Hugh Murray review of Graham "The Civil Rights Era"

Review of Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960-1972, Oxford University Press, 1990. From Over Here: Reviews in American Studies (Nottingham), Winter 1992, 95-103.

I provided the title of this previously untitled review.

Anthony Flood

May 20, 2009

From Equal Opportunity to Preferential Treatment

In his special message on civil rights of 28 February 1963, President John Kennedy declared, “Our Constitution is color blind, . . .” (69) Rev. Martin Luther King, in his speech at the March on Washington in August 1963 dreamt of a day when his daughters would be judged by “the content of their character and not by the color of their skin.” (91) To enshrine these ideals Congress enacted the Civil Rights Act of 1964. During the debate before passage Sen. Hubert Humphrey (D-Minn.) declared:

there is nothing in it [the bill] that will give any power to the Commission [EEOC] or to any court to require hiring, firing, or promotion of employees in order to meet a racial “quota” or to achieve a racial balance . . . .

In fact, the very opposite is true . . . . Title VII is designed to encourage hiring on the basis of ability and qualifications, not race and religion. (151)

Senators favouring the bill, like Joshua Clark (D-Penn.) and Clifford Case (R-NJ.), defended it in similar language.(151)

To insure against distortion two major amend-ments were incorporated into the bill. Sen. Everett Dirksen (R-Ill.) amended it so that only “intentional” discrimination would be prohibited (147), while Sen. John Tower (R-Tex.) guaranteed that employers could continue to use, or to institute, professional tests, like the General Aptitude Tests, which were commonly conducted so businesses could ascertain, hire, and promote more able workers. (149-50)

By 1972—in the name of the Civil Rights Act of 1964—most tests were under challenge or aban-doned, while quotas (under the euphemisms “goals and timetables”) were being instituted throughout American industry, education, and government employment. Blacks and women were being hired, promoted, and given other special privileges such as scholarships, even then they were less qualified than white males. How did this perversion of the Civil Rights Act come about? That is the story of Graham’s The Civil Rights Era.

Graham, a supporter of affirmative action, de-fends the reversal of meanings that occurred in the name of the Civil Rights Act; yet, Graham has written an excellent book because he includes facts and quo-tations that may embarrass his case. He seeks to be objective in portraying what occurred, and he achieves this better than previous authors.

Unfortunately, some were determined to subvert the 1964 Civil Rights Act, and not just segregationists who quickly lost their battle to maintain apartheid in the South. More important in the assault upon the new law were a small number of strategically placed ideologues of the Left. These zealots, some of whom worked for the Equal Opportunity Commission, did not want the agency to function as created. Graham initially sees no “conspiracy” in what occurred, “not a grand design but rather an honest groping.”(191) Nevertheless, Graham himself finally relates: “The early EEOC thus functioned as quiet co-conspirators with the agency’s critics on the left. . . .” (236)

To move radically beyond the complaint model, the definition . . . [of discrimination] would have to be extended beyond the INTENT standard of the common law tradition, which was stipulated by Congress in Title VII, towards an EFFECT standard. This would require a shift in criteria from invidious intent on the part of discriminators to harmful impact upon members of the affected class. Such a radical shift was implicit in newly current metaphor of “institutional racism.” (191)

Alfred Blumrosen, who became the EEOC’s liaison chief for federal, state agencies, admitted that his “creative” reading of the Civil Rights Act of 1964 was “contrary to the plain meaning,” (195) but why worry? Graham adds that by 1965 when the Bank of America instituted quota hiring under a euphemism, “the standard refrain of the EEO bureaucracies: affirmative action had nothing to do with racial quotas. That was illegal.” (198) Unfortunately, the deceptive refrain is still heard today.

The goal of Sonia Pressman, another ideologue within EEOC, became “to document large disparities in employment patterns that discriminatory intent might legally be inferred.” (245) This would then place the burden of proof on the employer to show that he did not intentionally discriminate. (246) This logic “drove civil rights lawyers toward a model of proportional representation, yet one that seemed to require the disguise of euphemism, because it was statutorily proscribed in the enabling legislation.” (247) What Graham means is that the EEOC sought to impose quotas while not calling them such because quotas were clearly illegal. The agency sought to break the law. Graham adds, “The EEOC’s own official history . . . records with unusual candor the commission’s fundamental disagreement with its founding charter, especially Title VII’s literal re-quirement that discrimination be intentional.” (248)

Moreover, by 1967 the EEOC “was prepared to defy Title VII’s restrictions” (250) in its march toward imposing quotas. Graham justifies this subversion of the law: “By 1967 OFCC [Office of Federal Contract Compliance), like the EEOC on a similar scale, was accumulating a staff of activist black and white liberal reformers whose zeal for reinforcement . . . .” (285) Enforcement! They were not zealous in enforcing the law; they zealous in defying it!

In 1968 the Philadelphia Federal Executive Board and the U. S. Labor Department sought to integrate all-white craft unions by imposing quotas in hiring in new federal contracts. Opposition from both conservative Republicans and Democrat party labor constituencies, Johnson’s Labor Secretary Willard Wirtz quietly rescinded the plan in late November 1968.

Nixon’s election earlier that month seemed the death knell of the Philadelphia Plan, as it violated both the Dirksen amendment to the Civil Rights Act of 1964 on quotas, and traditional Republican principles on behalf of equal opportunity and merit. (322) But Nixon recognised how the plan might split labor from the civil rights movement, and thus divide the Democratic Party. Therefore, Nixon’s Secretary of Labor, George Schultz announced the renewal of the plan in the summer of 1969. This meant quotas: “At its heart was a model of proportional representa-tion.” (327) To avoid the work quotas, non-specific targets and ranges of minority hiring were used in determining who would receive the federal contracts. Furthermore, under Nixon’s Philadelphia Plan, “minorities” were expanded to include Mexicans, Puerto Ricans, and Cubans. (328) Even Graham concedes it was difficult to include Cubans under the theory of compensatory justice. Though Americans had not wronged them, Cubans were now given preferences over white Americans.

On 20 November 1969 Secretary Shultz extended the rules of the Nixon Administration on proportional representation in hiring of minorities to all federal contracts under Order No. 4. (341,343) On 3 Febru-ary 1970 Order No.4 was modified to include Asians and other minorities, and later in 1971, Revised Order No. 4 included women. (412) On 9 June 1970 the US Supreme Court declined to review the case of Weiner, which in effect legalised affirmative action plans by allowing a public college to reject a contract by the low bidder because it had failed to include an affirmative action plan. (341)

The Supreme Court also decided in such cases as Gaston County in June 1969 that even blameless actions by county officials could be illegal because they failed to balance a history of accumulated inequalities: thus, mere non-discrimination was insufficient to correct past injustice. (377) Preferences for minorities were thereby legal and frequently mandatory. As Graham notes: “the expansionist logic of the Warren Court was shaping legislative policy far beyond the confines either of the statutory language or of the will of congressional majorities.” (381) In the Griggs decision of 1971, aptitude tests were disallowed because whites performed better than blacks, and this “signified the Supreme Court’s transition from the equal treatment standards . . . . that underpinned the Civil Rights Act of 1964, to the equal results standards of new body of “disparate impact” case law that normatively rested on a model of proportional representation in the workplace. (383) After Griggs, the shorthand formula became: “If sufficient disparate impact is present, intention to discriminate need not be proved.”(390)

In 1971 the Equal Rights Amendment passed Con-gress overwhelmingly and was sent to the states for ratification. Yet Graham rightly notes, more impor-tant for women that year was Revised Order No. 4 of the Labor Department, which placed women among the “affected classes” of minorities, which in turn provided them favouritism, and promoted propor-tional representation of women in the work force. The ERA had sought equal treatment; the bureaucratic order provided preferential treatment.

In 1971 Congress decided to strengthen the enforcement powers of the EEOC, which had an enormous backlog and was perceived as a weak agency. On 15 September 1971 Representative John H. Dent (D-Penn.) proposed an anti-quota amend-ment, who was accepted by liberal Rep. Augustus Hawkins (D-Calif.), who had introduced the Demo-crats’ major new enforcement bill. The Hawkins bill, with the Dent amendment, was then seen by the Nixon Administration as another attack on the Philadelphia Plan. The Administration mobilized to defeat the proposed Democratic legislation. On 16 September 1971 Nixon won when the House narrowly rejected the Hawkins bill 197-202. A Republican enforcement bill which did not prohibit quotas was passed instead.

Graham writes: “It is this policy watershed, bet-ween classic liberalism’s core command against dis-crimination . . . and the new theory of compensatory justice . . . . that was crossed during 1966-69.” (456) Yet, his own book provides objections to this conclusion. By the end of 1968 the Philadelphia Plan, under the Democrats, was dead. Quotas were a bureaucratic policy lacking support from either Congress or the Johnson Administration. It was under Nixon that his Secretary of Labor Shultz, the EEOC, Attorney General Mitchell, and the Supreme Court under both Warren and Burger all invalidated the spirit and letter of the Civil Rights Act in order to impose quotas, destroy usage of objective testing and require preferential hiring of minorities and women. The watershed years were not 1966-68 under Johnson, but 1969-72 under Nixon. While Graham is remarkable among historians of affirma-tive action for giving credit to Nixon on this issue, Graham’s conclusion praising Johnson distorts his analysis.

Graham is excellent at exposing the hypocrisy of the EEOC, which demanded a proportionate work-force of others, but which skewed its own personnel. Blacks, 11% of population, became 49% of the EEOC employees. (459) Moreover, under President Carter the EEOC fired more of its white male employees, some of whom sued, and the EEOC was itself found guilty of racial discrimination. (460)

Graham sees the civil rights revolution as “part of a larger regulatory shift that lacked a central or self-conscious direction.” (462) He sees an analogy between the Griggs ruling and other court rulings on subjects like water pollution. “The technical stan-dards severed the direct link between intent to harm, because evidence of damage was sufficient, and hence proof of the polluter’s evil designs need not be adduced.” (466) The employer may have not have “intended” to discriminate, any more than Exxon intended to pour oil on Alaskan waters. The consequence, pollution or fewer blacks or women being hired, was the point. To prevent such consequences, affirmative action goals and timetables—quotas—were judged necessary. This was “no-fault civil rights.” (462)

Yet Graham notes some ironies in the present situation. Even in upholding preferential treatment for minorities in the Bakke case in 1978, Justice Harry Blackmun envisioned this as a “transitional” policy, one he hoped would end “within a decade at most.”(472) Former Chair of the EEOC, Eleanor Holmes Norton, also contends that affirmative action is a necessary, but temporary, tool. (472) Does anyone expect the huge affirmative action bureaucracy, those who demand hiring of the ill-qualified, promotion of the ill-suited, scholarships for the ill-prepared, all based on the proportional model—does anyone expect them to resign?

Despite my admiration for this work, I certainly have objections and quibbles. For example, Graham mentions that the Department of Health Education and Welfare guidelines caused dissention, but he neglects to reveal what the regulations were. (264, 374) Graham records that James Farmer of the Congress of Racial Equality was an early advocate of preferential hiring of blacks, and that he testified on behalf of the Civil Rights Act of 1964. But after 1966, Farmer disappears from the volume. However, in 1968 Farmer ran for Congress from New York on the Republican and Liberal tickets and lost. Farmer contends in his autobiography that he continued to press for affirmative action policies.¹Did Farmer have any influence upon Nixon? The Philadelphia Plan?

If Graham’s writing is not “poetic,” it is usually clear, which is an achievement. There is also a major weakness concerning Graham’s analysis of the women’s movement. He contrasts the traditional egalitarian demands of the Republican women’s groups to the “protectionist-law” tradition of Demo-cratic women. But he implies that, by 1971 with ERA, the Republican egalitarians had routed their Democratic opposition. However, had ERA become law, women might have lost the protection of affirmative action and other EEOC preferences. Women might have had to compete against men on an equal footing, and consequently, in many fields, they might have failed in large numbers. The “protectionist” Democratic approach of providing preferences to women in many fields seems to have defeated the GOP women’s egalitarianism after all. ERA was defeated when the states failed to ratify; it was defeated by the EEOC, the OFCC, and the Supreme Court in rulings like Griggs.

Graham notes that earlier in this century many regulatory commissions were captured by the corporations they were supposed to regulate. Thus, the airlines often dominated the Civil Aeronautics Board; the media, the FCC, etc. But with the new social agencies, the “victim-clients” did most of the capturing. Coordinated by the Leadership Confer-ence on Civil Rights, the zealots first captured the Civil Rights Commission, then the EEOC, the OFCC inside the Labor Department and similar agencies in other departments. The agencies continued to enforce racial preferences even in defiance of the Reagan Administration’s color-blind policy. However, instead of Graham’s triangle, I contend that what has been an iron pentagon—for in addition to the civil rights establishment, the agencies, and the courts, there has been near unanimity of academia and the media in proposing, endorsing, and propagating affirmative action.

Academia has provided experts in developing the proportional model theory upon which affirmative action programs are based. Academia has promoted and published like Hanes Walton, Jr., and Kathanne W. Greene whose books are little more than briefs for affirmative action.² Academia has provided scholar-ships based upon race and sex, and then sought to indoctrinate the student body that such preferential programs are just. When white (or even Asian) students object to the double standards, adminis-trators lament the “racist” atmospheres on their campuses. Yet, administrators sue to apply double standards, dropping university standards to the lowest level in the name of “diversity.” And they use the double standard all in the name of equality!

Similarly, the media will often report racial and sexual stories only from a liberal viewpoint. For years, even in prime-time television, Americans have been subjected to propaganda. When “Quincy” had to confront affirmative action programs at a hospital, it was a white bigot, not a black, who caused a patient’s death. In 1990 when a CBS-TV miniseries featured Boston’s school busing crisis of the early 1970s, the series failed to reveal what happened to the schools after busing; few outsiders would be aware that the public schools of Boston became 80% minority. Such an omission by CBS hardly an oversight. And Mark Snyderman and Stanley Roth-man reveal how the media consistently distort the question of IQ tests and the possibility of differences on average intelligence between racial groups.³ Though most of those involved in the testing believe such differences exist, the media and general academia ignore the majority of experts to publicise opinions of socialists like Stephen Jay Gould who reassure the Left that all large groups are equally gifted, that intelligence tests intelligence tests are inaccurate, racist, etc. The media and academia have allowed only one approved approach on affirmative action be heard. Any other perspective is deemed “racist,” or “unscientific,” or “insensitive.”

Incredibly, Graham’s account omits all mention of the major revision of the nation’s immigration laws that occurred in 1965. After the “reform,” millions began to enter America, legally and illegally; especially from Asia, Africa, South and Central America, and Mexico. And under affirmative action, the greater the percentage of “minorities” in the population, the higher the goals for their hiring and promotion set by EEOC. So with affirmative action and preferential hiring of minorities, newcomers to the United States are given preference over native-born white Americans! Even the phrase “native American” has been taken from those born here and whose ancestors may have been here for centuries and applied on EEOC forms only to a tiny minority. The result of a combination of large-scale immi-gration from Third World countries, hiring of people of color has been enormous discrimination against English-speaking white males.

Some of the most interesting reading in Graham’s fascinating volume summarizes Daniel Moynihan’s 1969 report on race to the newly elected Richard Nixon. Moynihan interpreted a school strike in New York for Nixon: “The origins of the strike lay primarily in the failure of the New York City school system, which had transformed two generations of Jewish immigrants into the intellectual elite of the world’s most powerful nation, to be able to bring its black students, now almost a majority, up to grade level ....” (310-11) As blacks did poorly in schools where others well, they sought scapegoats—the Jews. Blacks “would therefore demand the Jewish teachers’ jobs .... Their demand for Black Studies programs at universities was ‘essentially a demand that black professors be hired to teach black students to read books by black authors, thereby displacing the white — typically Jewish — professors and writers ....” (311)

The proportional idea that Moynihan warned of in 1969 and which Pressman and Blumrosen were developing inside the EEOC is the only model presented in detail by Graham. An alternative is barely alluded to in Graham’s discussion of Moyni-han. Simply put, if the proportional mode corres-ponds to reality, then there may have been some reason to institute affirmative action and quotas for short periods of time. But what if the model is flawed? What if all people—all groups of people—are not equally talented in all fields? Should the government require that 4 of 5 players on each basketball team be white? That 4 of 5 boxing champions be white?

If the proportional model is not reflective of the natural talents of differing groups, then white males have been victims of discrimination by the US government for 20 years, victims because of an unproved and possibly unscientific theory imposed upon American industry and government by a few bureaucratic and judicial ideologues—and a resigned President.

The most regrettable aspect of Graham’s analysis is his acquiescence in what he calls the regulatory state. Graham acknowledges that most Americans have never approved of affirmative action, prefer-ential hiring, or quotas. He should rethink his position. The people oppose discrimination based on Jim Crow AND discrimination based affirmative action. Though this system began with Nixon, his rhetoric obscured that fact. Since then, leading Republicans like Reagan have rejected affirmative action, while Democrats, like Carter, Mondale, and Dukakis, have embraced it. Consequently, the double-standard Democrats have suffered a series of overwhelming national defeats.⁴

Graham has written a fact-filled account describing a major change in America. His Civil Rights Era reveals little about the destruction of segregation in the South, but we can read of that elsewhere. What is unique about Graham’s account is that he exposes much of what has remained hidden: how the government’s attempt to treat all its citizens equally with the Civil Rights Act of 1964 was subverted by a small elite to become system of racial and sexual favoritism and quotas. Graham’s account will become the chief reference on this complex transformation.

¹ James Farmer, Lay Bare The Heart: An Autobio-graphy of The Civil Rights Movement (New York: Arbor Press, 1985), pp. 315-36.

² Hanes Walton, Jr., When The Marching Stopped: The Politics of Civil Rights Regulatory Agencies (Albany, N.Y.: State University of New York Press, 1988) a vol. in SUNY Series in Afro-American Studies, ed. by John Howard and Robert C. Smith; and Kathanne W. Greene, Affirmative Action and Principles of Justice (Westport, CT: Greenwood Press, 1989) Contributions in Legal Studies, No. 53, Paul L. Murphy, series editor.

³ Mark Snyderman and Stanley Rothman, The I.Q. Controversy, The Media, and Public Policy (New Brun-swick, USA & Oxford, UK: Transaction Books, 1988).

⁴ Frederick R. Lynch and William R. Baer, “‘You Ain’t the Right Color, Pal’: White Resentment of Affirmative Action,” Policy Review (Winter 1990): 64-67.