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Volume 5 Number 1 JUSTICE CONTINUES ITS ATTACK ON AFFIRMATIVE ACTION
Assistant Attorney General for Civil Rights William Bradford Reynolds seized upon the Supreme Court's decision in Wygant to attempt to further the Justice Department's efforts to gut Executive Order 11246 on affirmative action. Claiming that the Court had held that evidence of prior discrimination is necessary in order to use race-conscious remedies, Reynolds asserted that the Executive Order's requirement that federal contractors take positive steps, including goals and timetables, to bring women and minorities into their workforce is unconstitutional because it "is not predicated on any finding of discrimination" (New York Times, May 23, 1986). Reynolds also claimed that the Court's finding that a governmental agency must choose a remedy that "intrudes least upon the rights of innocent third parties" eliminated goals and timetables as acceptable tools, because less burdensome remedies are available, namely, recruitment and training (New York Times, May 23, 1986). This assertion was made despite the clear acceptance of goals in the Powell and O'Connor opinions (see above). The Powell opinion states that the layoff plan was "not sufficiently narrowly tailored;" and in the very next sentence continues, "Other, less intrusive means of accomplishing similar purposes- such as the adoption of hiring goals- are available."
Civil rights advocates found Reynolds' assessment intellectually dishonest. In a prepared statement on the decision, the Lawyers Committee for Civil Rights Under Law provided an analysis in sharp contrast to the Assistant Attorney General's:
Justice Powell's opinion, joined by t-he Chief Justice and by Justice Rehnquist, held that a simple imbalance between the proportion of employees who were members of a minority group and the representation of minorities in the relevant labor market is enough justification for a race-conscious [affirmative action plan]. This is a simple test, and it will be easy for public employers to administer it. No Justice suggested that any more difficult standard be applied... This is the identical "under-utilization" standard used by the Labor Department in its enforcement of Executive Order 11246. As a result of Wygant, the Labor Department's program should be immune from further attack by the Justice Department.
Further, Barry Goldstein of the NAACP Legal Defense Fund, in an analysis prepared for the Leadership Conference on Civil Rights, wrote:
Mr. Reynolds has announced that the Supreme Court decision in Wygant... reverses the rulings over the past 15 years by the Executive, Legislative and Judicial branches and determines that the contractor compliance program has "a serious constitutional flaw." Wygant, it should be understood, was a case that in no way involved the federal executive order. It dealt with layoffs, not hiring, and with a specific ratio for laying off people, not a goal. As in the past, it is Mr. Reynolds' analysis which is seriously flawed. Actually, Mr. Reynolds' analysis is inexplicable unless we understand that Mr. Reynolds looks at issues through narrow ideological blinders.
A spokesperson for the Labor Department was quoted as saying the decision "provides a basis for cautious optimism by proponents of reasonable and flexible goals and timetables, for it is clear that at least seven members of the Court view some type of goals as a valid method to effectuate affirmative action" (New York Times, May 23, 1986, Al).
The differing interpretations of the decision within the Administration reflect the division over changing the Executive Order. Since last August, Reynolds and Attorney General Edwin Meese have been trying to revise the Order to eliminate goals and timetables as a requirement for federal contractors. Secretary of Labor William Brock has been waging a valiant fight to retain the Order's goals and timetables requirement. Despite the overwhelming, bipartisan opposition to revising the order, expressed by more than 270 members of Congress (including 69 Senators), key business leaders, a substantial number of Reagan cabinet members, unions, and civil rights and religious groups, Meese and Reynolds remain doggedly devoted to gutting the Order. The battle is not over, and your expressions of support are very much needed. Write or call the President to express your support for the Executive Order (202/456-11414). Also, contact Secretary of Labor William Brock and thank him for his efforts (202/523-8271).
  
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