Legislation
Class Notes
Last
Friday, at the end of class, we were talking about the tension over the meaning
of discrimination. Discrimination can
mean simply differentiation. Does the statute protect members of the
majority from differentiation
too? Or is the statute designed only to
protect against prejudice and invidious discrimination? If that’s so, maybe the statute is only applicable
to discrimination against minorities by the majority.
The Clark-Case memorandum
“To
discriminate is to make a distinction, to make a difference in treatment or
favor, and those distinctions or differences in treatment or favor which are
prohibited by section 704 are those which are based on any five of the
forbidden criteria[ ].”
Does
this memorandum suggest that affirmative action shall be outlawed according to
§ 703 (j)? Is there anything in the
Clark-Case memo that pushes us towards “permit”? No, on the contrary, there is language that
seems to go beyond “require”.
When
was § 703 (j) added to the bill? It
looks like Dirksen added it. He makes substitute amendment 656, which
contains an explanation of changes in the bill.
What tells us that § 703(j) is new?
It says “new subsection (j)”.
We
know from looking at a “side-by-side” that this subsection was new.
When
was
The
Clark-Case memorandum is useful for thinking about what the Senate had in mind
when it was thinking about the House version, but it’s not especially relevant
to § 703 (j) since that subsection didn’t exist when Clark and Case wrote their
memo.
United
Steelworkers of
The
union and the company make an agreement with an affirmative action plan to
train black workers to get into craft positions. An on-the-job training program gave workers
the chance to learn craft skills. 50% of
the training slots were reserved for black workers. Weber is a white production worker with more
seniority than all the black workers who were selected. He sues under the Civil Rights Act.
Brennan’s opinion
What
did Brennan say? The plain language of §
703 seems clear. Why does Brennan go
beyond the plain language? What’s
Brennan’s justification?
We
might consider the language and decide the word “discriminate” isn’t so clear as you might think.
Instead, Brennan grants the plain meaning, but finds that some things
can be outside the “spirit” of the act.
Can he do that? What’s the basis
of saying that something is within the letter of the law but we can ignore
plain meaning? How could you justify
this?
What
is the basis upon which you can
disregard plain meaning? When would we
feel comfortable with this? Maybe we can
ignore plain meaning when it is incompatible with what we think the Constitution
permits or requires.
In
theory, if there’s no disagreement as to what the statute says, it will guide
us unless what the statute says is unconstitutional. But who gets to decide what’s incompatible
with the purpose? Should courts avoid
results that are inconsistent with those that Congress apparently had in mind?
What
if what the statute, literally read, is absurd?
What if there’s a mistake in the language? What if there is an untenable
consequence? Then we may depart from
plain meaning.
What
does § 703 (a) and (d) require? Did Congress
really mean “you may not distinguish on the basis of race”?
What
other goals is Brennan ascribing to Congress?
He argues that Congress wanted to improve the economic condition of
blacks in our economy. How is permitting
discrimination opposed to that?
It’s
a means-ends issue. Are there any other
means-ends arguments being made by Brennan?
Maybe he also wants to “preserve the bargain” that was struck in Congress.
What’s
the connection between trying to open job opportunities for blacks including
jobs that might otherwise be held by whites and Title VII? If the goal is to integrate blacks into the
economy, then Brennan is willing to attribute a wider set of means to Congress
than just race-blind employment practices.
Brennan is willing to say that race-conscious hiring is okay if it tries
to rectify past victimhood instead of perpetuating
it.
What
is it that businesses can do on their own? What does it mean to say that businesses can
do this on their own?
What is Brennan talking about when he talks about “traditional business
freedom”? Well, this is a statute that
is being imposed on what the “state of the law” before it came into force,
including the common law.
Brennan
says that this is an “employment at will” world. Employees can be hired and fired for any
reason except when a statute says
they can’t do it.
Brennan
is trying to argue that no matter what Rehnquist says, Brennan’s opinion is
more compatible with preserving business freedom.
But
isn’t there a tension here? Brennan
disregards literal meaning to some extent.
But what does he do when he goes and analyzes § 703 (j)?
It
would have been very easy if Congress had meant the statute to be broader than
it appears. That’s a plain meaning argument. They enacted one word, not two words. Brennan says that it also preserves business
freedom. But he anchors part of his
analysis in the plain language of § 703 (j).
So he’s inconsistent, and he may appear to be result-oriented.
Is
it appropriate for the Court to ask whether Congress would have accepted a
certain amendment if it had been offered?
It may be that we’re trying to discover
was Congress had in mind.
Rehnquist’s opinion
Consider
Rehnquist’s opinion. He focuses on
purpose too. He focuses on the act as a “bargain”
or “deal” to be narrowly construed. One
point that Brennan has scored off Rehnquist is that Rehnquist’s analysis would
displace more common law than Brennan’s
version. Rehnquist would forbid more
conduct that was acceptable at common law.
On the issue of displacing managerial prerogative, Rehnquist goes
further than Brennan.
Rehnquist
seems confident that he had smoking guns that suggest Congress meant to ban
just the sort of activity that Brennan is prepared to allow. But is Rehnquist’s reliance on legislative
history persuasive?
What
about the speech by Celler? People aren’t making set speeches for no
reason. Rather, they are responding to
criticism.
According
to Humphrey and Celler the bill won’t force employers
to do stuff. Senators Robertson and
Williams talk back and forth. The
discussion is: “Are you going to promote someone solely because they are black?” That’s not necessarily what’s going on in Weber.
Or maybe it’s contestable.
Rehnquist thinks he has smoking guns.
But
the counterargument is that everything that is being said is an effort by
supporters of the bill to counter attacks by Southern legislators that “Big
Brother” is going to “make you do things”.
In
this case, we have an “arguable violation” theory. Many what you’re doing isn’t totally
voluntary, but rather trying to stay “one step ahead of the law”. You do this by negotiating with the union. The union could get sued too.
Why
is there silence in the Congressional Record?
Why isn’t the word “permit” included?
You
could argue that the legislators didn’t fully contemplate the current effects
of past discrimination. Part of what’s
going on is that Brennan and Rehnquist are taking an “originalist”
approach: what did the Congress of 1964 have in mind?
Notice
that affirmative action didn’t exist in 1964.
So why would Congress have thought about it in
1964?
Blackmun’s opinion
The
key phrase is: “additional considerations, practical and equitable, only
partially perceived, if perceived at all, by the 88th
Congress”. How is this different from
originalism?