Q-In 1971 came the infamous employment tests in Griggs v Duke Power. "If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." The employment tests had to measure the person for the job and not the person in the abstract.

A-In other words, any test had to be job related. That was in 1971 and twenty years later in 1991, a five foot, one inch stewardess won a lawsuit to keep her job. Today an airline is apparently not allowed to hire someone based on job performance.

The rationale: since so many Asians are short it would amount to discrimination. Never mind that a five foot one inch lady couldn't begin to reach back in the overhead bin to place or retrieve heavy luggage or handle large passengers that are ill or need help.

Q- Is it discrimination to refuse to hire tall or heavy jockeys? How about short basketball players? Do fashion models have to be tall and thin---can't shorter overweight girls sue? Isn't it ok to turn down people who in the employer's judgment may not be able to perform the job properly? How about Jane Doe who is allergic to cats and cigarette smoke ---could she sue a veterinarian if she applied for a job and was turned down just because she couldn't handle cats? Could an owner of a bar refuse to hire her just because of her allergy to cigarette smoke? Is this fair? Is this just?

A-You're getting a little carried away. All that nonsense is in the here and now---let's go back to the seventies and trace the route.

In 1971 the University of Wisconsin law school rejected a white male whose test scores were higher than 36 percent of the minority applicants who were accepted. In 1974 the Supreme Court declared the same case moot as the plaintiff was finishing school.

Q-I thought the Bakke case was the first case based on the theory of reverse discrimination?

A-The facts were similar to the 1971 case only it received a ruling and therefore more publicity. In 1978 the Court ruled Alan Bakke must be admitted to UC Davis medical school but also said some consideration in admission may be given to race.

Q-I know the reverse discrimination controversies began over school admissions but it seems like the squabble spread pretty quickly to cover hiring practices in the workplace.

A-Absolutely right. In 1979 Brian Weber lost his suit against the steel companies who were reserving half their training slots for blacks, and in 1980 Earl Fullilove sued over contracts reserved for minorities and lost.

The Court explicitly upheld race-conscious remedies in the Fullilove case. Then in 1984 the Memphis Firefighters sued because of lay-offs based on race not seniority. The plaintiffs won the reverse discrimination case but the court approved the principle of race-conscious remedies. This is also called the Stotts case.

Q-Didn't that originate the "victim specificity doctrine"?

A-Right. Although the Court ruled that affirmative action concerns would have to give way to seniority rights this would not be the case if an individual could show that discrimination was directed at him or her personally.

The victim of provable discrimination would be awarded the seniority otherwise denied so that it could be said that seniority still governed lay-off decisions.

This became the victim specificity doctrine and it required complainants to prove that they were the victims of intentional discrimination before a remedy could be implemented.

Q-What role did the Reagan administration play in all this?

A-Reagan's Justice Department, under William Bradford Reynolds, tried to get rid of group entitlement and equal results and move toward equal opportunity. In its 1989 case the court began saying if you charge discrimination then prove discrimination and include specific injury and then the remedies better not discriminate against anyone else. The Reagan administration felt strongly that employing coercive racial preference, in an attempt to make amends for past racism, did more harm than good. Reynolds used to infuriate his opponents when he quoted Martin Luther King Jr. who maintained that the Constitution should be racially neutral. There are a lot of people out there that believe color-blind policies might cool racial passions.

Q-Well, don't count NAACP executive director Benjamin Hooks as one of them. Remember his November 1985 New York Times article in which he declared to the world that "the U. S. Constitution Was Never Color-Blind"? Didn't Reynolds try and use the victim specificity doctrine to invalidate affirmative action?

A-Yeah, but big business, afraid of negative publicity, sabotaged the administration's efforts right from the beginning and government agencies shared their fears. The Civil Rights Division asked 56 government employers with court-ordered or privately negotiated affirmative action programs to fight them in court. Only three agreed to do so. It seems that large corporations and local governments had grown comfortable with voluntary or court-supervised programs that guarantee members of identifiable minority groups a portion of their available jobs.

In fact the National Association of Manufacturers and other business organizations praised affirmative action mandates, asserting that goals and timetables were an effective means of bringing minorities into the workforce and they let the Reagan Administration know that they had no desire to attack affirmative action programs. The National Association of Manufacturers spokesman even went so far as to insist that voluntary compliance would not work.

Q-What about small businesses?

A-Smaller companies try and avoid any entanglements with government because so many government agencies view small business as a problem; a problem beyond their control. Agencies like the Equal Employment Opportunities Commission (EEOC), Occupational Safety and Health Administration(OSHA), Immigration(INS) and Labor Departments (DOL) all find it difficult to supervise small businesses because they are so diverse and so plentiful.

Q-Don't you think some of the antagonism that many bureaucrats show towards the small business person comes from an ingrained belief that most of them exploit their workers, evade regulations and taxes and gouge their customers?

A-If so, I would add it is a mistaken belief. Without small business you'd have a much large number of unemployed minority workers. Right now four-fifths of all working minorities work for small business and this despite disincentives by government.

Q-What do you mean by "disincentives"?

A-Government acts as a disincentive to ghetto employment when it threatens discrimination suits if ghetto employees are paid lower wages and by forcing quotas in proportion to the racial composition of the work force in the area. Rather than "fight" most small businesses set up shop elsewhere, just as most large companies do. You can't be productive and wage a war against government at the same time.

Q-So much for business standing up for its rights. They'd rather take flight than fight.

A-But your ordinary citizen has been less afraid to voice his opinion. A 1984 survey for USA Today found one out of ten white voters said that he had lost a job opportunity or an educational opportunity as a result of preferential treatment for minorities.

Q-Who is the Head of the U.S. Commission on Civil Rights under Gerorge Bush and what is his attitude towards some of these questions?

A- Clarence Pendleton, Jr. doesn't believe the 1964 Civil Rights Act and the 14th Amendment to the Constitution demand preferential treatment. Mr. Pendleton campaigned around the country in an effort to eliminate quotas as demeaning to minorities and punitive to the majority. He has said that the civil rights law of 1964 was never given a chance to work because in 1965 we quickly added affirmative action laws and in 1970 goals and timetables were added by Richard Nixon.

Q-I though President Johnson did that?

A-So do most people, but as I pointed out earlier, it was done under Nixon's watch. Clarence Pendleton has suggested that it is racist to fail to ask why white people don't succeed. He says it is sinister to assume people need a government program in order to get an education or a job and maintains that backs made more progress before government intervened. Twenty years after the war on poverty we had more poverty, more street crime, more teen pregnancy and worse education.

Q-It sounds like Mr. Pendleton could have easily served in the Reagan administration with his philosophy.

A-You're right there. In the true Reagan tradition, Mr. Pendleton blames government. ". . .the best thing that minority people can do if they are smart is take their lives back from government and ask for less of it because it makes a mess out of things."

Like George Mason University's social scientist, Walter Williams, Clarence Pendleton talks about how the Boston Celtics would only be allowed four blacks and would have to include women and other minorities if it were forced to attain racial balance.

Q-People wouldn't buy tickets.

A-You're right---statistical parity is not economic. Lawyers make a lot of money in legal fees via civil rights legislation. Pendleton says when there was segregation you had rich-middle and poor blacks all living together. Good role models were available. He blames the disintegration of Washington DC, his home, on black, not white people. As in so many communities, once desegregation was forced, blacks stopped patronizing black businesses in their hurry to patronize white businesses which had been off-limits.

Q-This is understandable but I can see it was harmful too.

A-The thinking was "white is right"---blacks wanted what whites had and they rushed to get it whether it proved to be inferior or not, and they gave no thought to the protection of the foundation in their own black communities.

Q-In 1986 wasn't there a suit brought by a Michigan schoolteacher?

A-Yes. The teacher, Wendy Wygant, was faced with layoffs based on race not seniority. The Court ruled as in the Memphis firefighter case but added discrimination in hiring can be tolerated because, as Justice Powell wrote, "racial exclusion in applying for a job is not as intrusive as loss of an existing job".

Q-If I remember, that was the case that pit the school board's well-meaning but race-conscious policy against the teachers' constitutional right to be treated as individuals.

A-Absolutely. The school board maintained that schools wouldn't be truly desegregated until its faculties were. That case was in May and in July of 1986 in the Sheet Metal Workers case the Court upheld a lower court order that required a New York union local to attain 29.23 percent nonwhite membership by August 1987 as a remedy for past discrimination.

Q-I thought firefighters were involved?

A-The court also approved a consent decree in which Cleveland agreed to settle a discrimination suit by giving blacks and Hispanics priority for promotions as city fire fighters.

Q-That's what I remembered. The 1986 rulings by the Supreme Court made it legal for white males to be subject to racial and sexual discrimination in favor of people who have never personally suffered from it in the past.

A-Naturally this increased resentment.

Q-It looked as if the affirmative action forces were definitely gaining ground.

A-What can I say? U.S. vs. Paradise continued the trend in favor of reverse discrimination. The issue before the Supreme Court in 1987 was whether equal protection of the law was now being denied to whites? Were racial quotas permissible under the U.S. Constitution?

Q-Wasn't that based on a 1984 ruling somewhere in the South?

A-That's right. After getting no response to his repeated orders to integrate the Alabama State Troopers beginning as far back as 1972, an Alabama judge ordered that for a period of time, at least 50 percent of the promotions to corporal in the state troopers be awarded to blacks if qualified black candidates were available. In February 1984 the state complied and then appealed to the Supreme Court. The 1987 decision was 5-4 in favor of quotas.

Q-I'm surprised by these ruling which occurred despite the opposition of the Reagan Administration and its judicial appointments.

A-Sometimes wheels turn slowly and the effects of the Reagan appointees became apparent later. In 1989 the cases began to proliferate.

In Martin vs. Wilks the Court swerved and ruled 5-4 in favor of workers filing new lawsuits claiming reverse discrimination under court-approved affirmative-action plans.

The 5-4 decision in the Patterson case said that the 1866 civil rights law giving the right to contract equally to all citizens doesn't permit lawsuits involving harassment on the job or other conditions of employment.

Q-Wait a minute---wouldn't you say that case in Virginia, which ruled against set-asides of government contracts for minorities, was pretty much a reversal of those Slaughter-House cases you told me about earlier and they way they justified governments' playing favorites?

A- You must mean the City of Richmond vs. Croson which severely limited the power of government to favor women and minorities in public contracts. In that case Justice O'Connor said race-conscious remedies must be subjected to strict scrutiny.

Q- I understand that in Richmond, Virginia, minority participation in city employment contracts fell from 32 percent before the Croson decision to 11 percent in the fall of 1990.

A-The Croson ruling was too narrowly defined, leaving us with the possibility of good and bad discrimination. Federal set-asides for black contractors are good but municipal set-asides for black contractors are bad.

How would you like to hear about another city's experience with set-asides?

Q-Why not?

A-The citizens of Canton, Illinois got caught up in someone's clever scheme awhile ago and lost $250,000. More importantly, they may have lost a bit of their willingness to go out on a limb to help the next guy.

The town offered a low interest loan to attract investors in order to keep Canton Industrial Corp., the town's largest employer, operating.

Q-Wasn't Canton Industrial a subsidiary of International Harvester and had at one time employed 2,300 people in the production of farm machinery?

A-I don't know how many employees it used to have, but the rest is correct. Anyway, the town was successful in its attempt to attract new plant owners who soon ran up losses of $1.25 million on sales of $373,000. The new owners turned to government as a way out of their predicament. They decided to sell the business to a woman, believing " a woman-owned enterprise, would be eligible for priority treatment in federal government contract awards." Unfortunately the favorable treatment was only a suggestion and did not carry the force of law. They were stuck with a second new owner whose only qualification for ownership was her sex. According to the account in Forbes magazine, in early 1988 the company owed creditors almost a million and a half dollars, leaving investors with stock worth only about seven cents on the dollar.

Q-I guess they all learned a lesson about the futility of pursuing government subsidies.

A-Guess again. A few months later someone else was on the side-lines gearing up to call on Uncle Sam one more time. The next potential savior was a Puerto Rican, expecting to benefit from the law which mandates the government award five percent of defense spending to minority-owned firms.

Q-There are always those who are able to turn any regulation to their own advantage. I guess government should pay attention to that rule of yours---the one about people always acting in their own self-interest.

A-At least what they perceive to be their interest.

Q-Along that same line, I heard that Harvey Gant, former mayor of Charlotte, North Carolina and Jesse Helms' challenger for the U. S. Senate in 1990, got a contract to operate a radio station on the basis of his race. He apparently wasn't able to raise the funds required to successfully operate it so he sold it to an all white group for $3.5 million. He may have thought it was in his self-interest at the time, but it came back to bite him during the campaign.

A-The Minority Business Development Agency was created under the Commerce Dept. to help minority owned businesses. MBDA spends more money running itself than helping minority businesses. Such entities are hotbeds of favoritism and federal boondoggles.

Q- When Wilson was running for Governor of California he befriended the San Diego State University Foundation that stood to lose its $1 million contract to run an MBDA center in Los Angeles. It's competitor was another Wilson supporter, Miranda Strabala Association who he also befriended, but unfortunately sent his letter of recommendation to the wrong MBDA office. Even though SER Jobs for Progress , which ran the MBDA center in Riverside,had failed to meet its goals during the first two years of its contract, Wilson recommended its contract be continued.

A-A study found that 32 percent of the minority businesses who benefited from provisions found in the 1977 Public Works Employment Act, were actually sham companies owned and managed covertly by whites. A low-bid white-operated company is sometimes hired by the higher-bid minority company who holds the government contract but has neither the skill nor the equipment to complete it. The low-bid company has only its minority status.

The Government Accounting Office estimated that ". . . minority contracts on public works projects were 9 percent higher than low bids from non-minority companies" and 10.7 percent to 15 percent higher when it comes to highway jobs. The non-minority firm gets the job, that without the law they probably would have gotten in the first place, and the minority firm keeps the premium the government paid.

Q- Sounds like a good deal for all the parties involved ----only the taxpayers lose.

A-I'm constantly amazed how often detrimental policies can be traced to the Nixon administration. Set asides, for instance, originated in the Small Business Administration Section 8(a) programs. Set asides allow a minority business enterprise (MBE) or a disadvantaged business enterprise (DBE) first crack at government contracts. A blue-eyed, fair-skinned contractor who claims to be 1/64 Cherokee received a $19 million contract for work on the Los Angeles rapid-transit system. His claim to minority status and eligibility for a set aside was reviewed in 1988 by the Department of Transportation but many similar claims are uncontested.

Q-We're not talking small potatoes here. Set asides totaled more than $14 billion in 1986.

A-Discrimination by government is wrong and I know of no one who believes two wrongs make a right. If, as politicians are so fond of claiming, Americans (the American people is the term they most often use) really want to see minority firms get a helping hand and stand on their own, they will extend that hand. If they don't, and I'm aware that some don't (only politicians seem to know what all the American people want) they will insist that minorities compete in the market place without special favors.

I personally believe a majority (maybe a small majority) do want to help, but pretending by politicians will not make it so.

Q-How does anyone imagine that discriminating against white-male-run businesses can make up for past discrimination against minorities?

A- Obviously a lot of people don't because after Croson nine more programs were declared unconstitutional and 20 cities and states voluntarily ended their set aside programs. That limited the use of set-asides somewhat, but limited, does not mean dead. If the right analysis is done it may still be possible to justify set-aside programs.

Q-It's still possible all right, if the plaintiff has the time and money to compile a statistical paper trail showing minority owned firms had been frozen out of local construction contracts in the past. I heard of one law firm in Seattle that was paid $400,000 to do just that.

A-I know that Oakland California also had an expensive study done for that same purpose not long ago. It's worth investing a little money for a chance to get your hand in Uncle Sam's cookie jar.

Q-San Francisco never gave up its set-aside programs.

A-Why am I not surprised? The U.S. Constitution says explicitly that no state shall deny to any person within its jurisdiction the equal protection of the laws. It forbids racial distinctions in the exercise of governmental power.

Q-But didn't the 1986 Supreme Court tried to make a distinction between individual rights and rights in the general society?

A-Correct. We went into some of this earlier. In 1987 the Supreme Court allowed benefits to individuals who were not themselves victims of discrimination. The minority of Justices agreed that was trampling upon the rights of innocent whites, but the majority felt the decision did not impose an unacceptable burden on innocent third parties because the hiring mandate was to be severely limited both in scope and duration.

Q-Yeah, We did talk about this earlier. I think the Court said something about it being ok to make qualified whites wait a little longer for their promotions. But what really got me was the ruling that a federal judge can order school officials to raise taxes to pay for desegregation remedies. Do you know the case I mean?

A-Yes and I agree, that's an incredible ruling. In April, 1990 in another five to four ruling Justice White said to deny judges the right to intervene in matters of taxation would fail to take account of the obligations of local governments to fulfill the requirements that the Constitution imposes on them. The ruling, according to an ACLU attorney, means states and cities can't plead poverty to impede legal school desegregation. By summer of 1990 there was an avalanche of lawsuits requiring states to equalize educational spending from one school district to another.

Q-Such a ruling denies economic realities. It sounds to me like we have Justices in Wonderland.

A-I'm with you! But remember, most of these decisions have been very controversial---five to four rulings are very tenuous and evidence disagreement by the best legal minds in the country. These rulings may be reversed at any moment, but in 1991 it seems safe to assume that laying off whites in order to save the jobs of blacks won't be tolerated nor will rigid racial quotas be enforced because in these cases there are easily identified white victims.

Q- But when it comes to race-conscious hiring and promotion practices, timetables and goals are allowed. I thought the Reagan appointees to the Supreme Court would have made more of a difference.

A-As I said before, sometimes the wheels turn slowly. The Reagan Administration may not have won many affirmative action battles, but it promoted its reverse discrimination theory. It's hard to argue with their logic. "You don't cure discrimination by discriminating against an innocent individual.

Q-Two wrongs don't make a right.

A-But while the Reaganites had logic on their side proponents of affirmative action had emotion. Richard Hudnut, Mayor of Indianapolis said on TV that affirmative action programs were ". . .a general American commitment to the fulfillment of the American dream, which is one where everybody has equal opportunity." He suggested that without hiring mandates the nation would be taking a step backward into a world where only white males had jobs."

Q-Columnist Carl Rowan did his part by telling readers across the country that good Americans, exemplified by Mayor Hudnut care about justice and "know when something mean and destructive is being foisted upon them"

A-I only wish this were the case, because affirmative action has been just that---mean and destructive and harming those most whom it purports to help.

A-Many opponents of affirmative action argue that the whole point is to lower standards.

Q-Maybe it is a valid trend. Pope John Paul's recent decision to waive the requirement of a miracle in his determination to have an American Indian saint is another case in point.

A-I don't know about that, but I do know in a truly color-blind society people readily admit to superior, normal and inferior members of every racial group. The superior and normal members of the black community suffer because of the innuendos that blacks could not succeed without the extra help provided by affirmative action laws.

Q-Proponents of affirmative action lump minority people as groups whereas opponents of affirmative action, like yourself, emphasize the effect of affirmative action programs on individuals.

As we were saying earlier, people aren't the same just because they are members of the same group. All blacks aren't underdogs; some are very successful members of society. To imply that a group cannot have successful leaders because its members are all underdogs hits at the self-esteem of both the group and individuals within that group.

A-I agree. An example of that occurred in the San Francisco fire department where an African American who scored only 300 on a test was skipped over a couple of higher ranks that were meant to provide experience for the office of Chief. He is now a chief in the San Francisco fire dept. and reporters claim he tries to duck questions and stay out of the limelight, no doubt aware that his colleagues realize he lacks proper qualifications for the job.

Q-That's just what we were talking about; well-meaning programs hurt those they intend to help as well as other firemen and the reputation of the whole department and the entire city.

Along this same line someone feared he might have gotten his job because of the need for employers to hire disabled people for appearances and for tax incentives. He said the thought made him feel worthless.

He found the whole concept of affirmative action to be very degrading because he believed he had every right to the job because of his abilities but knew that others would instead credit the government program.

A-Although Ronald Reagan was ridiculed when he touted the merits of a color-blind society, I'm absolutely convinced that should be our goal. It seems to me that we were a lot closer to reaching that goal before the affirmative action legislation interrupted the progress that had been achieved. A color-blind society is fairer and in the long run more beneficial for everybody.

Q-What makes you think it could work?

A-For instance at one time the Detroit symphony had all white musicians. They used to test behind a screen, only listening to the music with those who auditioned being given a number so there was no chance of knowing the player's sex or race. The screen is gone now, so that race and sex can be considered. Which is fairer and which makes a better symphony?

Q-How do you approach the civil rights debate that is going on in this country right now?

A-I like to try and put myself in the other guy's shoes. I realize it's hard, but somehow we must manage to communicate. Let's for a moment forget the differences and concentrate on the "sameness".

All of us, when we work hard, want recognition and feel cheated when others denigrate our work and suggest our success was due to something other than our own effort. As things stand at the beginning of the nineties it is almost universally assumed, even if not articulated, that a successful minority is the beneficiary of a special program.

Q-You mean racial preferences. Racial preferences were set up to benefit minorities weren't they? What's the big deal?

A-Of course. If people didn't benefit from racial preferences what would be the point of having them?

Q-I would suppose the bigger problem in the nineties is the increase of disparaging remarks directed at individual members of minority groups.

A-I've always believed that insensitive remarks show more about the speakers than about the persons who are the object of the remarks.

Q-Besides just about everybody is subjected to denigrating remarks and unjustified skepticism from time to time.

A-That's true but it doesn't excuse the practice or stop a person from being hopping mad when it does occur. Years ago youngsters were taught that name calling is more a reflection on the caller than the recipient of his or her epithets. Everyone who was ever called a nasty name, and that was probably all of us at one time or another, knew enough to retort with the applicable jingle: "Sticks and stones may break my bones but names will never hurt me."

Q-I don't see how you can equate calling children names on a playground with racial tensions? Allowing such attitudes does more than just hurt feelings, it leads to loss of jobs and opportunities. That's why we need laws to protect against discrimination rather than telling people to ignore what is happening and just go about their business.

A-You're talking about Orwellian "thought police". Laws are force and force will not work in this situation, nor would force have been a proper response on the playground.

Besides if you think the majority of white employers in this country would be influenced by the openly expressed racial hostility of a few people, then you would be showing a bias against the white race, attributing an ugly propensity for bigotry to a very large group. You would in fact be expressing a belief that white employers would go out of their way to treat a minority person badly.

It seems to me that people who hold those assumptions are as guilty of accelerating racial tensions as those who assume members of a minority race are less capable than whites and therefore must be given a crutch via mandated preferences.

Q-So what would you suggest?

A-Appeal to the best instincts in the population. Change the goal from achieving equality through force to achieving a color-blind, creed-blind, race-blind, sex-blind society through faith and trust in the basic goodness of mankind.

Q-You've got to be kidding!!

A-You think it's naive, but I know it's right. Martin Luther King, Jr. and Ronald Reagan were both right in their denunciation of forced preferences and in their support for a color-blind society.

Q-All this "right" and "wrong" stuff really bothers me. Columnist, Carl Rowan wrote in December 1990 that the call for a color-blind society is a call for maintaining the special privileges of whites.

A-Referring to people as whites, blacks, Hispanics, Asians, women and disabled is in itself separatist and confrontational. Every Bobby, Ted and Mary Ann within a specific group is as different as the Bobby , Ted and Mary Ann outside that group.

Q-Well, isn't that what Jesse Jackson is saying with his little jingle: "Yellow, brown, black or white, we're all precious in His sight."?

A-I believe he's saying we're all human beings so let's support one another. Of course his idea of support would be to vote "collectively" for a specific political agenda. I say being human is our common thread but I celebrate and respect the diversity---diversity is America's advantage, not her curse, as foreign observers often assume. Diversity needs to be emphasized but not the diversity of groups, the diversity of individuals. America has always been a nation of individuals; that is the uniqueness of our political heritage and our culture---let's not lose that.

Q-All blacks are not alike. All whites are not alike. All Hispanics are not alike. All Asians and other ethnic minorities are not alike. All "challenged people" are not alike. All older people are not alike. All teen agers are not alike.

A-All men are not alike. All women are not alike. This is something policy makers have forgotten. I believe individual rights, not group rights should be protected under our laws----period.