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>Date: Wed, 27 May 1998 16:13:50 EDT
>Sender: H-Net Labor History Discussion List <H-LABOR at h-net.msu.edu>
>From: "Seth Wigderson, University of Maine-Augusta"
> <SETHW at MAINE.MAINE.EDU>
>
>EH.NET BOOK REVIEW
>
>Published by H-Business at eh.net and EH.Net (May, 1998)
>
>Paul D. Moreno. _From Direct Action to Affirmative Action:
>Fair Employment Law and Policy in America, 1933-1972_. Baton
>Rouge: Louisiana State University Press, 1997. 311
>pp. Bibliographical references and index. $35.00 (cloth),
>0-8071-2138-X.
>
>Reviewed for H-Business and EH.Net by Charles A. Shanor,
>Professor of Law, Emory University
>
>_From Direct Action to Affirmative Action: Fair Employment Law
>and Policy in America, 1933-1972_ fills a void in the history of
>an idea which has both captured and divided America over the
>past quarter century. The idea is that proportional
>representation (more or less) of racial groups, particularly in
>the employment context, is desirable social policy. The work
>thus complements Andrew Kull's _The Color-Blind Constitution_.
>
>Prior to the New Deal, Moreno argues, there was no affirmative
>action ideology of any significance. He finds "no support for
>benign racial classification" in the Reconstruction Era, which
>was dominated by the "effort to eradicate invidious racial
>classifications." For example, when the original version of the
>Freedman's Bureau Act of 1864 was limited to freedmen only, the
>Republicans who controlled Congress amended it to cover
>"refugees and freedmen" with "no distinction of color." Only
>racist opponents of equality under the law argued that the law
>created a "benign classification" favoring blacks. Indeed,
>many advocates of equal civil and political rights at that time
>embraced "social" discrimination against black Americans. From
>the end of Reconstruction to the New Deal, there was no
>significant discussion of affirmative action for blacks: both
>the Supreme Court and legislative bodies reiterated views that
>"reasonable racial classifications" disadvantaging blacks were
>perfectly legal.
>
>Moreno's central thesis is that "The great depression, the
>maturation of civil rights organizations, and the New Deal's
>change in American principles of property rights and labor
>policy" precipitated a shift to "our modern concept" of
>proportional racial representation in employment. The early
>1930s "Don't Buy Where You Can't Work" campaign is illustrative.
>Direct civil rights actions were mounted against employers
>having "token" black employees as well as those having totally
>segregated workforces. One early case (involving picketing to
>demand that Beck Shoe Company in New York hire blacks as 50
>percent of their workforce) was commented upon with much
>ambivalence in Harvard, Columbia, and NYU law review pieces.
>The focus of the decision and the articles was whether "labor
>controversy" in the Norris LaGuardia Act included picketing for
>proportional racial employment, not the merits or application of
>such an employment policy.
>
>The central player in winning this issue, ultimately with the
>U.S. Supreme Court, was lawyer (and later federal judge) William
>Hastie, who represented the _New Negro Alliance_ in
>Washington D.C. In a nutshell, Hastie argued that "while in
>theory there can be segregation without unequal treatment," any
>negro who uses this theoretical possibility as a justification
>for segregation "is either dumb, or mentally dishonest." W.E.B.
>DuBois responded that the Alliance was "fighting segregation
>with segregation" without admitting it. In the Supreme Court,
>Hastie expanded his argument with a Brandeis brief which
>included disproportionate unemployment and welfare statistics
>for blacks in Washington, as well as underemployment statistics
>in particular lines of work compared to population statistics.
>As Moreno summarizes the argument, "the alliance tried to use
>social science not to combat segregation, but to insist that
>segregation truly be equal." The Supreme Court's 1938 ruling in
>New Negro Alliance held that injunctions could not be entered by
>federal courts because the "Don't Buy" picketing was a "labor
>dispute" under Norris-LaGuardia.
>
>Within the Roosevelt Administration, Harold Ickes, as
>administrator of the Public Works Administration, settled on a
>plan requiring that the skilled labor payroll on PWA projects
>match the percentage of blacks in the occupational census. In
>response to Urban League criticisms that this was insufficient,
>Ickes' staff explained this was a minimum, not a maximum, and
>fended off efforts to tie quotas to unemployment levels rather
>than the 1930 occupational census. TVA and other New Deal
>agencies adopted similar quota systems, though they sometimes
>maintained officially that their policies were not to
>discriminate.
>
>The economic boom and full employment brought on by World War II
>ended for a time further consideration of proportional racial
>representation in employment. Then, in 1947-48, a California
>case, _Hughes v. Superior Court_, brought the issue of
>proportional representation to the nation's attention. A split
>decision by the California Supreme Court upheld an injunction to
>stop picketing designed to urge an employer that discriminated
>against blacks to adopt proportional hiring policies. The
>majority held that "If Lucky [Stores] had yielded to the demands
>of [Hughes], its resultant hiring policy would have constituted,
>as to a proportion of its employees, the equivalent of both a
>closed shop and a closed union in favor of the negro race."
>Justice Roger Traynor's dissent countered: "Those racial groups
>against whom discrimination is practiced may seek economic
>equality either by demanding that hiring be done without
>reference to race or color, or by demanding a certain number of
>jobs for members of their group." "No law," argued Traynor,
>"prohibits Lucky from discriminating in favor of or against
>Negroes. It may legally adopt a policy of proportionate
>hiring." Hughes appealed to the U.S. Supreme Court. Justice
>Frankfurter's opinion, upholding the injunction, concluded that
>the California courts had legitimately distinguished picketing
>against discrimination (lawful) from picketing to compel
>discrimination (unlawful). It did not address the issue of
>proof of discrimination, ignoring both Hughes' claim that
>discrimination was proved by the disparity between the black
>population and the number of black employees, and Lucky's
>argument that its hiring of a few blacks showed
>nondiscrimination.
>
>One of Moreno's most significant contributions to understanding
>the conversion from the "colorblind" to the "proportional
>representation" model in the fair employment field lies in two
>chapters concerning operation of the fair employment laws in New
>York from 1945 to 1965. During the first of these decades, the
>State Commission Against Discrimination pursued the former
>strategy almost exclusively. In the second decade, following
>Brown v. Board of Education (a case which involved significant
>tension between "color-blind legalism and color-conscious
>sociology"), New York's state commission drew increasing
>criticism from civil rights groups for focusing on individual
>complaints and for requiring proof of intentional
>discrimination. Because black unemployment remained far higher
>than white unemployment, and black wages continued to trail the
>wages of whites, advocates began focusing on group rights,
>compensation for past discrimination, and a national approach to
>employment discrimination.
>
>At the federal level, government contracting rules moved,
>between World War II and the early 1960s, from an equal
>treatment model of nondiscrimination to race-conscious
>proportionalism. Most of this change took the form of
>encouraging employers to engage in voluntary racial preferences,
>however, since the federal contracting regulations explicitly
>avoided supporting racial quotas. By the early 1960s, both
>civil rights groups and President Kennedy began to view Congress
>as the next stage for combating discrimination. The story of
>Title VII's enactment has often been told, and this book adds
>little to that drama. It does focus, however, more than most
>retellings, on the outcome of that drama: The impact of Title
>VII would depend on how the EEOC and the Justice Department
>defined their roles under the statute and how the courts
>received that definition. Civil rights groups feared that the
>statute protected individual rather than group rights, outlawed
>only discriminatory acts committed after its enactment,
>prohibited preferential treatment, and protected discriminatory
>seniority systems and ability tests. Their next step was to
>convince the EEOC and the Justice Department that the statute
>was not as restrictive as it appeared. This regulatory
>reshaping of statutory law included: EEOC's early focus on
>large national employers having few black employees; expansive
>use of class actions by EEOC and DOJ because "race
>discrimination is by definition class-based discrimination";
>governmental efforts to narrow the seniority system defense; and
>EEOC guidelines attacking tests having a disparate impact.
>
>Moreno agrees with other scholars that "Employment
>discrimination law and policy had been radically transformed in
>the five years following the Civil Rights Act of 1964...racial
>proportionalism was in a practical sense the measure and remedy
>of discrimination, including preferential treatment and quotas."
>What was left was for the courts to ratify this strategy of the
>agencies. This the Supreme Court did, unanimously, in _Griggs v.
>Duke Power Company_ (1971). The Court's decision, though very
>much at odds with some of the language and legislative history
>of Title VII, was of overarching importance. Moreno writes:
>"For the next twenty years, the development of Title VII law
>would be based not on what Congress meant in Title VII but on
>what the Court meant in Griggs." By 1970, preferential
>treatment and quotas were publicly defensible in ways
>unacceptable only a decade earlier. Efforts by the Reagan
>Administration in the 1980s to reverse this trend were
>unsuccessful, and the Civil Rights Act of 1991 embedded
>proportionalism in the fabric of statutory law: "[T]he
>disparate-impact system, engineered by legal scholars, and
>ratified by the courts, in defiance of the statute under which
>they operated, in place for two decades by tacit consent of
>Congress and the president, at last gained popular consent."
>
>All in all, Moreno's book ably chronicles the paradigm shift
>from the antidiscrimination norm to the racial proportionalism
>norm. However, Moreno's closing words concerning the eclipse of
>the American Creed of equal treatment is ironic, for he may have
>measured the 1991 high-water mark of the paradigm shift just as
>the waters of proportionalism began to recede. Interestingly,
>Moreno does not chronicle the passage and judicial validation of
>California's Proposition 209 (barring preferential treatment by
>race, gender, and other characteristics). Nor does he mention
>the Supreme Court's application of strict scrutiny standards to
>racial affirmative action programs in the Croson and Adarand
>cases. In short, the battle between these two paradigms
>continues, and "popular consent" to proportionalism is far from
>being the final word on this controversial issue.
>
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