The House of Representatives last week by 273-158 passed the Civil Rights Act of 1991. So should the Senate, and the president should sign it.
And yet, the shrill debate promises to continue over whether it is a bill establishing quotas in hiring and promotion. This spending of emotion unfortunately shrouds what is really the best thing about the act: the realignment of the burden of proof in cases alleging discrimination. In cases of suspected discrimination in hiring and promotion, the act would shift the burden of proof from employees back to employers -- where it was until the Supreme Court decided otherwise two years ago.
While the most controversial part of the discussion raged over whether the act is a quota bill, the real issue is not quotas at all; quotas are abhorred by liberals and conservatives, Democrats and Republicans alike. The real issue is the future of affirmative -- action. It is time for liberals to accept a civil rights bill which at once protects minorities and ends affirmative action and race preference programs.
As a policy that gives special consideration to minorities in hiring and promotion and admission to school, affirmative action is a principle whose time has passed. After nearly 25 years, a program once thought to be temporary has become permanent. Race preference programs are humiliating to the minorities who supposedly benefit from them. The failure of Congress to override President Bush's veto of last year's civil rights bill was a significant step toward ending the enterprise which, while once appropriate, should now cease.
The current bill is a first step in this direction because it accomplishes two goals. First, despite the accusation from the White House and the Republicans that it is still a quota bill and the president will most certainly veto it, the language of this year's act specifically prohibits quotas. This is an important statement to make. It is more than symbolic. It represents the sense of the Congress that while it will not tolerate racial or gender discrimination, past experience does not automatically lead to affirmative action programs.
Second, all three competing civil rights bills that were before the House (one each from the Democrats, the White House and the Congressional Black Caucus, although the latter two were defeated last week) would have shifted the burden of proof in cases of discrimination back to the employers. This is the most powerful and fitting statement of non-discrimination in hiring that Congress and the president could make. If a corporation is found guilty, it may face both compensatory and punitive damages.
These policies do not, however, amount to affirmative action. To be offered a job, a promotion, or a place in a college classroom because of one's race and not because of one's achievement is merely another means to treat minorities as inferior, second-class citizens. It is time to end all affirmative action programs.
This does not necessarily mean that race should be totally eliminated when applicants are clearly qualified. Last December, for example, controversy arose when a U.S. Department of Education staff member eliminated the right of colleges to offer special minority scholarship programs. Such programs clearly should never have been abolished because awards are given on merit, and not merely race. President Bush appreciated this distinction and intervened to reinstate it.
Affirmative action sounded like a good idea, especially to liberals, when President Lyndon Johnson proposed it as national policy in his 1965 Howard University commencement address. In a statement that has been repeated time and again to justify and legitimize the principle, he said, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line and then say, 'You are free to compete with all the others,' and still justly believe you have been completely fair."
As a result of President Johnson's proposal for not only "legal equity," but what he called "equality as a result," hundreds of race-conscious, local, state, and federal agencies immediately enacted set-aside programs. It has affected the hiring hall as well as higher education admissions, often causing institutions to set goals which allow for the entry, advancement and promotion of minorities whose qualifications and test scores fall below the minimum set for their non-minority counterparts.
Conservatives have always opposed these programs, claiming that American society was built on merit and talent. Provide remedial educational and skill training programs for minorities, they have argued, but affirmative action flies in the face of individual ability and accomplishment.
Why, they ask, is it right for people to be admitted to a schools if their qualifications don't merit admission? Why should a person who is less skilled be given preference for a job or a promotion over someone whose credentials clearly merit it?
Liberal supporters, in response, have argued that the historical experience of slavery and racial discrimination requires these programs. More importantly, the history of the United States demonstrates that white America has had its own "white" affirmative action program for 200 years which is why it must now continue for blacks in particular.
However, the means to accomplish this end is not through affirmative action. The only way in which all people will be equal at the starting line, to use Lyndon Johnson's analogy, is when everyone has equal opportunity to achieve the same standards in education, training and skills. (The Civil Rights Act of 1991 rightly prohibits "race-norming," a widespread practice where scores on aptitude tests are compared separately for whites, blacks and Hispanics, thus giving an advantage to those in the latter two categories whose scores generally fall below their white counterparts.)
Liberals should admit that affirmative action has gone as far as it can go. Large numbers of minorities have been employed or promoted in jobs or admitted to colleges and universities as a result of the programs. The fact is that affirmative action is demeaning to those members of minorities who are made to feel inferior as a result of it. These programs stigmatize blacks in particular and cannot help but make them feel unworthy, doubting their abilities and talent.
In addition, it is undeniable that white society has become increasingly frustrated and angry about the preferences given to its black neighbors. Fairness is no longer assured when a person is turned down or rejected for reasons other than merit and talent.
These issues were essentially skirted over during the bitter battle over last year's Civil Rights Act of 1990. Unfortunately, the focus on the bills now before the Senate, is still on whether they, while not requiring quotas, would actually cause industry to establish quota-system hiring.
The real problem in America is not quotas vs. goals. It is poverty and how to overcome it. This is the arena, and not affirmative action, in which liberals must place their energy, emotions, and resources. This country has to provide to minority groups the means to obtain the education, skills and training they need to compete in the marketplace, which was why minority scholarships are so vitally important to poor, black students who are clearly qualified and deserving of these funds for their higher education.
If we do not move to resolve the economic issues that separate the races, then we are doomed to face a new round of racial tensions during the last decade of this century.
Jack Fruchtman, Jr., who teaches politics and directs the prelaw program at Towson State University, is completing a book entitled "In Defense of a Skeptical Liberalism."