At present, it seems that there is nothing new to be added to the ongoing controversy about affirmative action. So much has been written by now that the issue itself seems to have grown stale, mired in tired rhetoric and unthinking assertion.
On one side are the advocates of women, blacks, Hispanics, gays, the handicapped, veterans and others who have or seek protected status, and on the other are those who find special treatment of any kind objectionable. The former insist that their rights will be trampled if affirmative action ends, while their critics complain that preferences based on such criteria as race, sex and national origin turn the meaning and purpose of the Civil Rights Act upside down. By now, we have many times heard the arguments from both sides, and there seems to be no way out of the dilemma, other than through the marshalling of political power to impose the views of one side on the other.
Yet, the quagmire that this aspect of social policy is stuck in may be an artifact of the language of the Civil Rights Act. The deadlock, I suggest, results from the manner in which civil rights protections are written, not from any lack of clarity about their purpose. Anyone who has read the testimony before Congress in 1963 and '64, and the speeches of the sponsors of the Civil Rights Act, knows that the intent of Congress was to end invidious discrimination, whatever its source.
In passing the Civil Rights Act of 1964, Congress specified that certain kinds of discrimination would henceforth be illegal. In the years since then, groups that wish to have the special protection of the law have clamored to be added to the official list of protected minorites. In practice, this has meant competition for preferences, even for quotas, in hiring and in admission to competitive schools.
So long as we stick to the original practice of listing those groups that may not be discriminated against, those who are outside the mantle of civil rights protection will continue to seek protected status. The possibilities for the future were suggested in a report of the United States Commission on Civil Rights last year, which held out hope that white European ethnic groups might eventually receive the same federal protection now extended to blacks, Hispanics, women, American Indians and Asian-Americans. Despite the efforts of the present administration to undo affirmative action, there is already a substantial body of judicial opinion directing the allocation of jobs and status by race, sex, ethnicity and other such criteria.
There is a sensible and relatively painless way out of this deadlock. In accordance with our civil rights laws, every institution should adopt a straightforward declaration of nondiscrimination without naming the specific groups that will not be discriminated against. Every university, government agency, private employer and public institution might adopt as its policy the following statement: "We discriminate only in preferring those with the professional competence to perform the job for which they are hired. On no other grounds do we discriminate."
Each institution should clearly state the grounds on which it does discriminate. For example, a women's college might say in its catalogue, "In the selection of students, we admit only women, because we are a college historically committed to the higher education of women; furthermore, we prefer to admit students who have demonstrated the academic capacity to benefit by the kind of education that we offer. On no other grounds do we discriminate."
Would it not be eminently reasonable to reverse the customary language in this manner, so that each institution acknowledges the grounds on which it does discriminate and foreswears every other form of discrimination? This would remove no present rights: if a woman or black or gay or Hispanic or handicapped person failed to gain a job or promotion for which he or she was competent, then the courts would still be available for redress. Indeed, the protection against discrimination would be extended even more fully to cover not just those on a politically determined list of protected minorities, but also people who are discriminated against because of their height, weight, age, facial characteristics, or any other quality other than their competence to do the job.
The present semantic stalemate has become the province of vested interest groups, who have no interest in changing the rhetoric of preferences and quotas and affirmative action. Yet, in that direction, unless we change course, lies a society in which all jobs, promotions and admissions to competitive institutions will be allocated on the grounds of race sex religion and national origin, rather than without regard to such factors. Fresh thinking by Congress is needed now to restore the original equalitarian goals of the Civil Rights Act.