Knowledge And Decisions

The first official use of the phrase “affirmative action” in a racial or ethnic context was in an Executive Order issued by President Kennedy, requiring that government contractors act affirmatively to recruit workers on a nondiscriminatory basis.⁶³ Another equally general Executive Order was issued by President Johnson, requiring affirmative action to insure that workers be hired “without regard to their race, creed, color, or national origin.”⁶⁴ The Civil Rights Act of 1964 likewise repeatedly required in its various sections that hiring and other decisions be made without regard to race or ethnicity.⁶⁵ In short, special efforts were to be made to include previously excluded racial or ethnic groups in the pools of applicants, though the actual decisions among applicants were then to be made without regard to race or ethnicity. This was the initial thrust of “affirmative action.”

Both the presidential orders and the congressional legislation required various administrative agencies — existing and newly created — to carry out and formulate more specific policy on a day-to-day basis. It was here that “affirmative action” was transformed from a doctrine of prospective equal opportunity to a doctrine of retrospective statistical “representation” or quotas. This transformation was all the more remarkable in the light of the explicit language and legislative history of the Civil Rights Act of 1964, which expressly repudiated the statistical representation approach. While steering this legislation through the Senate, Senator Hubert Humphrey pointed out that it “does not require an employer to achieve any kind of racial balance in his work force by giving any kind of preferential treatment to any individual or group. ”⁶⁶ There was an “express requirement of intent” before an employer could be found to be guilty of discrimination.⁶⁷ Ability tests would continue to be legal, even if different proportions of different groups passed them.⁶⁸ Another supporter, Senator Joseph Clark, pointed out that the burden of proof would be on the government to show discrimination under the Civil Rights Act.⁶⁹ Still another supporter, Senator Williams of Delaware, declared that an employer with an all-white work force could continue to hire “only the best qualified persons even if they were all white.”⁷⁰ All these assurances are consistent with the language of the Civil Rights Act⁷¹ but not with the actual policies subsequently followed by administrative agencies.

A series of Labor Department “guidelines” for government contractors began in 1968 with requirements for “specific goals and timetables” involving the “utilization of minority group personnel,” and by degrees this evolved into “result-oriented” efforts (1970) and finally (1971) it meant that the employer had the burden of proof in cases of “under-utilization” of minorities and women, now explicitly defined as “fewer minorities and women in a particular job classification than would be expected by their availability...”⁷² These so-called guidelines had the force of law, and given the large role of the federal government in the economy, the affected government contractors and subcontractors included a substantial proportion of all major employers. The “availability” of minorities and women, as judged by administrative agencies, often meant nothing more or less than their percentage in the population.

“Representation” based on population disregards huge differences in age distribution among American ethnic groups, due to differences in the number of children per family. Half of all Hispanics in the United States are either infants, children, or teenagers. Their median age is about a decade younger than that of the U.S. population as a whole, two decades younger than the Irish or Italians, and about a quarter of a century younger than the Jews.⁷³ Such demographic facts are simply ignored in statistics based on “representation” in the population, which includes infants as well as adults. The high-level positions on which “affirmative action” attention is especially focused are positions usually held by persons with many years of experience and/or education — which is to say, persons more likely to be in their forties than in their twenties. The purely demographic disparities among groups in these age brackets can be extreme. Half of all Jewish-Americans are forty-five years old or older, while only 12 percent of Puerto Ricans are that old. Even a totally nondiscriminatory society would have gross “underrepresentation” of Puerto Ricans in the kinds of jobs held by people of that age. More generally, American ethnic groups are not randomly distributed with respect to either age, education, region, or other variables having substantial impact on incomes and occupations.⁷⁴