fairly certain that some of our White co-workers had nee had to pass written tests in order to beeome foremen or superiaer, denta. it is hiardI tosprate out the reality versus the image
of Peiet, we initially wore ore bothTruma h did~indeed
begi th deegrgatng f te ared orcs, tha wehadabout~ Roosevetwho di o (huhth eergto vaccination had not quite
"taen copltey i te ame frce&as late as Viet Nam.) We were Living in the authentic Souhln during the 'fgro~e period"after 1954'
when the White Citizens' Councils were forming to test whether "all deliberate speed" was really meant to be taken seriously.
When that mild-mannered Black seamstress, Mrs. Rosa Parks, refused to accept any longer the tradition which had kept her and generations of other Blacks standing or sitting in the segregated sections of buses and other modes of transportation and public accommodations all over the South (not to mention many other areas where the accents were different, but the customs as rigidly Southern), she and Martin Luther King, Jr. and Ralph Abernathy, set in motion more than either they or their adversaries could probably have foreseen. Then the Supreme Court spoke again, supporting the Black boycotters in Montgomnery. 1960 began withbthe student sit-ins in Greensboro, igniting similar protests from Black campuses across the South and for a timne joining this younger generation with the Kings, the Shuttlesworths, C. K. Steeles, the Fauntroys, and the other marching ministers of SOLO.
It is hard now to recall that the Montgomery Bus Boycott troubled a fair number of Blacks as well as Whites. at first, since boycotts and marches were clearly more provocative than lawsuits. Non-violence was perhaps all right in India but hardly suitable for the unfriendly states of the Confederacy.
Nevertheless, people who had been reared to 'regard going to jail as a lower class stigma to be avoided at all costs began going to jail by the hundreds. This, despite'the fact'that a great many of the best newspapers and the most respected moderate leaders wondered aloud if there might not be a better wayYoung and older Blacks and Whites went South to register voters and to challenge Southern America's apartheid.
And, as if on cue, there were bombings of Black homes and churches (a problem addressed by the 1962 Civil Rights Act). There were the attacks on the CORE-led Freedom Riders, though the ICC order which followed was only a first step in c carrying out the ban on segregation in interstate travel ordered by the courts more than ten years earlier.
A very high price was paid in Mississippi's red-neck counties, in Terrell and across Southeastern Georgia, in Anniston and Birmingham and Selma and in the now forgotten places like the simmering outdoor stockade in Rock Hill, South Carolina.
I remember also how, during these years, some of us stood one night in a small Mississippi town amid the stench of tear gas from the night before, while State and local officers did nothing as a hostile crowd threw rocks and pushed -and kicked Black and Whites at a voting rally. We supposedly represented the "Federal presence" "people from half a dozen Federal agencies, including the Justice Department and the FBI. All of the Federal officials on the scene did manage to do one thingy-take notes. There were no arrests, and so far as I know, no charges were ever brought. These were the years, of course, when anonymous bodies were found in the Pearl River, when Medger Evers and Chancy and Schwerner and Goodman and Reeb and Liuzzo, died.
The country has sometimes absorbed, but more often rejected, as the human body will, large infusions of change. It has sel .dom. ever, it seems, been ready for change. A well known White Alabama columnist shared with his readers, back around 1957, the uncorroborated informa-
tion that President Eisenhower was strongly opposed to desegregation, though the columnist confessed to having his doubts about Attorney General Brownell. Perhaps neither the country nor the President was .fully prepared to send troops into Little Rock to support the court's desegregation order, but the troops were sent and the order upheld. So was it eventually with the University of Alabama; so with the University of Georgia; so with the University of Mississippi. President iRoosevelt issued an Executive Order against discrimination in hiring because the country was not ready for a threatened March on Washington in the middle of a serious war effort. But twenty years later There were more warnings than are now remembered that neither our Capital nor the country was quite prepared for the gathering before the. Lincoln Memorial. Generally, it is somewhat curiously argued that
-these changes-even the creation of an agency like EEOC which was promptly dubbed by some a "paper tiger"-would endanger all the
-excellent progress which we had been making up to that time.
Though the media are generally ambiguous interpreters, much- less allies for any movement, it was clearly important that for a time in the ,early Sixties the media came to see civil rights as prime time news.
-Selma and Birmingham with their dogs, fire hoses, and flailing police ,clubs and cattle prods were thrust upon the consciousness of a worldwide audience. The March on Washington in 1963-which was at one and the same time played down by certain bureaucrats land prepared for by others almost as if girding for a War-of-1812 style assault on the Capital-was billed as a massive, peaceful demonstration for "Jobs
-and Freedom". Peaceful and massive it was-perhaps the high water mark of the public expression of inter-racial good feelings and concern
-in our time, capped off by Martin King's eloquent affirmation of the idea of equality and brotherhood. The March, however, proved not enough to force decisive action of the. kind A. Phillip Randolph, Bayard Rustin, Roy Wilkins, Whitney Young, John Lewis, Dorothy Height, and the labor and religious leaders had hoped to achieve. They met with young President Kennedy and with legislative leaders, buit jobs and civil rights legislation were not immediately forthcoming. In the end, it was probably Birmingham and Selma and the assassination of the gifted young President (who had probably felt he could hope .to achieve more in foreign affairs and getting the economy moving again) that made it possible for Lyndon Johnson to spearhead from
-the White House the fight for the passage of the 1964 Civil Rights Act.
And even so, the civil rights-labor-religious coalition and the bi-partisan civil rights forces on the Hill had no easy time of it. While omnibus bills have some advantages, they understandably have more than their share of problems-especially when they mandate social ,change. Title VII, it will be remembered, was written into the bill by the Congress and was there seized upon by"Judge" Smith of Virginia who added a section on sex discrimination in the mistaken belief that this was a fairly sure means, of 'bringing down the whole house of cards. Compromising back and forth, and some determined leadership finally gave us the Civil Rights Act of 1964-complete with a new Federal agency, the Equal Employment Opportunity Commission.
This agency was considerably weaker on paper than certain of its State and local counterparts already in being. It could educate, con.ciliate and give technical assistance on the basis of complaints by
employers of companies with 25 or more workers. While EEOC itself had no enforcement power, the attorney general could rng suitw EEOC filed allegations of a "pattern or practice" of dn. For fear that it might be too precipitate in well doing, EEOC t to begin operations until a full year after the si of the law. But at least with the passage of the 1964 Civil RightAt the gress had at long last joined the courts and the Executive Branchrepresonted by some rather unevenly administered executive o in affirming that job discrimination based on race, religion, or s was a legitimate matter of Federal concern. Small wonder though, that from the outset many observers looked for more significant fruits of the 1964 Act to come from Title VI which forbade discriminatory use of funds in federally financed activities; from Title II, outlawing discrimination in public accommodations and facilities; and even from the admittedly inadequate voting rights section of the bill.
Lest we seem to be singling out Judge Smith as a solitary si it might be instructive to return to the record to see how many and good institutions not only had doubts about the wisdo of cease and desist power for EEOC, but were exceedingly anxious to exempt thenmselves and their activities from the tender mercies of this anything but formidable new agency. The right to eat at a lunch counter, iL seems, was one thing, but jobs were quite another. For we are a nation where jobs mean not only food, clothing, housing, and schooling, but status and recognition. The question of who works where and at whw. level, for and with whom, was clearly an area into which government should move cautiously-with perhaps wht less concern for making a good omelet than for injudiciously breaking eggs.
During those months before Title II of the 1964 Civil Rights Act actually became the law of the land, some of us found ourselves dining Governor Collins and civil rights agency teams from Washington in regional meetings designed to help hotel kepers, restaurant owners, sheriffs, policemen and magistrates-paticularJy in the Southern and border states-understand how the rules were to be played uner the public accommodations section of the new legislation. So it happened that, despite some hitches and hold outs, it did actually come topa in relatively short order that Blacks and their families with the ability to pay could eat in most restaurants and find lodging in most hotels and motels. The newly-won right even began to be available, in towns off base, to Black military men and their families, who finally were able to secure meals and lodging-formerly available only to Whites or to dark-skinned foreigners carrying cards issued by the post command certifying that they were indeed guestsof the Nation being trained in our country, rather than American-born Blacks.
EEOC (originally headed by Chairman Franklin D. Roosevelt, Jr. before he resigned to run for office) probably gained its first visibility for most observers with the Newport News Agreement. It is perhaps bard for some for us to remember that back in 1965/66 there were actually people in Washington who felt that the Newport News Agreement heralded what would surely be a series of victories in which a team of federal agencies, along with civil rights forces, would deal firmly and effectively on behalf of minority employees. Here was a battle being waged on behalf of 5,000 Black employees of a federallvassisted shipbuilding company with 22,000 employees. True enough,.
after fnigs of non-compliance by EEOC, based on complaints of
411srimiatia filed by Black workers supported by the Legal Defense Fund and the NAACP, the EEOC was unsuccessful in its initial conciliation eforts. But then the Defense Fund sued, the Justice Department prepared to bring suit; on the advice of the Office of Contract Compliance, Secretary of Labor Williard Wirtz suspended a11 further contracting. EEOC, the Department of Labor, the Justice Departmnent, the Defense Department and the Navy joined in the negotiations with the shipbuilding company. Finally, the agreement was approved by the company, the Federal agencies the charging parties and the Legul Defense Fund-and later by the union, the Peninsula Shipbuilders Associations. Results included nearly 3,900 promotion$ for Bllack employees, promotion of twenty Blacks to supervisory positions, certification of seventy-five others; along with elimination of segiregated seniority lines and facilities.
A good deal was learned in the course of negotiating and implemienting this agreement. Tt was doubtlessly naive to think that a number of similar agreements might have followed with a minimum of friction and lost motion. Even with the exercise of considerable oooporation among the agencies, and some initiatives and cooperation by the company, the Newport News Agreement was not without its flaws, of course. But it was surely a considerable improvment on the tTrack record of Plans For Progress-many of whose members in EEOC hearings turned out to have poorer performance records than companies which had never signed Plans For Progress agreements.
But the Newport News Agreement was far from universally admired. At least one senator and a well known business magazine were especially exercised over the whole thing. Nor were all the Federal actors involved thereafter cited for valor and provided with all the rewards of a grateful government.
Indeed, the whole exercise perhaps lacked, for some, the untramineled spontaneity of voluntarism. I w ould be the last to deny that some very good things have been accomplished voluntarily. B~ut it strikes mnority citizens especially that Americans are great believers in voluntary approaches to problems they would much rather not have solved at all. Or as ~a Saturday Eveningy Post editorial of about this same perkloid put it, speaking for White Americans,
W e are all, lIet us face it, Mississippians. We all fervently wish that the Negro problem did not exist, or that, if it must exist, it could be ignored. Confronted Nwith the howling need for decent schools, jobs, housing, and all the other minimuim rights of the American system, we will do our best, in a half-hearted way, to correct old wrongs. The hand may be extended grudgingly and patronizingly, but anyone who rejects that hand rejects his own best interests. For minimum rights ,are the only rights we are willing to guarantee, and above those minimm rights there is and will continue to be a vast area of discrimination and ineqouity and unfairness, the area in which we claim the most basic right of allthe right to be stupid and prejudiced. the rightt to make mistakes, the right to be less and worse than we pretend, the Tight to be ourselves!
~Even the sketchiest review of the history of the battle against Job, discrimination from Truman's time, through PCEEO, to EEOC and
"A New White Backtlash ?" Th'e Saturday Elvening Post (September 10, 1966), p. 88.
been from voluntarisin toward what Anglo-Saxons used to call "the strong law." As the law stiffened, gains were made, but the past ten years represent a mix of breakthroughs and frustrations.
In March of 1966 Willie Griggs, a Black janitor at the Duke Power Company's Dan River Plant, and 12 of his co-workers, with the help of the NAACP, filed charges of job discrimination with EEOC. After losing at the District Court and Appellate levels, with EEOC joining the plaintiffs as a "friend" of the court, the case moved to the Supreme Court which unanimously ruled for the plaintiffs, holding that general tests and diplomas alone do not measure ability to perform on the job. The Court's action validated EEOC's testing guidelines which require that any tests used be actually job-related.
Since EEOC did have the power to hold hearings, hearings were held in an effort to shed the kind of light on the problems and to identify broader targets than the complaint-by-complaint process could provide. Hearings in 1967, under Chairman Stephen Shulman, spotlighted discrimination in North and South Carolina's textile industries. The hearings were boycotted by industry leaders, lending further credence to Shulman's statement at one point that EEOC was trying to "hunt elephants with a fly gun." In 1968, Chairman Clifford Alexander held public hearings in New York City on discrimination against Blacks, Puerto Ricans, women and Jewish citizens in major corporations, financial institutions and the communications industrynoting exceptions among certain banks and insurance companies. In March of 1969, similar hearings reviewed the job practices of the aerospace, motion picture and television industries. Chairman William Brown in June 1970 held hearings in Houston where Mexican-Americans. Blacks and women were shown to have less than their reasonable share of jobs in that city's booming economy. In 1971 in Washington, D.C., it was the turn of the country's gas and electric utilities.
The A.T. & T. case bridged two periods in the agency's legislative life. The case had its origins in 1970 when EEOC asked the FCC for permission to intervene in a rate increase case, arguing a linkage between job discrimination and employee turnover. NOW, the NAACP, the Mexican-American Legal Defense Fund and other civil rights groups joined in the action. GSA in September, 1972, approved the company's affirmative action plan; EEOC demurred; the Department of Labor reclaimed jurisdiction from GSA, rejecting A.T. & T.'s plan.
By March of 1972 the law signed by President Nixon had given EEOC the power to file suit in Federal district courts against private employers, employment agencies and unions, and had extended its jurisdiction to State, and local governments and public and private educational institutions. On January 18, 1973, a consent decree signed by AT&T, EEOC and the Department of Labor provided immediate pay increases for 36,000 women and minority workers. Fifteen million dollars in lump sum payments to 13,000 women and 2,000 minority men, later rose from $38 million to a total of $45 million because of further wage adjustments.
Chairman John Powell became head of the agency in January 1974. Tn April of 1974, EEOC, the Department of Labor and the Justice Department brought suit against the largest steel producers in the country, also naming the Steelworkers' Union as a defendant. The onsent decree which followed provided back pay of over $30 million
to minority and women employees; the companies and the unions agreed to a set of goals for new job openings and established a new plant-wide system of seniority.
EEOC came into being during a period of intense Federal activism and social experimentation, much of it in reaction to even more intense and at times explosive dissatisfaction among first one, then another segment of the population. It could be said that the Moynihan Report on the Negro Family of 1965, the Poverty Program and the other Great Society Programs, and the Coleman Report, each in their own way represented rationales for action which, in moving "beyond" early-Sixties Civil Rights, Southern-style, managed both to claim continued concern for Blacks and other minorities and to consciously or unconsciously relegate discrimination to at best a secondary role. It was because people were poor, or from broken homes, or were culturally deprived or from families which could not provide the middle class educational ambience for which schools serve no substitute that government must act. Being Black or female or a member of the wrong religious group was seen to be less important, less challenging. Mutual shock and disillusionment marked the clash of Moynihan supporters and most of the rest of the civil rights community at the White House Conference to Fulfill These Rights. As in the later WattenbergSc6mmon controversy, One side insisted that it was offering a viable strategy upon which new gains might be built. The other side contended that in one case a tangled web of tragic consequences deriving from Southern social and economic racism and later compounded by more subtly repressive and demeaning machinery for keeping migTants of the same color at the bottom of the heap in the North was being presented in such a way as to convict the victims both for their own failures and for not devising remedies that lay beyond their reach.
In the second instance, it was difficult to be content with the economic gains of a relatively thin and shaky stratum of middle class Blacks, supported by more wage earners per dollar than their White counterparts '(except for college educated Black women, many of whom could as easily trade their degrees for typewriters as could their White sisters). Nor could those Blacks who were dropping further behind both the majority of Whites and a minority of their Black brethren find even as much comfort as Black college-trained males might be expected to derive from the fact that, as Andrew Brim mer pointed out, they were earning only as much as Whites with high school training.
Meanwhile, neither the original WIN Program nor Day Care nor the FAP fiasco brought millions of Whites as well as Blacks any closer to liberation from the punitive welfare machine which nobody likes. Though it appears that some politicians would rather run against it and its victims than to repair it or replace it.
It is one of America's abiding mysteries that so many White citizens fail to understand that Blacks and Browns find it hard to be enthusiastic at the news that they are some minute fraction closer on the national statistical charts than they were a decade ago to being as healthy, or well-housed or well-paid for the same training and work as Whites. A similar mystery is the apparent belief that it is all right to ignore the fact that there are numerically more poor Whites than Blacks, so long as enough more affluent Americans can remain convinced that poverty
is mainly a peculiar affliction of Blacks, Puerto Ricans and Chicanos who could do a better job of supporting themselves if only they would.
Some of the Great Society programs, of course, achieved or, before Viet Nam intervened, were on their way to achieving a great deal more than they are commonly given credit for. Certainly history may show them as not stacking up at all badly against Black Capitalism and the revisions, cutbacks, and the more chilling statesrights revisited manifestations of the New Federalism which the National Urban Coalition and some of its locals have seen in attempting to monitor such programs as General Revenue Sharing. Large and complex unbanized societies do require some planning, some governmental intervention, some efforts to get the public and private sectors working together overtime to see whether there is a better way, for example, to make Title I of ESEA work than to give most of the money to the wrong people for the wrong things; to make low and moderate income housing subsidy programs work rather than scrapping them before we know how much of the problem was really official fraud or incompetence and how much a need to rethink and re-tool the programs. To begin doing that now would certainly cost some money. But it would cost less a month or so or a year from now than it is likely to cost another decade from now.
What does all this have to do with EEOC?
I believe that the Sixties started out to be perhaps too hopeful adecade-but was nevertheless far from being either an era of misguided, trouble-making policies or a time of progressively brilliant achievements in the social and civil rights field. Both for better and worse the Sixties did create or release the forces which have very significantly altered the social, economic and political climate of the mid-Seventies in which EEOC must now operate.
Most of you have probably seen news articles or the report itself detailing the failures of Title VI enforcement. We are familiar with the scanty achievements of the Philadelphia Plan and the other Home Town Plans for getting more Blacks and other minorities into federally-assisted construction jobs. We are meeting in perhaps the only city where an ultimately stronger home-town plan (growing out of controversy and then many-sided negotiations in which our local urban coalition played a significant role) was actually rejected and countered by what State and local private sector and Government leaders generally considered a watered down and less effective program out of Washington. These and other developments clearly have not occurred in isolation from the rest of what has been going on during the turbulent Sixties and the turgid Seventies.
Edward C. Svylvester, former Director of the Office of Contract Compliance noted the difficulties he and his successors had in struggling with the "lethargy, disbelief and sometimes downright resistance w-ithin the procurement offices of the various Federal contractin agencies which were the main points of contact with thousands of contractors employing roughly fifty million people." He recalled that both EEOC and OFCC met with considerable opposition as they attempted to define a results-oriented program based on goals and time tables at a time when EEOC was swamped with individual complaints and 1ampered by a lengthy conciliation process, while the Justice Department's Civil Rights Division felt it must concentrate on school desegre-
gato cases andi gave-ittatention to referrals of EEOC cases for prosecution. lHe and others setheprincipal and quite limitedachievement of the government from 194 to about 1970 as~ focusing em-~
ploers atenton~ on job discrimnation, establishing the -legitimacy of affirmative action, raising the isusof unvalidated tests, back pay for past disriination, pinpinting sniorityn as a~ barrier to equal employment, opotnity and special; notifications and arrangements toexpedite ugacting. The agg again i real terms was nominal, exceptin new hires. "The fact rean, 'Sylvester says, "that the basic problems invoving millions of~ emploees 'and thousands~ of employers, was hardly scratched."
Some' of'ius may recall a meetig in San Francisco on BART (Bay Ara Rpid Transit) which seemed to provide an unusual opportunity for employing and preparing for employment of Blacks, Chicanos and women becauses it was a long-term project with heavy Federal involvement. Community~ leaders became increasingly unhappy as neither the BART nor the Fede~ral officials seemed able to provide very much in the way of clear guarantees. At one point a regional represent ati.ve of one >of the Federal procurement agencies warned that contractors ight well sue the Government for breach of contract if it "held up important work and threw things behind just on the basis of some. civil rights stuff." When a couple of the civil rights officials from Washington suggested that perhaps the agency could threaten to, couner-sue on the basis of breach of the Title VI and Title VII requiemets of the Civil iglits Act of 196~4, the regional procurement agnc man shook his head in disbelief and stomped out of the
Later, a delegation of Black and Chicano community representatives who had not, been a part of the meeting sent in for p resentation to the Federal conferees the cryptically symbolic gift of a watermelon.
For EEOC especially the piture changed somewhat in the Seventies foloing the granting~ of new powers. The government began pushing through some class settlements.
Syvester concludedA, however, and some, other former officials of' both agencies concur that "'just as the thrust of the Sixties and early Seventies showed signs of bearing fruit, the Depression of the Seventies harded employer and union resistance~ to affirmative action and much of the limited gain has been lost.,"
Martin King saw earlier than did most of those concerned with civil rights outside and inside government that Viet Nam was anthinig but a side issue, somebody else's business. For this incredibly
detuctive and cynically disguised adventure did more than destroy and disrupt lives, waste billing of dollars and undercut the Great Society programs, drive Lyndon Johnson from office, divert concern and resources away from the cause of civil rights. A certain amount of social disorg-anization accompanies all wars. As this tainted, undeclared conflict dragged on in Southeast Asia,, we were left dangerously unprepared to deal adequately here at home with certain forces that were sending the first warning tremors beneath our feet of the eruptions to come.
It was never likely that the violence of Birmingham and Selma would not be answered in Watts and Detroit and Harlem. Indeed, the first Molotov cocktails thrown by Black youths were hurled in Jack
sonville, Florida. In Bogalusa, Louisiana, the Klan found itself facing the armed and determined Black "Deacons for Defense and Justice". It was on the so-called Meredith March in Mississippi that I first heard young Mississippians defiantly echoing Stokely Carmichael's shout of "Black Power.' 'Black and White Together" was already unraveling among some of the SNOC and CORE activists in the nerve-straining counties and parishes of the South where Black consciousness was both positive affirmative and an increasingly overt unhappiness with the sometimes automatic assumption that the leadership or spokesperson roles would be taken by Whites. (When a group of protestors were arrested in one Southern city, the only White involved was immediately assumed 'by both the police and the media to be the leaderthough the young White recruit had come South for the first time only a few hours before.)
Chicago *brought frustration to SCLC and Cicero showed that other face of the North which was to become familiar and is familiar still in Boston and elsewhere. The urban riots of the mid-Sixties prov ided stark proof that the 1964 Act had given little to the Blacks of Bedford Stuyvesant or to the Puerto Ric'ans of Camden. The Kerner Commission noted the number of. young Blacks involved in civil disturbances-pointing to "increasing race pride, skepticism about their job prospects, dissatisfaction 'with the inadequacy of their education".3
A. Phillip Randolph, Roy Wilkins and Dr. King, along with leaders of business, labor, religion and the Mayors of the suddenly beleaguered cities, were among the founders of the Urban Coalition following a convocation of one thousand people in Washington in August of 1967. Martin King himself was dead of an assassin's bullet by the foll owing April and Washington was one of the cities where burning and looting followed and remained one of those American cities whose riot corridors still have the bombed-out look of 'European cities after World War TI-before American aid made it possible to rebuild them.
Bystanders, as well as rioters and policemen, died or were wounded and National Guardsmen became familiar on the TV screen, standing with their guns at the ready on street corners and later on college campuses. Hardhats attacked peace marchers. Policemen killed and were killed. "The Poor People's March" on Washington met With a much more unfriendly reception from officialdom and from the media than had the 1963 March.
Brown Panthers, as well as Black Panthers emerged. The Black' MNuslims drew converts among the Black working poor and from the prisons. Ethnic consciousness, group consciousness led to Black Houses on White campuses, to White ethnic and native American organizat ions, to the Womens' Liberation Movement and the Gay Liberation Movement.
"Law and Order" candidates were elected at the national and local levels as the Sixties ended. Highly publicized "Wars" on crime, and drugs and inflation later proved to have little more credibility and somewhat less initial effectiveness than the Watergate enterprises. In country where civilian ownership of guns has reached astonishing, proportions, a largely State--directed LEAATprogram provided millions so that domestic peace officers might be equipped with expensive,,
.sometimes esoteric weaponry. Human needs were and are being given A lower priority.
Since this is, T trust, a truth-telling session, let us candidly admit,
-that there has from time to time been some unhappiness in the private
-sector civil and human rights community about the effort to get minor-ifies and women into fair employment policy or enforcement posts. One often voiced source of displeasure has to do with the reality that. many of those most active in civil rights are seldom consulted about such appointments, or consulted as early in the game as is the case with the business, or labor or foreign affairs community when si 4
-cant posts in their special areas of concern are to be filled. Sin pol-iticians sometimes tend to lean toward token or relatively e appointments in such cases, appointees are likely to be regarded with some skepticism for a while until their commitment, energy and, ,effectiveness have been demonstrated. The general view has been t6' continue insisting on the hiring or appointing of an increasing number, of minorities and women in civil rights and non-civil rights field-and to insist on more accountability from both those who hire and appoint and those who get the jobs.
A more difficult concern, especially in these times of recession and retreat on the social justice front, is with the effect on the struggle of
-shifts in the public mood. One basic answer has always been to push, for enforcement of the law and of critical policies by officeholders and. staffs without havinor them stop first to consult the latest opinion polls. At the same time, many civil rights and human rights advocates seem
-to feel the need these days for the kind of tough-minded and creative, strategizing which laid the groundwork for the shift from the I'sepa-rate but equal" approach prior to Brown.
The partially synthetic, partially natural furor over busing iis perhaps the most unavoidable instance of this felt need, growing out of what is perhaps the most dominant illustration of the difficulty of correcting old wrongs, given the inadequate tools at our disposal and the disillusionment and hardening of attitudes which make manipulation and confusion so easy.
T have already tried to indicate some of the currents and cross currents which, I believe, brought us to this point. And, as always, some-thing more than education alone is involved in this educational issue of busing. Others more competent to do so will deal more precisely and fully with civil rights developments in the field of education over
-the past ten years. I would only note first that, just as those who are deprived of racial and social justice cannot separate out the depriva-tions they encounter in their daily lives into tidy compartments labelled Jobs, Education, Housing, or Health, so reaction against attempts at remediation in one area often spreads a freezing chill into other areas of social concern.
Kenneth Clark's creative and unique contribution to the brief in
-the Brmvn case was more than that. Like Frazier's work, which wound up in other hands for other purposes later, Clark's famous "footnote" paved the way for further validation of social science data as guides for men of the law and other professionals seeking ways out of the thickets of racial and sexual discrimination. But just as there are judges and judges, so are there social scientists and social scientists. The Coleman Report and what might be called "Second Thoughts on
Coleman, by Coleman and Others" are now factors for those who must deal with Boston and Louisville. Some of the revisionst data and interpretations regarding pupil achievement and educatonal quality will doubtless figure in the justifications of tssup r
the arguments for the private schools nowh a Court which may or may not prove rather diferent from the Waren Court on such matters. We have, of course. the latest ruligpemitting busing across jurisdictional lines in some instances. We alt another vacancy on the court and the echoes of "strict cons uctionjsni again in the air.
Within a context which includes Congressional attempts to attach anti-busing resolutions to energy bills and to seek Constitutional antibusing amendments it is hard to recall that busing was once seen as only one of several possibilities for dealing with the providing of qualitY education in an unsegregated setting. A lawyer who payed a significant role in the original working sessions which led to Bro is one of many who have expressed even more concern about the private schools litigation than about busing. Others worry that they may be about to be forced into fighting a very uneven battle on restricted ground between the enemy and the sea.
Politics may indeed be, as my good friend Mayor Maynard. Jackson has asserted, "the last hurrah" of the civil rights movement. I think, however, that both of us would prefer in that case that it be a more vigorous and substantially echoed hurrah than it now is. Not only are Blacks and Latinos very badly underrepresented in any comparative estimate of minority and majority oiiceholders, despite encouraging gains; they are often faced with the most intractable fiscal and social problems, with precious few allies at the county, State or Federal level. lWe have already witnessed one national political campaign in which the cities and Blacks were barely mentioned. even by candidates otherwise claiming to be liberal or moderate. We see a Congress which seems bent on outdoing the Executive Branch in opposing busing aid raising questions about "throwing dollars at problems"-problems
-which supposedly would otherwise simply go away as did the problems of the rejuvenation of Europe after World War II, or of parity in the Space and Arms races, or of Lockheed and Penn Central.
It is not necessary to look under one's bed each night to restrict one's applause for the crusade against Big Government and overregulation until it is possible to be a little more certain what it all means. Everyone could do with a little less unnecessary paperwork and a little tax relief in times such as these. In the latter instance there appear to be those who already manage to do very well in the department of how not to pay any taxes at all. But those most anxious about civil and human rights would probably find it prudent to be sure that in eliminating unnecessary bureaucracy, we do not find that, after the first wave of saving-s is effected, the second does not consist of further slenderizing the already rather thin line of those detailed to guard he hen houses. Some of our best friends are very elightene foxes at least part of the time, but even they might find the strain of doing double duty too burdensome.
Little of what has occurred over the past ten years suggests that any racial or ethnic or economic or sexual group concerned with civil rights can very effectively over time go it alone. As some of us
know only too well, coalitions for good causes are hard to hold together for a single battle, much less for a long, arduous and sometimes dull campaign whose outcome is uncertain. Even on the eve of the 1963 March, the solidarity of the planners was threatened by a behindtle-scenes clash over position of a speech to be delivered by the SNCC spokesman. The compromise outcome of that controversy was not lost upon those who later seized the leadership and changed the direction ofSNCC and CORE. Similarly, while Blak Nationalism in America derives in part from the sensitizing of young American Blacks by the emergence of the new African nations and by such influences as those of Malcolm X and the Black Muslim and Black Panther movements, there is probably something more than an accidental relationship between the separatist dillusionment with, and aggressive opposition to liberal politics which became the most highly publicized aspect of the Gary Blac Political Convention of 1968 and some of the seeds sown at the 1984 Democratic National Convention in Altantic City. There the retreat from idealism before the power realities of the fht over the seating of the 'ississippi Freedom Democratic Party delegates left scars some of which have yet to heal.
The media's fascination with what was in part a new "White Baklash" and in part business-as-usual in American race .relations, along with the various ethnic and racial separatist movements and of what some of these new 'leaders felt to be the rigidity of certain rep resentatives of the civil rights establishment certainly did not make it easy to maintain even the illusion of a united front on civil rights. But neither did the anti-poverty and community control battles in places like Ocean Hill-Brownsville, Los Angeles and elsewhere-pitting Blacks' nd Browns sometimes against each other, sometimes acgaist former White liberal and labor allies. The defenders of what were original liberal reforms which helped create the Merit system and creIentlalling found that to late-comers and outsiders these appeared more like barriers to be attacked than hard-won guarantees to be protected.
It proved easier to make common cause on the nomination of a Carswell to the Supreme Court than on the DeFunis case, or Forest Hills, commuter taxes, or more Federal and State aid to the increasingly Black. Brown and poor residents of the central cities.
Much of the impetus behind the more restrictive aspects of the Tax Act of 1969 is believed by some to have stemmed from the fear that (comparatively rather small) expenditures by foundations on voter education activities in the North and Southwest might make minority group voters and candidates as troublesome for politicians in those sections of the country as the 1965 Voting Rights Act had for their colleagues in the South. As the decade wound down, here and there some of the more activist leaders of White predominantly religious denominations found the selves quietly disciplined or reassigoed. Articles appeared linking the falling off in proceeds from collection plates and from college and university alumni fund drives to disapproval of the inordinate attention being given to Black or anti-war canses.
The latter circumstance had its own irony. since nothing seems more evident in looking back over the decade than that one cause tends often to kill off support or attention for another. The generally short
attention span of the media and the public can be seen in the fleeting focus given over the pDast ten years to Civil Rights, the Black Power movement, the Urban Crisis, the Peace Movement, the Flower Children, the Welfare Rights movement, the Ecology movement, Women's Liberation, Gay Liberation, the White Ethnic movement. Anid, of course, to the bewildering succession of highly publicized and inadequately planned or f unded domestic "Wars" on Poverty, Hunger, Crime, Drugs, Inflation, Big Government. It is understandable, if not completely fair, that the polls by 1975 were showing political leaders ranking below used-car salesmen in public esteem; and that few Americans felt that their leaders really very much care what happens to them.
Back in August of 1967 at the founding convocation of the Urban Coalition, as fires were burning in the Northern cities for which civil rights laws had provided few answers, Andrew Heiskell told the one thousand deeply troubled participants gathered in Washington that it was important for those from every sector represented there to prove that they cared about the cities and their people, since no one individual or group alone could "bring equality of. opportunity to every one of our citizens". And then he said somethingo- else: But we must be honest with ourselves, as well as our fellow citizens,, by committing ourselves, not for the season, or the year, but for years to come. For even with the greatest concentrated effort it will take years to reach our goal.,
Here in the fall of 1975 civil rights leaders would not be surprised, that fewer have persevered with Heiskell in holding to that commit-. ment than most of those present would then have believed. Neither, one, supposes, would experienced civil and human rights advocates be sur-. prised that there were and are those that did persevere. Civil rightsleaders themselves,, after all, come from a tradition of many decades of struggle, defeat and regrouping to struggle again which antedates by many decades the period 1965 or 1967 to te present.
WHERE DO WE GO FROM HURM?
People who have been much more intimate and expert students of EEOC than I will be voicing their much more authoritative opinions during this weekend. A part of my original. charge, however, includes availing myself of the opportunity to offer some recommendations. It may well be that much of what I am going to suggest should be addressed not to EEOC, but to a somewhat different audience. For one thing, while I am sure that hard work by an agency which begins with limited powers can attract support which will win for it stronger authority, I very much doubt that any agency can achieve this without a good deal of outside help. For *instance, neither the present power of EEOC to bring law suits nor any cease and desist powers, should that be desired, were or would be achieved by the agency acting alone. Moreover, the Commission is part of a larger society and the direction or duration of certain forces or trends in that society cannot help having some influence on the climate in which the agency works. Therefor'e, I am speaking out of some concerns, both for the agency's role and for what certain elements of the society do or fail to do about the climate in which the Commission goes about its work as I make these observations and suggestions:
1. EEOC and the Department of Labor should, in my opinion, increasingly measure their work in terms of whether or not it actually and significantly closes the job gap and the job-level gap between Blacks, Browns, women and other minorities on the one hand and the majority members of the work force on the other. I am well aware of the statistical games which have been and can be played. But we badly need something more dependable than press releases, "landmark" cases that somehow are not followed by substantial changes over a broader terrain, and inadequate monitoring. and follow-up which make it difficult to trace whether yesterday's gains on one front are eroding even as we are proclaiming today's victory on another.
2. EEOC should concentrate its resources on targets which will produce results of the largest magnitude and ripple effect-and should try to enlist the support of the sitting administration in that effort. The complaint backlog is, of course, a continuing problem-as are the individual denials of redress involved. But as some of its proponents doubtless understand, current movements to limit or eliminate class action and the consolidation of complaints, along with provision of common remedies for those similarly aggrieved-no matter what the field-can only close off any practical hope of equality in our lifetimes for millions of those least able to protect themselves.
3. The issuance of EEOC Guidelines on matters of great import in the area of job discrimination is a function of basic and continuing value to the Courts, to those seeking redress from alleged discrimination, to those charged with discrimination, to other Federal, State and Local agencies and to the public at large. I believe I am not alone in hoping this function will continue to have a high priority--even when one oxen or another is likely to be gored.
4. Every effort should be made to increase the efficiency with which EEOC and other agencies work together to more effectively achieve the elimination of job discrimination. But EEOC and its supporters should be more vigilant to avoid the all too common bureaucratic phenomenon whereby inter-agency coordination is purchased with the price of lowest-common-denominator-compromise. In that connection I must confess that I am puzzled that, with so many other useful enterprises available, the Coordinating C ouncil should have chosen to devote its time and ingenuity to revising EEOC Testing Guidelines which have already been validated by the Courts. Nothing is easier in the areas of civil and human rights than to retreat; and for that exercise, one hardly needs partners.
5. 1 believe that EEOC should make a conscious, legitimate effort to broaden its constituency, outside of government as well as within. I am aware of some of the two-way communication that already takes place between the agency and certain civil rights organizations, State and local agencies, academic institutions, businesses, unions and the like. Nor, let me hasten to say, am I suggesting the kind of tainted and strongly manipulative relations which have been shown to exist between some Federal agencies and certain powerful interest groups. But there is a kind of legitimate keeping-in-touch which does, or should exist, between groups within and without government who are devoted to constitutional guarantees of civil rights and to the interests of minorities and the poor. There now exists-in addition to the better known Black'and liberal civil rights, labor and religious
groups-a number of national and local women'sgroups, urban and rural groups, Latinos, Native Americans and Asian-Am ericu groups which. have built their own constituencies during the late Sixties and early Seventies. In varying degrees, they represent both informational resources and potential supportresources for the work of the Conuission. The successful efforts this year not only to renew, but to broaden the coverage of the Voting Rights Act suggests not only the continued effectiveness of the older and more experienced organizations, but alo the value and potential of some of the groups that were either not yet in existence or were not significant factors ten years ago when EEOC was born.
6. It is, of course, vital that EEOC seek to attract and hold the highest caliber of leadership and staff expertise. The turnover rate at the top of the Agency, the ambiguity of its structure, and what sometimes appears to be the difficulty of assuring to EEOC the degreeof independence and support which it should properly have, are not, of course, matters which the Agency itself can totally determine. But I am inclined to believe that the Agency's leadership, while attempting to operate both adeptly and effectively, should probably put co itment to its mission and a certain moral toughness somewhat ahead of longevity at too high a cost.
In the early Sixties, the Nation was challenged by a young political leader who spoke of a "New Frontier". We are, in 1975. more distrustful of slogans-especially hopeful ones. Nowadays, we hear and think a good deal more about limits. The ecologists have told us how much of our natural resources we have wasted, how little fresh air, pure water and unravaged and unpolluted earth is left on which to rrow food, rear families, build habitations. Conflicting choruses of economists and financial leaders-not to mention the evidence of our own eyes and pocketbooks-remind us of the limits of the ability of experts or ourselves to forecast with any accuracy how the crosscurrents of domestic or international economics -will behave, much less how they can be managed or even adequately coped with.
The truths we heard fifteen or ten years ao, or even sterday, are suddenly called in question. Crime, for example, is ring and fear of crime rising even faster; yet those who are supposedly in good position to know seem unsure what to do about it. Those among the accused whom we do catch -nd convict as criminals, go to prisons which do not rehabilitate. Where the prisons or reformatories punish, they seem to return to us unpenitent beings who act out Auden's warning that "Those to whom evil is done, do evil in return". Some politicians have built careers on attacking "soft judges". And yet there are places where jails and prisons are so overcrowded that prisoners have had to be released, though others are already being pushed through the non-system of justice to take their places. We were once told that the requirements of domestic and international laws, our unmet private and public needs, and our marvelously creative technology would not only provide more .than enough jobs, but would give us leisure to loaf or improve ourselves and to face old age without fear. Now, some of our elected and appointed leaders daily remind us that "there is no such thing as a free hrnch". Though there are more people legitimately and legally entitled to school lunches, food stamps and other social benefits than apply for or receive -them, we are led to
believe that the real problem is an army of "chiselers', less upright and deserving than ourselves'.
New York City is excoriated for its undeniable errors of mismanagement and its overly generous shouldering of problems originally exported from elsewhere in this country and the world. Meanwhile, our Executive and Legislative leaders allow the country to go on refusing to admit that ours is very much an urbanized nation which seems unable to sort out which functions, costs and responsibilities properly belong to which level of government. Nor, despite all the homey comparisons of governmental to family budgets, does there seem to be any serious and sustained attempt to make better sense of the current imbalance in the raising and distribution of revenues.
Have we come, in a few relatively short years, from an era of confidence--or over-confidence, if you will-to one in which confidence is so shaken that the surest road to leadership is the fix blame on others or to divert attention from a poverty of competence by dividing groups in the society against each other?
Have the concerns for minorities and the poor which crested in the civil rights and anti-poverty efforts of the Sixties been succeeded by an irreversible national mood of "I've got mine, Jack", in which the formula for successful political leadership is to appeal only to those Americans who either already have a great deal or who have just enough to be fearful of the rest?
There are signs that our problems may have become too big for our leaders, too unpleasant for many of the society to face up to--especially if some inconvenience or sharing of pain is required. Much of what is most irrational in the resistance to cutting budgets without disproportionately penalizing the least organized and the least powerful, much of what is most demagogic and racist in the clamour over busing, or zoning or work-sharing or "quotas" (and not ,all of it is purely racist or demagogic) may perhaps in part be explained, though not condoned, by something else. By a kind of battle fatigue or failure of nerve.
Perhaps it really has been too stressful to have come through the non-violence and violence of the Sixties, through Viet Nam and Watergate, through the perversion and corruptions of our supposedly free system by those who it now seems really did, after all, misuse the power of the CIA, the FBI, the IRS and all the other faceless machinery which can be turned against those it was created to serve.
If so, it may be that, having come through all this, perhaps the most serious of the limits we actually face are the limits on compassion, and the limits on our belief that we can trust ourselves to find answers to our problems which are not only workable but just and equitable.
Some of us happened to be watching television the other night following the release of the latest FBI crme statistics which pointed to a rise in teenage crime. Various commentators described the statistics as "shocking", "appalling", and "chilling"-as indeed they are. Somehow we were unable to generate anything like that kind of reaction to the publication of earlier and more accurate data by Andrew Brimmer. Lester Thurow and Bernard Anderson on unemployment amonz Black and other minority young people. Certainly, it should be difficult for any of us to regard with equanimity a current jobless
rate of twenty percent for all youth and forty percent for Black youth.
On the evening the new crime figures came out, one network's cameras panned along a New York ghetto street to a group of young people on the sidewalk; then focused on a young girl who (we were told) had been in and out of trouble with the law. W hen asked why so many young people were committing crimes, she shrugged and said, "Hey . there's no jobs, man. You got to rob somebody, take it, you know . There's no jobs". The interviewer then switched us back to the central news room and to snippets of the rest of the news of the day, sandwiched between commercials offering glimpses of happy, well- groomed people.
No easy one-to-one correlation between crime and unemployment is suggested here. But it is significant to note that a number of police officers around the country have not only joined the "soft liners" in coming out for national gun control, but have stated publicly what the liberals and sociologists were derided for saying all along: That little significant impact on the high rate of crime among youth is likely to take place until there are major changes in work opportunities, schooling and living environments for many of them. In a time of recession and inflation, that is hard medicine indeed. But the current prescriptions are proving to be an even more bitter dose.
It was discovered after the death of a woman who was among the victims of one of the most brutal mass homicides of the decades, that the murdered woman had for a time kept a diary. The daughter of a very wealthy family, she had done volunteer social work-first in New York City and later in Watts. This is one of the things she said in her diary:
A lot of social workers go home at night, take a bath, and wash off their day. I can't. The suffering gets under your skin.
The skin of this society-certainly of some of its leaders-appears to have thickened considerably over the past ten years. One manifestation is a growing callous concensus that concern for civil rights or for people outside one's own particular circle is either a completed chapter, or boring, or irrelevant, or quite dead. Perhaps one or more of these views may indeed represent the feeling and thinking of many Americans. I doubt, however, that those views are universal or must ultimately prevail.
The establishment of a single Federal agency ten years ago by a Congress whose intent was indeed less clear and forceful than it might have been may not appear to loom too significantly against the backdrop of the sometimes heartening, often disheartening history of the decade Which ends a few weeks from now. As one who has a congenital aversion to giving up on struggles,. I take the coming together at this time and this place of so many serious, able and stubborn people ag sirn sufficient that the Equal Employment Opportunity Commission should not tear up its Charter. And that those whom the agency was created to serve, along with some other persistent citizens of this troubled Nation, had better be about the demanding business of making sure that the next ten years will find this society not only on the right track, but a good distance further along the rough road toward the goal of truly guaranteeing "freedom to the free.
Inside the Equal Employment Opportunity Commission,
Clifford L. Alexander, Jr.*
The Equal Employment Opportunity Commission is in the news nowadays. Charges of mismanagement flow from a variety of sources. Unsubstantiated claims of internal corruption and even illegality are being made. Congressional committees are holding -hearings, the FBI is allegedly looking into possible illegality, and GAO is studying alleged internal waste. IRaw unsubstantiated charges are being repeated so often that many are assuming their truth without appropriate verification. No public attention, however, is being given to the gut issue that caused the establishment of the Equal Employment Opportunity Commission in the .first place. That gut issue is the failure of our Nation adequately to protect -employment rights of individuals where their color, sex, religion, race,, or national origin has been a substantial hindrance.
It is past time for those concerned with the rule of law to demand that attention be given to the lawfully established rights of individuals and that the enemies of those rights not be permitted so to undermine an. agency that it -will be totally ineffective in its mission. Unfortunately, there are many enemies of equal employment in a variety of positions in. this society. It is predictable that in this time of crisis, they will raise. their voices and prey on the recent negative publicity EEOC has received. While it is difficult to predict all of the specifics; of their' reactions, one can be sure that their basic fight is to undermine the legal basis of EEOC as they have in the past.
To the enemies of EEOC, squeals over alleged mismanagement, corruption, internal bias, at EEOC are only a camouflage for their real, intent. While these are important and substantive issues that demand public answers, the enemies of EEOC are less concerned -with the answers than with the eradication of a lecral mechanism which individuals use to air complaints of discrimination. The enemies make the argument that if the EEOC can't keep its shop in order, and if there is internal bickering, as there appears to have been, amongst blacks and chicanos. males and females, over who's getting more attention, then the EEOC has no business trying to eliminate discrimination in the private sector. The~ enemies, of cours, quite conveniently lose track of the legitimate rights of those who feel they are victims of discrimination. Whatever internal battles EEOC~ may have, those
1atle bear no~ relationship to the substantive legal guarantees to millions of Americans. Those substantive guarantees relate to an individiaal's right to get a job, to be promoted when qualified, just as the next person, into a more rewarding positioni, and have a work atmos*Clifford L. Alexanrb-r. Jr.. former Chairman of the EEOC. practice-, law in WashIngto, DX. This article was given~ as a speech before the Equal Emnloyment~ C-iic at te Howard University School of Law. Washington. D.C., 'May 21. 1976.
phiere that is free from bias. The high purpose of the law, obviously, is far from being achieved. But petty arguments by bureaucrats is certainly no reason to eradicate an individual's right to work up to his or her potential in a capitalistic society.
There is another grroup of enemies that we haven't heard from too much yet; but just wait, they will be coming on the public scene soon. They are institutions and individuals who have considered that anything done by the EEOC is a harrassment of business. Their antiquated laissez-faire attitude is that this is Government interference (i.e., the protection of individual employment rights). They claim that the capitalistic system cannot work if the Government is always interfering. Well, in this instance, the Government is not always interfering. The EEOC in paticular stands as an agency ready to hear complaints by individuals.
The EEOC then has a responsibility to make an assessment as to whether the discrimination complained of is justified in law and fact. The EEOC's role, therefore, is to provide a legitimate avenue for individuals to complain of illegal behavior. Corporations are, after a14, creatures of the law. They exist under the guarantees and responsibilities of a system based on law. The law, very fortunately though belatedly, has required that a Federal a gency be available to hear individual complaints of employment discrimination. Unfortunately, as I will discuss later, the appropriate powers to back up the EEOC's 'basic purpose have -never been granted by the Congress. Individuals hiave a right-a right that has been abused, partially because of the inefficiency of the EEOC-to have their complaints of discriminat 'ion heard and decided with promptness. They also have a right, it is my belief, to see corrective action taken once a legitimate determination of discrimination has been made. This right is eroded, not because of internal abuses at EEOC, but because a variety of forces in our Nation today have continually fought against giving strong enforcement powers to the EEOC.
The enemies who will be popping up day by day do not come from one particular end of the political spectrum. People who call themselves liberal are sometimes lacking in progressiveness when, it comes to the protection of indivi dual employees' rights. People who call themselves conservative put blinders on when the discussion of eliminating employment discrimination is linked to a viable and dynamic capitalist system. For after all, in our capitalistic society, if the individual is hampered by the extraneous characteristic of color, national origin, race, religion, or sex, it flies in the face of success and upward mobility premised on hard work and competence.
Progressive businesses in this country (and there are many) see the importance of workers with discrimination gripes having an appropriate avenue for their complaints. The leadership of those corporations try to see to it that their internal procedures and relevant forms meet the appropriate legislative and judicial standards. If they are relatively sophisticated, they know no matter now much they do that people within their companies will commit acts of discrimination. These progressive corporations take the view that when such acts have been committed, it is incumbent upon them, after discrimination has been established, either informally or formally to take any and every step necessary to place the offended worker in his or her rightful position.
Those companies in step with our times view affirmative action plans
as an important business tool which assists them in achieving the full utilization of female and minorit y talent. These are companies who take lawfulness seriously. These are companies who have the foresight to realize that a discriminatory work atmosphere will harm their capacity to get their work done. Realistically, they also view large monetary settlements as the price that will be paid today bysome who are recalcitrant and fail to conform with the ever-increasing requirements of equal employment law.
Let us not today dwell on the negativists, the enemies of EEOC, or the small-minded editorialists who would condemn the purpose of an agency on unsubstantiated charges against some 'employees. Instead, I would like to spend the rest of my time on the offensive, discussing what needs to be done to strengthen equal employment opportunity in this Nation and to make EEOC a more efficient and effective part of the struggle to insure individuals at least some of their rights.
There -are, fortunately, legislators, officials, and a large portion of the population of this Nation who know that minority and female rights have been abused and actively want the Government to develop m~echanisms to punish the abusers. Those who see the issue, as the needle to do more rather than less to protect rights have a lot of evidence on their side. The exclusion of, or the under-representation. of, blacks, Spanish-surnamed Americans,, and women in white collar positions, other than clerical, tells part of the story. In 1973, when 33.6 percent of employees held white collar jobs, only 12.2 percent of black workers and 15.2 percent of Spanish-surnamed workers held these positions. Women constituted 26 percent of the white collar positions above clerical. In the early 1970's, blacks, who make up over 10 percent of the work force, were only 2 percent of officials and managers. Spanish-surnamed Americans, who made up 3.5 percent of the work force were 1.1 percent of officials and managers. It is still true today that the black college graduate earns essentially the same as the white high school graduate. Whereas, at the end of the 1960's, black workers on the average earned $61 to every white $100, today, in the middle 1970's, the ga-P has widened and blacks earn on the average $56 to every white $100. Thus, the passing of the Civil Rights Act of 1964 didn't bring the millenium for minorities or women when it came to work opportunities and upward mobility. And we tend to forget that 1964 wasn't the earliest legislative statement on providing equal employment opportunity. From the late 1940's on, large industrial States and certain cities passed laws and ordinances which sought to assure those who were discriminated againstu'n avenue of relief. So the statement of purpose and in some instances a mechanism for complaints have been on the books for some time. But unfortunately, the message of these laws has failed to get through in all too many parts of our so 'ciety.
It is important that certain administrative r 'eforms take place at EEOC. Those of us interested in the success of the agency hope that the people who are assuming and will assume responsibility there recognize the importance of efficiency and fair administration and will undertake procedural changes necessary to accomplish this 'goal. 'There are, however, certain steps that must be taken in order for the stated goals of title V1I to even apmproach reality. These steps far outweigh in importance internal shifting of administrative functions. Some of the important steps are up to those at EEOC, but most of them 'must come from those outside.
1. First and foremost, there has to be direction from the top. President Ford's silence is deafening. It is his responsibility to give encouragement to those who would vigorously and fairly enforce title VII. Instead, nothing has been heard from the White House concerning the important work of EEOC. The President has failed to recognize the plight of minority workers and shown a lack of understanding of female aspirations. More importantly, the White House has failed to use its good offices to persuade the principal employers and unions of this Nation actively to seek and better utilize minority and female talent.
2. Whatever person becomes the head of EEOC certainly has an awesome responsibility. In recent months, there has been a paucity of vigorous policy statements from EEOC. Many changes and refinemnents have taken place in the relatively short history of the agency. It is imperative that the chairperson of the commission exercise the authority of that position. This means choosing public forums and speakine with firmness and compassion on the injustices still occuring to black. Chicano and women workers in the United States today. Further, the new chairperson must seek to move recalcitrant businesses and many obstinate labor unions who have held up progress for minority and female workers.
3. Throughout the society, there is an overriding need for more understanding of what EEOC can and cannot do. EEOC can and does act on individual complaints of discrimination. EEOC can, in certain instances, initiate litigation. Most of you know the other defined areas of responsibility granted to EEOC by Title VII of the Civil Rights Act of 1964 and its amendments. But too few people realize what EEOC cannot do. It cannot, in and of itself, eliminate employment discrimination. Those who look to EEOC for leadership and guidance must understand the limitations of its capacity and responsibility. EEOC cannot and does not have the authority to cut or suspend the Government contract of a discriminating company. EEOC is not able, no matter who heads it or whether the President supports it, to do the job on its own. EEOC can and should be held accountable for its responsibilities under law. But EEOC only has those powers granted to it by the Congress.
Quite properly individuals speaking for the constituencies who are served by Title VII on numerous occasions criticize the level of activity of the Commission. It would be my hope that their criticism would be limited to those areas that are truly within EEOC's jurisdiction. The failure of this society to face up to employment discrimination in this Bi-entennial Year cannot be placed at the doorstep of EEOC. When organizations and individuals are assessing blame, it is their responsibility to put the blame where it belongs. It is also, I believe, their responsibility to continue to work in a constructive manner for changes that will make their job and the EEOC's easier.
4. The Equal Employment Opportunity Commission, through its employees at every level, should be less defensive. Their mission is an important one. They can rightfully hold their heads high for the work they have been doing and, for the most part, the energy and knowledge they have brought to their responsibilities. Internal bickering, -external criticism of colleagues, pitting Chicanos against blacks, or women against men, does not serve the purposes of the EEOC. That kind of
foolishness should be behind us all. It has been reported that internal complaints within EEOC of discrimination are eight times higher than in any Federal agency. The statistics indicate that those in leadership positions in the commission need to spend long hours in determining what causes this phenomenon.
Employees within the Commission need to examine whether their complaints are substantive or f rivolous. The last thing the agency needs is to be devoting an inordinate amount of its time to the resolution of internal complaints. The first step, therefore, is to be sure that the work atmosphere at the Commission meets those standards the Commission
-would wish to see utilized within the private sector. There is too much work to be done for employees at the Commission to be defensive abot what commissioners have said what about various things, or what their fellow employees have leaked to the press. Those who do speak on ,behalf of the Commission need to start accentuating the positive. It is not easy-but essential-particularly in the face of significant opposition to the underlying purposes of the agency.
55. There is a crying necessity for greater coordination between EEOC and other governmental agencies concerned with discrimination in the private sector. The Office of Federal Contract Compliance Programs, the Justice Department, the Civil Service Commission, and compliance officers in 14 departments and agencies, have a vital and significant role in seeking to provide better employment opportunities for minorities and women. Their work, however, is not properly coordinated. A device was created by the Congress, known as the Equal Employment Opportunity Coordinating Council, in the 1972 amendments to Title VII. The Council. however.. has not fulfilled its mission. It is a place for the Neanderthals of the equal employment world, such as the Civil Service Commission, to block progress. It is a misleading entity at the present time, and if more real coordination does not come f rom it, the Congress would do well to abolish it and look to some other mechanism that would demand more consistency from those involved in providing equal employment opportunity. The business community is right to complain about duplication and inconsistency within tie, Federal Government. Companies might -want to work for constructive change by recommending ways for better coordination to be achieved.
6. It is in the best interest of the business community to learn more about the work of EEOC and seek to operate in partnership with the ,agency whenever possible. For the most part, businesses consider the Equal Employment Opportunity Commission to be the enemy. They see the costliness of consent decrees, the expense of class determinations and findings, and grumble as they make their settlement payments. It would be far more sensible of them to work with the EEOC to gain the expertise contained in the agency on how they, as corporate entities, ,can more appropriately conform to the requirements of law. The result of such an effort would be a happier, more productive work force for the company -and of course, more businesses in actual conformity with the requirements of law.
7. It is essential that there be less interference from the Civil Service 'Commission in the employment process. Over the past decade, the Civil Service Commission has been perhaps the leading discriminator in employment practices within the Federal Government. Yet. their -responsibilities are awesome in the equal employment field. They have
responsibilities to assure all of us that Government agencies have workable affirmative action plans. They are the overseers of the Federal complaint process. But they have failed to meet their responsibilities. Ever-y effort in this area by the Civil Service Commission of any signlificance seems geared to the subversion of Title V11 and Executive Orders 11246.and 11375.
Thus, businesses quite properly complain that they are required to follow testing guidelines, work force and utilization analysis, that are not applied to departments of the Federal Government. The Civil Service Commission should be forced to get its act together or be booted unceremoniously out of the equal employment field.'
8. It is mpy belief that the single most useful change for the good of EEOC is in the hands of Congrress. This change would give to the Commission the right and authority to issue cease and desist, orders. It would treat the Commission as other enforcement administrative agencies are treated in the Federal structure. Rather than only a few hundred suits initiated by EEOC each year, several thousand oomplaints would be settled through the internal mechanisms of the Commission.
The Nixon administration put the Commission in a trick bag when it substituted for cease and desist legislation a bill that permits the Commission to bring suit. The U.S. district court is not the proper forum for the thousands upon thousands of individual instances of discrimination that are complained of each year. Those should be handled and would be handled far more rapidly in an administrative agency equipped with its own enforcement power-i.e., cease and desist. The most talked-about problem of EEOC, its tremendous backlowould be met and met successfully, I believe, by giving the Commission cease and desist authority. Those who were found to have reasonable cause to believe they were discriminating would correct their practices by the thousands if they knew that a cease and desist hearing would follow under the aegis of EEOC. Additionally, when hearings were held, the hearing officer would be an expert in the field. Many who rightfully complain about greater consistency in equal employment law would get just that, as experts handled cases, rather than different Federal Judges sitting in different circuits, many of whom have little or no background in the field.
This important step can be taken by the Congress and should be considered immediately. The Congress and the executive branch can investigate all it wants any internal wrongdoing, but progressive and forward thinking Members of Congress will push for cease and desist authority for EEOC. Only then will a major and significant step be taken to guarantee the lofty ideals set out in the purposes clause of Title VII legislation.
People of good will and expertise, prior to and during this public crisis, have been discussing methods of restructuring the Commission's activities. But here a warningy-to rearrange the structure of an Agency does not necessarily make things happen. In the case of EEOC, the authority of law which would-be provided if cease and desist were granted by the Congress, would outweigh miany-fold any internal reordering- of equal, employment functions. Also, the motivation of th ose wh o work in the field, coupled with experti se, must be emphasized rather than- a new office here, or a new line of authority there. Paper
reorganizations are just that and sometimes are hardly woith'the paper they are written on.
.Some feel that placing the full compliance authority presently vested in OFCCP in EEOC would be a very significant step. Others feel that the Agency should have a single administrative head and be subsumed -within a cabinet department. Some feel that the Commission's activities would be more efficiently handled if there were greater communication and coordination between the Commission's Office of General Counsel and the rest of the Commission staff. The most recent Commission chairman testified recently on a number of internal administrative steps that he felt would show a greater accountability for money spent and produce greater efficiency by EEOC employees.
-The institution recently of a, generalist concept is held out as a technique that should provide greater efficacy at the Commission. This concept would permit an employee to follow a case f rom investigation through final determination. Some feel that the problem of the backlog is exacerbated because the employees with the least expertise are those who originally receiv e the complaint. Thus, because of their lack of expertise, complaints which are not properly within EEOC's jurisdiction are counted as part of the backlog, meander through the Commission and the time of someone else with more expertise is taken to decide where the complaint should be referred. Some feel that it is a waste of time to defer complaints to State and local agencies and that all this does is slow down EEOC's processes, since in the vast majority of cases, those cases which have been referred to State and local agencies end up coming back to EEOC with -nothing done on them. Some criticize the level of activity in the General Counsel's office, pointing out that from March of 1972 through July of 1974, only 242 suits were filed. During fiscal year 1975, the Commission filed 222 suits. Yet, during the first four months of this year, 246 suits were filed. There, of course, are some 270 lawyers in the General Counsel's office. This -kind of critical analysis, however, fails to examine what kinds of suits are being brought by the General Counsel's office. Most importantly, aga"Cin, it is the examination of a process that is inferior to the administrative mechanism of cease and desist.
Clearly, -tnder cease and desist, the right to bring lawsuits should be and would be preserved for individuals. The right of appeal -would look out for complainant and respondent interests. 'Major issues of novel interpretation and substantive significance would, on occasion, continue, of couse, to be handled in the Federal appellate courts. But courts of law, unless we are willing to increase the Federal judiciary tenfold, can never be equipped to handle the volu me of EEO complaints. Federal activity to end employment discrimination should be more profound and more properly directed.
Yes, it is necessary to look at what is wrong inside EEOC. Then the appropriate authorities should take whatever steps are necessary. If concentration is on internal changes, congressional hearings, and GAO investigations, the result will be predictably unfortunate. Activities at EEOC w-ill come to a virtual halt; that much ballyhooed backlog will get bigger. Let there be, in the interest of providing equal employment opportunity, a shift to substantive discussion of EEOC and what it needs to be more effective. Let the emphasis be placed
on the steps necessary to truly provide equal employment opportunity., Let the chips fall where they may -on internal investigations; but let us demand public discussion, executive and congressional interest in responsible, fair and speedy enforcement of new and more vigorous equal employment legislation.
T'he problems EEOC faces today, particularly the problem of backlog, is, directly related to the f allure -of the Congress to give the Commiission cease and desist authority. The ability of numerous enemies of the Commission to speak with such forcefulness is a direct result of a President who f ails to apply the authority of his office in support of firm and fair resolution of discriminatory employment behavior. The most important issue f acing minorities and women in today's America is the issue of fair treatment on the job. Our society has failed to come to grips with the issue-we have only picked at its edges. With seriousness of purpose, solutions are possible. Let us not be diverted-too much time has been lost already.
Affirmative Action: Two Views
An Exchange of Letters Between Miro Todorovich and Howard Glickstein*
The exchange of letters which follows is published here because it illuminates, in an interesting as well as informative fashion, the controversy surrounding affirmative action in higher education. The first letter was written by Miro Todorovich, coordinator of the Committee on Academic Nondiscrimination and Integrity. The Committee is a non-tax-exempt organization closely related to the University Center for Rational Alternatives. Mr. Todorovich addressed his letter to Dr. Richard A. Lamanna, Department of Sociology, University of Notre Dame, who turned it over to Howard Glickstein, Director of the Center for Civil Rights at the same university. Mr. Glickstein, formerly staff director of the U.S. Commission on Civil Rights, then responded to Mr. Todorovich-Editor. [Civil Rights Digest]
DECEMBER 11, 1973.
DE~n Dm LAMANNA: The recent contacts of our Committee with members of Congress indicate that there is a growing interest on Capitol Hill in matters of affirmative action in general and discrimination in reverse in particular. We found, however, that there is regrettably little hard information presently in the hands of our elected representatives.
As a first corrective step, I would suggest the writing of letters expressing our concern to Senators and Congressmen of your local area.
The letters could reflect (depending on the situation in any one particular area) concern that the goalsetting time tables containing affirmative action plans demanded by Federal agencies are introducing de facto quotas in educational hiring; concern about administrative interference in educational matters, difficulties in finding employment for well qualified graduating candidates who do not fit a particular description of "affected minorities" and women, diversion of educational resources and structures into noneducational endeavors, and invasion of privacy and of confidential data; concern about the promotion of color- and sex-related criteria in hiring, student admission, and the like, erosion of institutional and departmental autonomies, and the undermining of the peer-judgment principle.
in addition, one should point out that all these activities have been generated by the Office of Federal Contract Compliance, HEW, Equal Employment Opportunity Commission, and other Federal agencies without the proof of need, any hard data, any adequate analysis, without any hearings, and any consultation with the affected institutions and professors.
You may wish to cite the following provisions of Title VII of the Civil Rights Act of 1964:
*These letters were originally published in the Spring. 1975 edition of the (ivil Rights Digest, a quarterly publication of the U.S. Commission on Civil Rights.
Sec. 703. (a) It should be an unlawful employment practice for an employer... to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's race, color, religion, sex, or national origin.
(j) Nothing contained in this title shall be interpreted to require any employer... to grant preferential treatment to any individual or to any group because of race, color, religion, sex or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer.
You may also find useful the quotes from the Executive Order 11246 [issued] by President Johnson. This order, which is allegedly the basis for the various departmental orders and guidelines demanding the establishment of affirmative action programs, has quite an unambiguous language:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin.
The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising: layoff or termination; rates of pay or other forms of compensation, and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.
All these clear provisions have been in one way or another violated by the various affirmative action programs, which treat Americans iifth regard to race, color, and sex.
We feel that congressional action is needed to stop rampant violation by the nonelected and nonaccountable Federal bureaucrats of antidiscrimination statutes and orders. I hope that you and many of your colleagues will bring to the attention of your elected representatives the magnitude of the problem and your views on the matter.
Mymo M. TODOROVICH,
Coordinator, Committee on Academic Nondiscrimination and Integrity.
MAY 29, 1974.
DE A MR. TonoRovicdi: A copy of your December 11, 1973 letter to Dr. Richard A. Lamanna of this University has come to my attention. The letter lists certain alleged abuses of affirmative action programs and cites a provision of the Civil Rights Act of 1964 which prohibits preferential treatment because of race, color, religion, sex, or national oigin, and a provision of Executive Order 11246 requiring affirmative action which provides that employees be treated during employment "without regard to their race, color, religion, sex, or national origin." The letter goes on to claim that "these clear provisions have been in one way or another violated by the Various affirmative action
programs, which treat Americans with regard to race, color, and sex," and concludes by urging action to influence legislation.
I find your letter shockingly misleading and deceptive. The language from Title VII and Executive Order 11246 -which is cited has been interpreted consistently by the courts to permit affirmative action plans and policies which are designed to remedy the present effects of past discrimination. Merely citing the language of a statute or executive order tells only part of the story; it is essential that the purpose and judicial interpretations of the language in question also be considered. I presume that you are not a lawyer-if you are, God help the legal profession-but there are lawyers on your steering committee who must bear responsibility for such a "disingenuous letter.
L-et me first turn to Section 703 (j) of the Civil Rights Act of 1964the so-called ban against "preferential treatment" in employment. The meaning of that provision was considered by the Court of Appeals for the Sixth Circuit in United States v. IBEWV Local 38, where the court said:
When the stated purposes of the act and the broad affirmative relief authoriza-; tion (42 U.S.C. 2000e-6) are read in context with 2000e-2(j), we believe that section cannot be construed as a ban on affirmative relief against continuation of effects of past discrimination resulting from present practices (neutral on their face) which have the practical effect of continuing past injustices. Any other interpretation would allow complete nullification of the stated purposes of the OCvil Rights Act of 1964.
A similar result was reached by the Court of Appeals for Ninth, Circuit. In United States v. Ironworkers Local 86, the court ordered the union to offer immediate job referrals to previous discriminatees, and ordered the union's apprenticeship and training committee toselect and indenture sufficient black applicants to overcome past, discrimination. The order also included judicially imposed ceiling requirements for apprenticeship program participation of minorities. On. appeal, the union argued that this order was in violation of 703 (j). The union condemned the order as "racial quotas" and "racial preferences." The court rejected this argument, -stating:
There can be little doubt that where a violation of Title VII is found, the court is vested with broad remedial power to remove the vestiges of past discriiniination and eliminate present and assure the nonexistence of future barriers to the full enjoyment of equal job opportunities by qualified black workers.
The court went on to say that:
Without such powers, the district court would be unable_ to effectuate the desire of Congress to eliminate all forms of discrimination.
(See also United States v. Wood, Wire and Mfetal Lathers International Union No. 46: "Wlhile quotas merely to attain racial balance in employment are forbidden by the Civil Rigyhts Act of 1964. quotas to correct past discriminatory practices are not"; Carter v. G allaqher: "(T he antipreference treatment section of the new Civil Rights Act of 1964 does not limit the power of a court to order affirmative relief to correct the effects of past unlawful practices";- Stamps 'v. Detroit Edison: "Having found a pattern of discriminatory exclusion in hiring, and assignments, this court has wide discretion in' ordering such affirmative action, including the accelerated hiring and assignment of blacks in an effort to meet goals established for the purpose of overcoming the past patterns of racial'exclusion"; Heat and Frost Workers, Local 53
v. Volger; and United States v. Shedt Metal Woricer8 International Association.)
At the time Congress amended Title VII in 1972, it considered variious amendments which would have modified the judicial construction
-of Section 703 (j). The fate of these amendments was described by the Court of Appeals for the Sixth Circuit in United States v. Local Union No. 212~, International Brotherhood of Electrical Workers:
It also appears from the legislative history of certain proposed amendments to 42 U.S.C. 2000e-2 (j) that it is not the intent of Congress to forbid remedies of the kind used in this case (a black membership quota was imposed on the union).
Plainly, as recently as 1972, Congress was fully appraised of what you call "rampant violation by the nonelected 7and nonaccountable Federal bureaucrats of antidiscrimination statutes and orders." Yet Congress chose to take no action and, in fact, rejected efforts to curb the practices about which you complain. Congress, fortunately, has the good sense to recognize that it is necessary to be "color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination."
You are equally misinformed about the meaning, of the affirmative action provisions of Executive Order 11246 which prohibit all contractors or subcontractors on federally financed projects from discriminating in their employment practices. Cases arising under that order have upheld plans which take race into account and which establish racial quotas.
For example, the Court of Appeals for the Third Circuit upheld the Philadelphia Plan which required that contractors obligate themselves to achievement of minority manpower goals or quotas if they wished to participate in Federal construction projects of federally assisted construction of $500,000 or more (Contractors Association of Easter'n Pennsylvaniat v. Secretary of Labor). That plan, promulgated under the authority of Executive Order No. 11246, provided for annually increased manpower utilization goals to raise minority employment in selected construction trades.
In Southern Illinois8 Builders Association v. Ogqil'vie, the court recognized that quotas are a logical part of an affirmative action plan formulated pursuant to Executive Order No. 11246, and said:
Basic self-interests of the individual must be balanced with social interests, and in circumstances where blacks have been discriminated against for years, there is no alternative but to require that certain minoritles be taken into consideration with respect to the specific minority percentage of the population in a given area in order to provide a starting point for equal employment opportunities. In this regard, it is the feeling of this Court that minimum ratios, where, de jure or de facto, based upon race are constitutional and valid when adopted for the purpose of implementing affirmative action to achieve equal employment opportunities.
Most recently, in Associated General Contractors of Massaahiusetts, Inc. v. Altshuler, the court upheld a State "affirmative action plan"7 which was more stringent than the Federal plan which was formulated pursuant to Executive Order No. 11246. The "Boston Plan" case involved an action by construction contractors, each a prospective bidder for State contracts, challenging contract provisions requiring contractors to employs a stated percentage of minority workers.
The court upheld the use of these racial criteria and stated:
It is by now well understood, however, that our society cannot be completely color-blind in the short term if we are to have a color-blind society In the long term. After centuries of viewing through colored lenses, eyes do not quickly
adjust when the lenses are removed. Discrimination has a way of perpetuating
-itself, albeit unintentionally, because the resulting inequalities make new opp--ortunities less accessible. Preferential treatment is one partial prescription to remedy our society's most intransigent and deeply rooted Inequalities.
In addition to my complete disagreement with 'your statement of the law, I also believe you grossly exaggerate the nature and extent of abuses connected with affirmative action programs. Perhaps there has been overzealousness on some occasions, but that problem pales into insignificance when compared to the shameful injustices toward which affirmative action programs are directed.
I can, nevertheless, understand and respect sincere differences of opinion over the -implementation and consequences of affirmative action programs. But I cannot understand an organization presumably dedicated to academic integrity sending out a letter which displays such ,complete ignorance of the subject with which it purports to deal.
Very truly yours,
HOWARD A. GLICSTEI,
Director, Center for Civil Rights,
UIniversity of N'otre Dame.
JULY 18, 1974.
DEAiR DR~. GLICKESTETN: Thank you for your lengthy communication of May 29. Serious dialogue on a topic shrouded by fear and passion is
-sorely needed. It is thus unfortunate that your missive is composed chiefly of misapplied and irrelevant judicial'citations, garnished with gratuitous insult.
You choose, I note, to focus on the fact that in my IDecember 11 letter I cited the clear language of the Civil Rights Act of 19164 and Executive Order 11246 as amended, both of which explicitly forbid preferential treatment on the grounds of race or sex. You then quote certain lower court decisions which interpret this to mean that where previous discrimination had been proved, race may be taken into account in establishing nondiscrimination.
However, you disregard entirely the sentence in my letter which points out that no proof of need or statistical date was presented to justify instituting these programs in the field of higher education, with which the Committee on Academic Nondiscrimination and Integrity concerns itself. In other words, there was no showing of prior discrimination. This fact is undisputed and of decisive importance. There was no sizable pool of unemployed minority Ph. D. holders when the affirmative action programs were set loose on the colleges. The great upswing of minority undergraduate admissions preceded the institution of affirmative action programs. In fact, the HEW guidelines do not even presume to speak of the correction of discrimination through "numerical goals" and "precise timetables." As you no doubt know well, the guidelines seek to alleviate "underutilization." In that light, all your citations which depend on a showing of previous discrimination are simply irrelevant. What is more, one of them points clearly to the impermnissibility of the programs you defend. "While quotas merely to attain racial balance in employment are forbidden by the Civil Rights Act of 1964, quotas to correct past discriminatory practices are not," says the decision (United &tateA v. ood, Wire, and Metal Lath-er Jntervational Union No. 40.). One wonders what pos-
sibly could be meant by a quota "merely to attain racial balance," if it did not include in its meaning a correction. of statistical imbalance Without a showing of discrimination.
Yet it is not enough to say that your citations miss the point. They also tend to obscure it by implying that the law, as interpreted by the courts, uniformly justifies preferential treatment for social ends. For a man who is as ready as you to hurl charges of ignorance, deception, and disingenuousness, it seems downright imprudent not to have mentioned in your letter that Justice Douglas' seminal comments on the PeFunis case fundamentally support the principle that equal treatment under the law means equal treatment for individuals and not groups. Thus, he wrote, "the consideration of race as a measure of an applicant's qualificati 'ons normally introduces a capricious and irrevelant factor working as invidious discrimination. . ."1 Accordingr to the Justice, the States "may not proceed by racial classification to force strict population equivalencies for every group in every occupation, overriding individual preferences. The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized."
While you quote from lower court decisions that do not even lie in the field of higher education, you fail to cite the words of a Supreme Court Justice on the one case that does lie in the higher education area. Shall we take a leaf from your rhetorical book and attribute this to either ignorance or disingenuousness? And if you feel that a dissent in a moot case is unworthy of your attention, why did you neglect Chief Justice Burger's clear formulation in the Griggs case: "discriminatory preference for any group, minority or majority, is precisely and only what Conorress has proscribed"?
Were the law as clear as you seem, somewhat contemptuously, to think, there would have been no need for the DeFuni& case and for the Court's action in vacating the Washington State decision while declaring the case moot. Nor, more importantly, would there be any reason for the HEW guidelines to deny, as vigorously as they do,, that they involve any preferential treatment whatever. Nor would HEW officials have found it necessary to disguise their quota requirements with the sophistry and euphemism of calling them "goals." Your frankness is useful in laying bare of the real issue; your shamelessness in avowing your love of preferential treatment is, however, not shared by most government officials.
Yet even if the courts could be understood as interpreting "without regard to race" to mean "with regard to race" your indiziiation at CANI's presumption in questioning this miracle of dialectic would still Ne out of place.. Though I am indeed not a lawyer (and it seems to me that the Deity has his hands quite full enough with the legal profession today), I do believe that there are precedents in American history for attempts to change the understanding of certain laws and constitutional provisions. I wonder if you had quite the same awe for the sanctity of Plessy v. Fe7%uson in 1953 as you have t 'oday for certain lower court. decisions. Perhaps you did. If so, let me remind you that Abraham Lincoln did not share this reverential view and spoke openly in his debates with Stephen A. Douglas of his total opposition to the Dred Scott decision and his determination to reverse it by legal means.
No doubt there was'some antebellum Glickstein on hand to accuse him of ignorance and disingenuousness.
You say, in your letter, that the language of a statute tells only part of the story and that one needs to consult the purpose as well. Had you taken the advice you so graciously proffered me, you might have discovered by consulting the Congre8sional Record of the debates on the Civil Rights Act of 164, that the proponents of the bill laughed off as imaginary horribles the very interpretations you so piously defend. I refer you in particular to Dr. Paul Seabury's article m Commentary of February 1972, page 38. Nor does the 1972 Equal Employment Opportunity Act in any way, either by language or intent, justify discriminatory racial quotas.
Perhaps the most disturbing aspect of your letter is the facility with which you skate over the substantive questions. You "believe" that I grossly exaggerate the nature and extent of abuses connected with affirmative action programs. You will go so far as to concede that "perhaps" there has been overzealousness on some occasions, but you cheer:fully maintain that the problem "pales into insignificance when compared to the shameful injustices towards which affirmative action programs are directed." Might I ask on what you base your belief that I grossly exaggerate?
At CANI we can and have documented the charge that there is widespread discriminatory recruitment in academia, brought on by the demand of Federal agencies for "proper representation." We can and have documented the charge that the majority of the male and female staff professors of sociology engaged in hiring, when polled, avowed the belief that affirmative action requires discrimination on the basis of sex and race and not of merit. We can and have documented the charge that there is underway a thoroughgoing exclusion of qualified white teachers of Afro-American History and Black Studies. We can and have documented the charge that Federal officials have sought to intimidate universities and even to enter into the sphere of the disposition of the curriculum in order to attain what they conceive to be the ends of affirmative action. Yet you "believe" that I exaggerate.
I refer you, for example, to the April 1973 issue of Measure, a publication of the University Center for Rational Alternatives, of which our Committee is an offshoot. It gives the detailed factual account of the travalls of one Maftin Goldman,' a qualified professor of AfroAmerican history, who had, in the year before the advent of the affirmative action programs, received several offers of academic employment. Because of his race he now cannot find academic work. I can assure you that his case is not an exception. Paul Lammermeier, another specialist in Afro-American history, now works as a short order cook in Mentor, Ohio. because his skin is the wrong color for a professor of his specialty today. Yet you "believe" that I exaggerate.
If you are unwilling to lend credence to evidence that comes from me, perhaps you might listen to Dr. Richard Lester of Princeton University, formerly vice chairman of President Kennedy's Commission on the Status of Women. In his book, Anti-Bias Re aulation in Universities: Faclty Probems aM Their Solutions, Dr. Lester offers a powerful array of factual evidence which proves that the affirmative action programs you defend not only commit injustice through
preferential treatment-which apparently causes yu no concernand destroy academic standards and autonomy- ieh may not disturb you in the slightest-but also are wholly ineffective in obtaining their own intended purposes of increasing the number of women and minority group members in faculty positions.
Professor Lester shows that the need to fulfill utterly unrealistic quotas, under the threat of loss of Federal funds, leads to an undignified and essentially pointless game of musical chairs in which blacks and women are lured from one place to the next by offers of higher salary and greater prestige, but which does not markedly increase the actual numbers in circulation. Thus quotas and timetables merely distract from the problem which is mainly one of supply by making the fallacious assumption that it is essentially one of demand, hampered by discrimination. Thus, Dr. Clark Kerr, in his introduction to the book, points out that Dr. Lester "stresses the faot that current faculty members favor such an increase [in minority members and women] but warns that many of the action programs prescribed to achieve it fail to take into consideration either the inadequate supply of qualified people among these groups currently underrepresented on our faculties or the characteristics of academic employment that distinguish it from employment in industry." Speaking for himself, Dr. Kerr continues: "At stake is not only an equitable system of academic employment, but also loss of financial support as governments apply economic sanctions to achieve numerical hiring goals that often have little relevance to the character and mission of universities." Yet you "believe" that I "grossly exaggerate" the abuses of affirmative action.
Under the circumstances, is it really too much to ask of a man who accuses others of deception and ignorance that he substantiate his allegations with more than his "belief," or. one might uncharitable say, his gall? I cannot, however, merely leave the question at this point. You should consider the logical form of your argument. You say that existinfr abuses pale by comparison with the injustices that affirmative action programs are directed toward. Apparently then, because the progrram's aims are noble, their evils are insignificant. I trust I need not remind you of the kind of politician and demagoue who uses this sophism to justify misdeeds by good intentions. Why then do you make such an argument?
In fact, whether you are willing to believe it or not, nondiscrimination is CANI's most cherished goal. Our members have shown a lifelong commitment to equality and fairness and have been in the forefront of actions fought for the disadvantaged. However, we do not see how you can r~ossiblv hope to create colorblindness out of color consciousness, and nondiscrimination out of preferential treatment. Those who suffer discrimination today in order to "compensate" the children of those who suffered it yesterday will someday have children who will in turn have a claim to "compensation.' How shall it all end except in a policy of true nondiscrimination which looks to individual merit and not to race, class, sex, or religion?
I do not deny that you and many others have shown a remarkable in~renvtv in discovering ways in which "without regard" cAn be interprcted to mean "with regard." Such ingenuity would be laudable if it were applied to making real nondiscrimination a working reality. You delude yourself if you believe that "preferential treatment is one
partial prescription -to remedy our society's most intransigent and deeply rooted inequalities." In fact, preferential treatment is a wholly adequate prescription fo~r the perpetuation of preferential treatment, 'which is, you may recall, what caused those intransigent and deeply
_rooted inequalities in the first place.
Sincerely, mM.T oovva
DEAR PRoFESsoR ToDoRoviicu: I appreciated receiving your letter of July 18, 1974 and read it with great interest. Please forgive my delay in
I have spent most of my professional career in activities seeking to achieve racial justice in this country, and frequently feel a deep, sense of frustration about the limited progress we have. achieved. I acknowi,edge, nevertheless, the appropriateness of your suggestion that "1seriOus dialogue on a topic shrouded by fear and passion is sorely needed." Accordingly, let me attempt to define our p points of difference in as dispassionate a way as possible.
Perhaps we differ most fundamentally over the extent of discrimination in employment in higher education. You believe that institutions of higher learning are being subjected to a burden without "proof of need or statistical data." I believe that there is ample proof. It is for that reason that I relied on cases that assumed the existence of discrimination. What is that proof ?
As you know, educational institutions were not covered by Title VII, the fair employment title of the Civil Rights Act of 1964. The 1972 amendments to Title VII, however, extended coverage to educational institutions. Congress acted only after extensive proof that there was a severe problem which required that educational institutions be subjeced to the provisions of Title VII. The House Committee Report underscored the scope of the problem:
Discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment. In the field of higher education, the fact that black scholars have been generally relegated to all-black institutions or have been restricted to lesser academic positions when they have been permitted entry into white institutions is common knowledge.
Similarly, in the area of sex discrimination, women have long been invited to participate as students in the academic process, but without the prospect of gaining employment as serious scholars.
The committee feels that discrimination in educational institutions is especially critical. The committee can not imagine a more sensitive area than educational institutions where the Nation's youth are exposed to a multitude of ideas that will strongly influence their future development. To permit discrimination here would, more than in any other area, tend to promote misconceptions leading to
-future patterns of discrimination. Accordingly, the committee feels that educational institutions, like other employers in the Nation, should report their activities to the [Equal Employment Opportunity Commission] and should be subject to the provisions of the Act. (House Committee on Education and Labor,, Equal Employment Opportunities Enforcemrent Act of 1971).
Similar views were expressed in the Senate Committee Report:
The presence of discrimination in the Nation's educational institutions is no weret. Many of the most famous and best remembered civil rights cases have involved discrimination in education. This discrimination, however. is not limited to the students alone. Discriminatory practices against faculty, staff, and other
*em~)oyees are also common. The practices complained of parallel the same kinds ,of illegal actions which are encountered in other sectors of business, and in
chide illegal hiring policies, testing provisions which tend to perpetuate racial imbalances, and discriminatory promotion and certification techniques.
As in other areas of employment, statistics for educational institutions indicate that minorities and women are precluded from the most prestigious and hig(,her-paying positions, and are relegated to the more menial and lower-paying jobs.
The Committee believes that It Is essential that these employees be given the same opportunity to redress their grievances as are available to other employees in the other sectors of business. . There is nothing in the legislative background of Title VII, nor does any national policy suggest itself, to support the present exemption.
In fact, the Committee believes that the existence of discrimination in educational institutions is particularly critical. It is difficult to imagine a more sensitive area than educational institutions, where the youth of the Nation are exposed to a multitude of ideas and impressions that will strongly influence their future development. To permit discrimination here would, more than in any other area, tend to promote existing misconceptions and stereotypical categorizations which in turn would lead to future patterns of discrimination. (Senate Committee on Labor and Public Welfare. Equal Employment Opportunities Enforcement Act of 1971).
The need for the inclusion of institutions of higher education within the coverage of Title VII is illustrated further by the extent to which charge's of discrimination have been filed with the Equal Employment Opportunity Commission. Since 1972, 1,600 charges of job discrimination by post secondary institutions have been filed. In 1973, approximately one out of four EEOC charges involved higher education. Seventy-nine percent were against public institutions, 21 percent against private. Forty-four percent of the charges involved sex discrimination; 39 percent race or ethnic discrimination; 4 percent religious discrimination, and 133 percent of the charges constitute multiple allegations.
While a charge is not proof or an adjudication, I believe that the large number of charges filed against educational institutions in the short time they have been covered by the act is indicative of a widespread and pervasive problem.
The extensive number of charges of discrimination that continue to be filed by members of minority groups and women also argues strongly against your assertion that affirmative action programs are being abused and that there is "widespread discriminatory recruitment in academia." This certainly could not be proven by the results. The increase in blacks and women on the faculties of previously white and male schools has been infinitesimal.
Tf we Were doing so -well in, implementing goals and timetables-or giving preferences or imposing quotas-the EEOC would be inundated with charges from white males, not minorities and women. It is difficult for me to accept the argument that affirmative action programs have been abused, i.e., have discriminated against white males, when I see so little evidence of increased numbers of minorities and women on university faculties. John H. Powell, Jr., as Chairman of the Equal Employment Opportunity Commission, stated: We must look beyond the rhetoric . and look at the facts. Any sort of preliminary analysis of the facts will show that blackq are not displacing white mnales, that women are not displacing males, and I think that It is terribly imiportant in this area, an area subject to so much misunderstanding,, for us to tell it like it is and not necessarily respond to the rhetoric.
Nor do I find in Richard Lester's recent book any proof that affirma-
tive action programs have been abused. The book differs sharply from its press releases and the exaggerated newspaper stories that preceded its release. Contrary to your claim, it does not offer a "powerful array of factual evidence" of anything. It only suggests, without proving, that affirmative action programs are ill suited to university faculty hiring practices. Lester's book is more a theoretical analysis of why "affirmative action" plans for the recruitment and hiring of women and minority group members by major government contractors, while possibly effective in the construction and manufacturing industries, :are not well suited to the professional recruitment and hiring of university faculty members.
The basic tenet of this thesis is that faculty hiring practices are a delicate and sensitive matter among high level professional scholars which cannot be understood by those outside the academic community and therefore should not be interfered with. Lester's book does not purport to be a comprehensive study of "abuses" that have occurred in requiring affirmative action in the hiring of university faculty. He cites some examples of such abuses but what he has undertaken is an academic analysis of a program, and not a field study of its application.
My understanding of the situation convinces me that discrimination in higher education is more the rule than the exception. Accordingly, I felt that your December 11, 1973 letter was misleading because it concentrated almost entirely on a simple recitation of the language of laws prohibiting "preferential treatment" without also warning that those provisions were not applicable if there were a showing of past discrimination. To be sure, you mentioned that affirmative action programs were instituted in higher education without proof of needan assertion which I am convinced is inaccurate-but you failed to point out that the general language of Title VII and Executive Order 11246 had to be interpreted in the light of a particular institution's past practices.
In other words, I felt your letter left the impression that in all cases involving institutions of higher education "preferential treatment" was prohibited. I think it would have been more accurate to advise your constituency that if there were no past record of discrimination, if an adequate affirmative action program were being made toward increasinq the representation of minorities and women on faculties, it probably would be possible to avoid a governmentally imposed hiring program.
WVhile I take you to task for assuming there has been no discrimination. you fault the cases I cite on the ground they apply only where Previous discrimination has been proven. As I already indicated, my letter proceeded on the assumption that discrimination does exist. In addition to the evidence of discrimination relied on by Congress in extending Title VII to institutions of higher education, it is now well accepted that a statistical showing of under representation is sufficient to establish a prima facie ease of discrimination. (See United States v. Ironworkers Local 86; United States v. Hayes International Corp.,liJnited States 9% United Brotherhood of Carpenters and Joiners.) It
then becomes the burden of the person or institution accused of discrimination to convince the court that minorities or women are underrepresented for reasons other than discrimination (U.S. v. Iron9workers Local 86).
My own experience with the recruiting and hiring procedures of institutions of higher education convinces me that this would be a burden that few institutions could sustain. Nor is it enough that a university demonstrate that it has not itself engaged in overt discrimination. A university's compliance with the law is not adequate unless it takes into account "broader patterns of exclusion and discrimination practiced by third parties and fostered by the whole environment in which most minorities must live" (Johnson v. Pike Corporation of Aierica). Yes, Professor Todorovich, it is appropriate to ask universities to examine "external problems" and not at all unreasonable to require a public university, such as the University of Connecticut, to study the feasibility of "improving transportation between Hartford and Storrs."
But whatever the necessity under Title VII to prove past discrimination before a race conscious remedy will be required, such a necessity does not exist under Executive Order 11246. In Contractors A8gociation of Eastern Pennsylvania v. SecretarT of Labor, the Court upheld tho Philadelphia Plan and said:
The absence of a judicial finding of past discrimination is also legally irrelevant. The Assistant Secretary (of Labor) acted not pursuant to Title VII but pursuant to the Executive Order. Regardle s of the cause, exclusion from the available labor pool of minority tradesmen is likely to have an adverse effect upon the cost and completion of construction projects in which the Federal Government is interested.
Even absent a finding that the situation found to exist in the five-county area was the result of deliberate past discrimination, the Federal interest in improving the availability of key tradesmen in the labor pool would be the same. While a court must find intentional past discrimination before it can require affirmative action under 12 U.S. 2000 e-5 (g), that section imposes no restraint upon the measures which the President may require of the beneficiaries of Federal assistance. The decision of his designees as to the specific affirmative action which would satisfy the local situation did not violate the National Labor Relations Act and was not prohibited by 42 U.S. 200 e-5 (g).
Since most of our major colleges and universities are government contractors, there is no need to prove an actual case of discrimination before requiring that such institutions adopt and implement affirmative action plans.
Unfortunately, I am not sure that my efforts to cite precedent or to distinguish the cases you rely on, or your efforts similarly directed at me, really will get us very far in bridging the differences that separate us.' Those differences are bottomed in our respective notions of what must be done to eradicate and overcome the generations of discrimination suffered by blacks, Chicanos, and women. Similar differences also accounted for the sides taken by the many parties who filed amicus
For example, you fault me for relying on decisions that do not even lie in the field of higher education while overlooking the one case-the DeFunis case-that does lie in the higher education area. But your objection seems misplaced to me. DeFunis dealt with the student admission process and not with employment. Almost without exception, the cases I cited dealt with employment discrimination-the matter at issue between us. Your criticism, however. is very revealing. It suggests a belief that there is something special about higher education. This seemss to be a common problem among those working in hiher education. As Chairman Powell has stated: "The concept that institutions of higher edNcation are 'above.' or at least not In the same relationship to the rest of society, is shared by a large segment of the population. and by most institutions of higher learning as well. This view is frequently held, notwithstanding glaring realities to the contrary." It is not readily perceived that the same principles of nondiscrimination that apply to plumbers, policemen, and sheet metal workers also apply to professors. It Is with a sense of deja vu that I listen to fellow faculty members tell me about the delicate, complicated issues involved in making delsions about academic competence. This was the ame rationalization used by officials of rlumberg onions to explain to the U.S. Commission on Civil Rights why there were so few black plumbers.
briefs in the DeFunis case. On both sides of that case there were well intentioned individuals and organizations all equally committed to ourconstitutional principles and the concept of equal opportunity. Yet onegroup regarded the treatment of Mr. DeFunis as a violation of the Constitution -and the other group discerned no such violation. To my mind, the basic question separating these groups-and us-is the question of whether our Nation is prepared to tolerate some short-range, temporary disadvantages for white males in order to overcome our racist and sexist past.
I have enormous empathy for Martin Goldman (and I am glad to see that he has been compensated for the discrimination he believes he has suffered) and Paul Lammermeier, whose cases you cite in your letter, but at the same time I realize that the process of correcting past injustices cannot be totally painless. In the past, many Martin Goldmans and Paul Lammermeiers were able to obtain prestigious positions because they were protected from the competition of blacks and women. For every Paul Lammermeier working as a short order cook today there probably were 1,000 blacks with college degrees or better who worked at the post office or as Pullman porters in the past.
It would be nice if we could make up for the disadvantages that somle groups have suffered without any inconveniences to the advantaged group. I doubt whether this is possible, however. Undoubtedly, there are many individuals who. feel that they have been disadvantaged because of the preferences we give to our veterans. But the sacrifices made by veterans, as a group, justify according then preferences, as a group. Similarly, our laws contain numerous examples of preferences for Indians, including preferences in employment, but because of the, cruelty this group has suffered such preferences have been allowed.
When a society has committed past injustices or when historically disadvantaged groups exist side by side with more advantaged groups, it simply is not possible to achieve equality and fairness by applying neutral principles.2 This has been recognized by India. whose laws accord many preferences to "scheduled castes." This has been recognized by Israel, where so-called "colored Jews" receive preferred treatment. It is not pure f antasy, therefore, to believe that it is possible to "create color blindness out of color consciousness, and nondiscrimination out of preferential treatment."
Just a few months ago, the Court of Appeals for the Fifth Circuit upheld a lower court order which required the Alabama Department of Public Safety to hire one qualified black trooper or support person for each white- so hired until approximately 25 percent of both the State troopers and support personnel force was comprised of blacks. Judge Coleman's reasoning is equally applicable to the situation we are discussing.
2 1 confess my love for preferential treatment and believe such policies are supported by the law. I do not believe, however, that it is because HEW officials are less frank than I am or less shameless than I am that they deny that their policies Involve preferential treatment. I believe there is a vast difference between the "goals and timetables" program anxd a program that directly embraces quotas or preferential treatment. A demonstration of "good faith" is sufficient to excuse meeting a goal. If university officials sincerely believe theyv have undertaken good faith efforts to hire minorities, let them stand up to HEW and demonstrate their good faith-in court, if necessary.
As the Attorney General said in upholding the legality of the Philadelphia Plan. "If. unfairness In the administration of the Plan should develop, It cannot be doubted that judicial remedies are available." The problem Is that the self righteousness of so many academic people completely blinds their ability to engage in good faith efforts. If the energy expended attacking HEW was Instead devoted to Implementing affirmative action programs vigorously, I am sure there would be few difficulties In demonstrating good faith.
* the affirmative hiring relief instituted * [here] fails to transgress either the letter or the spirit of the Fourteenth Amendment. *** No one is denied any right conferred by the Constitution. It is the collective interest, governmental as well as social, in effectively ending unconstitutional racial discrimination, that justifies temporary carefully circumscribed resort to racial criteria, whenever the chancellor determines that it represents the only rational, nonarbitrary means of eradicating past evils.
By mandating the hiring of those who have been the object of discrimination, quota relief promptly operates to change the outward and visible signs of yesterday's racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices. It is a temporary remedy that seeks to spend itself as promptly as it can by creating a climate in which objective, neutral employment criteria can successfully operate to select public employees solely on the basis of job-related merit. For once an environment where merit can prevail exists, equality of access satisfies the demand of the Constitution. (NAACP v. Allen.)
In addition to our differences over what must be done to overcome tIhe effects of past discrimination, I imagine we differ on what constitutes "merit" and "competence." Many of those who oppose affirmative action efforts argue that such efforts will upset systems that have been run strictly on the basis of merit and competence. They suggest that in the past the rule has been "may the best man (and I use the word intentionally) win" and that advocates of affirmative action are intent on destroying this principle.
Aside from the fact that in so many instances the only ones allowed to demonstrate their "merit" were white males, I do not believe that even within that limited category merit and competence were generally the decisive factors. We paid lip service to merit and competence, but so many hiring decisions are made on the basis of extraneous factors. If there were some foolproof litmus test for determining merit, perhlaps I would be fearful of tampering with the system. But the rules have been so rubber in the Past that I become a bit suspicious when a new rigidity is demanded as women and minorities appear at the gates.
Nor, I suspect, do we agree on who is "competent" to be a teacher. I have known all too many persons, as I am sure you have, with a string of degrees who did not have the vaguest idea of what he or she was doing in the classroom. The conventional badges of accomplishment in terms of certificates, diplomas, and de,rees are not necessarily what we should be looking for to provide the best teachers for young Americans. Perhaps our efforts to insure that women and minorities have greater access to academic positions will force us to reevaluate our standards for determinino competence.
We still have a lona road to travel to achieve "an environment where merit can prevail." It is plain to me that we cannot achieve such an environment merely bv re'quiring nondiscrimination. Such a policy was first imposed on government contractors in 1941, yet today-over 30 years later-we see dailv examples of extensive patterns of discrimination. It is not mere whim that motivates those who advocate strong affirmative action programs. Rather, it is a realization that other approaches to equal opportunity-approaches that have been given fair chnee, to prove themselves--have not worked.
The programs currently being, pursued bv HE W-not nearly as viorously or effectively as I would like-were developed slowly and carefully over a period of years to meet a proven need. It is not that the
type of "affirmative efforts" advocated by CANI never have been tried. They have been tried and been found wanting. After years of frustrating efforts to desegregate the schools in the South, the Supreme Court finally ordered the adoption of plans that "promise (s) realistically to work, and promise(s) realistically to work now." It is precisely such programs that we need in higher education.
In the late '50s and early '60s, those who advocated the enfranchisement of black citizens and the desegregzation of schools and public accommodations were told by Southerners that they were embarked on a program that would destroy the fabric of Southern society and would result in chaos or disorder. Governor Wallace, in fact, warned that any effort to desegregate places of public accommodation would require the use of. all the troops the country had-including our forces in Europe and Asia. These dire warnings did not come true and the society is a lot better for the dramatic changes that have taken place in the South.
Similarly, I do not think our present programs to open up academic positions to women and minorities threaten academic integrity. Rather, if you accept the definition of "integrity" as "the state of being whole, entire or undiminished," I do not see how we can claim to have academic integrity, how we can claim to be "whole," until all segments of our population are fairly represented in a profession that has such a basic and fundamental impact on the lives of young Americans.
Sincerely, o A D G c s m v
APRIL 18, 1975.
DAR DR. GLTGiKSTETN: Please forgive the delay in responding to your letter of November 13, 1974. I feel that certain of the points you raise are well worth pursuing a bit farther. But I would first like to remark that I respect and applaud your lifelong efforts on behalf of racial justice in this country.
Most of my own professional career has been spent, here and abroad, seeking to advance the content of higher learning as well as improving the 'means of disseminating that content. It is thus quite natural that I am highly sensitive to actions which I find detrimental to the activity of hi gher learning or to the fairness of the procedures by which it operates and which determine its quality. My commitment, needless to say, is rooted in 'my belief that learning" is o ne of the best tools for the betterment of the lot of individuals, as well as of entire societies.
While, as I say, I respect your commitment, I must question both the choice of your targets and the selection of weapons for hitting the set mark. Let us begin by looking more closely at the actual figures behind the rhetorical use of statistics, since only then can the issues that divide us appear in their proper factual proportions.
At the end of the last decade about 1 percent of the Ph.D.s in this country were black. This was at a time when many Federal officials engaged in vigorous arm-twisting in order to force colleges and universities to incorporate goals for hiring black faculty far in excess of the 1 percent availability level into their affirmative action plans. The result of such pressures could have been predicted and was. The continuous threat of loss of Federal f unds led to bidding 'wars and a muisical chairs game for existing black faculty; extraordinarily high salaries
for black appointees; and even a few cases of one professor holding several jobs, sometimes illegally, to satisfy the unappeasable diland.
But did this effort lead to its desired end of increasing black participation in higher education? According to just published data for he. 1972-73 academic year, only about 4,000 of 33,000 American doctorates went to members of minority groups. Of those 4,000 only 975 were black, and only 37 percent were U.S. citizens. Thus, approximately 330 American black citizens received the doctorate. Once, more,
1 percent, and therefore 1 percent of the newly available supply.
This is the factual basis on which our discussion must take place. We at CANT share with you a deep sense of frustration about these facts. But we feel they must be recognized if we are to find a way to change them. Comforting oneself with the thought that it is all the fault of evildoers merely disguises the real problems and makes them harder to solve. This, I feel, is one of our fundamental differences. We would wish to try a variety of approaches both to increase the supply and see justice done speedily for all individuals who may have suffered from discrimination. You, and several other groups and institutions whose views you so ably and eloquently present, seem to desire to stick doggedl v to plans and programs which have not produced positive results but have created much ill will, cynicism, and no little injustice of their own.
In turning to the main argument, you distinguish properly between the quotas imposed by courts in cases where specific acts of discrimination have been proved, and the affirmative action programs required of higher education institutions under Executive Order 11246 in their role as Federal contractors. In making this distinction, you direct our discussion away from the general question of the justice, prudence, and propriety of preferential treatment to the more specific question of whether, as you and HIEW officials claim, there is a "vast difference" between "numerical goals and precise timetables" and preferential treatment through quotas. This area is foggy and deceptive rhetoric and undocumented assumptions. Only after dealing with those can we return to the basic issue which divides us: whether racial or sexual discrimination is always or only sometimes wrong.
You argue that goals are not quotas because they only involve a "demonstration of 'good faith'." Here it is necessary to clear up an ambiguity. If by "good faith" you mean zood faith in filling the goal, come what else may, such good faith could only be measured by numbers of positions offered and could not be distinguished from good faith efforts to achieve a quota. Under this reading then, goals would be indistinguishable from quotas since they would require good faith efforts to achieve quotas.
If, on the other hand, by "good faith" you mean good faith efforts to hire the best qualified candidate, then an admission that such good faith can be measured aside from the fulfillment of goals is also a tacit admission that the goals are not necessary, since affirmative action can both be pursued and judged without reference to their existence. HEW continues to say publicly that this latter kind of good faith is the sort it requires, but contradicts itself by demanding goals. In fact, of course, what this amounts to is requiring quotas, but using the words "good faith" to present a respectable public face which denies their
,existence. Everyone knows that numerical goals are set for a reason and that reason is that they be met.
You also seek to deny the existence of reverse discrimination by arguing that if it did occur, "'it cannot be doubted that judicial remedies are available.' In the abstract of course, it cannot be doubted. In reality, however, the possible complainant who would make use of the judicial remedy would have to be the university itself. And the university is precisely in the position of having to placate Federal officials. w"ho can cut off Federal contracts usually vital to a university's quality, if not its very survival, with a single telephone call. The bureaucracy'is power as judge, jury, accuser, and patron combined make it downright impossible for universities to avail themselves of such judicial remedies.
This has led, as we all know, to university administrators complaining in private about the folly and unfairness of affirmative action plans, while speaking in public only of their eagerness to comply with whatever the government wants. Testimony before this past fall's hearings of the House Special Subcommittee on ]Education gave evidence of the real attitudes of university administrators. Thus, President Hester of New York University agreed under questioning. that if many aspects of the regulations are meant to be taken at face value and their
5 or 10 year deadlines enforced, "it will be disastrous."
if on the other hand, a particular individual who has suffered re-verse discrimination seeks to use a judicial remedy, he or she finds that though -one may get some redress from the un iver'sity, one cannot get at the real culprit who encouraged and incited the university to commit discrimination. The Federal Government washes its hands of the university and proclaims the usual pieties about how reverse discrimination is not its policy. It is thus in the advantageous position of an individual who tells another to leap out of a fifteenth story windows, 'but sternly forbids incurring any i njury on landing. I agree wholly with former Congresswoman Edith Green, who like you has spent most of her professional career in activities seeking to achieve justice for minorities and -women in this country. In a recent speech she said: "I consider the rhetoric of some in saying, 'we don't require quotas, we require goals,' as nothing more than a game of semantics."
You seek f ur-thermore to deny the seriousness of reverse discrimination by citing the number of complaints of discrimination brought before EEOC by women and members of minorities, while contrasting
-them to the lack of complaints of reverse discrimination brought before that body. You thus give the often cited figure of 1600 discrimination complaints in the field of higher education. One should note that these are but a small part of the overall EEOC backlog of about 100,000 cases. What is more, not all-perhaps only 900 cases-relate directly to instructional personnel (others may involve clerical. jani.tori al, or other staff).
Also, as you note, charges are not proof of the truth of charges. It is thus interesting that, according to President Hester's Congressional testimony, of 43 charges against N.Y.U. on grounds of discrimination, at the time of his statement 84 had been dismissed, withdrawn, or settled in favor of the university, while nine were still pending. Furthermore, those 900 cases should be contrasted with the number of 2,686 institutions of higher learning in the United States. That is, the order of magnitude is one complaint for every three institutions.
Now I would like. very much to see the adjudication of this backlog. It would not only give us some real insight into the nature of the problem (as it stands now the EEOC figures may reasonably represent or hopelessly distort the reality of discrimination in higher education),. but it would enable justice to be done which I am sure we would both applaud.
For this reason, in my testimony in the name of CANI before the O'Hara subcommittee, I proposed a number of steps that, contrary to your letter, have not been tried before in higher education, and that would use the expertise residing in those 2,686 schools in the form of arbitration panels, both within particular schools and drawn at the appellate level, from pools established by the professional associations, in order to deal expeditiously with complaints, whatever their origin, and in order, by resolving cases, to set examples and broadcast warnings.
Given the woeful record of the EEOC in dealing with individual complaints, it is hard to see why anyone would object to an effort to provide justice speedily for those deprived of it. Yet, in a paradoxical manner I have alluded to before, our critics seems so enamored of group proportionality which is to be achieved by bureaucratic compulsion, that they seem willing to see individual complaints go unresolved for years to come. Achieving such proportionality may make the bureaucrats happy whose task it was to achieve it, but it is not justice, which, as I understand it, is expected ultimately to bend to the level of concern for individual citizens and their rights.
As for the few complaints of reverse discrimination before the EEOC: this is hardly surprising, in view both of the EEOC's well documented weakness in dealing with anybody's complaints, and of comments by the former chairman, one of which you cite, which deny the reality of reverse discrimination itself. One could imagine more sympathetic forums.
But there are other reasons as well. First, many victims of reverse discrimination feel disinclined to make a fight of it precisely because they do not want to seem to be standing in the way of women and blacks. Second, and most important, practitioners of reverse discrimination have gotten much better at it since those naive early days when messages were sent out informing candidates that they were the wrong color. Reverse discriminators have now learned the use of code words long known to previous practitioners of the more genteel forms of discrimination. "Women and minority candidates especially welcome to apply," seems to be a current favorite. Thus, most victims of reverse discrimination never find out what happened. In a market where thereare, often 200 applicants for a single job, excellent candidates are often rejected and can thus not conclude from that fact that something might be amiss.
Finally, you cite former EEOC Chairman Powell to the effect that since women and blacks are not displacing whites and men, there can be no reverse discrimination. As I argued above, one would think that the failure of supposedly "result-oriented" programs would ive their supporters some pause. Apparently, however, just as in certain military adventures, failure seems to be merely an argument for more of the same thing that has failed. But there is more to it than that and distinctions must be made. The facts about black employment have
been cited already; it is clearly and preeminently a problem of supply. What figures we have, such as in the field of political science, show that hiring rates for black Ph.D.s far outstrip those for whites.
With women, the supply is increasing and the percentage of those hired as compared with men is more than keeping pace. Again in political science, the percentage of women hired is significantly greater than that of men in recent years, most clearly in the ranks of those who have yet to finish their doctoral dissertations. Scattered indications in the field of history show the same phenomenon. The reason blacks and women are not pushing whites out of faculty positions in dramatic numbers is that there is little new hiring going on. Still, if you compare the chances of a new Ph.D., just entering the job market, you will see that it is good to be black, valuable to be a women, and 'bad luck to be both white .and male.
Goals and timetables are an engine which creates preferential treatment on grounds of race and Sex. There is not much fuel in the engine
-now, due to the economic situation, but to the extent that it works, it works-to produce discrimination. I am willing to concede that the harm goals and timetables do in the form of cynicism about the meanin Yof equal opportunity, selfishness for one's own interest, willingness
-to obtainadvantage through doing injustice rather than suffiering it, far outweigh their actual numerical results. Even so, enough cases of individuals who, through the incaution of potential employers, learned of their victimization and made complaints of reverse discrimination now exist and have been accepted as valid by government officials reluctant enough to do so, that we can safely claim that widespread patterns of reverse discrimination do exist today and that they are caused by Federal requirements to fill "numerical goals and precise
We now must return to the general question. In conceding, and at the same time seeking to justify or extenuate the existence ,of reverse discrimination, you state: "The basic question (is) . whether our Nation is prepared to tolerate some short-range, temporary disadvantages for white males in order to overcome our racist and sexist past." I would interprete this to mean that whereas we believe that all discrimination is equally bad, you do not.
Actually, I would suggest that the question is not whether our nation will tolerate discrimination, but whether it should. I would also suggest that it is not the "Nation" Which tolerates disadvantages to individuals, but the individuals who suffer them. I would suggest that what may be a temporary and short-range disadvantage when viewed from the comfortably Olympian perspective of the "Nation" is a permanent and long-range disadvantage to the individual whose career is closed to him or her because of ing the wrong skin color or sex.
I would suggest that I can see no principled difference between the question you ask and another question which is asked: whether the Nation is willing to tolerate temporary and short-range disadvantages to black citizens in order to calm social turmoil. Different policies, same argument. I cannot br ng myself to believe, and find it hard to comprehend that you believe, that fundamental constitutional right may be, made to yield'to social policies, however' fervently maintained.
But even from the perspective of the Nation I believe you err. The example of India which you yourself cite indicates that group privi-
le es are not, once allotted, a temporary and short-range matter. All that is temporary is their limitation to the original beneficiaries. Special privileges, granted either by custom or law, are tenaciously defended. As I pointed out before, why do you think it is so hard to create nondiscrimination where discrmination was once the rule? It is extremely hazardous to take one's chances on an equal basis with strangers in civil society, and we tend, therefore, to be reluctant to do it. Thus, the desire for special breaks or preferential treatment is perpetual and must always be kept in check.
The belief that discrimination can be administered to the body politic in judicious doses in order to create nondiscrimination is akin to the medical wisdom of curing an alcoholic with whiskey. Discrimination is addictive. To think that its use can be precisely controlled reveals the same naive belief in the perfect wisdom and manipulative abilities of social engineers that has characterized much of the worst (and most disastrous) in our recent foreign and domestic policy.
It should be understood that men and women in this Nation are not mere passive recipients of the decisions of others; they have minds of their own and an ability to reason from principle and precedent. They are also, like most of us, biased in their own favor. Justifying discrimination in favor of those who have been historically wronged may not mean in principle to you discrimination in favor of everyone who claims to have suffered historical wrongs. But it will to those who claim it; that is., it will to almost all of us. Already Italian, Jewish, Japanese, and other groups are beginning, for reasons that seem gooct and sufficient to them, to claim the same "right" to favored treatment that women and blacks seem to them already to have won.
You err as well, I believe, in imagining that one discrimination can compensate for another. Discrimination causes individuals to suffer. If they can be individually compensated, well and good. But compensating their grandchildren at the cost of discriminating against someone else does not compensate them in the slightest. It does replace private discrimination (or at least supplement it) with public, government discrimination, sanctioned by the laws. It also sets up another imaginary debt for the social engineer whose successors will one day have to compensate the grandchild of the one victimized today. at the expense of the grandchild of the one benefitted today--that is, if moral consistency can be expected.
Put it thiis way. We object to discrimination against a class of people because it unjustly hurts individual members of that class. If now we argue that it is all right to discriminate against members of other clacses in order to compensate the first group, we shall have destroyed the basis of our objection to the very discrimination we sought thereby to eliminate. Justifying group discrimination depends on the notion of historical guilt which is to be borne by individuals of the stiematized group. It is a notion far from the spirit of our laws, of our Constitution, and of the Declaration of Independence, which argues that governments are created to assure individuals (not groups) the retention of their inalienable natural rights, one of which is the pursuit of happiness.
Please understand: this is not an abtract or academic argument. Legal principles do have political results. The lesson you wish to teach
is that discrimination against blacks and women is'so bad that any means, even discrimination, is permissible to. eradicate it. The lesson you actually teach though, is that discrimination against others is a permissible tool to remedy or avenge, wrongs-you believe you have suffered.
Two other points. You seek to justify preferential treatment in academic hiring on the ground that considerations were never based on merit in the past Ititu that judging standards of merit in higher education is difficult (a fact that you seem to wish to deny in your comparisons to sheet metal workers and policemen), precisely because the standards of merit in everv academic field change in accordance with advances in -scholarship, wile there is usually not universal agreement at any moment on what the advances are and what the false trails. This fact does not, however, justify putting a rigid fix into the system which would guarantee that hiring would be carried on without regard to merit.
If anything, this flexibility has always been the greatest asset in the quest for knowledge, Einstein's chair at Princeton is today surely occupied by someone whose attainments would suffer if brutally measured by the yardstick of Einstein's genius. Yet we can legitimately hope that someday another Einstein will be able to find his way to Princeton, unimpeded -by its affirmative action requirements.
Likewise, you are of course correct in assuming the existence of bad teachers with many credentials. How this leads to j ustifying the use of race or sex as a criterion in hiring (or in credentialling) is beyond me. All that that can possibly accomplish, as such scholars as Thomas Sowell and Walter E. Williams have pointed out, is to guarantee that there will be more bad teachers, doctors, and lawyers inflicted on minority communities.
As one black professor said in refusing the request of a black student that he be given a B in a course he had earned a D for, on the grounds that he wanted to teach in Watts: "You want to be one more p- poor teacher in Watts. If you'd said the San Fernando Valley, I'd have given you the B." The problem is to increase the role that merit plays in hiring; not to find excuses for dispensing with merit altogether.
Finally, I would like to clarify once more the point on which this dialogue originated. For your belief that there is "ample proof" of widespread discrimination in higher education, you cite general statements from House and Senate Committee reports. W~e share Professor Eugene Rostow's view, imparted to you in a later a copy of which he sent us, of the relative reliability of such general comments.
In fact, widespread programs were instituted without the least sta,tistical knowledge of the actual size of disproportions which were, however, -assumed to -be immense. The fact that such data were simply not -available, has not, to my knowledge, been questioned. Now, as the facts come gradually to light, it has become clear that the disproportions, where they existed -at all, were small. The new Berkeley plan graphically shows the triviality of the disproportions.
But even were the disproportions greater, such general evidence would still not satisfy the conditions justifying imposing quota programs on an individual college. As Congressman James G. O'Hara
remarked in a speech made shortly after the conclusion of hearings on this issue over which he presided:
We have developed over the centuries a few principles related to law enforcement that may be of some value to us .... One of them is the proposition---constitutionally of equal importance with the principle of nondiscrimination-that we don't expect a person suspected of a crime to prove that he has not committed it.
I objected, and still object, to the practice of moving from general assumptions to the affixing of the burden of proof of innocence on an individual person or institution. When the assumptions are not based on much general statistical knowledge, it is all the worse; however, the assumption of individual participation in group guilt is particularly obnoxious.
We shall have to agree to disagree. But I greatly fear that you will be among those most chagrined and disappointed in the final results, if you succeed in prescribing the nostrum of discrimination as an alleged cure for itself. Like the heroin cure for morphine addiction once popular among medical specialists, the discrimination cure for discrimination will undo much of the good work that has been done and will create much fresh evil of its own.
MiRo M. TODOROVICH.
The Myths of Civil Service Merit and Equity'
Three major myths stand in the way of achieving a more representative public, work force-onie in which women and the four principal racial-ethnic minorities attain parity with their ratios in the population: The first myth is that America has already achieved, a representativre bureaucracy and that black, Spanish, Asian and Indian Americans as well as women have proportionate representation in Federal, State and local government jobs. An extension of this myth contends that "reverse discrimination raman, that minorities and women have been getting all the good jobs lately, and there's a need to halt these special preferences for them.
A second is the so-called "merit myth". It, too, has two aspects. First, it is asserted that merit has been the traditional American way for choosing public officials. Second, it is contended that those currently holding government jobs all attained them through fair, scientific procedures. Hence, regardless of whether women and minorities have equitable representation in the bureaucracy, merit is all that should 'count ; for the sake of efficiency and good government, only the brightest and best, should'aget government jobs.
Belief in these erroneous assumptions underlies a third myth-that attempts to achieve a truly representative public work force would be bad for the Nation, the bureaucracy and minorities. Since our public personnel systems are working. well to produce fair rep resentation for women and minorities, any failures are the fault of individual minority members who are unqualified. Thus, it is argued, affirmative action programs are unnecessary and undesirable. Any attempts to increase minority and female representation are denounced as requiring unjustified quotas, reverse -discrimination or worse (e.g., inefficient and un-American procedures).
If America is to make a realistic attempt to achieve a representative or "participatory" bureaucracy, in which each significant minority group (including women) is represented at all levels in a, particular government agency in proportion to its presence in the population of the geographical area serviced by that office, then the three myths which have impeded effective Federal and State affirmative action must be dispelled. Based on my research and experience over the past decade, each of the myths is addressed below. 1This article Is based partly on excerpts from Harry Kranz. "The Participatory Bureaucracy: Women and Minorities In A More Representative Public Service," D.C. Heath & Co., Lexingtoi, Massachusetts (1976). Reprinted with permission. For brevity most of the footnotes have been omitted, but extensive documentation will be found in the book. The views expressed are those of the author and do not represent those of any department or institution with which he is affiliated.
*Harry Kranz Is an Adjunct Professor of Public Management and Labor Relations at the American University and Director, Task Force on Urban Equity, U.S. Department of Labor.
1. AMERICA LACKS A REPRESENTATIVE BUREAUCRACY
The first myth, propagated by those opposed to affirmative action programs, could not be effectively doused until comprehensive data became available after 1973 on the ethnic, racial and sexual composition of Federal, State and local government departments.
Although the Federal Government has been publishing data for a number of years, the U.S. Civil Service Commission is usually more than a year late in issuing its bi-annual compilation on racial-ethnic minorities and its annual report on female employment. It has also changed the categories on women a number of times, making it difficult to discern the progress or lack of progress of Federally-employed women. Although the Federal data analyzed here were for the Fall of 1973, the figures showed no significant change in subsequent years. In the case of State and local governments, complete data on the employment of minorities and women became available for the first time in. 1975, when the Equal Employment Opportunity Commission published national summaries of the EEO-4 reports which all State and local governments were required to file in 1973, following the 1972 amendments to the Civil Rights Act of 1964. In addition, the author obtained detailed EEO reports from several Federal departments and from 25 selected State and local governments throughout the U.S.
Compared to their proportions of the population, the four ethnicracial minorities and women were found to be under-represented in virtually every governmental jurisdiction, particularly in the higher:paying, higher-status positions. As Table 1 indicates, Spanish, Asian and female minorities are under-represented in public employment at every governmental level ;Indians are below parity at all non-Federal leaves, and blacks are under-represented in State and township governments. Townships, States and counties are the least representative public employers; special districts have the best overall record.
TABLE I.-MINORITY EMPLOYMENT PERCENTAGES BY TYPE OF JURISDICTION, 1973
minorities. Black Spanish Asian Indian Women
States .....------ .--------------------. 13.5 10.4 2.2 0.6 0.3 42.1
Counties ---- -------- 16.0 11,.7 3.3 .7 .3 46.9
Cities.. .--------------------------- 22.9 17.9 .4.3 .5 .2 .19.9
Townships .--------------------- -- 3.2 2.7 .4 0' .1 1.4
Special districts -------------------- 25.9 20.5 4.4 .8 .2 45.4
Federal 1----------.--------- ---.1 16.3 3.2 .8 .8 34.0
Private ---------- 1---------------- 16.1 10.8 4.1 .8 .4 36.5
U.S. parity...... ..........---------------------. 18.4 11.O 6. 0 1.0 .4 51.0
Source: Kranz, "The Participatory Bureaucracy," p. 19S.
The Federal Government is not the ideal employer for every minority group. Women and Spanish employees do better in private employment, and Asianjs do as well there as in the Federal Government. Comparin the five non-Federal jurisdictions with the Federal Governiment, blacks are etter-represented in cities and special districts: Spanish are better-represented in cities, counties, and special districts; Asians are as well-represented in special districts; and women have far greater proportionate representition in States. counties, and. speciral districts than they do in the Federal Government. Only American. Indians, half of whom are employed in a single Federal agency, have
better overall representation in the Federal Government. (More than 10,000 of the 20,000 Indians employed by the Federal Government work for the Department of Interior, in which the Bureau of Indian Affairs is located. Without this single concentration, Federal employment of Indians would drop to the 0.4 percent parity level.) Once beyond the overall averages, however, the pattern of widespread under-representation of minorities at all levels emerges. Even when the Federal, State and local government agencies with the "best" overall records of employing minorities were examined, it was found that minorities were heavily concentrated in a relatively few occupations in a few departments, agencies or locations and were disproportionately excluded from the non-traditional jobs, the prestigious agencies, and the better-paid, higher-status, policy-making roles.
Throughout the analysis, no matter what the jurisdiction, women were, with rare exceptions, crowded in clerical and para-professional occupations, while blacks were concentrated in service/maintenance work and para-professional occupations. Women and blacks, the two largest minorities, were least likely to be officials, administrators or professionals, and most likely to be in the lowest-paying occupational classes. Proportionately, the Spanish appeared to be even more heavily excluded from significant public employment than blacks, while Asians appeared to suffer the least discrimination. In no jurisdiction, however, were the racial-ethnic, minorities or women evenly distributed through all occupational categories; they were under-represented in all categories except the low-paying. Table 2 summarizes the gross under-representation of every minority group in the top administrator positions of each level of government. Even private employment exceeds the Federal and township governments in employment of all five minorities as top officials and managers.
TABLE 2.-PERCENT MINORITIES AND WOMEN IN OFFICIAL/ADMINISTRATOR JOB CATEGORY FOR VARIOUS GOVERNMENTAL JURISDICTIONS, 1973
White minority Black Spanish Asian Indian Women
Federal................ ---------------- 96.3 3.7 2.5 0.6 0. 4 0. 3 3.7
States--- ............------------- 94.0 6.0 3.9 1.1 .3 .3 19.7
Counties .......---------------. 93.1 6.9 -4.4 1.6 .6 2 27. 9
Cities-- -----...... --..... 92.8 7.2 5.2 1.6 .2 .1 9.2
Townships ....-------..... 98.9 1.1 1. 0 .1 0 0 12.7
Special districts__...... 89.1 10.9 S.3 1.7 .4 .3 28.6
Private ---------------- 95.2 4.8 2.:7 1.4 .4 .3 12.8
U.S. parity ..........-------------. 81.6 18.4 11.0 6.0 1.0 .4 51.0
Source: Kranz, "The Participatory Bureaucracy,".p. 196.
In examining the various governmental activities, minorities were found to be heavily compressed into hospital, health, welfare a d employment security fields, and; the ethnic-racial minorities were also over-represented in sanitation and sewage work. They were least like!y to be found in fire or police protection, natural resources or financhl administration (except as clerical workers).
Perhaps the best indicator of the under-utilization of minority tali et and the continuing discrimination against them at all governnental levels is the median annual salaries they receive. (If minorities had achieved parity at all levels, occupations and agencies, there would be no wage "gap" between them and white males).
Aithoub ri public employees have higher median earnings than those in the private, sector, and although the salary differentials in public employment, are smaller than those in private employment, the earnings gaps in the public sector between men and women, and between whites and the four racial-ethnic minorities are still staggeringly high (Table 3).
TABLE 3.--ANNUAL EARNINGS IN PUBLIC EMPLOYMENT BY RACE AND SEX, FULL TIME, 1973
Males Females Dollar gap
Whites----------------------------------------------------- $12, 112 8,265 31. 0
Blacks ----------------------------------------------------- 8, 830 7, 185 18. 2
All-------------------------------------------------------- 11, 742 8,075 31. 3
Percent of black/white gap -------------------------------------- 27. 1 13. 1------Source: Kranz, "The Participatory Bureaucracy," p. 197.
As Table 4 indicates, women earn less than men in all types of governmental jurisdictions. The dollar-gap-more than $5,000-is greater for women employed by the Federal Government, although the percentage difference is even higher in special districts (41 percent) than in the Federal Government (35.7 percent). In all other governmental jurisdictions, women earn about one-fourth less than men, with the smallest differential in county governments, which also employ the highest percentage of women (47 percent of county employees).
TABLE 4.:-MALE/FEMALE ANNUAL EARNINGS, BY TYPE OF GOVERNMENT, 1973
-Male Female In dollars percentage
Federal---------------------------------------- $14, 369 $9, 287 5,082 35.4
States ----------------------------------------- 9, 510 7,120 2,390 25.2
Counies---------------------,743 6,816 1,927 22.0
Cites---------------------------9, 897 7,307 2, 590 26.2
Townships-------------------------------------- 9666 6,960 2 ,706 28.0
Special districts---------------------------------- 10, 415 6,146 4,P269 41.0
All public employment----------------------------- 11, 742 8,075 3, 667 31.3
Source: Kranz: "The Participatory Bureaucracy," p. 191.
For the four racial-ethnic minorities, the salary gap at every level of government is narrower, compared to whites, than it is for wom en, compared to men, but the gap nevertheless persists. (Table 5). In each type of jurisdiction, minorities earn less than whites, except for Asians employed in four non-Federal governments (where they are heavily concentrated in professional occupations) and Indians in townships. and special districts (where the number of Indians employed is so low that the salary figures are not too significant.)I
TABLE 5.-MEDIAN ANNUAL SALARIES FOR FOUR MINORITIES, BY TYPE OF GOVERNMENT, 1973
States Counties Cities Towns ditrct Federal Whites------------------------- $8, 545 7,808 9,810 9257 9,010 12,056
Blacks--------------------------- 6, 779 6,950 8,080 8,734 6,269 9,271
Spanish--------------------------7,071 7,9 7,748 8,655 7,026 9,995
Asians --------------------------10946 10614 11,222 8, 750 10,660 11,985
Indians-------------------------- 7,804 7,384 8,320 10, 522 9,268 9,574
All employees---------------------- 8,256 7,675 9,327 9,243 8,404 11#864
Source: Kranz, "The Participatory Bureaucracy," p. 198.