Kull, Andrew. The Color-Blind Constitution. Cambridge:
Harvard University Press, 1992: 200-1

The most direct means available to government to foster a greater "equality of results" among racial or ethnic groups is to allocate economic benefits to members of those groups that are relatively less successful. Post-1968 civil rights policy has fostered an array of preferences, known collectively as "affirmative action," designed to enhance the relative economic position of blacks as a group: preferential treatment in hiring, in university admissions, in the awarding of government contracts and licenses. Originally justified in remedial terms, as a rough justice corrective either for persistent discrimination or for the lingering effects of past discrimination, these preferences came increasingly to be defended in terms that imply a system of proportional economic entitlements for racial and ethnic groups.

Policies of economic preference have been the initiative, most notably, of administrative agencies charged with the enforcement of laws and regulations imposing a rule of nondiscrimination. The initiative of the civil rights agencies would have been substantially frustrated had the courts either enforced the Civil Rights Act of 1964 as written or interpreted the Fourteenth Amendment to prohibit the government's use of racial classifications to allocate economic benefits. The judiciary's essential contribution to affirmative action was that it did neither.

"Affirmative action," like "desegregation," acquired a new meaning in the late 1960s by the redefinition of a preexisting legal requirement. Beginning with a wartime order of Franklin Roosevelt affecting defense contractors, a series of executive orders required employers doing business with the federal government to undertake not to discriminate against any worker because of race, creed, color, or national origin. By an order of President Kennedy signed in March 1961, the pledge of nondiscrimination already required to appear in each contract subject to the order-a statement that "the contractor agrees not to discriminate against any employee or applicant for employment because of race, religion, color, or national origin"-was supplemented by a clause restating the prohibition in positive terms: "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." As late as 1968, the published regulations of the secretary of labor still contained no suggestion that the requirement of "affirmative action" imposed any obligation beyond good-faith adherence to nondiscriminatory practices. Beginning in 1967, however, the Department of Labor had begun to experiment with more direct methods of increasing black employment. The celebrated "Philadelphia Plan," justified as a drastic remedy for obdurate racial discrimination in the building trades, imposed proportional hiring quotas on Philadelphia's construction industry; the plan had been "hammered out," as Hugh Davis Graham remarks, "while Detroit burned from the ghetto rioting." New Labor Department regulations, published in May 1968, suggested that "affirmative action" would henceforth be interpreted to require hiring by race wherever protected groups were not proportionally represented. Larger contractors were obliged to develop written "affirmative action compliance programs," setting forth "specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including, when there are deficiencies, the development of specific goals and time tables for the prompt achievement of full and equal employment opportunity." The evident implications of this language were bluntly spelled out in November 1969, when a further set of regulations, known as "Order No. 4," stated flatly: "The rate of minority applicants recruited should approximate or equal the rate of minorities to the applicant population in each location." These quota provisions, revealed in Congress before the official publication of the order, caused some brief controversy; but the order eventually issued by the Labor Department in February 1970 made no significant compromise. "Revised Order No. 4" described the "affirmative action program" required of government contractors as "a set of specific and result-oriented procedures," warning that "[p]rocedures without effort to make them work are meaningless; and effort, undirected by specific and meaningful procedures, is inadequate":
An acceptable affirmative action program must include an analysis of areas within which the contractor is deficient in the utilization of minority groups and, further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies, and thus to increase materially the utilization of minorities at all levels and in all segments of his work force where deficiencies exist.
The references to "deficiency" and "utilization" expressed, in bureaucratic jargon, the inescapable logic of the new "equality of results."

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Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu