General George S. Patton was often criticized for ignoring his flanks, particularly during his spectacular breakout across France in the summer of 1944. The criticisms came chiefly from tradition-encrusted members of the staffs of some of his rivals, and weren’t completely justified. While it’s true Patton didn’t devote the painstaking attention to his flanks as did, say, the methodical Montgomery, his critics hadn’t grasped that Patton’s lightning armored assaults were rendering the set-piece maneuvering employed during World War I and early World War II obsolete. Protecting flanks remained vitally important, but the astonishing speed and maneuverability of Patton’s tanks required more dynamic tactical thinking.
Preference supporters could take a lesson from both Patton and Montgomery. True, many preference proponents do recognize that Grutter v. Bollinger (the Michigan affirmative-action case) poses myriad problems for them–the case hasn’t sheathed their armored assault upon equal treatment–yet they move forward as if invincible, without protecting their flanks.
Indeed, preference proponents are now exploring Grutter’s utility in expanding preferences to K-12 education and in contracting and employment. This is an ill-advised strategy. In addition to the fact that much of the law regarding the propriety of preferences in these areas is settled, preference supporters are actually suffering sobering setbacks that would suggest their time would be better spent in consolidating their gains rather than opening new fronts. Recent circuit-court cases involving the legality of voluntary affirmative-action plans highlight this vulnerability.
Years ago, in United Steelworkers v. Weber, and Johnson v. Transportation Agency, the Supreme Court upheld the legality of private-employer affirmative-action plans, provided they are designed to remedy a manifest racial imbalance in the employer’s workforce resulting from past discrimination or a traditionally segregated workforce. The terms “manifest imbalance” and “traditionally segregated workforce” were sufficiently nebulous for it to be left to circuit courts to sort out what they meant in a given context. Most courts require that the plan be supported by direct evidence of discrimination against the beneficiary group (although some cases suggest mere evidence of statistical imbalances might suffice).
Weber was decided in 1979, Johnson in 1987. Since that time, however, employers have developed affirmative-action plans for reasons wholly unrelated to past discrimination or traditionally segregated workforces. Some are designed to comply with Executive Order 11246 (requiring government contractors to take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to race, etc.), but most are an attempt to promote workforce diversity or provide insulation against lawsuits. A simple review of the promotional materials and websites of major corporations shows that “benign” diversity programs have multiplied in the last ten years. Many of these plans may be problematic, as a recent Fifth Circuit case, Frank v. Xerox, demonstrates.
In Frank, some of Xerox’s black employees challenged the company’s Balanced Work Force Initiative (“BWF”). The BWF was designed to ensure that racial and gender groups in Xerox’s Houston office were represented at all levels of the company in proportion to their respective numbers in the local workforce. Xerox set specific racial goals for each job and grade. Management evaluated supervisors on their success in meeting these goals.
The plaintiffs alleged that the BWF unlawfully discriminated against them. Since blacks were overrepresented in the Houston office, Xerox’s goals were tilted against them.
The Court found that the existence of the BWF program, coupled with evidence that the company actually followed the plan, constituted direct evidence of unlawful discrimination under Title VII of the 1964 Civil Rights Act.
The diversity programs of public-sector employers face an even greater burden: the need to survive strict scrutiny under the equal-protection clause. In other words, the program must promote a compelling governmental interest and be narrowly tailored to achieve that interest. What qualifies as a compelling governmental interest in this regard is limited almost exclusively to remedying actual instances of past discrimination by the public employer in question. Undaunted, some preference proponents have been straining to apply Grutter’s “benefits of diversity” rationale to public employment. But the Supreme Court made it very clear that the rationale applies because the First Amendment (purportedly) grants educational institutions broad latitude in defining their missions. While this could possibly be used to justify preferences in the hiring of, say, college professors, Grutter’s First Amendment predicate has no application to most other public employers.
Many employers like to trumpet their voluntary workforce-diversity plans. Grutter may provide them with a false sense of security that these programs have been given the Supreme Court’s blessing–but they’d better watch their flanks.
–Peter Kirsanow is a member of the U.S. Commission on Civil Rights.