Indiana Law Review Indiana Laiii^ Revieir Volume 21 1988 Number 4 The Supreme Court, Title VII and **Voluntary" Affirmative Action—A Critique* Paul N. Cox** TABLE OF CONTENTS Introduction 769 I. The Individualist Model 772 A. The Disparate Treatment Prohibition 772 B. Justification of the Disparate Treatment Prohibition 774 C. Summary 785 II. The Court's Group "Rights" Model 785 A. The Disparate Impact and Systematic Disparate Treatment Theories of Title VII Discrimination 786 B. Affirmative Action 790 1. "Voluntary" Affirmative Action: The Supreme Court Opinions 790 2. The Relationship Between "Voluntary" Affirmative Action and Group Rights 795 a. The Remedial Rationale 795 b. White Male Interests 798 c. Limitations on the Court's Group Rights Model 799 C. Summary: Title VII's Incoherence 806 III. Justifications of Group "Rights" 808 A. Three Varieties of Group "Rights" Theory 808 1. Community Theory 808 Copyright by Paul N. Cox, 1987. **Professor of Law, Indiana University, Indianapolis. I thank Joe Tucker and Robin Malloy for a series of conversations in which many of the arguments made here were raised. I am alone responsible both for the opinions expressed and for any error, a responsibility enhanced by the fact that neither agrees with me. 767 768 INDIANA LAW REVIEW [Vol. 21:767 2. Governmental Distribution Theory 809 3. Compromise Theory 810 B. Limited Individuahsm and the Social Good 812 L The Argument 812 2. Some Counterarguments 816 a. The Impoverished Individual 816 b. Individual Responsibility 818 c. Prejudice 820 d. Pedagogy 825 e. The Suffering of Innocents 827 f. Morality and the Incompetence of Government . 832 3 . Rejoinder 833 C. Pragmatic Bureaucratic Justice 835 1. Overenforcement and Bureaucracy 836 a. The Argument 836 b. A Counterargument 839 2. Process Rules and Substantive Allocation Rules 846 a. The Argument 846 b. A Counterargument 848 D. Summary 851 IV. The Statute and its Interpretation 852 A. The Statute and the Understanding of the Congress that Enacted It 854 B. The Supreme Court's Interpretation and the 1972 Amendments 857 C. Alternative Theories of Statutory Interpretation 860 D. A Critique of the Court's Interpretations: Traditional Theory 865 1. The Purpose Counterargument 866 2 . The Unconsidered Case Counterargument 867 3. The Section 703(a)(2) Counterargument..... 870 4. The Deference to Administrative Expertise Counterargument 871 5. The Ratification Counterargument 871 6. The Ratification By Silence Counterargument 873 E. On Understanding the Court's Interpretatiotis: Nontra- ditional Theory 873 1. The Rhetoric of Nontraditional Theory 875 2. Nontraditional Theory Viewed Functionally 879 V. Conclusion 886 1988] AFFIRMATIVE ACTION 769 It is commonplace that the concept of equahty is ambiguous.^ It is commonplace, as well, that Title VII of the Civil Rights Act of 1964 has been judicially interpreted as simultaneously mandating quite distinct understandings of the anti-discrimination principle intimately related to competing and largely incompatible understandings of equal- ity.^ According to the Supreme Court, Title VII prohibits disparate treatment of individuals on the basis of race or gender in employment,^ but also prohibits the disparate effect of employment criteria on race and gender groups'* and permits remedial race and gender preferences benefiting judicially favored groups.^ The tension between the individualist model of equality represented by the disparate treatment prohibition and the group rights model of ^See generally Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Affairs 107 (1976); Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. Chi. L. Rev. 65 (1975); Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982). ^See generally Belton, Discrimination and Affirmative Action: An Analysis of Com- peting Theories of Equality and Weber, 59 N.C.L. Rev. 531 (1981); Fiss, A Theory of Fair Employment Laws, 38 U. Cm. L. Rev. 235 (1971); Furnish, A Path Through the Maze: Disparate Impact and Disparate Treatment Under Title VII of the Civil Rights Act of 1964 After Beazer and Burdine, 23 B.C.L. Rev. 419 (1982); Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978); Maltz, The Expansion of the Role of the Effects Test in Antidiscrimination Law: A Critical Analysis, 59 Neb. L. Rev. 345 (1980). These incompatibilities may roughly be derived from the tension between freedom understood as negative freedom and freedom understood as positive freedom. See I. Berlin, Two Concepts of Liberty in Four Essays on Liberty 118 (1969). Negative freedom is freedom from interference by others and is associated with individualism or classical liberalism. Positive freedom is the practical ability to achieve self-reahzation and, therefore, requires not only absence of interference by others but also possession of the means to achieve self-realization. Compare Westen, The Concept of Equal Opportunity, 95 Ethics 837 (1985) (advocating a conception of equal opportunity compatible with negative freedom) with Rosenfeld, Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal, lA Gal. L. Rev. 1687 (1986) (advocating a conception of equal opportunity compatible with positive freedom). 'See, e.g., Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978); McDonald V. Sante Fe Trail Transport Co., 427 U.S. 273 (1976). Although Title VII prohibits discrimination on the basis of religion and national origin, as well as race and gender, the primary lines of doctrinal development have occurred in the latter contexts. This article will discuss only doctrine as applied to race and gender, although much of what is said here is appHcable to national origin discrimination as well. ^See, e.g., Dothard v. Rawlinson, 433 U.S. 321 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Griggs v. Duke Power Co., 401 U.S. 424 (1971). 'See, e.g., Johnson v. Transportation Agency, 107 S. Ct. 1442 (1987); Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986); United Steelworkers V. Weber, 443 U.S. 193 (1979). 770 INDIANA LAW REVIEW [Vol. 21:767 equality represented by the disparate impact prohibition and by remedial preferences is most obvious in the question of the compatibility of affirmative action with Title VII. The academic commentary examining this tension is voluminous.^ The initial justification for this further addition to that commentary is that the Supreme Court has recently concluded that race and gender preferences are justifiable under Title VII on the basis of statistical disparities between group representation rates in qualified labor pools and group representation rates in a work force. ^ That conclusion, in combination with the Court's general recent tendency to uphold affirmative action in a variety of contexts,^ suggests that the group rights conception has triumphed over the individualist conception of equality in employment under Title VII. There are, however, further justifications for this effort. The tension between competing versions of equality in the jurisprudence of Title VII has left the case law in a state of incoherence. The courts si- multaneously seek to enforce both the individualist model and the group rights model.^ This incoherence is partially attributable to the *As the tension is evident in both constitutional and statutory analyses, useful commentary exists at both levels. See, e.g., J. Ely, Democracy and Distrust 135-79 (1980); N. Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy (1975); R. PosNER, The Economics of Justice 351-407 (1981); Bell, Bakke, Minority Admissions and the Usual Price of Racial Remedies, 67 Calif. L. Rev. 3 (1979); Bell, In Defense of Minority Admissions Programs: A Reply to Professor Graglia, 119 U. Pa. L. Rev. 364 (1970); Belton, supra note 2; Cox, The Question of "Voluntary" Racial Employment Quotas and Some Thoughts on Judicial Role, 23 Ariz. L, Rev. 87 (1981) [hereinafter Cox, Voluntary Quotas]; Ely, The Constitutionality of Reverse Racial Dis- crimination, 41 U. Chi. L. Rev. 723 (1974); Fallon & Weiler, Firefighters v. Stotts: Conflicting Models of Racial Justice, 1984 Sup. Ct. Rev. 1; Friedman, Redefining Equality, Discrimination, and Affirmative Action Under Title VII: The Access Principle, 65 Texas L. Rev. 41 (1986); Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559 (1975); Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1 (1977); Karst & Horowitz, Affirmative Action and Equal Protection, 60 Va. L. Rev. 955 (1974); Meltzer, The Weber Case: The Judicial Abrogation of the Antidiscrimination Standard in Employment, 47 U. Chi. L. Rev. 423 (1980); Sandalow, supra note 1; Strauss, The Myth of Color Blindness, 1986 Sup. Ct. Rev. 99; Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. Chi. L. Rev. 775 (1979); Wasserstrom, Racism, Sexism and Preferential Treatment: An Approach to the Topics, 24 UCLA L. Rev. 581 (1977); Wright, Color-Blind Theories and Color-Concious Remedies, 41 U. Chi. L. Rev. 213 (1979). 'Johnson v. Transportation Agency, 107 S. Ct. 1442 (1987). ^United States v. Paradise, 107 S. Ct. 1053 (1987); Local 28 of the Sheet Metal Workers Int'l Ass'n v. EEOC, 478 U.S. 421 (1986); Wygant v. Jackson Board of Education, 476 U.S. 267 (1986); Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986). See Cahfornia Fed. Sav. & Loan Ass'n v. Guerra, 107 S. Ct. 683, 693- 94 (1987); id. at 695-97 (Stevens, J., concurring). "^See generally Cox, Substance and Process in Employment Discrimination Law: One View of the Swamp, 18 Val. U. L. Rev. 21 (1983). 1988] AFFIRMATIVE ACTION 111 differing commitments of Supreme Court justices and to shifting ma- jorities on the Court. It is, however, also attributable to dissonance between the Court's rhetoric and the functional realities of its pro- nouncements. A thesis of this article is, therefore, that the Court has engaged in a sustained effort to adopt a group rights conception as the central theme of its version of Title VII. '^ However, the Court's version of this conception is limited; it compromises incompatible individualist and group rights perspectives. The compromise reflects the tension between individualist and group rights strands of doctrine and, therefore, reinforces the claim that doctrine is incoherent. How- ever, the claim of incoherence requires that the individualist model of the anti-discrimination principle be viewed as incompatible with the group rights model underlying affirmative action. There is, therefore, an additional thesis argued here: justifications of affirmative action cannot be adequately reconciled with pristine forms of the individualist model. Examinations of pristine versions of the individualist model are undertaken both because the language of Title VII and the political rhetoric of the legislative process that enacted it invoke that model and because aspects of individualist thought help to explain fundamental disagreements between advocates of individualist and advocates of group-based versions of the statute. If the claim that the Court has adopted a group rights conception of Title VII is viable, the claim raises profound questions of the legitimate role of the Court in statutory interpretation. It raises such questions because of the claim made here that Title VII is premised upon the individualist model. If this is the premise of the legislation, the Court's reconstruction of that legislation can be justified only by reference to a theory of statutory interpretation that authorizes an extraordinary degree of judicial discretion to pursue the judicially de- fined social good. Moreover, such reconstruction would seem explicable, as a descriptive matter, only by reference to such a theory of inter- pretation. The final theses argued here are, therefore, that the Court's pursuit of group rights is incompatible with Title VII understood from the perspective of traditional conceptions of judicial function in in- terpreting and applying legislation and is an instance of, and, indeed, can only be understood within the context of, a nontraditional'^ con- ception of that function. '"See Johnson v. Transportation Agency, 107 S. Ct. 1442, 1458 (1987) (Stevens, J., concurring) (before 1978, the Court followed an individualist approach, but has since followed a group approach). "The nontraditional conception may be labeled the "post-legal process school." The legal process school is best represented by H. Hart & A. Sacks, The Legal Process: 772 INDIANA LAW REVIEW [Vol. 21:767 This Article proceeds as follows: Part I describes the individualist model implicit in the disparate treatment theory of Title VII liability, examines justifications of that theory and attempts to relate the theory to elements of traditional individualist thought. Part II describes the group rights model implicit in Supreme Court doctrine governing dis- parate impact and systematic disparate treatment theories of liability and governing "voluntary" affirmative action. Part III then attempts to relate these doctrines to two alternative justifications of affirmative action: a straight-forward redistribution of employment rationale and an overenforcement of disparate treatment theory rationale. In partic- ular, Part III examines whether either justification is compatible with the individualist justifications of disparate treatment theory. Finally, Part IV examines Title VII's text, legislative history and arguments favoring affirmative action from traditional and nontraditional per- spectives of statutory interpretation. I. The Individualist Model A. The Disparate Treatment Prohibition The individualist model of equality requires that like persons be treated alike. "Likeness" for this purpose precludes consideration of race or gender: persons are ahke even if they are of distinct races or genders. The model is captured by the disparate treatment theory of prohibited employment discrimination: an employer may not treat an individual differently than such individual would have been treated "but for" that individual's race or gender. ^^ Facial race and gender classifications are therefore prohibited,*^ as well as race or gender motivated employment actions.*"^ It is important to recognize that the disparate treatment prohibition is simultaneously radical in its implications and narrow in its scope and that the prohibition, if applied with discipline, is clearly distin- guishable from group-based conceptions of the anti-discrimination prin- ciple. The best known illustration of these features of the prohibition Basic Problems in the Making and Application of Law (10th ed. 1958). The post- legal process school is best represented by G. Calabresi, A Common Law for the Age OF Statutes (1982) and R, Dworkin, A Matter of Principle (1985) [hereinafter Dworkin, Principle]. See Cox, Book Review, 1983 Utah L. Rev. 453; Weisberg, The Calabresian Judicial Artist: Statutes and The New Legal Process, 35 Stan. L. Rev. 213 (1983). ^^See P. Cox, Employment Discrimination 6-5 to 6-18 (1987). ^^See, e.g., City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978). "See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 1988] AFFIRMATIVE ACTION 113 is the Manhart case.'^ The employment practice there challenged was a rule compelling greater contributions to a pension plan of female employees than of similarly situated male employees. The justification for this disparity in treatment was the accurate generalization that women outlive men. Given that generalization, higher contributions by women were necessary to (1) ensure that pension benefits would be payable to women over their greater Hfe span in periodic amounts equal to benefits payable to men and (2) ensure fairness as between men and women. Disparate treatment was necessary to fairness because absent such treatment, male employees would be forced to subsidize female employees, and the actuarial value of male benefits would be less than the actuarial value of female benefits. The employer's rule was nevertheless held prohibited because the rule entailed facial disparate treatment on the basis of gender. According to the Supreme Court in Manhart, the actual longevity of an individual male or female is not compelled by the average longevity of the gender group to which he or she is classifiable, and fairness as between gender groups does not justify disparate gender treatment of individuals.'^ Notice, then, that the prohibition is of disparate race or gender treat- ment of individuals and that efficiency, fairness and other values are trumped by it.'^ In particular, notions of fairness of distribution of burdens and benefits are trumped by the prohibition, and the prohibition may be applied even where race and gender are generally accurate proxies for legitimate considerations. Indeed, the prohibition was ap- plied in Manhart even though the classification invalidated in that case was not plausibly attributable to prejudice. Nevertheless, the prohibition is also quite limited. An employer is free to use any criteria for an employment decision other than the prohibited criteria.'^ Formal "free- dom of contract" is preserved by the prohibition in all respects except that protected status may not be privately used in contracting.'^ '^City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978). The case also illustrates the controversy generated by the radicalism of the prohibition. See, e.g., Brilmayer, Hekeler, Laycock & Sullivan, Sex Discrimination in Employer- Sponsored Insurance Plans: A Legal and Demographic Analysis, 47 U. Cm. L. Rev. 505 (1980); Kimball, Reverse Sex Discrimination: Manhart, 1979 Am. B. Found. Res. J. 85; Freed & Polsby, Privacy, Efficiency, and the Equality of Men and Women: A Revisionist View of Sex Discrimination in Employment, 1981 Am. B. Found. Res. J. 585. 'M35 U.S. at 709. See Arizona Governing Comm. v. Norris, 463 U.S. 1073 (1983). '^The prohibition, if consistently applied, trumps, for example, associational freedom, Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959); sexual privacy, Rutherglen, Sexual Equality in Fringe-Benefit Plans, 65 Va. L. Rev. 199 (1979); and efficiency, R. Posner, supra note 6, at 362-63. '»5ee, e.g., Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). "The legislative history of Title VII confirms the limited character of the prohibition. 774 INDIANA LAW REVIEW [Vol. 21:767 B. Justification of the Disparate Treatment Prohibition What justifies the disparate treatment prohibition? One possibility, a possibility less suspect than is sometimes imagined, is that race and gender classifications are a priori wrong.^^ Another is that they may be founded upon prejudice or hostility and that this hostility is wrong. 2' The difficulty with the hostility possibility is that some classifications, such as that at issue in Manhart, do not appear grounded upon prejudice or hostility. ^2 A third justification is that race and gender, when used as proxies for other characteristics that are deemed to be legitimate considerations, are inaccurate generalizations in the nature of irre- For example, the additional majority views of Congressmen McCulloch, Lindsay, Cahill, Shriver, MacGregor, Mathias and Bromwell in H.R. Rep. No. 914, 88th Cong., 2d Sess., 2150 reprinted in 1964 U.S. Code Cong. & Admin. News 2391, 2516 provide: It must also be stressed that the Commission must confine its activities to correcting abuse, not promoting equality with mathematical certainty. In this regard, nothing in the title permits a person to demand employment. Of greater importance, the Commission will only jeopardize its continued existence if it seeks to impose forced racial balance upon employers or labor unions. Similarly, management prerogatives, and union freedoms are to be left undisturbed to the greatest extent possible. Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices. Its primary task is to make certain that the channels of employment are open to persons regardless of their race and that jobs in companies membership in unions are strictly filled on the basis of qualification. The Interpretative Memorandum of Senators Clark and Case on H.R, 7152, the House bill that formed the basis for the Senate compromise bill ultimately enacted as Title VII, states: It has been suggested that the concept of discrimination is vague. In fact it is clear and simple and has no hidden meanings. 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: race, color, religion, sex, and national origin. Any other criterion or qualification for employment is not affected by this title. 110 Cong. Rec, 7212 (1964). For further statements consistent with these views, see, e.g., 110 Cong. Rec. 8921 (1964) (remarks of Sen. Williams); 110 Cong. Reg. 2594 (1964) (remarks of Rep. Griffin); 110 Cong. Rec. 7215-18 (remarks of Sen. Clark); 110 Cong. Rec. 13,088 (remarks of Sen. Humphrey). ^°See A. BiCKEL, The Morality of Consent 133 (1975). An a priori assumption that race and gender discrimination is "wrong" is not implausible as moral commitment given the tragedy of our experience with such discrimination even if we are unable to articulate the precise features of that morality. One advantage of the a priori approach is its simplicity and, therefore, its understandability by the mass of members of the society. Another is that the assumption is compatible with the expressed views of proponents of Title VII in its legislative history. See infra note 34. ^^See J. Ely, supra note 6, at 153-54. ^^See, e.g., R. Posner, supra note 6, at 362-63; Strauss, supra note 6, at 108-13; Wasserstrom, supra note 6, at 618. 1988] AFFIRMATIVE ACTION 775 buttable presumptions." According to this justification, fairness requires individual consideration with direct measurement of the underlying characteristics. The difficulties with the irrebuttable presumption anal- ysis are that race and gender are often accurate generalizations and that other often accurate but imperfect generaHzations in the nature of irrebuttable presumptions are universally employed without objection in employment and other contexts.^"* This rationale, therefore, fails to provide a reason why race and gender should be treated differently than other proxies. A fourth justification is that race and gender classifications, even when used as accurate proxies, generate psychological harm: they stig- matize disfavored persons as inferior and thereby deny the humanity of such persons. ^^ The difficulty with the stigma argument is less with the probable accuracy of the psychological hypothesis than with its manipulability. For example, it is sometimes said that a benign racial preference favoring minorities does not stigmatize whites as inferior because its purpose is remedial. Aside from the possibility that the preference stigmatizes the favored minority person as inferior, the argument fails to account for the attitude of the disfavored majority person toward the remedial motivation. If the majority person does not accept that remediation is a justification for suspending "merit" criteria otherwise appHcable, he is likely to regard the favored minority person both with hostility and as inferior. ^^ If the majority person accepts the remediation rationale, he is likely to regard himself as morally inferior. ^^ Perhaps the majority person is morally inferior, but, if so, it is difficult then to see why feelings of inferiority are plausible explanations for the disparate treatment prohibition. Moreover, it is difficult to see why feelings of inferiority generated by merit criteria, "5ee Sugarman v. DougaU, 413 U.S. 634, 646-47 (1973); Reed v. Reed, 404 U.S. 71, 76 (1971). '"See, e.g., Fallon, To Each According to His Ability, From None According to His Race: The Concept of Merit in the Law of Antidiscrimination, 60 B.U.L. Rev. 815, 825-31, 840-43 (1980); R. Posner, supra note 6, at 362-63; Strauss, supra note 6, at 108- 13; Wasserstrom, supra note 6, at 592-94, 618-19. -^Brown v. Board of Education, 347 U.S. 483, 494 (1954). See Karst, supra note 6, at 6 n.25; Karst & Horowitz, supra note 6, at 972. ^^That is, the majority person is likely to respond by viewing the favored minority person as inferior under alternative merit criteria and may respond with hostility to that person's minority status both because the standard rhetoric of "meritocracy" has been violated and because the moral lesson of color blindness has been exhibited as a sham. '^5ee Cox, Voluntary Quotas, supra note 6, at 149-50. The majority person is likely to feel this way to the extent that the justification for the action is the moral necessity of redressing past injustice. Because race or gender are then used as proxies for the victims of injustice, race and gender become moral claims on employment opportunity. 776 INDIANA LAW REVIEW [Vol. 21:767 such as educational credentials, are not also subject to legal solicitude. It is possible, given this litany of difficulties with alternative ex- planations of the disparate treatment prohibition, to conclude that the prohibition is unwarranted or, at least, that it is warranted only where one or another of the underlying rationales for it is found to be present. ^^ That conclusion, however, is a mistake because it fails to account for underlying individualist values, and for certain tensions within these values that may explain both the prohibition and its breadth. The two central features of the disparate treatment prohibition described above are: (1) race and gender may not be used as employment criteria in the sense that they may not directly cause an employment decision and (2) the prohibition is quite limited in the sense that any other basis for an employment decision independent of race or gender is unaffected by the prohibition. These features of the disparate treat- ment prohibition express the values, crucial to individualism, ^^ that ^See Strauss, supra note 6, at 118-30. ^'The notion that persons are distinct and inviolable and that they are to be dis- tinguished from their attributes is asserted, for example, by I. Kant, Groundwork of THE Metaphysics of Morals 90-97 (H, Paton trans. 1951) [hereinafter Kant, Ground- work]; and I. Kant, Metaphysics of Morals in Kant's Political Writings 132-36 (H. Reiss ed. 1970); by R. Nozick, Anarchy, State and Utopia 30-33 (1975); and by J. Rawls, a Theory of Justice 3-4 (1971), The notion that persons, as distinguished from the attributes of persons, may not be subjected to the valuations of others is implicit in the notion of inviolable distinctness. See, e.g., R. Nozick, supra, at 33. Individualist theorists differ, however, in their positions about the connection between persons and attributes and about the proper social mechanism for valuing attributes. As the disparate treatment prohibition assumes that all attributes other than race or gender are the subjects of private exchange, see Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), it implicitly takes the position that these attributes, albeit separable from persons, are objects to which persons possessing such attributes are entitled. The implication is therefore a Lockean version of individualism. See generally J. Locke, The Second Treatise OF Government: An Essay Concerning the True Original, Extent and End of Civil Government, Ch. VI (3d Oxford ed. 1966); R. Nozick, supra, at 232-75. There are other versions, incompatible with the implications of the Lockean version. See infra text ac- companying notes 186-203. The separation of person from attributes and possessions is related to a separation of law and morality. Compare, e.g., Fletcher, Law and Morality: A Kantian Perspective, 87 CoLUM. L. Rev. 533 (1987) (distinguishing internal and external freedom in Kant's philosophy and claiming that internal freedom, or morality, is communitarian in Kant, but external freedom, or law, is liberal or individualistic in Kant); and Grey, Serpents and Doves: A Note on Kantian Legal Theory, 87 Colum. L. Rev. 580 (1987) (Kantian ethics are separated from amoral Kantian law) with Benson, External Freedom According to Kant, 87 Colum L. Rev. 559 (1987) (arguing that, although law and morality are distinct in Kant, they are unified by reference to a comprehensive understanding of Kantian "practical reason" and by the priority of the Kantian notion of ideal law to Kantian 1988] AFFIRMATIVE ACTION 111 persons are radically distinct and may not be subjected to the valuations morality). The positivist version of this separation is generally designed to address a task of identification of that which is law and that which is not, so the debate between positivists and anti-positivists tends to be either over this question of identification or over the questions whether law may be judged by moral criteria or whether judicial discretion is cabined by morality. Compare Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958) with Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958). However, the separation of law and morahty has a more fundamental aspect relevant to the individualist-collectivist debate. For the individualist, law ought to be separate from morality in the sense that law ought to be neutral as between competing conceptions of the good. Morality, given the individualist's moral relativism, is allocated to the realm of the person, and law is allocated to the realm of regulating interpersonal conflicts over desired objects or possessions. For the collectivist, understood as a proponent of the use of the coercive apparatus of the state to achieve the good, law and morality cannot be separated because law is the instrument by which his (absolutist) view of morality is implemented. The positivist's insistence on separation can be related to this more fundamental debate, as where the particular positivist in question employs his position on the question of identification in service of an indi- vidualist agenda. See generally, J. Raz, The Morality of Freedom (1986). This relationship, however, is not necessary, as the identification question leaves room for quite utilitarian agendas. The individualist and collectivist are, of course, caricatures employed here to state extreme positions. Many who would claim to be individualists (or, at least, "liberals") nevertheless permit broad discretion to the state to implement "moral" or utilitarian agendas. See, e.g., Dw^orkin, Principle, supra note 11. The extent to which this permission will be granted appears to turn on certain modifications of the separation principles noted above. In particular, it turns upon a rejection of sharp distinctions between law and morality, R. I>workin, Taking Rights Seriously 22-45 (1978) [hereinafter Dw^orkin, Rights], and upon employing the person-attribute distinction in a way that subjects attributes to the authority of the state. The separation of person and attribute in more radical versions of individualism is not a means of distinguishing between those matters over which individuals have rights against the state and those matters over which they do not, because the task of the state within such versions remains minimal—the state is to enforce bargains, prohibit coercion or fraud and implement a limited scheme of corrective justice. The separation in more contemporary versions of liberaKsm is, however, a means to make this very distinction. See infra text accompanying notes 186-203. Two further aspects of separation theses should be noted. First, the propositions that person and attribute and law and morality are separable are related to the notion that fact and value are separable, that is, that objective description of fact is possible. So, too, are counterarguments. The critic who claims that person and attribute are in fact inseparable may also claim that fact and value are inseparable. See, e.g., Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1877-87 (1987). This claim has important impli- cations for the problem of statutory interpretation. See infra text accompanying notes 340-493. If fact and value are radically inseparable, then law is indeterminate, Cohen, The Ethical Basis of Legal Criticism, 41 Yale L. J. 201, 216 (1931), and it is implausible that a statutory text can be understood by a judge except in terms of or by reference to his preferences. It is, however, questionable that radical separation of fact and value is a viable description of interpretation. Even if the mechanism of communication through texts is not the texts themselves, but rather, the practices of users of language within a 778 INDIANA LAW REVIEW [Vol. 21:767 of Others. That is, persons are valuable in the sense that the individual is of ultimate or prior value, but the prior value of the individual precludes valuation in the sense of assessment of desert. Persons should not, for example, be used as mere means to another's ends.^^ This implies that persons are equal in the sense that they are equal before the law or have rights to equal opportunity. Persons are not, however, equal in their possession of the attributes, conferred either by nature or by nurture, that enable them to confer benefits on others. ^^ These attributes, conceived as separated from but owned by individuals, may be valued in the marketplace through the consent of the individuals entitled to them, but the persons who own such attributes are not subject to valuation, and they are equal because they are not subject community of users, L. Wittgenstein, Philosophical Investigations (G. Anscombe trans. 1970), or the perspective of or governing "paradigms" of a community of readers, S. Fish, Is There A Text in this Class? The Authority of Interpretive Communities (1980); T. KuHN, The Structure of Scientific Revolutions (2d ed. 1970), it is not the case either that political ideology defines communities or that persons committed to an ideological position are incapable of "finding" a textual meaning with which they disagree. Cox, Ruminations on Statutory Interpretation in the Burger Court, 19 Val. U. L. Rev. 287, 371-94 (1985). See generally Solum, On The Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462 (1987); Williams, Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells, 62 N.Y.U. L. Rev. 429 (1987). Second, the above-described separations are also related to the notion of separation of means and ends. For an individuahst, this separation takes the form of a preference for rules of process over rules of substantive allocation, so that the state is to regulate the means by which persons interact, but not the private ends for which they act. See infra text accompanying notes 50-53. The separation may, however, also be employed as a basis for interpreting actions of the state, so that the state's action is narrowly confined to precise means (as through the constitutional nondelegation doctrine or techniques of statutory interpretation) and is not given a force or application consistent with the broad principle or policy that may be attributed as the end for which such means were legislatively adopted. See Fletcher, Principlist Models in the Analysis of Constitutional and Statutory Texts, 72 lov^A L. Rev, 891 (1987). For the anti-individualist, means and ends are inseparable. For example, process rules are in fact rules of substantive allocation, see e.g., Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873 (1987); and legislation ought to be interpreted to further underlying purpose or policy. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 495 (1977). ^'^See Kant, Groundwork, supra note 29, at 90-96; I. Kant, Theory and Practice in The Philosophy of Kant 415-21 (C. Friedrich ed. 1949). ^^See F. Hayek, The Constitution of Liberty 85-102 (1960). It is possible to view the notion that it is permissible to value only benefits conferred or conferrable on others as more a justification of capitalism than of individualism and to therefore criticize it as paying insufficient attention to individual entitlements in the Lockean sense. See R. Nozick, supra note 29, at 158-59. Nevertheless, the notion is compatible with the concept of individual liberty of choice in the use and transfer of holdings because it denies that an end-state principle of moral desert is a permissible basis for the coerced distribution of holdings. 1988] AFFIRMATIVE ACTION 779 to valuation. ^2 In short, individualism separates persons from the at- tributes and possessions of persons, treats persons as of ultimate but equal value and permits market valuations of attributes and possessions through consensual private exchange. In effect, the disparate treatment prohibition assigns race and gender to the realm of the person and removes it from the distinct category of attributes of persons; it precludes valuation of race and gender. This understanding is commonly expressed by the assertion that persons should be judged on the basis of their individual talents, accomplish- ments and attributes, and not by reference to race or gender." Both the legislative history of the Civil Rights Act^^ and Supreme Court "F. Hayek, supra note 31, at 95. It should more generally be noted that individualists differ among themselves in their views both of the historical process by which social institutions that maximize individual freedom come about and in their rationales for such freedom. For a Locke or a Nozick, the historical (or, at least, hypothetically historical) explanation is conscious design (as in social contract theory), and the rationales rely upon a priori versions of the value of the individual and systematic deduction from this value. For a Hayek, the historical explanation is accident or evolutionary accident, and the rationale is ignorance and incompetence (man is incapable of consciously formulating a moral social/political structure). See N. Barry, Hayek's Social and Economic Philosophy 5-9 (1979). ^^See, e.g., Reynolds, Individualism v. Group Rights: The Legacy of Brown, 93 Yale L.J. 995, 998-1000 (1984); Meltzer, supra note 6, at 424. It is, of course, possible to attack this value not merely on the ground that social practice permits use of proxies for merit that are imperfect but on the ground that "merit" itself is problematic. See Wasserstrom, supra note 6, at 619-21. It is true that the concept of merit is problematic in the sense that there can be and are widely divergent and incompatible views of merit founded upon divergent understandings of the good. Access to resources might be viewed as best given to persons who have demonstrated the least capacity to use them effectively (on the theory that they deserve help or practice) or to persons who have demonstrated the most capacity to use them effectively (on the theory that they should be rewarded or the theory that social wealth requires such an allocation). It is, however, not true that individualism has no position on the matter or that its answer is less viable than its alternatives. Also, it must be kept in mind that the individualist value permeates disparate treatment theory. '^"Meritocratic" arguments were repeatedly invoked as the rationale for Title VII by its proponents. See, e.g., 110 Cong. Rec. 8921 (1964) (remarks of Sen. Williams) ("The language of [Title VII] simply states that race is not a qualification for employment. Every man must be judged according to his ability."); 110 Cong. Rec. 13,088 (1964) (remarks of Sen. Humphrey) ("What the bill does ... is simply to make it an illegal practice to use race as a factor in denying employment. It provides that men and women shall be employed on the basis of their qualifications . . ."). See also supra note 19. It is apparent that proponents of the legislation that became Title VII cannot be plausibly described as radical individualists. They are merely post-New Deal liberals and, therefore, necessarily proponents of a modified individualism by which expansive state authority over objects is deemed legitimate. See infra text accompanying notes 186-203. The general philosophy of Title VII's proponents was not, however, the form of argument employed in support of the legislation. The form of argument employed was individualist in a quite 780 INDIANA LAW REVIEW [Vol. 21:767 pronouncements in cases in which the Court has invoked the disparate treatment theory^^ repeatedly invoke this understanding. Nevertheless, it should be apparent that this version of individualism is in substantial tension with values typically identified with individ- ualism, particularly that of individual liberty of association. To enforce the disparate treatment prohibition is to preclude race- and gender- based choice and to coerce governmentally approved association.^^ The disparate treatment prohibition therefore suggests a version of indi- vidualism not grounded in libertarian logic, but in notions of collectively defined personhood and collectively enforced respect for personhood. In effect, the disparate treatment theory declares race and gender inalienable—employers may not purchase and employees may not sell their race or gender—a result incompatible with at least extreme versions of individualism. 3^ The collectively defined notion of personhood protected by the disparate treatment prohibition is nevertheless compatible with the in- dividuahst notion that persons ought to be free to constitute themselves through interaction with the social context in which they find themselves without arbitrary limitation. ^^ The difficulty, of course, is that the crucial terms "self" and "arbitrary" are defined by the disparate treatment prohibition in particular and controversial ways. The self permitted to interact is an intact self with a right of control over and alienation of all attributes and possessions other than race or gender^^ radical sense, perhaps because proponents of the legislation, whatever their personal preferences, recognized that the individualist argument was the one that had some prospect of passage. See infra notes 350-54 and accompanying text. ^'See, e.g., City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 708 (1978). ^^See, e.g., Wechsler, supra note 17. ''See H.R. Rep. No. 914, 88th Cong., 2d Sess. 30, reprinted in 1964 U.S. Code Cong. & Admin. News 2391, 2517. Aside from the political and economic considerations, however, we believe in the creation of job equality because it is the right thing to do. We believe in the dignity of man. He is born with certain inalienable rights. His uniqueness is such that we refuse to treat him as if his rights and well-being are bargainable. All vestiges of inequality based solely on race must be removed in order to preserve our democratic society to maintain our country's leadership, and to enhance mankind. Id. at 2517 (emphasis added). '* A regime that limits collective intervention into private ordering only to preclude use of "force or fraud" would treat individual preferences, including "tastes for dis- crimination," as givens. It would not seek to intervene on the grounds that these preferences were "wrong" or "distorted" because such a regime is profoundly skeptical about collective competence to define "wrong" and "distorted." '""See Texas Dep't Community Affairs v. Buidine, 450 U.S. 248 (1981); Furnco Constr. Co. v. Waters, 438 U.S. 567 (1978). 1988] AFFIRMATIVE ACTION 781 and a limitation is arbitrary only if it requires reference to race or gender/^ It is possible both to more narrowly define the self and more broadly define that which is arbitrary/' Nevertheless, the definitions implicit in the disparate treatment prohibition may be derived from two elements of dominant rhetoric in American society: first, individuals are to be treated as distinct for reasons of their distinctiveness (in- dividual "merit," understood as the distinctive attributes of persons, is valued)"*^ and second, free exchange among individuals is valued as an expression of their sovereignty over their distinctness (private ex- change between autonomous individuals is preferred to centralized al- location). Once it is conceded that race and gender are no part of the distinctiveness of the individual, these rhetorical elements are compatible with the disparate treatment prohibition. While it is true that this concession is centrally compelled, neither element of individualist rhet- oric could be applied without a collective understanding of the indi- vidual, and the particular understanding compelled by the concession maximizes private interaction and minimizes centralized allocation. "^^ Actual social practice may be viewed as incompatible with the notion that persons should be judged on the basis of individual merit. In the first place, "merit" is a controversial notion. For example, whether the selection of an employer's relative as an employee is a selection based upon merit is a question answerable only by reference to one's particular understanding of merit, of several distinct under- standings of merit, in social practice. "^"^ In the second place, group measures of merit are commonplace, even when merit is understood in terms of competence. Intelligence tests, for example, are group '''See Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064 (5th Cir. 1981) (Smith, J., dissenting), vacated, 456 U.S. 969 (1982); Riley v. Univ. of Lowell, 651 F.2d 822, 824 (1st Cir. 1981), cert, denied, 454 U.S. 1125 (1982). Cf. Personnel Admin, v. Feeney, 442 U.S. 256 (1979) (disparate treatment at constitutional level of analysis). "'See infra text accompanying notes 186-203. *2"Merit," as the term is used here should be distinguished from the concept of desert. A person's attributes may be valued as meritorious even though he does not deserve them. For example, raw musical talent or athletic ability is meritorious even though the persons having such talents and abilities cannot be said to have earned them except by the accident of birth. Cf. F. Hayek, supra note 31, at 94 (using "merit" in the sense of desert). Moreover, the notion that merit is valued does not, in individualist theory, imply that persons are subjected to the valuations of others; persons may not be so treated under that theory. Id. Rather, merit understood as attributes apart from but possessed by persons are subject to valuation. "^C/". Epstein, The Static Conception of the Common Law, 9 J. Legal Stud. 253, 254-55 (1980) (collective decisions are necessary and inevitable, but it is possible to distinguish collective decisions that maximize volume and scope of individual decisions from collective decisions that maximize volume and scope of collective decisions). '^See generally Fallon, supra note 24. 782 INDIANA LAW REVIEW [Vol. 21:767 measures, both over- and under-inclusive in their capacity to predict individual competence for particular jobs/^ To say that actual social practice is incompatible with "merito- cratic" individualism assumes, however, an authoritative criterion by which "merit" may be identified. The individualist argument is less that merit should be valued than that individuals should be free to transact on the basis of their individual, and perhaps idiosyncratic, versions of merit. In particular, the argument is that "merit" should not be centrally assessed. Race and gender criteria, again, are exceptions to the argument, as the disparate treatment prohibition renders them authoritatively non-meritorious. A justification for the exception is that historical governmental practice with respect to race and gender has in fact been inconsistent with the individualist argument: race and gender were valued by gov- ernment and this valuation influenced private practices by, for example, fostering prejudice. On this account, the disparate treatment prohibition serves to undo this influence. Related justifications are those noted above, for example, that race and gender criteria are often used prej- udicially and this prejudice is a distortion within the individuaHst scheme of free exchange. Why, however, should a concededly collective and authoritative decision about the non-meritorious character of race and gender be so broad? That is, if the decision to adopt the disparate treatment prohibition is justified, for example, by a perceived need to preclude prejudice, why should this exception to the individualist scheme of free exchange not be narrowly confined to instances of prejudice? One justification is a claim from administrative convenience: it is both difficult to distinguish justifiable departures from the value from nonjustifiable ones in the context of race and gender and problematic whether legal decision makers, who are products of that experience, can be trusted to make distinctions.'^^ A second justification is pedagogic. It is not surprising that the disparate treatment prohibition focuses upon and renders visible race and gender by singling out only race and gender proxies for prohibition,"*^ because a central function of the prohibition is to emphasize repeatedly the moral impermissibility of these particular proxies and the hostility that often underlies their use. It is obvious that this emphasis would be unnecessary, even peculiar, had our historical experience in fact been "color blind, ""^^ but that has not been our historical experience. The color blindness slogan is. ^Griggs V. Duke Power Co., 401 U.S. 424 (1971). ^See, e.g., R. Posner, supra note 6, at 368-71, 378-86. 'Strauss, supra note 6, at 108-13. 'Id. 1988] AFFIRMATIVE ACTION 783 therefore, not descriptive of the disparate treatment prohibition. It is, rather, evocative, not merely of aspiration, but of moral precept/^ A third justification is that the form of the disparate treatment prohibition is compatible with the form favored by individualists: it is relatively general, understandable and predictable. It therefore, min- imizes the discretion of adjudicative authorities to pursue substantive agendas independent of that expressed by the prohibition.^^ In the present context, the justification from form is often expressed as the proposition that the disparate treatment prohibition is concerned with a narrow aspect of the process of employer decisionmaking, rather than with the results reached through that process.^' The disparate treatment prohibition is a rule of process in the sense that it is a rule that structures the employment game; players in that game must adhere to the rule but are free to otherwise interact within the game as they wish. They are not compelled to reach particular decisions. In this sense, the prohibition is analogous to classical con- ceptions of the law of contract. Process rules are inherently over- and under-inclusive because they are general; they do not purport to ensure just allocation of resources or just distribution of wealth, nor to decide questions of desert within the context of particular facts. We are not concerned with the justness of a particular bargain within contract law classically conceived; we are concerned instead, for example, with whether the bargain was induced by fraud, under a narrow definition of fraud." So it is with the disparate treatment prohibition. The prohibition is over- and under-inclusive if viewed as directly addressing the unjustness of prejudice, stigma, and inaccurate or arbitrary employee selection, or if viewed as indirectly allocating employment on the basis of desert. Although it is compatible with these objectives, the prohibition does not have these functions. It functions, instead, as a rule of process and, therefore, as a rule that does not require the degree of govern- mental intrusion into allocation of employment that would be necessary if these matters were directly addressed. A primary justification of the disparate treatment theory is, therefore, its narrow scope and limited '*'^The slogan is therefore expressive both of ideal and of means to that ideal. Cf. Wasserstrom, supra note 6, at 603-15 (recognizing ideals as an element of the analysis, but rejecting color blind theories). Whether it is an effective means is, however, problematic. ^°See, e.g., F. Hayek, supra note 31, at 148-61. Cf. Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976) (describing formalist general rules and critizing same) [hereinafter Kennedy, Form and Substance]. ^^See, e.g., Reynolds, supra note 33, at 1001. "It is of course possible that contract doctrine is not in fact applied in a fashion consistent with this characterization. See, e.g., Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 Md. L. Rev. 563 (1982). 784 INDIANA LAW REVIEW [Vol. 21:767 content. Within a particular conception of government and a particular conception of the freedom of individuals to interact, the theory has the virtue of precluding governmental allocations founded upon gov- ernmental definitions of just distribution of employment. A problem with this characterization is the difficulty with the claim that classical contract law provided a mere process within which private transactions between autonomous individuals could occur: the process is neither "neutral" nor "prepolitical."^^ The limited character of the disparate treatment prohibition leaves unaltered a distribution of re- sources that dramatically favors whites and males. These resources, in particular the human capital investments"^ measured and rewarded by merit criteria, are crucial to entry and success within the employment process. A process rule conception of the disparate treatment prohibition is, therefore, not race or gender neutral with respect to the distribution of employment it yields: its result is to disfavor groups lacking human capital resources. To the extent that disparities in the distribution of resources are attributable to the historical practice of disparate treatment and to governmental encouragement and enforcement of that practice, it may be further said that this tendency is attributable to the gov- "See, e.g., Sunstein, supra note 29, at 873, 882, 894-95. It is obvious that the process characterization is an appeal to the classical liberal notion of neutraUty, that government should not choose between interests or values because to do so is to abandon the central hberal notion of the relativity of values and to deprive individuals of choice. As such, the appeal is subject to the standard critique, currently espoused most emphatically by adherents of Critical Legal Studies, that government cannot exist if the neutrality value is taken seriously. Government takes sides when it regulates, when it creates rights, and even when it creates rules to facilitate private exchange. See, e.g., Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 205 (1979) [hereinafter Kennedy, Blackstone]. For example, in the present context, the "right" to freedom from race-based decision advanced by the individualist model is simultaneously a denial of a privilege of association. Indeed, it is an imposition of an enforceable obligation regarding association. Cf. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710 (1917) (implicitly recognizing, as a matter of analytical jurisprudence, the non- neutral character of "rights" by postulating the necessity of a duty given recognition of a right). A response to the claim of impossibility is to refine the governing understanding of neutrality. See, e.g., Raw^ls, supra note 29; B. Ackerman, Social Justice in the Liberal State (1980). Another response is to resort to consensus, or to the generality of the welfare to be maximized under a proposed governmental action, or to alternatives to neutrality (such as equality). The response suggested by the text is to concede the con- tradiction between neutrality and the governmental enforcement of a right from race or sex based decision, but to nevertheless claim that the violation of the neturality principle implicit in recognition of the right is both limited and consistent with a concededly controversial conception of the individual the neutrality value is supposed to protect. ^"^See infra note 136. See generally G. Becker, Human Capital: A Theoretical AND Empirical Analysis wtth Special Reference to Education (1964). 1988] AFFIRMATIVE ACTION 785 ernmentally provided and privately utilized process of exchange in employment even though the disparate treatment prohibition is now a part of this process. The systematic tendency of the race and gender neutral process yielded by the disparate treatment prohibition to produce race and gender disparities in distribution of employment may count as a reason for rejecting the prohibition. Certainly it is central to justification of the group rights model to be discussed immediately below. However, the tendency serves better to support the distinction between a focus on process and a focus on the results produced by the process than to defeat this distinction. The complaint that" the disparate treatment prohibition produces group disparities is a complaint that it fails to address distribution—that it is, indeed, a mere rule of process. C Summary The disparate treatment prohibition precludes race or gender based employment decisions. However, the prohibition is limited because it requires proof of illicit motivation and a direct causal link between such a motivation and an allocation of employment. Indeed, the pro- hibition is compatible with an individuaHstic conception of corrective justice: if A harms B (by using B's race as a criterion for decision with respect to B), A must compensate B. The prohibition is also hmited in scope: an employer may utilize any criterion for an em- ployment decision other than race or gender, as such. These features of the disparate treatment prohibition are justified by reference to individuahst thought, both as a matter of the political rhetoric of the legislative history of Title VII and as a matter of the judicial rhetoric employed in cases in which the prohibition is applied. Moreover, aspects of individuahst philosophy, including separation of person and object, distrust of collective decision, favoring of private exchange in impersonal markets and preference for general rules of process aspects of such a philosophy, are compatible with the prohibition. II. The Court's Group "Rights" Model A group rights model of race and gender equality, unlike the individualist model, is concerned with results, not with process. There are distinct group rights models predicated on distinct understandings of what constitutes a group and distinct justifications for recognizing rights in groups. Nevertheless, all of the group rights models are concerned in the present context with a just distribution of employment among race and gender groups. All recognize a group right in the sense that the locus of the claim to just results is in the group; claims of individuals to participate in these results are derived by virtue of 786 INDIANA LAW REVIEW [Vol. 21:767 group membership. Distinct versions of the group rights model are outlined at a later point of this article. ^^ The present objective is to establish that Supreme Court doctrine, within the rubrics of disparate impact theory, systematic disparate treatment theory and voluntary affirmative action, is characterized by an analytical focus upon sub- stantive distribution of employment among race and gender groups. There are three potential explanations of this analytical focus. Specifically, it is possible to claim that the Court focuses upon sub- stantive distribution either (1) for purposes of effectively enforcing the individual rights enshrined in disparate treatment theory; (2) for pur- poses of compensating minorities and women for deficiencies in re- sources (human capital investment) generated by past societal discrimination and to ensure that competition among individuals will be fair once this "temporary" remedial measure has succeeded in overcoming the legacy of discrimination; or (3) for purposes of ensuring proportional distribution of wealth (that is, of employment and com- pensation) among race or gender groups. ^^ There are clear differences between these purposes. The first purports to enforce disparate treat- ment theory, the second purports to temporarily suspend it and the third seeks forthrightly to repeal it. Nevertheless, a major theme of the following discussion is that it is not possible to definitively identify which alternative purpose is pursued in practice. In particular, the degree to which one or another of these purposes is functionally achieved is dependent upon the degree and cost of justification of employee qualification requirements.^^ Moreover, judicial rhetoric regarding pur- pose is an untrustworthy guide to identification. Even where the rhetoric is confined to an enforcement purpose, the costs a court imposes on employers may generate incentives that cause pursuit of equal distri- bution as an objective. A. The Disparate Impact and Systematic Disparate Treatment Theories of Title VII Discrimination Under the Supreme Court's interpretation of Title VII, use of race and gender neutral employment criteria is unlawful if the criteria have a disparate effect on minorities or women and if they are not justified by "business necessity. "^^ For example, use of an educational require- "5ee infra text accompanying notes 166-85. '^See P. Cox, supra note 12, at 7-1 to 7-3. "A/, at 7-36 to 7-48. ^«Griggs V. Duke Power Co., 401 U.S. 424 (1971). See Connecticut v. Teal, 457 U.S. 440 (1982); New York Transit Auth. v. Beazer, 440 U.S. 568 (1979); Dothard v. Rawlinson, 433 U.S. 321 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). 1988] AFFIRMATIVE ACTION 19>1 ment, such as a high school diploma requirement, as a prerequisite for a job is unlawful where a substantially greater proportion of the black population than the white population would be excluded from employment by the requirement and where the employer cannot af- firmatively establish a "manifest relationship" between possession of the educational credential and acceptable job performance.^^ There are three possible explanations of the disparate impact theory. The theory might be viewed, particularly if the employer may avoid liability by establishing a facially reasonable relationship between a challenged criterion and job performance, as a proof construct for approximating a disparate treatment theory. ^° Illicit employer motivation is difficult to establish in the litigation process, and it is possible that an employer has used a facially race neutral criterion as a pretext for intentional discrimination, particularly if the disparate effect of use of the criterion was foreseeable. The combination of disparate effect and absence of reasonable relationship raises an inference of illicit motive.^' A second explanation of the disparate impact theory is that the poHcy objective is to eliminate employer use of neutral criteria with disparate effect and, therefore, to implicitly require proportional dis- tribution of employment among race and gender groups. This expla- nation is particularly persuasive where (1) disparate effect is measured by a comparison of minority or female representation rates within populations or subpopulations and work forces or subsets of work forces;^^ (2) all neutral criteria are subject to the theory, including subjective employer assessments and the entire employee selection proc- ess viewed as a single criterion (without regard to its subparts)" and (3) it is difficult, expensive or impossible to, in fact, establish business necessity.^"* Although neither the Supreme Court nor the lower federal courts have been consistent in interpreting impact theory, each of these three elements of a proportional distribution explanation of the theory ^'^See Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. 1607 (1978). "^See P. Cox, supra note 12, at 7-56 to 7-64. ^'See Washington v. Davis, 426 U.S. 229, 253-54 (1976) (Stevens, J., concurring). "5ee, e.g., Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). But see, e.g., Connecticut V. Teal, 457 U.S. 440, 454-55 (1982). "See, e.g., Watson v. Fort Worth Bank, 108 S. Ct. 2777 (1988). In Watson, the Court held that subjective criteria are subject to the impact theory. No conclusion was reached regarding the question of systems, but four Justices expressed the view that impact theory would not apply to systems. "^See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 430-35 (1975); Robinson V. Lorillard Corp., 444 F.2d 791, 799 (4th Cir.), cert, dismissed, 404 U.S. 1006 (1971). But see, e.g. New York Transit Auth. v. Beazer, 440 U.S. 568, 587 n.31 (1979); Wright V. Olin Corp. 697 F.2d 1172, 1189-92 (4th Cir. 1982). See generally Brodin, Costs, Profits and Equal Employment Opportunity, 62 Notre Dame L. Rev. 318 (1987). 788 INDIANA LAW REVIEW [Vol. 21:767 finds support in the case law.^^ If the proportional distribution expla- nation is correct, the disparate impact theory is the instrument through which a group rights model is implemented. The final explanation of the disparate impact theory is that it is a remedial means of achieving social and economic conditions necessary to the implicit suppositions of the individualist model. Recall that the individualist model rests on the proposition that an individual's talents and capacities, rather than the individual's race or gender, should determine allocation of employment opportunities. However, the model fails to take into account the historical legacy of racism and sexism: minorities and women must compete as individuals with talents and capacities adversely affected by race- and gender-based distributions of social resources. ^^ Arguably, then, a "fair game" of current competition for employment opportunities requires that elimination of employment criteria which "give effect to" past discrimination.^^ Although the Supreme Court has invoked past discrimination as an explanation of disparate impact theory,^^ it has failed to pursue that explanation by undertaking the analysis necessary to it.^^ Specifically, it has failed to identify the characteristics or types of neutral employment criteria likely to give effect to past discrimination. It has likewise failed to respond to the tendency of lower federal courts to ignore the question of characteristics and types. ^^ Both the first and third of these explanations of disparate impact theory may be characterized as compromises. They compromise indi- vidualist and group rights models. However, they are compromises of distinct characters. The first, approximation of disparate treatment explanation, is compatible with the individualist model in the sense that it is an attempt to implement the individualist model within the limitations of the litigation process. The third, remedial explanation, is compatible with the individualist model only in the sense that it aspires to the premises of the individualist model. The means by which its aspirations are translated into action, however, is a rehance upon a group right to freedom from barriers to fair game competition. The *^&e P. Cox, supra note 12, ch. 7. ^See, e.g., L. Thurow, The Zero Sum Society: Distribution and the Possibilities FOR Economic Change 184-87 (1980); Friedman, supra note 6, at 63-64; Fallon & Weiler, supra note 6, at 32-53; Wasserstrom, supra note 6, at 584-603. '''See P. Cox, supra note 12, at 7-50 to 7-56. ^»Griggs V. Duke Power Co., 401 U.S. 424, 430 (1971). ^'^See P. Cox, supra note 12, ch. 7. The Court has alluded to the question on occasion, but has never provided sufficient analysis for guidance. See Furnco Constr. Co. V. Waters, 438 U.S. 567, 575 n.7 (1978); Nashville Gas Co. v. Satty, 434 U.S. 136, 144- 45 (1977). But see Watson v. Fort Worth Bank, 108 S. Ct. 2777 (1988). '°See P. Cox, supra note 12, at 7-50 to 7-56; Watson, 108 S. Ct. 2777. 1988] AFFIRMATIVE ACTION 789 dependence of the third explanation upon notions of group rights is exacerbated to the extent that no jurisprudence of barriers has devel- oped. In the absence of such a jurisprudence, the third explanation gravitates to the second—a group right to proportional distribution of employment. Moreover, both the first and third explanations may gravitate to the second as a functional matter. Particularly where business necessity is made difficult to establish, the employer incentive structure generated by the impact model closely resembles a proportional distribution re- quirement.^' As costs of validation of employment criteria with disparate effect rise, employers can be expected to abandon such criteria. The tendency will be to replace such criteria with systems designed to ensure proportionate representation of minorities and women both because quotas are an alternative to abandoned neutral criteria and because of a development within the disparate treatment theory. ^^ Specifically, disparities between a minority group's representation rate in a labor pool and that group's representation rate in an employer's work force are prima facie evidence that the employer has engaged in systematic disparate treatment. ^^ The primary means by which the inference of illicit motive may be rebutted is proof that there is no such disparity between the labor pool defined by employer selection criteria (the qualified labor pool) and the work force. ^^ However, this "rebuttal" of systematic disparate treatment establishes a prima facie case of liabiHty under the disparate impact theory. ^^ In combination, then, the two theories of liability, if accompanied by a stringent business necessity defense, functionally compel race and gender preferences. Indeed, it is plausible to view systematic disparate treatment theory and disparate impact theory as complementary means of enforcing a single legal command: employers must ensure that they achieve and maintain race and gender balance in their work forces in the sense that their work forces must reflect the race and gender composition ''^See, e.g., P. Cox, supra note 12, at 7-36 to 7-48. '^See, e.g., Connecticut v. Teal, 457 U.S. 440, 463-64 (1982) (Powell, J., dissenting); Albemarle Paper Co. v. Moody, 422 U.S. 405, 451 (1975) (Burger, C. J., dissenting). ^^Hazelwood School Dist. v. United States, 433 U.S. 299, 309 (1977); International Bhd. of Teamsters v. United States, 431 U.S. 324, 337-40 (1977). ''See, e.g., Hazelwood School Dist. v. United States, 433 U.S. 299 (1977). See generally P. Cox, supra note 12, at 6-22 to 6-29. ''See, e.g.. Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985); Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), cert, denied, 471 U.S. 115 (1985); Rowe v. Cleveland Pneumatic Co., 690 F.2d 88 (6th Cir. 1982); Williams v. Colorado Springs School Dist., 641 F.2d 835 (10th Cir. 1981). But see Pouncy v. Prudential Ins. Co., 668 F.2d 795 (5th Cir. 1982). 790 INDIANA LAW REVIEW [Vol. 21:767 of qualified labor pools. The impact theory, on this characterization, is merely a device for identifying qualified labor pools. ^^ It is true that this result is merely functional; the rhetoric found in judicial opinions does not suggest that the functional result is purposive. Nor could judicial rhetoric imply such a purpose, given that Title VII expressly declares that race and gender balance is not required by the statute. ^^ Nevertheless, it would require extraordinary judicial blindness to fail to recognize that race and gender balance is functionally mandated by the Supreme Court's interpretations of the statute. Con- curring and dissenting opinions by a variety of justices have, therefore, recognized this functional mandate. ^^ B. Affirmative Action 1. "Voluntary" Affirmative Action: The Supreme Court Opin- ions.—"Affirmative action," understood here as the use of race and gender preferences to allocate employment opportunities in favor of minorities and women, typically arises as an issue in two contexts under Title VII: (1) whether, and under what circumstances, a court may order such preferences as a remedy for discrimination,^^ and (2) whether employers are liable for disparate treatment of white males where they "voluntarily" utilize such preferences. The latter context is of primary importance here. It is immediately apparent that the potential for liability to white males is a direct threat to the functional mandate discussed in the last subsection. If employers are required as a functional matter to ensure race and gender balance, they must necessarily be permitted to engage in disparate treatment on the basis of race or gender. ^° It is also '*Gold, Griggs' Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of Employment Discrimination and a Recommendation for Reform, 1 Indus. Rel. L. J. 429, 433 (1985). "Civil Rights Act of 1964, (Title VII) § 7030), 78 Stat. 241 (codified as amended 42 U.S.C. § 2000e-2(j) (1982)). '^See, e.g., Connecticut v. Teal, 457 U.S. 440, 463 (1982) (Powell, J., dissenting); United Steelworkers v. Weber, 443 U.S. 193, 209-10 (1979) (Blackmun, J., concurring); Albemarle Paper Co. v. Moody, 422 U.S. 405, 449 (1975) (Blackmun, J., concurring). ""See Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986); Firefighters Local No. 1784 v. Stotts, 467 U.S. 561 (1984). The question has also arisen with respect to the issue of the permissible scope of consent decrees, but is governed in that context by its resolution in the context of voluntary affirmative action. See Local No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501 (1986). A variation on the theme has also arisen in the context of federal pre-emption. See California Fed. Sav. & Loan Ass'n v. Guerra, 107 S. Ct. 683, 695-97 (1987) (Stevens, J., concurring). «°5£e Weber v. Kaiser Aluminum & Chem. Corp., 563 F.2d 216, 232-34 (1977) (Wisdom, J., dissenting), rev'd sub nom. United Steelworkers v. Weber, 443 U.S. 193 (1979). 1988] AFFIRMATIVE ACTION 791 immediately apparent that such disparate treatment is a direct assault upon the individualist model. The extent to which affirmative action threatens the individualist model is, however, a function of the extent to which theories of Title VII liability, particularly disparate impact theory, encourage or compel disparate treatment. Affirmative action is in this sense the mirror image of theories of liability, reflecting the ambiguities of the functional mandates of these theories. Indeed, a central thesis here is that "voluntary" affirmative action cannot be accurately understood in isolation; it is a mere complementary aspect of, indeed the logical implication of, disparate impact and systematic disparate treatment theories of liability. Affirmative action, properly understood, encompasses the entire process by which employers are made to ensure race and gender balance in their work forces. The Supreme Court initially addressed the issue of "voluntary" affirmative action in United Steelworkers v. Weber. ^^ The Court con- cluded that an express quota adopted by an employer and union in collective bargaining requiring that fifty percent of the positions in a craft-worker training program be allocated to black employees did not violate Title VII where a series of conditions were satisfied. These conditions were: (1) the quota was a "remedial" measure designed to overcome the effects of past racial discrimination by craft unions; (2) the quota was "temporary" in that it was designed to overcome racial imbalance rather than to maintain racial balance; and (3) the quota did not "unnecessarily trammel the interests of white employees" in that such employees were neither discharged nor wholly barred from participation in training. ^^ The Court's rationale for this result was in two parts. First, although Title VII expressly prohibits disparate treatment, the statute's purpose was to open employment opportunities for blacks in occupations tra- ditionally closed to them, and the plan effected this purpose. ^^ Second, Title VII's anti-quota provision merely states that racial balance is not required; it does not state that "voluntary" quotas are prohibited. ^"^ The first of these rationales invokes judicially identified statutory pur- pose and elevates it over statutory language as the touchstone for decision. Moreover, it represents a choice of a relatively abstract con- gressional purpose, increasing employment opportunities for racial mi- norities, over a relatively concrete congressional purpose, prohibiting exclusion of racial minorities from such opportunities.^^ The second ^'443 U.S. 193 (1979). '^Id. at 207 n.7. "M at 203. ^'Id. at 203-04. ^^See Cox, Voluntary Quotas, supra note 6, at 176. 792 INDIANA LAW REVIEW [Vol. 21:767 rationale invokes a peculiar understanding of the term "voluntary." The quota in Weber was "voluntary" in the sense that no governmental authority had formally ordered it. It was "involuntary" in the sense that the employer had adopted it as a means of avoiding liability under the functional mandate of disparate impact theory and because a government agency had informally insisted upon it.^^ Following Weber, the Court directly addressed "voluntary" affir- mative action in two cases. Wygant v. Jackson Board of Education,^^ entailed the constitutionality of a school board decision to provide preferential protection against layoffs to minority employees in dero- gation of normal seniority rules. Johnson v. Transportation Agency, ^^ entailed the question of the validity of a gender preference favoring women in hiring under Title VII where the asserted justification for the preference was a disparity between labor pool and work force representation rates. In Wygant, four Justices concluded that historical societal discrim- ination was not an adequate constitutional justification for a remedial preference: a governmental employer may "remedy" its past acts of discrimination by means of racial preferences, but may not seek to remedy society's discrimination by such means. ^^ However, a govern- mental employer need not make a "finding" of its past discrimination at the time of adoption of a preference, so long as it can produce convincing evidence of such discrimination and of a purpose to remedy it at the time it is challenged. ^° An argument that retaining minority teachers was necessary to provide role models for minority students was rejected by at least three of these Justices. "^^ Moreover, these four Justices and a fifth concluded that protection against layoff was not a means sufficiently "narrowly tailored" to a proper remedial purpose to be constitutional because it "unnecessarily trammeled" the seniority expectations of white employees. ^^ In contrast to hiring quotas, the impact of a layoff preference is upon identifiable white employees. ^^ The dissenting opinions of four Justices would have upheld the plan as a means of preserving affirmative action in hiring for purposes of «*/c?. at 98-147. ^^476 U.S. 267 (1986). ««107 S. Ct. 1442 (1987). '"Wygant, 476 U.S. at 274-89 (Burger, C.J., Powell, Rehnquist & O'Conner, J. J.). ^Id. at 277, 289-91. ^'M at 275-76. Justice O'Connor's position on this question is unclear as she both rejected the role model theory and noted that diversity may in some contexts be a legitimate objective of affirmative action. See id. at 288 n.*. 'Ud. at 280, 293 (Burger, C.J., Powell, Rehnquist, White, & O'Connor, J. J.). ''Id. at 283. 1988] AFFIRMATIVE ACTION 793 overcoming societal discrimination and ensuring educational diversity.^"* Interestingly, three dissenting Justices would have rejected the argument that the quota "unnecessarily trammeled the interests of white em- ployees" because it allocated the burden of furthering these objectives "proportionately between two racial groups"^^ and because white em- ployees had been adequately represented in collective bargaining over the quota.^^ In Johnson, the Court modified, if it did not abandon, the remedial rationale it had employed in Wygant and Weber. The plan in question provided that "in making promotions within a traditionally segregated job classification in which women have been significantly underrepre- sented" the employer would consider the sex of qualified appHcants as "a factor" in the promotion decision.^^ The plan was adopted because, although 22.4 percent of the employer's employees were women (compared to a 36.4 percent female representation rate in the relevant labor market), ^^ the women employees were concentrated in job cat- egories "traditionally held by women. "^^ No women occupied positions within the skilled craft-worker category at issue before implementation of the plan.'^^ The plaintiff, a male, challenged a promotion decision by which a woman had been promoted within the skilled craft-worker category in preference to the plaintiff. Although the promoted employee and the plaintiff had both satisfied minimum qualifications, the trial court found as a fact that the plaintiff was better qualified and that sex had been the "determining factor" in the promotion decision. •^^ The Supreme Court reaffirmed Weber over the dissents of three Justices who would have overruled the "voluntary" affirmative action exception to the disparate treatment prohibition. '°^ However, the plan at issue in Johnson had features distinct from those of the plan at issue in Weber that rendered the former both less and more problematic than the latter. The Weber plan included a strict racial quota for a training program for employees not qualified for craft-worker posi- tions. '°^ The Johnson plan involved the use of gender as a "positive factor" in promotion of employees possessing minimum qualifica- '^^Id. at 305-06 (Marshall, Brennan & Blackmun, J. J., dissenting); see also id. at 314-15 (Stevens, J., dissenting). '^''Id. at 308 (Marshall, Brennan & Blackmun, J.J., dissenting). ^^Id. at 310-11. ^'Johnson v. Transportation Agency, 107 S. Ct. 1442, 1447 (1987). ''Id. ^Id. '"^Id. '°'Id. at 1449. '°^Id. at 1465-76 (Scalia, Rehnquist & White, J.J., dissenting). '"'United Steelworkers v. Weber, 443 U.S. 193, 199 (1979). 794 INDIANA LAW REVIEW [Vol. 21:767 tions-'^"* Although race and sex were "but for" causes of the employment decisions at issue in both cases, the preference in Johnson was therefore perhaps less blatant than that in Weber. However, the plan in Weber was justified as a means of remedying "traditional job segregation" in craft-worker positions generated by systematic racial discrimination on the part of craft unions. ^^^ Although the Court decHned to rely on the employer's potential exposure to impact theory Hability in Weber, ^^^ it is apparent that the employer's use of an experience requirement in that case "gave effect" to that craft union discrimination by excluding persons who were the victims of that discrimination. '°^ The quota in Weber thus arguably remedied both third party disparate treatment discrimination and employer disparate impact discrimination. In John- son, no effort was made to trace the gender imbalances "remedied" by the plan in issue to past discrimination on the part either of the employer or of third parties. If the imbalances had been attributable to disparate treatment discrimination on the employer's part, that discrimination was remediable by means of Title VII's prohibition of such discrimination. Absent evidence of disparate treatment, a plausible explanation of the imbalances was self-selection on the part of women: as women have internalized societal role definitions, they have not, in large numbers, sought work "traditionally performed by men."'^^ Despite the Court's insistence that the plan in issue in Johnson was a "remedy," it is apparent that the condition remedied was mere gender imbalance in the work force. Although the plurality opinion in Wygant required governmental employers to justify preferences in terms of their past discrimination as a constitutional matter, the majority opinion in Johnson concluded that representation rate disparities are sufficient as a justification for Title VII purposes^^^ and defined the appropriate comparison for this purpose as that between the labor pool qualified under an employer's minimum qualification criteria and the subset of the work force in issue. ^^° According to the majority, an employee selection process that failed to require reference to minimum qualifications and mandated selection merely by reference to minority ''^Johnson, 107 S. Ct. at 1447. '"^^ Weber, 443 U.S. at 198-99. '<^M at 209 n.9. '°V-2A. We are concerned, however, with effects only if we postulate some criterion of proper valuation and seek to measure effects against this criterion. We can instead be concerned with ilUcit motive, so that the problem of selective indifference is not undervaluation but, rather, the selectivity of valuation. In the latter case, we are concerned with effects as evidence of selectivity, not with effects as such. The difficulty is in assessing the strength of the inference of selectivity from disparate effects, but this does not estabUsh, except by reference to a bureaucratic ethic, the primacy of effects. '''See supra text accompanying notes 231-36. 846 INDIANA LAW REVIEW [Vol. 21:767 While it is certainly the case that a decisionmaker may adopt a neutral classification for the purpose of generating adverse effects on a given race or gender group (either in the sense that he desires to bring about harm or is selectively indifferent to the harm generated) and that decisionmakers are generally concerned with bringing about their desired effects from the language they employ, it is not true that our concern with prejudice is a concern with effects. If we are concerned about prejudice, our concern with effects is derivative; it is a concern with evidence of prejudice. This is of course not to say that the distinction between a concern with prejudice and a concern with effects is not difficult to maintain where the evidentiary weight assigned effects is substantial, but this difficulty does not establish the absence of a conceptual distinction or the proposition that the conceptual distinctions will not influence judicial decision. ^'"^ Still less does it reconcile affirm- ative action and individualist ideals. Indeed, if individualist ideals are taken as primary, it suggests instead that the evidentiary weight assigned effects is problematic. 2. Process Rules and Substantive Allocation Rules.— a. The Argument.—At an earlier point in this article it was claimed that the disparate treatment theory is a rule of process and group rights theories are rules of substantive allocation. ^'^ A disparate treatment theory is a rule of process in the sense that it precludes consideration of race or gender status in a private exchange, but does not purport otherwise to compel allocation of an employment opportunity through that exchange. There is of course a sense in which this characterization is clearly false: the disparate treatment theory is neither value free nor a mere means or structure for facilitating private exchange. Indeed, the theory precludes some forms of private exchange on the basis of a collectively determined morality; race and gender are rendered in- aHenable by it.^'^ ^"•Indeed, the conceptual distinction between motive and effect clearly does make a difference. See Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256 (1979). ^^^See supra text accompanying notes 50-54. ^^^See supra text accompanying notes 33-35. This may be true of all purportedly value neutral process rules. See, e.g., Kennedy, Form and Substance, supra note 50. For example, paradigmatic process rules, contract doctrines, are expressions of substantive societal values. See generally I. Macneil, The New Social Contract: An Inquiry into Modern Con- tractual Relations (1980). The presence of the sovereign both as an enforcer and intervenor in the process of private exchange alters allocation. Moreover, the process rules of contract may be so subject to distinct conceptualizations, founded on distinct systems of values, that their meaning becomes largely a function of the conceptual system of the person manipulating them. See Macneil, Values in Contract: Internal and External, 78 Nw. U. L. Rev. 340 (1983). 1988] AFFIRMATIVE ACTION 847 There is a further sense in which the distinction may be challenged. It is possible to claim that the process by which an employer makes an allocation of employment is inseparable from the allocation itself. If process and allocation are inseparable, an affirmative action con- straint on allocation may be so like a disparate treatment constraint on process that the individualist model need not be reconciled with the group rights model—they are themselves inseparable. The premise of this argument is that race and gender have a unique and peculiar status under the disparate treatment theory similar to their unique and pecuHar status under group rights theories. Prohibiting only consideration of race or gender, and not consideration of other and different aspects of persons, focuses attention on race and gender. ^^^ Disparate treatment theory renders race and gender visible even while purporting to enforce a race and gender bhndness ideal. Consider the decisionmaking process of an employer choosing among applicants for a scarce employment opportunity. It is unlikely that the employer would take eye color into account in selecting between applicants of relatively equal qualifications because there is no social practice or legal com- pulsion that would make such a basis for decision plausible. '^^ There is, however, a legal compulsion that the employer not take race or gender into account where the disparate treatment theory is operative. That prohibition emphasizes race and gender status even for an un- prejudiced employer, an employer who would not otherwise view race or gender as plausible bases for decision. The employer, aware of this emphasis, must necessarily ask himself, if he is acting in compliance with the prohibition, whether his inclinations in the matter of employee selection are tainted by race or gender. This tendency of the disparate treatment theory to force self- examination is exacerbated by governmental overenforcement of the theory. The employer is necessarily aware of the fact that the allocation he makes is evidence. If we add to this mix the fact of our collective historical experience with race and gender, an experience shared by the employer, it seems clear that race and gender will be considered in the process of decision precisely because it is not supposed to be considered. This is not merely a temptation; it is inherent in the decisionmaking process of the employer acting in good faith where we attribute either a reasonable degree of introspection or a rational cal- culation regarding the risk of liability to that employer. In short, the distinction between process of decision and allocation of employment breaks down, at least at the margin, where differences ^^''See Strauss, supra note 6, at 100-13; Wasserstrom, supra note 6, at 586-87. ''^Wasserstrom, supra note 6, at 586-87. 848 INDIANA LAW REVIEW [Vol. 21:767 between visible employee qualifications are minimal or unimportant. Affirmative action "goals" in allocation of employment are inherently a part of the process of decision even where informally and uncon- sciously formulated. ^'^ b. A Counterargument.—NQVQYthelQss, there is a question about just how far this explanation of an employer's decisionmaking process may be pushed. It is a plausible explanation of that process where allocation decisions at the margin are assumed; it is not plausible if unequal qualifications are assumed. Race and gender, absent a gov- ernmentally enforced group rights theory, need not be considered by an employer where a candidate's seniority, education or work experience are superior. ^^^ Johnson v. Transportation Agency, ^^^ can be viewed as consistent with this distinction. Its emphasis on employee qualifications suggests that the Court recognized the inevitability of affirmative action at the margin but was unprepared to authorize it where qualifications are unequal. ^^^ If some set of minimum qualifications could be identified and predictably utilized without threat of liability, the form of affir- mative action validated in Johnson would resemble the form implicated by introspection and rational calculation. The obvious difficulty with this interpretation is that Johnson cannot be properly viewed in isolation. As qualification requirements are subjected to theories of liability that compel their assessment in terms of allocation of employment among race and gender groups, it cannot be said that Johnson's authorization is limited to the margin. ^^^ What renders race and gender visible in contexts in which employee qualifications are unequal is a governmental policy of forced devaluation of quaUfications. Moreover, an "at the margin" interpretation of Johnson, when Johnson is read in conjunction with other of the Supreme Court's affirmative action precedent, is problematic because the interpretation best characterizes only the position of some of the Justices, most particularly that of Justice O'Connor. ^^^^ 3'^C/. Johnson v. Transportation Agency, 107 S. Ct. 1442, 1463 (1987) (O'Connor, J., concurring) (use of gender as a factor is prospective means of ensuring non-discriminatory selection). But cf. Regents of the Univ. of Cahfornia v. Bakke, 438 U.S. 265, 378-79 (1978) (Brennan, J., dissenting) (arguing that formal quota and use of race as an additional factor in decisionmaking are constitutionally indistinguishable). ''"Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 449 (1975) (Blackmun, J., concurring) (objective employment criteria are a means of precluding disparate treatment). 32>107 S. Ct. 1442 (1987). ^^^See supra text accompanying notes 134-48. ^"See supra text accompanying notes 149-53. ^^See, e.g., Johnson, 107 S. Ct. at 1462-63 (O'Connor, J., concurring); Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 489-99 (1986) (O'Connor, J., concurring and dissenting); Wygant v. Jackson Bd. of Educ, 476 U.S. 267, 289-93 (1986) (O'Connor, J., concurring in part). 1988] AFFIRMATIVE ACTION 849 According to these Justices, affirmative action is not justified as a means of remedying ''societal discrimination" and is not justified merely as a means of ensuring proportional representation of minorities or women.^^^ It is justified, instead, by overenforcement theory and bureaucratic dynamic. In particular, it is justified by past discrimination on the part of the employer adopting or subjected to an affirmative action plan^^^ and as a flexible goal designed as a monitoring mechanism to ensure that such discrimination is not repeated. ^^^ Other Justices are quite straight-forward in accepting a quite distinct rationale. Affirmative action, for them, is justified by societal discrimination or by the objective of proportional allocation so long as the particular plan in issue permits a proportional share for whites and males as well.^^^ The fact that these rationales are distinct and yield different votes in marginal cases^^*^ is evidence that there is a viable conceptual distinction between a process of employment decision theory of antidiscrimination policy and a substantive allocation theory of antidiscrimination policy. ^^^ The fact that the rationales are often combined to produce working ma- jorities favoring affirmative action is evidence that the former very often flows into the latter—that sharp conceptual distinctions between the two break down in practice."' There is a further and more fundamental difficulty with any claim that the Court's doctrines constitute a mere recognition of the inevitable dynamics of disparate treatment theory and are therefore compatible with the individualist model. It is the difficulty of the Kuhnian paradigm shift."^ The premise of a paradigm shift is that rhetoric matters: the structure of thought and value through which we perceive the ''reality" of our world defines the content of that reality because there are no "facts," untainted by the structure of perception, capable of ascer- tainment. The rhetoric of a process conception of the antidiscrimination principle may be viewed as such a structure of thought and value, a '-'See Wygant, 476 U.S. at 274-76 (Burger, C.J., Powell and Rehnquist, J. J.); id. at 288 (O'Connor, J., concurring in part); Johnson, 107 S. Ct. at 1462-63 (O'Connor, J., concurring in judgment). '^'See Wygant, 476 U.S. at 274 (Burger, C.J., Powell & Rehnquist, J. J.); id. at 289 (O'Connor, J. concurring in part). '''See id. at 290 (O'Connor, J., concurring in part); Local 28, 478 U.S. at 495-96 (O'Connor, J., concurring and dissenting). "»See Wygant, 476 U.S. at 309-10 (Brennan, Marshall & Blackmun, J. J., dissenting); id. at 316-17 (Stevens, J., dissenting); Johnson, 107 S. Ct. at 1456-57 (Brennan, Marshall, Blackmun, Powell & Stevens, J. J.); id. at 1458-60 (Stevens, J., concurring). '''See, e.g.. Local 28, 478 U.S. at 421; Wygant, 476 U.S. at 427. "°See supra text accompanying notes 307-14. "^See supra text accompanying notes 292-312. '"See generally T. Kuhn, supra note 29. 850 INDIANA LAW REVIEW [Vol. 21:767 Kuhnian paradigm. So, too, may the rhetoric of a substantive distri- bution (equal effects or results) conception of that principle. The judicial rhetoric of compromise reconciles these conceptions, as by emphasizing employee qualifications as a constraint upon affirmative action. Judicial rhetoric nevertheless both generates, functionally, a group right to proportional distribution and expressly recognizes and condones race and gender preferences. Both the datum of the functional group right and the express condonation fundamentally undermine the process par- adigm; it no longer works as a plausible structure for modeUng and, therefore, for perceiving legal "reality." An example may clarify this point. Recall that disparities in the substantive distribution of employment among race and gender groups is evidence of disparate treatment under an overenforcement version of disparate treatment theory, the "systematic" discrimination theory."^ As a conceptual matter, the characterization of a disparity between the black representation rate in a labor pool and the black representation rate in a workforce as mere evidence is compatible with the process paradigm because the employer is free to explain the disparity as attributable to a factor, such as employee qualifications, not accounted for in calculating the disparity.""^ This compatibility hypothesis is, however, undermined if it is recognized both that the employer's ex- planation is subject to judicial assessment under criteria of relevance and necessity and that the employer may escape this assessment through a conscious effort to eliminate the disparity."^ The process paradigm no longer quite fits as a description of the phenomenon of systematic discrimination litigation. The rationale for the theory of liability fits the process paradigm because an overenforcement strategy is instru- mentally compatible with that paradigm, but the functional implications of the theory fit a substantive distribution paradigm."^ Nevertheless, the paradigm from which decisionmakers perceive such litigation strongly influences, perhaps compels, its functional impli- cations. If the decisionmaker has internalized the rhetoric of the process paradigm, emphasis will be placed on the notion that a disparity is "mere evidence," and assessment of an employer's explanation of the disparity will be in terms of the credibility of that explanation. ^^^ If "^See supra text accompanying notes 73-76. "'See International Bhd. of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977). "^See supra text accompanying notes 71-78. "^This is the reason that justices with quite distinct rationales for affirmative action very often combine to form Supreme Court majorities upholding it. See Johnson v. Transportation Agency, 107 S. Ct. 1442 (1987). '''See Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir. 1981), cert, denied. 1988] AFFIRMATIVE ACTION 851 the decisionmaker has instead internalized the rhetoric of the distribution paradigm, the notion of discrimination and disparity will be equated and an employer's explanation of the disparity will be in terms of whether it is truly "necessary.""^ In short, the paradigm influences both the results reached and the long-term function of the theory of liability. What the Supreme Court's affirmative action decisions add to this mix is express recognition that race and gender based distribution is permissible. Even if this permission is explicable as an acknowledgment of the tendencies of overenforcement or of the inevitability of con- sideration of race and gender, it implicates the distribution paradigm. The effect is that the normative perspectives of the judges who ad- minister the law of employment discrimination and of the participants in the employment process whose incentives are molded by that law are influenced in the direction of the distribution paradigm. If it is correct that the Court's conclusion produces a partial paradigm shift, the new paradigm, a distribution paradigm, matters. It generates the shifts in emphasis and character of analysis that change results in cases and in long-term function. In particular, it moves a bureaucratic over- enforcement rationale for Title VII doctrine in the direction of policy of redistribution of employment among groups. The pragmatic bu- reaucratic justice justification of affirmative action tends to collapse into the social welfare justification of affirmative action."^ D. Summary This section has postulated three versions of group rights theory: communitarian theory, distributive equality theory and compromise theory. It has claimed that Supreme Court rhetoric best fits compromise theory. As compromise theory purports to reconcile individuaUst ideals with a poHcy of group based allocation of employment, the section explored two lines of justification for group based allocation with a view to questioning this reconciHation. The justifications examined were. 455 U.S. 1021 (1982); Gillespie v. Wisconsin, 771 F.2d 1035 (7th Cir. 1985), cert, denied, AlA U.S. 1083 (1986). "«5ee Gilbert v. City of Little Rock, 799 F.2d 1210 (8th Cir. 1986); Firefighters Inst, for Racial Equality v. City of St. Louis, 616 F.2d 350 (8th Cir. 1980), cert, denied, 452 U.S. 938 (1981). "'C/. Mashaw, supra note 176 (treating rights in the administrative state as "statist" in the sense that they are dependent upon governmental definition of public welfare and the dynamics of the administrative apparatus); Rabin, Legitimacy, Discretion, and the Concept of Rights, 92 Yale L. J. 1174 (1983) (traditional notion of individual rights has in effect been abandoned in favor of an administrative process for reconcihng collective interests). 852 INDIANA LAW REVIEW [Vol. 21:767 first, that social welfare requires affirmative action and no individual right is defeated by that requirement and, second, that affirmative action is implicit in enforcement of the individualist conception of the antidiscrimination principle. Seven conclusions have been reached: (1) the social welfare jus- tification can be reconciled with the individualist ideal only by rendering the ideal meaningless. (2) Nevertheless, the individualist ideal, although real as a matter of rhetorical commitment, may plausibly be described as empty as a matter of actual practice. Adherence to the individualist ideal in the context of race and gender requires justification. (3) Such a justification may be found in Title VII if Title VII can be said to authoritatively adopt the individualist ideal. (4) Overenforcement of disparate treatment theory and the bureaucratic environment within which enforcement operates tend to compel affirmative action, so a compromise version of group rights may be explained as an inevitable or natural byproduct of enforcing the individualist ideal. Nevertheless, there are important conceptual distinctions between disparate treatment, disparate impact and affirmative action that generate meaningful dif- ferences in the understanding of antidiscrimination law adopted by enforcement authorities. (5) Race and gender consciousness is implicit in the disparate treatment prohibition and this consciousness renders affirmative action implicit in the prohibition at the margin. However, this implication is confined to marginal cases; it is compelled generally only where group rights theory is authoritatively adopted as general principle. (6) If race or gender imbalance, as such, is authoritatively viewed as a justification for remedial measures, the adoption of such a view itself restructures thought and action. A bureaucratic overen- forcement rationale then tends to collapse into a redistribution of employment for purposes of social welfare rationale. (7) As the Supreme Court's most recent pronouncements treat imbalance as a justification for affirmative action, the Court may have adopted a fair distribution of employment, rather than process or bureaucratic overenforcement paradigm for its version of Title VII. IV. The Statute and Its Interpretation The Supreme Court has consistently proclaimed that both the dis- parate impact theory and its treatment of affirmative action are com- pelled or at least compatible, with Title VII. ^"^^ The implication of these proclamations is, then, that a compromise theory of group rights is '"^See, e.g., United Steelworkers v. Weber, 443 U.S. 193 (1979); Griggs v. Duke Power Co., 401 U.S. 424 (1971). 1988] AFFIRMATIVE ACTION 853 supported by the statute. A number of commentators have so argued.^"*' Neither the proclamation nor the impHcation are supportable by reference to traditional theories of statutory interpretation. This, of course, is a bold claim. Paradoxically, it is a claim supportable by reference both to the concessions of some commentators who advocate group rights theories^"*^ and to the concessions of five Justices of the Supreme Court, three of whom nevertheless support the Court's in- terpretation.^"^^ Indeed, it appears generally conceded that neither the language of Title VII nor the understanding of the Congress that enacted it would support an overt governmental policy of compelling a redis- tribution of employment to ensure proportion among race and gender groups. ^'^'^ If the analysis of this article is correct, there is nevertheless a group rights regime in place promulgated on the authority of the statute. Although this version may be explained in terms of bureaucratic overenforcement of disparate treatment theory, the Supreme Court's most recent affirmative action decisions have moved the doctrine in the direction of proportional distribution of employment among race and gender groups. If this state of affairs is to be explained, it must ^'^^See, e.g., Blumrosen, supra note 160. ^'^^See, e.g., Fiss, The Fate of an Idea Whose Time Has Come: Antidiscrimination Law in the Second Decade After Brown v. Board of Education, 41 U. Cm. L. Rev. 742, 765-66 (1974); Fallon & Weiler, supra note 6, at 14-18. ^''^Of the Justices who served on the Court at the time of the Weber decision, the Johnson decision or both, four (Burger, C.J., Rehnquist, White & Scaiia, J.J.) took the position that Title VII prohibits race and gender preferences. Two Justices (Brennan & Marshall, J.J.) consistently argued that Title VII permits such preferences. Two Justices (Powell & O'Connor, J.J.) have voted to uphold affirmative action plans, but the extent to which they adhere to the position that such plans are compatible with the legislation is unclear. One of these two (O'Connor, J.) has at least hinted that she does not believe the plans to be compatible with original congressional intent. Johnson v. Transportation Agency, 107 S. Ct. 1442, 1460-61 (1987). Two Justices (Stevens & Blackman, J.J.) have conceded that voluntary affirmative action is incompatible with the statute as Congress conceived it, but have voted to uphold preferences on the basis either of stare decisis or "equity." Johnson, 107 S. Ct. at 1457-60 (Stevens, J., concurring). Weber, 443 U.S. at 209-16 (Blackmun, J., concurring). By this count, then, five of the nine Justices who sat on the Court when Johnson was decided (Rehnquist, White, Blackmun, Stevens & Scaiia, J.J.) have at least on occasion agreed that voluntary affirmative action is inconsistent with original legislative intent. ^'^This is so because the Court continues to adhere to the fiction that "voluntary" affirmative action is not "required." However, the Justices are not consistent on the question, either collectively or individually. For example, the majority in Connecticut v. Teal, 457 U.S. 440 (1982) rejected a group rights explanation of disparate impact theory. That majority was composed of Justices who have voted to uphold affirmative action plans. The dissenters in Teal came rather close to explaining impact theory as a group rights theory, but some of the dissenters have consistently rejected the legitimacy of voluntary affirmative action. 854 INDIANA LAW REVIEW [Vol. 21:767 be by reference to a theory of interpretation and, therefore, of judicial function that treats neither language nor legislative understanding as controlling. A. The Statute and the Understanding of the Congress that Enacted It The chief prohibitory provision of Title VII that is applicable to employers provides: (a) It shall be an unlawful employment practice for an em- ployer — (1) to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such in- dividual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment 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. ^"^^ On its face, this provision precludes (1) overt use of race or gender as an employment criterion and (2) pretextual use of race and gender neutral criteria to intentionally discriminate. It is plausible to read the second subdivision as concerned with effects, but its reference is to effects on individuals. Moreover, both provisions rest on the phrase ''because of race, color, religion, sex, or national origin," and therefore invoke a causal conception of discrimination in keeping with the dis- parate treatment theory. ^"^^ This facial emphasis on intentional discrim- ^^^2 U.S.C. § 2000e-2(a) (1982). ^*^See P. Cox, supra note 12, at 6-9 to 6-13. The causal understanding is central to the disparate treatment theory because the narrow issue under that theory is whether, e.g., race or some factor independent of race explains the defendant's decision. The causal understanding is to be distinguished from a correlation understanding. Under the correlation understanding, some factor facially independent of e.g., race (such as possession or nonpossession of a high school diploma) explains the employer's decision, but this in- dependent factor is related to race in the sense that there is a disparity among groups with respect to possession of the independent factor. This disparity may be attributable to disparate treatment, but, unless that disparate treatment is traceable to the employer (or the employer utilizes the independent factor pretextually), the employer has not engaged in disparate treatment. A dilemma posed by the causal understanding is whether selective indifference should count as a cause of an employment decision. See, e.g., Schnapper, supra note 276, at 41-44. Arguably, it should, but there are substantial difficulties presented in proof of selective indifference. If the burden were allocated to a plaintiff, the plaintiff would have 1988] AFFIRMATIVE ACTION 855 ination is reinforced by other provisions of the Act. For example, Section 703(h) provides: Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the result is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. ^"^^ On its face, this provision both exempts qualifications criteria independent of race and gender from judicial evaluation and precludes only the pretextual use of race and gender neutral criteria. ^"^^ Indeed, it is a virtual restatement of the individualist position that governmental authority is to extend only to the narrow prohibition of disparate treatment. Finally, Section 703(j) of the Act specifically addresses the possibility that the Act might be interpreted to recognize a group right to pro- portional allocation of employment by banning such an interpretation: Nothing contained in this subchapter shall be interpreted to require any employer . . . subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may to establish that an employer would not have relied upon a race-neutral factor correlated with race if the correlation adversely affects the employer's favored racial group. If the burden of disproving selective indifference is imposed upon the defendant, as by treating disparities generated by a neutral criterion as prima facie evidence of selective indifference, the functional result is likely to be a prohibition of disparities, not a prohibition of selective indifference. For a good statement of the causal understanding of the disparate treatment theory that nevertheless pays inadequate attention to the latter point, see Welch, Removing Discriminatory Barriers: Basing Disparate Treatment Analysis on Motive Rather Than Intent, 60 S. Cal. L. Rev. 733 (1987). ''HI U.S.C. § 2000e-2(h) (1982). ^"^Rutherglenn, supra note 271, at 1302-12 (1987) (treating section 703(h) as adopting a pretext theory of discrimination, but approving of Griggs when construed as recognizing a pretext theory). 856 INDIANA LAW REVIEW [Vol. 21:767 exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer ... in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community. State, section, or other area, or in the available work force in any community. State, section, or other area.^"^^ The 1964 legislative history of the Act further reinforces these facial appearances. That history is replete with the appeals of sponsors and supporters of the legislation to the individualist ideal. ^^° It is replete. ''HI U.S.C. § 2000e-2Ci) (1982). ""For example, the Interpretive Memorandum of Senators Clark and Case on the House Bill states: 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. While the presence or absence of other members of the same minority group in the work force may be a relevant factor in determining whether in a given case a decision to hire or to refuse to hire was based on race, color, etc., it is only one factor, and the question in each case would be whether that individual was discriminated against. There is no requirement in title VII that employers abandon bona fide qualification tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his quahfications as high as he likes, he may test to determine which applicnats have these qualifications, and he may hire, assign, and promote on the basis of test performance. 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 earher. 110 Cong. Rec. 7213 (1964). Senator Humphrey, the principal author of the compromise bill eventually enacted argued: Nothing in the bill or in the amendments requires racial quotas. The bill does not provide that people shall be hired on the basis of being Polish or Scandinavian, or German, or Negro, or members of a particular religious faith. It provides that employers shall seek and recruit employees on the basis of their talents, their merit, and their qualifications for the job. The employer will outline the quahfications to be met for the job. The employer, not the Government will establish the standards. This is an equal employment opportunity provision. no Cong. Rec. 13,088 (1964). 1988] AFFIRMATIVE ACTION 857 as well, with (1) the claims of opponents of the legislation that it would be interpreted to recognize group rights, (2) the denials of sponsors and supporters of these claims and (3) amendments to the legislation, chiefly in the form of Section 703(j), designed to ensure that no such interpretation would be attempted. ^^' This is not to say, of course, that the Congressmen who sponsored or advocated the legislation were radical individualists who generally subscribed to the individualist model. They were not. It is to say, instead, that the rationale for the legislation—the principle of political morality that was employed as the reason for and content of the legislation—was individualist, quite probably because an appeal to that principle was thought to render the legislation passable given the political climate of the times.^" Finally, however, the legislative record also clearly discloses that the Congressional objective was to improve the economic lot of minorities and women, and perhaps primarily, to ensure full economic participation for blacks. ^^^ It was thought, possibly errone- ously, that the disparate treatment prohibition would achieve this end.^^"^ B. The Supreme Court's Interpretation and the 1972 Amendments The first of the Supreme Court's steps down the road to a com- promise theory of group rights came in Griggs v. Duke Power Co.,^^^ where the Court formally rejected the claim that Title VII prohibits only intentional discrimination and adopted the disparate impact theory. As has been previously argued here, Griggs is subject to an interpretation "'5ee the legislative history recounted in Local 28 of the Sheet Metal Workers' Int'l Ass'n V. EEOC, 478 U.S. 421, 452-65 (1986) and United Steelworkers v. Weber, 443 U.S. 193, 231-53 (1979) (Rehnquist, J., dissenting). "^It is apparent, for example, that Senator Humphrey would have preferred that a broader obligation be imposed on employers. See Hearings Before the Senate Subcomm. on Employment and Manpower, 88th Cong., 1st Sess. 144-45 (1964) (statement of Sen. Humphrey on S. 1937, a bill that did not become a part of Title VII). Nevertheless, Humphrey employed individualist argument in support of Title VII and claimed that Title VII enacted individualist principle. See, e.g., 110 Cong. Rec. 11, 848 (1964): The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in em- ployment. In fact, the title would prohibit preferential treatment for any particular group, and any persons, whether or not a member of any minority group, would be permitted to file a complaint of discriminatory employment practices. '''See, e.g., 110 Cong. Rec. 7220 (1964) (remarks of Sen. Clark); 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey). ^^"The 1972 legislative history suggests, at least from the perspective of those who wrote the committee reports, both that Congress held this view in 1964 and that the view was naive. See H.R. Rep. No. 238, 92d Cong., 1st Sess. 8-9 (1971). 3^401 U.S. 424 (1971). 858 INDIANA LAW REVIEW [Vol. 21:767 that renders it compatible with disparate treatment theory. ^^^ Never- theless, it clearly authorizes impact theory and clearly postulates an interpretation of the statute that compels an analytical focus upon harm to groups. Specifically, the Court held that (1) as the congressional objective was to "achieve equality of employment opportunities and to remove barriers that have operated in the past to favor an identifiable group of white employees over other employees, "^^^ use of unjustified neutral criteria with adverse effects on groups is prohibited and (2) Section 703(h)'s testing defense was not a bar to liability for the adverse effect of a test on a protected group because such an effect demonstrates that the test was "used to discriminate. "^^^ Oddly, the Court subse- quently interpreted Section 703(h)'s seniority defense to preclude the application of impact theory to seniority systems, despite the similar language of the two defenses. ^^^ Indeed, the Court relied upon legislative history indicating that seniority principles would not be subject to attack under Title VII absent intentional discrimination in interpreting the seniority defense, ^^° but declined, in Griggs, to treat the similar legislative history of the testing defense as establishing a disparate treatment rationale for the latter defense. ^^^ In 1972, following Griggs, Congress amended Title VII, chiefly by modifying its procedural mechanisms. ^^^ No relevant modification of its substantive provisions was made. Bills that would have ratified Griggs interpretation of the testing defense were introduced, but rejected for reasons apparently independent of the merits of disparate impact theory.^" Both the House and Senate reports on the legislation contain language that may be read as recognizing the Griggs decision and, perhaps, as approving of it. However, the thrust of the discussion in both reports is that (1) "experts" have indicated that discrimination "*5ee supra text accompanying notes 288-91. '''Griggs, 401 U.S. at 429-30. ^'^Id. at 433. The Court relied also on the fact that amendments to the bill that would have exempted use of any professionally developed test were defeated. Id. at 434- 36. However, this defeat, in conjunction with adoption of the testing defense with the promise that tests could be employed if not "designed, intended or used" to discriminate, indicates that Congress was concerned with the problem of pretextual use of tests, a species of disparate treatment, not with the effect of tests on minorities, as such. Id. at 433. See Rutherglenn, supra note 271, at 1305-06. See also infra note 407. "international Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). '"^Id. at 350-52. '^^See Gold, supra note 76, at 533-49. But see supra note 358. The anomaly has led to some embarrassment in attempting to explain the Section 703(h) merit defense. See Guardians Ass'n v. Civil Service Comm'n, 633 F.2d 232, 251-53 (2d Cir. 1980), aff'd on other grounds, 463 U.S. 582 (1983). ^"Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103. ^"H.R. 1746, 92d Cong., 1st Sess. § 8(c)(1971); 117 Cong. Rec. 17,539 (1971). 1988] AFFIRMATIVE ACTION 859 is a systematic rather than individual problem, (2) Griggs indicates that "expertise" is necessary in assessing the phenomenon and (3) EEOC enforcement authority should be expanded (as the 1972 amendments were designed to do) because the EEOC has such ''expertise. "^^"^ Finally, the section by section analysis of the committee reports indicates, without citing or referring to Griggs, that present case law (as of 1972) was intended to govern where the 1972 amendments did not expressly change the 1964 Act.^^^ The Supreme Court has subsequently cited the 1972 legislative history for the proposition that Congress "ratified" Griggs. ^^^ It has also, however, rejected reliance on the 1972 history, where no enacted amendment was in issue, on the ground that "the views of members of a later Congress, concerning different sections of Title VII. . . are entitled to little if any weight. "^^^ Somewhat belatedly, the Court, following Griggs, has attributed the disparate impact theory to Section 703(a)(2). Specifically, it has argued that the provision's reference to classifications that "tend to deprive any individual of employment opportunities" or otherwise affect his status as an employee justifies prohibiting neutral criteria with an adverse effect on groups. ^^^ The Court's justification of the use of representation rate disparities in systematic disparate treatment litigation has been that Section 703(j) precludes liability only for disparities as such, it does not preclude reliance upon the inference of intentional discrimination arising from representation rate disparities. ^^^ With respect to the question of voluntary affirmative action, the Court has conceded that affirmative action violates the literal language of Section 703(a). ^^° The Court has argued, however, that the "spirit" of the statute is not violated because affirmative action tends to achieve the congressional objective of opening employment opportunity to per- ^^H.R. Rep. No. 238, 92d Cong., 1st Sess. 8-9 (1971); S. Rep. No. 415, 92nd Cong., 1st Sess. 5 (1971). The closest Congress came to addressing the merits of Griggs was in a committee report in which the Senate committee discussed the 1972 extension of Title VII to federal employers and indicated that the Civil Service Commission should re- examine its testing procedures to ensure compUance with Griggs. See S. Rep. No. 415, at 14-15. ''n\% Cong. Rec. 7166 (1972). ^^Connecticut v. Teal, 457 U.S. 440, 447 n.8 (1982). ^^^International Bhd. of Teamsters v. United States, 431 U.S. 324, 354 n.39 (1977). Also, compare Local 28 of the Sheet Metal Workers' Int'l Ass'n, 478 U.S. 421, 466-70 (1986) with Firefighters Local 1784 v. Stotts, 467 U.S. 561, 582 n.l5 (1984). 3^«Connecticut v. Teal, 457 U.S. 440, 448 (1982). '''^Teamsters, 431 U.S. at 354 (1977). This is in keeping with the 1964 legislative history. See 110 Cong. Rec. 7213 (1964). ""United Steelworkers v. Weber, 443 U.S. 193, 201 (1979). 860 INDIANA LAW REVIEW [Vol. 21:767 sons traditionally barred from it.^^' Moreover, the Court has argued that the literal language of Section 703(j) precludes only governmentally compelled racial preferences; it does not preclude privately adopted "voluntary" preferences. ^^^ C. Alternative Theories of Statutory Interpretation It is probably the case that there is no authoritative, consistently applied theory of statutory interpretation in American jurisprudence. ^^^ Nevertheless, it is possible to identify a set of traditional theories that, albeit diverse, share the common element that courts are to defer to legislative judgments and to enforce legislative commands. Courts within traditional theories are conceived of, if not as servants of the legislature, at least as highly constrained by legislation. ^^'^ This is not to say that alternative theories within the traditional set share a common conception of what it means to be constrained by the will of the legislature. For example, a literalist strategy of interpretation purports to defer to legislative judgment by adhering to the literal meaning of statutory language. ^^^ Aside from the questions whether there is such a thing as literal meaning^^^ or whether it is '''Id. ''^Id. at 205-08. "^H. Hart & A. Sacks, supra note 11, at 1201. See Cox, Ruminations on Statutory Interpretation in the Burger Court, 19 Val. U. L. Rev. 287, 289-95 (1985). '''See, e.g., H. Hart & A. Sacks, supra note 11, at 1156-57, 1410-17. The force of this idea is best illustrated by the fact that even those who may be accused of placing primary emphasis upon the judicial interpreter of statutes feel nevertheless compelled to add that courts are in some sense bound by statutes. See Dworkin, Principle, supra note 11, at 119-77. For criticism of Professor Dworkin's tendency to simultaneously accept and reject the authority of the text, see Fish, Wrong Again, 62 Tex. L. Rev. 299 (1983). Hart and Sacks may be interpreted as advocating a view consistent with (or, at least, a source of authority for) the nontraditional view that courts are the primary actors both in supplying a characterization of statutory meaning and in attributing a scope of operation to a statute. Compare H. Hart & A. Sacks, supra note 11, at 1410-17 (courts should assume that legislature acted resonably) with Dworkin, Principle, supra note 11, at 326- 31 (courts should interpret a statute to advance a policy that is the best political justification of the statute). See generally Wellman, Dworkin and the Legal Process Tradition, 29 Ariz. L. Rev. 413 (1987). Nevertheless, Hart and Sacks so surrounded their position with conditions, limitations and caveats that they can be viewed as within the position here deemed "traditional." See H. Hart & A. Sacks, supra note 11, at 1415 (attribution of purpose by reference to common law baseline). '''See TVA v. Hill, 437 U.S. 153 (1978). ^^*If hteraUsm is taken to mean that the text has a pristine meaning that "announces itself" to all comers, it is subject to the weak version of the claim that the interpretor supplies meaning. The weak version of this claim appears to be a statement about the mechanism of interpretation, that the means by which a text is understood is shared 1988] AFFIRMATIVE ACTION 861 possible to escape responsibility for supplying the minor premise in the syllogism of statutory application,^^^ literalism arguably fails to take seriously the court's role as an implementor of statutes because it ignores the necessity that "servants" interpret the "commands" of masters to ensure effective implementation.^^^ Similarly, purposive in- terpretation purports to defer to legislative judgment by implementing statutory policy. A difficulty with purposive interpretation, however, is the judicial discretion inherent in formulating statements of statutory purpose.^^^ There is no reason to be sanguine about either the descriptive plausibility of an agency conception of judicial role in the context of statutory interpretation or the probability that actual judicial power will be exercised within any theory of interpretation in a fashion wholly consistent with such a conception. It is in fact not a plausible un- derstanding of the interpretive enterprise that judicial interpreters are mere passive conduits for conducting the legislative will.^^° The inter- practice within a community of speakers and listeners, rather than correspondence between words and things. See generally L. Wittgenstein, Philosophical Investigations (GEM Anscombe ed. 1963). A middle version of the claim, building on the weak version, simultaneously asserts both that texts do not constrain interpreters and that interpreters are nevertheless heavily constrained by the "interpretive communities" within which they are "embedded," in the sense that possible interpretations are those rendered possible by the changing practices of such communities. See, e.g., S. Fish, supra note 29. The strong version of the claim is that texts are descriptively incapable of providing a meaning that binds interpreters and the "constraints" of interpretive community are in fact mere competing precepts of political ideologies. Levinson, Law as Literature, 60 Tex. L. Rev. 373 (1982). See Radin, Statutory Interpretation, 43 Harv. L. Rev. 863 (1930); Radin, A Short Way With Statutes, 56 Harv. L. Rev. 388 (1942); Frank, Words and Music: Some Remarks on Statutory Interpretation, Al Colum. L. Rev. 1259 (1947); Brest, The Fun- damental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L. J. 1063 (1981); Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781 (1983). '''See Moore, The Semantics of Judging, 54 S. Cal. L. Rev. 151 (1981). On this view, there is a form of "literal meaning" in the sense, at least, that conventions preclude words from having any meaning the interpreter wishes them to have, but the interpreter remains responsible for his syllogism. See also J. Searle, Expression and Meaning, Studies in Theory of Speech Acts 1-29, 117-36 (1979). ^'^See R. Posner, The Federal Courts: Crisis and Reform 292 (1985). It is, however, possible to utilize this critique to justify a rather expansive judicial use of statutes, see, e.g., Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213 (R. Pound ed. 1934); Witherspoon, Administrative Discretion to Determine Statutory Meaning: "The Middle Road," 40 Tex. L. Rev. 751 (1962); Witherspoon, Administrative Discretion to Determine Statutory Meaning: "The Low Road, " 38 Tex. L. Rev. 392 (1960); Witherspoon, Administrative Discretion to Determine Statutory Meaning: "The High Road," 35 Tex, L. Rev. 63 (1956). "'^See H. Hart & A. Sacks, supra note 11, at 1413-17. ^*°There are two reasons to doubt the passivity thesis, related to two steps necessary 862 INDIANA LAW REVIEW [Vol. 21:767 pretive enterprise confronts a legal text, but it can by no means be described as a passive activity. And it is not probable that a judiciary whose tradition is one of active, even aggressive law-making will behave passively. Nor, perhaps, is passivity, even if it were a plausible alter- native, a desirable one. The tradition, despite the rhetoric of deference to legislative will, legitimates activist interpretation.^^' The point of this invocation of the standard academic litany re- garding interpretation is not merely to anticipate and deny the charge of naivete. It is also to forthrightly recognize that traditional theory cannot deliver on its promise: legislative "command" cannot in fact be pristinely realized in judicial interpretation and application of sta- tutes, both because the significance of a statute within the factual circumstances in which it is sought to be applied^^^ is necessarily supplied by its interpreter, and because courts as our tradition has understood to statutory interpretation. The first step is that of interpretation, the second of application. See R. DiCKERSON, The Interpretation and Application of Statutes (1975). The difficulty at the first step, that of establishing a meaning for the statute, is commonly thought to be that of the problematic character of language. It is more fundamentally, however, a problem of competing conceptions of what it means to establish such a meaning. For the literalist, the task is a matter of, for example, applying conventions. See Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958). For the intentionalist, it is a matter of ascertaining intention. See E. Hirsch, Jr., The Aims of Interpretation (1976). For those who view the reader as primary, it is a matter of attributing a meaning or purpose. See, e.g., H. Hart and A. Sacks, supra note 11, at 1413-17; Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958); Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). The second step is that of establishing the significance of the statute within the factual context of a case. See E. Hirsch, Jr., supra at 49. The problem is, again, disagreement about how this descriptively can be and normatively should be done. For the positivist, language controls application; for the intentionalist, intention controls ap- plication; for those who believe that the reader is crucial, the minor premise supplied by the reader controls application. See generally Moore, supra note 377. In the present context, these two steps may be illustrated by the interpretive problems presented by Title VII. The first question is what does Title VII prohibit. For example, does it prohibit disparate treatment or disparate effect or both? The second question is application. For example, if Title VII prohibits disparate treatment, should that prohibition be applied to a "vol- untary" affirmative action plan? It should be noted that, although distinction between interpretation and application is traditional, the distinction has been challenged. See generally H. Gadamer, Truth and Method (1984). The challenge, however, is in keeping with what is here deemed a non- traditional perspective. See Habermas, A Review^ of Gadamer's Truth and Method in Understanding and Social Inquiry (F. Dallmayr & T. McCarthy eds. 1977). ^^^See generally Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 Yale L. J. 221 (1973). ^^"See R. DicKERSON, supra note 380 (generally distinguishing interpretation from application); E. Hirsch, supra note 380, at 49 (distinguishing meaning and significance). 1988] AFFIRMATIVE ACTION 863 them are supposed to interpret and apply statutes reasonably, as "rea- sonably" is understood by persons engaged in interpretation and ap- plication understand it.^^^ Nevertheless, the traditional notion that a court is to enforce leg- islative command is not wholly devoid of meaningful content. Com- munication between legislature and court is plausible even if the mechanism of communication is neither the words of the statute as such nor the purpose of the statute as such, but is instead a shared understanding of practice within a "community." There are "on the wall" and "off the wall" interpretations. However, the characterization of an interpretation as "on" or "off" the wall is largely dependent upon a choice between two alternative characterizations of legislative command related to alternative normative understandings of the judicial role. In current academic debate these alternatives are often stated as, on the one hand, treating a statute as the product of legislative compromise among contending interest groups seeking private advantage and, on the other, treating a statute, com- patibly with its rhetorical justification, as a legislative judgment re- garding the public welfare. ^^'^ These current conceptualizations of the choice are related, however, to earlier conceptualizations of the choice as one between literalism and purposive interpretation or between (1) treating statutes as intrusions into the fundamental baseline of the common law to be narrowly confined and (2) treating statutes as sources of law to be used to modify the common law in service of legislative poHcy.^^^ Extreme versions of these alternatives illustrate their relationship to the normative question of judicial role. Under one alternative, courts are simultaneously responsible for preserving the common law (the subject matter of their independent authority to make law) and for nevertheless complying with legislative command. Compliance, however, is confined to the ascertainable limits of that command. For example, use of a statute as a source of policy for common law decision would be illicit because, for example, it would erroneously assume that the ^"H. Hart & A. Sacks, supra note 11, at 1415. See Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L. Rev. 551 (1982). ^^""See, e.g., R. Posner, supra note 378, at 262-72; Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 179, 192-93 (1986). 385por examples of the first position, see Easterbrook, Statutes' Domains, 50 U. Cm. L. Rev. 533 (1983); Kelsen, The Pure Theory of Law, 51 Law Q. Rev. 786 (1935). For examples of the second, see Landis, supra note 366; Landis, A Note on Statutory Interpretation, 43 Harv. L. Rev. 886 (1930). Compare Pound, Spurious Interpretation, CoLUM. L. Rev. 379 (1907) with Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1908). 864 INDIANA LAW REVIEW [Vol. 21:767 legislature had adopted a policy to be used in such a way. In fact, legislatures adopt, under this understanding, statutes constituting po- litical compromises about relatively narrow questions, not policies to be judicially employed beyond the subject matter of these questions. ^^^ Under the second alternative the common law baseline enjoys no presumptive inviolability. The court's role, as a servant of the legis- lature, is to treat statutes as, at least potentially, statements of policy to be incorporated into the fabric of the common law.^^^ This, however, does not imply a passive judiciary, because treatment of statutes as statements or sources of policy implies both a requirement that the policy be judicially articulated in terms broader than the relatively narrow questions addressed by a statute and an evaluation of the statute in assessing its worth as a basis for judicial law-making. ^^^ Indeed, the notion of incorporation into a common law may be obsolete under some versions of this view. Judicial law-making might more properly be characterized as proceeding by extensive extrapolation from judicially defined statements of statutory policy than as accommodation of stat- utory policy to common law principle. ^^^ It should be apparent that any given adherent to one or the other of these positions is an adherent only in degree; the alternatives are extreme positions likely to be qualified in practice. It should also be apparent that the alternatives are related to underlying "political" positions. The alternative that legislation is to be narrowly confined to original legislative compromise, here termed "traditional theory," is compatible with individualism. The position that legislation is to be used to further judicially perceived statutory policy, here termed non- traditional theory, is compatible with the view that courts should play a substantial role in the post-New Deal "activist" state.^^^ The Supreme Court's interpretation of Title VII is "off-the wall" when viewed from ^^^See generally Easterbrook, supra note 385. Cf. R. Epstein, supra note 247, at 19- 31 (advocating plausibility of adherence to original text). ^^^See Landis, supra note 378. For a recent analysis proposing a similar function but rejecting the assumption that courts are subordinate "servants," see Popkin, The Col- laborative Model of Statutory Interpretation, 61 S. Cal. L. Rev. 541 (1988). ^^^See generally G. Calabresi, supra note 11. ^^^This is implicit in the notion that change may render statutes obsolete. See generally G. Calabresi, supra note 11. The obsolesence characterization assumes a judiciary capable of ascertaining a set of principles consistent with change by reference to which a statute may be either used to advance these principles or confined or "overruled." To the extent, however, that the changed principles are not those of the essentially individualistic common law, but, rather, are the "activist" principles of the "administrative state," see generally B. Ackerman, supra note 285, statutes are likely to be used as legitimating foundations for pursuing these activist principles. ^'^See generally B. Ackerman, supra note 293. 1988] AFFIRMATIVE ACTION 865 the perspective of the former of these positions; it is "on-the-wall" when viewed from the perspective of the latter. The remaining sections of this article are devoted to supporting these contentions. D. A Critique of the Court's Interpretations: Traditional Theory The line of argument appropriately employed by others to establish the proposition that the Court's interpretation is off-the-wall given traditional norms^^' is as follows: (1) Congress clearly viewed the prob- lem of discrimination as a problem of disparate treatment in 1964 and just as clearly prohibited disparate treatment. ^^^ (2) The political jus- tification for this prohibition was the individualist ideal, and the rhetoric of this ideal permeates the legislative history. ^^^ (3) Congress did not directly address disparate impact theory in 1964, but did specifically disapprove of examples of disparate impact theory. ^^"^ (4) Congress was clearly aware of the notion that racial imbalance could be construed to constitute discrimination and expressly rejected such a construction. ^^-^ (5) Congress clearly contemplated a color blind and gender blind stan- dard; it not only prohibited '^required" preferences through Section 703(j), it also prohibited privately adopted preferences through Title VII's general prohibitions. ^^^ ^^'This claim necessarily assumes that a traditional stance has in some sense resolved the establishing meaning and application of meaning dilemmas previously noticed. See supra note 380 and accompanying text. It does not, however, necessarily assume that any particular methodology be adopted. At the level of establishing meaning, it is possible for both a literalist and an intentionalist to agree on a meaning, and traditional theory often relies upon both language and the context of its use (the "intention" reflected in legislative history) to ascertain or attribute a meaning. At the level of application, matters are more difficult, because the rhetoric of the traditional stance, which states that the language of the statute just "apphes" by virtue of its own force, or that the legislature intended a particular result in a given case, is implausible. Readers are responsible for establishing the significance of a meaning within the factual context of a case. See generally, Moore, supra note 377. Normative positions about just how this inevitable readers' discretion is to be exercised are therefore crucial. Nevertheless, it is not implausible for a traditionalist to claim, for example, that the disparate treatment meaning of Title VII applies to and therefore prohibits affirmative action by virtue of that meaning, even if this claim is more objectively described as an agreement among traditionalists that the meaning should be applied. It is not implausible because the traditionalist's normative position is that his discretion should be exercised in a fashion that appears (e.g., instrumentally) to confine application within the bounds of ascertained meaning (even if this position fails to achieve an agreed upon purpose of that meaning). ^^^Gold, supra note 76, at 491-503. See United Steelworkers v. Weber, 443 U.S. 193, 220 (1979) (Rehnquist, J., dissenting). ^^^Gold, supra note 76, at 513-20; Weber, 443 U.S. at 254 (Rehnquist, J., dissenting). '"'Gold, supra note 76, at 520-49. '^'Gold, supra note 76, at 503-11; Weber, 443 U.S. at 231-51 (Rehnquist, J., dissenting). ^'^ Weber, 443 U.S. at 244-45 (Rehnquist, J., dissenting). 866 INDIANA LAW REVIEW [Vol. 21:767 It is not necessary to repeat the details of this line of argument here. The proposition that the Court's interpretation is "off the wall" by reference to the traditional view will instead be supported by ref- erence to the counterarguments of those who have responded to the noted line of argument. The importance of these counterarguments is that they assume and appeal to traditional norms. The objective of this rebuttal is to establish that this appeal is mistaken and that the Court's interpretation must, therefore, be justified by reference to nontraditional norms. A preliminary point should, however, be first addressed. One of the theses of this article has been that "voluntary" affirmative action is not a phenomenon separable from Title VII liability theories, but is instead a consequence of those theories. ^^^ A second thesis has been, however, that the phenomenon and the theories are subject to alternative characterizations: they may be viewed either as a straight-forward effort to estabHsh group rights to fair distribution of employment (the sub- stantive distribution paradigm), or as overenforcement devices that merely incidentally and functionally yield such rights (the process of employment decision paradigm). ^^^ As will become evident from the discussion below, the first of these possibilities is more susceptible to this rebuttal than the second. It requires an extreme version of the traditional stance, perhaps the version of formalism, to wholly reject the overenforcement rationale. Nevertheless, there are alternative un- derstandings of the overenforcement rationale dependent upon subtle matters of emphasis, judgment and degree in applying that rationale. ^^^ This rebuttal is plausibly directed to the overenforcement version of the Court's interpretations to the extent that version approaches the fair distribution rationale. 7. The Purpose Counterargument.—The chief counterargument is that the Court's interpretation is consistent with the purpose of Title Yjj 400 jj^g appeal is to the strategy of purposive interpretation. The purpose of Title VII is said to be that of improving the employment opportunities of minorities and of women. As disparate impact theory and voluntary affirmative action tend to accomplish this purpose, they are legitimate under, even compelled by, the statute. There is no doubt that this was a congressional purpose, but this concession is not the end of the matter. Purposive interpretation is a ^^^See supra text accompanying notes 58-78, 113-64. "^5ee supra text accompanying notes 320-39. ^"^^See supra text accompanying notes 337-39. "^E.g., United Steelworkers v. Weber, 443 U.S. 193, 202-04 (1979); Blumrosen, supra note 160; Blumrosen, Griggs Was Correctly Decided^A Response to Gold, 8 Indus. Rel. L. J. 443 (1986) [hereinafter Blumrosen, Response to Gold]. 1988] AFFIRMATIVE ACTION 867 technique well within the accepted norms of legal interpretation, but there are risks inherent in the technique, well recognized by its ad- vocates. '^°' Every statute has both relatively concrete and relatively abstract purposes; courts, therefore, choose among statutory purposes in interpreting statutes. The more abstract the purpose chosen, the greater the judicial capacity to expand upon the statute and the greater the risk that a court may thereby pursue its own agenda. Statutes cannot be said to merely provide that courts are to go forth and do good and avoid evil merely because these are the statutes' purposes, without rendering them mere legitimating grounds for implementing judicial preferences regarding the public welfare. This is the reason that traditional versions of the purposive interpretation strategy take care to address only relatively concrete purposes."^^^ There is a further difficulty with the purpose argument: it ignores the problem of means. Indeed, the argument is in the following form: the congressional purpose in enacting Title VII was to improve em- ployment opportunities for minorities and women; devices that instru- mentally achieve this end are therefore required or permissible. But this is a misstatement of the statute. The statute adopts a means to its end: prohibiting disparate treatment. If that means is inadequate to accomplish the statute's end, that end does not itself justify judicial substitution of alternative means. Legislatures do not enact ends; they enact statutes. Something more is required to justify substitution: a conception of the legitimate role of courts under which they are entitled to ignore the political compromise inherent in legislative selection of means. That conception is incompatible with the traditional view of legitimate roles postulated by traditional theory. 2. The Unconsidered Case Counterargument.—A variation on the purpose argument is that disparate impact theory and voluntary af- firmative action are unconsidered cases in the sense that Congress expressly considered neither. "^^ They are merely instances of the common problem of cases not specifically contemplated or addressed by a statute but, nevertheless, within the "policy" of the statute. As it is well within traditional norms of statutory interpretation to apply the "pol- icy" of statutes to unconsidered cases, the Court's doctrines are com- patible with traditional norms. '^^'^ "^'See H. Hart & A. Sacks, supra note 11, at 1413-17. ^°^R. DicKERSON, supra note 380, at 87-102. ""'See, e.g,. Blumrosen, Response to Gold, supra note 400, at 449; Schatzki, United Steelworkers of America v. Weber: An Exercise in Understandable Indecision, 56 Wash. L. Rev. 51, 66-67 (1980). "^See Neuborne, Observations on Weber, 54 N.Y.U. L. Rev. 546 (1979). 868 INDIANA LAW REVIEW [Vol. 21:767 There are three difficulties with this argument. First, it is not entirely true that Congress did not consider disparate impact theory or voluntary affirmative action. It is true that neither "case" was directly postulated nor considered in the language of the statute or in its legislative history. "^^ It is not true that the central features of both doctrines were unconsidered. Congress specifically considered and re- jected work force imbalance as a basis for liability in Section 703(j)/'^^ specifically rejected a disproportionate effects understanding of dis- crimination in use of employment tests in Section 703(h),'^°^ and generally '^°^See Blumrosen, Response to Gold, supra note 400, at 449; Gold, supra note 76, at 520-30. ^42 U.S.C. § 2000e~2(j) (1982). The legislative history of Title VII disclosed that Section 703(j) was inserted to confirm the representations of sponsors and supporters of Title VII, made in response to the claims of opponents that the legislation would require the use of quotas to achieve racial balance, that no such requirement was imposed. See Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 452-65 (1986) (recounting legislative history); United Steelworkers v. Weber, 443 U.S. 193, 231-52 (1979) (Rehnquist, J., dissenting) (recounting legislative history). The Supreme Court later exploited a distinction between "require" and "permit" in concluding that Section 703(j) does not preclude "voluntary" quotas. Weber, 443 U.S. at 205-07. However, that distinction is highly questionable if the Court's liability theories functionally "require" such quotas. See supra text accompanying notes 58-78, 113-64. Moreover, the distinction for present purposes is overly technical. The point made in the text is that Section 703(j) reflects a broader principle, a principle compatible with the individuahst model. Although Congress did not specifically contemplate the question of truly "voluntary" affirmative action (a question never in fact yet presented to the Supreme Court given the functional requirements of the Court's liability theories), it did contemplate and enact a general operating principle in Title VII, the disparate treatment prohibition. '^"^See Gold, supra note 76, at 533-49. At the time Title VII was debated in Congress, a decision was handed down under Illinois antidiscrimination legislation (the Motorola decision), holding employment tests generating adverse effects on minorities were unlawful under Illinois law. See 110 Cong. Rec. 9030 (1964). Section 703(h)'s preservation of "ability tests" was a response to this decision, one that rejected adverse impact, at least as such, as a theory of liability. The Supreme Court, in Griggs v. Duke Power Co., 401 U.S. 424 (1971), later interpreted Section 703(h) as preserving only job-related tests. As Professor Gold has demonstrated, however, the protection afforded ability tests in Section 703(h) is complete absent their use to intentionally discriminate. Gold, supra note 76, at 533-49. In particular, the principal proponents of Title VII represented to their colleagues in debate over the initial version of the Tower amendment (which would have totally immunized employment tests from challenge) that "nothing in the bill authorizes such action as in the Motorola case." 110 Cong. Rec. 13,504 (June 11, 1964) (remarks of Sen. Case). See id. (remarks of Sen. Humphrey). Moreover, the concern expressed by these proponents was with the potential for pretextual use of tests to engage in disparate treatment. See id. (remarks of Sen. Humphrey). The version of the Section 703(h) testing defense eventually enacted reflected this concern with pretextual use. See 110 Cong. Rec. 13,724 (1964). Nevertheless, it is possible to read Griggs as consistent with the intentional discrim- ination rationale. See supra text accompanying notes 288-91. The absence of a reasonable 1988] AFFIRMATIVE ACTION 869 rejected group rights understandings of the antidiscrimination principle throughout the legislative history of the Act/°^ While it is quite true that Congress did not anticipate the precise features of the Court's later doctrines, it is not the case that it did not anticipate, and reject, the central features and functional implications of these doctrines. Second, even if it were true that the Court's doctrines were un- considered, the question would remain whether the policy of the Act supports them. It is perhaps the case that the abstract purpose of improving employment opportunities for minorities and women supports them, but this merely raises the problem of abstract purpose discussed above. Third, disparate impact theory and affirmative action are not plau- sibly classified as instances of the common problem of the unconsidered case, unless they are understood as mere expressions of disparate treatment theory, for example, as aspects of an overenforcement strategy as discussed earlier. "^^^ If the Court's doctrines are understood and applied in terms of group rights—as means of recognizing a right in minority or female groups to proportional allocation of employment opportunity—they are instances of the provided for case; the individ- ualist conception that permeates the language and legislative history of Title VII would preclude them. Even if they can be said to have been unconsidered in their precise features, the policy of the statute so conceived is hostile to group rights. If the doctrines are instead understood as instances of or inevitable consequences of overenforce- ment of the disparate treatment prohibition, '*'° they are plausibly char- acterized as unconsidered cases at least arguably compatible with statutory policy. However, there is a significant implication to this characterization. It is that both doctrines would have to be severely constrained so as to reflect a disparate treatment enforcement strategy rather than an equal group-achievement strategy. In the terminology of the earlier discussion of overenforcement, the doctrines would have to be applied by reference to a process paradigm, rather than a dis- tribution paradigm. "^'^ relationship between preference on an ability test and actual job content is evidence of pretextual use of the text. Whether this is a viable reading of Griggs, however, is dependent upon the standard of vaUdity imposed on testing. If more is required than a reasonable relationship, there is imposed, pro tanto, a prohibition of adverse effect on groups. And it is the latter prohibition that Congress rejected when it disapproved of the Illinois decision. ""^The Clark-Case memorandum is illustrative. See supra note 350. '^'^See supra text accompanying notes 276-339. "^^^See supra text accompanying notes 276-339. '^"See supra text accompanying notes 332-39. 870 INDIANA LAW REVIEW [Vol. 21:767 3. The Section 703(a)(2) Counterargument.—The most persuasive support for disparate impact theory in the language of Title VII is Section 703(a)(2), because that provision appears to reference effects: an employer is not permitted to "limit, segregate,, or classify his employees in a way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals race . . . .'"^'^ Indeed, the Court has relied on Section 703(a)(2) as justification for impact the- ory/'3 Aside from the probable source of the language of the provision in a congressional purpose to preclude employer and union collusion in disparate treatment, "^'"^ the Court's reliance is mistaken for three reasons. First, the language is in terms of tendencies and effects with respect to an individual, not with respect to a racial group. The Court has suggested that disparate impact theory protects individuals, so that group success under a neutral criterion does not preclude an individual member of the group from invoking disparate impact theory,"*'^ but the Court's argument is disingenuous: the individual cannot establish a prima facie case under the theory without making out group harm."^'^ Absent an adverse effect of neutral criteria on the group, the theory is unavailable; adverse effects on the individual are irrelevant. Second, the provision requires harm generated "because of" race, a causal notion implicating disparate treatment theory. For this language to support the disparate impact theory, it must be read as invoking a notion of correlation, not of causation: harm correlated with group status is prohibited. But this reading again ignores the focus of the language on the individual; the individual must not be harmed because of his race. Third, the Court's reading ignores the legislative history taken as a whole. That history again is clear on the point that the language was understood to prohibit disparate treatment. "^'^ At best, the language, read in conjunction with that history, would support use of disparate impact theory as a device for reaching suspected pretextual use of neutral criteria, but this would again require confining the theory to an overenforcement strategy. "^'^ In particular, it would require a rel- atively relaxed version of the business necessity defense. "^'"^ ''HI U.S.C. § 2000e-2(a)(2) (1982). ^'^Connecticut v. Teal, 457 U.S. 440 (1982). ^''Gold, supra note 76, at 568-78. ^"Connecticut v. Teal, 457 U.S. 440 (1982). ^'"P. Cox, supra note 12, at 7.01 [2]. '''See Gold, supra note 76, at 564-67. ''^See supra text accompanying notes 332-39. ''""See Rutherglenn, supra note 271, at 1312-29. 1988] AFFIRMATIVE ACTION 871 4. The Deference to Administrative Expertise Counterargument . — It is sometimes said that both impact theory and affirmative action doctrine properly rest on judicial deference to the views of the EEOC, as a matter of the traditional doctrine of deference to administrative agency expertise/^^ The difficulty with this view is that the traditional doctrine of deference, outside the context of Title VII, is confined to the views of agencies upon which Congress has conferred substantive rule making or adjudicative powers/^' The EEOC enjoys neither power; it is an enforcement agency/^^ Application of the traditional doctrine to the EEOC is analogous to deferring to a prosecutor's office in construing a criminal statute. That the Court has chosen to ignore this point is not plausible evidence that deference is appropriate."^^^ 5. The Ratification Counterargument.—The primary argument made by those advocates of the Court's doctrines who at least partially concede that the doctrines are not supportable by references to the 1964 legislation is that Congress ratified Griggs in the 1972 amend- ments. "^^"^ If Congress ratified Griggs, it at least arguably prospectively ratified "voluntary" affirmative action because, as we have seen, the doctrines are so closely intertwined that "voluntary" affirmative action is implicit in disparate impact theory. "^^^ The first difficulty with this argument is that it rests on a very slim reed. Congress did not address disparate impact theory in the 1972 amendments. Rather, the House and Senate reports addressed it in the context of making the argument that the EEOC's enforcement authority should be expanded. Specifically, the reports cite Griggs for the proposition that discrimination is a complex phenomenon requiring "expertise" for its assessment ."^^^ There is no indication that Congress '^°See Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971); Blumrosen, Response to Gold, supra note 3, at 447. '^^^See American President Lines v. Federal Maritime Comm'n, 316 F.2d 419 (D.C. Cir. 1963); Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785 (2d Cir.), aff'd, 328 U.S. 275 (1946); cf. Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) (regulation does not have force and effect of law absent express congressional delegation of substantive rulemaking authority). But cf. Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations entitled to respect). '''See 42 U.S.C. § 2000e-5 (1982). ^"Nevertheless, the Court's conferral of substantive rule making authority on an enforcement agency to which Congress declined to give substantive rule making powers is consistent with the bureaucratization of Title VII. See infra text accompanying note 492. '''See Connecticut v. Teal, 457 U.S. 440, 447 n.8 (1982); Thomson, The Disparate Impact Theory: Congressional Intent in 1972—A Response to Gold, 8 Indus. Rel. L. J. 105 (1986). "^See supra text accompanying notes 58-78, 113-64. ^^*H.R. Rep. No. 238, 92d Cong., 1st Sess. 8-9 (1971); S. Rep. No. 415, 92d Cong., 1st Sess. 5 (1971). 872 INDIANA LAW REVIEW [Vol. 21:767 was either aware of or considered Griggs' implications, particularly as these did not become fully apparent until 1975, when the Court decided Albemarle Paper Co. v. Moody"^^^ and, perhaps, 1979, when the Court decided United Steelworkers v. Weber^^^ Moreover, although there were attempts in 1972 to ratify Griggs directly, these were ultimately rejected. '^^^ It is true that the conference report on the 1972 bill states, without referring to Griggs, that then current interpretations of Title VII are to control where the Act was not specifically modified by the 1972 amendments /^° But this is a statement about the Hmited effect of the amendments, not an open-ended authorization for the Court to proceed down a road Griggs itself only ambivalently suggested, par- ticularly in view of the fact that explicit attempts at confirming Griggs were rejected in the 1972 conference committee/^' The more fundamental objection to the ratification argument, how- ever, is that it does not rely either upon a congressional enactment or upon legislative history as an aid to understanding of such an enactment. It relies, rather, upon legislative history, as such. Moreover, this ob- jection would be necessary even if that legislative history were not ambivalent as an expression of approval of the Court's then and later doctrines. Congress does not enact legislative histories; it enacts statutes. The statute it has enacted, as that statute is relevant here, is the 1964 Act, not the ambiguous views of the writers of a 1972 legislative report. "^^^ ^•"422 U.S. 405 (1975). In Albemarle, the Court imposed a strict requirement of test validation, treating EEOC guidelines on the matter as de facto agency rules, despite the absence both of administrative rule making authority and the absence of compliance with the Administrative Procedure Act. Griggs certainly implied a group rights theory of antidiscrimination law, but Albermarle confirmed it by treating the business necessity/job relatedness defense in a fashion incompatible with a pretext theory of discrimination. It is no accident that Chief Justice Burger, the author of Griggs, dissented in Albemarle. All U.S. at 449. ''2H43 U.S. 193 (1979). ^^"See H.R. 1746, 92d Cong., 1st Sess. 8(c) (1971) (amending Section 703(h) testing defense); S. 2515, 92d Cong., 1st Sess. 4(a) (1971) (amending Section 706(g) to eliminate intentional discrimination as a condition to remedial relief). The bills discussed in the committee reports were not enacted. Gold, Reply to Thomson, 8 Indus. Rel. L. J. 117 (1986). The attempt in the House to codify Griggs was accepted in committee and defeated on the floor. See 117 Cong. Rec. 31,979-85, 32,088-32,113 (1971). The attempt in the Senate was successful, 118 Cong. Rec. 4944-48 (1972), but was dropped in conference. See Joint Explanatory Statement of Managers at the Conference on H.R. 1746 to Further Promote Equal Employment Opportunities for American Workers reprinted in 1972 U.S. Code Cong, and Admin. News 2179, 2183. ^^"118 Cong. Rec. 7166 (1972). "^^See supra note 429. ^"See International Bhd. of Teamsters v. United States, 431 U.S. 324, 354 n.39 (1977). 1988] AFFIRMATIVE ACTION 873 6. The Ratification By Silence Counterargument . —A version of the ratification argument, employed by the Court as a justification for adhering to its "voluntary" affirmative action precedent, is that Con- gress has "ratified" that precedent by faihng to overturn it/^^ The initial difficulty with this argument is that it is difficult to take seriously. If the Court had an even relatively consistent record of adhering to its interpretations, one could plausibly understand this argument as an expression of a prudential policy of fostering and preserving settled expectations, "^^"^ but the Court has no such record/^^ The second dif- ficulty with the argument is that it rests on the questionable metaphor of a continuing dialogue between Court and Congress. The metaphor is questionable because, although the Court's decisions allocate the burden of legislative inertia, the Court does not control legislative agenda. There is no continuous dialogue between Court and Congress; there are instead sporadic, haphazard, unpredictable and typically iso- lated interactions. The third difficulty is that the Court's decisions do allocate the burden of legislative inertia, and, in the present context, that burden is fatal. Neither of the chief interest groups with the organization and power to attempt a legislative assault on the Court's affirmative action edifice, civil rights groups or employer organizations, have any incentive to do so. The persons adversely affected by the edifice are isolated individuals. "^^^ Moreover, opposing political forces on the question of affirmative action are and have been for twenty years in equipoise: neither is sufficiently powerful either to legitimize voluntary affirmative action or to repeal it through legislation."*^^ E. On Understanding The Court's Interpretations: Nontraditional Theory The point of the preceding section of this article was not that the Court's doctrines are illegitimate. Rather, the point was that the Court's doctrines are illegitimate, indeed, incomprehensible, within the per- spective of a traditional understanding of judicial function in inter- pretation and application of legislation. The point of this section is to claim that a compromise theory of "voluntary" affirmative action is comprehensible and legitimate within an alternative perspective. ^"Johnson v. Transportation Agency, 107 S. Ct. 1442, 1450 n.7, (1987). '^^'^See E. Levi, An Introduction to Legal Reasoning 38 (1948). '"5ee Johnson, 107 S. Ct. at 1412-13 (Scalia, J., dissenting). ''''Id. at 1475-76. ""See N. Glazer, supra note 6, at 215-17; Sherain, The Questionable Legality of Affirmative Action, 51 J. Urban L. 25, 41 (1973). 874 INDIANA LAW REVIEW [Vol. 21:767 Perhaps the most direct means of approaching this alternative perspective is through Ronald Dworkin. Professor Dworkin claims that Title VII may be read either as prohibiting or authorizing "voluntary" affirmative action/^^ The Court is free to choose which of these al- ternatives is the best interpretation of the statute. The best interpretation is derived from a theory of "fit": the statute should be interpreted "to advance the policies or principles that furnish the best political justification of the statute. ""^^^ The "best political justification" is a matter of judicial choice between conceptions of the concept of equality, but the choice should be one not incompatible with the provisions of the statute and compatible with the political climate of the times. '^'^^ According to Professor Dworkin, both the individualist conception, one that would preclude voluntary affirmative action, and the group equality conception, one that would authorize voluntary affirmative action, equally fit Title VII on this test."^"^^ The choice then becomes a matter of sound political morality, the Court properly authorized voluntary affirmative action because it reflects the sounder version of political morality. "^"^^ It should be apparent that this argument assumes that Title VII does not provide an answer to the choice, that it enacts merely a "concept" and not a "conception" of equality. "^"^^ It assumes, as well, that the Court would be bound to follow an individualist conception if Title VII had enacted such a conception. The first of these as- sumptions denies that Title VII clearly prohibits "voluntary" affirmative action. So it is important to examine the argument that it does not. The second assumption would become irrelevant if it is taken seriously and if the first assumption was refuted. The claim to be made below, however, is that it cannot be taken seriously because the method by which Professor Dworkin and others, including the Supreme Court, reach the first assumption ensures that statutes will not provide answers which bind the courts. The claim then, is that although Professor "'^Dworkin, Principle, supra note 11, at 328; cf. Dworkin, Empire, supra note 193, at 394-97 (absent prejudice, political process may consitutionally seek egalitarian resource redistribution). In Professor Dworkin's terms, the alternatives are (1) promotion of economic equality and (2) banning all race-concious criteria. "•"Dworkin, Principle, supra note 11, at 328-29. See id. at 146-77; Dworkin, Empire, supra note 193, at 225-58, 313-54. ^°DwoRKiN, Principle, supra note 11, at 326-29. ^'M at 328-29. '^^FoT Professor Dworkin, a "concept" is an abstract notion (such as equahty) subject to differing understandings of what this "concept" requires. More concrete understandings are "conceptions." Concepts are uncontroversial; conceptions are controversial. See, e.g., Dworkin, Empire, supra note 193, at 71. 1988] AFFIRMATIVE ACTION 875 Dworkin provides a rationale for the Supreme Court's interpretation of Title VII, the rationale, rather than its persuasive or unpersuasive character, is the important descriptive point. The rationale, as the subject of inquiry, explains the Court's interpretation not because it is persuasive, but because it tells us something important about the Court and about the Court's ''conception" of its function. 1. The Rhetoric of Nontraditional Theory.—Although nontradi- tional theory is distinguishable from traditional theory in the expansive role it confers on courts in using statutes to further their policies, its rhetoric often justifies conclusions by reference to norms compatible with the traditional position. The argument in this subsection uses Dworkin' s argument to illustrate the point that nontraditional theory nevertheless deviates from those norms. Professor Dworkin's method for concluding that Title VII enacts merely a concept and not a conception is initially commonplace: (1) the language of the statute does not address the question of voluntary affirmative action; (2) the "institutional intention" of Congress reflected in legislative history may not be relied upon absent a clear legislative convention that this history was to be a part of the enacted text of the statute; and (3) there is no such thing as a reliable collective congressional intention that can be derived either from the statute or from its legislative history. '^'^'^ It is possible to dispute each of these points, and they are disputed in the footnote. "^"^^ The present objective, however, is to identify method. "^Id. at 321-26. '^'Some of these points are discussed supra in text accompanying notes 391-437. The argument that there is no such thing as a collective psychological state of legislative intention is correct in some senses and not correct in others. It is surely correct if one means by it a collective, subjective motivation for passing a statute, Dworkin, Empire, supra note 193, at 315-16, or collective agreement about how the statute would be applied within a given factual scenario that had not been expressly contemplated at the time of enactment. But these possibilities do not exhaust the matter. There is such a thing as a collective understanding, even if in relatively abstract terms, of the policy or principle enacted. See J.W. Hurst, Dealing w^ith Statutes 32-40 (1982). If there were not such a thing, the very notion of legislation would be implausible. See Cox, supra note 29, at 338-41. The argtiment that legislative history may count as a statement of institutional intention only if there is a legislative convention making it so is too strong. Such a convention would certainly add weight to the statement, but the absence of a convention should not render the statement excludable. The absence of a convention merely renders the question of weight part of the interpretive agenda, so it must be determined whether the statement is a credible guide to understanding the policy or principle of the statute. Professor Dworkin seems to have realized this in arguing elsewhere that the statements of legislators are political acts that are a basis for deciding what interpretation of a statute makes it "best." Dworkin, Empire, supra note 193, at 313-54. 876 INDIANA LAW REVIEW [Vol. 21:767 The curiosity important in Professor Dworkin's method is its quality of having and eating the relevant cake/'^^ Professor Dworkin is si- multaneously intent upon excluding evidence that might be marshalled in an argument against the conclusion that no conception was enacted, and upon insisting that the statute nevertheless binds the Court. He excludes the evidence of legislative history by claiming that, absent a firm convention under which congressmen understand that legislative history is a part of statutory enactment, such history may not be relied upon as evidence of an "institutional intention. '"^"^^ Moreover, he rejects the notion of a collective legislative intent apart from convention because there is no such thing as a shared psychological intent of the legis- lature.'^'*^ In what sense, then, is the Court "bound" by the statute? It would apparently be bound in Dworkin's argument if the language of the statute specifically addressed the precise question of "voluntary" affirmative action. However, neither Section 703(a) nor Section 703(j) is, for Dworkin, sufficient for this purpose. Section 703(a)'s general prohibition of discrimination is insufficiently precise to constitute an express legislative contemplation of voluntary affirmative action, and Section 703(j) addresses merely "required," not "voluntary" prefer- ences. '^^^ "^^^Arguably, this is a criticism that may be made of Dworkin generally. See Fish, supra note 375. '*^^DwoRKiN, Principle, supra note 11, at 325. More specifically. Professor Dworkin dismisses that portion of the legislative history predating the adoption of Section 703(j), in which sponsors, managers and supporters of the Title VII argued that the Act would neither permit nor require race conscious programs, because the adoption of Section 703(j) establishes that Congress had no convention that would make these arguments a part of the statute. Id. The adoption of Section 703(j) certainly suggests that the congressmen did not trust the prior legislative history as a bar to an interpretation of the statute that would require race conscious programs (with, as it turns out, good reason). It does not establish either the absence of a convention or the irrelevance of the earlier history, except on the assumption that legislative history is inadmissable absent a very strong form of convention. Professor Dworkin, however, is not alone in criticizing reliance on legislative history. See Hirschey v. Federal Energy Regulatory Comm'n, 777 F.2d 1, 7-8 (D.C. Cir. 1985) (Scalia, J., concurring). The plausibility of such reliance would seem, however, to be a matter of the weight to be assigned to history rather than its admissibility and to be a matter of the purpose for which it is used. The weight assigned is justifiably greater where the history recounts a full and intensive congressional debate than, for example, a committee report where it is not clear that the report became the subject of or came to the attention of the full body in debate. Similarly, a judicial purpose to clarify ambiguous statutory language is more justifiable than a purpose to rely on history as the source for a rule that finds no support in the language of the statute itself. ^^^DwoRKiN, Principle, supra note 11, at 322-24. ^"M at 327. See United Steelworkers v. Weber, 443 U.S. 193 (1979). 1988] AFFIRMATIVE ACTION 2>11 This analysis permits Dworkin to claim that the Court must engage in a "fit" analysis. Two conceptions equally "fit" the statute: the statute may be read to forbid all discrimination (the individualist con- ception) or may be read to permit benign discrimination (the group conception) /^° The latter possibility is grounded, ironically enough, on the claim that Congress intended to preserve employer discretion, in the sense that a policy of preserving employer discretion had wide political appeal at the time of enactment/^' The former possibility is similarly grounded; color blindness rhetoric also had currency and political appeal at the time of enactment/^^ What is interesting about this line of reasoning is what it leaves out. The first matter omitted is the question of characterization: in what sense can affirmative action be said to be "voluntary" and, therefore, not within Section 703(j)'s express prohibition of "required" preferences? Given the relationship between the Court's theories of liability, the employer incentives generated by these theories and em- ployer-adopted race and gender preferences, affirmative action is "vol- untary" only in the sense that it is not formally required. "^^^ Employer discretion is preserved, then, in the sense that employers may either engage in affirmative action or risk liability for race and gender im- balance in their work forces. The "fit" criteria Professor Dworkin advocates is of a pecuUar sort, for the statute is made to "fit" a "chain" of interpretations'^'^^ of a highly amended variety. This prior "chain" of interpretations could of course be used to justify affirmative action in an argument Professor Dworkin does not employ; judicial permission to engage in benign discrimination "fits" the "chain," even though it does not "fit" the statute as originally enacted. Adoption of this argument, however, would require a concession that the Court's "chain" of interpretations "changed" the statute; a concession neither Professor Dworkin nor other nontraditionalists can make without aban- doning their claim of adherence to traditional norms. "^^^ The second matter omitted is the relationship between the "con- ceptions" said to have had currency and appeal at the time of enactment, even though they were not enacted. In Professor Dworkin's view these conceptions are incompatible alternatives from which the Court must '•'"Dworkin, Principle, supra note 11, at 327-28. '''Id. See United Steelworkers v. Weber, 443 U.S. 193 (1979). "•"Dworkin, Principle, supra note 11, at 328. •"See supra text accompanying notes 58-78, 113-64. "•'"S^e Dworkin, Principle, supra note 11, at 158-62 (invoking the notion of a chain of interpretations and a requirement that judges must adopt an interpretation that best fits this chain as a constraint on discretion). ""iSee id. at 160 Gudge must interpret, not invent a legal history). 878 INDIANA LAW REVIEW [Vol. 21:767 choose. This leaves out, however, the clear possibility that they may be reconciled. They are reconciled within the individualist conception; employer discretion is preserved by confining Title VII to a prohibition only of disparate treatment, as it is precisely the limited character of that prohibition that minimizes the intrusion of collective decision into private discretion. "^^^ The incompatibility between the conceptions arises only by virtue of the first matter left out: employer discretion has been antecedently confined through a prior "chain" of interpretation generating the Court's liability strategies. As Professor Dworkin fails to consider the meaning of "required" and "voluntary" and therefore fails to recognize the Court's responsibility for creating the phenomenon of "voluntary" affirmative action, he entertains the fiction that private employer conduct, and, therefore, a policy of preserving private dis- cretion, is in issue. This argument, however, is a bootstrap. It amounts to a clairh that employers should be permitted, in their discretion, to do what the Court's chain of interpretations compels them to do. The third matter omitted is that there is a version of legislative intent between the polar extremes of a collective legislative will and a concrete expression through the language of a statute or of legislative convention. "^^^ The difficulty with Professor Dworkin's argument about collective psychological states (and with much realist analysis of leg- islative intent) is that it attacks a straw man."^^^ It is indeed implausible that legislators share a common set of hopes, fears, and preferences about legislation or a common set of motiviations for voting for it. It is also implausible that even those legislators who think about the proposals before them share a common set of hypothetical factual scenarios to which they contemplate application of a statute. But this does not compel the conclusion that legislators merely share an abstract "concept." They can and do share relatively concrete conceptions.'*^^ These conceptions do not "announce" their meaning or significance within the factual scenario presented to a court; the responsibility for interpretation and application is inescapably the court's. Nevertheless, both the language of the statute and its legislative history, even absent a legislative convention regarding such history, are evidence from which to build an understanding, and from which the understanding, once achieved, may be reasoned. It might be said that Professor Dworkin does not disagree with these assertions and that he merely asserts and supports one of a number of possible understandings, but he does ''^^See supra text accompanying notes 29-54. ^''See Cox, supra note 29, at 329-58. '''See MacCallum, Legislative Intent, 75 Yale L.J. 754, 771-75 (1966). ^'''See Cox, supra note 29, at 334-41. 1988] AFFIRMATIVE ACTION 879 disagree. He is intent upon delegitimizing the authority both of the language of the statute and of its legislative history as expressions of a conception, because he wishes to give the Court the discretion to choose between conceptions. This intention explains why legislative history, unless it satisfies Dworkin's test of admissibility, is excluded; why the consistent statements of sponsors of the legislation invoking the individualist model are converted by Professor Dworkin's argument into "the political cHmate of the times"; why Professor Dworkin gives Section 703(j) no force beyond "required" preferences; and why he declines to consider the question of just what content can be plausibly given to the distinction between required and "voluntary" preferences. Professor Dworkin's ultimate point—that the Court is to choose between conceptions on the basis of its view of sound political mo- rality—is correct in the sense that courts must choose between the traditional and nontraditional interpretive approaches and between the political moralities implied by these alternatives. It is, however, not correct as a claim that Title VII enacts no conception. Professor Dworkin's analysis, despite its appeal to "fit," is best understood as a choice of nontraditional theory. More specifically, his analysis best "fits" the proposition that statutes should be viewed as if they enact broad concepts and, therefore, are authorizations for the courts to select and implement preferred conceptions. "^^^ 2. Nontraditional Theory Viewed Functionally . —Professor Dwor- kin, however, is merely an example of nontraditional theory. Eschewing Dworkinian pyrotechnics, some have made the straight-forward claim that it does not matter what Congress thought in 1964 or even in 1972 because subsequent developments—post-enactment academic reformu- lations of appropriate policy or changes in Zeitgeist—authorize the Court's interpretations."^^* Others would apparently reject the traditional notion that courts are bound by statutes, on the grounds either that statutes are incapable, as a descriptive matter, of binding courts, ^^^ or that statutes cannot keep pace with social, political and moral change. Therefore, courts should not, as a normative matter, be bound by original legislative understandings."*" The present question is not the legitimacy or illegitimacy of these views. The point, rather, is that. ''^C/. M. Sandel, supra note 166, at 135-42 (Dworkin's limited conception of individual rights permits largely unconstrained utilitarianism); Cotterrell, Liberalism's Empire: Re- flections on Ronald Dworkin's Legal Philosophy, 1987 Am. B. Found. Res. J. 509, 515 (noting that Professor Dworkin's version of liberalism inevitably wins in his own inter- pretations). "^'Fallon & Weiler, supra note 6, at 17-18. '*"C/. S. Fish, supra note 29 (community, not text, binds interpreters). ""See generally G. Calabresi, supra note 11. 880 INDIANA LAW REVIEW [Vol. 21:767 whatever the particular justification argument, nontraditional theories minimize the binding force of statutes and maximize the law and policy creation function of courts by treating statutes as open-ended conferrals of authority. Indeed, it is possible to identify central features of nontraditional theory compatible with the Court's treatment of Title VII. First, central to nontraditional theory is a descriptive claim about the improbability of formalist theories of law, combined with an emphasis upon the independent responsibility of courts to interpret the meaning attributed to legislation. "^^"^ Second, equally central to nontraditional theory is elevation of the judiciary to a preeminent status. This is a significant extension of the claim that courts have an independent responsibility to advance statutory purposes, because courts are not viewed merely as independent. They are instead viewed as keepers of a cultural heritage, of transcendant values, of a changing Zeitgeist, even of our collective political morality. "^^^ Moreover, they are viewed not as the keepers of common law to be distinguished from statutory law, but rather as keepers of a legal fabric that includes elements of common law, statutes, principles and policies derived from statutes.^^^ Third, nontraditional theory is careful to defend itself against the argument that its third feature renders it a tyrant. It is said not to be tyrannical because it is confined by the necessity of dialogue, the conventions of rational discourse within that dialogue, and by its supposed expertise in ascertaining and extrapolating from underlying fundamental values. "^^^ Fourth, the passage of time is emphasized by nontraditional theory's approach to statutes. The basic notion is a diagnosis of rapid obso- lescence: original legislative understandings, even if discoverable, are rendered irrelevant over time, so that statutes are to be employed in service of current judicial understandings of social need or judicially constructed principle. "^^^ Fifth, nontraditional theory insists that the fabric of the law has, at least in general, a politically neutral logical coherence for which the courts are responsible. "^^^ The fabric is coherent by reference to a political morality or moralities identified by courts. """^See, e.g., Dworkin, Principle, supra note 11, at 131-37, 316-31; Dworkin, Empire, supra note 193, at 313-27. '^^^See G. Calabresi, supra note 11, at 91-119; Dworkin, Empire, supra note 193, at 176-266. '^^^See G. Calabresi, supra note 11, at 129-31. '^^^See G. Calabresi, supra note 11, at 111-114; Dworkin, Empire, supra note 193, at 397-99. '*^^See generally, G. Calabresi, supra note 11; Dworkin, Empire, supra note 193, at 348-50; Eskridge, Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987). '^^See G. Calabresi, supra note 11, at 96-101; Dworkin, Empire, supra note 193, at 397-99. 1 988] AFFIRMA TI VE ACTION 88 1 but the identification is politically neutral in the sense that it is not by reference to transient or even judicially preferred ideologies, but rather to fundamentals, derived from tradition or implicit in the fabric of law itself. The judicial function is, therefore, to incorporate statutes into this fabric, both in the sense that statutes are potential sources of development within the fabric, and in the sense that they are to be treated as serving public welfare ends compatible with the fabric /^° These features of nontraditional theory characterize the Court's interpretations of Title VII. The Court has eschewed close attention to text and to legislative history and instead embraced the most abstract of congressional purposes as a touchstone for decision—economic equal- ity of groups. '*''' It is not coincidental that this touchstone maximizes the Court's discretion to develop a regulatory apparatus in instrumental service of abstract purpose. Nor is it coincidental that this abstract purpose is a virtual restatement of a central tenet of a political morality that appeared and gained force after 1964.^^^ The Court's justification for this process has included elements not merely of original and abstract congressional purpose, but of post-enactment political climate, '^^^ of appeals to the Court's responsibility for the "fabric of the law," and of the passage of time as a reason to deemphasize original under- standing.'*^'* There is, however, a final feature of nontraditional theory of which the Court's interpretations of Title VII is perhaps the best example. Nontraditional theory authorizes and legitimates bureaucracy, under- stood both as bureaucratic organization and as the "activist" agenda to which such organization is devoted. Consider an extreme version of traditional theory, legal formalism's'*^^ understanding of statutes. At ''^See G. Calabresi, supra note 11, at 101-09. Cf. Dworkin, Principle, supra note 11, at 326-31 (court's task is to interpret so as to further the "best poHtical justification" of the statute). But cf. Dworkin, Rights, supra note 29, at HI n.l (statutes enact policies, not principles). It is apparent that this view would also authorize limiting, perhaps even "overruling," a statute thought to be out of keeping with the fabric. See generally, G. Calabrasi, supra note 11. Cf. WeUington, supra note 381, at 264 (advocating use of clear statement rules). It therefore arguably has a feature reminiscent of the traditionalist's preference for the common law. '''See United Steeiworkers v. Weber, 443 U.S. 193, 228-30 (1979) (Rehnquist, J., dissenting) (criticizing the Court on this ground). '^''-See Fallon & Weiler, supra note 6, at 17-18. "^^An example is the Court's rehance upon the 1972 legislative history. See supra text accompanying notes AlA-'il. '''See Johnson v. Transportation Agency, 107 S. Ct. 1442, 1458-59 (1987) (Stevens J., concurring); United Steeiworkers v. Weber, 443 U.S. 193, 215 (1979) (Blackmun, J., concurring). """Formalism" means a general tendency to favor treating statutes as "rules" with 882 INDIANA LAW REVIEW [Vol. 21:767 least in its perhaps caricatured form, formalism: (1) would insist upon adherence to original understanding as the sole legitimate "law";'*^^ (2) would confine law to the scope of that original understanding, so that the unprovided-for case is one not governed by law (and so, either an embarrassment or subject to a motion to dismiss);"^^^ (3) would reject the passage of time and changed conditions or political climate as justification for ignoring original understanding;'*^^ (4) would be cen- trally concerned about allocating legal decision-making authority, so that only specified institutions legitimately exercise such authority;"^^^ and (5) would eschew reference either to the consequences (whether good or bad) of adherence to original understanding or to flexibility in response to feedback about consequences in favor of a rigid adherence to that original understanding /^° Bureaucracy is not plausible under such a regime. This claim may at first appear surprising; it is the popular hallmark of the bureaucrat relatively concrete and confined meanings (supplied particularly by a belief in the determinate character of the meaning of language) and to believe in the possibility of deduction from such rules. See supra text accompanying notes 50-54. However, it is not necessary to even an extreme version of the "traditional theory" as that label is used here that the person adopting it believe naively either in the capacity of statutory language to control decision or that courts are or should be merely passive conduits for legislative "will." See, e.g., Easterbrook, supra note 385. Indeed, it is not necessary to traditional theory that common law method yield general rules or principles rigidly applied. It would be permissible for that method to be characterized as entailing particularized and fact dependent judgments. Compare Atiyah, From Principles to Pragmatism: Changes in the Function of the Judicial Process and the Law, 65 Iowa L. Rev. 1249 (1980) (attacking pragmatic resolution of particular cases and favoring adjudication by reference to general rules or principles) with Stone, From Principles to Principles, 97 L. Q. Rev. 224 (1981) (Atiyah's pragmatism is a process of formulating new principles). What is necessary to the understanding of traditionalism invoked here is a belief that an exercise of governmental power, including judicial power, must, if it is to be justified by reference to a statute, be derived from a relatively concrete expression of legislative judgment. This of course leaves open the possibility of alternative justifications, most obviously the principles of common law that would be controlling in the absence of a claim that a statute has relevance to a case. If one believes that these principles generally favor private ordering, or are compatible with individualistic liberalism as classically conceived, see R. Epstein, supra note 247; F. Hayek, supra note 31, at 148-61; or are economically efficient, see Easterbrook, supra note 385, the consequence is a position that so confines justifications of the exercise of governmental authority that it precludes administrative law as we know it. ''^See, e.g., Kelsen, The Pure Theory of Law, Part II, 51 L. Q. Rev. 517 (1935); A. Dicey, Introduction to the Study of the Law^ of the Constitution 183-203 (1915). ""See, e.g., Easterbrook, supra note 385; Pound, Spurious Interpretation, supra note 385. ''^See, e.g., TVA v. Hill, 437 U.S. 153 (1978). '""See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). '^"See, e.g., TVA v. Hill, 437 U.S. 153 (1978). 1988] AFFIRMATIVE ACTION 883 that he is an inflexible adherent to bureaucratic rules and, therefore, a quintessential formalist. But this inflexible adherence, to the extent that it in fact accurately depicts bureaucrats, is a feature of bureau- cracy's observed behavior, not a rationale for or legitimating theory of bureaucracy/^' Viewed institutionally, governmental bureaucracy could not survive in a formalist's legal world for two reasons: (1) The legitimacy of bureaucracy as an institution would be suspect, because broad delegations of . rule making authority could not be traced to concrete legislative original understandings; and (2) the modern legit- imating rationale for bureaucracy, that bureaucracies apply a flexible and pragmatic expertise to an evolving social, political and economic environment, would be suspect because the rationale is incompatible with all of the features of caricatured formalism noted above/^^ Nontraditional interpretive theory legitimates bureaucracy in part, then, because it rejects the formalist obstacles to that legitimacy. There is, however, more to this matter than the mere removal of formalist obstacles. Nontraditional theory also legitimates by affirmatively as- serting the moral imperative of an expanding, purposive, flexible and cybernetic law administered by institutions with open-ended authority. "^^^ Although it is true that the legitimating strategy of nontraditional authority is formally directed to courts as institutions, the reality is that most modern law, at least in volume, is bureaucratically formulated and applied. Courts, in interpreting and applying statutes, oversee a bureaucratic process. Moreover, courts are themselves transformed by the process nontraditional theory legitimates; they become bureaucracies both in the sense that their procedures become bureaucratized,"^^"* and in the sense that the interpretations they lay down have bureaucratic "^'The legitimating rationale for the administrative state is that agencies are staffed with experts capable of flexibly responding to rapidly changing social conditions and of engaging in experimentation. See, e.g., J. Landis, The Administrative Process 10-17, 98-99 (1938); Shapiro, Administrative Discretion: The Next Stage, 92 Yale L. J. 1487, 1495-1500 (1983). For an interesting critique of this and other rationales for bureaucracy not undertaken from an individualist perspective, see Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276 (1984). *^^The general concern with administrative agency discretion, although it postulates alternative means of controlling that discretion, illustrates the incompatibility of the formalist stance with the administrative state. See, e.g., Shapiro, supra note 481; Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975) [here- inafter Stewart, Reformation]; Stewart, Regulation in a Liberal State: The Role of Non- Commodity Values, 92 Yale L.J. 1537 (1983). '*^^See, e.g., B. Ackerman, supra note 293. ^^''See e.g, Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976); Fiss, The Bureaucratization of the Judiciary, 92 Yale L.J. 1442 (1983); McCree, Bureaucratic Justice: An Early Warning, 129 U. Pa. L. Rev. 777 (1981); Vining, Justice, Bureaucracy and Legal Method, 80 Mich. L. Rev. 248 (1981). 884 INDIANA LAW REVIEW [Vol. 21:767 features/^^ Finally, although much of nontraditional theory purports to assign to courts the fundamental function of protection of individual rights as trumps of governmental poHcy, so that courts are viewed as counterweights to bureaucracy, it is not accidental that these rights are defined under it in a fashion compatible with the agenda of the "activist" state/^^ It is crucial to that agenda and to the preservation of such a state that courts eschew the limited, "reactive" role implied by formalism/^^ Consider the typical post-New Deal regulatory scheme. Such reg- ulatory schemes are characterized by a broad mandate to an admin- istrative agency. The mandate often compromises contending political positions in the enactment process by declining to establish a concrete program. The administrative agency is to produce the program by absorbing contending political forces within a bureaucratic process. "^^^ Despite lip service to nondelegation doctrine and even an occasional "^'Much commentary on the role of the judiciary in the context of administrative law conceives of courts as relatively passive mediators between bureaucratic agendas and "fundamental values," so they have the task of, for example, controlling administrative discretion. See, e.g., L. Jaffe, Judicial Control of Administrative Action 569-75 (1965). This, however, understates the judicial functions actually assumed. Courts are not mere passive mediators; they are actively engaged in establishing and furthering bureaucratic agendas and in adjudicating polycentric disputes between multiple interests. See, e.g., Chayes, supra note 484; Mashaw, supra note 176. This does not mean that there has been but a single, uniform tendency; the extent to which the courts have assumed activist roles has varied. Compare Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (activist judicial review of rulemaking) with Vermont Yankee Nuclear Power Corp. V. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) (passive judicial review of rulemaking). See Chayes, The Supreme Court 1981 Term Forward: Public Law Litigation in the Burger Court, 96 Harv. L. Rev. 4 (1982); Damaska, Activism in Perspective, 92 Yale L.J. 1189 (1983). ^^^See Mashaw, supra note 176. It is important to recognize that the claim made in the text disputes the standard position that courts are institutions independent from the administrative state and charged with the responsibility of preserving the fundamental principles of the legal fabric from the intrusions of that state. Professor Dworkin, for example, advocates a version of that standard position in sharply distinguishing principle from policy. See, e.g., Dworkin, Rights, supra note 29, at 22-28. Although the traditional view would support the standard position as a claim about what courts should do (via the device of relatively narrow construction of the scope of a statute), see Easterbrook, supra note 385, the claim in the text is that courts have in fact largely become integral actors within the administrative state, engaged in a process of establishing and furthering its agenda, despite occasional rear guard actions in keeping with the standard position. More importantly, the claim in the text is that nontraditional theory legitimates this phenomenon. Cf. M. Sandel, supra note 166, at 135-47 (Professor Dworkin's position so narrowly construes rights as to justify an expansive utilitarianism). *^^See B. Ackerman, supra note 293. '^^^See, e.g., Stewart, Reformation, supra note 482, at 1676-77; Shapiro, supra note 481, at 1505-07. 1988] AFFIRMATIVE ACTION 885 judicial recognition that the scheme enacts no clear resolution/^^ the general tendency has been to uphold such schemes/^° In short, the typical regulatory scheme enacts abstract purposes and instructs the agency it creates to go forth, do good and avoid evil. The role of courts in the post-New Deal era has not been merely that of validating delegation of legislative authority, or of experimenting with adminis- trative process to curb bureaucratic discretion. The courts have also gone far in establishing the substantive content of "doing good.'"^*^^ It has been the contention here that Title VII is not the typical regulatory scheme, viewed, at least, from the perspective of a traditional stance. However, the methodology by which the Court has approached Title VII has transformed the statute into a bureaucratic instrument compatible with an activist model of the state. The difference is that it is the courts, rather than an expert agency, that have supplied the major element of the enforcing bureaucratic structure under Title VII. Consider, for example, the Court's elevation of the EEOC, an agency without congressionally conferred rule-making authority, into a de facto rule-making agency whose rules, however, are judicially applied selec- tively. The agency's rules are utilized as legitimating arguments when judicially applied; the rhetoric of bureaucratic expertise is employed as justification for a regulatory agenda constructed by the courts. "^^^ Consider also, the long tendency of the lower federal courts, only recently impeded by a shifting majority on the Supreme Court, to employ class action procedures as an instrument for implementing rather radical changes on a mass scale in employment procedures."^^^ The form and scope of impact of such procedures is bureaucratic in the sense that they permit a thoroughgoing restructuring of social practices and '^"See Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981). "^See, e.g.. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). '''"Much administrative law commentary treats this process as a matter of controlling agency discretion, thus suggesting a judicial role of reaction to agency initiatives. See Stewart, Reformation, supra note 482; Shapiro, supra note 481; Rabin, Legitimacy, Dis- cretion, and the Concept of Rights, 92 Yale L.J. 1174 (1983). Nevertheless, judicial reaction often establishes the substantive content of regulation and does so not merely by confining that content. See, note 485 supra. ">^See Albemarle Paper Co. v. Moody, 422 U.S. 405, 430 (1975). '^^^Compare Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969) with General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982). It is of course possible to view the Supreme Court's limitation of the class action device as a backing away from the bureaucratization theme and as a partial return to a more traditional stance on the permissible scope and character of adjudication. It is, however, also possible to view the phenomenon as abandonment of a device no longer needed, as the objectives of employing the device have been satisfied. See Blumrosen, The Law Transmission System and the Southern Jurisprudence of Employment Discrimination, 6 Indus. Rel. L.J. 313 (1984). 886 INDIANA LAW REVIEW [Vol. 21:767 a means of accommodating multiple, contending interests. Consider, finally, the Court's liability theories and affirmative action theories. If the analysis of this article is correct, these constitute not a "reactive" scheme for adjusting disputes within a regime of private ordering, but an "activist" effort to redistribute employment through systematic reordering of private incentives. Indeed, the thrust of this discussion is that the Court has converted a statute that, when viewed from a traditional perspective, conferred a limited individual right within a regime of private ordering of employment into a statute that, when viewed from a nontraditional perspective, is an engine to achieve a particular end-state: a fair distribution of employment among race and gender groups. V. Conclusion The claim that the Court has bureaucratized Title VII should not be surprising. It is intimately related to the earlier claims made here that the Court has recognized a group right and de-emphasized the individualist conception of the antidiscrimination principle. The individualist conception, the account of original legislative intent provided above, and the conception of the function of courts as limited to enforcement of privately formulated arrangements or to the reactive correction of deviations from governing norms are related. All are aspects of a legal landscape that emphasizes, indeed is premised upon, notions of the value of individual autonomy, the primacy of private ordering and of the skepticism about the capacity of government to define, let alone to effectively implement, the public good. The role of a court in confronting a statute is, on these premises, the highly Hmited one of enforcing original understanding and, therefore, of confining the statute's operation and impact on private ordering to that understanding. At most, that role might extend to mediating legislative design, any administrative structure created to implement the design, and the pre-existing and privately ordered state of affairs orig- inally confronted by the legislature. Viewed from the baseline of this landscape, Title VII created and authorized enforcement merely of a limited individual entitlement. As the political justification for the Civil Rights Act at the time of its enactment was premised upon individualist norms, it is not surprising that both the text and legislative history of Title VII comport with this assessment. There is, of course, an alternative landscape, one that has generally eclipsed its competitor. The alternative has been variously labeled "con- structivist,"^*^^ "activist"^^^ ^nd "statist. "^^^ Its features are: (1) use of '*'''B. AcKERMAN, supra note 293, at 72. ""'Id. at 1. "'^Mashaw, supra note 176, at 1131. 1988] AFFIRMATIVE ACTION 887 governmental authority to order society in service of a publicly defined good; (2) implementation of this project through the rationalized pro- cesses of bureaucracy; (3) the blurring of private-public distinctions through the interrelated and interdependent character of private activity and bureaucratic processes and agendas;"*^^ and (4) a conception of courts not as enforcers of limited original understanding and not as merely mediators between public and private realms or between the legislature and the bureaucracies, but as prime actors both in establishing and in monitoring bureaucratic agendas. Viewed from the perspective of this alternative landscape, Title VII's purpose of enhancing distributive equality is properly viewed as its meaning, for that purpose is both compatible with the expanded version of governmental function expressed in such a landscape and with a meaning subject to the implementing bureaucratic process implicit in that landscape. Moreover, recognition and enforcement of a group right is compatible with, perhaps is inherent in, the alternative land- scape. Groups do not have rights in the sense of trumps of governmental interests or of private actions, but rather, in the sense of expressions of underlying, and overriding, governmental policy. The group is the administrative unit both of measurement and of implementation in an "administrative state. '"^^^ It may be said that this is putting the matter too strongly. An accurate depiction of the law of Title VII would not treat it either as expressing a "perpetrator" (individualist) perspective or a "victim" (bureaucratic) perspective,"*^^ but as an uneasy accommodation of both.^°° The law of Title VII (like, perhaps, American law generally) is more accurately characterized by oscillation between incompatible alternatives (or by "contradiction") than by a claim that it exhibits merely the characteristics of an "activist" or "statist" conception. There is much to be said for this view; it is a version of the claim earlier made here that Title VII is incoherent. ^°' Moreover, it is a view supportable by reference to the rationalization that the group rights aspects of the Court's doctrine can be conceptualized as a strategy of overenforcement of the disparate treatment prohibition. ^^^ The claim ^'^There is in addition a phenomenon, independent of governmental compulsion, of private adoption of bureaucratic forms of organization. See generally O. Williamson, Markets and Heirarchies (1975). "•^^Mashaw, supra note 176, at 1153. '^^See Freeman, supra note 2, at 1052. ^°°Cf. Damaska, supra note 485 (rejecting claim that American law can be explained by statist model and arguing that it is instead a complex combination of centralized and decentralized features). ^°^See supra text accompanying notes 154-65. ^°^See supra text accompanying notes 271-367. 888 INDIANA LAW REVIEW [Vol. 21:767 that Title VII has been bureaucratized is not, however, dependent upon a finding that it has been wholly and coherently bureaucratized. The Court's interpretations have rendered it both incoherent and a chief example of the departure of the current legal landscape from the rhetorical individuaUst ethic often employed to legitimate it. The difficulty is that bureaucracy, and the view of government and court that underlies it, has been imposed upon a statute that both expresses and is symptomatic of an individualist ethic. Distinct and incompatible ideologies therefore coexist in uneasy tension. The con- sequence is compromise, an unstable complex of legal norms that can legitimately be explained either as an instance of bureaucratic imple- mentation of a state policy of redistribution (a group rights regime), or as an instance of judicial overenforcement of disparate treatment (a partially individualist regime). This consequence satisfies neither side of the debate between these ideologies. From the perspective of ad- vocates of redistributive equality among groups, the compromise is an inadequate, indeed hypocritical instance of the perpetuation of racism and sexism. ^^^ From their perspective, such advocates are correct: it is unlikely that the compromise will substantially affect the phenomenon of the minority underclass both because it incorporates elements of meritocratic individualism that render it largely irrelevant to that un- derclass, and because the appropriation and redistribution of wealth necessary to any near-term elimination of the underclass is not con- templated by the compromise. ^'^'^ From the perspective of advocates of individualist ideology, the compromise is an impermissible denial of the ideal premised upon an alien conception of governmental functions. From their perspective, the individualists are also correct: the com- promise recognizes and enforces a group right, understood as a re- distributive policy of government, even if the limited character of this policy results merely in tokenism. ^^^See Freeman, supra note 2. ^'^See Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 Harv. L. Rev. 78 (1986).