Required Reading Re “Required”

The White House has been changing its tune with increasing frequency on some matters related to health care reform. One, which I discussed several days ago, concerned whether or not the House legislation contained truck-wide loopholes that would have allowed coverage of illegal immigrants. George Will describes another new (but still discordant) tune:

He says America’s health-care system is going to wrack and ruin and requires root-and-branch reform — but that if you like your health care (as a large majority of Americans do), nothing will change for you. His slippery new formulation is that nothing in his plan will “require” anyone to change coverage. He used to say, “If you like your health-care plan, you’ll be able to keep your health-care plan, period.” He had to stop saying that because various disinterested analysts agree that his plan will give many employers incentives to stop providing coverage for employees.

Whenever a politician says nothing in legislation he supports “requires” this or that, you can be sure that both this and that will be crammed down the public’s throat in short order.

The most notorious example I can think of where something that was not “required” (indeed, it was argued vigorously that it was not even permitted) came quickly to be de facto required across the land concerns Title VII of the 1964 Civil Rights Act, and how the Supreme Court made a travesty of it in, among other cases, United Steel Workers v. Weber (1979), 443 U.S. 193, which involved a training program at a Kaiser aluminum plant for craft jobs that reserved 50% of the positions for blacks and provided that blacks and whites would be selected on the basis of seniority within their racial group. Brian Weber, a white who was not selected, had more seniority than two of the successful black applicants. He sued, and lost because the Supremes reached a result that, according Chief Justice Burger in dissent, was “contrary to the explicit language of the statute.”

Under the guise of statutory “construction,” the Court effectively rewrites Title VII to achieve what it regards as a desirable result. It “amends” the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do.

When Congress enacted Title VII after long study and searching debate, it produced a statute of extraordinary clarity, which speaks directly to the issue we consider in this case. In 703 (d) Congress provided:

“It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.” 42 U.S.C. 2000e-2 (d).

Often we have difficulty interpreting statutes either because of imprecise drafting or because legislative compromises have produced genuine ambiguities. But here there is no lack of clarity, no ambiguity. The quota embodied in the collective-bargaining agreement between Kaiser and the Steelworkers unquestionably discriminates on the basis of race against individual employees seeking admission to on-the-job training programs. And, under the plain language of 703 (d), that is “an unlawful employment practice.”

Justice Rehnquist’s dissent was, if anything, even more forceful, in part because so heavily fortified with unambiguous quotes from the legislative history. Indeed, he argued,

Were Congress to act today specifically to prohibit the type of racial discrimination suffered by Weber, it would be hard pressed to draft language better tailored to the task than that found in § 703 (d) of Title VII….

Equally suited to the task would be § 703 (a) (2), which makes it unlawful for an employer to classify his employees “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 78 Stat. 255, 42 U.S.C. § 2000e-2 (a) (2).

Entirely consistent with these two express prohibitions is the language of § 703 (j) of Title VII, which provides that the Act is not to be interpreted “to require any employer . . . to grant preferential treatment to any individual or to any group because of the race . . . of such individual or group” to correct a racial imbalance in the employer’s work force. 42 U.S.C. § 2000e-2 (j). Seizing on the word “require,” the Court infers that Congress must have intended to “permit” this type of racial discrimination….

A great deal of the Congressional debate over the 1964 act concerned this very question of whether or not racially preferential hiring would be required or permitted, and Rehnquist’s opinion quotes a good deal of it. Typical is the following from Senators Clark (D, PA) and Case (R, NJ the bi-partisan “floor captains” in the Senate.

In an interpretative memorandum submitted jointly to the Senate, Senators Clark and Case took pains to refute the opposition’s charge that Title VII would result in preferential treatment of minorities. Their words were clear and unequivocal:

There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual.

Of particular relevance to the instant litigation were their observations regarding seniority rights. As if directing their comments at Brian Weber, the Senators said:

Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer’s obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged — or indeed permitted — to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier. [Emphasis added by Rehnquist]

Thus, with virtual clairvoyance the Senate’s leading supporters of Title VII anticipated precisely the circumstances of this case and advised their colleagues that the type of minority preference employed by Kaiser would violate Title VII’s ban on racial discrimination.

For one more example (of many), Rehnquist quoted this from Senator Williams (D, NJ):

Those opposed to H. R. 7152 should realize that to hire a Negro solely because he is a Negro is racial discrimination, just as much as a ‘white only’ employment policy. Both forms of discrimination are prohibited by title VII of this bill. The language of that title simply states that race is not a qualification for employment. . . . Some people charge that H. R. 7152 favors the Negro, at the expense of the white majority. But how can the language of equality favor one race or one religion over another? Equality can have only one meaning, and that meaning is self-evident to reasonable men. Those who say that equality means favoritism do violence to common sense.

And “do violence to commons sense,” as well as the plain meaning of words, is exactly what Brennan’s majority opinion did.

Recall (or re-read) the language of Section 703 (j) that I quoted above from Justice Rehnquist’s dissent. As Rehnquist noted, that provision

was specifically directed at the opposition’s concerns regarding racial balancing and preferential treatment of minorities, providing in pertinent part: “Nothing contained in [Title VII] shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race . . . of such individual or group on account of” a racial imbalance in the employer’s work force.

How did the Court get from this language to approving racially preferential hiring? Rehnquist explains:

The Court draws from the language of § 703 (j) primary support for its conclusion that Title VII’s blanket prohibition on racial discrimination in employment does not prohibit preferential treatment of blacks to correct racial imbalance. Alleging that opponents of Title VII had argued (1) that the Act would be interpreted to require employers with racially imbalanced work forces to grant preferential treatment to minorities and (2) that “employers with racially imbalanced work forces would grant preferential treatment to racial minorities, even if not required to do so by the Act,” ante, at 205, the Court concludes that § 703 (j) is responsive only to the opponents’ first objection and that Congress therefore must have intended to permit voluntary, private discrimination against whites in order to correct racial imbalance.

Contrary to the Court’s analysis, the language of § 703 (j) is precisely tailored to the objection voiced time and again by Title VII’s opponents. Not once during the 83 days of debate in the Senate did a speaker, proponent or opponent, suggest that the bill would allow employers voluntarily to prefer racial minorities over white persons.23 In light of Title VII’s [245] prohibition on discrimination “against any individual . . . because of such individual’s race,” § 703 (a), 42 U.S.C. § 2000e-2 (a), such a contention would have been, in any event, too preposterous to warrant response…,

But not too preposterous for the liberal Court majority. As Brennan blithely stated in his majority opinion, “since the Kaiser-USWA plan was adopted voluntarily, we are not concerned with what Title VII requires.”

Remember this history of what is “required” every time you hear the president say, as he did in his speech to Congress last week, that

nothing in this plan will require you or your employer to change the coverage or the doctor you have. (Applause) Let me repeat this: nothing in our plan requires you to change what you have.

Yeah, right. If you believe that, you believe the Democrats in Congress would be willing to add a provision to their health care bill forbidding employers to cancel the coverage they currently provide.

Say What?