The Bill of Rights in Modern America: Revised and Expanded

10. Equal Protection and Affirmative Action

10 Equal Protection and Affirmative Action   Liberty and equality, proclaimed as self-evident truths in the Declaration of Independence, are the fundamental principles of republican government in the United States. For almost a century after 1776, the existence of slavery denied liberty and mocked equality. The destruction of slavery during the Civil War, followed by the Reconstruction constitutional amendments, extended liberty to four million previously excluded black persons and established fundamental equality in civil rights. A century later the Civil Rights Act of 1964 repudiated the counterfeit equality of the separate but equal doctrine, adopted in the late nineteenth century as a constitutional expression of contemporary racial-group thinking. The culmination of decades of struggle for genuine equality of civil rights, this landmark legislation prohibited discrimination against any individual because of race, color, religion, and national origin in a wide range of public and private activities. The Civil Rights Act made equal rights for individuals the controlling principle of civil rights policy in the United States. Before the 1960s the idea of equality rarely dominated debates on public policy.1 The Civil Rights Act of 1964 altered the status of this basic principle, elevating it to ideological preeminence and making it a continuing preoccupation of American politics. Underlying the 1964 act was a national consensus that the Constitution extends its protection equally to every person as an independent individual. Since the late 1960s that consensus has disintegrated . In its place has arisen the radically different idea of equality among racial and ethnic groups, implemented through proportional representation , as the primary meaning of equal protection. Affirmative action is the vehicle of this new definition. The term refers to government policies that directly or indirectly award jobs, admission to colleges and professional Equal Protection and Affirmative Action / Belz | 191 schools, and other social goods to individuals on the basis of membership in designated protected groups. Its purpose is to compensate those groups for past discrimination caused by society as a whole. This essay will examine the contested meaning of equality in contemporary civil rights policy by focusing on equal employment opportunity as well as admission to higher education and the emergence of affirmative action. Title VII and the Origins of Affirmative Action Although the idea of group rights appears in many areas of civil rights policy , its use in employment and higher education raises peculiarly acute issues of broad significance for liberal democracy in the early twenty-first century. Prior to the Civil Rights Act, national law permitted employers to select employees according to race or any other consideration, except for the National Labor Relations Act’s restrictions on discrimination for labor union activity. Affirmative action in employment disregards the limitation on government power inherent in the prospective nature of the antidiscrimination principle of the Civil Rights Act. Extending to practices that were lawful when they occurred, it in effect declares them retrospectively unlawful in order to justify awarding economic benefits to members of groups designated as victims of societal discrimination. Unlike other civil rights issues , moreover, employment presents highly relevant questions about the qualifications of applicants that are in turn related to property rights and legitimate business considerations. In civil rights questions such as voting and desegregation of schools and public facilities, there is an unlimited number of goods available—for instance, ballots to be cast or places to be occupied— but individuals compete for a limited number of jobs. Affirmative action in employment thus poses the issue of government regulation as an instrument of social redistribution and brings into conflict the civil rights both of employers and individuals who are members of protected and unprotected groups. Because laws against racial discrimination in employment potentially threatened business freedom and the operation of the labor market, resistance to national legislation on equal employment opportunity was stronger than to other civil rights reforms. Although after World War II many states created fair employment practice commissions, the idea of a national ban on employment discrimination got nowhere between 1946, when President Roosevelt’s wartime Fair Employment Practice Commission expired, and the early 1960s. The formation of a powerful national movement for civil rights reform made it possible in 1964 to include employment discrimination in the omnibus Civil Rights Act.2 Title VII of the Civil Rights Act prohibited discrimination in private employment in business firms and labor unions with twenty-five or more employees or members.3 Congress declared it unlawful to...