Shouldn't be a federal case: affirmative action, like myriad other topics including anti-sodomy laws, should not be a subject for the federal courts to decide.

The Supreme Court on June 23rd upheld 5-4 the University of Michigan's affirmative action policy for its law school. That policy seeks an enrollment of a "critical mass" of minority students. In light of that decision, we are reprinting below an article by John F. McManus that originally appeared as a "Birch Log" syndicated column in July 1989.

When the 1964 Civil Rights Act was being considered by Congress, its most ardent supporter was then-Senator Hubert H. Humphrey of Minnesota. One of its most hotly debated sections turned out to be Title VII where some legislators found language indicating to them that racially-based hiring quotas would result.

Nothing to worry about, said Humphrey to a questioning colleague: "[If] the Senator can find in Title VII ... any language which provides that an employer will have to hire on the basis of percentage or quota related to color ... I will start eating the pages one after another, because it is not there."

Another strong backer of the Act, Senator Clifford Case of New Jersey, gave an even firmer guarantee: "There is no requirement in Title VII that an employer maintain a racial balance in his workforce. On the contrary, any deliberate attempt to maintain a racial balance ... would involve a violation of Title VII.... It must be emphasized that discrimination is prohibited to any individual."

What did Title VII say? The contentious section contained the following language: "It shall be an unlawful employment practice for any employer ... to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any programs established to provide apprenticeship or other training," Pretty clear, isn't it? Discrimination on the part of "any employer" shall be unlawful.

Enter Affirmative Action

Yet, in what now seems like the blink of an eye, the Humphrey-Case guarantees (and those of all their liberal colleagues) were cast aside and discrimination for some persons based on racial, ethnic, and gender considerations became the rule. The very thing they said would not happen happened. It came about as a result of Executive Orders from the Johnson White House, amendments to the Act, and decrees of the Equal Employment Opportunity Commission.

Overnight, employers were forced to hire and promote according to norms they thought were outlawed. College and university admissions offices were required to alter admissions policies. Further, a portion of publicly funded contracts were now earmarked for minority-owned businesses, even in cities where the so-called minority totaled as much as 70 percent of the population. It was affirmative action with a vengeance. Among its harmful effects can be found a significant amount of new racial animosity. After all, if a qualified white male who never harbored racist sentiments loses a promotion to a less-qualified and less-senior individual who satisfies his employer's federally imposed quotas, his bitterness is hardly surprising. Realize, too, that the black, woman, or Hispanic holding a responsible position is almost universally viewed as having little talent and a lot of affirmative-action-supplied good fortune.

The Underlying Wrongs

When the federal government decided in 1964 that it should outlaw discrimination, it assumed power in an entirely new arena. Once in possession of this new authority, it could ban racial discrimination (as it did in the 1964 Civil Rights Act), or it could enforce the despicable practice (as it had done via affirmative action). The assumption of the power is the problem. The once frequently applied but now forgotten maxim "Don't make a federal case out of it!" was foolishly (and perhaps deliberately) cast aside.

Something else must be said about the crime of affirmative action. Its underlying premise is that rights belong to a group, not to an individual. This is unadulterated Marxism. The American principle that individuals possess God-given rights and should be judged on their own merits has been junked.

The Supreme Court in recent decisions has removed a few teeth from affirmative action's grip on America. What it should do now is rule that the business of discrimination--for or against anyone--is not a federal matter.