The Affirmative Action Hoax — Another View

Thomas Jackson’s review of Steven Farron’s The Affirmative Action Hoax helpfully summarizes many of its salient contentions but Mr. Jackson fails to point out some of Prof. Farron’s questionable interpretations and omissions. According to Prof. Farron, affirmative action (AA) was intended to be a quota-like program from the beginning. Thus, he describes heads of bureaucracies during the Kennedy administration scrambling to increase the number of blacks employees. Quota-hiring did become widespread, and it is easy to conclude that later AA practices were implicit from the days of John Kennedy, but things developed somewhat differently.

By 1960, most Americans accepted the view that blacks (10.5 percent of the American population) and whites (about 88.57 percent) were intellectually equal. The chief reasons blacks had not achieved at the white level were segregation and racism. Segregation existed mainly, but not exclusively, in the South, where most blacks still lived. The assumption was that once the bars of legalized segregation were removed, black achievement would rise to the white level in all areas.

Thus, the mantra of the civil rights movement remained unchanged: treat people without regard to race, creed, or color. In his special message on civil rights of Feb. 28, 1963, President Kennedy proclaimed, “Our Constitution is color blind.” On Aug. 20, 1963, he added, “I don’t think quotas are a good idea. I think it is a mistake to assign quotas on the basis of religion, or race, or color, or nationality. I think we would get into a good deal of trouble.”

Even Kennedy’s Executive Order 10925, which first uses the phrase, says “affirmative actions” will be taken “to insure that applicants are employed, and that employees are treated without regard to their race, creed, color, or national origin.” It was typical that during the 1963 March on Washington, Martin Luther King, Jr. spoke of his children being judged by the content of their character, not by color. This was the reverse of today’s AA.

In the early 1960s, a few companies did hire blacks by quota, mainly to stop black boycotts. Examples were Sealtest in New York, and Pepsi, Esso, and Sun Oil in Philadelphia. When Congress passed the Civil Rights Act of 1964, its intent was to ban all race-conscious hiring, and the law’s backers made clear that racial imbalance in a workforce was not to be corrected through discrimination. Liberal Democrat Senator Hubert Humphrey assured the bill’s opponents, “There is nothing in it that will give any power to the Commission [Equal Employment Opportunity Commission] or to any court to require hiring, firing, or promotion of employees to meet a racial ‘quota’ or to achieve racial balance . . . In fact, the very opposite is true . . . Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion.” Other supporters spoke in similar terms.

Republican Senator Everett Dirksen of Illinois likewise changed the bill’s wording to ban only “intentional” discrimination. Republican Senator John Tower of Texas revised it so that businesses could continue using job tests, like the popular General Aptitude Test Battery, even though blacks and whites did not get equal scores.

Despite these efforts, the Civil Rights Act would soon be turned upside down. This is not the place to describe the many lawsuits and threats of lawsuits that forced quotas on the nation. My point, in contrast to Prof. Farron’s view, is that most civil rights leaders in the early 1960s and certainly the legislators who voted for the Civil Rights Act of 1964 wanted to achieve equal opportunity by removing the bars of segregation and overt racism. They believed quotas would not be necessary because proportional outcomes would flow naturally.

After the 1964 act, the EEOC was bombarded with allegations of discrimination. Activists inside the commission did not want to investigate each case, because they were less interested in intent to discriminate than in outcomes. They assumed that even if blacks were not victims of intentional discrimination today, they were victims of past discrimination (segregated schools, poverty, etc.).

The pressure mounted for more jobs and promotions without delay. When protests and boycotts spread to the North, and when Black Power and Black Nationalism replaced the demand for civil rights, the movement changed. Non-violent, integrationist groups like the Congress of Racial Equality and the Student Non-Violent Coordinating Committee expelled their white members, abandoned non-violence, and demanded change “by any means necessary.” “Civil rights” now meant immediate hiring, immediate housing, and immediate promotions, with the threat of violence if that did not happen.

By the late 1960s the civil rights leadership had generally rejected equal opportunity and integration, in favor of the Black Power agenda. By 1968, the government under Lyndon Johnson began to yield to these demands, and initiated a quota plan for hiring blacks in the building trades of Philadelphia. However, in November 1968, Democrat Hubert Humphrey lost to Richard Nixon, and lame-duck President Johnson canceled the Philadelphia Plan. Quotas appeared to have come to an end with the election of a Republican.

Contrary to expectation, Nixon resurrected the Philadelphia Plan. When Democrats balked (white unions had helped elect many Democrats), the administration joined forces with the NAACP to pressure Congress, and the Philadelphia Plan passed by a close vote in the House. Quotas had been legalized. President Nixon then instituted quotas throughout the federal government, and later added women and other pet minorities.

There had been efforts to impose quotas prior to Nixon’s “surrender.” Some people who worked for the EEOC, mandated to enforce the 1964 Civil Rights Act, tried to administer the law as if it had banned testing rather than quotas. Leading this campaign was Alfred Blumrosen, who admitted that his “creative” interpretation of the act was contrary to the law’s “plain meaning.” He quickly persuaded the EEOC to send out questionnaires to companies to determine the racial composition of their work forces. If there were significant discrepancies between the percentage of blacks (and other minorities and women) and the general population, this was presumptive evidence of discrimination. No “intent” was necessary. The EEOC could sue to get preferential hiring for “under-utilized blacks,” and later for other minorities and women.

Even if a company had not discriminated, proving innocence in court was costly. Sears fought the EEOC and won, but victory was so expensive it made more sense to compromise. Business, university, and local government leaders settled out of court with the EEOC and agreed to hire and promote by quota. The losers in these proceedings were better-qualified whites, but what did the EEOC care about white policemen or firemen, or whites in general? By 1984, two members of the Civil Rights Commission, Mary Frances Berry and Blandina Ramirez could issue a joint statement proclaiming that the civil rights laws were not passed to protect white men, and did not apply to them. Later, when it was clear blacks were still unable to pass examinations at the same rates as whites, Eleanor Holmes Norton, head of the EEOC under President Carter, did everything to restrict or abolish testing — again in violation of the clear intent of the Civil Rights Act.

Because aptitude tests were so useful in choosing employees, the Reagan administration resorted to “race norming” so as to be able to continue using them despite the disparity in scores. Thus, a raw score of 35 might result in percentile scores of 35 for a white, 45 for a Hispanic, and 50 for a black. The employer would see only the percentile scores and, naturally, hire the black or Hispanic over the white. When this practice became known in the early 1990s it caused an uproar, and race-norming was banned. Prof. Farron argues that if employers must hire by quota, they might as well use race-normed aptitude tests, and at least get the best-qualified candidates of each race. I see it not only as unacceptable discrimination, but a violation of the Civil Rights Act of 1964.

Employers also found they were barred from inquiring if an applicant had a high school diploma, had failed college courses, or had a criminal background. Tests of this kind were “discriminatory” because they were more likely to eliminate blacks than whites. No test that had a “disparate impact,” as it was called, was permitted unless it was very closely related to the job. It was often impossible to devise tests close enough to the job to satisfy the EEOC, so testing declined, but more blacks, women, and pet minorities got jobs.

To an astonishingly cynical extent, companies, governments, and universities have been forced in the name of “non-discrimination” to discriminate against whites and men. The courts have slowly backed away from some of the most egregious departures from the clear intent of the law, and a few whites have begun to win damages for the discrimination they have suffered. Prof. Farron is entirely right to denounce AA for the sham and scourge that it is, but its development was not entirely as he describes.