THE 1991 CIVIL RIGHTS ACT: WHO WINS, WHO LOSES?

Santa Barbara Channel City Club

January 9, 1992

William B. Allen

Thank you very much. Thank you. I am delighted to be with you and I am grateful for my colleague and friend, Ted Smyth, for introducing me to the Channel City Club. I have already heard a good deal about you and I’m impressed with your accomplishments and, above all, as Bill Colson was telling me here at the table, how you managed to pull off this smooth union five or six years ago and bring the men and women together.

I was in the Rotary Club about that time, just a little longer maybe, when the Supreme Court of the United States ordered us to join hands with the women. They did so, of course, throughout the country and in Claremont, where I was a Rotarian, but it wasn’t perhaps so smooth all the way. It was a shotgun wedding, if anything. You have obviously set quite a different example for us and I’m delighted to join you this afternoon to talk about the New Civil Rights Act.

I want also to add that there are a couple of other of our people here who came up this afternoon. They might just stand—they’re sitting over here in the back, I believe. Go ahead, let them recognize you, it won’t hurt a bit. The only reason for doing that is not to correct my host, but to let you see how I have to be watched every minute of the day.

I’m trying very hard to stay out of trouble these days—I’m not wandering onto any reservations, and not kidnapping any young girls, or otherwise causing difficulties for people around the country—just trying to carry a simple message, namely, that there are things going on in our country that we need to be concerned about. It’s important that those who have the responsibility for bringing these things about should come back to you from time to time and tell you what they’ve done. There is perhaps no area in which that is more important than the Civil Rights Act, which was passed early this past November and then signed into law by George Bush on the 21st of November.

This was a highly controversial Act, it has been pending ever since a series of Supreme Court cases were decided in 1989, leading to rather loud demands for action to overturn the consequences of those court decisions. That led to a very difficult year in 1990, which eventuated in Congress passing an act, which President Bush declared to be a quota bill and promptly vetoed. On the first day of the next session in 1991, Senator Kennedy returned and new legislation was introduced. It produced a great political struggle as the bill before had done and eventually was dropped while a compromise was brought forth by Senator Danforth of Missouri, in about June of this past year, which eventually formed the body of a new Civil Rights law.

Now, I know Americans can get pretty blasé. If you’ve lived in the country at least since 1964, you’ve become aware as the years have passed that there hardly been a single year in which there hasn’t been a new Civil Rights Bill passed. You might begin to wonder whether this is something to pay attention to, or just another growth industry. The fact of the matter is, most people have lost all count; they have no idea what so many of these bills are or why you always need a new one. Why won’t one do the job? Why didn’t 1964 do it, or if not ‘64, why not 1965, with the Voting Rights Act, or why not 1967, and so on, to the end?

Well, it’s important for us to realize that we’re in the continuing grip of a political struggle and a moral dilemma which we have not resolved in this country. It’s as simple as that. It’s not that the Acts are being passed as mere gestures to lobbies or special interests, it’s the fact that those who represent us simply have not yet brought into a single, coherent expression what it is we aim at, in this country, in the form of civil rights. They therefore haven’t provided you and me with a rationale by which we could persuade ourselves that we had resolved this problem once and for all. We’re now set on the course of progress and we can anticipate a happy future of Americans coming once again to revel in their common citizenship, laboring mightily for a future which says of our past, not that we forget its horrors, but that we are proud of our ability to have overcome them. We will probably have yet new civil rights Acts in years to come, because we’ve not accomplished that thus far.

People often say to us that we have to relax about these questions and settle back and let whatever happens happen to us, that we need to have faith in the system. They remind me of the character Ronald Reagan used to talk about so often, who had fallen off a cliff, but managed luckily to grab the branch of a tree growing out of the sheer wall of the cliff and there, suspended 300 feet above the canyon floor, wondered what to do and looked up and said, “Lord, if there’s anybody up there, please give me faith, tell me what to do.” He heard a voice return to him saying encouragingly and soothingly, “Have faith, let go.” The chap looked down, looked up again and asked, “Is there anybody else up there?”

We might get that feeling as we try to deal with this question of whether to simply have faith in the laws that keep rolling over us or whether we might begin to suspect that that voice that keeps telling us to have faith is the voice of the guy who pushed us off the cliff in the first place.

Well, that’s why I want to bring you the news, therefore, about the new Civil Rights Act, and who wins and who loses. By the very shape of the title you know I mean to suggest that I have good news for you and I have bad news for you. So, I’m going to give you the good news first. You’re in a good mood, I’m in a good mood, so let’s get that out of the way and if we’re lucky, I’ll run out of time and we won’t have to talk about the bad news.

Let me say this by way of preface. One of the things that I think is so vitally important, and that I encourage citizens to do more frequently than they do today, is that we begin to demand of those who write these laws that they come back and discuss them with us intelligently. Tell us what’s in them. The reality is, I don’t think you will find anyone coming back to you to tell you exactly what’s contained in any of the number of laws that gets passed in Washington or in Sacramento. That means we’re missing a loop in the process of government in the United States. Those who have taken on these responsibilities in the past seem to imagine that you and I can feed off mere slogans, as if we could live from the morning dew and don’t need any real meat to bite into. But I happen to think that citizens in a free republic require substance to bite into and have a right to be informed of what’s expected of them and what it is, therefore, they might anticipate in determining what their course of conduct will be. This is especially important for business people, because business people are among those most affected by the new Civil Rights Act.

But, before I come to business people and where they stand in this, I want to talk about who wins, and what’s the good news in the Civil Rights Act of 1991. As you will note, the Civil Rights Act addressed a range of questions and not just one question. The questions, however, primarily deal with issues of employment; how people are selected; how they are treated once they are retained on a contract, whether they’re subject to harassment, and various other elements that are constantly subject to litigation in our society.

The greatest clamors for the new civil rights law came from those who maintained that the Supreme Court had become retrograde—it was marching backwards, it was not keeping faith with the promises of the civil rights revolution and it was undermining the progress of minorities and women in the United States. So you might expect that those who win are minorities and women. The law was expressly passed for their advantage and all of those who testified about it in the Congress of the United States made clear that this was their intention, to bring stronger protections to minorities and women, establishing them within the context of American society on a footing, if not an advantage, at least of equality, as they sought jobs, education, and other opportunities for themselves.

It is more difficult, however, for us simply to say minorities and women are winners, because those are just abstractions, are they not? They are not the kinds of terms that put flesh and blood on concepts, allowing us then to apply the concepts in the lives that we live. We need to ask who are the kinds of people that are involved and what are the kinds of situations in which they may be seen as winners or losers?

That goes back to 1987, when a case originating north of here went to the United States Supreme Court. It involved a gentleman by the name of Paul Johnson and a woman by the name of Diane Joyce. The case was called, Johnson vs. Transportation Agency in Santa Clara County. It was decided in March of 1987. Mr. Johnson had lost his job as a road dispatcher from the county transportation agency. He lost it to Ms Joyce, who was hired over him. Mr. Johnson thought that the decision was unfair because he had far greater experience in the work needed to prepare one for a road dispatcher than did Ms Joyce and, in addition, he scored better than did she on the examinations used to screen candidates for the position. He therefore went to court to demand that we recognize this society as the meritocracy it should be and that the decision to hire her over him be regarded as unfair discrimination.

The county hiring agency responded in court that they hired Ms Joyce over Mr. Johnson because they had an affirmative action plan and they wished to have women. She was a woman and, although she was less qualified than he, that was what they wanted to do. The Supreme Court of the United States listened to Mr. Johnson’s plea and said to him, yes, it is true, you have been put at a disadvantage by reason of your gender. Nevertheless, the existence of an affirmative action plan is reason enough to put you at that disadvantage. Therefore, it is appropriate that Ms Joyce should have the job.

In the course of writing his opinion, Justice William 0. Brennan, who then sat on the Court, explained the law that Mr. Johnson was subject to. He explained that you can, of course, file a charge of discrimination. And if you could prove it, you would win the case, but you have to prove it. You the plaintiff, Johnson, must come into court; you must demonstrate that this affirmative action plan is just a pretext, just a show, and that these people are making a decision which is basically unfair, before we will uphold your rights in this case. You have not done that. The affirmative action plan is, of itself, regarded as presumptive evidence that the county has acted correctly.

That was 1987 and that laid down a rule of law called “burden of proof,” which says that when a plaintiff files a suit it is up to the plaintiff to prove his case. The defendant is presumed innocent. This is true in discrimination law as it is true in criminal law.

Well, that began a period that became extremely confused by 1989, when a case was decided from Alaska called, Wards Cove vs. Atonio. In that case a group of minority workers from the packing plant, filed a suit not very unlike Paul Johnson’s in which they said they were not being given certain kinds of jobs and other people, mainly white, were being given those jobs, and they thought it was unfair.

Justice White wrote the opinion for the Court in the Ward’s Cove case and he said, it may be true there’s discrimination, but mere statistics cannot prove it. You would actually have to accept the burden of proof as a plaintiff in order to demonstrate that there is discrimination. You, like Paul Johnson, must come into court, present your evidence, show that people making hiring decisions intend to discriminate against you, and then you can win the case.

That case, when it was completed, left the status of the law with respect to burdens of proof, in exactly the condition the status of the law had been left in, in the case of Paul Johnson. However, that was an unacceptable condition for many people. For those who argued that it is unfair to minorities and women in particular to ask them to accept the burden of proof from start to finish in their case. They argued, instead, that what should happen is that once they show the statistical disparity, the suggestion of discrimination, the burden of proof should be shifted to the shoulders of the defendants, the employer.

The activity following that conclusion is what generated the new Civil Rights Act. Therefore, the first winner, under the new Civil Rights Act, is anyone who can make a credible showing of a statistical disparity with regard, either to general population figures or relevant work?force figures in a court of law, and who by doing so will therefore displace the burden of proof from his own shoulders onto the shoulders of the defendant.

That means there are many more people who will be in a position to bring charges of discrimination and prevail in court today, than there were before November 21, 1991. All individuals in that particular position, if they are minorities or women, have become winners under the new Civil Rights Act.

We don’t know how this is going to work out in practice. November is not a long time ago. There are cases only now being filed and they won’t be decided before the next year and a half, I can assure you. One of the things that we have seen already is that there are many cases waiting to take the chance. This looks to some people like the kind of lottery they want to participate in, and so we can expect to see rather dramatic results as a consequence.

There are other aspects of the law which are important and which define winners for us. In one respect, America is a winner, for the law is beginning to change in small ways certain aspects of the way we treat discrimination and civil rights complaints in our country. The most significant of which is adding to Title VII of the 1964 Civil Rights Act, express language to write in compensatory and punitive damages, where people are found victims of discrimination. We’ve always had some compensatory and punitive damages from the reconstruction?era civil rights statutes, the 1866 statutes, but from the 1964 Civil Rights Act all we had would have been back pay, primarily, as a financial settlement. We did not have the right to seek compensatory and punitive damages. We did not enter into the historical Anglo?American tort system of litigation.

Well, this law with a couple of other laws in the last three years have opened the door for a new instrument of deference against discrimination in the United States. I’d say America is the winner in the first instance from that, as opposed to the individuals who are going to file suits and win million?dollar judgments (and they won’t win million?dollar judgments, by the way, because the compromise involved applying caps on the awards that can be granted).

Let me just digress to tell you what the caps are, because it’s an interesting reflection which I want you to think about. If you’re an employer with 14 or fewer employees the largest award that can be granted against you is $100,000; if you have 15 to 100 employees it can be $150,000; if you have 100 to 200 employees, $200,000; if you have more than 200 employees and you’re found guilty of illegal discrimination, you can be subject to a maximum penalty of $300,000, in the form of compensatory and punitive damages.

In other words, with respect to the same offense, Congress has written penalties in the law that are different based on the circumstances of the offender, which is rather a novel experiment in American law.But, that said, I still say this is a victory. There are winners here and the winner is American society, insofar as Congress now relying upon the old-fashioned tort system begins to open the door to a new way of handling civil rights complaints. The old way is to build bureaucracies, to build administrative processes like the Equal Employment Opportunity Commission to discourage the use of courts and to have people pursue endless rounds of red tape while bureaucrats judge their cases; to discourage the use of courts, and what that has done is to perpetuate charges of discrimination, to give rise to statistics keeping counting people’s races and gender and making records of them throughout all of our society, having businesses report annually to federal agencies, how many people of what height, or color, or sex they employee all of those things have been done in the past instead of relying on the historical, Anglo?American judicial procedure.

For the first time in this last quarter century, Congress has opened its eyes to the possibility that that historical procedure may have had some reason to have survived over a thousand years and might, indeed, be capable of handling certain problems without our turning these problems into bureaucratic nightmares which paralyze the whole country.

In that respect, America is a winner. This is something I have been preaching for the last five years and have made some minimal progress on to this point. I’m not happy with where we are; I don’t think it’s appropriate to impose caps on penalties, and I do believe, ultimately, we have to see the system of compensatory and punitive judgments as a replacement for the bureaucratic system in our country. When I say bureaucratic system let me tell you what that means. These things need to be made concrete.

The federal budget includes roughly $1 billion devoted exclusively to the enforcement of civil rights laws in the United States. We’re always talking about where can we change our habits and change spending in this country and what is the money being used for? I’m not talking about money that people win in court cases when I speak of the $1 billion. I’m talking of direct, federal expenditures on administrative agencies, of which we have somewhere around 140 separate agencies all charged with the responsibility to enforce civil rights laws in the country. I see the day when we’re going to be using the historical procedures of Anglo?American jurisprudence to enable people to take care of themselves, and not spending a billion dollars on federal bureaucrats. This small step in that direction, therefore, makes America a winner.

It also makes people with civil rights complaints winners. We’ve seen this dramatically—I’m not going to give you a long list of stories today—I’m going to cut this speech short so we can have questions, so relax, but I want to give you some examples.

Just a few years ago there were three children in Florida who were impermissibly kept from public school; they were segregated. They filed a lawsuit under state law, a tort claim. The school district didn’t even wait to go to trial, they realized they were wrong, they settled the claim for $1.1 million. And ever since that day you have not heard anywhere in the United States of any school district impermissibly segregating children with the HIV infection.

The fact of the matter is, the Anglo?American system of tort jurisprudence works; it’s a deterrent. When we have not used it, we have had to live with constant complaints, rather than deterring impermissible behavior. We didn’t use it in 1954 for little Linda Brown. The case was Brown vs. Board of Education. Linda didn’t even get to go to the school. The court was more concerned with the general principles, which led of course to busing and everything except paying attention to Linda who had been mistreated and whom, had she been the recipient of the $1.1 million, would never had suffered the fate of now being in court as the grandparent of a child filing a new segregation suit in Topeka, Kansas. It would have been a deterrent, but in fact, throughout the whole history of this century there has never been a single case of segregation filed by minorities in all the United States that has eventuated in any monetary penalty—any compensatory or punitive damages.

I ask you to reflect on that, and I think what your reflection will lead you to conclude is that the reason we’re wound up in extraordinary bureaucratic procedures and administrative nightmares and endless civil rights laws and constant arguing in every community about the status of civil rights is because we haven’t used the strongest weapon our society has evolved over more than a thousand years in order to settle those questions. So, that means that there are winners. People who will file claims, now being able to use those weapons will, indeed, get the kind of rewards—not that make up for being treated unjustly—but that give the most that a legal system can give in the way of compensating people for being unfairly treated.

There are other winners in the new Civil Rights Act, other aspects of the new Civil Rights Act. One of them is a very obscure provision of the law, it was a case called Lorance vs. ATT, in which Justice Scalia wrote the opinion. It deals with the question of when changing requirements of seniority rules in businesses affect people unfairly, when can they go to court? What is the statute of limitations for filing those charges? When Congress wrote the law in 1964, Congress deliberately wrote a rule that created a very short time span for the statute of limitations. They said, from the time the rule is implemented, you have 90 days to file a charge against it, otherwise you have no standing in court. What subsequently became clear to people is that you don’t know at the time it’s implemented how it’s going to affect you. It may be three years later before your case comes up, and you’re injured by it.

The Court correctly enforced the will of Congress as expressed in 1964. It said, well, we recognize that’s a problem, but that’s Congress’ will. Congress’ will now has changed that. They have now said, from the time you are hurt by the rule you have 90 days to file your claim, so that means every individual in this situation, being affected by seniority changes in his workplace has the opportunity (one doesn’t have to become a wizard, a seer or prophet in order to figure out how it’s going to affect him) When it affects him he then has 90 days to go to court or a federal agency and ask for redress. That makes those individuals winners. That also continues the process of beginning to rationalize our civil rights laws.

There are other less dramatic categories of winners in this Civil Rights Act. I won’t go through all of those. I will give you one or two of the losers just so you understand I’m going to be fair and evenhanded and not paint a rosy picture of our progress in dealing with civil rights laws in the United Stated today because the picture isn’t all rosy. There are losers too. The most important, the most dramatic loser is, once again, American society. We’ve written in this law a rule of justice that we’ve never written under any law in the United States before. It includes, consciously, differing standards for judging the same offenses based on the circumstances of the individuals. George Washington, let me say, always used to proclaim that the goal of building a free society, the goal of self-government, was to build a society in which we could have one rule of law for rich and for poor. I always thought that what George Washington meant by that was that the only way to have a single society that embraces rich and poor is to communicate to them that their interests were locked in a mutual embrace, that they were going to be judged by the same rules and therefore they had a single interest in safeguarding those rules.

For the first time since George Washington uttered those words we have departed from that wisdom in the United States. It is now the case that if you are to file a charge of discrimination under the law of the United States you will be subject to one rule of justice if you are a minority or woman, and for the same charge, you will be subject to another rule of justice if you are not. In effect, the law denies that we have a common interest in our rights of citizenship, and that makes us competitors with one another, at a minimum, enemies of one another, at a maximum.

That is the most unfortunate aspect of the legislation. It is also true that the legislation may contribute indirectly to some people seeking to defend themselves against lawsuits by reverting to hiring or appointing practices based on quotas rather than direct experience with individuals and direct judgment, because the only way to defend yourself in a case where the burden of proof is going to be shifted is never to go to court in the first place. If you don’t have a statistical disparity you can’t be gotten into court to begin with. There may be some people who will do that, and if they do so the losers will be the people who want to acquire positions or appointments, which break the quotas. Everybody who seeks a position, but who cannot qualify for that position with respect to the numbers, not with respect to merit, but with respect to the numbers, will become a loser.

One more word about this. There’s something people don’t know in the United States. They hear lots of talk about quotas and they think, okay, here come these David Dukes who are out to play upon people’s fears and to stir up racial resentment. That’s not what I’m talking about. I know mathematics well enough to be able to look at this country and its history and arrive at very different conclusions than some people arrive at. I don’t deny that it may be the case that white males will sometimes be adversely affected by quotas, that’s a truth, no doubt. But what people don’t realize is that those who are most affected by quotas are not white males.

I’ll give you one example, from the state of Kentucky. Roughly 13 years ago they decided that they had a problem in the state work force, the public work force. They were underrepresented (they like to use this language of representation—you’ve noticed that, have you? I’ve never figured out what it means personally because I’ve never gotten my representative share of anybody else’s paycheck, but that’s what they say). They said blacks were underrepresented in the public work force. The state had a population generally of 7.3 per cent black, the public work force wag less than 3 per cent. So they adopted an affirmative action plan to raise the number. Over the space of about six to seven years they actually succeeded. Gradually, it went from 3 to 4.2 to 4.7 to 5.7, eventually 7.2. They did it, systematically, positively, creatively, got the numbers up. Then for the next decade, roughly, every single year the number was 7.2 per cent. I’m talking about a public work force of 40,0OO people. I think you know there’s no way in the world you’re going to keep an exact percentage of 7.2 per cent by chance, at random, with decisions affecting 40,000 people. What that mathematics means is that in the state of Kentucky today, there are black people who are not being hired into the public work force because there are enough already.

That’s the reality of quotas. That’s what we’re talking about when we condemn them. It’s a reality which is complicated by another reflection, historically, that is from time antebellum. Blacks in the United States have participated in the work force at a far higher rate than any other group of people. Prior to the end of slavery, of course, the rate was practically 100 per cent, only those of about six years of age or younger didn’t work at all. Everyone else had variable rates from as low as almost 50 per cent up to a maximum of around 65 or 70 per cent. If you use general population figures, not weighted by work force participation rates, it is a mathematical necessity that any quotas imposed will put, black people out of work. It’s absolutely necessary and, therefore, it’s no mystery that you have an unusually high unemployment rate among young, black males.

People are so confused about this issue they don’t know whether they’re liberals or conservatives when they hear this discussion. I really think the whole problem is they aren’t taking the time to think, to count, to fathom exactly what’s going on, and in this new 1991 Civil Rights Act there’s a lot of evidence, a lot of people in high positions who have not taken the time to count, to think. They’re living in a world in which mere slogans, ideological slogans suffice, because their only concern was satisfying constituencies and not with pursuing the common good of the society.

So, we have in the new 1991 Civil Rights Act winners and losers. We have winners because we’ve made small steps in the direction of clarifying policies in ways that can make civil rights no longer a point of division for our country, and that is our ultimate goal. When we get there, then we know we’re done. I had the most depressing moment in my public service last year, early in the year, when sitting on my Commission on Civil Rights, we were discussing language we would recommend to Congress for the reauthorization of the Commission and several of my colleagues, there are only eight of us on this national body, but several of my colleagues made the argument, “We want to have a Commission without a sunset. We don’t want a term limit—we don’t five years, we don’t want 25 years, because,” they said, “we can’t for see any time in the future of this country when we won’t have a civil rights problem.” The most depressing moment of my public service. “For what!” I asked them, “are we working, if we can’t envision an America which is free from the turmoil of civil rights struggles—if we cannot envision an America in which we are all one, in which the expression civil rights means nothing more than the common rights of citizenship?”

If we have to abandon that vision, then I submit, we shall have to abandon America, and any small step confirming that vision makes us winners. By the same token, every hesitation inconsistent with that vision makes us all losers.

Questions

QUESTION: Isn’t it true that if people are hired or promoted on a basis other than merit, then we all become losers because less qualified people are doing the job?

ANSWER: If people are hired on a basis of something other than merit, is it not true that we all become losers because, in fact, we’re receiving services or otherwise using products, that are not being
performed at the highest standards?

I believe that the principle is correct. We cannot afford to admit, as a matter of general social practice, anything that makes mediocrity the highest standard we know in this society. We’ve got to be able to raise up higher standards than that and we have to recognize that everything we do corporately, as a people, collectively communicates our standards, and that’s the reason we have to keep insisting upon merit rather than other principles of choice.

I would not be honest, however, if I did not also tell you that we all must recognize we live in a world in which human beings rarely live up to their professions and, therefore, there is a good deal of merit hiring, ostensibly, which in fact takes place on other grounds. We don’t have to rehearse all of those, we can talk about legacy, admissions to universities, and other practices in hiring where friends or intimates are preferred over those who are clearly superior. We know it’s rooted in human nature for every mother to prefer her own offspring, whatever the talents, to anyone else’s offspring.

Knowing these things, however, and being therefore realistic is very different from taking the recognition of these principles and writing them into social prescriptions, into general rules. I think we—in order to maintain a free society—must maintain the general rules on the highest plane and recognize that the standards of excellence will not prevail at all, let alone rarely if we lose the ability collectively to demand the standards of excellence in the first place.

QUESTION: First I’d like to suggest that the problem this gentleman brought up before might be called the “Peter Pan Principle.” My question has to do with the tort system, which I think is long past overdue in civil rights issues, but where else in the legal system is the defendant considered guilty until proven innocent?

ANSWER: Certainly the introduction of tort practices in civil rights areas seems clear and understandable—but where else in our law do we ever find the burden of proof shifted to the defendant rather than to the plaintiff? And, I have to tell you, we find it nowhere else. This is a dramatic change in our country. You might think you find it in dealing with the Internal Revenue Service, and I will confess, that there are some resemblances if you’ve ever been audited—as I have, all too often—there are some aspects of that process that make you feel as if you must prove your innocence, rather than the government prove your guilt. Still, the courts have been consistent in saying to the IRS, no, Americans are innocent until proven guilty. This Civil Rights Act is the first time it’s written into statute and let me put this in context foryou.

We all know that we’ve been living with this debate about racial preferences for two decades now, but what people forget is that all the racial preferences we have lived with have been imposed either by courts or bureaucrats. Never, never until 1991 did Congress ever pass a single word requiring racial preferences, so that the context in which we make this dramatic departure in American legal practice is a context in which Congress has ceased to hide behind bureaucrats, ceased to hide behind courts and, finally, written into our law that we have to shift the burden of proof from plaintiffs to defendants. I think that you cannot overestimate the significance of that departure.

QUESTION: In your judgment, why did President Bush sign the Civil Rights Act?

ANSWER: I knew somebody was going to ask this question—I was hoping I could get away without having to answer it.

Well, you know, the President issued a statement in October 1990, when he vetoed the 1990 Civil Rights Act as a quota bill, he said he really wanted to sign a civil rights bill and the bill he really wanted to sign, he said, would be the bill that would write into law the Supreme Court decision, Griggs vs. Duke Power Co. from 1972.

I know, because I know the law, that the Griggs decision was really the beginning of racial preferences and quotas in the United States. I have to assume the President didn’t know that and so he wasn’t quite aware that when he said he wanted to sign such a bill, he would be signing the same kind of bill he just vetoed. I believe, therefore, in 1991 what happened is, he got a bill in which Congress wrote in the words that he wanted, i.e., “This writes into law the 1972 Griggs vs. Duke Power Co. decision,” and when he saw that he said, “This is what I’ve been waiting for,” and so he signed it.

QUESTION: You had mentioned there was a different law for women and minorities. What is the law for the nonwomen and minorities in contrast to that law?

ANSWER: Okay, I mentioned that the law is written one way for women and minorities—what then is the law for nonwomen and nonminorities?

Well, that can be stated pretty simply. Anyone may go into court and file a charge of discrimination.

Those who are minorities and women are asked, in coming into court, to show a prima facie case of discrimination. That means a statistical disparity. Anyone else is asked to come in to court and to prove beyond a prima facie case the actual practice of discrimination. That is the rule for nonwomen and nonminorities, they must carry the burden of demonstrating intentional discrimination, not merely the suggestion of discrimination.

QUESTION: Isn’t that a worse case? For example...

ANSWER: The further question is, well is that not a disproportionate burden? Is it not unfair? Is it not the case that the nonwomen and nonminorities have to do far more work in order to prove they’ve been discriminated against? The answer is yes.

QUESTION: Does the law specify what a minority is? For instance, could a white person from a Philadelphia which was, say, 70 per cent black, call himself a minority in that situation and therefore take advantage of the law?

ANSWER: Well, the question is, does the law specify what a minority is or might it be the case that a whiter person in Philadelphia, which is 70 per cent black, might qualify as a minority individual in order to file a case?

The unhappy answer to your question is no, the white person in Philadelphia will not qualify as a minority as the laws are conceived and we have actual practice of this today in Birmingham, Alabama. In Birmingham, where so much of civil rights history has been written, the city has changed. It is now ruled primarily by black people. There is only a minority of white people on the city council, and in dealing with questions of redistricting, we know, under the Voting Rights Act and the Amendments of 1982, that generally you are required to submit your plans to the Justice Department and to conform to what looks like (not proportional representation) a real strong effort to see that each separate group is represented, or has the chance to attain representation relative to its numbers.

The people in Birmingham have tried to apply that standard, that is the minority in Birmingham—the white minority—to apply that standard to its own benefit and it has been rejected.

QUESTION: Who pays for punitive and compensatory damages in cases that go all the way through the process and where people are found guilty of discrimination?

ANSWER: The first answer is, of course, the guilty pays. Whoever has done it and is found guilty of doing it must pay. But, that means in the case of a private business, that private business or businessperson; in the case of a public agency, that means the taxpayers. There is no way around that.

The most important dimension, I think, is to recognize it is the guilty and only the guilty who pay. It is no longer the case that everyone is being forced to pay. There were two cases in 1989, which illustrate the principle.

Justice Stevens, writing in Richmond vs. Crozon in January of that year, made the argument that people shouldn’t be forced to pay benefits to people who were victims of some injury when they were not themselves the cause of the injury. He was referring to generalized practices of affirmative action. His argument was using business set?asides in minority hiring and contracting purposes. He said it’s fine to take people who have discriminated and have them make some atonement for the discrimination, but you don’t turn aside some contractor who was never involved in any discrimination and say you’re not going to hire him because he’s not Hispanic or he’s not black, that’s not fair. Then, later in the year, in June in the case of Martin vs. Wilkes, Justice Stevens wrote just the opposite opinion. There, he said, we will never be able to repair these historical damages in our country if we aren’t willing to make people who may have been even inadvertently the beneficiaries of past discriminations, participate in paying the cost of the relief.

That’s the attitude which says that the only approach to solving discrimination complaints is to impose them across the whole society as a whole, as a burden, and everyone shares in the burden. There’s a brief argument I can give you that I think shows what’s wrong with this.

Some people say, well, what’s the difference between making you—who never discriminated, participate in paying to solve discrimination—between that on the one hand and on the other hand, you’re living next to a road or you’re putting your house someplace where they put a freeway through and you weren’t responsible for the freeway. You bought your house because it was a nice, quiet neighborhood, but it’s part of a social cost, social burden, and we all have to pay these social burdens. What’s the difference? Why can’t you do the one just as you do the other as a good citizen? The answer, of course, is when you’re talking about the freeway going past your home where you might have to make a sacrifice for the common good, you’re at least talking about something for which you are no more eligible than every other citizen to pay the cost. It is not a question of race; you’re not being chosen out at that moment because of your race, to have the freeway put next to your home. Whereas, with the affirmative
action schemes, only those who are of a certain race are being chosen to bear the burden of the remedy to pay the cost of the remedy.

If you want to see how this would work in a different context, think of your income tax again. We have a progressive income tax in this country, which means that most Americans have accepted that people should pay differing taxes based on differing circumstances. Historically, it’s based on amount of income and also, historically, just because of the nature of the society, that would have meant that white people pay more than black people, because most black people have been poor. That’s changing, happily. Suppose we change the income tax from income based to race based and we say white people pay more and black people pay less. Historically, you’re going to get the same results, right? But the principle is wrong, isn’t it? See, you would not accept paying taxes based on race, where you have accepted paying taxes based on difference in income, and that’s the point we are trying to get across. Broad, administrative remedies that penalize people for their race, even in the interest of making up for past discrimination, don’t pass muster because they can’t apply to the whole society at large in the same way.

QUESTION: I’m glad I’m at the end of my mortality, because I don’t think I’m going to be here to see all this finished. You’re quite optimistic saying that you think there should be a sunset for the Civil Rights Commission, because you feel it’s going to be taken care of. I wish I could say so. The thing that bothers me is that, are there other areas in our society that need to be addressed to take the optimistic attitude that you have?

ANSWER: Very good question. In order for me to be as optimistic as I am, don’t I really need to address other areas in the society in which I might expect progress to justify my confidence in the realm of civil rights?

It’s an excellent question, because it leads me to the reflection that, I think, once again we too often pay attention to, namely, it is not the case that every problem we experience is a civil rights problem.

Another thing for which I have labored mightily is to separate the discussion of welfare from the discussion of civil rights. And I think you’ll immediately understand why I’m trying to do that. When we talk about welfare, we’re talking about how some members of the society regard their obligations to provide for other members of the society. There is a division there that is inescapable. Those who are the objects of welfare; those who are the providers of welfare.

If we think civil rights is a discussion of welfare, then we’ll look at civil rights in the same light—there will be those who provide civil rights and those who receive civil rights. They will be the permanent wards of the state. Civil rights must instead be the rights we all share in common. When we recognize one another as fellow Americans we’re recognizing those civil rights, so that if we can achieve that clarity and recognize that talking about welfare or poverty is not talking about civil rights, then we gain the power and the freedom to concentrate our united energies on the various questions of welfare, the problems of drug abuse, the problems of illegitimacy, all the many problems that bedevil our society, and then we can start to do what I talked about doing with quotas—we can stop counting, we can start being more realistic.

For example, people say, well, you’ve got these tremendous difficulties concentrated in black communities and cities all across this country, without resolving which there’s no hope for people to take their rightful place in society, to take advantage of that upward mobility and to display entrepreneurial energy and one of them is a problem of a high rate of illegitimacy.

Because we talk about it that way, we’re not able to solve the problem. We’ve defined it incorrectly. The problem is not a high rate of illegitimacy in the black community; the problem is an extraordinary ballooning rate of illegitimacy in American society, and if we are going to spend all of our time building sex clinics in black schools or Hispanic schools, and not confront the fact, that there has been moral erosion in the society at large, we’re never going to address the problem.

How can I demonstrate that the problem is society wide and not just limited to black communities? The numbers. The numbers. I grant you that the illegitimacy rate among—that is to say, mothers giving birth out of wedlock—runs about 70 per cent among black American women and is, by comparison, only about 17 per cent among white American women, only about 23 per cent among Hispanic young women. That’s all true, but, that does not lead to the conclusion we think it does, for two reasons: First, we’re talking about percentages and not absolute numbers. Seventeen per cent of a very large number is incredibly larger than 70 per cent of a very small number. Secondly, there’s something even more important. Whenever we report illegitimacy rates we only talk about live births, the mothers who deliver their children—do you know that the number of live births out of wedlock in the country is only about 1.5 million a year?

The number of abortions is roughly the same. Those are mothers too. Most of them, in fact, become pregnant out of wedlock. Therefore, they are unwed mothers, and guess what the statistics are when you look at those and break it down? Exactly the opposite. The 70 per cent figure with respect to the abortions refers primarily to young white mothers. Now what is the problem with illegitimacy? It’s the society that’s gone haywire, and you aren’t going to solve America’s problems by focusing on what is supposed to be a dysfunction in the black community.

So, yes, we are addressing those other questions and we address them, first of all, by trying to bring clarity to them. By trying to get the focus where it belongs and not using these other kinds of discussion, which, in fact, become sideshows and keep us off the main question.