Suspense was less than intense when President Bush met with advocates of "The Civil Rights Act of 1990." Ostensibly, the question was whether he might abandon his veto threat. Actually, there never has been serious doubt but that he will sign whatever Congress enacts labeled "civil rights."
This is so even though this year's bill, whose prime mover is Sen. Ted Kennedy, mocks the core tenet of what once was the civil-rights movement. That tenet is: Rights inhere in individuals and do not derive from membership in government-favored minority groups.The bill will not, as its advocates assert, simply overturn some of the most important decisions rendered last year by the Supreme Court with its new conservative majority. It will, by traducing the principle that defendants are presumed innocent, drive America deeper into the quagmire of racial quotas.
Last year the court acted to make enforcement of the 1964 Civil Rights Act compatible with assurances that were given when it was enacted. That act stipulates that no employer shall be required to grant preference to any individual because of race or other group attribute or shall be required to achieve racial balance in his work force reflecting the composition of the available population.
Nevertheless, statistical disparities between employment patterns and the composition of local populations soon came to be treated by courts as sufficient to create a presumption against the legality of employment practices that have a "disparate impact" on various groups. But last year the Court re-established the correct interpretation of the 1964 Act. The court adjusted the burden of proof so that mere statistical imbalance would not virtually guarantee that plaintiffs would prevail. Hiring practices could be invalidated only for discriminatory motives or for statistical consequences that could not be explained by legitimate business considerations such as hiring or promotion by merit.
Critics of the court argue, in a crashing non sequitur, that such condemnation is difficult to achieve, and therefore wrong. The strange premise is that plaintiffs' successes are the proof of justice.
However, supporters of the 1990 bill do not merely want to mandate continued misapplication of the 1964 law. They also want to make employers' situations so threatening that they will engage in reverse discrimination as insurance against ruinous litigation. The 1990 bill will do so by placing on employers the burden of demonstrating that a "disparate impact" of a
hiring practice is demonstrably and substantially related to "effective job performance."
The closed reasoning of many civil-rights organizations is: All standards (hiring, academic, etc.) are socially conditioned. American society is permeated by racism. Therefore, all standards are at best suspect and at worst illegal.
Such reasoning dovetails with the assumption that employers should be presumed, on the basis of statistical disparities resulting from their practices, to be guilty of racial discrimination until they prove themselves innocent.
Because many people fear being charged with "blaming the victim" (and because they accept the assumption that minorities are always victims), they rush to condemn practices on the basis of statistical results. Besides, it is easier, and politically profitable, to blame racism rather than face the long, hard chore of rectifying the social deficits of disadvantaged minorities. For all their professed militancy, people who focus on statistical disparities as proof of racism encourage underestimation of America's real social problems.
The 1990 bill, ostensibly designed to halt the slide into "two nations," actually codifies that division by defining certain minorities as protected classes, permanent wards of government.
Supporters of the bill have made minor modifications, so the Bush administration says its disagreements are now "minimal." So, it seems, is interest in achieving a color-blind society.