Knowledge And Decisions

However much “affirmative action” has come to mean quotas, administrative agencies cannot explicitly assign quotas, since the Civil Rights Act forbids that. What is done instead is to force an employer to confess to “under-utilization” and to design his own specific “affirmative action” plan as a precondition for retaining his eligibility for federal contracts or for doing subcontracting for anyone else receiving federal money. The agency does not tell him what numbers or percentages to hire from each group, but can only disapprove his particular mechanisms and goals until they agree. This raises the cost of communicating knowledge for the agency, the employer, and the economy. These costs are compounded by the overlapping jurisdictions of various federal agencies involved — the EEOC, the Justice Department, HEW, and the Labor Department. An “affirmative action” plan that is acceptable to one agency may not be acceptable to another agency, and even if it is acceptable to all the agencies simultaneously, an individual employee can still sue the employer for “reverse discrimination.” Indeed, federal agencies have sued each other under the Civil Rights Act.⁸⁴ In short, the policy fails to clearly prescribe in advance what an individual can and cannot do. Part of this ambiguity is inherent in administrative agencies’ covert pursuit of policies that they are legally forbidden to follow.

The flouting of congressional intent brought attempts to return to the initial meaning of “affirmative action” as an attempt to “expand the pool of applicants.”⁸⁵ This attempt to amend the law failed,⁸⁶ and its failure illustrates temporal bias as it affects special interest groups. Laws do not simply respond to pre-existing special interests. Laws also create special interests which then affect what is subsequently politically possible. As noted before, special interests are essentially people who have lower costs of knowledge of their own stake in government policy, and in this sense special interests include governmental personnel whose jobs and powers were created by given legislation. The “affirmative action” policy followed had enormous impact on the agencies administering such policies. For example, within a period of three years the EEOC’s staff of lawyers increased tenfold.⁸⁷ The impact on minority employment has been found to be relatively minor.⁸⁸ Blacks have rejected preferential treatment 64 percent to 27 percent. Four-fifths of women also reject it. Indeed, no racial, regional, sex, income or educational group studied by the Gallup Poll favors preferential treatment.⁸⁹ Yet the drive of the administering agencies and the general acquiescence of the courts has been enough to continue policies never authorized by Congress and contrary to its plainly expressed legislative intent.

The insulation of administrative processes from political control is illustrated by the fact that (1) administrative agencies went beyond what was authorized by the two Democrats (Kennedy and Johnson) in the White House who first authorized “affirmative action” in a sense limited to decisions without regard to group identity, and (2) continue to do so despite the two Republican presidents (Nixon and Ford) who followed, who were positively opposed to the trends in agencies formally under their control as parts of the executive branch of government. This political insulation is illustrated even by the first major setback for “affirmative action” — which came from another nonelected branch of government, the Supreme Court, which after more than a decade of support for “affirmative action” was able to put a brake on the policy, which neither the public nor its elected representatives could reverse.