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Newsgroups: bit.listserv.politics
Date:         Tue, 12 Jan 1993 13:12:00 EST
From:         "Peter J. Schledorn" <UNCPJS@UNC.OIT.UNC.EDU>
Subject: Re: Apples, oranges and quotas
Comments: To: Forum for the Discussion of Politics <POLITICS@UCF1VM.CC.UCF.EDU>

> Whew. The last word for Peter. Almost.
>
> >However, civil rights laws (notably the Civil Rights Act of 1964) do
> >permit the use of some or all of these characteristics as PART of the
> >decision-making process, especially when they are used as part of a
> >deliberate program of desegregation.  This provision was inserted into
> >the 1964 act as a means of maximizing the decision-making power of
> >businesses and other institutions covered by the act.  On the whole,
> >it's a good thing that this provision was included, because otherwise
> >the Civil Rights Act would most likely have been interpreted to bar
> >veterans preferences in civil service hiring, alumni preferences in
> >college and university enrollment, and other such programs that most
> >of us take for granted (because the preferences generally go to white
> >males, he said wickedly :-).

(Note from Peter: in fact, upon rereading the Act I was reminded that
some of these programs were specifically defined as non-discriminatory
under the terms of the law)

> I don't think there is any explicit provision to that effect inserted
> into the 1964 act. If I'm wrong, please tell me what provision it is.

It's not so much an explicit permission as the conspicuous absence of a
prohibition.  Section 703(j) starts : "Nothing contained in this title
shall be interpreted to require any employer, employment agency, labor
organization or joint labor-management committee subject to this title
to grant preferential treatment to any individual or to any group . .
.".  In one of the early cases the Supreme Court ruled, citing the
legislative history, that if the bill had been intended to outlaw all
sorts of preferential treatment for minorities they would have written
"permit" for "require."  So AA programs that do involve preferential
treatment of otherwise qualified minorities (most don't, in my
experience) do not violate the law.

> I do believe, though, that something close to what Peter says
> can be inferred from the 1964 act.
>
> I understand the act this way:
>
> Using race (or any of the other named characteristics) as a criterion
> is prohibited WHEN THE USE REFLECTS A PREJUDICE OR BIGOTRY.
>
> Which is to say, not when it serves some legitimate goal. (Whether
> a goal is "legitimate" is really just a question of whether or not
> it is a mere mask for racism or other bigotry; the courts will not
> really decide whether a goal of a certain business or university
> or what have you is "good" or "well planned.")

Yes.  The terminology that the Civil Rights Act uses is "bona fide
qualification," keeping in mind that for many years (and probably still
in some places) qualifications have been written so as to exclude blacks
or women or other groups.  They also take into account the "intent to
discriminate," which may be used to argue that actions which seem to be
legal at first glance may actually be violations.

I think that it is accepted that employers have a fairly free hand in
deciding who to pick from among those who meet the justifiable
qualifications, as long as those choices do not in themselves constitute
discrimination.  There is no legal requirement to pick the "best"
qualified candidate, just _a_ qualified candidate.  But, if all the
candidates you pick are white and male, you may have some explaining to
do.  And, there is no legal prohibition against including race or sex
among the list of qualifications, as long as it is done to meet a
well-defined and justifiable goal and meets the other requirements I
mentioned in the original post.

  (examples omitted)
> There are many, many other examples, of course.
> Affirmative action is one of them. Its goal is coherent and
> distinct from bigotry. Peter provides evidence that Affirmative
> Action also does tend to promote its stated goals. But even if
> it didn't, that would only mean it is a bad policy, not that it
> is illegal under the Civil Rights Act of 1964.
>
> So I believe, at any rate.

I agree.

Best,
Peter

> Jamie