Race and gender quotas, long a festering sore, have become a hot political issue. Republican Presidential contenders Bob Dole and Phil Gramm have promised their abolition. The California Civil Rights Initiative, designed to abolish that state's quotas, seems destined for the November, 1996, ballot. On July 20, the Regents of the University of California voted to end race-based employment and admissions policies, and California Governor Pete Wilson, another Presidential contender, has filed a lawsuit challenging the constitutionality of his state's quota policies.
A July, 1995, Gallup Poll shows that the public is fed up with quotas. Americans reject employment quotas by a margin of 63% to 35% and college-admission quotas by 57% to 39%. Favoring a less qualified "protected minority" over a white applicant is rejected by 84% of the population. Even blacks disapprove of this policy, with 68% opposed and only 22% in favor.
Quotas have many disturbing aspects, so it is not surprising that the public rejects them. Preferences are inconsistent with our colorblind Constitution, and they are strictly illegal under the 1964 Civil Rights Act, which is redundant with prohibitions against quotas.
Quotas are the work of Equal Employment Opportunity Commission interpretive regulations--themselves illegal under the Civil Rights Act--as well as federal judiciary decisions. These decisions, which at the time appeared to be limited rulings to open opportunities for minorities, had far larger implications.
BIG PICTURE. For example, in the late 1960s, EEOC compliance officer Alfred W. Blumrosen set aside the statutory focus on intentional discriminatory acts against individuals and redefined discrimination in terms of statistical underrepresentation of groups in the workforce. Under this approach, employers faced discrimination liability if they did not hire minorities in proportion to their percentage of the surrounding population.
This deviation from the Civil Rights Act reached the Supreme Court in 1971 in the case of Griggs v. Duke Power. Chief Justice Warren Burger saw the case in terms of opportunity blocked by "credentialism." In its decision, the Court deferred to the EEOC as the implementing agency and accepted what came to be known as the "disparate impact" standard, which defines as discriminatory any policy or job requirement that does not produce race and gender proportionality.
The disparate-impact ruling made quotas mandatory in order to avoid discrimination lawsuits, though this was not realized at the time. It was not until 1979, in United Steelworkers of America v. Weber, which upheld racial quotas, that Burger confronted the quota implications of his Griggs opinion. Alarmed, the Chief Justice dissented from the Weber decision, accusing the majority of Orwellian reasoning that ignored "statutory language, uncontradicted legislative history, and uniform precedent."
CASTE SOCIETY? Neither the court nor legal commentators realized at the time that Griggs destroyed equality before the law. However, once racial imbalance became proof of discrimination, white males adversely affected by quotas were deprived of the protection against reverse discrimination that the Civil Rights Act provided. It is impossible to have a civil rights policy that requires remedies for racial imbalance and simultaneously recognize the adverse impact of the remedy on white males.
Over the past two decades, we have inadvertently created a caste society in which there are two classes of citizens: those who are protected by civil-rights laws and white males, who are not. Equal standing under the law is giving way to a status-based legal system akin to feudalism, in which legal rights depend on race and gender.
The emerging status-based legal system has dire implications for the market allocation of resources. Quotas have already emerged in the mortgage market (see this column Jan. 24, 1994, Oct. 3, 1994, May 22, 1995), and some federal-employment policies explicitly prohibit hiring on the basis of merit. Catherine Crier reported on ABC-TV's 20/20 (Nov. 18, 1994) that job postings for U.S. Forest Service fire-fighting positions specified that "only unqualified applicants will be considered," and the Federal Aviation Administration, the agency in charge of air-traffic safety, has recently provided its supervisors with guidelines that state: "The merit promotion processneed not be utilized if it will not promote your diversity goals."
The exclusion of merit is an ironic outcome of a movement whose goal was inclusion. It bodes ill for the U.S. as a competitor in the emerging era of global capitalism.