HAVE CIVIL RIGHTS BECOME GROUP RIGHTS?
                        by Evan Kemp, Jr.

     From the Editor: At the time of this writing (early
February, 1993) Evan Kemp is still Chairman of the U.S. Equal
Employment Opportunity Commission. Whether the Clinton
Administration will ask him to continue in office (and they
probably won't), he has definitely made his mark on the federal
government and taken definite and clear-cut stands. As an
example, he thought that the Jerry Lewis muscular dystrophy
campaign was demeaning to the disabled--and he said so. He did it
knowing that his views were controversial, and he refused to back
down when he was pressured. He thought special awards for
handicapped government employees were insulting, not
complimentary--and he made an issue out of it, advocating that
such awards be abolished. Again he refused to keep silent or
retract.
     More recently Mr. Kemp has made public pronouncements on the
touchy subject of civil rights as opposed to group entitlement.
As with his other hot-potato subjects, he has refused to say that
he didn't mean it and shows no sign of waffling. He expressed his
views on the topic in a speech delivered at the National Press
Club in Washington on November 24, 1992; and whether one agrees
or disagrees, all who give even a moment's thought to the matter
must applaud the behavior of this different breed of federal
bureaucrat. He takes a position; he lays it out; you can
understand it; and when the heat turns on, he doesn't deny that
he said it or claim that he really didn't mean it or was
misunderstood. You can like it or dislike it, but there it is
without apology or equivocation. Ah, that we had more like him!
     His statements at the National Press Club did not, of
course, go unchallenged. Five days after they were made (on
November 29, 1992), the Washington Post took him to task in an
editorial. As in the other cases I have mentioned, he didn't wilt
in the heat. Quite the contrary. On December 8, 1992, he
counterattacked.
     I think Monitor readers will find this exchange not only
interesting but thought-provoking. The questions raised and the
opinions expressed are worth pondering. Here are the November 24
remarks at the National Press Club, the November 29 Washington
Post editorial, and the December 8 Kemp response:

             Have Civil Rights Become Group Rights?
                      by Evan J. Kemp, Jr.

     It's a pleasure to be here at the National Press Club. Most
of you probably watched President-elect Clinton's first press
conference. There the Governor pledged to the nation that his
administration would look like America, that it would reflect the
racial and ethnic diversity of our country. Yet during the
campaign candidate Clinton had made vehement statements opposing
quotas, opposing group preferences.
     That the President-elect used the term "diversity" is not
surprising. Though diversity used to bring to mind the image of
the melting pot, the richness of America, today diversity is a
code word to many for group entitlement, preferences, division--
the very quotas candidate Clinton said he opposed, the very
quotas the American people oppose.
     I have faced this dilemma as Chairman of the U.S. Equal
Employment Opportunity Commission, as did Eleanor Holmes Norton
and Clarence Thomas before me. And it is the dilemma that the new
Chairman of the EEOC will face. I have felt, as will my
successor, the pressure to use our employment discrimination laws
to turn the goal of diversity into a prescription for group
entitlement. President-elect Clinton's promotion of diversity and
opposition to group entitlement must be reconciled. And I can
tell you from experience that this is nearly an impossible job--
nearly impossible because we have not told the truth about what's
really happening in universities, in the work force, in our
cities. We have not told the truth about what words such as
"diversity" and "affirmative action" have come to mean.
     I am glad to have the opportunity to be here today, as my
time as Chairman draws to a close, to reflect on this dilemma, as
well as on what the future may hold.
     Twenty-eight years ago Americans confronted the unequal
status of blacks in this country. The Civil Rights Act of 1964
prohibited discrimination based on race, religion, color,
national origin, and gender in public accommodations and
employment. Later Congress passed the Age Discrimination in
Employment Act. And in 1990, on the twenty-fifth anniversary of
the EEOC, Congress made illegal discrimination on the basis of
disability.
     These laws, based on a strong consensus, a firm belief in
equal opportunity for all, and on the primacy of individual
rights, have brought about unprecedented change. America is far
better for honoring our commitment to the fundamental principle
that all are created equal, that everyone is entitled to the
opportunity to compete for jobs for which they qualify, to gain
those qualifications through education, to travel, to use public
accommodations, and to live wherever they can afford.
     I believe that the civil rights movement of the 1960's
succeeded because we were forced to acknowledge that one group of
Americans had been excluded from these entitlements. Dr. Martin
Luther King, Jr. made us acknowledge that the great American
melting pot had grudgingly, but unfailingly, absorbed refugees
from Europe and Asia but had miserably failed to do the same for
blacks. King's simple but eloquent message stirred and unified
the nation.
     But while King suffered insult, even imprisonment, because
of his race, he did not ask for reparations or for special
privileges. His dream was for a nation where his children--where
all children--would be judged by the content of their characters,
not by the color of their skins. The Civil Rights Act of 1964
realized King's dream of inclusion. The Civil Rights Act of 1964
gave every American the right to be judged by what they can do,
not by someone else's stereotypes. Most recently Americans with
disabilities demanded and won this right.
     Tragically for us all Dr. King's assassination robbed the
civil rights movement of his leadership and his vision. Others
have used his dream of equality to gain power through group
entitlement, promoting distrust and resentment among racial and
ethnic groups. Notions of individual responsibility and the
duties of citizenship have been subsumed by assertions of rights
by virtue of victim status. As author Shelby Steele explains: "We
have taken our power from our history of victimization, which
gave us an enormous moral authority and brought social reforms,
to the neglect of self-reliance and individual initiative."
     Once group entitlement became the driving force, the
consensus of the Civil Rights Act of 1964 began to erode.
Politicians bowed to the politics of pigmentation. The policies
of pigmentation were sold as equal justice for all. Employers
installed quotas and called them "goals and timetables," colleges
lowered entrance standards in the pursuit of fairness, and "race
norming" was used to achieve a balanced work force.
     This was the well from which animosity among groups began to
spring. This animosity can be seen in the charges brought to the
EEOC, in the news from Los Angeles to Crown Heights. What part
did actual or perceived preferences play in the Los Angeles
riots? People are frightened by what columnist William Raspberry
has described as "an increase in disputes, claims and counter-
claims across ethnic, geographical, gender, and economic lines."
     The best advice I can offer my successor is not to give in
to those who would carve up American society along ethnic,
racial, and gender lines. Because if we do, we will tragically
shortchange minority youths by assuming that, because they do not
do as well on a group basis as others, they will never do as
well. We have already lowered standards and expectations. The
individual who does succeed is stigmatized. The others are told
that they cannot hope to compete as individuals, only as members
of a subgroup. Still others get the message, "Don't even try to
compete; success is beyond your reach."
     The focus on groups over individuals has translated into
favoritism toward one group at the expense of another, creating
division and resentment. This country is home to some 150 ethnic
and racial groups. How do we divide the pie? Indeed, what exactly
do we mean by affirmative action? Because if affirmative action
is going to be based on group entitlement and proportional
representation, an impossible task lies ahead for President-elect
Clinton, for the new Chairman of the EEOC, for the entire nation.
And why are we suddenly hearing about "diversity"? I'm afraid
that the term "diversity" is an effort to make permanent what we
had before been assured by the U.S. Supreme Court was temporary.
     I remember remarking to a friend how impressed I had been by
a recent article by Thomas Sowell that examined the use of group
preferences in other countries. I told her, "Now here's a guy who
really understands disability!" Sowell never mentioned disability
in his article. But he talked about the fact that in Sri Lanka,
in India, or wherever preferential treatment has been tried,
those who needed it the least got all the benefits. That is the
reality of preferences with respect to disability as well.
     Entitlements in the guise of quotas have always benefited
those persons with the least severe disabilities, or with what I
like to call the three H's: hemorrhoids, hangnails, and
halitosis. Employers will do the minimum necessary to comply with
the law to meet their quotas. And those with the most serious
disabilities are never used to fill a quota. Moreover,
preferential treatment for persons with disabilities raises other
questions. How would it apply to the hundreds of subgroups of
disabilities? Should the blind be favored over the deaf? Does
hiring one person in a wheelchair excuse a company from
considering a qualified applicant with a learning disability?
     These were among the questions debated in the twelve years
leading up to the passage of the Americans with Disabilities Act.
I was a part of that process, and I can tell you that it wasn't
easy, that not everyone liked the answers. But the debate was an
honest examination of the fears of employers and the desires of
Americans with disabilities. And when we were finished, we had a
strong consensus that the entire nation would benefit from
including Americans with disabilities in the American dream.
     I believe the ADA can and should be a paradigm for the
future of civil rights because it is based on individual rights.
The ADA charges employers to look at an individual's abilities,
rather than disabilities. But, most important, under the ADA
employers are not required to hire an unqualified applicant
simply because that applicant has a disability. The Act ensures
that persons with disabilities who are qualified to do a job will
no longer be locked out by discrimination. But it does not
mandate that employers use statistics and other group-based
numbers to make hiring decisions.
     Would that were true under the Civil Rights Act of 1991.
That legislation certainly was hard fought. Unfortunately, most
of that fight took place behind closed doors, where the politics
of pigmentation could be openly pursued. During the private
debates over the Civil Rights Act of 1991, so-called civil rights
leaders went so far as to plead with the White House for one more
generation of quotas for blacks. And yet publicly they
proclaimed, "This is not a quota bill."
     The fight was over the theory of disparate impact. That
theory came from a highly ambiguous 1971 Supreme Court decision
in Griggs vs. Duke Power Co. It had come to be understood to mean
that neutral employment practices that did not involve
intentional discrimination but disproportionately operated to
exclude blacks would nevertheless be found to violate the Civil
Rights Act of 1964, unless they were justified by "business
necessity." Never mind that the 1964 Act had rejected this
theory. As a result employers came to understand that one way to
avoid lawsuits over whether their hiring practices operated in
this manner was to hire by group preferences, and colleges and
universities changed their admissions policies to do the same.
     Civil rights leaders also became quite attached to this
system. But the rhetoric of civil rights has never reflected that
reality. That was my great frustration during debates over the
Civil Rights Act of 1991. No one involved in those debates should
claim this law was passed with a broad consensus, other than the
stated desire of politicians to "get the quota issue behind us."
But did we get it behind us? Absolutely not. Executive Order
11246, which is the father of quotas and group preferences, was
never even discussed in the two years of debate on the Civil
Rights Act of 1990 and 1991. Some readers of the Act, like the
worried business leaders who have embraced quotas and preferences
to avoid lawsuits and Fred Barnes of the New Republic, believe it
protects them. The EEOC eventually will have to address this
issue, and the Supreme Court ultimately will decide it.
     We need an honest examination of the policies championed by
those well-meaning do-gooders who would protect and patronize the
victim, who would base our civil rights laws on the very
stereotypes they were meant to dispel. We need to get back to
discussions of individual ability and merit versus group
stereotypes and entitlement. We must stop viewing our civil
rights laws as the solutions to educational and economic
disparity.
     And we must return to merit, to values. Values, that much
maligned concept from the recent election. People poked a lot of
fun at the discussion about values. Yet our values have eroded to
the point where studies show that children are cheating more and
more in school and thinking that they are doing nothing wrong.
How can we instill the importance of merit and respect for
individuals if we ignore our values?
     We must begin honest debate about these issues. The
Washington Post took a step in that direction a few months ago in
a provocative series on race. The newspaper sponsored two focus
groups: one all-black and one all-white. The groups then mixed
for a frank discussion about blacks' perceptions of whites and
whites' perceptions of blacks. That discussion became explosive
at times, just as there will be animosity as we focus on topics
that many are afraid to discuss, except among members of their
own group. Senate Democrats were afraid to initiate discussion of
these topics when Clarence Thomas was considered for the Supreme
Court.
     It is time to ask: What does affirmative action mean today?
Is it more than the removal of unlawful or artificial barriers?
Do we owe something special to present-day African-Americans--as
opposed to Korean-Americans, Chinese-Americans, Hispanic-
Americans, Irish-Americans--because blacks have suffered a
history of slavery and discrimination? And, even if we owe
reparations, can that debt ever be repaid in the devalued coin of
racial preferences? In fact, monetary reparations might be far
less costly to society than racial preferences.
     It is time to ask: What does diversity mean today? Is it
inclusion in that melting pot that made our nation great? Is it
divisive preservation of ethnic or racial heritage to the
exclusion of others?
     It is time to ask: Can we afford in today's highly
competitive world to discount the importance of merit in the
guise of fairness?
     This is the challenge we face in the years ahead: to heal a
nation torn asunder by tension among groups. That healing can
begin only when we face the reality of civil rights in America
with honest debate and frank talk. I thank you for giving me the
opportunity to contribute to the debate in this most important of
forums.

     That was what Evan Kemp had to say on November 24. Five days
later the Washington Post responded with the following editorial:


                      Looking Like America

     The Bush Administration's chairman of the Equal Employment
Opportunity Commission thinks he's already caught Bill Clinton in
a contradiction on civil rights. The President-elect has said he
wants his Cabinet and Administration to "look like America," yet
during the campaign he "made vehement statements opposing quotas,
opposing group preferences."
     And there, in case you missed it, is the conflict, the whole
awful thing, as the Bush Administration continues to view the
world. The diversity that the Democratic victor seeks implies the
use of precisely the "preferences" that he says he wants to
avoid, EEOC Chairman Evan Kemp said in a swan song the other day.
No way can the laudable goal be achieved except by suspect means,
no matter how many eminently qualified blacks or women or
Hispanics or members of other such groups you happen to have in
your party or to know; the quota police know quotas when they see
them. "President-elect Clinton's promotion of diversity and
opposition to group entitlement must be reconciled, and I can
tell you from experience that it is nearly an impossible job,"
Mr. Kemp said. He complained that increasingly, since the 1960's,
politicians had abandoned the simple goal of non-discrimination
in favor of a "Politics of pigmentation."
     In fact, the achievement of diversity in an administration
or student body or faculty or work force does not require a
resort to quotas. Even a Reagan-Bush Supreme Court continues to
recognize that there is a middle ground. Mr. Kemp, of course, is
right that a tension exists. Affirmative action does indeed
encompass an inconsistency, as its critics never tire of pointing
out. To overcome the effects of racial and other forbidden forms
of discrimination from the past, precisely those forbidden
factors are required to be taken into account in hiring,
promotions, and admissions in the present; the cure becomes a
reverse dose of the disease.
     The Bush Administration's position has been that the cure
somehow constitutes the greater threat, that affirmative remedies
go too far, entangle the courts, employers, and the like in
precisely the kinds of racial and other offensive labeling that
they are meant to eliminate, and that they ought to be replaced
by a policy of strict neutrality--color-blindness, in the case of
race. But it is government that is blinded and--conveniently from
the standpoint of those who would prefer that it do less--too
often neutralized by such a policy, no one else. Government is
supposed to pretend that race or ethnic origin or sexual
stereotypes are not a factor in situations where everyone else
knows full well that they are.
     Mr. Kemp says that he felt, as will his successor, "the
pressure to use our employment discrimination laws to turn the
goal of diversity into a prescription for group entitlement." No
doubt that's so, but the danger that a policy will be carried too
far is hardly grounds for its abandonment. There's harm--though
not to the same people--in doing too little as well. Mr. Clinton
can have a diverse administration and the country still be safe
from quotas.

     That was the response of the editors at the Washington Post,
and on December 8 Evan Kemp commented as follows: 

             Rights and Quotas, Theory and Practice
                      by Evan J. Kemp, Jr.

     Finally, thanks to the Post's editorial "Looking Like
America," the real debate on civil rights has begun. In my speech
November 24 to the National Press Club--"Have Civil Rights Become
Group Rights?"--I called for such a beginning, for an honest
discussion of the state of civil rights. I emphasized we must
examine the effects of policies--race norming, quotas, goals,
timetables--designed to facilitate affirmative action but
resulting in insidious and pervasive racial, ethnic and gender
preferences. I asked that we take a hard look at what is
producing tensions among groups and fostering division in our
society.
     I have seen how the group approach feeds these tensions. As
a leader of the disability rights movement, I fought for the
guarantee of individual rights in the Americans With Disabilities
Act. I knew group entitlement fails when applied to disability;
employers do the minimum necessary under law to meet quotas and
never fill a quota with individuals with serious disabilities. As
chairman of the EEOC I have found protection on the basis of
group status also fails when applied to race, ethnicity, and
gender.
     President-elect Clinton has recognized these tensions and
resentments, and has been widely praised for doing so. He
courageously told whites and blacks that division is unhealthy
and must be healed. But the challenge to the Clinton
Administration will be to take the next step and examine whether
the prescriptions to cure the disease of racial, ethnic, and
gender discrimination are outdated, even producing a counter-
reaction.
     According to the Post's editorial, President-elect Clinton
"can have a diverse administration and the country still [my
emphasis] be safe from quotas...[T]he achievement of diversity in
an administration or student body or faculty or work force does
not require a resort to quotas."
     In theory, no, but in practice, yes. Even after twelve years
of Reagan-Bush policies, employers large and small, governments,
universities, and nonprofit sector all labor under a regulatory
regime that results in the widespread use of quotas.
     Here's how the system actually works: the Labor Department
requires federal contractors to report the race, ethnic, and
gender composition of its work force. Failure to reflect a
"correct" composition risks loss of federal contracts. Employers
also must grapple with "business necessity" and the Uniform
Guidelines on Employee Selection Procedures--the government
regulation that requires businesses to justify any selection
procedure that has a "disparate impact." This means that, if your
payroll doesn't meet the government's prescription for racial,
ethnic, or gender mix, you may be sued.
     Thus the Uniform Guidelines have become the arbiter of
individual merit in American employment. An employer who prefers
high school graduates over non-graduates, for example, would risk
a discrimination charge because of possible differences in
graduation rates among different racial and ethnic groups. But
even when an employer successfully defends the "business
necessity" of employment decisions, the Uniform Guidelines burden
the employer to continue to search for "alternative selection
procedures" producing less of a disparate impact (i.e., producing
equality of results when comparing groups).
     To avoid expensive litigation, prudent employers "hire by
the numbers," ensuring that their work force's "bottom line"
reflects the racial, ethnic, and gender composition of their
labor market. More important, hiring by the numbers satisfies the
Office of Federal Contract Compliance (and for that matter, EEOC
field investigators), even though the Supreme Court has held
Title VII of the Civil Rights Act of 1964 protects individuals,
not groups.
     While hiring by the numbers has become de facto civil rights
policy, it begs the question of whose numbers. According to
historian Stephan Thernstrom of Harvard University, there are at
least 106 ethnic groups in the American labor force.
     Here we get to the issue of diversity, which the media treat
as the Holy Grail but which in practice has too often come to
mean group entitlement in the workplace and in our universities.
President-elect Clinton's desire to make his administration "look
like America" is laudable. But how to get there? The Clinton
administration can be expected to report this diversity in terms
of the percentage of race, ethnicity, and gender for some, but
not all, of these groups. Diversity, which used to bring to mind
the image of the melting pot, is today a politically correct call
for group entitlements--the very quotas a majority of Americans
oppose.
     At no point in my November 24 speech did I claim or imply
that "in no way can the laudable goal [of diversity] be achieved
except by suspect means, no matter how many eminently qualified
blacks or women or Hispanics or members of other such groups you
happen to have in your party or to know..." That's what the
Post's editorial said, not what I said or meant. 
     Recently I heard divergent definitions of affirmative action
voiced by two journalists, one black and one white. The black
journalist believed affirmative action means dismantling illegal
barriers to equal opportunity. Her white colleague described
affirmative action as preferential treatment. These insights were
not the political hyperbole or euphemism of Bush-Reagan policy
makers or, for that matter, Post editorial writers. These were
citizens telling the truth as they saw it. And their truths
reveal the lack of consensus, the myth of the middle ground that
characterizes the debate about civil rights.
     Where is the middle ground for which the Post's editorial
yearns? If by middle ground we mean consensus, that can only be
reached by continuing to ask the tough questions--questions such
as: In today's highly competitive world can we afford to discount
the importance of merit in the guise of fairness? Do we owe
something special to present-day African Americans--as opposed to
Korean Americans, Chinese Americans, Hispanic Americans, Irish
Americans--because blacks have suffered a history of slavery and
discrimination? And if the answer is yes, can that debt ever be
repaid in the devalued coin of racial preference? We must not be
satisfied with facile or simplistic answers that bear little
relationship to the reality of the workplace, the universities,
indeed, of society as a whole.
     The incoming administration, as well as the Post editorial
page, must face that fact that, if diversity is used to mask a
regime of quotas, we will tear the fabric of this nation along
ethnic, racial, and gender lines. Surely none of us wants that.