Empowerment, Not Preferences

AMERICA'S long overdue show-down over the future of civil rights may come within weeks as Congress prepares to send President Bush a flawed and cynical bill whose chief connection to civil rights lies in its eye-catching (and vote-winning) title. Bush should pronounce that legislation dead on arrival and use the opportunity to launch a new civil rights agenda that emphasizes empowerment--not handouts.

The Civil Rights Act of 1990 is the product of close consultations between Senator Ted Kennedy and Washington's civil rights community. The legislation is riddled with so many problems that even some longstanding supporters of civil rights strongly oppose it. However, space permits us to examine only one of the bill's many faults.

The most disturbing provision lies in Section 4, which overturns a recent Supreme Court decision regarding the standards of proof in discrimination cases. Last year, in Wards Cove Packing Co. v. Antonio, the Court ruled that a plaintiff who charges discrimination bears the burden of proof to determine that a particular hiring practice is racially motivated.

Sounds fair. After all, prosecutors bear the burden of proof in criminal cases, so why shouldn't plaintiffs do the same in discrimination suits? But for nearly two decades, it didn't work that way. In 1971, the Supreme Court ruled in Griggs v. Duke Power Co. that once an employee could demonstrate that a particular hiring practice had resulted in a "disparate impact" (i.e. a statistical imbalance among members of a particular minority group), the burden of proof shifted to the employer to defend the "business necessity" of the challenged practice.

Although originally intended as a safeguard against unfair and irrelevant business practices, subsequent interpretations of Griggs have grown progressively activist and absurd. Put simply, good intentions sometimes translate into bad law.

As former Justice Department official Terry Eastland has noted in Commentary, police departments have been forced to defend requirements that applicants not have criminal records--a standard which has been proven to have a statistical "adverse impact" on Blacks and Hispanics. Complainants have also challenged anti-drug policies of mass transit authorities and physical strength tests of fire departments.

BUT, some ask, what do employers have to fear if their business practices are legitimate?

Nothing, except that liberal activist judges have often made it extremely difficult to defend even the most reasonable selection criteria. As a result, many employers institute racial and sex quotas to avert the risk of costly litigation. No adverse impact, no complaints. No complaints, no litigation. Warped interpretations of Griggs, which the Kennedy bill restores, could toss common standards of competence, intelligence and hard work out the window.

Imagine this scenario. You are an employer seeking a qualified assistant to help lighten your workload. Two people--a college graduate and a Ph.D.--apply for the job. You decide to hire the Ph.D. because he has more experience, obviously. But the college graduate, who is a Black female, sues for discrimination.

In court, she easily demonstrates that your reliance on an applicant's educational background has an adverse impact on Black women because only a small percentage of doctoral degrees are awarded annually to that group. Under some interpretations of Griggs--and under Kennedy's bill--you would be required to demonstrate the "business necessity" of such a judgement.

Good luck, because under Kennedy's bill, business necessity means bearing "a significant relationship to a significant performance of the job." The court could reject your preference for experience if you failed to demonstrate a "significant relationship" between a Ph.D. and your business objective.

But that's not all. Kennedy's bill would subject you to compensatory and punitive damages if you failed to meet the necessity test. Pragmatism might dictate that you cut your losses and reach a settlement with the complaintant. Or worse, you might avoid the whole bloody scenario by hiring applicants in accordance with the community's racial and sex composition. Little wonder that thoughtful critics have labled the act a "litigation bonanza" and a "quota bill."

AFFIRMATIVE action helped create a prosperous Black middle class during the 1970s, but it has probably done much to stir racial tensions between Blacks and whites as well. Moreover, the framers of the 1964 Civil Rights Act never envisioned their legislation as the precursor to quotas and set-asides. In a speech on the Senate floor before passage of the 1964 Act, Hubert Humphrey declared that Title VII, which bans racial and sex discrimination, "does not provide that any quota systems may be established to maintain racial balance in employment."

But 25 years later, the installation and preservation of quotas are apparently top priorities for prominent civil rights leaders like Benjamin Hookes, executive director of the NAACP. When Wards Cove was handed down, Hookes threatened "civil disobedience, on a scale that has never been seen in this country" if it and other decisions were not reversed. "Racism," he declared, "is the most important problem facing Black America."

A dedicated man, Hookes and the civil rights lobby are fast becoming irrelevant to the growing underclass--composed largely of Blacks--who live in constant fear of crime, attend delapidated schools, and possess few of the minimal qualifications (such as literacy) necessary for advancement.

As the well-known liberal sociologist William Julius Wilson (who is Black) has observed, race-conscious policies "benefit the relatively advantaged segments of the designated groups" while the underclass remains "severely underrepresented among those who have actually benefited from such programs."

For the "truly disadvantaged," the Civil Rights Act of 1990 carries about as much importance as federal aid to Istanbul.

Racism, of course, still pollutes society, and pollutors should be punished. But the victimization ethos that pervades the Civil Rights Establishment will do little to solve the real problems confronting so many Blacks and other minorities.

To confront those problems, President Bush should pursue a two-pronged strategy. First, he must challenge the Hookes/Kennedy agenda of affirmative action, racial set-asides and endless litigation by vetoing the Civil Rights Act of 1990. He must then outline a coherent plan to empower the nation's disadvantaged through education vouchers, tenant management of public housing, tougher law enforcement, child care and other initiatives. Initially, no doubt, he will face a storm of protest from entrenched civil rights groups, but in the long run Bush may well be remembered as the Empowerment President.