Kull, Andrew. The Color Blind Constitution . Cambridge: Harvard University Press, 1992: 202-3:

It might be questioned whether the government may Constitutionally oblige those who do business with it to adopt racial quotas in hiring more immediate difficulty, at the time of the Labor Department's shift toward affirmative action, was that the government was now compelling employers to do what the 1964 Civil Rights Act had made illegal. Title VII of the Act made it an unlawful employment practice for an employer
(1) to fail or refuse to hire . . . any individual . . . because of such individual's race, color, religion, sex or national origin; or
(2) to . . . classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities . because of such individual's race, color, religion, sex, or national origin.
The force of this language to prohibit preferential or quota hiring, designed to correct imbalance or "underutilization," was fully understood in 1964. Responding to charges by southern senators that Title VII would require preferential treatment and "racial balancing" by employers, proponents insisted that the law would prohibit race altogether as a factor in employment and promotion decisions. An "Interpretive Memorandum of Title VII," presented to the Senate in April by the floor managers of the bill Joseph Clark of Pennsylvania and Clifford Case of New Jersey, assured conservative opponents:
"There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual."
The "Dirksen-Mansfield substitute," negotiated during the extended Senate debate and introduced in early June, included a clarifying amendment that put the Clark Case interpretation into the text of the law:
"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 the race . . . 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 . . . employed by any employer . . .in comparison with the total number or percentage of persons of such race . . . in any community . . . or in the available work force in any community...."
The policy of the U.S. Department of Labor by 1969 was thus to require what Congress had prohibited scarcely five years before. In those five years, both the outlook and the agenda for black equality had changed almost beyond recognition. When the issue came before the courts, in a suit by contractors challenging the Philadelphia Plan, it met a widespread judicial conviction that policies designed to address the new racial cases should not be hindered by laws written before the present crisis was understood Congress, it was said, could not have intended the consequences that would follow were the act to be enforced as written: in the case of the Philadelphia Plan, "to freeze the status quo and to foreclose remedial action under other authority [that is, the executive order] designed to overcome existing evils." The Philadelphia Plan was held not to violate the Civil Rights Act of 1964, and the Supreme Court declined to hear the case.
Contemporaneous developments at the Equal Employment Opportunities Commission contributed even more importantly to the historic shift in the underlying premises guiding civil rights policy. When the Labor Department moved to encourage hiring quotas, the government acted by fiat-scarcely bothering, after the eventual success of the Philadelphia Plan, to justify its requirements as a remedy for identifiable discrimination. At the EEOC, by contrast, analogous policies were advanced by successfully redefining the concept of discrimination itself. The political consequences have been profound: the revised definition both altered the essence of the wrong condemned as "discrimination" and reallocated the central entitlement of civil rights (that of protection against "discrimination") from the individual to the racial or ethnic group.
The object of the professional staff of the EEOC was to make Title VII of the Civil Rights Act an effective vehicle for increasing black employment. A statute prohibiting employment discrimination, particularly when it embodies the compromises exacted by the opponents of Title VII, is not the natural means to that end. Discrimination, where it exists, is often difficult to prove. A more fundamental difficulty is the fact that black applicants for employment are disproportionately excluded by what were traditionally viewed as nondiscriminatory selection criteria, such as aptitude tests.

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu