Statistical justice - criticism of Civil Rights Restoration Act

National Review, April 16, 1990

AT THE SAME TIME that the United States pursues a "race-neutral" policy in South Africa, some members of Congress seem determined to create a domestic regime in which race becomes the paramount consideration. The latest civil rights" initiative, introduced by Senators Edward Kennedy and James Jeffords (the latter, a Republican from Vermont, quickly replacing Lowell Weicker as the senator most likely to confer bipartisan" status upon the proposals of the former), would overturn several important civil-rights decisions handed down last term by the Supreme Court.

This continues a familiar legislative pattern over the past decade. To tinker with High Court decisions that are compatible with liberal interests, it is argued, reflects disrespect for the Court and the Constitution. Where the liberal ox is gored, however, legislative responses are entirely appropriate. That is why, for example, a Senator Packwood can trash a "right-to-life" constitutional amendment during Roe's ascendancy on the grounds that it would contravene the magisterial pronouncement of the Court, but now, post-Webster, urge enactment of his own "right-to-choice" amendment. It is also why virtually every civil-rights decision by the Court over the past decade that was at all favorable to conservatives has been met with successful congressional overrides.

The latest civil-rights proposal is perhaps the boldest of all in moving toward unambiguous racial quotas in the private sector. Whereas discrimination as traditionally understood focused upon wrongful motives or purposes-did an employer hire or treat his employees differently on account of race or skin color?-the "Civil Rights Restoration Act of 1990" would embed in the law the notion of discrimination as consisting of mere statistical disparities.

The Act would not only overturn a 1989 Court decision clarifying, sensibly, that the burden of proof in employment-discrimination cases rests with the plaintiff, but would also allow such plaintiffs to prevail without even alleging (much less proving) real discrimination of the traditional sort. Rather, an employee could successfully sue by demonstrating a) that the employer has few minority employees compared to some index based upon minority applicants or minority population in a neighborhood, city, region, or state; and b) that the employer had adopted some hiring or promotion procedure that conceivably could have been a factor in this statistical outcome. Given that few employers hire or promote on a random basis, the existence of requirements of educational attainment, experience, literacy, aptitude, or personality would suffice to entangle virtually any employer who fell short of racial quotas in each unit and job level of his enterprise. Only if employers could persuade a judge or jury that each of their hiring and employment procedures was "essential" to the conduct of the business could they avoid substantial legal penalties.

The "Civil Rights Restoration Act" would elevate considerations of racial balance above any other employment consideration. In the process, it would further transform modern civil-rights law into a powerful force on behalf of racial discrimination and gross injustice. Where is Randall Robinson when our country needs him?