David R. Henderson  

The Actual Civil Rights Act

"Why Are Jews Liberals?" Sympo... Ever Hear of the Civil Rights ...

Over at Marginal Revolution, Alex Tabarrok points out that much of the discussion of the Civil Rights Act is so 20th century. (My words for his thought.) One could even say "so 1960s." The reason: The Act was applied to reduce discrimination in hiring for only a very short time. Since then it has been used to increase racial discrimination. Various defenders of the law seem to be defending a 1960s version, not the actual law as it is enforced.

What I've noticed in the discussion on the two posts (here and here) I have done on this is that no one seems to disagree that one can make a strong case for using federal law to override state law that required discrimination on racial grounds. Also, everyone who commented agreed with me that federal law should not require discrimination on racial grounds.

So here are my two questions:
1. Can we agree that the federal government should quit favoring one racial group at the expense of others? If not, why not?
2. Would it be a good idea for the federal government to override state governments' and local governments' quotas (aka, "goals and timetables") for filling various jobs? If not, why not?

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CATEGORIES: Labor Market

COMMENTS (19 to date)
Boonton writes:


Hasn't SCOTUS already done that?

David R. Henderson writes:

Read the Tabarrok post and see if you think the Supreme Court has effectively done that.

William Bargest writes:

In answer to 1: I think that opinions have differed on this point for some time and show no signs of comming together. The reason seems to be the even stronger disagreement about the causes of the lack of success among the protected groups, and the desireability of equality of outcomes irrespective of the cause.

In answer to 2: I'd say that the central authority has its strongest claim to legitimate interference when the injustice it aims to solve is obvious, and can be solved through relatively simple means. I think Jim Crow falls into this category. I think affirmative action is not an obvious enough injustice for enough folks to support the use of federal power to end it.

david writes:

I should point out that Henderson's unsubtle allusion to the idea that the "actual Civil Rights Act" enforces racial discrimination via naive affirmative action isn't actually right either.

History is uncomfortable here; when a proposed merit test would conveniently separate people by race, then suddenly merit tests would be pushed as vastly important. There is nothing about a literacy test for voting that is, by itself, racially discriminatory. But you have to be extraordinarily ignorant about race to not understand why it mattered.

As for Tabarrok's post, even he notes that the case was ruled on a technicality, and SCOTUS explicitly stated that that the issue of disparate impact was not being discussed.

Boonton writes:

If you read the pdf file, written by Scalia (first clue), you'll note that the case had nothing to do with the actual claim of discrimination or proposed remedy. It was a technical argument over whether a 300 day time limit to file a complaint applied to the moment the process was announced or the moment when it was implemented. The court ruled the latter and sent the case back for further consideration which, as far as I can tell, hasn't happened yet.

More problematic for the black firefighters, though, is Ricci v. DeStefano from 2009, the New Haven Firefighters case. If they do prevail I don't think the proposed solution of passing out additional jobs from those who scored less, but excluding white low-scorers, will survive that precedent.

staticvars writes:

I find that the explicit definition of any racial group is a form of racial discrimination. A fairly strong legal challenge could be mounted upon the fact that races do not exist, in a scientific context, but are merely labels applied by racists. Without a strict legal definition of the races, what is to prevent any person self-identifying as an African-American based on the fact that homo sapiens evolved from a population in Africa at some point in the past?

david writes:

Happily, racial discrimination doesn't give a damn what race you self-identify as for whatever ridiculous reasons, but what race other people identify you to be. And if a nutjob fires you because he thinks you're African-American for those reasons, he should and probably would get the boot too.

David C writes:

I think William Bargest summed it up pretty well. I'm also glad there are posts like these up that aren't just going after straw men, which seems to be the norm around the blogosphere.

Patrick R. Sullivan writes:
Henderson's unsubtle allusion to the idea that the "actual Civil Rights Act" enforces racial discrimination via naive affirmative action isn't actually right either.

Actually, the Act itself specifically PROHIBITED what we today call affirmative action. It also prohibited racial quotas and explicitly said that statistical disparities weren't to be used to prove discrimination by an employer.

In addition to the words of the legislation we have statements made by its supporters--including Hubert Humphrey--that the law didn't impose quotas, nor require any kind of racial preference in hiring. All of which was quickly forgotten as the legal wrangling in the wake of its passage changed the law 180 degrees from its language and intentions.

Boonton writes:

Please show me one institution that today uses racial quotas.

rapscallion writes:

No one uses explicit racial quotas, but to avoid disparate impact liability everyone knows that they have to hire a certain percentage of approved minorities. What is the EEOC's four-fifths guideline if not a not-so-subtle quota?



staticvars writes:

You are wrong about racial discrimination not caring about self-identification, simply because most organizations allow me to self-identify. While my example is ridiculous, there is literally no appropriate box for me to check on most forms. The recent US Census form was one of the most racist forms I have ever seen.

Boonton writes:


The uniformguidelines.com piece only says a selection rate that is 80% or less than the selection rate of the highest group (the way I read that is if 50% of white applications go the job then 40% of black applicants) is considered evidence of adverse selection. That's not mandating a quota, in fact a quota would still be illegal since the guidelines do not say simply having a rate over 80% proves you are innocent.

Granted an employer might use an informal quota just as a drunk driver might drive 5 mph below the speed limit to avoid attention of cops....but that's not the same as saying the law mandates or even allows that.

As your wikipedia article notes:

An important thing to note is that adverse impact is not illegal.[6] Adverse impact only becomes illegal if the employer cannot justify the employment practice causing the adverse impact as a "job related for the position in question and consistent with business necessity" (1964/1991 Civil Rights Act, Section 2000e-2[k] [1] [A]). For example, a fire department requiring applicants to carry a 100 lb (50 kg) pack up three flights of stairs. The upper-body strength required typically has an adverse impact on women.

You are wrong about racial discrimination not caring about self-identification, simply because most organizations allow me to self-identify. While my example is ridiculous, there is literally no appropriate box for me to check on most forms. The recent US Census form was one of the most racist forms I have ever seen.

Is it racist to say that Germany and France fought against each other in two World Wars? Yet there is no objective scientific test that can with absolute perfection say who is a German and who is a Frenchman. Yet, amazingly, this did not stop either country from knowing who was who.

Likewise in the entire history of US slavery can you point to one case where a blue eyed, pale boy was mistakingly taken as a slave or a very dark skinned male was selected to be a Confederate commander? If no one knows whose black and whose white then why the griping about 'reverse discrimination'? If a person can't even be sure what they are then how can they even begin to argue they benefited or were hurt by discrimination based on their race?

While it is helpful to point out that the pseudo-scientific justifications of racism were without merit and biologically we are all the same, that doesn't mean race simply doesn't exist. First it exists as a social class and it exists as a set of biological traits that can be easily grouped. Yes it has a fuzzy boundary and the scientific classes probably will not overlap with the social ones (for example I wouldn't be surprised if blacks from the Carriban have different genetic profiles and different reactions to particular pharmaceuticals than blacks from modern day Africa....even though to a KKKer both would be considered the same) but simply chanting over and over again that race doesn't exist doesn't quite make it so. I agree there's some value and validity to the 'post-racial' meme that started bubbling when Obama got elected but let's not make too much of it.

rapscallion writes:


Also, affirmative action plans with explicit "goals and timetables" can be adopted, which are obviously quotas. Read the next comment down in the uniformguidelines link, or look at this:


Heck, they even have software that will help you plan your quotas/goals and timetables:


Boonton writes:

Yes the dol link has the word 'goals and timetables' in it but so what? I'm not seeing quotas. "Outreach" (say placing more help wanted ads in minority areas) is not a quota and I wouldn't call it reverse discrimination unless you're prepared to accept discrimination claims based on the opposite criteria.

Likewise its pretty hard to tell what the software is doing. Yes it could be a quota system facilitating reverse discrimination but it could also be a reporting/data analysis system. perusing the vague jargon speak of the site doesn't really tell us much either way.

rapscallion writes:

The goals and timetables are numbers and percentages of approved minorities that the business or entity wants to hire. Contrary to
bizarre protestations
these constitute quotas if you really believe that words mean things. Here's some related sample plan material that comes up easily with google:



Ryan writes:

Pretty good takeaways from this thread. So far, I have that the Census should not ask: "What is Person 1's race?" but should ask, "What is Person 1's race in the residency to your left?" Since the question is key to implementing many federal laws and is needed to monitor compliance with the Voting Rights Act and the Civil Rights Act. State governments use the data to determine congressional, state and local voting districts. Race data are also used to assess fairness of employment practices, to monitor racial disparities in characteristics such as health and education and to plan and obtain funds for public services. Doing this, would also simplify matters for those individuals like staticvar where conflation of ethnic background leads one to be unable to find a check box which fits.

Boonton writes:


I perused the first link, an ACLU policy paper which may or may not be definitive but it too directly states that your affirmative action program cannot be to set a percentage of minority employees or contractors and hire towards that. I skimmed the 35 pages of the 2nd link and the first mention of 'goals and timetables' concerned what to do if 'barriers' to minority employment were found (timetables to eliminate them). The third link is more explicit about setting a % goal and reporting on it but yet I'm not seeing quotas here.

Look let's say there's no blacks on the fire force so a city adopts an 'affirmative action' program of putting up notices about the test in senior classes of schools with more black students than average, buys some ads on radio stations with a heavy black listenership....etc...from what I'm reading that would qualify as an affirmative action program and could very well result in achieving "goals and timetables" since more black applicants increase the odds that at least some will get the jobs. That doesn't count to me as 'reverse discrimination' unless you are going to make an argument if you don't happen to see a want ad in a newspaper or magazine you happen to read it's discrimination. The question is when the applicants walk in the door how are they selected and there if you have the hiring manager getting evaluated on "how many minorities" they hire then I'd agree that's wrong. The literature you're quoting though, says that if that's what you're doing your violating the law.

hese constitute quotas if you really believe that words mean things.

Heh, when dealing with corporate speak this is a very heroic assumption. Your homework assignment is to watch two or three seasons of The Office and try to make this statement again! :)

What this sounds like is what existed before "diversity and inclusion" hit the corporate world. This has generated no end of very dull, very pompous meetings, seminars and 'trainings' and has reinforced the need for whoever invented PowerPoint at Microsoft to be given immediate protective status. But the gist of everything I've seen from this world basically boils down to a lot of relatively passive policies.....'widen the net' by expanding places you look for applicants, cultural sensitivity and differences education to deal with miscommunication. From what I've been through this stuff has some helpful stuff buried in a lot of dull stuff, but not reverse discrimination nor quotas.

mulp writes:

But the Civil Rights Act of 1964 isn't about race, but about the discrimination that was and still disadvantages THE MAJORITY of the people.

Just last week a jury awarded $250M in punitive damages to a class of 5600 women against Novartis under the Civil Rights Act. In fact, nearly every case under the Civil Rights Act these days is related to discrimination against women in pay and promotion.

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