Narrowing and Reversing Civil Rights Law
The neoconservative Supreme Court's decisions beginning in the spring of 1989 have made quite clear that race and sex, as collective categories, have been denied; and racial and sexual discrimination, defined as structural and historical realities, have been erased. The Court's decisions reject the idea of racism as an institutionalized aspect of society. Statistical evidence of racial or sexual inequality is no longer acceptable as proof of unfair treatment of groups or classes of people. Discrimination can be proved only by an individual, in the terms of a specific case. Equality doctrine has been refocused: civil rights legislation has been narrowed to the privacy stance of abortion rights.[32] Concerns have been redirected toward the problem of "reverse discrimination" against the white male and against the fetus.
Based on the Court's decisions, the government no longer has any responsibility to create access if there is no clear proof of prohibition. That is, so long as a black is not officially restricted from advancement in her job, it is presumed that her lack of promotion is not due to racial discrimination. There must be some other, individual reason. This narrow, individualist framework has always defined abortion law, which is based on the most individualist notions of liberty. However, it represents a significantly different reading of civil rights legislation.
Along with this shifting of focus from class to individual is the full-blown rejection of the right to equality of opportunity in the market. An individual's right to opportunity is no longer to be confused with equality of opportunity. The former is what many neoconservatives view as the proper interpretation of law. Individuals compete as individuals, not as members of (discriminated) classes. The burden of proof is on the individual to prove that she acted on whatever opportunities existed, regardless of the barriers that hampered her attempts. The concern with equal availability has been lost. Because the Court does not recognize any historical or structural constraints limiting individuals or their opportunities, it is left to individuals to act on their own behalf. As a result, the Court is always able to find reasons for differential treatment of an individual other than discrimination: individuals will always have other specifics to consider in addition to their race and
gender because they are individuals at the same time that they are members of racial and sexual classes.
The Supreme Court has put civil rights law in jeopardy. In the 1989 case Croson v. City of Richmond, it declared for the first time that government programs that give African Americans or members of other racial minorities a preference over whites must be scrutinized by the same strict constitutional standard that applies to discrimination against blacks.[33] The Court's findings reject race-based measures that are "differently" devised in order to address the issue of past discrimination. Discrimination against whites now has the same legal status as discrimination against minorities.
Justice O'Connor, writing the decision for the Court, rejected the generalized, statistical proof of racial discrimination as justification for the Richmond set-aside program, which designated that 30 percent of the dollar amount of each contract was reserved for one or more minority business enterprises. Although the program was said to be remedial in purpose, O'Connor stated that there was no "direct evidence of discrimination"[34] and that the plan was therefore not narrowly tailored to remedy particular discrimination. The "generalized assertion of past discrimination" in the construction industry was not enough reason to design a racial quota. She argued that there were no clear facts proving discrimination, but only "broad-brush assumptions of historical discrimination."[35] She concluded that "societal discrimination does not suffice"[36] as sufficient justification for such a program, even though in a city whose population is 50 percent black only 0.67 percent of Richmond's prime construction contracts had been awarded to minority businesses before the program was instituted.
Justice Scalia not only concurred with this opinion, but further stated that the set-aside program represented "unlawful racial classification." He argued that we need to focus on "actual victims of discrimination," not broad categories of persons. The issue should not be race, but only whether an individual was wronged.[37] He argued that classifications of race only aggravate the problem; they are not the solution.[38] Justice Kennedy, in a separate concurring statement, considered the city's plan as itself unconstitutional preference.
Justice Marshall, in a dissent, argued that Richmond had a compelling interest in the set-aside program, "to prevent the city's own spending decisions from reinforcing and perpetuating the exclusionary effects of past discrimination."[39] He also rejected the claim that Richmond relied on "generalized societal discrimination as its justification" and
concluded that the city had showed "localized, industry-specific findings."[40] He also noted that the 30 percent assigned to public set-asides translated to only 3 percent of Richmond's overall area contracts.
The Court's decision rejected earlier conceptions that treated discrimination as an historical and societal reality. Although it is important not to overstate the radical implications of pre-Rehnquist civil rights law—affirmative action was always a limited doctrine—even this limited doctrine has come under complete assault.
Racial discrimination has now been narrowed to mean only specific and factually proven discriminatory action against an individual. The understanding of race as a structural element of society has been replaced with a view of disparate individuals. The ability to use racial categories to address prior discrimination has been destroyed: there are no categories as such—hence, no institutional discrimination. Even the recognition of race as a category unfairly distinguishes the person of color from a white person.
Wards Cove Packing Co. v. Atonio, another case reviewed during the Court's 1989 term, further limited the use of statistical evidence of discrimination and narrowed the ability of individuals to prove discrimination.[41] It challenged a 1971 decision, Griggs v. Duke Power, which construed Title VII as proscribing "not only overt discrimination but also practices which are fair in form but discriminatory in practice."[42]Griggs also determined that the burden of proof was on the employer to justify discriminatory policies as necessary to the employer's business. If a qualification or job requirement had an adverse impact on minorities, the employer had to show that it was a business necessity. This applied to overt discrimination as well as supposedly neutral practices which appeared fair but in fact were not.[43] The Wards Cove case shifted the onus to the employee, who must show that the policy cannot be justified as necessary for the employer.
In the case presented to the Court, a worker argued that the unskilled cannery jobs at Wards Cove were filled by nonwhites, Filipinos, and Alaska natives. In contrast, the noncannery jobs, which were skilled, were filled by white workers, who lived in separate dormitories and ate in separate mess halls. The cannery workers argued that it was the hiring/promotion practices of Wards Cove that were responsible for the racial stratification of the work force. Wards Cove claimed that its practices were not discriminatory and that the stratification occurred because the union, which supplied most of the cannery jobs, was predominantly a nonwhite union.
The Court found that statistical evidence of a high percentage of nonwhite workers in cannery jobs does not make for a prima facie disparate-impact case. One needs to show specific causation; statistical disparities are not enough. It must be shown how "each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites." The Court concluded that the "racial composition of the qualified population in the relevant labor market" was the critical factor. A lack of nonwhites in skilled jobs can reflect a lack of qualified worker-applicants. "As long as there are no barriers or practices deterring qualified nonwhites from applying . . . the employer's selection mechanism probably does not have a disparate impact on minorities."[44] Thus, racial imbalance in a segment of an employer's work force does not necessarily mean that there have been discriminatory practices. The burden of proof no longer rests with the employer.
Given this frame of reference, the Court found that it is "essential that the practices identified by the cannery workers be linked causally with the demonstrated adverse impact." In writing for the Court, Justice White relied on an earlier decision by Justice O'Connor, Watson v. Fort Worth Bank & Trust, which claimed the existence of many "innocent causes that may lead to statistical imbalances in the composition of their work forces."[45] Evident in this reasoning is the presumption of nondiscrimination, as well as a nonstructural view of race.
Justice Stevens, writing for the dissent, reinvoked much of the decision in Griggs, where Title VII was used to achieve equality of opportunity in practice—not just in theory—by removing past barriers to equal employment opportunity. He criticized the Court for shifting the burden of proof of discriminatory practices to the employee by way of a "newly articulated preference for individualized proof of causation."[46] Justice Blackmun, also in dissent (with Brennan and Marshall concurring), wrote that overt and institutionalized discrimination was being legitimated in this decision and that the Court's new agenda seemed to be redressing the problem of reverse discrimination against white men. "One wonders whether the majority still believes that race discrimination—or, more accurately, race discrimination against nonwhites—is a problem in our society, or even remembers that it ever was."[47]
A neoconservative view of discrimination finally prevailed in this case. In this view, discrimination can only be against an individual, not groups of individuals, as would be identifiable through statistical evidence. Only specific actions against specific individuals are subject to scrutiny. The problem of discrimination is now viewed in reverse. The job market
merely reflects the labor market and the individual abilities it takes to succeed. As long as no clearly articulated discriminatory guidelines exist, discrimination does not exist as far as the judicial system is concerned. Discrimination must be an overt, easily identifiable phenomenon.
President Bush reinforced the Court's decision in Wards Cove when he supported the idea that a high school education should be considered a job requirement even if the job does not necessitate the degree. He argued that such a requirement would encourage people to complete their high school education. He ignored the disparate impact such a policy would have on minorities.
The case of Patterson v. McLean Credit Union further gutted civil rights legislation.[48] Patterson, a black woman who had been a bank teller and file coordinator from 1972 until 1992, charged her employer with harassment, the assignment of demeaning tasks, overwork, racial slurs, unnecessary public criticism, and lack of promotion and of any possibility of advancement. In its decision on Patterson, the Court upheld its 1976 precedent, Runyon v. McCrary, which applied a reconstruction-era civil rights law to bar discrimination in private employment. In Runyon, the Court had prohibited private schools from excluding, solely on the basis of race, children who were otherwise qualified for admission. The present Court said that that law applied only to the initial hiring state and could not be used to challenge racially biased treatment on the job. This interpretation narrowed and weakened the meaning of Section 1981 of the Civil Rights Statutes.[49]
The employer's conduct was viewed by the Court as not precluding the "right to make and enforce a contract"; it was conduct that occurred after the formation of a contract.[50] The difference between one's right to enter a contract and one's rights in the contract are key here. Neoconservatives on the Court found that an individual has the right to the opportunity to enter a contract, but not to equal treatment in the contract. The difference is between having "opportunity" and having meaningful equality. For the Court, racial harassment on the job stands outside the purview of one's rights to enter a contract. Racial harassment "impairs neither the right to make nor the right to enforce a contract."[51] Such a narrow reading makes the law almost meaningless. One is left to ponder what a contract means if it does not pertain to the actual conditions of the job itself. Discrimination on the job violates the idea of a contract if a contract is viewed as a process that both initiates and regulates a job. Patterson had a right to the job, but no rights on
the job—to fair treatment, promotion, or any of the other rights guaranteed under Section 1981.
Justice Brennan, in the dissent, criticized the "cramped reading" of the Civil Rights Statutes and argued against this narrowing of its scope. The language of 1981 "quite naturally read as extending to cover post-formation conduct that demonstrates that the contract was not really made on equal terms at all." Patterson was denied the right to make a contract on an equal basis, and this denied her right to enter into a contract like a white citizen.[52] The issue is equality: the equal right to make a contract with the same protections that would be guaranteed to a white citizen, including freedom from racial harassment. It is not just about having the right to make a contract. Patterson did not enter her contract on an equal footing with white employees.
Justice Stevens also dissented from the Court on its narrow and literal reading of Section 1981. He stated that this interpretation of the meaning of "to make a contract" was wrongheaded. It was part of the neoconservative redefinition of civil rights law as encompassing only the opportunities afforded to individuals. In this view, the law protects only individual opportunity to enter a contract, not equality of treatment.
A look at Martin v. Wilks clarifies how these redefinitions and narrowings of discrimination law have dismantled the substance of affirmative action. In this case, white firefighters in Birmingham, Alabama, challenged a decree in which the fire department had settled a discrimination suit by agreeing to hire and promote more African Americans. The Court found in favor of the white firefighters that persons cannot be deprived of their legal rights in proceedings to which they are not a party.[53] This finding allows challenges to affirmative action policy by any persons who have not been party to these kinds of proceedings.
This decision was a major setback for affirmative action procedures in hiring and empowered the proponents of reverse discrimination. Whereas the fire department agreement was put in place to assuage former racial discrimination against blacks due to unequal access, the Martin decision puts access of individual whites on equal footing with that of individual African Americans. Because it does not recognize structural and historical racism, the Court has effectively espoused a catch-22: the law should treat blacks and whites the same, yet they have never been treated the same or had access to the same opportunities. Even to name race as a problem is to privilege blacks against whites. Therefore, to be fair to whites, one must treat blacks as individuals
before the law, like whites. The problem is that the law is already racialized by extralegal practices found within the society and culture.
In the last racial discrimination case of the spring term, Jett v. Dallas Independent School District, the Court gutted the prior interpretation of the Civil Rights Act of 1866, the precursor to Section 1981, which was discussed in Patterson . By another 5-4 decision, the Court determined that Section 1981 does not permit damages against those who violate its terms and therefore could not be used to bring damage suits against local governments for acts of racial discrimination. Jett, a white male teacher, athletic director, and coach at a predominantly black school, was dismissed and reassigned by his principal, Todd, a black man, after repeated clashes over school policy. Jett charged racial discrimination. The Court ruled that he had no civil redress, and, in doing so, denied governmental responsibility for ensuring equal treatment.[54]
A more recent ruling that echoes the tenor of the 1989 decisions is the 5-3 opinion of the Court in January 1991 that formerly segregated school districts can stop court-ordered busing once they have taken all steps necessary to eliminate the "legacy" of segregation. According to this ruling, housing patterns do not necessarily support a continued need for busing, so long as they reflect private choice and are not part of the "vestiges" of former segregation.[55] How one determines when the legacy of segregation ends and choice begins is not delineated by the Court. Instead, the ruling presumes that societal, structural segregation no longer exists.
The strain of neoconservative jurisprudence established in the spring of 1989 does not reject outright the language of equality. Instead, it narrows and redefines the contours of what equality—and therefore discrimination—can possibly mean. One must prove discrimination before the time to challenge it runs out; one cannot prove discrimination after the contract is signed; and one cannot prove bias if it is not the determining factor of one's treatment. The Court eliminated all redress for subtle and covert forms of racial discrimination at the very time when more and more discrimination is operating in this form. General practice, indirect effects, and numerical differences no longer count. One must show a specific practice, with direct effects for one's individual outcome.
In short order, the effects of the Court's decisions were felt by working people of color. According to Anthony Robinson, president of Minority Business Enterprises Legal Defense and Education Fund, the decision on the Richmond case was devastating for African American and
Hispanic contractors, resulting in a large loss of income. One black contractor in Atlanta, Georgia, says that the Richmond decision cost him $8 million in contracts on work that was already in progress.[56]
Such results confirm former Harvard law professor Derrick Bell's belief that equal protection doctrine cannot sufficiently address issues of racial discrimination. It has not served to protect people of color against policies that are racially neutral but nevertheless burdensome in effect. He also argues that considering race as a "suspect classification" in the law provides no protection at all unless the unequal treatment is completely blatant and arbitrary. Proving intent of discrimination has almost always been impossible to do, yet this is the only form of discrimination the Court recognizes today.[57]
In contrast to the Court's 1989 decisions, in June 1990 it reaffirmed the role of the federal government in devising programs that give minorities preference when competing for government benefits. The 5-4 decision in Metro Broadcasting v. FCC affirmed the power of Congress to use "benign race-conscious measures," even if the measures were not "remedial."[58] The decision upheld two Federal Communications Commission programs aimed at increasing minority ownership of broadcast licenses. The decision gives the federal government more leeway than state and local governments have in designing affirmative action programs that are not limited to remedial actions for past discrimination. In this instance, the Court found affirmative action was justified in order to increase the number of radio and TV stations owned by minorities so as to create greater diversity in programming. Justice Kennedy dissented from the decision: "I cannot agree with the Court that the Constitution permits the government to discriminate among its citizens on the basis of race in order to serve interests so trivial as 'broadcast diversity.' "[59] This decision stands as an exception to the Court's general trend, although the Court made clear that it was simply deferring, somewhat grudgingly, to Congressional guidelines. In this decision the Court denied the Bush administration's urging not to reopen the affirmative action debate.
Otherwise, post-1989 decisions have continued to narrow civil rights doctrine. In 1992, in an important ruling on the federal Voting Rights Act, the Court took a restrictive view of the 1965 law. It determined that the Voting Rights Act did not apply to the reorganization of voting districts in this case. "The Voting Rights Act is not an all-purpose anti-discrimination statute."[60] The Court has also lifted curbs on formerly segregated schools by providing standards for the termination of federal
court control. Justice Scalia reiterated the position that intent and causation, not mere racial disparity, must be shown in order to claim segregation.[61]